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2017 DIGILAW 1705 (ALL)

NISAR AHMAD v. STATE OF U. P.

2017-07-21

ARVIND KUMAR TRIPATHI, KRISHNA PRATAP SINGH

body2017
JUDGMENT : Krishna Pratap Singh, J. 1. Heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Anurag Shukla, learned counsel for the appellants, Sri Viresh Mishra, Learned Senior Advocate assisted by Sri Sudhanshu Srivastav, learned counsel for the complainant and Sri Mahendra Singh Yadav, learned A.G.A. for the State and perused the judgment and order as well as record of the present case. 2. These two connected appeals are directed against the impugned judgment and order dated 16.01.1984 passed by Sessions Judge, Saharanpur in Session Trial No. 90 of 1983 (State vs. Kausar and Others). 3. Appellants-accused Nisar Ahmad, Kausar and Shakil in Criminal Appeal No. 216 of 1984 have been convicted under Section 302 read with Section 34 I.P.C. and sentenced each of them to undergo imprisonment for life. 4. Appellant-accused Akhlaq in Criminal Appeal No. 197 of 1984 has been convicted under Section 302 read with Section 34 I.P.C. and sentenced him to undergo imprisonment for life. 5. Briefly the facts of the case are as under: 6. The first information report of the present case was lodged on 14.01.1983 at about 18:35 hours at Police Station Sarsawan, District Saharanpur under Section 302 I.P.C. regarding an incident which is said to have taken place on 14.01.1983 at about 5:30 P.M. at Pilkhani Bus Stand in the grove of Haji Nazir Ahmad (deceased) in village Brahman Majra, Police Station Sarsawan, District Saharanpur. 7. Informant Sageer Ahmad son of Haji Nazir Ahmad (deceased) is the resident of Village Alipura, Police Station Sarsawan, District Saharanpur. According to the allegations of the first information report about three months ago from the present incident Nazir Hasan son of Qasim, caste Garha, a resident of village Alipura eloped with Hadisan wife of Sultan son of Siddique, caste Garha, who is also a resident of village Alipura, owing to love affairs (asnai). He was keeping her (Hadisan) who was hidden somewhere. The report thereof was lodged at police station under Section 498 I.P.C. on 18.10.1982 by Sultan. On this matter, a Panchayat (a meeting by village members) was held at the village whereat Nazir Hasan was asked to return Smt. Hadisan wife of Sultan but Nazir Hasan was not ready in any way to return Hadisan wife of Sultan. For about six months, the sons of Sultan, Zishan and Furkan had quarreled with Nazir Hasan. On this matter, a Panchayat (a meeting by village members) was held at the village whereat Nazir Hasan was asked to return Smt. Hadisan wife of Sultan but Nazir Hasan was not ready in any way to return Hadisan wife of Sultan. For about six months, the sons of Sultan, Zishan and Furkan had quarreled with Nazir Hasan. Due to this incident, Nazir Hasan continued to have a misconception that on being told by the father of the informant Haji Nazir Ahmad (deceased), the sons of the Sultan had quarreled with him. On that day after the quarreling, Nazir Hasan had threatened Haji Nazir Ahmad (deceased) of dire consequences soon. On 14.01.1983 at around 5:30 P.M. when Haji Nazir Ahmad (deceased) reached on raised platform (Chabutra) of the Mosque situated behind the shops facing north at the Pilkhani Bus Stand for offering Namaaz and informant Sageer Ahmad PW-1 and other residents of his village Meer Hasan son of Rashid Ahmad PW-2, Mohammad Yusuf son of Abdul Hamid, Ayub son of Quasim and Tahir son of Sharif following Haji Nazir Ahamd (deceased) also reached there to offer Namaaz from the Pilkhani Bus Stand. When they were at the distance of 25-30 paces, the residents of village of informant Sageer Ahmad PW-1, Nisar Ahmad son of Nazir Hasan and Shakil Ahmad son of Quasim holding country made pistols, Kausar son of Qasim with his licensed gun and Akhlaq son of Nazir Hasan holding staff (Lathi) in his hand came from south and Nisar Ahmad and Shakil Ahmad with their country made pistols and Kausar from his licensed gun fired bullets at Haji Nazir Ahmad (deceased) who was standing in the posture of offering Namaaz (Niyat Bandhe) being shot the father of the informant Haji Nazir Ahmad (deceased) fell down on the platform (Chabutra) and seeing the occurrence, they raised an alarm and moved forward. Then appellant-accused Akhlaq and his three accomplices warned them that if any one dare to move ahead, he would meet the same fate. Issuing warning, appellants-accused fled away towards south into the jungle with their weapons. Informant Sageer Ahmad PW-1 looked at his father who was lying on the mat (Chatai) in an injured state at the platform (Chabutra) of the mosque. He had died. 8. Issuing warning, appellants-accused fled away towards south into the jungle with their weapons. Informant Sageer Ahmad PW-1 looked at his father who was lying on the mat (Chatai) in an injured state at the platform (Chabutra) of the mosque. He had died. 8. Thereafter informant Sageer Ahmad PW-1 got a report Exhibit Ka-1 written by one Mohammad Yusuf and placed the same in police station Sarsawan at about 18:35 hours on the basis of which a criminal case on Crime 3 of 1981 under Section 302 I.P.C. was registered in Police Station Sarsawan, District Saharanpur against appellants-accused. Head constable Brahmanand PW-5 prepared the chik FIR Exhibit Ka-26 and G.D. Entry Exhibit Ka-27 on the basis of 'Tehrir' Exhibit Ka-1. 9. After the registration of the case the then Station Officer (S.O.) Police Station Sarsawan R.P. Gaur PW-3 in whose presence the case was registered commenced the investigation into crime and with the relevant papers Investigating Officer went to the spot and recorded the statement of the informant Sageer Ahmad PW-1 and took the dead body of the deceased Haji Nazir Ahamd (deceased) which was lying on platform (Chabutra) of Namaaz. Inquest on the dead body of the deceased Haji Nazir Ahmad was performed and inquest report Exhibit Ka-2 and other relevant papers i.e. photo lash, challan lash and letter to C.M.O. Exhibit Ka-3 to Exhibit Ka-5 were prepared and the dead body was sent for postmortem examination through Constable Dharampal Singh PW-8 and Constable Mahipal. Spot inspection was conducted by Investigating Officer and site plan Exhibit Ka-7 was sketched. Investigating Officer had found three blood stained pellets from the clothes of the deceased and one empty cartridge at the spot and recovery memo Exhibit Ka-6 was prepared. Blood stained cement plaster and simple cement plaster and one mat (chatai) were also collected by the Investigating Officer from the spot and recovery memo Exhibit Ka-8 and Exhibit Ka-9 were prepared. During the course of investigation, Investigating Officer recorded the statement of prosecution witnesses and after completion of investigation charge-sheet Exhibit Ka-24 was prepared and forwarded against the appellants-accused. 10. Postmortem examination on the dead body of the deceased Hazi Nazir Ahmad (deceased) was conducted by Doctor S.P. Sharma PW-4 on 15.01.1983 at 4:00 P.M. The dead body was brought to the Doctor by Constable Mahipal Singh and Constable Dharampal Singh PW-8 in sealed cover who had also identified the dead body. 10. Postmortem examination on the dead body of the deceased Hazi Nazir Ahmad (deceased) was conducted by Doctor S.P. Sharma PW-4 on 15.01.1983 at 4:00 P.M. The dead body was brought to the Doctor by Constable Mahipal Singh and Constable Dharampal Singh PW-8 in sealed cover who had also identified the dead body. On the dead body of the deceased Doctor had noted the following ante-mortem injuries:- 1. Gun-shot wound of entry 2.1 cm x muscle deep on left cheek, 2 cm below the outer end of left eye-brow. Margins inverted. Maxilla-bone fractured underneath. 2. Gun-shot wound of exit 3 cm. x 1 cm x through and through continuous with injury no. 1, place on left side face, just outer to the angle of lower jaw. 3. Gun-shot wound of entry 1 cm x ½ cm x chest wall deep in the front of chest, 7 cm from the left nipple at 10 O'clock position. A bullet recovered (metallic) from the chest wall, 2 cm below the injury. 4. Gun-shot wounds of entry (six) in an area of 7 cam x 6 cm on left side back of chest, middle third just below the blade of left scapula, size varying from ½ cm x ½ cm x muscle deep to 1 cm x 1 cm x chest cavity deep. Sixth and 7th ribs fractured underneath. 5. Nine gun-shot wounds of entry in an area of 14 cms x 8 cms on upper ¾th cm right scapula. Size varying from x ¼ x ¼ cm x muscles deep to ½ cm x ½ cm, chest cavity deep. Scapula right was fractured underneath. Fourth intercostal space was lacerated. 6. Two parallel lacerated wounds, 2 cm x ½ cm x muscle deep and 2 cm x ½ cam x muscle deep, 2 cms apart, placed transversely on middle third of left lateral side of chest in anterior axillary line. 7. Two lacerated wounds 2 cm x ½ cm x muscle deep and 1 cm x ½ cm x muscle deep, 2 cm apart placed obliquely on left lateral side of lower part of abdomen. 8. Lacerated wound 2 cm x ½ cm x muscle deep on posterior axillary fold inner aspect. 11. On an internal examination it was found that the fourth and fifth left ribs were fractured on the back. 8. Lacerated wound 2 cm x ½ cm x muscle deep on posterior axillary fold inner aspect. 11. On an internal examination it was found that the fourth and fifth left ribs were fractured on the back. Second and third ribs on the right side were fractured near the nipple. Pleura was lacerated. There was 1.5 litres of clotted and fluid blood in the pleura cavity. Right lung was lacerated at three places on the upper and middle lobe. Left lung was also lacerated on the middle lobe. The paricarium was ruptured at two places. Right scapula was also fractured. The doctor took out pellets from the chest wall below injury no. 3 as also from the second intercostal space, right side near sternum. 12. Cause of death of the deceased was shock and haemorrhage due to ante-mortem injuries. Postmortem examination report of the Haji Nazir Ahmad (deceased) is Exhibit Ka-25. 13. On the strength of submitted charge-sheet the appellants-accused were summoned. Since disclosed offence was exclusively triable by the sessions Court, the learned Chief Judicial Magistrate, Saharanpur committed the case to the Court of sessions where it was registered as Session Trial No. 90 of 1983 (State vs. Kausar and Others). 14. The learned Sessions Judge charged the appellants-accused with offence under Section 302 read with Section 34 I.P.C. on 23.04.1983. Charge after being read over and explained to the appellants-accused. The appellants-accused pleaded not guilty and claimed to be tried and consequently sessions trial procedure was restored to establish the guilt of the appellants-accused. 15. In order to prove its case, the prosecution has examined informant Sageer Ahmad PW-1 and Meer Hasan PW-2 as witnesses of fact. Investigating Officer R.P. Gaur PW-3 is formal witness who conducted the investigation and submitted charge-sheet against the appellants-accused. Doctor S.P. Sharma PW-4 is also formal witness who conducted the postmortem examination on the dead body of the deceased and proved the postmortem examination report Exhibit Ka-25. Head constable Brahamanad PW-5 has proved chik FIR and G.D. Entry Exhibit Ka-26 to Exhibit Ka-29. 16. Head constable Lekhraj Singh PW-6 the then reader to the Circle Officer, Nakur filed applications dated 15.01.1983 and 20.01.1983 moved by Nazir Hasan addressed to the District Magistrate, Saharanpur which was sent to the Circle Officer Nakur for necessary action. Head constable Brahamanad PW-5 has proved chik FIR and G.D. Entry Exhibit Ka-26 to Exhibit Ka-29. 16. Head constable Lekhraj Singh PW-6 the then reader to the Circle Officer, Nakur filed applications dated 15.01.1983 and 20.01.1983 moved by Nazir Hasan addressed to the District Magistrate, Saharanpur which was sent to the Circle Officer Nakur for necessary action. Mohammad Inam PW-7 has proved the signatures of Nazir Hasan on the said applications which have been marked Exhibit Ka-37 and Exhibit Ka-38 respectively. Constable Dharampal Singh PW-8 had deposed that the dead body of the Haji Nazir Ahmad (deceased) was brought to the Doctor by the tractor of one Islam in sealed cover and he had also identified the dead body. 17. After the evidence of the prosecution, statement of the appellants-accused under Section 313 Cr.P.C. was recorded. In their examination under Section 313 Cr.P.C. the common defence of the appellants-accused were that of denial and false implication due to enmity. Appellants-accused have got proved Exhibit Kha-1 the copy of the chik FIR of this case which was sent along with the dead body for postmortem examination and Exhibit Kha-4 a copy of GD No. 10 dated 15.01.1983 through which Sub-Inspector Vijay Chandra and some constables were deputed in search of the accused persons to show that the first information report was in fact lodged on 15.01.183 and not on 14.01.1983. The appellants-accused have also got proved Exhibit Kha-2 the letter to C.M.O. for postmortem examination of the dead body of the deceased Haji Nazir Ahmad to show that the dead body was despatched on 15.01.1983. The appellants-accused have also got proved Exhibit Kha-3 the copy of GD No. 27 dated 14.01.1983 prepared at 6:00 P.M. to show that the Investigating Officer Sri R.P. Gaur PW-3 reached the police station after investigating the case which was registered on 12.01.1983 on the reports of the Sultan, copy of which is Exhibit Kha-33 and the appellant-accused Kausar, the copy of which is Exhibit Kha-35 with the regard to the incident of 'marpit' which took place on 12.01.1983. Appellants-accused have also filed the copy of the charge-sheet Exhibit Kha-8 of the Case Crime No. 193 of 1983 (State vs. Kausar and Others) with regard to the incident dated 12.01.1983. Appellants-accused have also filed the copy of the charge-sheet Exhibit Kha-8 of the Case Crime No. 193 of 1983 (State vs. Kausar and Others) with regard to the incident dated 12.01.1983. Injury reports of the Sultan Ahmad and Nazir Hasan with regard to the incident dated 12.01.1983 have also been filed by the appellants-accused in defence which are Exhibit Kha-12 to Exhibit Kha-15. The appellants-accused have also filed the copy of the sale deed dated 16.08.1982 Exhibit Kha-5 executed by Sultan in favour of Gul-e-Sanawar son of Haji Nazir Hasan and Mohammad Arif in equal shares with regard to certain land situated in village Alipura, Pargana Sarsawan, District Saharanpur. Appellants-accused have also filed the copy of objections Exhibit Kha-6 of Suleman son of Sultan filed by him before the Naib Tehsildar Nakur with regard to the mutation proceedings on the basis of the said sale deed. The copy of the written statement Exhibit Kha-7 of Sultan Ahmad in the proceedings under Section 145 Cr.P.C. between Mohammad Hasan and Others vs. Arif and Others has also been filed by the appellants-accused. The appellants-accused have also filed the copy of the telegram given by one Ram Charan Das a Munshi (clerk of an advocate) to the Superintendent of Police, Saharanpur on 21.01.1983 to the effect that one Azad Ahmad has been taken away by the police of Sarsawan before several residents of village Alipura at 3:30 P.M. on that day and that there was danger to his life. The copy of this telegram is Exhibit Kha-11. Its postal receipts Exhibit Kha-9 and Exhibit Kha-10 have also been filed. The copy of the order dated 11.08.1983 passed by the High Court Exhibit Kha-16 rejecting the application of informant Sageer Ahmad PW-1 for cancellation of bail granted to the appellants-accused of this case and 'Jantri' Exhibit Kha-17 with regard to the time of rising and setting of the Sun have also been filed by the appellants-accused. Appellants-accused have not led any oral evidence. 18. After appreciating the evidence available on record the trial Court convicted the appellants-accused as above. Hence instant appeal. 19. Learned counsel for the appellants-accused has submitted that the appellants-accused are innocent and have been falsely implicated in the present case due to enmity. It was also submitted that common intention was missing in respect of the present appellants-accused. 18. After appreciating the evidence available on record the trial Court convicted the appellants-accused as above. Hence instant appeal. 19. Learned counsel for the appellants-accused has submitted that the appellants-accused are innocent and have been falsely implicated in the present case due to enmity. It was also submitted that common intention was missing in respect of the present appellants-accused. It was further submitted that evidence of the alleged crime do not connect with the appellants-accused as country made pistols which were used in commission of crime were not recovered by the police. It was further submitted that the incident had taken place some time in the dark night and at some other place and the dead body of the Haji Nazir Ahmad was placed on the platform (Chabutra). So the place of occurrence is also doubtful. It was also submitted that there are major contradictions in the statements of the eye witnesses on the point of time and manner of the incident. Referring to the contradictions and omissions occurred in the statements of the eye witnesses Sageer Ahmad PW-1, Meer Hasan PW-2, it was submitted that these two witnesses are not eye account witnesses and they are produced later on only to falsely implicate the appellants-accused in the present case and the entire prosecution story is highly improbable and unreliable. Lastly it was also submitted that the prosecution witnesses are interested and inimical. 20. Learned A.G.A. for the State has submitted that there is no delay in lodging the first information report. It was further submitted that the medical evidence fully and completely supports the prosecution case and there was no conflict between the oral evidence and medical evidence. It was also submitted that contradictions, omissions and improvements were of minor nature and do not go to the root of the prosecution case and same might be ignored. Lastly it was submitted that the findings recorded by the trial Court was based on the reliable evidence available on record, so both the appeals lacks merit and liable to be dismissed. 21. We have considered the submissions advanced by the learned counsel for the parties and perused the impugned judgment of the trial Court as well as the record of the trial Court. 22. In the present case there is no delay in lodging the first information report. 21. We have considered the submissions advanced by the learned counsel for the parties and perused the impugned judgment of the trial Court as well as the record of the trial Court. 22. In the present case there is no delay in lodging the first information report. The incident is alleged to have taken place on 14.01.1983 at about 5:30 P.M. and the first information report of this case has been lodged on the same day at about 18:35 hours i.e. after one hour five minutes of the incident. Considering the facts and circumstances of the present case, we are of the view that there is no delay in lodging the first information report, therefore, in the present case prompt FIR has been lodged and specific allegation of firing by gun and by country made pistols on the deceased Haji Nazir Ahmad has been assigned to the appellants-accused, Kausar, Nisar Ahmad and Shakil. 23. In the present case the most pivotal role is that of the ocular account of the two witnesses, therefore, in our view, we would like to discuss it by making careful appraisal of the same as all the accused belonged to the same family as Sageer Ahmad PW-1 has stated in his examination at page-19, so an innocent person may not fall on account of misreading or not reading the material evidence. The prosecution case merely depends on the ocular account witnesses namely informant Sageer Ahmad PW-1, Meer Hasan PW-2, we would like to reappraise their testimony to draw conclusion as to whether their presence on the place of occurrence has been established by the prosecution and whether their testimony is worthy of credence, believable and whether their conduct is natural and in accordance with the ordinary human conduct or otherwise. Informant Sageer Ahmad PW-1 is the son of deceased Haji Nazir Ahmad. He has given detailed description of the incident and has assigned the role of firing to the appellants-accused Kausar, Nisar Ahmad and Shakil. He has further deposed that one Nazir Hasan had enticed away Smt. Hadisan about two months ago to the murder of his father Haji Nazir Ahmad about which her husband Sultan had lodged a report. He has given detailed description of the incident and has assigned the role of firing to the appellants-accused Kausar, Nisar Ahmad and Shakil. He has further deposed that one Nazir Hasan had enticed away Smt. Hadisan about two months ago to the murder of his father Haji Nazir Ahmad about which her husband Sultan had lodged a report. According to him Smt. Hadisan had not been given back to her husband Sultan and about a month ago to the murder of his father Haji Nazir Ahmad in connection with abduction of Smt. Hadisan a Panchayat was held in which the deceased had also participated with several other persons. Nazir Hasan was also called in the aforesaid Panchayat and he was pressurized to give back Smt. Hadisan to her husband Sultan but he did not agree. He has further stated that his father deceased Haji Nazir Ahmad had put a great pressure on Nazir Hasan to give back Smt. Hadisan as deceased was a prominent person of the village and people used to ask him to get Smt. Hadisan given back to Sultan. On this account Nazir Hasan and members of his family were annoyed with the deceased and his family members. 24. He has also deposed that Zishan and Furkan sons of Sultan were the agricultural labourers of deceased for the last about six months prior to the murder of his father Haji Nazir Ahmad. Three days ago to the murder of his father Haji Nazir Ahmad there was a quarrel amongst Nazir Hasan on the one hand, and Zishan and others on the other with regard to the affair of Smt. Hadisan. Nazir Hasan felt that deceased Haji Nazir Ahmad had a secret hands in the said quarrel and he had also threatened him with dire consequences. Haji Nazir Ahmad (deceased) had told this fact to him on the same day. He has also deposed that on the date of incident he, Meer Hasan PW-2, Yusuf, Tahir and Ayub were present at the Pilkhani Bus Stand at about 5:30 P.M. and deceased Haji Nazir Ahmad went for offering Namaaz at the platform (Chabutra). He, Meer Hasan PW-2, Yusuf, Tahir and Ayub also went towards the platform (Chabutra) for offering Namaaz about 2 or 3 minutes thereafter. They saw that Haji Nazir Ahmad (deceased) offering Namaaz on the platform (Chabutra) with his face towards west. He, Meer Hasan PW-2, Yusuf, Tahir and Ayub also went towards the platform (Chabutra) for offering Namaaz about 2 or 3 minutes thereafter. They saw that Haji Nazir Ahmad (deceased) offering Namaaz on the platform (Chabutra) with his face towards west. The appellants-accused Nisar Ahmad and Shakil armed with pistols and appellant-accused Kausar armed with his licensed gun and appellant-accused Akhlaq armed with a Lathi came there from the south and when they were at a distance of about 15 paces from the platform (Chabutra) the appellant-accused Nisar Ahmad, Kausar and Shakil fired one shot each from their respective weapons at the deceased Haji Nazir Ahmad which hit him and he fell down. All of them raised alarm and proceeded towards the appellants-accused but appellants-accused threatened them that they would also meet the same fate if any one of them proceeded any further and thereafter the appellants-accused fled away towards the South. He has also deposed that when he and others went near Haji Nazir Ahmad they found that Haji Nazir Ahmad had died and there was bleeding from the wounds which had also fallen on the platform (Chabutra). Several other persons had also rushed there. He got a report Exhibit Ka-1 written by Yusuf and went to the police station where case was lodged and police also came with him. He has also proved the first information report Exhibit Ka-1 and clothes of the deceased Haji Nazir Ahmad material Exhibits 1 to 6. 25. Meer Hasan PW-2 has also supported the prosecution story and deposed that Nazir Hasan is a big agriculturist of his village and he has two tractors. He has further deposed that the wife of the Nazir Hasan had died about 6-7 years ago. He also knew Sultan who was aged about 65 years and having 15-16 bighas land and keeps a bad health. Smt. Hadisan aged about 45-50 years is the third wife of Sultan. Nazir Hasan had abducted Smt. Hadisan about three months prior to the murder of Haji Nazir Ahmad. A panchayat was held in this connection two months after the aforesaid abduction in which deceased Haji Nazir Ahmad, Nazir Hasan and several other persons had also participated. Smt. Hadisan aged about 45-50 years is the third wife of Sultan. Nazir Hasan had abducted Smt. Hadisan about three months prior to the murder of Haji Nazir Ahmad. A panchayat was held in this connection two months after the aforesaid abduction in which deceased Haji Nazir Ahmad, Nazir Hasan and several other persons had also participated. Meer Hasan PW-2 went on to state that the persons who participated in the said Panchayat and especially deceased Haji Nazir Ahmad had put pressure upon Nazir Hasan to give back Smt. Hadisan but Nazir Hasan refused to do so. He has further stated that even after convene of this panchayat deceased Haji Nazir Ahmad had also asked Nazir Hasan to give back Smt. Hadisan. He has also deposed that Zishan and Furkan sons of Sultan were the servants of deceased Haji Nazir Ahmad and they were also in his employment at the time of murder of Haji Nazir Ahmad. Three days prior to the murder of Haji Nazir Ahmad there was a fight amongst Nazir Hasan and others on the one side and Zishan and others on the other and both parties had received injuries and had lodged reports with regard to the version of the incident. He has further deposed that on the date of present incident he was at the shop of Ram Das at the Pilkhani Bus Stand at about 5:30 P.M. where Tahir, Yusuf, Ayub and Sageer Ahmad PW-1 were also present. He had come from the village Budh Khera and was going to his village Alipura but he had stopped at the Pilkhani Bus Stand for offering Namaaz. When he was at the shop of Ram Das he saw the deceased Haji Nazir Ahmad going towards his grove and 2 or 3 minutes thereafter he, Sageer Ahmad PW-1, Yusuf, Tahir and Ayub also went towards the platform (Chabutra) for offering Namaaz. At that time they saw that Haji Nazir Ahmad was standing on the platform (Chabutra) with his face towards the west for offering Namaaz. When they were at a distance of about 25-30 paces from the platform (Chabutra) they saw that appellants-accused Nisar Ahmad, Shakil armed with pistols and appellant-accused Kausar armed with his licensed gun and appellant-accused Akhlaq armed with staff (Lathi) came there and the appellants-accused Shakil, Nisar Ahmad and Kausar fired at Haji Nazir Ahmad with their weapons. When they were at a distance of about 25-30 paces from the platform (Chabutra) they saw that appellants-accused Nisar Ahmad, Shakil armed with pistols and appellant-accused Kausar armed with his licensed gun and appellant-accused Akhlaq armed with staff (Lathi) came there and the appellants-accused Shakil, Nisar Ahmad and Kausar fired at Haji Nazir Ahmad with their weapons. After the first shot had been fired, Haji Nazir Ahmad turned and immediately thereafter two more shots were fired as a result of which Haji Nazir Ahmad fell down. When they proceeded towards the appellants-accused, appellants-accused threatened them and fled away towards south with their weapons. He has further deposed that Haji Nazir Ahmad died on the spot as a result of the injuries. They also had raised alarm, a number of persons had rushed to the place of occurrence. Sageer Ahmad PW-1 then got a report written at the shop of Yasin and then went with it to the police station for lodging first information report. Both these witnesses of the fact have gone lengthy cross-examination but nothing in their cross-examination could be elicited which makes their evidence unreliable. From the place of occurrence Investigating Officer has recovered blood stained cement plaster which established the place of occurrence. The place of occurrence was inspected by the Investigating Officer and place 'C' has been shown wherefrom fire was opened by the appellants-accused Nisar Ahmad, Kausar and Shakil which hit the deceased Haji Nazir Ahmad. Place 'B' has been shown wherefrom the witnesses had seen the occurrence, the distance of place of occurrence and place from where witnesses had seen the occurrence is about 33 paces. The place where informant Sageer Ahmad PW-1, Meer Hasan PW-2 and other persons were present has been shown in the site plan Exhibit Ka-7 clearly. So all these persons were very close to each other and the present incident has taken place at 5:30 P.M. and there was ample opportunity for the witnesses to see the incident and recognize the assailants. The testimonies of these two witnesses are consistent and there is no ground to disbelieve them. They have fully and completely supported the case of prosecution. They have depicted an eye to eye picture of what transpired on the fateful day. 26. The testimonies of these two witnesses are consistent and there is no ground to disbelieve them. They have fully and completely supported the case of prosecution. They have depicted an eye to eye picture of what transpired on the fateful day. 26. According to the postmortem examination report Exhibit Ka-25 and statement of Doctor S.P. Sharma PW-4 following ante-mortem injuries were found on the body of the deceased Haji Nazir Ahmad:- 1. Gun-shot wound of entry 2.1 cm x muscle deep on left cheek, 2 cm below the outer end of left eye-brow. Margins inverted. Maxilla-bone fractured underneath. 2. Gun-shot wound of exit 3 cm. x 1 cm x through and through continuous with injury no. 1, place on left side face, just outer to the angle of lower jaw. 3. Gun-shot wound of entry 1 cm x ½ cm x chest wall deep in the front of chest, 7 cm from the left nipple at 10 O'clock position. A bullet recovered (metallic) from the chest wall, 2 cm below the injury. 4. Gun-shot wounds of entry (six) in an area of 7 cam x 6 cm on left side back of chest, middle third just below the blade of left scapula, size varying from ½ cm x ½ cm x muscle deep to 1 cm x 1 cm x chest cavity deep. Sixth and 7th ribs fractured underneath. 5. Nine gun-shot wounds of entry in an area of 14 cms x 8 cms on upper ¾th cm right scapula. Size varying from x ¼ x ¼ cm x muscles deep to ½ cm x ½ cm, chest cavity deep. Scapula right was fractured underneath. Fourth intercostal space was lacerated. 6. Two parallel lacerated wounds, 2 cm x ½ cm x muscle deep and 2 cm x ½ cam x muscle deep, 2 cms apart, placed transversely on middle third of left lateral side of chest in anterior axillary line. 7. Two lacerated wounds 2 cm x ½ cm x muscle deep and 1 cm x ½ cm x muscle deep, 2 cm apart placed obliquely on left lateral side of lower part of abdomen. 8. Lacerated wound 2 cm x ½ cm x muscle deep on posterior axillary fold inner aspect. 27. Doctor S.P. Sharma PW-4 has deposed that the deceased Haji Nazir Ahmad would died on 14.01.1983 at about 5:30 P.M. and the above injury nos. 8. Lacerated wound 2 cm x ½ cm x muscle deep on posterior axillary fold inner aspect. 27. Doctor S.P. Sharma PW-4 has deposed that the deceased Haji Nazir Ahmad would died on 14.01.1983 at about 5:30 P.M. and the above injury nos. 1, 2 and 3 were caused by one fire arm and injury nos. 4, 6 and 7 were caused by another fire arm and injury nos. 5 and 8 were caused by the third fire arm. He had also deposed that deceased must have died instantaneously after receiving fire arm injury. So the statements of the eye witnesses Sageer Ahmad PW-1 and Meer Hasan PW-2 are also fully corroborated by the medical evidence and are very consistent regarding the role played by the appellants-accused Nisar Ahmad, Kausar and Shakil. Learned counsel for the appellants-accused has challenged the evidence of these two eye witnesses of fact that there are some contradictions in their evidence, but we find only minor contradictions and discrepancies in their evidence which are bound to occur. It does not make their evidence unreliable and incredible. 28. Learned counsel for the appellants-accused has also submitted that according to the statements of Sageer Ahmad PW-1 and Meer Hasan PW-2 the occurrence was witnessed by many others also but none of them has been examined in the case. It was also submitted that the prosecution has examined only interested and inimical witnesses. So it would not be safe to convict the appellants-accused only on the evidence of interested and inimical witnesses. 29. It is true that Sageer Ahmad PW-1 being son of deceased Haji Nazir Ahmad can be said that he is interested witness, Meer Hasan PW-2 can be said that he is inimical witness. But they are not chance witnesses. We have seen that occurrence has taken place near the grove of the deceased Haji Nazir Ahmad. At the time of incident deceased Haji Nazir Ahmad was going to offer Namaaz at platform (Chabutra). Sageer Ahmad PW-1 and Meer Hasan PW-2 were also going to offer Namaaz. So the presence of these two witnesses at the place of occurrence is not doubtful. These are natural witnesses. While appreciating the evidence the Court cannot ignore the ground realities. In the present days world people avoid to become witness in criminal cases. Sageer Ahmad PW-1 and Meer Hasan PW-2 were also going to offer Namaaz. So the presence of these two witnesses at the place of occurrence is not doubtful. These are natural witnesses. While appreciating the evidence the Court cannot ignore the ground realities. In the present days world people avoid to become witness in criminal cases. In case of Dalip Singh v. State of Punjab MANU/SC/0031/3953 : [1954] 1 SCR145, wherein Hon'ble Apex Court has held as under: "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." 30. In case of Masalti v. State of U.P. MANU/SC/0074/1964 : [1964] 8 SCR 133 wherein Hon'ble Apex Court has observed as follows: "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.............The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 31. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 31. In case of Shri Ram v. State of U.P. (1998) SCC 149 has considered this aspect and was of the view that now a days it is a common tendency that no outsider would like to get involve in a criminal case much less in the crime of present magnitude. Therefore, it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discarded only on the ground that they are close relatives of the deceased person but what is required in such situation is that Court must scrutinize the evidence of such witnesses with utmost care and caution. We have carefully scrutinized the evidence of Sageer Ahmad PW-1 and Meer Hasan PW-2 and come to the conclusion that there is an impress of truth in it. There is no obstacle in the way of accepting the evidence of Sageer Ahmad PW-1 and Meer Hasan PW-2. 32. Considering the entire facts and circumstances of the present case and evidence available on record, we are of the view that the informant Sageer Ahmad PW-1 and Meer Hasan PW-2 are credible and reliable witnesses and evidence adduced by the prosecution is sufficient to hold that the appellants-accused namely Nisar Ahmad, Kausar and Shakil had committed the murder of Haji Nazir Ahmad in furtherance of common intention of all. Therefore evidence on record is sufficient to hold that the appellants-accused Nisar Ahmad, Kausar and Shakil are guilty of the offence punishable under Section 302 I.P.C. read with Section 34 I.P.C. A perusal of the impugned judgment and order shows that trial Court has gone through entire evidence on record and has considered all the aspects and issues relevant for the determination of the case. The conclusions drawn and findings recorded by the learned trial Court are based on evidence available on record and on judicious analysis of the facts. The conclusions drawn and findings recorded by the learned trial Court are based on evidence available on record and on judicious analysis of the facts. In the view of above discussions, we are of the view that learned trial Court has rightly relied upon evidence adduced by the prosecution to convict the appellants-accused namely Nisar Ahmad, Kausar and Shakil for the offence under Section 302 I.P.C. read with Section 34 I.P.C. In catena of decisions Hon'ble Apex Court has held that the trial Court after going through the entire evidence must form an opinion about the credibility of the witnesses and the Appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. So there is no sufficient ground to disturb the findings as well as conviction of the appellants-accused Nisar Ahmad, Kausar and Shakil are concerned. 33. With the help of Section 34 I.P.C. appellant-accused Akhlaq has also been convicted and sentenced by the learned trial Court under Section 302 I.P.C. It is essence of Section 34 I.P.C. that a person must actually participate in the commission of the crime in the same way or other at the time of crime is actually being committed. From the evidence available on record in the present case does not show that any overt-act have been done by the appellant-accused Akhlaq. Some active participation specially involving physical violence is necessary under Section 34 I.P.C. Statement of Sageer Ahmad PW-1 and Meer Hasan PW-2 do not show that appellant-accused Akhlaq had also assaulted the deceased with staff. Evidence available on record does not show that the appellant-accused Akhlaq had any active participation at all in the commission of crime. Taking into consideration the facts and circumstances of the present case, it appears that the appellant-accused Akhlaq had no common intention to commit the murder of Haji Nazir Ahmad and he had not participated in causing the death of the deceased. There is no evidence to show the participation of the appellant-accused Akhlaq in assault of the deceased. On a careful conspectus of the facts and the law we are of the view that prosecution has failed to prove the guilt of the appellant-accused Akhlaq beyond reasonable doubt. We have seen that there is no evidence of his having played any part in the crime. On a careful conspectus of the facts and the law we are of the view that prosecution has failed to prove the guilt of the appellant-accused Akhlaq beyond reasonable doubt. We have seen that there is no evidence of his having played any part in the crime. He was merely seen by the witnesses standing armed with staff with other co-accused Nisar Ahmad, Kausar and Shakil. When witnesses went there appellant-accused Akhlaq did not assault them. There is no evidence of formation or sharing of any common intention with the other co-accused persons. No weapon was seized from the appellant-accused Akhlaq nor any property connected with the crime seized from him. The Hon'ble Apex Court in case of Bhaba Nanda Sarma and Others vs. State of Asam AIR 1977 SC 2252 has held that "To attract the application of S.34 it must be established beyond any shadow of doubt that the criminal act was done by several persons in furtherance of the common intention of all. In other words, the prosecution must prove facts to justify an inference that all the participants of the act had shared a common intention to commit the criminal act which was finally committed by one or more of the participants." The Hon'ble Apex Court in the case of Dharam Pal and Others vs. State of Haryana AIR 1978 SC 1492 has held that "Mere presence of a person does not prove common intention." In another case of Joginder Singh vs. State of Haryana AIR 1994 SC 461 Hon'ble Apex Court has observed as under:- "(6) It is one of the settled principles of law that the common intention must be anterior in time to the commission of crime. It is also equally settled law that the intention of the individual has to be inferred from the overt act or conduct or from other relevant circumstances. Therefore, the totality of the circumstances must be taken into consideration in order to arrive at a conclusion whether the accused had a common intention to commit the offence under which they could be convicted." In case of Raju vs. State of Chhatisgarh 2014 (87) ACC 293 (SC) Hon'ble Apex Court has held that "it is settled law that common intention and conspiracy are matters of inference and if, while drawing an inference any benefit of doubt creeps in, it must go the accused." 34. Having regard to the role attributed to appellant-accused Akhlaq and the absence of incriminating factors we found that it is not safe to convict appellant-accused Akhlaq of the offence of murder of Haji Nazir Ahmad with the aid of Section 34 I.P.C. Therefore, Section 34 I.P.C. would have no obligation. In our opinion the impugned judgment and order for conviction and sentence of appellant-accused Akhlaq cannot be sustained and liable to be reversed. 35. Under the circumstances and for the reasons given above the Criminal Appeal No. 197 of 1984 (Akhlaq vs. State of U.P.) is allowed. The impugned judgment of conviction of the appellant-accused Akhlaq is set- aside and the appellant-accused Akhlaq is acquitted of charges levelled against him. The sole appellant-accused Akhlaq in Criminal Appeal No. 197 of 1984 (Akhlaq vs. State of U.P.) is on bail. He need not to surrender. His bail bond is hereby cancelled and sureties are hereby discharged from their liabilities. 36. So far as the appellants-accused Nisar Ahmad, Kausar and Shakil are concerned no error has been committed by the learned trial Court and we are hereby concur with his findings and conclusions. The charge of murder levelled against them are well proved, therefore appellants-accused Nisar Ahmad, Kausar and Shakil have been rightly held guilty and have been rightly convicted for life imprisonment. A precipitated residue of above discussions is that Criminal Appeal No. 216 of 1984 (Nisar Ahmad and two Others vs. State of U.P.) filed by the appellants-accused Nisar Ahmad, Kausar and Shakil lacks merit and is hereby dismissed. 37. It is stated that the appellants-accused Nisar Ahmad, Kausar and Shakil are on bail. They shall surrender before the trial Court for serving sentence within 30 days from the date of judgment of this Court, failing which the trial Court shall ensure their arrest and shall send them to jail for serving sentence in accordance with law. 38. Office is directed to send the copy of this judgment to the learned trial Court/Sessions Judge concerned for securing compliance. Compliance report be submitted to this Court also. Office is further directed to send back the records of the trial Court immediately.