# Mobin @ Nanha & Ors (In Jail) v. State of U.P

- **Citation:** (2021) 10 ILRA 1071
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-07
- **Case number:** Criminal Appeal No. 3422 of 2007
- **Bench:** Anjani Kumar Mishra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mobin-nanha-ors-in-jail-v-state-of-u-p-46203
- **Pages:** 16

## Headnote

A. Criminal Law - Evidence Act, 1872 -
Section
154
-
Hostile
witnesses
-
Testimony of - It is settled law that the
testimony of the hostile witnesses need
not to be discarded in toto and that
portion of the testimony which supports
the prosecution case can be taken for
consideration - portion of the crossexamination in which the witness turn
hostile,
if
can
be
separated
from
remaining statements, are liable to be
discarded but previous statements which
are trustworthy can be safely relied upon
(Para 13 )

B. Criminal Law - Evidence Act,1872 -
Interested witnesses - Testimony of -
There is no rule of law that testimony of a
interested or related witness should be
discarded out rightly - What is required is
cautious scrutiny of the oral testimony of
such a witness (Para 13 )

C. Criminal Law - Evidence Act,1872 -
Section 154
- Non- Examination of
material witness - Non-examination of a
material witness is not a mathematical
formula for discarding the weight of the
testimony available on record - Court is
required
first
to
assess
the
trustworthiness of the evidence available
on record and if the court finds the
evidence adduced worthy of being relied
on, then the testimony has to be accepted
and acted upon though there may be
other witnesses available who could also
have
been
examined
but
were
not
examined - quality of evidence and not
quantity which matters - prosecution is
not under any obligation to multiply the
evidence - non production of material
witness or any person said to be present
at
the
time
of
occurrence,
by
the
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution, does not adversely affect the
prosecution case (Para 15)

D. Criminal Trial - Indian Penal Code -
Unlawful Assembly, Section 149 - Section
149 makes every member of an unlawful
assembly at the time of committing of the
offence guilty of that offence - It is a well
established principle of law that when the
conviction is recorded with the aid of
Section 149, relevant question to be
examined by the court is whether the
accused was a member of unlawful
assembly and not whether he actually
took active part in the crime or not - this
defence is not available to the accused
that it is not established as to which or
any of the five accused assaulted or fired -
Under Section 149 I.P.C. all accused are
equally liable (Para 17)

Accused persons riddled deceased with bullets
while shouting that they have taken the revenge
of the murder of their relative - Deceased died
on the spot - it stands proved that four empty
cartridge of 315 bore pistol, one live cartridge,
one
bullet
taken
in
possession
by
the
Investigating Officer - 3 bullets recovered from
the body of the deceased in post-mortem - It
clearly establishes several rounds of firing at the
time of occurrence - Evidence produced by the
prosecution is reliable and trustworthy - all
accused in a pre-planned manner and in
furtherance of the common object came from
behind holding fire arm in their hands and
opened fire on deceased and his companions -
accused persons chased deceased and fired on
him
inside
the
Madarsa
and
he
died
instantaneously - all the ingredients of Section
149 I.P.C. are fulfilled - number of accused
persons are five and they made an unlawful
assembly armed with pistols and in prosecution
of the common object of such assembly they
have committed the crime - PW-1 & PW-3
although have turned hostile at a later stage but
their previous statements fully corroborates the
prosecution version and is true and reliable -
Part of the statement in which they have turned
hostile is made under a deal and not true and so
cannot be believed - It is separable from the
earlier statements - oral evidence is fully
corroborated by the medical evidence - guilt of
the accused persons is fully proved - findings
given by Trial Court are just and proper -
conviction recorded upheld (Para 20)

Dismissed. (E-5)

List of Cases cited:-

## Text

_Characters 0–39,934 of 54,418. This is a partial read: ask again with offset=39934 for what follows._

10 All. Mobin @ Nanha & Ors. Vs. State of U.P.
1071
impugned punishment order has been
passed by the disciplinary authority without
issuing any show cause notice on the
disagreement from the findings of inquiry
officer, therefore, such punishment order is
not sustainable in the eyes of law on that
score. Hence, I do not find any good
ground to remand back the issue to the
inquiry officer or disciplinary authority to
pass appropriate orders, more particularly,
in view of the fact that during the pendency
of the writ petition the petitioner has retired
from service.

21. Accordingly the writ petition is
allowed.

22. The impugned order dated 26/299-2015 passed by the opposite party no. 4 is
hereby quashed.

23. Consequences to follow.

24. No order as to costs.
----------
(2021)10ILR A1071
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.10.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 3422 of 2007

Mobin @ Nanha & Ors....Appellants(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri J.B. Singh, Sri Ali Hasan, Alpana
Dwivedi, Sri J.B. Singh, Sri Manish Tiwary,
Sri Noor Mohammad, Sri Rajiv Kumar, Sri
Vineet Kumar Singh, Sri Yogesh Srivastava,
Sri Anil Kumar Yadav, Sri M.N. Pathak, Sri
Balram Singh, Sri Vidya Kant Tripathi, Sri
Ashwini Kumar Awasthi, Sri H.N. Singh, Sri
Mohd. Masood Raja, Sri Manoj Singh, Sri
Vidyanand Tripathi, Sri H.M. Singh

Counsel for the Respondent:
A.G.A., Sri N.I. Zafari

A. Criminal Law - Evidence Act, 1872 -
Section
154
-
Hostile
witnesses
-
Testimony of - It is settled law that the
testimony of the hostile witnesses need
not to be discarded in toto and that
portion of the testimony which supports
the prosecution case can be taken for
consideration - portion of the crossexamination in which the witness turn
hostile,
if
can
be
separated
from
remaining statements, are liable to be
discarded but previous statements which
are trustworthy can be safely relied upon
(Para 13 )

B. Criminal Law - Evidence Act,1872 -
Interested witnesses - Testimony of -
There is no rule of law that testimony of a
interested or related witness should be
discarded out rightly - What is required is
cautious scrutiny of the oral testimony of
such a witness (Para 13 )

C. Criminal Law - Evidence Act,1872 -
Section 154
- Non- Examination of
material witness - Non-examination of a
material witness is not a mathematical
formula for discarding the weight of the
testimony available on record - Court is
required
first
to
assess
the
trustworthiness of the evidence available
on record and if the court finds the
evidence adduced worthy of being relied
on, then the testimony has to be accepted
and acted upon though there may be
other witnesses available who could also
have
been
examined
but
were
not
examined - quality of evidence and not
quantity which matters - prosecution is
not under any obligation to multiply the
evidence - non production of material
witness or any person said to be present
at
the
time
of
occurrence,
by
the
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution, does not adversely affect the
prosecution case (Para 15)

D. Criminal Trial - Indian Penal Code -
Unlawful Assembly, Section 149 - Section
149 makes every member of an unlawful
assembly at the time of committing of the
offence guilty of that offence - It is a well
established principle of law that when the
conviction is recorded with the aid of
Section 149, relevant question to be
examined by the court is whether the
accused was a member of unlawful
assembly and not whether he actually
took active part in the crime or not - this
defence is not available to the accused
that it is not established as to which or
any of the five accused assaulted or fired -
Under Section 149 I.P.C. all accused are
equally liable (Para 17)

Accused persons riddled deceased with bullets
while shouting that they have taken the revenge
of the murder of their relative - Deceased died
on the spot - it stands proved that four empty
cartridge of 315 bore pistol, one live cartridge,
one
bullet
taken
in
possession
by
the
Investigating Officer - 3 bullets recovered from
the body of the deceased in post-mortem - It
clearly establishes several rounds of firing at the
time of occurrence - Evidence produced by the
prosecution is reliable and trustworthy - all
accused in a pre-planned manner and in
furtherance of the common object came from
behind holding fire arm in their hands and
opened fire on deceased and his companions -
accused persons chased deceased and fired on
him
inside
the
Madarsa
and
he
died
instantaneously - all the ingredients of Section
149 I.P.C. are fulfilled - number of accused
persons are five and they made an unlawful
assembly armed with pistols and in prosecution
of the common object of such assembly they
have committed the crime - PW-1 & PW-3
although have turned hostile at a later stage but
their previous statements fully corroborates the
prosecution version and is true and reliable -
Part of the statement in which they have turned
hostile is made under a deal and not true and so
cannot be believed - It is separable from the
earlier statements - oral evidence is fully
corroborated by the medical evidence - guilt of
the accused persons is fully proved - findings
given by Trial Court are just and proper -
conviction recorded upheld (Para 20)

Dismissed. (E-5)

List of Cases cited:-

1. Koli Lakhmanbhai Chanabhai Vs St. of Guj.
(1999) 8 SCC 624

2. Bhagwan Singh (1976) 1 SCC 389

3. Syed Akbar Vs St. of Karn. AIR 1979 SC 1848

4. Deny Bora Vs St.of Ass. (2014) 14 SCC 22

5. Jalpat Rai & ors. Vs St. of Har. (2011) 14 SCC
208

6. Lalji AIR 1989 SC 754

7. Masalti AIR 1965 SC 202

8. State Vs Krishan Chand (2004) 7 SCC 629

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard Sri Noor Mohammad,
learned counsel for the appellants no. 2 and
3 and Sri H.M. Singh, learned Senior
Advocate for the appellants no. 4 and 5
assisted
by
Sri
Vidyanand
Tripathi,
Advocate
and
Sri
Ashwani
Prakash
Tripathi, learned A.G.A. for the State and
perused the record.

2. This criminal appeal has been filed
against the common judgment and order
dated 04.05.2007 passed by the Additional
Session Judge, Court No.1, District-
Meerut in S.T. Nos. 545 of 2004 (State vs.
Mobin @ Nanha, Hasrat, Anees, Kamil,
Istakbaal) Case Crime No. 83 of 2004,
under Sections 148, 149, 302/149, 307
I.P.C., S.T. No.588 of 2004 (State vs.
Mobin @ Nanha) Case Crime No.103 of
2004, under Sections 25 of Arms Act, S.T.
10 All. Mobin @ Nanha & Ors. Vs. State of U.P.
1073
No.589 of 2004 (State vs. Kamil) Case
Crime No.104 of 2004, under Section 25 of
Arms Act, S.T. No.568 of 2004 (State vs.
Anees) Case Crime No.91 of 2004, under
Sections 25 of Arms Act and S.T. No.669
of 2004 (State vs. Istakbaal) Case Crime
No.90 of 2004, under Section 25 of Arms
Act, Police Station- Bhawanpur, District-
Meerut, convicting the accused-appellants
(Mobin @ Nanha, Hasrat, Anees, Kamil,
Istakbaal) under Section 147, 148, 307, 302
read with Section 149 I.P.C. and sentencing
each of them to undergo one year
imprisonment under Section 147 I.P.C. to
undergo two years imprisonment, under
Section 148 I.P.C. to undergo seven years
imprisonment under Section 307 I.P.C. to
undergo life imprisonment under Section
302 read with Section 149 I.P.C.. All the
sentences to run concurrently.

3. In brief, the prosecution case is that
on 19.04.2004 at about 9:20 a.m. Shafayat
(informant) his brother Shahadat along with
Kamil, Nanhi the sister of Kamil, and
Matloob were going to the Court on their
date and when they were standing near
Madarsa on the Rasta of Naglasahu waiting
for the bus to go Meerut, Mobin, Hasrat,
Anees, Kamil, and Istakbaal holding pistols
in their hands came from behind the
Madarsa and started firing on them. To
save their lives, they ran here and there.
Shahadat the brother of the informant and
Kamil ran inside the Madarsa, chasing
them all the five accused entered into
Madarsa and riddled Shahadat the brother
of the informant with bullets. The accused
threatened them with death while firing
shots and said that today they have taken
the revenge of the murder of Nafees.
Shahadat died on the spot. Due to firing by
the accused the road was blocked and the
passersby ran away in the fields to save
their lives.

The report of the above incident
was registered on 19.04.2004 at 10:30 a.m.
on the application of Shafayat as Crime No.
83 of 2004 under Sections 147, 148, 149,
307, 302, 506 I.P.C. and 7 Criminal Law
Amendment
Act
at
Police
Station-
Bhawanpur. The investigation of the case
was taken over by S.O. Bhawanpur, C.P.
Katheriya. He recorded the statements of
the complainant and the eyewitnesses,
visited the spot, and prepared the site plan.
From the place of occurrence, 4 empty
cartridge, 1 bullet, and 1 live cartridge were
also taken into possession, and a memo was
prepared. He also collected bloodstained
and plain soil from the spot and sealed it in
separate containers and prepared a memo.
The inquest proceeding of the dead body of
deceased Shahadat was conducted by S.I.
Ram Sevak under the directions of
investigating office, related papers were
also prepared and the body was sealed and
sent
for
postmortem
examination.
Investigating Officer further recorded the
statements of other witnesses and after
completion of the investigation submitted a
charge-sheet against all 5 accused Mobin
@ Nanha, Hasrat, Anees, Kamil and
Istakbaal under Sections 147, 148, 149,
307, 302, 506 I.P.C., and 7 Criminal Law
Amendment Act.

During the course of investigation
on 04.05.2004, a police party led by S.O.
C.P. Katheriya at 7:30 p.m. arrested
accused Istakbaal and Anees and recovered
one country made pistol from each, alleged
to be used in the crime. In the barrel of
each country made pistols one live
cartridge was also found. A recovery memo
was prepared and separate Case Crime No.
90 of 2004 and 91 of 2004 under Section
25 Arms Act were registered against
accused Istakbaal and Anees. Further on
24.05.2005,
in
police
custody
on
interrogation, the accused Mobin and
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
Kamil disclosed the facts of concealing
country made pistols used in the crime and
at their instance two country made pistols
with one empty cartridge in each of its
barrel were recovered under the heap of
bricks near the tubewell of Sattar. The
recovered articles were sealed and a memo
was prepared and separate Case Crime No.
103 of 2004 and 104 of 2004 under Section
25 Arms Act were registered against Mobin
@ Nanhe and Kamil. The investigation of
the aforesaid cases under Section 25 Arms
Act were conducted by S.I. Surendra Singh
and S.I. R.S. Yadava/ H.C.P. Suresh Gupta
respectively who after taking necessary
steps and completing all the formalities
submitted separate charge sheets against
each four accused under Section 25 Arms
Act.

4. The learned trial court framed
charges against accused Mobin @ Nanhe,
Hasrat, Anees, Kamil, and Istakbaal
under Sections 148, 302 read with 149
and 307 I.P.C. and separate charges under
Section 25 Arms Act against accused
Mobin @ Nanhe, Kamil, Anees, and
Istakbaal. All accused pleaded not guilty
and claimed for trial. The prosecution has
examined 11 witnesses who have proved
33 documents Ex.Ka-1 to Ka 33 and 13
material exhibits. The statements of the
accused were recorded under Section 313
Cr.P.C. in which they have denied the
prosecution case and have further stated
that they are residents of the same village
but they are not of the same family and
Kamil is not their friend. In the murder of
Nafees, Matloob, Shahadat, Kamil, and
her sister Nanhi are accused. Regarding
F.I.R. it has been said that it has been
lodged after the return of S.O. from the
spot much later. It has been further stated
that all the papers have been fabricated at
the police station itself, nothing was
recovered from the spot, no empty
cartridges were recovered from near the
dead body and nothing was recovered
from the possession of the accused or at
their instance. Witnesses PW-1 to PW-3
are accused in the murder of Nafees and
they have deposed due to enmity and
have falsely implicated the accused
persons to save themselves from the
murder case of Nafees. One defence
witness Afsar Ali DW-1 has been
produced. No documentary evidence has
been produced. The learned Trial Court
by the impugned common judgment has
convicted accused Mobin @ Nanhe,
Hasrat, Anees, Kamil, and Istakbaal for
offence under Sections 147, 148, 307
read with section 149 and 302 read with
section 149 while acquitted accused
Mobin @ Nanhe, Kamil, Anees, and
Istakbaal from charges under Section 25
Arms Act.

5. No appeal has been preferred
against the acquittal of accused Mobin @
Nanhe, Kamil, Anees, and Istakbaal from
charges under Section 25 Arms Act. So the
point of consideration in this appeal is only
the convictions of the accused persons
under Sections 147, 148, 307, 302/149
I.P.C.

6. The post-mortem of the deceased
Sadahat was conducted on 19.04.2004 at
4:30 p.m. by Dr. J.P. Sharma who has
appeared as PW-5 and proved the postmortem report as Ex.Ka-4.

According to post-mortem, the
age of the deceased was about 22 years,
average build body. No decomposition.
Rigor mortis was present all over the the
body. Eyes were closed.

Following ante-mortem injuries
were present:-
10 All. Mobin @ Nanha & Ors. Vs. State of U.P.
1075

(i) Lacerated wound of 1 cm x 1.5
cm x scalp deep, left and back of head, 8
cm from left ear.

(ii) Gun shot wound of entry 1.5
cm x 1 cm x bone deep front of neck above
sternal notch, trachea and esophagus
lacerated.

(iii) Gun shot wound of entry 0.9
cm x 0.9 cm x chest cavity deep on front
side of chest, 8 cm from right nipple at
about 1:30 O'clock position. Margins
inverted, one bullet recovered from chest
cavity.

(iv) Gun shot wound of entry 0.9
cm x 0.8 cm x chest cavity deep, on front of
left side of chest blackening 4 cm x 4 cm
around, margins inverted, 12 cm below the
left nipple at about 6 "O" clock position.
One bullet recovered from left side of chest
from chest wall, left lung lacerated.

(v) Gun shot wound 4 cm x 3 cm x
muscle deep on posterior part of right hand
just below right wrist, blackening present 3
cm x 2 cm on outer side of wound.

In internal examination both
lungs,
trachea
and
esophagus
were
lacerated, liver and kidney were pale.

Cause of death was shock and
hemorrhage as a result of ante-mortem
injuries and duration of death was within
half day.

Dr.
J.P.
Sharma,
PW-5
in
examination-in-chief has also stated that
during post-mortem examination three
bullets were recovered which were kept in
sealed cover and handed over to the police
constable. The doctor has further stated that
the death of the deceased may occur on
19.04.2004 at 09:30 a.m. and ante-mortem
injuries may come from fire arms.

7. The prosecution has produced three
eyewitnesses.
Kamil
PW-1
in
his
examination-in-chief
supporting
the
prosecution version has said that accused
Anees, Hasrat, Kamil, Istakbaal, Mobin @
Nanhe are of his village and belong to one
family while Kamil is their friend. Accused
bear enmity with him and deceased
Shahadat. Nafees, the son of accused
Hasrat was murdered. In that case of
murder besides Matloob and Shahadat, he
and his sister were also made accused. The
incident is of 19.04.2004. They all five, the
witness along with his sister Nanhi,
Shahadat, Matloob, and Shafayat were
waiting for the bus at the culvert (puliya)
near Madarsa on Parichitgarh Road to go
Meerut on the date of the murder case of
Nafees. It was 9:20 a.m. The accused
holding pistols in their hands came through
the field behind the Madarsa and started
firing from the back. They narrowly
escaped the firing and ran away to save
their lives. Kamil and Shahadat ran inside
the Madarsa. The accused entered into the
Madarsa to kill them. Shahadat entered into
the room of Molwi Sahab. The accused
shot him dead at the door of the room while
he saved his life by climbing the stairs. The
accused waving their pistols abusing and
saying that they have taken the revenge of
Nafees, ran away. This incident was also
seen by Molwi Sahab, the students,
Matloob and Shafayat, and others.

8. Shafayat PW-2 is also the
informant and brother of the deceased
Shahadat. The witness has reiterated the
averments made in the F.I.R. and in
addition has also said that Shahadat was his
real brother. Accused Mobin @ Nanhe,
Hasrat, Anees, Kamil, and Istakbaal are of
his village. Except Kamil, the rest are of
the same family. Kamil is their friend.
Nafees
son
of
accused
Hasrat
was
murdered and in that case, his brother
Shahadat was named as an accused and
because of this the accused bear enmity
with Shahadat. The witness has also said
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
that when he returned he saw his brother
lying dead. Accused were firing with
pistols on his brother and he has seen this
from the window of Madarsa which open
towards the main road. Kamil saved
himself while climbing the stairs. The
accused while leaving said that today they
have taken revenge of the murder of
Nafees. The witness has further said that he
got the report of this incident written by
Mustafa who wrote it on his dictation, read
over to him and then he signed it. The
witness has proved it as exhibit Ka 1. The
witness has further stated that he gave the
report at the police station and got the case
registered.

9. Matloob PW-3 in his examination-inchief has also supported the prosecution case
and said that the accused bear enmity with
them. They were facing trial for the murder of
Nafees son of accused Hasrat, Shahadat, Kamil,
Nanhi, and he himself are accused in that case.
On the day of incident, the date was fixed in
that case for which he, Safayat, Shahadat,
Kamil, and Nanhi were going to Meerut. The
incident is of 14-15 months earlier and it was 99:15 a.m. They were standing near culvert
(puliya) waiting for the bus. After some time
Mobin, Anees, Istakbaal, Kamil, and Hasrat
came from behind the Madarsa and fired shots
at them but they escaped it. Kamil and Shahadat
ran towards Madarsa, while he, Safayat, and
Nanhi ran towards the field. All five accused
chasing Shahadat and Kamil entered into
Madarsa and fired at Shahadat causing his death
on the spot. Kamil saved himself by climbing
on the roof. Shahadat was shot at the door of the
room of Molwi Sahab. He has seen the
occurrence Shafayat and Kamil also saw it. The
accused fired shots at them with the intention to
kill them.

10. Kamil PW-1 was produced before
the trial court on 24.01.2005 and on that
date his examination-in-chief was recorded
and the opportunity of cross-examination
was closed by a detailed order as none
appeared for the accused to cross-examine
the witness. Later on, on the application of
defence, the witness was recalled for crossexamination and his part cross-examination
was recorded on 7.11.2005 and further on
17.11.2005,
and
in
both
the
crossexamination the witness stood by his earlier
statement and supported the prosecution
case but when on 24.02.2006 the witness
appeared
again
for
further
crossexamination he retracted from his earlier
statement and said that on the day of the
incident only three persons proceeded from
the village, Matloob and Shahadat were
with him. Safayat and Nanhi were not with
him. He has further said that when he was
standing on the culvert (puliya) the
assailants came from behind, their faces
were covered with clothes. When shots
were fired he ran towards backside. He
didn't know in which direction Shahadat
and Matloob escaped. He has not seen the
shot being fired. He has escaped. The
witness has further said that he had seen
Shahadat entering into the Madarsa because
he and Shahadat both entered into the
Madarsa together. He has not seen the
accused entering into the Madarsa, he has
also not seen anyone firing at Shahadat. He
was much ahead of Shahadat and climbing
the stairs jumped in the backside. The
witness has also disowned his statement
recorded under Section 161 Cr.P.C.. As the
witness
retracted
from
his
earlier
statements, on the prayer of the prosecution
the witness was declared hostile and the
prosecution got opportunity of crossexamination. In this cross-examination, the
witness has admitted that on 24.01.2005 he
has given the statement that accused Kamil,
Istakbaal, Mobin, etc. are of their village
and they bear enmity with him and
10 All. Mobin @ Nanha & Ors. Vs. State of U.P.
1077
Shahadat. In the murder case of Nafees
besides he and his sister Nanhi, Matloob
and Shahadat are accused and that trial is
still going on against them. It was date in
the murder case of Nafees on the day of the
incident. He has earlier given the statement
that he and Shahadat ran into the Madarsa
and the accused followed them inside the
Madarsa to kill them. The witness has
shown ignorance about his earlier statement
that the accused shot dead Shahadat at the
door of the room of Molwi Sahab and
further that the incident was seen by Molwi
Sahab, the students, Matloob, and Shafayat.
He has also said that he is not aware of
what he has said in his earlier statements
and if those statements are true or false?
The witness has denied that he has settled
the matter with the accused. The witness
has admitted that in the murder case of
Nafees, Anees, Hasrat and their family
members are witnesses against him, but has
denied the prosecution suggestion that due
to settlement with the accused he has given
false statement today. The position of
Matloob PW-3 is almost similar. His
examination-in-chief and partial crossexamination was recorded on 15.07.2005
but it could not be completed on that date
and deferred on oral request of defence
counsel. His further cross-examination was
recorded on 20.03.2006 in which he
retracted from his earlier statement and said
that he has not seen the accused Mobin
alias Nanhe, Hasrat, Anees, Kamil, and
Istakbaal firing at Shahadat. He has also
said that on the day of the incident 3
persons, he himself, Shahadat, and Kamil
proceeded from the village and Shafayat
was not with them. When assiliants were
firing their faces were covered with clothes
and he couldn't identify them, the accused
persons present in the court were not
involved in the firing or killing. He has also
said that the statement which he gave on
15.07.2005 was given under the pressure
and intimidation of the police. This witness
has also disowned his statement under
Section 161 Cr.P.C. and further said that
seeing the weapons he ran away from the
spot and has not seen anyone entering into
the Madarsa. As the witness has not
supported the prosecution version, the
prosecution got him declared hostile. In
cross-examination, by the prosecution, the
witness has admitted that Nafees, the son of
accused Hasrat was murdered and the case
of that murder is still pending against him,
Shahadat (deceased), Nanhi, and Kamil and
on the day of the incident, the date was
fixed in that murder case. Regarding his
previous statement, he has said that he has
given the earlier statement under the fear of
police. The police have threatened him in
the village. He has further said that he has
not made any complaint in court about
police intimidation because the policemen
have said that if he made any complaint in
court he will be falsely implicated in other
case. He has further said that he has not
made any complaint in this respect to any
police officer or court or any other
authority. He has further said that his
earlier statement is not true while today's
statement is true and the whole earlier
statement was under police duress, and now
the fear of the police has faded and he has
come to depose true facts. The witness has
denied that any settlement has taken place.
He has shown ignorance about the fact that
Dafadar, Anees, and Hasrat, etc. are
witnesses in the murder case of Nafees.
The witness has denied the suggestion that
he has retracted from his earlier statement
under the pressure of the accused.

11. The prosecution case stands fully
corroborated with the oral testimony of
PW-2 Shafayat. It also got corroboration
from the examination-in-chief and partial
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
cross-examination of both eye witnesses
Kamil PW-1 and Matloob PW-3. The
medical evidence also corroborates the
aforesaid oral evidence. According to
medical evidence, deceased Shahadat has
suffered four fire arm injuries. Three of
them are on the chest and neck while one is
on the right hand. He has also suffered one
lacerated wound on left side on his head. 3
bullets were also recovered from the body
of the deceased, during the post-mortem
examination. Dr. J.P. Sharma PW-5 has
corroborated that death of the deceased has
occurred due to ante-mortem fire arm
injuries and death may have occurred on
19.04.2004 at 09:30 a.m.. So date and time,
manner of assault and weapons used, got
full
corroboration
from
the
medical
evidence on record.

12. It is also pertinent to mention that
the oral statement of Kamil PW-1 started
on 24.01.2005 and finally concluded on
24.02.2006, in a span of one year. In
between his partial cross-examination were
recorded on 07.11.2005 and 17.11.2005
and till then he stood by his statement
supporting
the
prosecution
version.
Likewise, the examination of Matloob PW3 started on 15.07.2005 and on this date his
examination-in-chief and partial cross-
examination was recorded in which he fully
supported
the
prosecution
version,
thereafter
his
cross-examination
was
recorded on 20.03.2006 more than 8
months after in which he turned hostile.
The order sheet also reveals that just from
starting
of
recording
statement
of
prosecution witnesses the defence tried its
best to keep the case lingering and frequent
adjournments were moved by the defence
when witnesses appeared in the Court for
recording their statements and because of
this, such a long period have elapsed
between commencig of recording of
statement and its completion. It also
appears that defence was trying to won
over
the
witnesses
and
ultimately
succeeded. Defence has produced one
witness namely Afsar Ali as DW-1. This
witness has admitted the facts of enmity
between the parties and village party bandi
and has also said that a Panchayat of 8
villages was held with regard to murder of
Shahadat and Nafees and he was present in
it. In this Panchayat, the case of Nafees and
Shahadat were settled and it was decided
that both the parties will get their cases
dismissed. Shafayat was also present in
Panchayat and accepted the decision of
Panchayat and on this basis the murder case
of Nafees was decided from the Court. This
witness in his cross-examination has
admitted that the case of Nafees's murder
was proceeding against Nanhi, Shahadat,
Matloob and Kamil. On the date of murder
they were going on their date. He further
said that it is true that after Panchayat,
Matloob and Kamil withdrawn from the
evidence. He has further said that he knows
that Hazi Julfkar of the village has suffered
gun shot injuries in which Mobin and
Kamil are accused, that case was also
settled and Hazi Julfkar gave statement in
it. The witness has shown ignorance about
the fact that the accused have settled their
matter with Matloob and Kamil and
because of this these witnesses have turned
hostile.
Witness
has
not
specifically
contradicted the aforesaid suggestion of the
prosecution. So from the evidence on
record, it is clear that the statement of
cross-examination of Kamil PW-1 recorded
on 24.02.2006 and Matloob PW-3 recorded
on 20.03.2006 are a result of settlement of
the matter between the parties. It is also
clear from the evidence on record that
witness Kamil PW-1 and Matloob PW-3
are the accused in the murder case of
Nafees who is blood relation of accused
10 All. Mobin @ Nanha & Ors. Vs. State of U.P.
1079
persons, so they have struck a deal with the
accused and under the said deal they have
turned hostile just to save themselves from
the conviction in the case of Nafees's
murder. In these circumstances, it is fully
established that the portion of their
statement in cross-examination in which
they turned hostile are not true and it has
been made under the influence/pressure and
deal with the accused and not from their
own free will. The previous statement of
both the witnesses are true and out of their
free will. The portion of the crossexamination in which these witnesses have
turned hostile can be separated from
remaining statements and liable to be
discarded. The previous statements are
trustworthy and can be safely relied upon.

13.
Learned
counsel
for
the
appellants contended that out of three eye
witnesses produced by the prosecution
Kamil PW-1 and Matloob PW-3 have
turned
hostile.
There
remains
sole
testimony of Shafayat PW-2 who is real
brother of the deceased so related and
interested witness. His presence at the
time of occurrence is doubtful as there is
no good reason to accompany the
deceased who was going to Meerut to
attend the court. He has stated that he was
also going to Meerut to fetch Khal
Chunni which is highly improbable
because these materials are available in
the local market and even in the village
itself, so it cannot be believed that a
person will go to Meerut for the same
purpose.
Learned
counsel
for
the
appellants also contended that from the
evidence on record pre-existing enmity
between the complainant and accused are
established and that may be the motive
for false implication. In such a situation
the sole testimony of Shafayat PW-2 who
is also inimical cannot be relied. He has
further contended that Shafayat PW-2 in
his statement has stated that he has seen
the accused firing at his brother inside the
Madarsa from the window which open
towards the road but there is no such
window and this statement of the witness
is wholly untrue and cannot be believed.

Learned A.G.A. submitted that
the oral statement of Shafayat PW-2 is
consistent. Kamil PW-1 and Matloob
PW-3 have turned hostile at a later stage
under the influence of accused. Preexisting enmity proves the motive of the
incident. It is specific in the F.I.R. as well
as in the oral statement that after the
execution of the incident the accused said
that today they have taken revenge of the
murder of Nafees. So testimony of
Shafayat cannot be disbelieved merely
because he is real brother of deceased or
inimical.

The arguments of learned counsel
for the appellants are misconceived and
have no force. It is not a case based on
evidence of a solitary witness. As discussed
above, the oral testimony of Kamil PW-1
and Matloob PW-3 cannot be wholly
discarded on the ground that they turned
hostile at a later stage. It is settled law that
the testimony of the hostile witnesses need
not to be discarded in toto and that portion
of the testimony which supports the
prosecution
case
can
be
taken
for
consideration.

In
Koli
Lakhmanbhai
Chanabhai Vs. State of Gujarat (1999) 8
SCC 624 Hon'ble Supreme Court has held
that the testimony of a hostile witness is
useful to the extent to which its supports
the prosecution case.

In Bhagwan Singh (1976) 1
SCC 389 the Hon'ble Apex Court has held
that when witness declared hostile and
cross-examined with the permission of the
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
Court, his evidence remains admissible and
there is no legal bar to have a conviction
upon his testimony, if corroborated by
other reliable evidence.

In the case of Syed Akbar Vs.
State of Karnataka reported in AIR 1979
SC 1848 the Hon'ble Supreme Court has
expressed the view that if some portion of
the statement of the hostile witness inspires
confidence, it can be relied upon. He
cannot be thrown out as wholly unreliable.

Applying
the
aforesaid
preposition of law on the facts, it is clear
that the previous statement of Kamil PW-1
and Matloob PW-3 (examination-in-chief
and partial examination) is consistent.
There
is
no
major
discrepancy
or
contradiction in it and it fully corroborates
the medical evidence and F.I.R. version. So
this part of statement of the two witnesses
is reliable and statement of PW-2 Shafayat
got corroboration from the aforesaid oral
testimony. Both these witnesses have said
that at the time of occurrence Shafayat
(complainant) was accompanying them and
Shafayat PW-2 has also affirmed this in his
cross-examination. His presence on the
spot cannot be doubted merely on the
ground that purpose of his going to Meerut
seems improbable.

There is no rule of law that
testimony of a interested or related witness
should be discarded out rightly. What is
required is cautious scrutiny of the oral
testimony of such a witness. This part of
oral testimony of Shafayat PW-2 that he
seen the accused firing at Shahadat inside
the Madarsa from the window, opening
towards the road is not worth to believe and
it appears that the witnesses just in over
zealousness to support that he has also seen
the accused firing shots at Shahadat inside
the Madarsa has made the aforesaid
statement. It appears that he may not have
an opportunity of watching the aforesaid
incident as he himself has ran towards the
fields to save his life but rest of his oral
testimony is consistent and there is no
major discrepancy which makes him
unreliable.

Previous enmity is a double
edged weapon. It may be a motive for
committing the crime and also for the false
implication but considering the entire facts
and evidence in this case the previous
enmity appears to be motive behind the
incident. The incident has occurred in day
light and in public place seen by many
persons. Deceased was chased and killed
inside the Madarsa from where empty
cartridges, bullets etc. have been recovered.
There is eye-witness account of the
incident. So it is improbable that real
assailants of such daylight incident should
be spared and on account of previous
enmity the accused have been falsely
implicated. The oral testimony of Shafayat
PW-2 is consistent and reliable. It further
got support from the examination-in-chief
and partial cross-examination of other two
witnesses Kamil PW-1 and Matloob PW-3
and their presence at the place of
occurrence is fully established. The eyewitness account of Kamil PW-1 in
particular is about whole incident and it
implicates the accused and fully proves that
accused shot dead the deceased Shahadat
inside the Madarsa. Even if the presence of
Shafayat PW-2 at the time of occurrence is
not believed and his oral testimony is
discarded even then there is sufficient
evidence on record to prove the prosecution
case that the accused have shot dead the
deceased Shahadat.

14. Learned counsel for the appellants
further contended that it has come in the
evidence that accused persons fired shots
while chasing. In this situation the injuries
should have come from back side but in the
10 All. Mobin @ Nanha & Ors. Vs. State of U.P.
1081
post-mortem examination of the deceased
all the injuries found on the body are on the
front side hence ocular testimony do not
match with the medical evidence. Learned
counsel for the appellants further contented
that it has also come in the evidence that
during the course of incident Shafayat,
Matbool and Nanhi ran in one direction
towards the road in the north while
Shahadat and Kamil ran towards the
Madarsa and entered into it. The accused
persons chased Shahadat and Kamil into
Madarsa and Kamil to save his life climb
the stairs and jumped in the back side while
Shahadat was fired and killed near the
room of Molwi Sahab, so Shafayat and
Matloob have no opportunity to watch the
shooting incident which has occurred inside
the Madarsa and Kamil was also not in a
position to watch the same and there is no
eye witness account of the real incident of
shooting.

Learned A.G.A. submitted that
accused started firing when all the five
(deceased and witnesses) were standing at
the Puliya. Shahadat and Kamil ran towards
Madarsa and entered into it. Accused
chased Shahadat and Kamil and shot
Shahadat at the door of the room of Nazim
and pumped several bullets on him. At this
time Kamil was with Shahadat inside the
Madarsa so he has opportunity to watch the
incident.
He
further
contended
that
Shafayat PW-2 and Matloob PW-3 have
witnessed
the
occurrence
which
has
occurred out side the Madarsa. So all the
witnesses are eye-witness of the incident.

From the site plan Ex.Ka-13 and
evidence on record, it is clear that at the
time of occurrence Shahadat, witness
Kamil, Shafayat, Matloob and Nanhi sister
of Kamil were standing at Puliya waiting
for the bus. Accused persons came from
behind the Madarsa through open field and
started firing. Three of them namely,
Shafayat, Matloob and Nanhi ran in one
direction towards the road in the north
while Shahadat and Kamil ran in the west
towards the gate of Madarsa and entered
into it. All the accused entered into
Madarsa chasing Shahadat and Kamil.
Kamil ran towards the stairs while
Shahadat ran towards the room of the
Molwi Sahab. Accused fired several shots
on Shahadat and he fell down at the door of
the room while Kamil saved himself
climbing the stairs. The site plan also
shows that the stairs are adjacent to the
room of Molwi Sahab. So Kamil was very
much present near the place of actual
shooting and he has full opportunity to
watch the incident that has occurred inside
the Madarsa. Further the whole incident has
occurred in one sequence and transaction
without any time gap and all the three
witnesses have seen it and they are all in
the category of eye witnesses. Even if
Shafayat PW-2 and Matloob PW-3 are not
presumed to be eye-witnesses of the
incident which has occurred inside the
Madarsa, their oral testimony is relevant
under Section 6 of the Evidence Act being
res gestae. With regard to the argument that
prosecution case is that accused chased and
fired shots from behind but all the injuries
on the body of Shahadat in on the front
part, it is worth while to mention that
according to post-mortem report Shahadat
has suffered five injuries. Four injuries are
of fire arm. Injury no.5 is on the posterior
part of the right hand which may have been
caused from behind while he was running.
Further, the location of the injuries depends
upon the position of the deceased when
shots were fired at him. Kamil PW-1 who
was with Shahadat inside the Madarsa was
himself running to save his own life, so
threadbare description of the incident is not
expected from him and it can only be
guessed. Shahadat ran towards the room of
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
Molwi Sahab, so it may be probable that on
reaching at the door of the room he may
have turned to shut the door but accused
got him and pumped bullets on him before
he can shut the door. It may also be
probable that finding himself cornered he
may have turned and in that position the
bullets were fired at him, so the probability
that shots were fired at him from front
cannot be ruled out and on this ground it
cannot
be
said
that
there
is
any
contradiction between oral evidence and
medical evidence.

15. Learned counsel for the appellants
also contended that Nanhi was an important
witness but she has not been examined by
the prosecution. It is further contended that
it has came in the evidence that at the time
of occurrence students, teachers and Molwi
Sahab were also present in the Madarsa but
none of them has been made a witness nor
examined in the Court. Learned counsel for
the appellant cited the case of Deny Bora
Vs. State of Assam (2014) 14 SCC 22 and
referred para 9 which is as follows:-