JUDGMENT Rakesh Tiwari, J. Heard Sri D.I. Faridi, learned AGA appearing for the State of U.P.-appellant, Sri N.I. Jafri, learned counsel for the respondent-accused in the aforesaid Government Appeal, Mohd. Irfan, Advocate & Sri Kamal Krishna, learned Senior counsel for the appellant and the learned AGA for the respondent-State in Criminal Appeal No. 1157 of 1983. Perused the record. 2. The aforesaid government appeal under Section 378 Cr.P.C. has been preferred by the State of U.P.-appellant challenging the validity and correctness of the impugned judgment and order dated 11.5.1983 passed by the Ist Addl. Sessions Judge, Rampur in S.T. No. 100 of 1982 (State Versus Badar and others). 3. By the impugned order respondent-accused Badar was not found guilty of the charge under Section 302 read with Section 34 IPC. framed against him and had been acquitted by giving him the benefit of doubt. Appellants-accused Tahir and Mikki Mian were found guilty by the same judgment and order impugned for the offence punishable under Section 302 read with Section 34 IPC and each of them had been convicted and sentenced to undergo imprisonment for life. 4. Connected Criminal Appeal No.1156 of 1983 has been preferred by appellant Tahir son of Munna Mian against the same judgment and order dated 11.5.1983 impugned in Government Appeal No. 2019 of 1983 whereby he was convicted and sentenced under Section 302 read with Section 34 IPC to undergo imprisonment for life on the ground that the conviction and sentence of the appellant is against the weight of evidence on record, is too severe and is bad in law. In this appeal accused-appellant Tahir has prayed for allowing the appeal and setting aside the conviction and sentence awarded against him. 5. Criminal Appeal No. 1156 of 1983 and Criminal Appeal No. 1157 of 1983 have been connected along with Government Appeal No. 2019 of 1983 vide order dated 11.11.1983. Criminal Appeal No. 1157 of 1983 has been preferred by appellant Mikki Mian son of Munnu Mian challenging the validity and correctness of the same judgment and order dated 11.5.1983 impugned in Government Appeal No. 2019 of 1983 whereby he was convicted and sentenced under Section 302 read with Section 34 IPC to undergo imprisonment for life. 6. Criminal Appeal No. 1157 of 1983 has been preferred by appellant Mikki Mian son of Munnu Mian challenging the validity and correctness of the same judgment and order dated 11.5.1983 impugned in Government Appeal No. 2019 of 1983 whereby he was convicted and sentenced under Section 302 read with Section 34 IPC to undergo imprisonment for life. 6. Since aforesaid Government Appeal and Criminal Appeals emanate from the common judgment and are entwined by same facts and law, therefore, they have been heard together and are being decided by this judgment. 7. The government appeal has been preferred on the ground that three eye-witnesses produced by the prosecution have been believed by the learned trial Court who have specifically deposed that respondent-accused Badar had his perpetration into the incident of crime along with two convicted accused persons. Incident had taken place in broad day light; that the three accused-assailants were recognized by the witnesses and the reasoning given by the learned trial Court in connection with the production of (Ex.Kha-1) has no bearing on the incident in which Noor Ahmad is said to have been killed. Moreover, no question regarding (Ex.Kha-1) was put to Hafeez, who has appeared as prosecution witness in the said case and the evidence of Absar Ahmad, Advocate (DW-1) is not reliable. Learned trial Court has erred in relying his evidence and acquitting accused Badar as such it was prayed in this appeal that the order of acquittal may be set aside by convicting and sentencing the respondent-accused Badar. It is also urged by the learned AGA that at the time when Noor Ahmad was fired upon in the Biri branch/shop which was 5 ft.x 10 ft. dimension, he ran away but all the three accused Mikki Mian, Tahir and Badar attacked upon him. He has relied upon the statement of Irshad Khan (PW-4) wherein he stated that accused Tahir and Badar caught hold of Noor Mohammad and accused Mikki Mian attacked upon Noor Ahmad with Chhuri. 8. He has relied upon the finding recorded in the judgment impugned wherein it has been noted by the learned trial Court that the learned counsel for the accused persons had raised an argument that knife injuries caused by Mikki Mian were accidental, is not correct. In fact perusal of the finding of the learned trial Court shows that the injuries caused by him were intentional and deliberate. In fact perusal of the finding of the learned trial Court shows that the injuries caused by him were intentional and deliberate. The relevant extract of the finding of the learned trial Court reads thus: - "It was urged by the learned counsel for the accused persons Tahir and Mikki Mian that the Chhuri blow was accidental. The Chhuri blow was not accidental, it was on the chest, 9 cms. outer side of the right nipple, measuring 2.5 cms. x 1.5 cms. and the other incised wound was on the forehead, 2 cm. above the eyebrow. The doctor (Sri Jain) said that the injuries nos. 1 and 2 could be caused by sharp edged weapon, such as Chhuri. So, the chhuri blows were not accidental." 9. Before proceeding with the hearing on merits we may point out here that during the pendency of connected Criminal Appeal No. 1156 of 1983 appellant Tahir has died in the year 1984 as reported by the C.J.M., Rampur vide his report dated 25.2.2014. Therefore, the appeal against him was abated vide order dated 6.3.2014. 10. Therefore, only Government Appeal No. 2019 of 1983 and Criminal Appeal No. 1157 of 1983 are under consideration by this Court. 11. Respondent-accused Badar son of Jameel, aged about 18 years, resident of Mohalla Jhanda, P.S. Ganj, Rampur in Government Appeal No. 2019 of 1983, Tahir son of Munnu Mian, aged about 19 years and Mikki Mian son of Munnu Mian aged about 21 years, both residents of Mohalla Jhanda, Chhotey Mian Ki Baghia, P.S. Ganj, Rampur were charged for offence under Section 302 read with Section 34 IPC. 12. The prosecution story as culled out from the record is that in the incident on 16.3.1982 at about10.00 A.M.Hafeez (PW-1) was talking to Baqar in front of his shop where Biri was prepared. Only Noor Ahmad was working inside the shop at that time. Biri branch of Hafeez is situated by the side of the road. Accused persons Badar, Tahir and Mikki Mian came from the lane situated in the south of the shop/Biri branch. Badar and Tahir were armed with country made pistol and Mikki Mian was armed with a knife. Only Noor Ahmad was working inside the shop at that time. Biri branch of Hafeez is situated by the side of the road. Accused persons Badar, Tahir and Mikki Mian came from the lane situated in the south of the shop/Biri branch. Badar and Tahir were armed with country made pistol and Mikki Mian was armed with a knife. On reaching at the place of occurrence Badar fired first shot on Noor Ahmad working there and thereafter Tahir fired second shot upon Noor Ahmad who came out from the shop and ran towards the road and then Tahir and Badar caught hold of Noor Ahmad and Mikki Mian attacked Noor Ahmad with knife, who fell down, with the result some portion of his body was inside the drain and some portion of his body was on the road. This occurrence was witnessed by Baqar Khan, Bhoora and Irshad Khan besides Hafeez. On their raising an alarm, the accused persons went into the lane from which they had come. After that Hafeez and Baqar Khan put Noor Ahmad into a rickshaw and took him to the hospital and there they got Noor Ahmad admitted, where he died after 10 or 15 minutes. After that Hafeez got scribed the written FIR (Ex.Ka-1) from Taufiq Ahmad and the same was handed over by Hafeez in Police Station Kotwali. 13. On the basis of written report the check report was drawn by Head Moharrir Charan Singh. After making entry in the G.D. the FIR of the incident was registered at case crime no. 85/1982 under Section 302 /34 IPC against aforesaid three respondents-accused persons. 14. Dr. G.K. Jain (PW-7) had examined the injuries of Noor Ahmad on 16.3.1982 at 10.20 A.M. in Sadar Hospital, Rampur. He found the following injuries on his person. 1. Cut wound 2.5 cm. x 1.5 cm. x not probed on the right side of chest, 9 cms. outer side of the nipple. 2. Incised wound 1 cm. x 1/2 cm. x muscle deep on the right side of forehead, 2 cms. above the eye-brow. 3. Multiple circular gun shot wounds 1/4 cm. x 1/4 cm. x not probed on the right side chest and left leg. There was no blackening, charring or tattooing. 15. The Doctor opined that injuries nos. 2. Incised wound 1 cm. x 1/2 cm. x muscle deep on the right side of forehead, 2 cms. above the eye-brow. 3. Multiple circular gun shot wounds 1/4 cm. x 1/4 cm. x not probed on the right side chest and left leg. There was no blackening, charring or tattooing. 15. The Doctor opined that injuries nos. 1 and 2 could be caused by some sharp edged weapon and injury no.3 could be caused by some firearm. Injuries nos. 1 and 3 were kept under observation. Injury no.2 was simple. At the time of medical examination the condition of the patient was weak. His pulse and blood pressure were not recordable. He was in semi-conscious state. He was restless and was in gasping condition and was in condition of shock. He was immediately admitted in the ward. The police was informed and the injuries were noted down in the Accident-Register. The injuries were fresh at the time of examination and they could be caused on the same day at 10.00 A.M. 16. The investigation of the case was handed over to S.S.I.. Sri B.R. Singh. He recorded the statement of Hafeez at the police station. He then went to the place of occurrence where he recorded the statements of Irshad Khan and Bhoora. The I.O. also inspected the site and prepared its site plan (Ex.Ka-6). He took samples of blood stained and simple earth from the place of occurrence and kept them in two separate containers and sealed them. He also took in possession some pellets found inside the shop of Hafeez and its fard (Ex.Ka-7) was prepared. He also recorded the statement of Baqar at the spot and his blood stained clothes were also taken into possession by him and in this regard Fard (Ex.Ka-8) was prepared. The clothes and the samples of blood stained and simple earth were sent to the Chemical Examiner. The report of Chemical Examiner is (Ex.Ka-9) and the report of the Serologist is (Ex.Ka-10). 17. The autopsy on the body of Noor Ahmad (deceased) was conducted by Dr. M.S. Seth (PW-5) on 17.3.1982 at about 10.00 A.M. On external examination it was found that the deceased was aged about 22 years. He was of average built body. Eyes were closed and mouth was half opened. Greenish discolouration was present in both the iliac tissues. 17. The autopsy on the body of Noor Ahmad (deceased) was conducted by Dr. M.S. Seth (PW-5) on 17.3.1982 at about 10.00 A.M. On external examination it was found that the deceased was aged about 22 years. He was of average built body. Eyes were closed and mouth was half opened. Greenish discolouration was present in both the iliac tissues. Rigour mortis was passing off from the upper limbs but present in the lower limbs. 18. Following ante-mortem injuries were found on the body of deceased Noor Ahmad. 1. Stitched wound 2.5 cm. long on the right side chest 9 cm. outer to the nipple at 9 O' clock position. 2. Gun shot wound of entry 0.5 cm. x 0.5 cm. x skin deep over right nipple. One pellet was recovered from the wound. No blackening. No tattooing. No Charring. 3. Stitched wound 1 cm. long over right side forehead 2 cm. above the middle of the right eye-brow. 4. Abrasion 1.5 cm. x 1 cm. left thigh, upper portion, outer side. 5. Gun shot wound of entry 0.5 cm. x0.5 cm.x skin deep on the front portion of the left knee. One pellet was recovered from the wound. There was no tattooing, blackening or charring. 6. Two rounded abrasions 0.5 cm. x 0.5 cm. on the front portion of the left foot, just below the knee. 7. Two rounded abrasions 0.5 cm. x 0.5 cm. in front of left thigh, just above the knee. 8. One rounded abrasion 0.5 cm. x 0.5 cm. on the front portion of the left ankle. 9. One rounded abrasion 0.5 cm. x 0.5 cm. on right arm, upper portion on front side. 19. On internal examination it was found that right pleura was cut under injury no.1 along with right lung. Two litres liquid blood was found in the chest and 200 gms. half digested food was found in the stomach. In the opinion of the Doctor, the death was caused due to shock and haemorrhage as a result of injuries. 20. After conclusion of the investigation, the I.O. submitted charge sheet in the Court of Chief Judicial Magistrate, Rampur under Section 302 /34 IPC against all the respondents-accused persons. The Chief Judicial Magistrate, Rampur vide his order dated 13.7.1982 committed the case for trial to the Court of Session. 21. 20. After conclusion of the investigation, the I.O. submitted charge sheet in the Court of Chief Judicial Magistrate, Rampur under Section 302 /34 IPC against all the respondents-accused persons. The Chief Judicial Magistrate, Rampur vide his order dated 13.7.1982 committed the case for trial to the Court of Session. 21. In order to prove its case, the prosecution examined seven witnesses,namely,Hafeez(P.W.1), Bhoora (P.W.2), Head Constable, Charan Singh (P.W.3), Irshad Khan (P.W.4), Dr. M.S. Seth (P.W.5), Sri Beg Raj Singh,S.I. I.O. (P.W.6) and Dr. G.K. Jain (P.W.7). 22. The respondents- accused persons were examined under Section 313 Cr.P.C. They denied the charge and said that they have been falsely implicated on account of enmity. Accused Tahir and Mikki Mian did not examine any witness in defence while accused Badar examined Sri Absar Ahmad, Advocate, Civil Courts, Rampur as D.W.1. 23. Learned trial Court on consideration of these facts and circumstances as well as the material on record and upon hearing counsel for the parties for appreciation of record vide its impugned judgment and order dated 11.5.1983 acquitted respondent-accused Badar son of Jameel of the charge under Section 302 read with Section 34 IPC, which has been challenged in Government Appeal No. 2019 of 1983, on the grounds mentioned above in this judgment. 24. Sri N.I. Jafri, learned counsel for respondent-accused Badar in Government Appeal No. 2019 of 1983 has submitted that from the statement of accused Badar recorded under Section 313 Cr.P.C. it is clear that he had denied the truthfulness & prosecution evidence and claimed false implication due to enmity. He submits that from the facts and circumstances and on perusal of evidence it is established that accused Badar had been acquitted by the learned trial Court for the reason that he had been falsely implicated in this case and the prosecution could not prove its case. He has also examined Sri Absar Ahmad (DW-1), Advocate Civil Courts, Rampur in support of his defence. 25. Sri N.I. Jafri, learned counsel for the respondent-accused further submits that from the statement of Hafeez (PW-1) it is established that Irshad Khan lives in Mohalla Gher Najju Khan broadly the place of occurrence whereas in fact the occurrence has taken place in Mohalla Bajaria Himmat Khan, therefore, the presence of witness Irshad Khan (PW-4) is doubtful, who has changed the place of occurrence. 26. 26. In rebuttal, learned AGA submits that no place of occurrence has been changed as the incident has taken place at the Biri branch/shop of Hafeez (PW-1), which is admittedly in Mohalla Bajaria Himmat khan and that from the evidence of Hafeez (PW-1), Bhoora Khan (PW-2) and Irshad Khan (PW-4) it is proved beyond doubt that Noor Ahmad (deceased) was fired upon first when he was working in the shop/Biri branch and was attacked with Chhuri by Mikki Mian when he came out and after he was over-powered. 27. As regard acquittal of respondent-accused Badar is concerned, the learned trial Court has recorded finding thus: - " Now the case of Badar accused stands on a different footing. D.W.1 Shri Absar Ahmad, Advocate, Civil Courts, Rampur, proved the notice Ex.Kha-1. This notice was sent by Hafeez, P.W.1 through Sri Absar Ahmad to the accused Badar on 15.12.81. The incident of this case had taken place on 16.3.82. This notice had been given by Hafeez to Badar accused stating that his father had agreed to sell his house for Rs.12,000/-to him and he had given him Rs. 1000/- as advance and therefore Badar should execute a sale-deed in favour of Hafeez. Sri Absar Ahmad said that this notice was given through him by Hafeez son of Fazal-ur-Rehman of Mohalla Kotwalan, Rampur. He said that this notice was drafted by him and it was got typed by him and then he had signed this notice. It may be noted that later Hafeez gave an application in the court that he did not give any notice to Badar and he wanted to get summoned some documents from the post-office and asked him to file affidavit first in support of the application but he failed to file any affidavit and even after my local inspection, he did not file any affidavit. So it is proved that Hafeez had got sent the notice against Badar accused through Sri Absar Ahmad, Advocate. The notice Ex.Kha-1 is registered A.D. and there is no reason to doubt it. There is also nothing to doubt the evidence of D.W.1 Shri Absar Ahmad, Advocate. Moreover, the non-filing of the affidavit by Hafeez goes against him and it is proved that Hafeez had a motive against Badar accused to falsely implicate him. It may be noted that it was Hafeez, who had done all the formalities in this case. There is also nothing to doubt the evidence of D.W.1 Shri Absar Ahmad, Advocate. Moreover, the non-filing of the affidavit by Hafeez goes against him and it is proved that Hafeez had a motive against Badar accused to falsely implicate him. It may be noted that it was Hafeez, who had done all the formalities in this case. He was the person, who had lodged the report and taken Noor Ahmad to the hospital. He had not informed the family members of Noor Ahmad and so the possibility of his falsely naming Badar cannot be ruled out. I, therefore, find that the case against Badar is doubtful. I would, therefore, give him benefit of doubt and would acquit him of the charge framed against him." 28. As regards Mikki Mian, appellant in Criminal Appeal No. 1157 of 1983, it has been argued by Sri Kamal Krishna, learned Senior counsel appearing for him that the shop in which the incident is said to have taken place is of 5 ft.x 10 ft. dimension. He has placed reliance upon the FIR before us and submits that as per prosecution story, accused Badar is said to have made a fire from his country made pistol and another shot was fired by accused Tahir. When Noor Ahmad (since deceased) ran out of the shop/Biri branch he was over-powered and inflicted injuries by Chhuri to which he succumbed. 29. He further submits that ten articles, namely, Paijama, Kurta, Baniyan, Pant, Shirt, Pajama, Bu-shirt, Half-pant, Baniyan and blood stained earth from the place of occurrence were sent for report of the Serologist, who reported that human blood was found on article nos. 1 to 3 and 6 to 9. Disintegrated blood was found on article nos. 4, 5 and 10. Blood Group-B was found on article nos. 1 to 3 and blood stains found on article nos. 6 to 9 were not fit for classification. 30. It is argued by Sri Kamal Krishna, learned Senior counsel for appellant-accused that from the evidence of Radiologist Dr. G.K. Jain (PW-7) it is clear that on 16.3.1982, Noor Ahmad (deceased) was brought in the hospital by Tasir Khan son of Saghir Ullah Khan at 10.20 A.M. and was not brought by Baqar or by the first informant which shows falsity of the prosecution story that he was brought by the prosecution witnesses, namely, Hafeez (PW-1) and Baqar. 31. G.K. Jain (PW-7) it is clear that on 16.3.1982, Noor Ahmad (deceased) was brought in the hospital by Tasir Khan son of Saghir Ullah Khan at 10.20 A.M. and was not brought by Baqar or by the first informant which shows falsity of the prosecution story that he was brought by the prosecution witnesses, namely, Hafeez (PW-1) and Baqar. 31. According to him, the case of first informant of taking Noor Ahmad to the hospital is not stated in the statement under Section 161 Cr.P.C. that they met Tasir Khan on way, therefore, entry in the Register completely belies the statement of first informant regarding his presence at the spot. It is stated that the presence of first informant on the spot is doubtful as the deceased is said to have been working with the first informant but no injury of country made pistol was received by him (informant) which was fired in the small space of 5 ft.x 10 ft. in the Biri branch/shop. 32. He further submits that for the first time Hafeez (PW-1) in his examination-in-chief stated that he was out side the shop talking with the barber but he did not say so in his statement under Section 164 Cr.P.C. In this regard he has relied upon the following excerpt of paragraph 7 of the statement of Hafeez (PW-1). ^^jiV esa eSus okdj ls ckgj [kM+s vius ckr djus gksus okyh ckr eSus ugh fy[kkbZ FkhA esjk c;ku bl eqdnesa ds ckjs esa blls igys vnkyr esa gqvk FkkA eSaus ml oDr vius c;ku esa ;g ugh crk;k Fkk fd ^^eSa o uwj ,gen czkap esa dke dj jgs FksA^^ 164 ds c;ku esa Hkh eSus ;g ckr ugha dgh Fkh fd eSa ?kVuk ds le; okdj ls [kM+k ckrs dj jgk FkkA eSus 164 esa ;g c;ku fn;k Fkk fd &&&&&&&& feDdh fe;ka us ml ij Nqjh ls okj fd;s vkSj mls ukyh esa Mky fn;kA^^ esjh le> esa ukyh esa Mky fn;k rFkk ukyh esa fxj x;k ,d gh ckr gSA " Attention of the Court has also been drawn to the following excerpt of cross-examination of Hafeez (PW-1). ^^eSus jiV esa ;g ckr ugh fy[kokbZ Fkh fd cnj o rkfgj ds }kjk pyk, x;s Qk;j ds NjsZ e`rd ds yxs D;ksafd eq>s ml oDr rd ekywe ugha Fkk fd e`rd ds NjsZ yxs ;k ughaA blhfy, rgjhj esa ugh fy[kok;k FkkA ;g gLirky esa irk pyk Fkk MkDVj ls fd e`rd ds NjsZ Hkh yxs gSA pkdw dh pksVsa e`rd eSaus ns[kh Fkh rFkk muls [kwu fudyrk Hkh ns[kk FkkA eSa ?kVuk ds le; chM+h czkap ds cjkcj okyh xyh ds ikl uy ds cjkcj esa [kM+k FkkA vkSj ;gh [kM+k okdj ls ckrphr dj jgk FkkA blh xyh ls eqyfteku vk;s Fks vkSj esjs ls 4&5 dne dh nwjh ls xqtjs FksA ml oDr esjk eqag igkM+ dh rjQ Fkk vkSj okdj dk eqag xyh o czkap dh rjQ dks FkhA tc ;g ?kVuk ?kVh rc eSus eqag Qsjk o ns[kk FkkA rc eSaus eqag czkap dh rjQ dks fd;k FkkA eqyfteku ftl xyh ls vk;s Fks vkSj czkap dh rjQ dks gYds gYds x;s FksA vkSj ?kVuk ds ckn xyh esa dks gh pys x;s FksA tc eqyfteku vk;s Fks rc okdj dk eqag eqyfteku dh rjQ Fkk vkSj esjk eqag czsdjh dh rjQ FkkA okdj us eqyfteku dks ns[kk ;k ugha ogh crk ldrk gSA^^ 33. It is lastly submitted that the conduct of Hafeez (PW-1) is unnatural as he had not even informed relatives in the house of the deceased till he had taken Noor Ahmad for medical treatment and lodging of the FIR, though his relatives lived only one and a half furlongs away from the place of occurrence. 34. Controverting the argument of Sri Kamal Krishna, learned Senior counsel for the appellant-accused, learned AGA has submitted that all the injuries found on the person of Noor Ahmad (deceased) supports the prosecution version. The FIR was prompt. Injuries received from weapons were assigned to the accused persons whose specific role has been assigned. It is urged that where there is direct ocular evidence available on record, the motive looses its significance. 35. After hearing learned counsel for the parties and on perusal of the record we find that the post mortem report shows more than one injury on the person of Noor Ahmad (deceased) which tallies with the version of the FIR as well as direct evidence of the prosecution witnesses. 35. After hearing learned counsel for the parties and on perusal of the record we find that the post mortem report shows more than one injury on the person of Noor Ahmad (deceased) which tallies with the version of the FIR as well as direct evidence of the prosecution witnesses. Hafeez (PW-1) in his examination-in-chief has narrated thus: - ^^eSa rhuksa eqyfteku gkftj vnkyr feDdh cnj o rkfgj dks tkurk gWwA eSa bu rhuksa dks ?kVuk ds igys ls tkurk gWwA yxHkx 5&lk Section 302 read with Section 34 IPC, is reversed up to that extent and the finding of acquittal recorded by the learned trial Court is hereby set aside. In consequence, Government Appeal No. 2019 of 1983 stands allowed. Accused Badar is found guilty for the offence punishable under Section 302 read with Section 34 I.P.C. and he is, accordingly, convicted and sentenced to undergo rigorous imprisonment for life. 41. Accused Badar is directed to surrender himself before the Court of learned C.J.M., Rampur within a month to serve out the sentence awarded to him. In case, he does not surrender within the aforesaid stipulated period, learned C.J.M., Rampur shall commit him to custody in accordance with the procedure established by law and sent him to jail to serve out the sentence awarded to him. 42. Criminal Appeal No. 1157 of 1983 is dismissed. Appellant Mikki Mian is on bail. His bail-bonds are cancelled. He shall be sent to jail to serve out the sentence awarded to him by the learned trial Court after taking him in custody. 43. Registry is directed to send a copy of this judgment to learned C.J.M., Rampur immediately for compliance.