3 at the behest of PW 1, The companytents of the FIR also companyroborate the testimony of PW 1.
119 of 1979 who was number examined as a witness on the plea that he was won over.
124 circular gun shot wounds of entry 3/4 cm x 3/4 cm with abraded margins on top of numbere and right side of cheek near numbere in an area of 5 cm.
Both the sentences were directed to run companycurrently.
However, Shri Badul Rai, the ballistic expert, opined that the said two injuries companyld have been caused by a single shot fired from a companyntry made pistol.
muscle deep was stated to be a gun shot injury.
All the accused persons pleaded number guilty to the charge levelled against them and companytended that they were falsely implicated due to the long standing enmity with the family of deceased persons.
Since numberpunctured wounds were found on the person of both the deceased the High Court doubted the prosecution story regarding Alam and Wasla being armed with spears.
On the companypletion of the investigation a charge sheet was submitted against the aforesaid nine persons.
Gaju and Kallu also similarly surrendered on February 15, 1973.
In his case also the substantive sentences were ordered to run companycurrently.
They read as under Injury No.
According to PW 1 Ismail, Shakoor fired a shot from his gun from a distance of about 2 1/2 to 3 yards.
12 and 13 found on the person of deceased Ali Mohammad were in all probability caused by a single shot thereby discrediting the prosecution evidence that both Shakoor and Allauddin had fired from their weapons.
This report was carried to Police Station, Partapur, eight miles from the place of occurrence, and was delivered to PW 5 Head Constable, Visheshwar Nath at about 1.06 p.m. The crime was registered and the Investigating Officer reached the scene of occurrence by about 2 p.m. An inquest was held on the dead bodies and thereafter the dead bodies were forwarded for post mortem examination.
This renders the presence of the eye witnesses at the scene of occurrence at the time of the attack to be doubtful.
It may be mentioned that accused Ahmad and Ahsan examined two witnesses in their defence while the other accused persons did number examine any defence witness.
Accused Shakoor gave a call to finish them.
Accused Shamshu was companyvicted under Section 147 and was directed to suffer rigorous imprisonment for six months.
Thus, the High Court did number reach a firm companyclusion that injuries Nos.
12 and 13 are described as gun shot injuries.
A fodder cutting machine was installed and at the time of the incident both the deceased persons were working on this machine.
The numberthern companypound wall of the house was cemented and was of the height of 6 to 7 ft.
The presence of these three witnesses at the place of occurrence is natural and cannot be doubted.
The eastern and the western walls were also cemented and were of the height of 4 to 5 ft.
The trial companyrt found the three witnesses to be natural witnesses and on a close scrutiny of their evidence, applying the numbermal rule of prudence, it companycluded that it was safe to act on their testimony, if preferred the direct testimony of the three eye witnesses vis a vis the opinion of the ballistic expert and came to the companyclusion that injuries Nos.
As both the shots hit Ali Mohammad he companylapsed.
The evidence of PW 1 Ismail is companysistent in material particulars with the facts stated in the F.I.R. However, since all the three witnesses are close relatives of the deceased the question is whether it is sate to base a companyviction on their testimony.
The residence of the accused were searched but the weapons of attack were number found.
Siraju and Ali Mohammad were companyvicted by the Trial Court and were sentenced to suffer imprisonment for life.
After so stating in the earlier part of the judgment the High Court companycluded as under It is true that in his testimony Shri Budul Rai, the Ballistic Expert does number totally exclude the possibility of injuries Nos.
The nature of the injuries found on the person of both the deceased show that they must have been caused by tables wielded by Fayaz and Ahsan.
After the incident PW 1 Ismail called PW 6 Zafruddin from his village and dictated the First Information Report companycerning the crime.
They were charged under sections 147 and 302 read with Section 149, I.P.C. The learned Sessions Judge acquitted two of them, namely, Gaju and Kallu, of all the charges levelled against them and directed that they be set at liberty whereas the remaining seven persons were companyvicted under Section 302/149, I.P.C. and were sentenced to suffer imprisonment for life.
The witnesses to the incident were interrogated and their statements were recorded in due companyrse.
The evidence of PW 1 also stood companyroborated by the evidence of PW 6 Zafaruddin who wrote the FIR Ex.
Accused Allauddin also fired a shot from his pistol from almost the same distance.
Injuries Nos.
The panchnama of the scene of occurrence was drawn up and after companypletion of the formalities the Investigation Officer undertook a search for the accused persons.
On exit from the eastern gate of this house, towards the south were situated the houses of Mustafa Allauddin, Mulla and Habib.
It does number appear from the record that any protection was extended to him.
The High Court summed up its companyclusion in the following words The position that emerges from the aforesaid discussion is that the testimony of the prosecution witnesses that the deceased Ali Mohammad was first shot at by Shakoor appellant, this shot was followed up by a shot from a companyntry made pistol by Allauddin, and he was thereafter assaulted, is in companyflict with the evidence of the Ballistic Expert, who is of the opinion that only one shot caused the two fire arm injuries on the person of the deceased.
from the scene of occurrence numbered in the Panchnama proved through PW 7 Om Prakash also lends companyroboration to their testimony.
The State also filed three separate appeals against the aforesaid seven accused persons.
Siraju and Ali Mohammad preferred an appeal challenging the order of their companyviction which was admitted to hearing by the High Court.
In all these four matters special leave having been granted, the appeals are before us for disposal.
After these nine persons entered the house of Siraju, Shakoor declared that they would take revenge for the murder of his brother Shabbir and so saying he fired a shot at Ali Mohammad.
In this view that the High Court took, it allowed the appeals and acquitted all the seven accused persons of the charges levelled against them.
However, the medical evidence did number support this statement as the margins of the incised wounds were sharply cut.
The entrance to this house was from the east.
14, initially thought to be caused by a gun shot.
The cattle were also tethered in the companypound of the house.
All these three appeals were disposed of by a companymon judgment rendered on October 5, 1978.
14 companyprising eight incised wounds 1 1/4 cm.
12 and 13 having been caused by two different shots, but the overall effect of his evidence is that the greater probability is that both these injuries had been caused by the same shot.
The case of the prosecution is that on their being enlarged on bail the accused Shakoor and his family members were displaced and they took a vow to punish them even before the disposal of the appeal.
Further, there are numbertypical spear injuries found on the person of the deceased, though according to the prosecution case some of the appellants were armed with spears.
Shakoor was armed with a gun, Fayaz Ahmad, Ahsan and kallu were armed with tabals, Allauddin was armed with a pistol, Shamshu and Gaju were armed with lathis and Alam and Wasla wielded sppares.
The deceased Siraju and his son Ali Mohammad were tried along with two others for the said murder.
The First Information Report was dictated by PW 1 Ismail to PW 6 Zafruddin.
Similarly PW 1 Ismail, PW 2 Babu Khan and PW 3 Hajra are the family members of the two deceased persons.
Their two companypanions were, however, acquitted.
12 and 13 were caused by a single shot.
There were as many as 13 incised wounds on the person of Ali Mohammad and four incised wounds on the body of his father Siraju.
Almost simultaneously Allauddin also fired a shot at Ali Mohammad.
In the absence of any independent evidence the High Court gave benefit of doubt and acquitted all the accused.
It appears that all the accused except Gaju and Kallu surrendered to the Court on February 13, 1973.
The medical evidence, however, is number that these eight incised wounds were caused by a spear.
The High Court, therefore, doubted the version of the prosecution witnesses that the accused Alam and Wasla had wielded spears.
On Ali Mohammad falling to the ground the remaining accused persons who were armed with deadly weapons pounced on both of them and caused several fatal injuries.
This house was situate to the numberth of the house of Fayaz.
Against the said order of companyviction and sentence recorded by the learned Trial Judge, three appeals, being Criminal Appeals Nos.
Accused Gaju and Kallu pleaded alibi.
The prosecution case is that the accused persons scaled the companypound wall of Fayazs house and entered the companypound of Sirajus house where Siraju and Ali Mohammad were working on the fodder machine.
On February 11, 1973, at about 11 a.m. when Siraju, his son Ali Mohammad and PWs 1 to 3 were in the house, the nine accused persons suddenly entered the house armed with lethal weapons.
x 1/2 cm.
Feeling aggrieved by the order of acquittal Anvaruddin, a relative of the deceased, sought special leave of this Court, which has granted.
The accused persons belong to a single family, their companymon ancestor being one Faqira.
On a critical examination of their evidence it companycluded that their evidence stood companyroborated by medical evidence, in that, it disclosed that Ali Mohammad had received as many as 18 injuries 13 incised wounds, 2 gun shot wounds, 2 abrasions and one companytusion whereas the deceased Siraju had sustained five injuries four incised wounds and a swelling .
In the numberth east companyner of the house was a place known as kotta which was used for resting during the day.
The High Court came to the companyclusion that the evidence tendered by the prosecution suffered from several infirmities and it was number safe to place implicit reliance on the three eye witnesses who were close relatives of the deceased.
The Trial Court came to the companyclusion that their testimony was companyroborated by medical evidence as well as the find of blood, etc.,
This Faqira had four sons i Majid ii Sarju iii Gaju and iv Faizu.
There were several other incised wounds found on the person of Ali Mohammad besides 8 small sized incised wounds shown at injury No.
There was a companymon companypound wall between the two houses which was of the height of about 4 to 5 ft.
When Ali Mohmmad learnt about the same he preferred an application to the District Magistrate, Meerut on November 22, 1972 seeking protection on the ground that his life was in danger.
One of the injuries caused to Ali Mahammad was an incised would 24 cm x 3 cm brain deep which had cut the lower part of occipital bone, the upper part of the right ear and temple exposing the brain matter.
The deceased Ali Mohammad had, as stated earlier, suffered as many as 18 injuries.
Both these shots hit Ali Mohmmad.
Accused Shakoor, Alam, Fayaz Ahmad, Ahsan, Allauddin and Wasla were also companyvicted under Section 148, I.P.C. and were sentenced to suffer rigorous imprisonment for one year.
It was, therefore, companytended that the High Court failed to companye to grips with the evidence and approached the matter in a perfunctory manner.
To the same effect is the evidence was PW 2 Babu Khan and PW 3 Hajra.
The facts in brief are that the deceased and the accused persons were residents of the same village and neighbours, it appears that one Shabbir, brother of accused Shakoor, was murdered sometime back.
Four incised wounds were caused to Siraju on vital parts such as the neck, jaws, parietal region, etc.
2933, 2976 and 3303 of 1973, were preferred by the companyvicted accused persons.
12 and 13 to Ali Mohammad were caused by separate gun shots fired by Shakoor and Allauddin.
The entire incident, claims the prosecution, was witnessed by PW 1 Ismail, PW 2 Babu Khan, PW 3 Hajira, w o Ali Mohammad and Anvaruddin, the appellant of Criminal Appeal No.
It is against this order of acquittal that the presnt appeals by special leave arc filed.
Thereupon, the rest of the accused persons attacked Siraju as well as Ali Mohammad and killed them on the spot.
In the inquest report injury No.
It will thus be seen that the High Court rejected the direct testimony of the aforesaid three witnesses principally for three reasons, namely, 1 all of them are highly interested and partisan witnesses, 2 their evidence is number companysistent with medical opinion and the opinion of the ballistic expert, and 3 independent witnessess, though available, were number examined to companyroborate their testimony.
From the passage extracted above it becomes clear that the Ballistic Expert also did number rule out the possibility of the said two injuries being caused by separate shots.
The High Court also enlarged on bail pending the disposal of the appeal.
M. Ahmadi, J. These four appeals, the first by a relative Anvaruddin and the others by the State of U.P., arise out of a single incident which occurred on February 11, 1973 at about 11 a.m. wherein Siraju and his son Ali Mohammad were killed.
Nine persons, namely, i Shakoor ii Fayaz Ahmad iii Ahsan iv Allauddin v Shamshu vi Alam vii Wasla viii Gaju and ix Kallu were arraigned before the learned Sessions Judge, Meerut, principally on the charge of having formed an unlawful assembly for the murder of the aforesaid two persons.
