Ashraf & Others vs State Of Uttarakhand And Others

Ravindra Maithani, J

Since common question of law and facts are involved in both these appeals, therefore, same are taken up together and decided by this common judgment.

In Sessions Trial No. 277 of 2007, State Vs. Afzal and others (for short "the case") by the judgment and order dated 15.06.2012, the court of learned FTC/Additional Sessions Judge, Haridwar acquitted the private respondents-accused (for short 'private respondents') Afzal, Mashroof, Abid, Gumnam and Mahboob Hasan of the charges under Sections 147, 148, 323/149, 324/149, 325, 504/149, 506/149 and 307/149 IPC.

State preferred Government Appeal No. 46 of 2012, against the acquittal of the private respondents. The informant Ashraf Ali also preferred Criminal Appeal No. 195 of 2012, against the acquittal.

Appellant Ashraf Ali moved an application under Section 156 sub Section (3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") on 23.01.2006, against the private respondents and others. According to it, on 15.01.2006, at about 8:00 in the morning, due to the election rivalry, private respondents entered into his tea shop, armed with country-made pistol, tabal (a sharp edged weapon) and rods. They abused him. Ashraf Ali asked them not to do so. Meanwhile, hearing the noise, Riyasat, Asgari, Kaleem, Julfkar, Salim and other villagers came at the spot. The private respondents and their associates opened fire and assaulted the appellant Ashraf Ali with rods. Due to the presence of villagers, the private respondents-accused and their associates ran away. They threatened the appellant Ashraf Ali and his family members to life. The appellant Ashraf Ali, his son Riyasat and wife Asgari sustained serious injuries. They got themselves treated. Appellant Ashraf Ali went to lodge a report on 17.01.2006. Police took his original report and medical, but did not act upon it. Appellant Ashraf Ali gave a report on 19.01.2006, to SSP but no action was taken. The court ordered for investigation on the application 156 (3) of the Code. In compliance thereof, an FIR under Sections 147, 148, 323, 504, 506 and 307 IPC was lodged. Investigation carried out. Appellant Ashraf Ali, his wife Asgari and son Riyasat were medically examined. Investigating Officer prepared the site plan Ex. A8 and after investigation, submitted charge sheet against the private respondents and Hafiz-Ur-Rehman. Cognizance was taken and case was committed to the court of Sessions for trial.

On 30.08.2007, charges under Section 147, 148, 323/149, 324/149, 325, 504/149, 506/149 and 307/149 IPC were framed against the private respondents and Hafiz-Ur-Rehman, to which, they denied and claimed trial. During the pendency of the trial Hafiz-Ur-Rehman died and case abated against him on 17.08.2011.

Prosecution in order to prove the case, examined eleven witnesses.

Private respondents were examined under Section 313 of the Code. According to them, they have been falsely implicated by Ashraf Ali in defence of the murder of a Jahangir and injuries to the person from the side of private respondents. In defence DW1 Arshad Ali has been examined.

Learned court below after hearing the parties, by the impugned judgment and order acquitted the private respondents of the charges. Aggrieved by it, State as well as the appellant Ashraf Ali (informant) filed these appeals.

Heard learned counsel for the parties and perused the record.

Private respondent Mashroof died during pendency of these appeals and the appeals abated against him on 15.10.2019.

Learned counsel for the appellant Ashraf Ali would submit that learned court below committed gross error in the eyes of law by acquitting the private respondents. The place of occurrence is the shop of the informant; private respondents alongwith their associates entered into the shop of the informant and assaulted him mercilessly, opened fire, which hit Jahangir, who died; informant, his wife and son, all sustained injuries; they were medically examined; doctors have supported the oral evidence; the prosecution has been able to prove that the private respondents were aggressor; the case against private respondents has been proved beyond reasonable doubt. They ought to have been convicted of the charges, but learned court below committed an error in acquitting them. Therefore, it is argued that the appeal filed by the informant deserves to be allowed.

Learned counsel for the State would also submit that the prosecution has been able to prove the case against the private respondents. PW1 Ashraf Ali, informant, PW2 Asgari, his wife PW3 Kaleem, PW4 Riyasat, son of the informant and PW5 Julfkar are witnesses of the fact. They have supported the prosecution case. Their statements are corroborative to each other, which is supported by the medical evidence. Therefore, impugned judgment and order deserves to be set aside and appeal allowed.

On the other hand, on behalf of the private respondents, learned senior counsel would argue that, in fact, PW1 Ashraf Ali, PW4 Riyasat and PW5 Julfkar were the aggressors. They not only assaulted, but killed Jahangir and in their defence, they cooked up this story. It is argued that the persons from the side of the private respondents were seriously injured and one person died. There is no explanation to the injuries; the place of occurrence is not established; PW4 Riyasat had run away from the place of occurrence. No pellet or any sign of firing was found in the shop of the informant. Therefore, it is argued that prosecution utterly failed to prove the case against the private respondents and the learned court below rightly acquitted them of the charges. No interference is warranted and the appeals deserve to be dismissed.

Before arguments are appreciated, it would be pertinent to mention that, in fact, an FIR of the same incident was lodged by DW1 Arshad Ali on 15.01.2006, at Police Station, Gangnahar at 10:00 AM. According to it, on 15.01.2006, at 08:00 in the morning, Maksood, Jahangir @ Bhura and Mashroof were going to make a telephone call from STD booth of Aqil. As soon as, they reached in front of the door of Mahfooj, Liyakat, Riyasat @ Kala, Abid, Shrafat @ Fakira, Julfkar suddenly appeared, armed with country made pistol and Balkati (a sharp edged weapon). Liyakat exhorted "kill them" and all of them, with an intention to kill, fired. Due to which, Jahangir died at the spot. Mashroof and another also sustained injuries. Hearing the noise, Mehboob @ Chota, Javed, Parvez, Nadeem, Salman, Tasawwar, Iqbal, Shehnawaj, Mumtaaj and Gulfam @ Kala reached at the spot, but Liyakat, Riyasat, Abid, Sharafat and Julfkar fired at them and attacked them also with Balkati. They also sustained injuries. Sharafat was armed with country made pistol and Balkati. They took away the dead body of Jahangir. When injured were returning to their respective homes, Liyakat, Riyasat, Abid, Sharafat and Julfkar threatened them, fired on them and followed them.

The fact remains that on the report lodged by DW1 Arshad Ali, a case was lodged, in which, charge sheet was submitted against Liyakat, Riyasat, Abid, Sharafat and Julfkar for the offences under Sections 147, 148, 149, 302 307 and 504 IPC and separate charge-sheets were filed against Riyasat and Abid for the offence under Section 25 of the Arms Act, 1959 (for short "the Act") (Sharafat was a juvenile, therefore, his file was separated and sent to Juvenile Justice Board, Haridwar). After the trial, in Sessions Trial No. 129 of 2006, by the court of learned IInd FTC/ Sessions Judge, District Haridwar and connected matters Liyakat, Riyasat, Abid, and Julfkar have been convicted of the charges under Sections 147, 148, 307 read with 149, 302 read with 149 IPC. In addition to it, Liyakat has also been convicted under Section 504 IPC. Riyasat @ Kala and Abid have been convicted under Section 25 of the Act and sentenced accordingly. The fact also remains that Liyakat and others have also challenged their conviction in Criminal Appeal No. 194 of 2012 before this Court, which has been heard simultaneously with this appeal, as both are cross cases.

In the case of Mohd. Khalil Chisti Vs. State of Rajasthan and others, (2013) 2SCC 541, the Hon'ble Supreme Court held that "as rightly pointed out by the learned counsel for the appellants, in the light of the case and cross-case, it would be in the fitness of things that the respective appeals preferred by the appellants against Sessions Case No. 157 of 2011 and the one preferred by the convicts in Sessions Case No. 178 of 2011 ought to have been heard and disposed of simultaneously by the High Court..............."(Para 44).

The law of cross cases is well settled that they should be decided simultaneously. Each case has to be decided on its own merit. The evidence recorded in the cross case cannot be read while deciding the case. Both cases are independent. What is required is simultaneous disposal by the same judge.

In the incident in question, allegedly, both the sides sustained injuries. It may be a case of aggressor or defender or a case of free fight. The question of common object or common intention plays a vital role in such matters. The FIR records that the private respondents alongwith their associates entered the shop of the informant with an intention to kill him.

On the question of free fight, in the case of Sikhar Behera and others Vs. State of Orissa, 1994 Supp (1) SCC 493, Hon'ble Supreme Court, inter alia, held that "in view of the findings of both the courts below that neither party was in peaceful possession of the lands in dispute and that there was a scramble for possession and that both parties were prepared for a fight and in fact fought, the accused cannot have a right of private defence. In such a free fight, the question of one party being aggressor may not arise. However, the members of each party would be members of the unlawful assembly with the common object to fight. But the nature of the participation, the weapons used and the injuries caused would also be relevant to infer the nature of the common object............."(Para 6)

In the case of Chittarmal Vs. State of Rajasthan, (2003) 2 SCC 266, Hon'ble Supreme Court held as hereunder:-

"14. It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combinations of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a prearranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert. Though there is a substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non-applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all. (See Barendra Kumar Ghosh v. King Emperor AIR 1925 PC 1: 26 Cri LJ 431, Mannam Venkatadari v. State of A.P. (1971) 3SCC 254 : 1971 SCC (Cri) 479: AIR 1971 SC 1467, Nethala Pothuraju v. State of A.P. (1992) 1 SCC 49 : 1992 SCC (Cri) 20 : AIR 1991 SC 2214 and Ram Tahal v. State of U.P. (1972) 1 SCC 136 : 1972 SCC (Cri) 80: AIR 1972 SC 254)."

In the case of Subal Ghorai and others Vs. State of West Bengal, (2013) 4 SCC 607, Hon'ble Supreme Court, inter alia, held as hereunder:

"53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution."

The question of non-explanation of injuries has also been raised during the course of an argument. It is really very important for the prosecution to place before the Court, the true story. If accused sustains injuries in an incident, it is always incumbent upon the prosecution to explain as to how did accused sustain injuries. This aspect has come up for consideration several times before the Hon'ble Supreme Court.

In the case of Lakshmi Singh and others vs. State of Bihar, (1976) 4 SCC 394, Hon'ble Supreme Court, inter alia, held as hereunder:

"............This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab (1975) 4 SCC 518: 1975 SCC (Cri) 608 Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows:

In State of Gujarat v. Bai Fatima (1975) 2 SCC 7: 1975 SCC (Cri) 384 one of us (Untwalia, J.), speaking for the Court, observed as follows: SCC p.13 : SCC (Cri) p. 390. Para 17.

In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all........." (Para 12)

In the case of Mohd. Khalil Chisti (supra) the Hon'ble Supreme Court held that " it is clear that it is the duty of the prosecution to explain the injuries sustained by the accused and establish the genesis of the incident by placing acceptable material."

There is one more aspect of the matter that in the criminal jurisprudence of this country, an accused is presumed to be innocent until proved guilty. The acquittal reaffirms this presumption of innocence. In appeal against acquittal, the law is well settled that if two views are possible, the appellate court should adopt the view, which is favourable to the accused.

In the case of Govindaraju alias Govinda Vs. State by Sriramapuram Police Station and another (2012) 4SCC 722, Hon'ble Supreme Court, inter alia, held as hereunder:

"11. Besides the rules regarding appreciation of evidence, the court has to keep in mind certain significant principles of law under the Indian criminal jurisprudence i.e. right to fair trial and presumption of innocence, which are the twin essentials of administration of criminal justice. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefits of such presumption which could be interfered with by the courts only for compelling reasons and not merely because another view was possible on appreciation of evidence. The element of perversity should be traceable in the findings recorded by the court, either of law or appreciation of evidence.

If we analyse the above principle somewhat concisely, it is obvious that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted."

In the instant case, there are five witnesses of fact beginning from PW1 Ashraf Ali (informant). According to him, on 15.01.2006, in the morning at 08:00 AM, he was warming his hands in his tea shop, at that time, private respondents and their associates armed with country made pistol, tabal and rods came there. This witness came out from his shop and asked, as to what the matter is? They abused him and Hafiz-Ur-Rehman exhorted the others to kill him and then all of them assaulted him, his hands were fractured due to the beatings by the rod. Rod was also hit at his right leg. He sat down, meanwhile, there was firing from a roof top, which hit him at his head. The fire was done by Khilat Rehman from the roof top. The wife of this witness approached there. She saw the incident and raised alarm. Her sons Julfkar, Kaleem and Saleem also reached there alongwith other villagers. When the private respondents and their associates saw the villagers, they ran away and while doing so, they also opened fire and threatened this witness to life. According to PW1 Ashraf Ali, he and his wife Asgari and his son Riyasat sustained injuries. They got themselves treated. He gave a report at the police station, but his report was not lodged. On 19.01.2006, he gave a report to SSP Haridwar, but no action was taken. Thereafter, he filed application under Section 156 (3) of the Code, which this witness proved as Ex. A1. According to PW1 Ashraf Ali, he and private respondents have inimical relations due to Village Pradhan election. PW2 Asgari, PW3 Kaleem, PW4 Riyasat and PW5 Julfkar have also supported the statement of PW1 Ashraf Ali. But, there are some aspects of discrepancies in their statements, which will be referred to, at an appropriate stage.

In fact, there are some grave contradictions. PW2 Asgari states that when she reached at the shop, she saw Mashroof and Mehboob assaulting her husband PW1 Ashraf Ali. Jahangir @ Bhura intervened, but Mashroof and Mehboob fired at him. He fell down. Thereafter, PW2 Asgari says that Afzal, Abid, Tilak Rehman, Pravez also assaulted and fired. It may be noted here that PW1 Ashraf Ali did not mention the name of Jahangir. He has not said that he was beaten by Mashroof and Mehboob, and when Jahangir intervened, he was killed. According to PW1 Ashraf Ali, in fact, when he was beaten up, PW2 Asgari, his wife came and she shouted and then the villagers came. PW3 Kaleem also states as if, he was witnessing the incident, since beginning. He has corroborated the statement of PW1 Ashraf Ali, since its inception, when PW1 was sitting in his tea shop. In fact, according to PW1 Ashraf Ali, PW3 Kaleem also came when PW1 Ashraf Ali had already been beaten up and he shouted and then his wife PW2 Asgari and PW3 Kaleem came and then others followed them. Similar is the case of PW4 Riyasat and PW5 Julfkar. It may be mentioned here that PW4 Riyasat and PW5 Julfkar are accused in the cross case, in which, they have already been convicted for the murder of Jahangir @ Bhura by the trial court.

PW6 Dr. Swati Murari examined PW2 Asgari at Civil Hospital, Roorkee on 15.01.2006 and found the following injuries:-

(i) Lacerated wound 0.5 x 0.2 cm, on the right forearm, 2 cm below the elbow joint, swelling 7 cm x 3cm.

(ii) Lacerated wound0.2 x 0.2 cm x skin deep on the right side of elbow joint.

(iii) Lacerated wound 0.5 cm x 0.2 cm, right side of abdomen, 9 cm from umbilicus at 2 O'clock position.

(iv) Lacerated wound 0.5 cm x 0.5 cm skin deep, on the right side of abdomen, 6cm below the umbilicus.

(v) Lacerated wound 0.5cm x 0.5cm, left side of abdomen, 11 cm from umbilicus at 5O'clock position.

(vi) Abrasion 0.5 cm x 0.5 cm, on the left foot, 5 cm below the knee joint.

(vii) Lacerated wound 0.5 cm x 0.5 cm, on the right knee."

She proved the report Ex. A2.

PW6 Dr. Swati Murari also examined PW1 Ashraf Ali on the same day and found the following injuries:-

(i) Lacerated wound 0.5 cm x 0.5 cm x scalp deep, left side of head, 10 cm above the left ear.

(ii) Lacerated wound 0.5 cm x 0.5 cm x scalp deep, left side of head, 7cm above the left eyebrow.

(iii) Lacerated wound 0.5 cm x 0.5 cm, left side .7 cm below the knee joint.

(iv) Contusion left upper arm 10 cm x 8 cm.

She proved the medical examination report Ex. A3.

PW6 Dr. Swati Murari also proved the supplementary report of PW2 Asgari Ex. A4 and supplementary report of PW1 Ashraf Ali Ex. A5. According to it, there were some shadow of foreign body in the X-ray of abdomen and right knee of PW2 Asgari. In the X-ray of PW1 Ashraf Ali high radiodense shadow was detected on the left knee and on the skull. The shaft of left upper arm was also fractured.

On behalf of the private respondents the injuries sustained by the persons of their party were also got proved by PW6 Dr. Swati Murari.

PW6 Dr. Swati Murari also examined Mehboob Hasan on the same day and found the following injuries:

(i) Contusion 7cm x 3 cm on the left forearm including wrist.

(ii) Lacerated wound 4cm x 3cm on left wrist lateral aspect kept under observation.

(iii) Multiple small lacerated wound 2cm x 2cm on the front and back forearm and back on left hand 20cm x 8 cm.

(iv) Lacerated wound 4cm x 1cm x bone deep on front of forehead 6cm above the bridge of nose.

(v) Incised wound 5cm x 1cm bone deep on left side of head 10 cm above left ear.

She proved the medical report Ex. B1.

PW6 Dr. Swati Murari examined Nisar Ahmad on the same day and found the following injuries:

(i) Lacerated wound 0.5cm x 0.5 cm x skin deep right upper arm on the lateral aspect 10 cm below shoulder joint.

(ii) Lacerated wound 0.5 cm x 0.5 cm left side of back below the shoulder joint.

(iii) Multiple lacerated wounds in an area of 50cm x 2 cm measuring each 0.5 cm x 0.5cm on the back.

(iv) Lacerated wound 0.5 cm x 0.5 cm left upper arm 9 cm above elbow joint.

(v) Lacerated wound 0.5 cm x 0.5 cm right buttock.

(vi) Lacerated wound 0.5cm x 0.5 cm left buttock.

(vii) Lacerated wound 0.5cm x 0.5 cm on back of right thigh middle part.

She proved the medical report Ex. B3.

PW6 Dr. Swati Murari examined Maksood Ahmad on the same day and found the following injuries:

(i) Lacerated wound 0.2 cm x 0.2 cm on front and middle of left leg.

(ii) Lacerated wound 0.2 cm x 0.2cm on medial aspect of left hand.

(iii) Lacerated wound 0.2cm x 0.2cm on front of middle of left thigh.

She proved the medical report Ex. B5

PW6 Dr. Swati Murari examined Javed Ahmad on the same day and found the following injuries:

(i) Two lacerated wounds each measuring 0.2 cm x 0.2cm, on the front of left thigh at an area of 7cm x 3cm with a distance of 3cm.

(ii) Lacerated wound of 0.2cm x0.2cm on the medial aspect of left thigh

(iii) Lacerated wound 0.2cm x 0.2 cm on front and lateral side of left knee.

(iv) Lacerated wound of 0.2cm x 0.2cm on medial aspect of right thigh.

(v) Lacerated wound 0.2 cm x 0.2 cm on back and middle of left forearm.

(vi) Lacerated wound 0.2 cm x 0.2 cm on the back of left hand.

(vii) Lacerated wound 0.2 cm x 0.2 cm on back of left hand.

(viii) Lacerated wound 0.2cm x 0.2 cm on the front of left leg.

Dr. Swati Murari proved the medical report Ex. B7

PW6 Dr. Swati Murari examined Mashroof Ahmad on the same day and found the following injuries:

(i) Lacerated wound 5cm x 0.5 cm x scalp deep on the top of head 13 cm above right ear.

(ii) Abrasion 3cm x 1cm on the back of right forearm.

(iii) Lacerated wound 0.2cm x 0.2cm, on back of left index finger.

(iv) Abrasion 3cm x 1cm on front of left leg, 3cm above left ankle.

(v) Multiple lacerated wounds 0.2cm x 0.2cm on antemeridian aspect of left leg in an area of 15cm x 10cm

(vi) Lacerated wound 0.2cm x 0.2cm on medial aspect of left knee.

(vii) Abrasion 5cm x 2cm on right side of back.

(viii) Abrasion 5cm x 2cm on left side of back 10cm below left scapula.

She proved the medical report Ex.B9.

PW6 Dr. Swati Murari examined Salman on the same day and found the following injuries:

(i) Abrasion 0.5cm x 0.5cm on the right eyebrow.

(ii) Abraded contusion 3cm x 2cm on the right side of face just below lower eyelid.

(iii) Abrasion 1cm x 0.2cm on base of right ring finger of right hand.

(iv) Abrasion 1cm x 0.5cm on right hand in between ring finger and middle finger.

(v) Lacerated wound 0.5cm x 0.5cm on the tip of ring finger.

(vi) Abrasion 3cm x 1cm on the front of left leg joint below knee joint.

(vii) Abrasion 3cm x 2cm on front of left leg middle part.

She proved the medical report Ex. B11

PW6 Dr. Swati Murari examined Pravez Alam on the same day and found following injury:

(i) Traumatic swelling 10cm x 8cm on dorsal of right foot. She proved the medical report Ex.B13

PW6 Dr. Swati Murari examined Tasawwar Ali on the same day and found the following injuries:

(i) Lacerated wound 0.2cm x 0.2cm on medial aspect of left thigh 5cm above knee.

(ii) Lacerated wound 0.2cm x 0.2cm on front aspect of left thigh 3cm above.

(iii) Lacerated wound 0.2cm x 0.2cm on medial aspect of left knee.

(iv) Lacerated wound 0.2cm x 0.2cm on medial aspect of left leg 6cm below knee.

(v) Lacerated wound 0.2cm x 0.2cm on the front and middle of right leg.

(vi) Lacerated wound 0.2cm x 0.2cm on front of right knee.

She proved the medical report Ex. B15.

PW6 Dr. Swati Murari examined Iqbal on the same day and found the following injuries:

(i) Lacerated wound 0.2cm x 0.2cm on left side of chest 11cm below left nipple 4 O'clock position.

She proved the medical report Ex. B17.

PW6 Dr. Swati Murari examined Mumtaz on the same day and found the following injuries:

(i) Lacerated wound 0.2cm x 0.2cm below right nipple on right side of chest.

(ii) Lacerated wound 0.2cm x 0.2cm right side of abdomen 9cm above umbilicus.

(iii) Lacerated wound 0.2cm x 0.2cm exterior aspect of right thigh 5cm above knee joint.

(iv) Lacerated wound 0.2cm x 0.2cm on front of right leg 15cm below right knee joint.

She proved the medical report Ex. B19.

PW6 Dr. Swati Murari examined Nadeem on the same day and found the following injuries:

(i) Lacerated wound 0.2cm x 0.2cm left side of chest below the outer aspect of left clavicle.

(ii) Lacerated wound 0.2cm x 0.2cm left side of abdomen 8 cm from umbilicus 3 O'clock position.

(iii) Lacerated wound 0.2cm x 0.2cm on outer aspect of right wrist.

(iv) Lacerated wound 0.2 cm x 0.2 cm with swelling 6cm x 4cm on back of right hand base of thumb.

(v) Traumatic swelling 4cm x 3cm at the base of right thumb.

She proved the medical report Ex. B21.

PW6 Dr. Swati Murari examined Naseem on the same day and found the following injuries:

(i) Lacerated wound 0.2cm x 0.2cm on the back of hand (right) between the index of and middle finger.

(ii) Lacerated wound 0.2cm x 0.2cm on the middle and interior aspect of right leg.

(iii) Lacerated wound 0.2cm x 0.2cm on the front of left leg 6cm below the knee.

(iv) Abrasion 0.5cm x 0.5cm on the front of right shoulder.

She proved the medical report Ex. B23.

PW6 Dr. Swati Murari examined Gulfam on the same day and found the following injuries:

(i) Lacerated wound 0.2cm x 0.2cm right forehead 1cm above right eyebrow.

(ii) Lacerated wound 0.2cm x 0.2cm outer aspect of right leg 9cm below knee joint.

(iii) Lacerated wound 0.2cm x 0.2cm outer aspect of right leg 4cm below injury no.2.

She proved the medical report Ex. B25.

PW6 Dr. Swati Murari examined Shahnawaz on the same day and found the following injury:

(i) Abrasion 1cm x 0.5cm on inner aspect of right upper arm 13 cm above elbow joint.

She proved the medical report Ex. B26.

PW7 Dr. Yogesh Kumar proved the X-ray reports of PW1 Ashraf Ali Ex.A6 and PW2 Asgari Ex. A7. In fact, based on this report, supplementary reports were given by PW6 Dr. Swati Murari. PW8 Rajesh Kumar is a formal witness, who changed the offence from Section 324 to 325 IPC on the basis of medical report. PW9 Anil Kumar Joshi is the Investigating Officer, who prepared the site plan Ex. A8 and submitted charge sheet Ex. A9. PW10 Kunwar Pal Singh is a formal witness, who proved the chik FIR and GD entries.

PW11 Dr. Sudarshan Prasad Singh medically examined PW4 Riyasat on 15.01.2006 at Community Health Center, Bhagwanpur and found the following injuries:

(i) An incised wound size. 2cm x 0.5cm x bone deep on the head, parital bone just right lateral to median line. Clotting is present. Margins are sharp."

He proved the injury report Ex. A-12

DW1 Arshad Ali proved the FIR of the cross case. The contents have already been mentioned, hereinbefore in this judgment, which need not be reiterated again. He also placed on record, the chik FIR of the cross case.

According to the prosecution, three persons were injured. They are PW1 Ashraf Ali, PW2 Asgari and PW4 Riyasat. There have been injuries on the private respondents and others also. Have they been explained? If not, what would be its effect? Has the prosecution placed the genesis of the case before the Court? If not, its effect? Where is the place of occurrence? Is it free fight or the case of aggressor or defender? While examining this aspect, what is to be seen is, as to whether, prosecution has been able to prove the case beyond reasonable doubt.

FIR in the case was lodged on the basis of the application under Section 156 (3) of the Code filed by the informant PW1 Ashraf Ali. This FIR itself doubts the entire prosecution case. There is no mention of any death in the FIR. Admittedly, Jahangir @ Bhura died in the incident by the gun shot injury. In this case, there is no charge with regard to the death of the Jahangir @ Bhura, who was killed in the incident, but, why PW1 Ashraf Ali did not mention such a very important fact in the FIR? Why it was concealed? Why in the FIR, death of Jahangir @ Bhura was not disclosed and further the circumstances, under which, Jahangir @ Bhura was killed were not stated in the FIR? There is no answer to it from the side of the prosecution.

Not only this, PW1 Ashraf Ali, when examined in the court has not stated in his examination-in-chief that any person was killed in the incident. He maintained silence in his examination-in-chief about the death of Jahangir @ Bhura. Why? The enmity between the parties is admitted. Witnesses have stated about it. In his examination at Page 9 paragraph 2 PW1 Ashraf Ali says that at the time of incident many persons from the Mohalla had gathered, but he expressed ignorance as to how Jahangir @ Bhura was killed. Even he expressed ignorance, as to whether, police took the dead body of Jahangir @ Bhura or not.

On the other hand, statement of PW2 Asgari begins with the intervention of Jahangir @ Bhura, when she says that Mehboob and Maqsood had assaulted her husband PW1 Ashraf Ali. Jahangir @ Bhura intervened and he was fired at by Mehboob and Maqsood. This is in quite contradiction to what PW1 Ashraf Ali has stated. As stated, PW1 Ashraf Ali has not stated about Jahangir @ Bhura. PW3 Kaleem says that while assaulting, Mashroof and Mehboob fired at PW1 Ashraf Ali, but Jahangir came in between and he was killed. PW5 Julfkar has also stated that in the process of intervening, Jahangir was killed. As stated, it is not a case in the FIR or PW1 Ashraf Ali has not stated that Jahangir was killed while he was intervening. This is great contradiction in the statements of the witnesses about the incident. The origin of the incident has been concealed. The death of Jahangir has been concealed in the FIR. The FIR is not inspiring confidence and statement of PW1 Ashraf Ali is also not reliable. There are great contradictions in the statements of PW1 Ashraf Ali, PW2 Asgari, PW3 Kaleem, PW4 Riyasat and PW5 Julfkar. They are not inspiring any confidence.

Presence of injured at the scene of crime has been denied by the prosecution. Injuries on the private respondents have not been explained in the case. In view of the principle of law as laid down in the case of Laxmi Singh (supra), its effect will have to be seen.

On behalf of the private respondents injury reports and supplementary reports have been proved with X-ray reports. PW6 Dr. Swati Murari in her cross examination proved the medical examination reports and supplementary reports of private respondents and their associates. The supplementary reports are based on the X-ray reports.

PW7 Dr. Yogesh Kumar in his cross examination proved X-ray reports of the private respondents. According to him:-

(i) On 15.01.2006, X-ray of Maqsood Ahmad was prepared. In left thigh, left knee and left leg, small sized almost round shaped radio opaque shadow of foreign body was detected.

(ii) In the X-ray of Javed Ahmad, in his left thigh, left knee, right thigh, left hand with wrist, small sized round shaped radio opaque shadow of foreign bodies were detected.

(iii) In the X-ray of Nadeem in the right wrist with right hand, small size round shaped radio opaque shadow of foreign boy was detected.

(iv) In the X-ray of Nissar Ahmad, in the right upper arm, back, left upper arm and buttock, small size, round shaped radio opaque shadow of foreign body was detected.

(v) In the X-ray of Mashroof Ahmad, in the left leg, left hand also small size round shaped radio opaque shadow of foreign body was detected.

(vi) In the X-ray of Mumtiyaz, right thigh and right knee, small size round shaped opaque shadow of foreign body and a fracture was detected.

(vii) In the X-ray of Mehboob Hasan, Iqbal, Tassawar also small size round shape radio opaque shadow of foreign body was detected.

(viii) In the X-ray of Salman in his ring finger fracture was detected.

(ix) In the X-ray of Naseem also round shaped radio opaque shadow of foreign body was detected.

He proved all these reports, which are Ex. B27 to B 37 respectively. As stated, based on these X-ray reports supplementary reports have also been proved by PW6 Dr. Swati Murari.

A bare perusal of the injuries sustained by private respondents and their associates reveal that they are, in fact, many in numbers and grave. There have been fractures. There have been pellets detection, not only on one or two, but to many of the private respondents and their associates.

On behalf of the private respondents, it is argued that, in fact, there is no injury on PW4 Riyasat. According to PW1 Ashraf Ali, his son PW4 Riyasat was also seriously injured. PW4 Riyasat speaks that he was hit by the private respondents and their associates. In Page 2 of his statement PW4 Riyasat says at one stage Hafiz-Ur-Rehman hit at his back by tabal, due to which, he fell down. At page 9 of his statement, in paragraph 2, PW4 Riyasat gives description of the weapon tabal, by which, according to him, he was hit on his head. According to him, it was 5 inches long. He was hit from a close distance of 3 feet. At one stage, at Page 10 PW4 Riyasat says that his wound was stitched at the hospital.

PW11 Dr. Sudarshan Prasad Singh prepared the medical examination report of PW4 Riyasat. Only one injury was detected on him, which is as hereunder:-

"Lacerated wound in the size .2 x .5 cm bone deep right side of head on the parital bone blood was found margin sharp."

This injury falsifies the statement of PW4 Riyasat that he was hit by 5 inch long sharp edged weapon on his head. Size of the injury on his head, which was detected, was .2 cm x .5 cm. It is almost a point. He says that it was stitched. PW11 Dr. Sudarshan Prasad Singh has not stated about it. The incident occurred at Roorkee, why did PW4 Riyasat went to Bhagwanpur to get medically examined when PW1 Ashraf Ali and PW2 Asgari, who are his mother and father respectively, had gone to Roorkee Hospital. It doubts the prosecution case and also doubts the statement of PW4 Riyasat.

There have been significant and grave injuries on the private respondents and their associates. As stated, the prosecution, since beginning, tried to conceal the genesis of the incident. The FIR did not disclose about the death of Jahangir @ Bhura. PW1 Ashraf Ali, informant did not speak in his examination-in-chief about the death of Jahangir @ Bhura. Prosecution has not given any explanation as to how did the private respondents and their associates receive such serious injuries. It doubts the prosecution case.

The things go beyond that. PW1 Ashraf Ali was asked, as to whether he has seen Mehboob, Nisar, Javed, Nadeem, Salman, Parvez, Tasawwar, Iqbal, Mumtaz, Naseem, Gulfaam and Sahnawaz at the time of incident. To it, PW1 Ashraf Ali says that he did not see them. All of them are injured in the incident. Their injury reports have been proved in the court by PW6 Dr. Swati Murari.

PW3 Kaleem was also asked about the injuries of Mehboob, Nisar, Javed, Nadeem, Salman, Parvez, Tasawwar, Iqbal, Mumtaz, Naseem, Gulfaam and Sahnawaz, to which, he says that he has not seen any injury on them. Although at page 6 of his statement at the bottom, he says he saw the injury at the hand of Mehboob. PW5 Julfkar has also stated that he did not see any injury on Nisar, Nadeem, Javed, Salman, Parvez, Tasawwar, Iqbal, Mumtaz, Naseem, Gulfam and Sahnawaz at the time of incident. They all are injured.

Prosecution has not explained the injuries sustained by private respondents and their associates. Not only this, as stated hereinbefore, the presence of the private respondents at the place of incident has been denied by PW1 Ashraf Ali. It further doubts the prosecution case.

Arguments have been advanced with regard to the place of incident. According to learned counsel for the informant, the incident occurred in the shop of the informant. On the other hand, learned counsel for the private respondents would submit that, in fact, the incident did not occur in the shop of the informant, but in a gali between the house of Mehfooz and Inaam. Statements of witnesses have been referred to by learned counsel for the private respondents and it is argued that it supports the version of the private respondents that they were attacked by Liyakat and others.

PW9 Anil Kumar Joshi is the Investigating Officer. He proved the site plan Ex. A8, in which, the place of incident has been shown at the tea shop of the informant. But when cross examined, PW1 Ashraf Ali, in Page 11 of his statement has stated that the fight occurred in between the houses of Inaam and Mehfooz Ali (7th line). This statement of PW1 Ashraf Ali does not support the prosecution case that the incident occurred in the shop of the informant. PW4 Riyasat was also questioned about it. According to him, Jahangir died on the path way between the houses of Mehfooz and Inaam.

Jahangir's death in the incident is admitted. The statement of PW1 Ashraf Ali also does not support the prosecution case, insofar as, the place of incident is concerned. In case the fight occurred in the gali, as stated by PW1 Ashraf Ali in his cross examination and the death of Jahangir @ Bhura also occurred in the same gali, as told by PW4 Riyasat the story that PW1 Ashraf Ali was beaten in his shop becomes doubtful.

Arguments have been advanced that FIR is delayed. Undoubtedly, it is delayed. The incident occurred on 15.01.2006 and application in the court was submitted on 23.01.2006. Although, it is stated in the application that PW1 Ashraf Ali gave a report to police on 17.01.2006 and gave an application to Senior Superintendent of Police on 19.01.2006, but none of these documents have been proved. In his examination PW1 Ashraf Ali has stated about it. But, in his cross examination PW1 Ashraf Ali states at Page 4 at the bottom paragraph that he did not go to police station to lodge the report and, in fact, he did not write any application to SSP. According to him, he had directed his nephew to give an application to SSP and he had only signed it, in the hospital. The nephew is not examined, who was he? When was a report given? In the FIR and in the statement, PW1 Ashraf Ali says that he went to the Police Station on 17.01.2006 to lodge a report. Whereas, in his cross examination, he states that he did not go to the police station for lodging the FIR. These all makes the explanation for delay unbelievable. In the instant case, FIR is delayed. There is no explanation to it and whatever explanation is given is false. It also doubts the prosecution case.

In view of the foregoing discussion, this Court is of the view that the prosecution has not been able to prove the charges under Sections 147, 148, 323/149, 324/149, 325, 504/149, 506/149 and 307/149 IPC against the private respondents. Learned Court below did not commit any error in acquitting the private respondents. Accordingly the Court is of the view that the appeals deserve to be dismissed.

The criminal appeal preferred by the appellant Ashraf Ali and the appeal preferred by the State are dismissed.

Let a copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.