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2024 DIGILAW 1788 (ALL)

Ahrar Ahmad v. State of U. P.

2024-08-01

ARVIND SINGH SANGWAN, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : ARVIND SINGH SANGWAN, J. 1. This appeal is preferred against the judgment of conviction dated 12.11.2014, passed by Additional Sessions Judge, Court No. 3, Bulandshahar in S.T. No. 104 of 2013 (State Vs. Nadeem & another) arising out of Case Crime No. 688 of 2012, Police Station-Kotwali Nagar, District-Bulandshahar vide which the appellants Nadeem and Ahrar were held guilty of offence punishable under Section 302 read with Section 34 of I.P.C. as well as the order of sentence dated 15.11.2014 vide which both the accused were awarded life sentence along with fine of Rs. 40,000/-each. In case of non-payment of fine, further they were directed to undergo punishment of one year. The two-third amount of the fine was directed to be paid the legal heirs of Asif. It is worth noticing that appellant-Ahrar Ahmad filed S.L.P. (Criminal) No. 21671 of 2022 praying for bail. The Supreme Court, however, vide order dated 14.12.2022, directed the High Court to finally decide and dispose of the appeal within a period of nine months. Therefore, this appeal is taken in the category of Supreme Court expedited cases. 2. Heard Mr. Dilip Kumar, learned Senior Counsel assisted by Mr. Vinod Singh, Advocate, Mr. Mohd Sahibe Alam Khan and Mr. Pushpendra Singh, learned counsel for the appellant, Mr. Sudhir Kumar Agarwal, learned counsel for the informant and learned AGA for the State. 3. The Trial Court’s record is received and paper books are ready. With the assistance of learned counsel for the parties, the entire evidence is re-scrutinized and re-appreciated. 4. Brief facts of the case as per the FIR read as under: 5. The police prepared the Panchayatnama and thereafter sent the dead body for post-mortem examination. Thereafter, the police conducted the investigation and effected the recovery of blood stained earth vide recovery memo and further recovered the licensed 32 bore revolver no. F.G. 34117 on the pointing out of accused-Nadeem from his house along with the three cartridges inside the chamber of revolver and five live cartridges in the holster were recovered. The license which was in the name of accused-Nadeem Ahmad was also taken in possession by the police vide recovery memo. 6. The bullet recovered from the spot along with the revolver and live cartridges were sent to F.S.L. for ballistic examination. The license which was in the name of accused-Nadeem Ahmad was also taken in possession by the police vide recovery memo. 6. The bullet recovered from the spot along with the revolver and live cartridges were sent to F.S.L. for ballistic examination. The police, on completion of investigation, submitted the final report before the court which was submitted to the court of Sessions. The Sessions Judge, Bulandshahar on 18.02.2023 framed the charge under Section 302 read with Section 34 I.P.C. against the accused person. 7. The accused did not plead guilty and claimed trial. 8. In prosecution evidence, PW-1- Aabid Hussain-informant stated on the line of information given to the police in the FIR. This witness stated that on 14.10.2012 at about 5:00 PM, he along with his younger brother-Asif, paternal uncle-Mohd. Umar and brother-in-law-Afsar were coming back on the motorcycles after having food in the house of Afsar, situated at Maukheda. One motorcycle was driven by Asif and Mohd. Umar was sitting on the pillion seat. Second motorcycle was driven by informant and his brother-in-law-Afsar was the pillion rider. Asif was driving the motorcycle ahead of PW-1. When they reached near the shop of one another Asif- a shopkeeper, Nadeem, Ahrar and two other persons stopped his brother-Asif and started abusing him and gave him beatings. PW-1 stopped his motorcycle and asked the assailants why they were beating and abusing his brother. In the meantime, accused-Nadeem and Ahrar took out their firearms and fired on Asif. PW-1 along with Afsar, Mohd. Umar tried to catch hold of Nadeem and Ahrar but they ran away towards village Bhud while firing in air and threatening to kill them. His brother fell down on the corner of southern side of the road. By making a phone call to one Tanveer, he arranged the vehicle and took his brother to Govt. Hospital, Bulandshahar where the doctor declared him brought dead. This witness stated that the grandfather of the accused namely Mumtaz had contested the election of Village Pradhan against his brother deceased-Asif and since then the accused were having enmity with him.This witness proved the complaint given to the police as Ex.K1. In cross-examination, this witness stated that he is less educated and can only sign. He further stated that his eye sight is poor and he cannot read without glasses, however, he can see from distance place. In cross-examination, this witness stated that he is less educated and can only sign. He further stated that his eye sight is poor and he cannot read without glasses, however, he can see from distance place. He further stated that his mobile no. is 9927523132 and at the time of incident, he was carrying this mobile. This witness denied a suggestion that his brother Asif and accused Nadeem were good friends and used to stay together for 12 to 14 hours in a day. He further stated that his brother Asif contested the election of Village Pradhan in 2000. 9. This witness further stated that Mumtaz against whom Asif contested the election is in relation with the accused by third degree of generation. This witness further stated that his wife Mehnaz contested the election of Pradhan in 2005 against Smt. Shabnam wife of Tanveer who is son of his uncle Mohd. Umar. He further stated that Smt. Firozan wife of Mumtaz also contested the election. This witness denied a suggestion that on account of this election he was not on the talking terms with Mohd. Umar. This witness further stated that he, his uncle-Mohd. Umar and deceased-Asif have no criminal history. The place of occurrence was an habitated place and there were shops nearby. In further cross-examination, he stated that the I.O. did not prepare the site plan in his presence, however, he has told the detail about the incident to the I.O. He further stated that Mumtaz has died about seven years ago and qua his sons Asrar and Avrar, he had no knowledge whether the cases are pending against both of them and he did not know whether Mumtaz also faced the criminal cases. In further cross-examination, PW-1 stated about the place of occurrence, the time when they started from village-Maukheda and the manner in which they took injured Asif in a car and that his clothes were also blood stained. This witness further stated that he did not know whether one Mustakim by dialing 100 number gave information to the police and rather denied whether that has given information that there were four assailants. On a specific question about the firing by the accused person, this witness replied that when accused gave him slaps, Asif moved about one pace. He further stated that he cannot tell which accused fired upon Asif, however, all the four accused fired. On a specific question about the firing by the accused person, this witness replied that when accused gave him slaps, Asif moved about one pace. He further stated that he cannot tell which accused fired upon Asif, however, all the four accused fired. He further stated that when the accused fired upon Asif he was about one and a half steps away from them. At the end of the lengthy cross-examination, this witness denied a suggestion that he had not witness the occurrence and also that he was not present at the spot. 10. PW-2-Mohd. Umar stated that deceased-Asif was his nephew and on the date of incident at about 5:00 PM, he and Asif were going on one motorcycle and on the second motorcycle Aabid and Afsar were coming. This witness also gave the complete description of the incident, when accused Nadeem and Ahrar after giving beating to Asif took out the country made pistol and fired on Asif, which hit him and thereafter, he fell down and accused by firing in air ran away. When Asif was taken to the hospital, he was declared dead. He further stated that his statement was recorded by the I.O. after about 8 to 10 days. This witness also stated that Village Pradhan Mumtaz died about 5-7 years ago and Avrar and Asrar are his sons. He further stated that his son Tanveer’s phone no. is 9837552410 and his younger son is named Tafseer and both of them reside in Saudi Arabia. This witness further stated that he did not know if any part of his statement made to the I.O. was not recorded in his statement. This witness was cross-examined at length by the defence counsel about the relationship of the accused with Mumtaz. He denied a suggestion that he was not present at the spot along with Aabid and Afsar or that one Mustakim prior to his reaching at the spot gave information to the police by dialing 100 number. PW-2 also denied a suggestion that he along with Aabid and Afsar reached the hospital, later on, when the deceased was got admitted in the emergency hospital by some electrician and they reached subsequent to the death of Aabid. 11. PW-3-Dr. PW-2 also denied a suggestion that he along with Aabid and Afsar reached the hospital, later on, when the deceased was got admitted in the emergency hospital by some electrician and they reached subsequent to the death of Aabid. 11. PW-3-Dr. Sachin Kumar who conducted the post-mortem reported the injuries as: In cross-examination this witness stated that: This witness stated that the injured cannot sustain injuries on both side of his body i.e. front and backside due to a fall and the injury nos. 5 and 6 can be caused by a pointed article made of an iron rod. 12. PW-4-Bhupendra Singh constable proved that he had recorded the chik FIR Ex. K3. In cross-examination, he stated that his statement was recorded by the I.O. He pleaded ignorance, if prior to registration of the FIR, some message through wireless was received in the police station that Asif has died. 13. PW-5-S.I.-Shyam Sundar stated that on 14.10.2012, he had gone to district hospital’s mortuary and prepared the Panchayatnama regarding death of Mohd. Asif. The Panchayatnama is Ex.K-5, the sketch of the dead body was prepared which is Ex.K-6, letter of CMO is Ex.K-8 and another letter to R.I. is Ex.K-9. The dead body was handed for post-mortem as per letter is Ex.K-10. The S.H.O.-Jitendra Kumar visited the spot and collected the blood stained and simple earth in separate boxes which were sealed. The recovery memo of the S.H.O. is Ex.K-11. In cross-examination, this witness stated about the time of panchayatnama as well as the time when the post-mortem was conducted. This witness stated that at page 33, in the Panchayatnama, there is over-writing as rapat no. 40 is changed to 41. He denied suggestion that he has prepared the papers of investigation while sitting in a police station. 14. PW-6-Jitendra Kalra stated that he was S.H.O. in P.S.-Kotwali and he has supervised the investigation. chik FIR and G.D. was registered and thereafter, the investigation started. He prepared the site plan at the spot which is Ex.K-12. This witness also stated about the arrest of accused-Nadeem and upon his pointing out he recovered a revolver used in commission of crime and the accused also confessed about involvement of his brother-Ahrar. chik FIR and G.D. was registered and thereafter, the investigation started. He prepared the site plan at the spot which is Ex.K-12. This witness also stated about the arrest of accused-Nadeem and upon his pointing out he recovered a revolver used in commission of crime and the accused also confessed about involvement of his brother-Ahrar. This witness further stated that accused Nadeem took the investigation team to his house and from a room, recovered one revolver in which there were three empty cartridges and five live cartridges in the holster. The revolver was of 32 bore and it was licensed in the name of Nadeem. The recovery memo of the weapon is Ex.K-13. Thereafter, on 03.11.2012, Afsar was arrested and his statement was recorded and confessed about committing the offence along with accused Nadeem. He stated that he had thrown away the country made pistol. Thereafter, PW-6 along with witnesses and accused Ahrar went to place where he has stated about throwing the country made pistol but the same could not be recovered. He approved the charge-sheet which is Ex.K-14. With the permission of the court, a sealed packet was opened which was consisted of five live cartridges in a belt and a revolver of 32 bore, and from the envelope, three empty cartridges EC1, EC2 and EC3 were taken out and two empty cartridges TC1 and TC2 along with bullets were seen. The witness identified all these recoveries and the same were exhibited from Ex.1 to Ex.15. One bullet EB1 was also taken out from the packet which the witness stated that it was recovered from the body of the victim at the time of the postmortem. The same is Ex.16. The gun license is Ex.17. Thereafter, all these articles were sealed in a white coloured cloth bag is exhibited from Ex.18 to Ex.21. This witness stated that these articles were sent to F.S.L. for cross-examination. 15. In cross-examination, this witness stated about the information received in the police station at about 7:00 PM. He stated that he got the information from the brother of deceased Asif and after recording the statement, he went to hospital. He also stated about recording the statement by Constable regarding the chik FIR and when he reached the hospital, he found Asif was lying dead. He stated that he got the information from the brother of deceased Asif and after recording the statement, he went to hospital. He also stated about recording the statement by Constable regarding the chik FIR and when he reached the hospital, he found Asif was lying dead. In further cross-examination, this witness stated that he had prepared the site plan of the spot on the identification of the informant and has given complete details of the investigation conducted by him. He admitted that later on, the receiving information from a secret informer regarding two unknown persons, he had removed their names in the investigation as the informant and witnesses have stated that only two persons have fired upon the deceased. He stated that he recorded the statement of both the witnesses on 26.11.2012 but could not record the statement of Mohd. Umar and Afsar for a period of about more than one month being busy in government work. At spot, he did not recover any empty cartridge and no bullet or pellet was seen on the wall at nearby place. In further cross-examination, this witness gave details about the time, the conduct of post-mortem, the recovery effected from the spot etc. After a lengthy cross-examination, he denied a suggestion that he visited the spot and he prepared the investigation documents while sitting in the police station. 16. Thereafter, the statement of accused Nadeem and Ahrar was recorded under Section 313 of Cr.P.C. and all the incriminating evidences were put together to them. In reply to question no. 7 regarding the enmity of the informant side and the accused, it was asked that as grandfather of accused contested the election against deceased Asif, he replied that Mumtaz is not my grandfather and there is a difference of five degree of generation in between and they did not have any direct relation. Regarding registration of the chik FIR and GD Nos. Ex.K3 and Ex.K4, this witness stated these are ante-time and the I.O. has falsely implicated them due to part them. Regarding question no. 25, i.e. what clarification he want to give, the accused replied that on the date of incident Ahrar was not with him. He had not committed any offence and at the time of incident, he was in Bulandshahr and at night he came to know about the death of Asif, when he reached his village. Regarding question no. 25, i.e. what clarification he want to give, the accused replied that on the date of incident Ahrar was not with him. He had not committed any offence and at the time of incident, he was in Bulandshahr and at night he came to know about the death of Asif, when he reached his village. Thereafter, by calling him, from his home his licensed revolver was taken in possession by way of a false recovery. 17. In the statement under Section 313 of Cr.P.C., accused Ahrar was also put to all the incriminating evidences and he gave similar reply to question no. 7 that Mumtaz and his family has a gap of five degree of generations. Regarding question nos. 19 to 21, recovery of blood stained earth, weapon, the witness stated that the police under pressure of the informant’s side has falsely implicated. In reply to question no. 25 for giving his clarification, replied that at the time of incident, he was reading ‘Namaz’ in the Jama Masjid of village-Akbarpur. A total number of 36 respectable persons of the village gave affidavit to S.S.P.-Bulandshahar in this regard that he has no connection with the offence. 18. In defence, DW-1-Hussain M. Zaidi, Nodal Officer, Idea Cellular Limited was examined who stated that in compliance of the order of the court, he has brought the call details and location details from the mobile nos. 9837555515, 9837552410 and 9927523132 for the date 14.10.2012, the same is signed and attested by him with a seal of the company. The details of all the mobile phones were Ex.Kha-2 to Ex.Kha-4. He has given the details of all the three mobile numbers from 1:00 PM to 6:00 PM. In cross-examination by the public prosecutor, he stated that one tower covered about one kilometre as per the Ministry of Telecommunication’s directions. 19. DW-2-Om Prakash Singh, Zonal Control Police, Office of Inspector General stated that on 14.10.2012, he was Radio Inspector in the control room on 14.10.2012 and at about 17:45 hours from mobile no. 9027108618. Informant gave information that one person is injured in firing incident in Veesa Colony to the police. The informant gave his name Mustakim, s/o Fakhruddin, r/o Chandrawali, P.S.-Sikandarabad. Thereafter, the police team/ Kotwali Nagar police station reached the spot and sent injured to the hospital. 9027108618. Informant gave information that one person is injured in firing incident in Veesa Colony to the police. The informant gave his name Mustakim, s/o Fakhruddin, r/o Chandrawali, P.S.-Sikandarabad. Thereafter, the police team/ Kotwali Nagar police station reached the spot and sent injured to the hospital. In cross-examination by public prosecutor and he stated that he is making the statement on the basis of the complaint registered from 100 number. 20. DW-3-Faheem Ahmad, S.O., P.S.-Kotwali (rural) stated that on 14.10.2012, at about 4:45 PM, he had gone to Jama Masjid of Village-Akbarpur for reading the ‘Namaz’ and found that Ahrar s/o Hussain Khan was also present in the Jama Masjid and about 30-35 persons were also reading the ‘Namaz’. Ahrar stay in the Masjid for half an hour later on he came to know that Asif is murdered and he had given an affidavit on 27.11.2012 in this regard to the S.S.P., he also proved the copy of the affidavit. He also stated that apart from him, 20-25 persons have also given the affidavit. In cross-examination, he gave name of some of the persons who have given the affidavit and denied a suggestion that he is making a false statement. 21. The trial court thereafter, vide impugned judgment dated 12.11.2024 held the appellant guilty of offence under Section 302/34 of I.P.C and vide impugned order dated 15.11.2014 awarded them life imprisonment along with fine as discussed above. 22. Learned counsel for the appellant has argued that the FIR is registered after a delay of about 1 hour 40 minutes and it is stated that four persons have committed the offence whereas during investigation, the I.O.-PW-6-S.H.O.-Jitendra Kalra has stated that on the basis of the information from some secret informer and as per the statement of the informant and the witnesses only two persons were found involved who fired upon the deceased. Counsel submits that informant has given an aggravated version. It is next argued that the statement of the eyewitness is not trustworthy. PW-1-Aabid and PW-2-Mohd. Umar are in fact not the eye-witnesses. It is submitted that from the statement of DW-1, Nodal Officer, the call details of the phones of PW-1 and PW-2 show that they were not present at the place of occurrence. It is argued that in cross-examination of PW-1, a specific question was asked about the mobile phone no. PW-1-Aabid and PW-2-Mohd. Umar are in fact not the eye-witnesses. It is submitted that from the statement of DW-1, Nodal Officer, the call details of the phones of PW-1 and PW-2 show that they were not present at the place of occurrence. It is argued that in cross-examination of PW-1, a specific question was asked about the mobile phone no. 9927523132 which he was using at the time of the incident and he admitted it to be correct. As per the statement of DW-1, the location of the said phone was not at the place of occurrence. It is argued that this witness has proved that on 14.10.2012, PW-1 for whole day till 5:15 PM was in village-Akbarpur and has not come to village-Maukheda where the incident took place. 23. It is submitted that even from the call details of Tanveer, it is proved that he was in his village-Akbarpur, and was not at Maukheda till 5:51 PM and he did not make any phone call. It is argued that in such circumstances, both Afsar and Abid persons have not seen the place of occurrence where allegedly the accused were present. Counsel submits that even call details of Tanveer proved that no call was made on his phone which falsify the version of the prosecution that he was called at the spot by the informant. Counsel submits that there is nothing on record to prove that on the date of incident, Afsar had invited 5-10 persons at his house for a feast at about 3:00 PM. As per his call details, he himself was not present at his place of residence, the story build up by the prosecution that the informant and deceased had gone to house of Afsar for attending an invitation is not proved. Similarly, his presence at the spot is also not proved. It is next argued that the prosecution has failed to prove any motive against the accused person. The motive set up by the prosecution that deceased Asif has contested the election against one Mumtaz in the year 2000 and therefore, the accused persons being the grandson of Mumtaz had enmity with Asif is not proved. It is argued that firstly PW-1 has clearly admitted that Mumtaz was related to them in the third degree of generation. The motive set up by the prosecution that deceased Asif has contested the election against one Mumtaz in the year 2000 and therefore, the accused persons being the grandson of Mumtaz had enmity with Asif is not proved. It is argued that firstly PW-1 has clearly admitted that Mumtaz was related to them in the third degree of generation. It is also argued that if election was contested in the year 2000, there was no justification for committing the offence in 2012 as Mumtaz has already died in the year 2006. 24. Learned counsel has argued that the motive with regard to contesting the election 12 years prior to the incident that to when Mumtaz, a distant collateral of the accused had already died in the year 2006 is totally unbelievable. It is next argued that as per the informant, the incident took place outside the shop of one Asif who was having a mobile phone shop but the he was not examined as an independent witness to support the interested witnesses PW-1 and PW-2. It is argued that the occular and medical version of the prosecution do not corroborate each other. 25. As per the oral evidence, the gun shot were fired from a close range but on injury nos. 1, 2 and 7 neither there is charring nor tatooing and there is no inversion of skin wound. It is also argued that the doctor has failed to explain how injury nos. 5 and 6 were caused. It is also argued that in the stomach of the deceased only 150mg food was found whereas the prosecution version was that the deceased along with PWs was coming back after having a feast on invitation from Afsar. It is next argued that it has come in the statement of DW-1 that the information in the police control room was given by one Mustakim s/o Fakhruddin at 17:45 hours who was resident of village-Chandrawali and however, this informant was never made a witness by the police. 26. It is also submitted that contrary to the version of PW-1 and PW-2 that after the incident, he called Tanveer on his mobile phone and he came and took the injured person to the hospital, the record shows that one Ahad Shyam got the deceased admitted in the hospital. 26. It is also submitted that contrary to the version of PW-1 and PW-2 that after the incident, he called Tanveer on his mobile phone and he came and took the injured person to the hospital, the record shows that one Ahad Shyam got the deceased admitted in the hospital. The information to the police was given vide GD No. 40 at 18:39 hours by Ajay Kumar, ward boy but the I.O. neither recorded the statement of Mustakim nor of Ahad Shyam and even the statement of Ajay Kumar was not recorded as a prosecution witness which raises a serious doubt about the presence of PW-1 and PW-2 at the spot. It is also argued that there is a variation in the statement of PW-5-Shyam Sundar and PW-6-SHO-Jitendra Kalra to support the argument that the I.O. has not signed the Panchayatnama and for a period of 1 and 3/4 months, the statement of the eye witnesses were not recorded and it was not clear in the statement where there were two or four assailants. It is next argued that the recovery of license revolver from accused Nadeem is doubtful as it is recovered from the room which was already open. 27. It is next argued that the Forensic Science Lab report does not support the prosecution version as it is not clear which weapon was used for commission of offence. Learned Senior Counsel has laid much emphasis on this report to submit that an opinion is given that the bullet retrieved from the body of the deceased, was not fired from the revolver recovered from the accused Nadeem and therefore, it is not proved that the offence was committed from the licensed revolver of Nadeem. It is also submitted that no recovery was effected from accused Ahrar. The FSL report is reproduced as under: 28. Learned counsel has further argued that it has come in the statement of DW-3, an independent witness that at the time of incident accused Ahrar was not present at the spot and he was reading the ‘Namaz’ in the Jama Masjid of village-Akbarpur. The counsel has argued that as many as 36 people of the said village were also reading the ‘Namaz’ at the relevant time and given affidavits to SSP but were not made as the part of the investigation. The counsel has argued that as many as 36 people of the said village were also reading the ‘Namaz’ at the relevant time and given affidavits to SSP but were not made as the part of the investigation. Counsel submits that even recovery of blood stained earth do not to prove guilt of the appellant. 29. Learned counsel further argued that the presence of Ahrar Ahmad is not at all proved at the spot and even no recovery of the country made pistol was effected from him. 30. In reply, learned counsel for the informant as well as learned AGA for the State have, however, opposed the arguments of the appellant on the ground that the motive to commit the offence is proved as it has come that the deceased Asif has contested election against one Mumtaz in the year 2000 and Mumtaz is grandfather of the accused person. Therefore, they had the enmity to commit the offence. It is also submitted that both PW-1 and PW-2 are credible witnesses who are present at the spot and have seen the incident. They are the eye witnesses and the call detail records cannot be read in evidence in the absence of 65B certificate. It is also argued that as per the prosecution version, the accused persons first stopped the motorcycle of the deceased Asif, pick up a brawl and then gave him beatings and PW-1 and PW-2 tried to intervene, by taking out the gun they fired upon the deceased. It is also argued that the time and place of incident is not disputed by the accused while by not giving any suggestion to the prosecution witnesses of fact. It is submitted that Afsar s/o Altaf was scriber of the complaint forming the basis of the chik FIR and therefore, his presence at the spot is proved. It is argued that there is no reasons to discard the statement of prosecution witnesses and variation if any, in the statement of PW-1 and PW-2 as well as between PW-5 and PW-6 is minor and in ordinary course the same is bound to occur. It is also argued that the prosecution has led sufficient evidence to prove the guilt of accused person. 31. Learned counsel submits that as per the prosecution version, two firearms were used, however, from the statement of PW-3-Dr. Sachin Kumar, it is not proved that injury nos. It is also argued that the prosecution has led sufficient evidence to prove the guilt of accused person. 31. Learned counsel submits that as per the prosecution version, two firearms were used, however, from the statement of PW-3-Dr. Sachin Kumar, it is not proved that injury nos. 1, 2 and 6 were caused with two different firearm weapons and therefore, in the absence of any recovery from appellant-Ahrar Ahmad, the injuries attributed to him, are not explained in the post-mortem. 32. After hearing counsel for the parties and on re-appreciation of evidence, we find that the prosecution has been able to prove the guilt of appellant-Nadeem Ahmad but could not prove the guilt of Ahrar Ahmad beyond doubt for the following reasons: A. Appellant-Nadeem Ahmad is named in the FIR along with accused- Ahrar. However, in the FIR, two unknown persons were also named but later on, their names were dropped as their identity could not be proved. B. PW-1 has categorically stated that Nadeem and Ahrar have fired upon from their country made pistol (tamancha) which hit Asif. When PW-1 along with other witnesses tried to catch hold of the accused, they ran away by firing in air. A motive is attributed that deceased Asif has contested election against one Mumtaz who was the grandfather of accused, being a collateral and Nadeem had a grudge against him on that account. This witness has further stated that accused Nadeem was having relationship with the deceased Asif and even Asif has contested the election in the year 2000. C. The police has recovered the licensed revolver of accused Nadeem along with three cartridges in the chamber of the revolver and five live cartridges in the holster which was sent to the FSL for examination. D. The trial court has rightly recorded a finding that Nadeem has fired upon Asif with his licensed revolver. However, no firearm was recovered from the appellant-Ahrar. As per the statement of PW-3-Dr. Sachin Kumar who conducted the post-mortem examination, has nowhere stated that the characteristics of the injuries sustained by the deceased, by use of firearm indicate that the same were caused by two different firearms, therefore, only the injury attributed to accused-Nadeem by his revolver is corroborated by the post-mortem report. As per the statement of PW-3-Dr. Sachin Kumar who conducted the post-mortem examination, has nowhere stated that the characteristics of the injuries sustained by the deceased, by use of firearm indicate that the same were caused by two different firearms, therefore, only the injury attributed to accused-Nadeem by his revolver is corroborated by the post-mortem report. E. Even PW-2 had stated that accused-Nadeem and Ahrar by taking out the country made pistol fired upon Asif, however, no such firearm was recovered from appellant-Ahrar. This witness has also attributed the main allegation towards accused-Nadeem and even motive is attributed towards him. Even this witness stated that there are two unknown accused who also fired upon deceased-Asif. However, no evidence in this regard is led by the prosecution. In cross-examination, this witness stated that the unknown offender did not give any beatings to deceased-Asif. F. PW-3-Dr. Sachin Kumar who conducted the post-mortem stated that on injury nos. 1 and 2, there was not blackening or tatooing. He further stated that if the firearm was used at a distance of less than six feet, the possibility of blackening and tatooing was there. Similarly, injury no. 7 also had no blackening or tatooing which suggest that the same were fired upon from a distance of more than six feet. PW-1 and PW-2 both have stated that at the first instance, Nadeem had fired upon the deceased, therefore, the firearm injury sustained by the deceased on injury nos. 1, 2 and 7 have similar margins. G. PW-6-I.O. in his deposition has proved that the licensed revolver of accused-Nadeem Ahmad, the cartridges-EB1, which was retrieved from the body of the deceased and cartridges EC1 and EC2 which were test fired from the licensed revolver of Nadeem Ahmad, were sent to the Forensic Science Lab to ascertain the user of the revolver. All this evidence relates to Nadeem Ahmad only as it is a case of prosecution that no recovery of any weapon was effected from Ahrar Ahmad. H. In the statement under Section 313 of Cr.P.C., accused-Nadeem Ahmad, in reply to question no. All this evidence relates to Nadeem Ahmad only as it is a case of prosecution that no recovery of any weapon was effected from Ahrar Ahmad. H. In the statement under Section 313 of Cr.P.C., accused-Nadeem Ahmad, in reply to question no. 25 regarding his clarification, has stated that on the date of incident, Ahrar was not along with him and he has not committed any offence as he was in Bulandshahar and later on, he reached back home and came to know about the death of Asif and thereafter by calling him from his house, the revolver was taken in possession by police. I. In statement under Section 313 of Cr.P.C., accused-Ahrar Ahmad has categorically stated that he was present in Jama Masjid of village-Akbarpur and he was reading the 'Namaz'. He has also stated that about 36 persons of the village who were also reading 'Namaz' had given their affidavits to S.S.P., Bulandshahar regarding his presence at Jama Masjid in village of Akbarpur. J. The trial court has not properly appreciated the defence evidence led by the accused Ahrar. DW-1-Hussain M. Zaidi, Nodal Officer, Idea Cellular Limited has proved the call details of PW-1 as well as of Ahrar. The location of phone number belonging to Ahrar Ahmad from 3:00 PM till 5:20 PM was at village-Akbarpur which also shows that Ahrar Ahmad was not present at the spot when the incident took place. The trial court has also not considered the statement of DW-2-Om Prakash Singh, Zonal Control Police, Office of Inspector General, Meerut wherein he has stated that a radio wireless message was received from 9027108618 and the informant told that one person has suffered firearm injury in Veesa Colony. The informant gave his name as Mustakim, s/o Fakhruddin, r/o Village-Chandrawali, P.S.-Sikandarbad, Bulandshahar and the same was entered in G.D. Number 161/3440. To the contrary, PW-1 has stated that he has sent the information to the police and this evidence was not considered by the trial court. K. DW-3-Faheem Ahmad, S.O., P.S.-Kotwali (rural), r/o Akbarpur, District-Bulandshahar has stated that on 14.10.2012 at about 16:45 hours, he had gone to Jama Masjid in his village-Akbarpur for reading 'Namaz' and he found that Ahrar, s/o Hussain Khan was also present along with 30-35 persons of this village and they altogether were reading 'Namaz'. Ahrar was there for more than half an hour. Ahrar was there for more than half an hour. On coming to know that Ahrar has been nominated in the murder of Asif, DW-3 along with many other persons have given affidavit to S.S.P., Bulandshahar and a copy of the affidavit dated 13.08.2014 was produced on record. In cross-examination, by the public prosecutor of all DW-1 and DW-2, their testimony could not be shattered being based on the public record and similarly, DW-3 was consistent in making the statement that Ahrar was present in Jama Masjid of village-Akbarpur at the time of incident. 33. In view of above, considering the statements of PW-1 and PW-2, the two eye-witnesses who have named Nadeem Ahmad as the principal accused who first fired upon the deceased-Asif and PW-6-S.H.O./I.O., who recovered the licensed gun from Nadeem Ahmad and considering the report of FSL, coupled with the fact that PW-3-Dr. Sachin Kumar who has conducted the post-mortem, did not state that two firearms were used and lastly considering that no recovery of any firearm was made from accused Ahrar Ahmad, who had also led defence evidence to show the location of his phone which was in village-Akbarpur as well as one independent witness who stated that he along with 35 villagers have given an affidavit to S.S.P., Bulandshahar to show that Ahrar was present at Jama Masjid of village-Akbarpur at the time of incident, we find no merits so far the appeal of Nadeem Ahmad is concerned and we uphold the judgment of conviction and order of sentence passed by the trial court for accused Nadeem Ahmad. The accused Nadeem Ahmad is in custody and he will undergo the remaining sentence in accordance with law. 34. However, considering the evidence in entirety as noticed above, we find that the prosecution has failed to prove the presence of accused Ahrar Ahmad at the spot; beyond doubt no recovery was effected from him and no specific motive was attributed towards him. We find merit in the appeal filed by Ahrar Ahmad and set aside the judgment of conviction and order of sentence for appellant-Ahrar Ahmad and he is acquitted of the charge. As per custody certificate dated 16.01.2023, Ahrar Ahmad is in custody for more than 11 years and 8 months of actual sentence. Therefore, appellant-Ahrar Ahmad be released from judicial custody forthwith, if he is not involved in any other case. 35. As per custody certificate dated 16.01.2023, Ahrar Ahmad is in custody for more than 11 years and 8 months of actual sentence. Therefore, appellant-Ahrar Ahmad be released from judicial custody forthwith, if he is not involved in any other case. 35. With the aforesaid modification in the impugned judgment of conviction and order of sentence passed by the trial court, we uphold the conviction and order of sentence of accused-Nadeem and modified the judgment for accused Ahrar Ahmad by acquitting him by giving benefit of doubt. With the aforesaid modification, the appeal is disposed of. 36. The trial court records be transmitted forthwith.