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2018 DIGILAW 1712 (ALL)

Sufiyan v. State of U. P.

2018-08-03

RAM SURAT RAM (MAURYA), UMESH CHANDRA TRIPATHI

body2018
JUDGMENT : Ram Surat Ram (Maurya), J. Heard Sri S.D. Singh Jadaun, for the appellants, Sri Anshul Tiwari, for the informant and Sri Anil Kumar Kushwaha, A.G.A., for State of U.P. 2. Sufiyan, Adil @ Seeran and Smt. Razia (the appellants) have filed this appeal, from their conviction and sentence passed by Additional Session's Judge, Court No. 1, Allahabad, dated 27.03.2009, in S.T. No. 957 of 2006, State vs. Sufiyan and others, (arising out of Case Crime No. 364 of 2005, under Section 302/307/34 IPC, P.S. Colonelganj, district Allahabad), convicting the appellants under Section 302/307/34 IPC and awarding sentence of imprisonment for life with fine of Rs. 5000/- each under Section 302/34 IPC and ten years rigorous imprisonment with fine of Rs. 3000/- each under Section 307/34 IPC, along with default stipulation. It may be mentioned that co-accused Biru Singh was acquitted. Appellant Adil @ Seeran was acquitted in S.T. No. 958 of 2006, under Section 25 of Arms Act, 1959 and Biru Singh was acquitted in S.T. No. 960 of 2006, under Section 25 of Arms Act, 1959. These cases related to the same occurrence. No appeal has been filed against their acquittal, in those cases. 3. On the complaint (Ex-Ka-1) of Smt. Yazadana Begum (PW-1), FIR (Ex-Ka-2) of Case Crime No. 364 of 2005, under Section 302/307/34 IPC, was registered at P.S. Colonelganj, on 04.12.2005 at 21:25 hours, against Sufiyan, Adil @ Seeran, Smt. Razia and Biru Singh, by Constable Clerk Bharat Prasad (PW-3). It has been stated in the complaint that the informant Smt. Yazadana Begum wife of Mohd. Hasnain @ Pappu was resident of House No. 106/1, Bakhtiyari (Old Katra), PS Colonelganj, Allahabad. On 04.12.2005 at 7:15 PM, she was present at her house. Her brother Mohd. Afaq son of Mohd. Ayub, resident of House No. 24-B/10-B, Minto Road, PS Civil Lines, was also present at her house. At that time her husband's father's brother Sufiyan, his son Adil @ Seeran and his friend Biru, residents of Varanasi came to her house and called for her mother-in-law Parveen Akhtar. When she came out from the house, Adil said "adab" to her. In the meantime, Smt. Razia, mother of Adil exhorted and said, not say "adab" rather kill her. After hearing this, all the three accused opened indiscriminate firing from their country-made pistol upon her mother-in-law. When she came out from the house, Adil said "adab" to her. In the meantime, Smt. Razia, mother of Adil exhorted and said, not say "adab" rather kill her. After hearing this, all the three accused opened indiscriminate firing from their country-made pistol upon her mother-in-law. Pappu, her husband came out to save his mother, then they fired upon him with an intention to kill him. Due to which her mother-in-law and husband received injuries and fell down. Taking them as dead, all the three accused and Smt. Razia fled away from there, giving threats. Her family members and residents of mohalla brought her mother-in-law and husband to Swarup Rani hospital. Doctor has declared her mother-in-law as dead. Treatment of her husband was going on. Litigation relating to land between her family members and Sufiyan was going on. In order to grab her land, they wanted to remove her family from the way. The incident was witnessed by her family members, residents of mohalla and Shah Alam son of Shahjade, resident of Uchwagarhi in the light of electricity and they recognized the accused. 4. After registration of FIR, SSI Bhasker Prasad Upadhyay (PW-5) started investigation on 04.12.2005. He copied the check FIR and recorded statements of the informant and Afaq. He made spot inspection on 04.12.2005, on the pointing out of the informant and recovered 7 empty cartridges, 3 bullets and blood stained as well as plain earth from the spot and prepared its recovery memo, Ex-Ka-14 and Ka-6, respectively. On 05.12.2005, he arrested Smt. Razia and recorded statements of Smt. Razia, Parasram, witness of recovery, Bharat Prasad, and SI Pankaj Tiwari. On 12.12.2005, he recorded statements of the witnesses of Inquest. From 12.12.2005, investigation was undertaken by In-charge Inspector Vijay Pal Singh (PW-6), he copied postmortem report in case diary and recorded statements of the witnesses of Inquest. On 13.12.2005, he recorded statements of Sufiyan and Adil @ Seeran. On 18.12.2005, he recorded statement of injured Mohd. Hasnain @ Pappu. On 20.12.2006, he arrested Adil @ Seeran and on his pointing out a country-made pistol was recovered at 6:30 PM. On that day he arrested Biru Singh and on his pointing out country-made pistol was recovered. On 24.12.2005, he recorded statements of SI Bhasker Prasad Upadhyay, Constables Rizwan Ahmad and Rakesh Kumar. Hasnain @ Pappu. On 20.12.2006, he arrested Adil @ Seeran and on his pointing out a country-made pistol was recovered at 6:30 PM. On that day he arrested Biru Singh and on his pointing out country-made pistol was recovered. On 24.12.2005, he recorded statements of SI Bhasker Prasad Upadhyay, Constables Rizwan Ahmad and Rakesh Kumar. He inspected the place, from where country-made pistol was recovered from Adil @ Seeran and prepared site-plan (Ex-Ka-15). He inspected the place, from where country-made pistol was recovered from Biru Singh and prepared site-plan (Ex-Ka-16). After completing investigation, he submitted charge sheet (Ex-Ka-17), on 12.01.2006 against the appellants and Biru Singh, on which, cognizance was taken. 5. Dr. Rafat Jamal Siddiqui (PW-7) examined Mohd. Hasnain on 04.12.2005 at 7:55 PM at Swarup Rani Hospital and prepared Injury report (Ex-Ka-18), in which following injuries were noted:- (i) Gun shot lacerated wound over left side abdomen of size 4cm x 4cm x abdominal cavity deep, margins ragged, bleeding present, duration fresh, tenderness present, tattooing present, X-ray abdomen erect. (ii) Lacerated gun shot wound left side of face 3 cm x 3cm x bone deep, margins ragged, colour red, duration fresh, tenderness present, tattooing present (wound entry). X-ray INS colour view. (iii) Lacerated wound left side face 3.5 cm x 3.5cm x bone deep, margins ragged-tender, colour red, bleeding present, duration fresh. X-ray left lateral side face. (iv) Lacerated gun shot wound right side of face 1cm x 1cm oral cavity deep, margins ragged, bleeding present, colour red, bone deformity present, tattooing not present (wound entry). (v) Lacerated gun shot wound in gingiva labial sulcus, margins ragged, bleeding present, colour red, duration fresh. X-ray right side lateral view. All injuries are caused by gun shot which are grievous in nature and duration fresh. 6. Smt. Parveen Akhtar was immediately declared as dead at Swarup Rani Hospital. SI Pankaj Tiwari (PW-8) conducted her Inquest (Ex-Ka-7) at the hospital on 05.12.2005 during 6:15 to 8:00 hours. He prepared letter to authorities, photo lash etc., Ex-Ka-8 to Ka-13 and sent the dead body for postmortem through Constable Anand Sagar Tiwari. Dr. R. Singh (PW-4) conducted postmortem on 05.12.2005 at 3:00 PM and prepared Postmortem Report (Ex-Ka-3), in which following ante-mortem injuries were noted:- (i) Fire arm wound of entry 3 cm x 2 cm x bone deep over middle of forehead, 2 cm above to base of nose. Dr. R. Singh (PW-4) conducted postmortem on 05.12.2005 at 3:00 PM and prepared Postmortem Report (Ex-Ka-3), in which following ante-mortem injuries were noted:- (i) Fire arm wound of entry 3 cm x 2 cm x bone deep over middle of forehead, 2 cm above to base of nose. Blackening and tattooing present. Marines inverted. (ii) Fire arm wound of entry 2 cm x 1 cm x cranial cavity deep, 4cm posterior inferior medial to right internal ear. Blackening and tattooing present. Margins inverted. (iii) Fire arm wound of entry cm x cm x plural cavity deep on right side of chest joint lateral to mid line and 10 cm in front of suprasternal notch. Bleeding and tattooing present. Margins inverted. (iv) Fire arm wound of entry 1cm x 0.5 cm x breast tissue deep, extended laterals located 12 cm inferio lateral to left steroclavicular joint. Blacking and tattooing present. Margins inverted. (v) Fire arm wound of exit 3 cm x 2cm x breast tissue deep, similar to injury no. 4. Margins everted. 10 cm distant to injury no. 4 on left side of chest anterior. (vi) Multiple abrasion in an area of 30 x 10 cm over left side of abdomen. (vii) Abrasion 5 cm x 3 cm over joint of right knee. In internal examination the following injuries were noted:- Occipital bone was fractured, membranes were ruptured, brain was lacerated and cranial was filled with blood. Sternum was fractured and 6th rib and pleura were ruptured, right side lung was ruptured and about one liter blood was present. Heart was empty. About 150 ml of semi digested food was present in stomach. Small intestine was empty and big intestine was full. Bladder was vacant. One bullet 3 cm x 0.6 cm recovered from cranial cavity. One bullet 3 cm x 0.6 cm was recovered from right inter-scapular region deep to overlying skin. Cause of death was shown as 'death due to shock and hemorrhage as a result of fire arm injures'. 7. On committal, the case was registered as S.T. No. 957 of 2006. Additional Session's Judge framed charges against the appellants and Biru Singh on 17.05.2007. They denied the charges and claimed trial. In order to prove the charges, the prosecution examined Smt. Yazdana Begum (PW-1), the informant, Mohd. Hasnain (PW-2), an injured witness, Constable Bharat Prasad (PW-3), to prove check FIR, Dr. Additional Session's Judge framed charges against the appellants and Biru Singh on 17.05.2007. They denied the charges and claimed trial. In order to prove the charges, the prosecution examined Smt. Yazdana Begum (PW-1), the informant, Mohd. Hasnain (PW-2), an injured witness, Constable Bharat Prasad (PW-3), to prove check FIR, Dr. R. Singh (PW-4), to prove postmortem report (Ex-Ka-3), SSI Bhaskar Prasad Upadhyay (PW-5), first Investigating Officer, Inspector-In-charge Vijay Pal Singh (PW-6), second Investigating Officer, Dr. Rafat Zamal (PW-7), to prove injury report (Ex-Ka-18) and SI Pankaj Tiwari (PW-8) to prove Inquest. 8. All the incriminatory materials and facts were put to the accused, under Section 313 CrPC. They denied the materials and facts. They stated that they were falsely implicated due to civil litigation in respect of the property. Smt. Parveen Akhtar (the deceased) and Mohd. Hasnain (the injured) were caused gun shot injuries by some unknown persons. Smt. Yazdana Begum was not present there at that time. The injured were admitted to Swarup Rani Hospital by SI Pankaj Tiwari. Biru Singh also stated that he was a student leader and used to give statement against the police as such the police has falsely implicated him. The accused also examined SI Raj Kumar Bhargava (DW-1), Radio Code Officer to prove that Sahimuddin had given information of the incident to Police Control Room on 04.12.2005 at 7:12 hours. From Police Control Room information was given to In-charge, Police Out Post Katra and Inspector Colonelganj and other authorities, R. N. Singh (DW-2), Junior Engineer, Electricity Department, to prove that there was power cut at mohalla Bakhtiyari (old Katera) on 04.12.2005 up to 6:55 PM and Sahimuddin (DW-3), the owner of PCO at mohalla Bakhtiyari to prove that he had given information of incident to Police Control Room on 04.12.2005 at 7:00 PM. 9. Additional Session's Judge, after hearing the parties, by the impugned judgment held that according to the accused occurrence took place at 6:55 PM on 04.12.2004. According the prosecution incident took place at 7:15 on 04.12.2004. This difference is minor and might have occurred due to un-synchronize of watches. FIR was registered at 21:25 hours on that day. According to the informant, she firstly took the injured and the deceased to Swarup Rani Hospital. After their admission in the hospital, she went to lodge FIR. According the prosecution incident took place at 7:15 on 04.12.2004. This difference is minor and might have occurred due to un-synchronize of watches. FIR was registered at 21:25 hours on that day. According to the informant, she firstly took the injured and the deceased to Swarup Rani Hospital. After their admission in the hospital, she went to lodge FIR. If the police has committed mistake in sending special report to the Magistrate timely, then for this reason it cannot be held that FIR was ante-timed. At the time of incident, there was power supply at mohalla Bakhtiyari and the witnesses have not committed any mistake in recognizing the appellants. Charges against the appellants are proved from the statements of Smt. Yazdana Begum and Mohd. Hasnain (PW-1 and 2). On these findings, the appellants were convicted under Section 302/34 and 307/34 IPC and sentenced as mentioned above. Hence, this appeal has been filed. 10. The counsel for the appellants submitted that on 04.12.2004 at 6:55 PM, power supply at mohalla Bakhtiyari was interrupted. Taking advantage of darkness some unknown assailants have caused the incident. At that time Smt. Parveen Akhtar (the deceased) and Mohd. Hasnain (the injured) alone were present at their house. Smt. Yazdana (PW-1) was not present on the place of incident. Sahimuddin (DW-3), the owner of PCO at mohalla Bakhtiyari gave information of the incident to Police Control Room on 04.12.2005 at 7:12 PM. On which SI Raj Kumar Bhargava (DW-1), Radio Code Officer, informed to In-charge, Police Outpost Katra and Inspector Colonelganj and other authorities, on radiogram. Then SI Pankaj Tiwari (PW-8) came at the place of occurrence within 2-3 minutes and took the injured and the deceased to Swarup Rani Hospital. In the Injury Report of Mohd. Hasnain (Ex-Ka-18) "Brought By SI Pankaj Tiwari" has been noted, which is also proved from the statement of SI Pankaj Tiwari (PW-8). Smt. Yazdana Begum was at her father's house at mohalla Minto road and she came subsequent to admission of the injured in hospital. Inspector In-charge Vijay Pal (PW-6) also visited the spot before lodging of FIR as admitted to him. Mohd. Hasnain (PW-2), the injured was not in condition to state anything. He admitted that he did not inform the names of the assailant to anyone at that time. Inspector In-charge Vijay Pal (PW-6) also visited the spot before lodging of FIR as admitted to him. Mohd. Hasnain (PW-2), the injured was not in condition to state anything. He admitted that he did not inform the names of the assailant to anyone at that time. Without any inquiry from the injured, FIR was lodged with deliberation of the police, in which the appellants were named only on suspicion due to property dispute. This fact is fully proved as Smt. Yazdana (PW-1) and Mohd. Hasnain (PW-2) had not recognized co-accused Biru Singh in the Court. The police could have recorded statement of the injured Mohd. Hasnain in writing as he is a literate man. Smt. Yazdana (PW-1) deliberately denied presence of SI Pankaj Tiwari, in order to show her presence on the spot, which is contradictory from Medical Report (Ex-Ka-18) and statement of SI Pankaj Tiwari (PW-8). Place of occurrence is not proved. There is material contradiction between the statements of Smt. Yazdana (PW-1) and Mohd. Hasnain (PW-2), which have been illegally ignored. Judgment of the Court below is illegal and is liable to be set aside. 11. We have considered the arguments of counsel for the parties and examined the record. So far as place of occurrence is concerned, according to FIR and site plan place of occurrence is the door of the house of deceased i.e. House No. 106/1, mohalla Bakhtiyari (Old Katra), Allahabad. The appellants examined Sahimuddin (DW-3), who had given information of the incident to Police Control Room from his "Royal PCO" on 04.12.2004 at 7:12 PM. According to this information also place of occurrence was "Khan Market", which is house of the deceased. From the place of occurrence blood stained earth as well as plane earth (Ex-Ka-6) and 7 empty cartridges and 3 bullets (Ex-Ka-14) were recovered by SSI Bhaskar Prasad Upadhyay (PW-5), which was proved by him. There is nothing in his cross-examination to disprove place of occurrence. The argument that place of occurrence has not been proved is not liable to be accepted. 12. So far as date and time of the occurrence is concerned, according to the prosecution, occurrence took place on 04.12.2004 at 7:15 PM. Sahimuddin (DW-3) has stated that the occurrence took place on 04.12.2004 at 6:45 PM and he gave information to Police Control Room at about 7:00 PM. 12. So far as date and time of the occurrence is concerned, according to the prosecution, occurrence took place on 04.12.2004 at 7:15 PM. Sahimuddin (DW-3) has stated that the occurrence took place on 04.12.2004 at 6:45 PM and he gave information to Police Control Room at about 7:00 PM. His statement is not corroborated by SI Raj Kumar Bhargava (DW-1), according to whom information of the occurrence was received on 04.12.2004 at 7:12 PM at the Police Control Room. There is a small difference between the time as given by the prosecution and time given by SI Raj Kumar Bhargava (DW-1). The Court below has rightly held that this might have occurred due to difference in watches. Date and time of the occurrence as given by the prosecution with small variation is probable than the time given by Sahimuddin (DW-3). It is natural conduct of Sahimuddin (DW-3) to inform the police immediately after running away of the accused from spot. 13. So far as the source of light at the time of occurrence is concerned, according to the prosecution, electric bulb was lightening at the time of occurrence. In site plan (Ex-Ka-5), the place of bulb was noted by letter 'X'. The appellants tried to disprove this fact by examining R.N. Singh (DW-2), according to him power supply of mohalla Bakhtiyari (old Katra) was interrupted during 5:26 PM to 6:55 PM on 04.12.2004. The occurrence took place after about 7:00 PM as such the appellants could not prove that at the time of occurrence there was no power supply. The appellants are next door neighbourer of Smt. Yazdana Begum and Mohd. Hasnain (PW-1 and 2). According to them, when the assailants came, they called the deceased, who was inside of her room. The assailants could be identified from their voice. 14. In order to prove the charges, the prosecution examined Smt. Yazdana Begum (PW-1) who claims to be an eye witness and Mohd. Hasnain (PW-2), the injured witness. Smt. Yazdana Begum (PW-1) stated that at the time occurrence, she was present at her house No. 106/1, Bakhtiyari (Katra). In that very house apart of Biru other accused were also residing in other part. On 04.12.2005 at 7:15 PM, she was present at her house and in that house, her mother-in-law Parveen Akhtar, her husband Mohd. Hasnain and her brother Mohd. Afaq were also there. In that very house apart of Biru other accused were also residing in other part. On 04.12.2005 at 7:15 PM, she was present at her house and in that house, her mother-in-law Parveen Akhtar, her husband Mohd. Hasnain and her brother Mohd. Afaq were also there. At that time, the accused Sufiyan, his son Adil @ Seeran and Biru came there. Sufiyan, Adil @ Seeran and Smt. Razia were present in the Court. Biru was not present in the Court. (The Court noticed that the accused Biru was present in the Court). Three accused, apart from Smt. Razia were armed with country-made pistol. Adil called for her mother-in-law Parveen Akhtar. When she came out, he told "adab". At that Razia exhorted to kill her. On which the accused opened fire upon her mother-in-law. Her husband Hasnain came out to save her, then they shot him also. Both of them received injuries. The accused fled away from there after shooting. She, her brother Afaq and residents of mohalla took her mother-in-law and husband to Swarup Rani Hospital. Her mother-in-law died in hospital. Her husband was admitted. She lodged an FIR of the incident. Electric bulb was lightening at the time of incident on the spot. The accused wanted to grab her land, where the incident took place and shops were constructed in the name of Ijhar Khan, her father-in-law. Litigation in that respect was going on. In cross-examination she stated that her residential house consisted five room. These rooms are in east of inner court-yard and kitchen is in north. Her room was also in north. Main gate of her house is in east. Her mother-in-law was residing in the room adjoining to the room of Sufiyan. After hearing the call, her mother-in-law came out from the northern room and she was shot as soon as she came out from a distance of two-three paces. Her husband Hasnain came out to save her, then they shot him also. After shooting them, the accused ran away from the spot giving threats. The accused fired upon her mother-in-law from her front side. They fired upon her husband also from front side from a distance 1-1/2 feet. On her mother-in-law 4-5 shots were fired and on her husband 3-4 shots were fired by the accused. When the accused started shooting, she came out from her room. She did not receive any gun shot injury. They fired upon her husband also from front side from a distance 1-1/2 feet. On her mother-in-law 4-5 shots were fired and on her husband 3-4 shots were fired by the accused. When the accused started shooting, she came out from her room. She did not receive any gun shot injury. The accused shot aforesaid persons in her presence and fled away from there, giving threats. 15. Mohd. Hasnain (PW-2) stated that his father Ijhar Khan had constructed shops at the place of his residence. There was litigation between them in respect of those shops from Sufiyan since 1991, due to which there was an enmity between them. Accused Sufiyan, Adil and Smt. Razia were present in the Court. Sufiyan was his uncle and Adil was his cousin. Incident took place on 04.12.2004 at 7:15 PM. At that time, he was present at his house. His mother Parveen Akhtar, his brother-in-law Mohd. Afaq and his wife Yazdana were also there. At that time, Adil came there and called "chachijan". On which his mother came out and Adil told her "adab". On which the accused Razia told not to say "adab" and kill her. On which the accused Sufian, Adil and Biru shot upon her mother, which caused injury to his mother and himself. The people took him and his mother to the hospital. His mother died in hospital. He was admitted at Swarup Rani hospital, where he was operated and treated for one and half month. At the time of incident, there was electric light. Investigating Officer had interrogated him. In cross-examination, he denied that he was not the son of Ijhar Khan rather son of Siddiq Nehal. Due to which he was not giving his nikahnama. His mother was resident of Unchahar, district Rai Bareilly. He had no knowledge of the place, where his mother residing before her marriage with Ijhar Khan. He had told about source of light to Investigating Officer, if it was not noted then he cannot give any reason. At the time of incident, his mother was residing in the room, door of which was in east. Adjoining to that room toilet was there. Adjoining to toilet, his wife was residing in the room situated in north-east, whose door was in east. At the time of incident, his mother was in the room, in south of toilet. At the time of incident, his mother was residing in the room, door of which was in east. Adjoining to that room toilet was there. Adjoining to toilet, his wife was residing in the room situated in north-east, whose door was in east. At the time of incident, his mother was in the room, in south of toilet. At the time of incident, he was in the room of his mother. When his mother came out from room on call, he also stand in the room and came out from the door. The accused began to fire. He could not state that from which direction and how many round firing was done. He ran to save his mother, then five round firing was done upon him and he fell down. While falling his head was downward. When he and his mother was outside the room, no one had come to save them. Firing was done loading the gun again and again. Approximately, the gun was loaded four times. He and his mother were taken to hospital in Vikram tempo. On reaching the hospital, he had become unconscious. He was shrieking due to pain and was not in position to talk as such he did not tell about the incident to anyone at that time. He had become able to talk after 17-18 days. It is incorrect to say that he and his mother alone were on spot at the place of occurrence. It is incorrect to say that he could not recognize for want of light. On regaining consciousness, his wife did not inform him the names of the accused against whom FIR was lodged. He denied the suggestion that his mother used to advanced loan on very high rate of interest, which used to be recovered by him in strict way, due to which some other person has caused the incident and he named the accused due to previous enmity. 16. Presence of Smt. Yazdana (PW-1) on the place of incident, is being challenged on two reasons Sahimuddin (DW-3), the owner of PCO at mohalla Bakhtiyari has given information of the incident to Police Control Room on 04.12.2005 at 7:12 PM. On which SI Pankaj Tiwari (PW-8) came at the place of occurrence within 2-3 minutes and took the injured and the deceased to Swarup Rani Hospital. In the Injury Report of Mohd. On which SI Pankaj Tiwari (PW-8) came at the place of occurrence within 2-3 minutes and took the injured and the deceased to Swarup Rani Hospital. In the Injury Report of Mohd. Hasnain (Ex-Ka-18) "Brought By SI Pankaj Tiwari" has been noted, which is also proved from the statement of SI Pankaj Tiwari (PW-8). Giving information to Police Control Room by a neighbourer PCO owner, on telephone, is a natural conduct, on which SI Pankaj Tiwari (PW-8) might have reached at the place of occurrence and helped in taking the injured and the deceased to Swarup Rani Hospital. At that time, it was not expected from Smt. Yazdana Begum (PW-1) to give exact picture or names of the people who helped her in taking the injured and the deceased to Swarup Rani Hospital. Simply for the reasons that Smt. Yazdana Begum (PW-1) has denied presence of SI Pankaj Tiwari (PW-8) at the time of incident, her testimony is not liable to be discarded. Otherwise, in usual course, her presence at her house at 7:00 PM was natural and cannot be doubted. The accused could not disprove her presence at the time of incident on the place of occurrence. She had given minute details of location of the deceased and the injured as well as her location. 17. Mohd. Hasnain (PW-2) is an injured witness. His presence on the place of occurrence cannot be doubted. It has been found that at the time of occurrence, there was power supply and light of bulb on the spot. Otherwise also, the accused Sufiyan and Adil @ Seeran were next door neighbour, they could be recognized even through their voice, by him. There could be no reason for Mohd. Hasnain (PW-2) to spare the real assailants and falsely implicate the appellants. Mohd. Hasnain (PW-2) has fully proved the incident. 18. However, involvement of Smt. Razia, one of the accused in the incident is not proved. Smt. Yazdana Begum (PW-1) and Mohd. Hasnain (PW-2) both in their cross-examination stated that as soon as Smt. Parveen Akhtar came out from her room, the accused started firing. It is alleged that three accused namely Sufiyan, Adil @ Seeran and Biru Singh came from the main gate at a time. Adil @ Seeran called Smt. Parveen Akhtar and when she came out from her room, they fired upon her. It is alleged that three accused namely Sufiyan, Adil @ Seeran and Biru Singh came from the main gate at a time. Adil @ Seeran called Smt. Parveen Akhtar and when she came out from her room, they fired upon her. There was no question of exhortation as the murder was committed in a pre-planned manner and not due to exhortation. Normally exhortation used to be done during quarrel. The appellant Smt. Razia has been falsely implicated. Her appeal is liable to be allowed. 19. In view of the aforesaid discussions, the appeal partly succeeds and is partly allowed. Judgment of Additional Session's Judge, Court No. 1, Allahabad, dated 27.03.2009, passed in S.T. No. 957 of 2006, State vs. Sufiyan and others, (arising out of Case Crime No. 364 of 2004, under Section 302, 307, 34 IPC, P.S. Colonelgnaj, district Allahabad), is partly modified to the extent that appellant Smt. Razia is acquitted from the charges as aforesaid. She is on bail. Her bail bonds are canceled and sureties are discharged. The appellants namely Sufiyan and Adil @ Seeran are in jail. They will serve the sentence as awarded by the court below.