# Moosa & Ors. (In Jail) v. State of U.P

- **Citation:** (2021) 4 ILRA 305
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-04-06
- **Case number:** Criminal Appeal No. 2868 of 1983
- **Bench:** Manoj Kumar Gupta, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/moosa-ors-in-jail-v-state-of-u-p-47018
- **Pages:** 12

## Headnote

Evidence Law - Indian Evidence Act,
1872- Section 3- Evidence of related
witnesses- The evidence of such witness
is to be closely scrutinized, with extra
care
and
caution.
It
cannot
be
rejected merely for the reason that they
are closely related to the complainant. If
on a careful scrutiny, their testimony is
found to be intrinsically reliable and
trustworthy, then nothing prevents the
court from placing reliance upon the
same.

It is settled law that relationship of a witness
does not effect his credibility, however, the
Court has to treat the same with caution and
extra care.

Evidence Law - Indian Evidence Act,
1872- Section 3- Minor embellishments
which do not go to the root of the case is
not fatal to prosecution case- minor
inconsistencies
or
insignificant
embellishments in the statement of
witnesses should yield to the fallibility
of human faculties and be ignored if the
evidence is otherwise trustworthy and
corroborates in material particulars.

Minor
embellishments
and
exaggerations
which do not go to the root of the case of the
prosecution are to be ignored provided the
evidence is trustworthy and corroborated by
other material evidence.

There is clinching evidence to prove the
prosecution case. The ocular version stands
corroborated by the medical evidence. The
accused had come armed with deadly weapons
and in prosecution of the common object
commited the offence. (Para 28, 34, 35)

Criminal Appeal accordingly rejected.(E2)

Case Law/ Judgements relied upon:-

## Text

4 All. Moosa & Ors. Vs. State of U.P.
305
fine is not paid, the sentence would be
default sentence of three months simple
imprisonment.

24. The concerned jailor
shall
immediately compute the period and if
remissions are granted, if any, the accused
have to be released. He shall do so
immediately on completion of the sentence.

25. Record and proceedings be sent
back to the trial court.

26. This court is thankful to Shri Piyush
Kumar Shukla and learned AGA for ably
assisting this Court in getting this old matter
disposed off.
----------
(2021)04ILR A305
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.04.2021

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Appeal No. 2868 of 1983

Moosa & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri
G.S.Chaturvedi,
Sri
S.I.Jafri,
Sri
Mohammad Khalid, Sri Nazrul Islam Jafri,
Sri Prashant Vyas

Counsel for the Opposite Party:
A.G.A., Sri I.M.Khan, Sri Shahabuddin, Sri
R.N. Sharma

Evidence Law - Indian Evidence Act,
1872- Section 3- Evidence of related
witnesses- The evidence of such witness
is to be closely scrutinized, with extra
care
and
caution.
It
cannot
be
rejected merely for the reason that they
are closely related to the complainant. If
on a careful scrutiny, their testimony is
found to be intrinsically reliable and
trustworthy, then nothing prevents the
court from placing reliance upon the
same.

It is settled law that relationship of a witness
does not effect his credibility, however, the
Court has to treat the same with caution and
extra care.

Evidence Law - Indian Evidence Act,
1872- Section 3- Minor embellishments
which do not go to the root of the case is
not fatal to prosecution case- minor
inconsistencies
or
insignificant
embellishments in the statement of
witnesses should yield to the fallibility
of human faculties and be ignored if the
evidence is otherwise trustworthy and
corroborates in material particulars.

Minor
embellishments
and
exaggerations
which do not go to the root of the case of the
prosecution are to be ignored provided the
evidence is trustworthy and corroborated by
other material evidence.

There is clinching evidence to prove the
prosecution case. The ocular version stands
corroborated by the medical evidence. The
accused had come armed with deadly weapons
and in prosecution of the common object
commited the offence. (Para 28, 34, 35)

Criminal Appeal accordingly rejected.(E2)

Case Law/ Judgements relied upon:-

1. Yogesh Singh Vs Mahabeer Singh & ors.
(2017) 11 SCC 195

(Delivered by Hon'ble Manoj Kumar Gupta, J.)

1. The instant appeal has been
preferred against the judgment and order
306 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 21.11.1983 passed by the Special
Judge, Dacoity Affected Areas, Etah, in
S.T. No. 411 of 1982 (leading case),
connected with S.T. No.416 of 1982,
convicting the appellants under Section
148/302/149 IPC and sentencing them to
rigorous imprisonment of two years and
life imprisonment and fine of Rs. 1000/-
each, with default clause.

2. The prosecution case is that the
deceased victim Mohammad Yusuf Khan,
brother of the first informant Moosa Khan,
was sleeping on the chabutra of his house
in village Samaspur in the night of 8/9 July
1982 alongwith other relatives and family
members. His cot was on the eastern side of
the chabutra, a raised platform 2 - 21⁄2 feet
high. His brother Moosa Khan (PW1),
uncle
Usman
Khan
(PW2)
son
of
Mohammad Ismail Khan, Abdul Rauf
Khan son of Attaullah Khan and son Ishrat
Yaar Khan (PW3), were sleeping on his
side. At about 2 A.M. in the night, Nawab
son of Ayub, Moosa son of Ayub, Kallu
son of Naviullah, Kudush son of Yasmeen
and Mushir son of Bashir Khan, all
residents of village Samsapur came armed
with rifles and guns. Nawab exhorted
Moosa to fire saying that "maar saale ko
bahut bada neta banta hain" and upon
which Moosa using his tamancha (pistol)
and Kudush using his gun fired at Yusuf
hitting him on the left and back side. On
shouting of the first informant, Mosina son
of Yakub Khan and Nannoo Khan son of
Mehmood Khan and other persons came
running. They saw all the five accused with
their arms in moon light and torch light.
Since it was month of Ramzan, a lighted
lantern was also hanging from the wall of
Masjid on the northern side of the
chabutara. They chased the accused but
they managed to escape under cover of
gunfire.
They
carried
the
injured
Mohammad Yusuf to the police station but
on way, he died. The body was taken to the
police station and a FIR was got registered
by the brother Moosa Khan (PW1) at
Police Station Ganjdundwara, District Etah
on 9.7.1982 at 2:55 A.M.

3. The postmortem of the dead body
was carried out by Dr. P.K. Jain (PW 6) on
9.7.1982 at 1 P.M. The following antimortem injuries were found on the body: -

1. Multiple firearm wounds of
entry each 1/4 cm x 1/4 cm x cavity deep
on the right back of chest in an area of 15
cm x 12 cm, 4 cm away from midline.

2. Firearm wound of entry 1.5 cm
x 1.5 cm x through and through on the left
anterior axillary line 10 cm above left
anterior superior iliac Spine.

3. Firearm wound of exit 3 cm x
3 cm on the left posterior axillary line, 15
cm above the iliac crest.

4. Firearm wound of entry 11⁄2 cm
x 11⁄2 cm x cavity deep on the right mid
axillary line, 15 cm above the right iliac
crest.

5. Abraded contusion 5 cm x 1
cm on the front of right leg 2 cm below the
knee.

4. There was no blackening around
wound nos. 1, 2 and 4.

5. On internal examination he found
blood present in the tissues below injury
no. 1. The right scapula was found
fractured, both the pleura were found
lacerated and there was about 40 oz. of
clotted and liquid blood in the cavity. There
were 42 pellets and one yellowish metallic
4 All. Moosa & Ors. Vs. State of U.P.
307
piece recovered from the right and the left
side of the cavity. There was some blood
also underneath the muscles of injuries nos.
2 and 4. Peritoneum was grossly lacerated
and there was about 20 oz. of blood in the
cavity of the stomach. The stomach and the
small intestines were found empty but the
large intestine was full of faecal matter.
According to the doctor, death was due to
shock and haemorrhage as a result of
antemortem injuries and these injuries were
sufficient in the ordinary course of nature
to cause death. The doctor was examined as
PW6 (Dr. P.K. Jain) and he proved the
postmortem report (Ext.Ka-16).

6. Inquest on the dead body was held at
5 A.M. the same day. The Investigating
Officer recorded the statement of witnesses
and thereafter reached the spot and inspected
it. The site plan prepared by him is Ext.Ka-8.
He collected blood-stained and ordinary earth
from the site of incidence. These are material
Exts. 4 and 5. The Fard is Ext. Ka-9. He
found one tickli at the spot. It was sealed in a
separate packet. The tickli is material Ext. 3.
He also inspected the lantern which allegedly
lighted the place of incidence. He also
inspected the torches allegedly flashed by
Moosa Khan, Usman Khan and Nanney. The
memos prepared for these materials are Exts.
Ka-10 to Ka-12 respectively. As he suffered a
fracture in his leg, the remaining investigation
was carried out by Sri M.P. Singh
Bhadauriya S.I. On 2.8.1982, he recorded the
statements of the accused and on 4.8.1982
forwarded charge sheet Ext.Ka-13 against all
the accused. The chik report (Ext.Ka-14) and
the copy of the entries made in the G.D. at
that time (Ext.Ka-15) were also duly proved
by PW5.

7. The prosecution examined five
witnesses. The informant Moosa Khan was
examined as PW1. He is real brother of
the deceased victim. PW2 is Usman Khan,
uncle of the deceased victim. PW3
Ishratyar Khan is son of the deceased
victim. All are eye witnesses of the
incidence. PW4 is Constable Atar Singh, a
formal witness. He had submitted an
affidavit stating that he brought the dead
body of Yusuf Khan in a sealed cover to
Etah for postmortem. PW5 Dinesh Kumar
Sisodiya is the then SHO of police station
Ganjdudhwara, who investigated the case.
The next witness PW6 is Dr. P.K. Jain of
District Hospital, Etah who carried out
postmortem on the dead body

8. The accused were confronted with
the prosecution case and the incriminating
evidence
led
against
them
by
the
prosecution
witnesses.
They
pleaded
innocence. The accused Moosa Khan
admitted relationship between the accused
persons, but denied that he and Kudush are
Sadoos. He alleged that he was falsely
implicated and was not present at the place
of occurrence. He admitted that his father
Yameen, Ashraf (cousin brother of accused
Nawab)
and
Moosa
Khan
contested
election against Yusuf Khan, but lost the
same. He alleged that Munan Khan is his
cousin brother to whom Yusuf Khan's sister
was married, but she has been deserted. He
alleged that it is for the said reason that he
was falsely implicated. The other accused
Kallu also made similar statement and
alleged that he was falsely implicated on
account of partybandi. He denied that he
exhorted others to shoot at Yusuf Khan or
himself fired at the deceased. The accused
Mushir and Kudush made statements
similar to that made by Moosa. They
alleged that all the witnesses being of one
family, have made false depositions against
them. The Trial Court found them guilty of
308 INDIAN LAW REPORTS ALLAHABAD SERIES
offences under Section 148 and 302 IPC
(read with Section 149 IPC.

9. During pendency of the appeal,
Appellant nos. 1, 2 and 5 had died and the
appeal in their respect was dismissed as
abated. The appeal survives only in relation
to Appellant no. 3 Kudush and Appellant
no. 4 Mushir.

10. We have heard Sri G.S.
Chaturvedi,
learned
Senior
Advocate,
assisted by Sri Prashant Vyas, Advocate,
Sri N.I. Jafri, learned Senior Advocate,
assisted by Sri Mohd. Khalid, Advocate for
the appellants, Sri I.M. Khan and Sri
Shahabuddin, learned counsel for the
complainant
and
learned
AGA
Sri
Arunendra K. Singh for the State.

11. Sri G.S. Chaturvedi, learned
counsel for the appellants, submitted that as
per prosecution story, the assailants had
attacked at 2 A.M. in the night when the
victim and others around him were
sleeping. The firing was done from a close
distance, barely 5 to 6 paces away.
Consequently, there was no occasion to
exhort the others to fire. In fact, it was a hit
and run case. The prosecution story is
apparently false. He further submitted that
the prosecution case is not corroborated by
the medical evidence. PW6, the doctor,
during his cross examination, stated that
injury no. 4 was possible if the assailants
had fired from the right side of the victim,
whereas according to the prosecution case,
the firing took place from the left side. This
according to him raises doubt about the
creditworthiness of the prosecution case.
There is no independent witness, although
the FIR mentions that the neighbours
rushed to the site of occurrence upon
hearing the sound of gunshots and the
alarm raised by PW1. PW1, PW2 and PW3
are closely related to each other and in
view of previous litigation and other
reasons, were inimical to the accused and
had falsely implicated them. It is also urged
that PW1, PW2 and PW3 were chance
witnesses; that there was no occasion for
them to be present at the place of
occurrence, as they had their own houses
and families. It is also urged that PW1 tried
to improve upon the prosecution case
during recordal of his statement by
mentioning various things which were not
stated in the FIR. Sri N.I. Jafri, learned
Senior Advocate also appearing on behalf
of the appellants, apart from adopting the
above submissions, urged that no blood
was found on the cot. Consequently, it was
not possible that the blood had trickled
down to the ground. The prosecution story
that bloodstained earth was collected from
the place of occurrence casts doubt about
the creditworthiness of the prosecution
case. He further submitted that the PW1
had attributed role of firing to Nawab to
explain the third gunshot, albeit no such
allegation was made in the FIR. The
prosecution had not exhibited the lantern
and the torches allegedly recovered from
the place of occurrence and thus the
prosecution case that the assailants were
identified in the light of lantern and by
flashing of torches, is not worthy of
reliance, nor stands proved.

12. On the other hand, learned AGA
appearing for the State and Sri I.M. Khan,
learned counsel for the complainant,
submitted that the prosecution case cannot
be doubted as it was proved by ocular
evidence, duly corroborated by the medical
and circumstantial evidence. It is submitted
that the prosecution had successfully
proved that there was a long standing
enmity between the appellants and the
deceased victim and his family and there
4 All. Moosa & Ors. Vs. State of U.P.
309
was strong animus to commit the crime.
The prosecution had successfully proved
that the appellants had attacked the victim
with a common object to commit murder. It
is further submitted that all the three eye
witnesses were closely related to the
deceased and being month of Ramzan,
when they were observing fast and had to
rise early to take Sehri, it was very natural
that they were not in deep sleep and got up
on hearing voices. The exhortation by
Nawab was a natural reaction, finding that
the victim had got alarmed. It is submitted
that PW1, PW2 and PW3 were not chance
witnesses and that the prosecution had
succeeded in proving to the hilt the place
and time of occurrence. Consequently, a
small lapse on part of the Investigator in
not preparing fard of the cot, or not
exhibiting the lantern and torches, is not
sufficient
to
cast
doubt
on
the
creditworthiness of the ocular and medical
evidence. It is also urged that the statement
of the doctor (PW6), if read as a whole,
clearly suggests that all injuries received by
the deceased victim, were possible even
when all assailants had fired from one
particular side and submission to the
contrary has no force. It is urged that the
prosecution had successfully proved the
guilt of the appellants beyond any shadow
of doubt and the Trial Court was fully
justified in convicting the appellants.

13. We have examined the rival
submissions and perused the materials on
record.

14. The edifice of the prosecution
version rests on old enmity between the
family of the deceased and the assailants.
PW 1 in his statement stated that election
for the post of Pradhan took place one
month before the incident. In the said
election, Yameen (father of accused
Kudush), Ashraf (cousin brother of accused
Nawab and Moosa) contested election
against Yusuf (the deceased). Yusuf won
the election by a large margin of votes.
Both Yameen and Ashraf lost the election.
Apart from it, about 4 - 5 years back, there
was other litigation between the accused
and Mohd. Yusuf (the deceased). It is for
the said reason that the accused were on
inimical terms with the deceased Mohd.
Yusuf. It has also come in his statement
that about 21⁄2 - 3 years back, Afsar, son of
Nawab (the accused) lodged FIR under
Section 307 IPC against the deceased
Mohd. Yusuf, Ishratyar Khan and Usman
Khan.

15. PW2 stated that accused Nawab
had filed a criminal complaint against him
and a cross case was filed by deceased
victim Yusuf Khan. Both the cases ended
in acquittal. PW2 also admitted that Baqar
Khan, brother of Nanhey Khan filed a
criminal case against accused Nawab,
Moosa and Mushir under Section 307 IPC.
Haji Siddiqui got the matter compromised.
Another litigation admitted was also a
criminal case under Section 307 IPC by one
Mahendra Pal Singh against Chandra Bhan
Singh, Usman Khan (PW2) and the
deceased victim Yusuf Khan. A cross case
was also filed. It is evident from of
judgment in said case (S.T. No. 161 of
1974) that Haji Siddiqui, who is real uncle
of accused Nawab, Moosa and Mushir was
a prosecution witness. In the cross case,
accused
Kudush
and
Moosa
were
prosecution
witnesses.
In
the
above
background, there is considerable force in
the prosecution story that the accused had
not liked the defeat of their father/brother
in election at the hands of Mohd. Yusuf. It
is for the said reason that before attacking
310 INDIAN LAW REPORTS ALLAHABAD SERIES
the victim, Kudush tried to incite their
passion by reminding them of the defeat at
the hands of Mohd. Yusuf, describing him
as "bada neta" and then exhorting them to
strike. Undoubtedly, there was a very
strong motive and inducement to commit
the crime.

16. The place and time of occurrence
has been duly proved. The incidence is said
to have taken place at 2 A.M. in the night
of 8/9th July, 1982. The place of incidence
is the chabutra of the house of the deceased
in village Shamashpur. It has come in the
prosecution evidence that the place of
occurrence was about two miles from
police station Ganjdudhwara. The FIR was
lodged at 02:55 A.M., i.e. even before
expiry of one hour. The fact that the report
was
registered
at
02:55
A.M.
is
corroborated by the fact that inquest on the
dead body was held by the Investigating
Officer at 5 A.M. and postmortem on the
dead body was held at Etah at 1 P.M. The
special report about the crime was
dispatched from the police station at 6
A.M. PW1, PW2 and PW3 (all eye
witnesses) had duly proved the place of
occurrence. The Investigating Officer had
clearly shown the place of occurrence in
the site plan prepared by him (Ext. Ka-8).
He had collected blood stained and
ordinary
earth
from
the
place
of
occurrence. These are Exts. 4 and 5. He had
found one tickli at the spot which was
sealed in a separate packet and is material
Ext. 3. All the three eye witnesses were
cross examined at great length and all of
them had taken a consistent stand regarding
place and time of occurrence. It also stands
corroborated
by
the
circumstantial
evidence.

17. The enmity and presence of
common object got cemented by close
relationship between the accused persons.
According to prosecution witnesses, Nawab
and Moosa are real brothers (sons of Ayub
Khan), while Mushir is their cousin. The
other three, namely Kudush, Moosa and
Kallu are second cousins. Moosa in his
statement under Section 313 CrPC admitted
that he and accused are real brothers, while
Mushir is his cousin. He also admitted that
accused Kudush and Kallu are cousins. He
however denied that Kudush and Moosa
are saroos. Kalloo admitted himself to be
cousin of Kudush. To same effect is the
statement of Nawab. Thus, relationship
between accused is clearly admitted.

18. According to the prosecution case,
the incident occurred at 2 A.M. in night in
the month of July. The deceased and his
family are Mohammadan. It was the holy
month of Ramzan, during which Muslim
community observe fast (Roza) from
sunrise to sunset. According to custom,
those on fast take food and water (Sehri)
before sunrise. PW1 stated that during
month of Ramzan, sleep remains light and
he got up hearing some noise. A lantern
was hanging from the wall of Masjid on the
northern side of the 'chabutra' where they
were sleeping. He saw Nawab, Moosa,
Kallua, Kudush and Mushir, armed with
guns and pistols. He shouted seeing them in
attacking posture. PW2 who is uncle to the
deceased, stated that he got up hearing the
alarm raised by PW1 and saw all five
accused standing in the galli by the side of
the deceased. PW3 made similar statement.
All three are eye witnesses of the incident.
Their consistent stand is that Nawab
exhorted Moosa and Kudush to fire.
Immediately thereafter, firing took place
with pistol and guns, killing Mohd. Yusuf.

19. Much emphasis has been laid on
the plea that it was 'a shot and run case'.
4 All. Moosa & Ors. Vs. State of U.P.
311
The alleged incident took place at 2 A.M.
in the night. The assailants knew their
target and also seemed to have identified
the same. There was no reason to exhort
and
thereby
alarm
the
target.
The
prosecution case that before firing, Nawab
exhorted
Moosa
and
Kudush,
raises
suspicion about the creditworthiness of the
prosecution case.

20. There is no force in the
submission. PW1 stated that there was very
short interval of less than one minute
between exhortation and actual shooting.
The other two eye witnesses, i.e. PW2 and
PW3 made the same statement. The result
of exhortation was that the assailants
without giving second thought, executed
their plan. Had exhortation not taken place,
it was possible that the assailants realizing
that the victim and those sleeping beside
him had seen them, might have retrieved.
Thus, the act of exhortation had catalyzed
the execution of the plan without giving
time to rethink. The act of exhortation
instead of pointing needle of suspicion to
the prosecution story, lends credence to it.

21. It is true that in the FIR, it is not
mentioned that PW1 raised alarm on seeing
the assailants standing with their guns and
pistols beside the cot of his brother, but in
our opinion, that does not weaken the
prosecution
version.
It
cannot
be
overlooked that the real brother of PW1
had died hardly an hour before the FIR
actually came to be registered. PW1 had
stated that he was in extreme grief. In his
cross examination, PW1 explained the
omission thus: -

Þ;g dry cjlkr ds ekSle es gqvk Fkk
ysfdu ml le; cjlkr ugha gks jgh FkhA ml jkf= esa
vUnktu ge lc yksx 11&12 cts ds djhc lks;s FksA
igyh uhan Fkh Lor% dgk fd jetkuksa esa uhan ughs
vkrh gS A ftl vkokt ij esjh vka[k [kqyh og
eqyfte uokc ds fpYykus dh lh vkokt FkhA eSa
Qk;fjax ls igys fpYyk;k FkkA fjiksVZ esa eSusa ,slk ugha
fy[kk;k fd eSa Qk;fjax ds ckn fpYyk;k u njksxk th
dks crk;kA xokg us fjiksVZ ns[kdj dgk fd eSus fjiksVZ
esa Qk;j gksus ds ckn viuk fpYykuk fy[kk;k FkkA
vkSj njksxk th dks Hkh eSaus Qk;jksa ds ckn viuk
fpYykuk crk;k Fkk fjiksVZ esa tks dqN eSaus fy[kk;k Fkk
og lgh fy[kk;k FkkA ;g lgh gS fd esjs fpYykus ij
gh b'kjr ;kj [kka o mleku [kka tkxs FksA eSaus vius
tkxus ij eqyfteku dks pcwrjs ds uhps [kM+s ns[kk
fjiksVZ esa ugha fy[kk;k ysfdu njksxk th dks crk;k Fkk
;g ckr eSaus blfy;s fjiksVZ esa ugha fy[kkbZ D;ksafd ml
le; esjk fnekx dke ugha dj jgk FkkA eSaus viuh
fjiksVZ esa lEHkor;k tks ikl lks jgs Fks] esjs fpYykus
ij tkxs mUgksaus Hkh ns[kk] ugha fy[kk;kA eSaus ys[kd
dks crk;k Fkk mlus fy[kk;k ugha fy[kkA tks pkgk
mlus fy[kk] tks pkgk ugha fy[kkA eSaus fjiksVZ lquus ds
ckn dksbZ ,rjkt ugha fd;k FkkAß

22. The explanation furnished is very
natural and there is nothing suspicious in it.
It definitely cannot be said to be an
afterthought. It is not possible nor expected
that FIR should mention each such detail.

23. We now proceed to examine the
contention as to whether PW1, PW2 and
PW3 are chance witnesses and had not
witnessed the crime. According to PW1, he
was sleeping on the side of his brother on
the night when the incident took place. He
is also related to Usman Khan (PW2) being
his son-in-law. In his statement, he
admitted that he has his house at Kasba
Gunjdudhwara, but it is stated that he
usually comes to his village during Ramzan
and other festivals. He had come to village
about 2 - 4 days before the incidence.
Whenever he visited his village, it was
usual practice that they sleep together. His
baithak is common with his deceased
brother. He specifically stated that he had
no separate house or chabutra in the
312 INDIAN LAW REPORTS ALLAHABAD SERIES
village. It is not unusual that during month
of Ramzan, he would go to his native
village. There is also nothing suspicious in
the prosecution story that PW 1 was
sleeping on the side of his brother on the
night the incident took place, particularly
when his baithak was common with his
brother. Throughout his statement, he
referred to 'chabutra' where incidence
occurred, as 'his chabutra'. This lends
credence to his version that he shared a
common baithak and chabutra with his
brother. PW1 was cross examined at great
length on different dates. He vehemently
denied the suggestion that he was not
sleeping by the side of his brother at the
time of incidence. PW2 and PW3 who
claimed to be sleeping beside PW1, also
categorically supported the prosecution
version relating to presence of PW1 in
village on the fateful night.

24. The circumstantial evidence also
supports the presence of PW1 in the village
at the time of incidence. The FIR was
lodged by him within one hour of the
incidence taking place. The police station
was at a distance of 5 - 6 kms. from the
place of incidence. It seems highly
improbable that a person not present at the
time of incidence, would come to the
village and lodge FIR showing his presence
at the time of incidence within a short time
of less than one hour. His statement under
Section 161 CrPC was recorded at police
station soon after lodging of the FIR.

25. The creditworthiness of PW1 was
sought to be assailed by contending that his
sister was married to Munan Khan, cousin
of accused Musheer. It resulted in a
divorce. A suggestion was given to him
that this was the reason of annoyance in
deposing against the accused persons. The
suggestion was denied. Moreover, as
discussed above, PW1 happens to be real
brother of the deceased victim. He was an
eye witness. His statement, more or less, is
consistent with the prosecution case. The
old enmity or divorce reinforces the
conclusion that there was severe bitterness
among them. But it does not seem, in view
of more or less consistent eye witness
account
and
corroboration
by
other
evidence - medical and circumstantial, that
it was a case of false implication as a result
of his sister being divorced.

26. PW2 Usman Khan is real uncle of
the deceased victim Yusuf Khan. He is also
father in law of Moosa Khan. He admitted
that he had three houses in the village. He
further deposed that a house adjoining the
place of incidence, belonged to his brother,
who died about 10 - 12 years back. His
only daughter inherited that house. Usman
Khan clarified that in such circumstances,
he lives with his niece. There is nothing
unusual that he was staying with his niece,
after the death of his brother. It is also very
normal that on the fateful night, he was
sleeping on the chabutra with his brother
and other extended family members, being
the month of Ramzan.

27. PW3 Ishratyar Khan is the son of
the deceased victim and son-in-law of
PW1, Moosa Khan. His presence has been
questioned on the ground that his marriage
took place only a month back, therefore it
was unnatural that he was sleeping on the
chabutra and not with his wife. In this
regard,
when
questioned,
he
offered
explanation, saying that his wife was not in
the village. She had gone to her maternal
uncle's place at Aligarh, where her brother
and sister were studying. He also stated that
at the relevant time, his father in law had
come to the village. He has no separate
house. There is only a common house, a
4 All. Moosa & Ors. Vs. State of U.P.
313
stand also taken by PW1 in his deposition.
In these circumstances, there is nothing
unnatural that they were sleeping on the
chabutra, particularly when it was the
month of Ramzan and they were observing
fast. The contention that PW!, PW2 and
PW3 were chance witness is untenable.

28. Another limb of the argument is
that PW1, PW2 and PW3 are closely
related to each other and because of enmity
they have falsely implicated the accused.
The law of the point is well settled. The
evidence of such witness is to be closely
scrutinized, with extra care and caution. It
cannot be rejected merely for the reason
that they are closely related to the
complainant. If on a careful scrutiny, their
testimony is found to be intrinsically
reliable and trustworthy, then nothing
prevents the court from placing reliance
upon the same. In Yogesh Singh vs.
Mahabeer Singh & Others, 2017 (11)
SCC 195, the Supreme Court summarized
the legal position on the above issue as
follows: -

"28. A survey of the judicial
pronouncements of this Court on this point
leads to the inescapable conclusion that the
evidence of a closely related witnesses is
required to be carefully scrutinised and
appreciated before any conclusion is made
to
rest
upon
it,
regarding
the
convict/accused in a given case. Thus, the
evidence cannot be disbelieved merely on
the ground that the witnesses are related to
each other or to the deceased. In case the
evidence has a ring of truth to it, is cogent,
credible and trustworthy, it can, and
certainly should, be relied upon. (See Anil
Rai Vs. State of Bihar, (2001) 7 SCC 318;
State of U.P. Vs. Jagdeo Singh, (2003) 1
SCC 456; Bhagalool Lodh & Anr. Vs. State
of U.P., (2011) 13 SCC 206; Dahari &
Ors. Vs. State of U. P., (2012) 10 SCC 256;
Raju @ Balachandran & Ors. Vs. State of
Tamil
Nadu,
(2012)
12
SCC
701;
Gangabhavani Vs. Rayapati Venkat Reddy
& Ors., (2013) 15 SCC 298; Jodhan Vs.
State of M.P., (2015) 11 SCC 52)."

29. We have held that the presence of
PW1, PW2 and PW3 was natural. Their
testimony is consistent in respect of time
and place of occurrence, the manner it took
place and the persons instrumental in the
same. They were subjected to lengthy cross
examination, but the defence could not
succeed
in
impeaching
their
creditworthiness by extracting anything
suspicious. The accused albeit having set
up plea of alibi, did not lead any evidence
in defence.

30. We now examine the medical
evidence to find out whether it corroborates
the prosecution case or not. The contention
of learned counsel for the appellants is that
the injuries as were received by Mohd.
Yusuf are not possible if the gunshots were
fired by the assailants standing in the galli
from the left side of the person lying supine
on a cot.

31. For appreciating the argument, we
once again take note of the injuries found
on the body of the deceased victim: -

1. Multiple firearm wounds of
entry each 1/4 cm x 1/4 cm x cavity deep
on the right back of chest in an area of 15
cm x 12 cm, 4 cm away from midline.

2. Firearm wound of entry 1.5 cm
x 1.5 cm x through and through on the left
anterior axillary line 10 cm above left
anterior superior iliac spine.
314 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Firearm wound of exit 3 cm x
3 cm on the left posterior axillary line, 15
cm above the iliac crest.

4. Firearm wound of entry 11⁄2 cm
x 11⁄2 cm x cavity deep on the right mid
axillary line, 15 cm above the right iliac
crest.

5. Abraded contusion 5 cm x 1
cm on the front of right leg 2 cm below the
knee.

32. Ext. Ka-8 is the site plan where
the incident took place. As per prosecution
witnesses, the victim was sleeping on
chabutra (in front of his house) on a cot.
Moosa Khan, Usman Khan, Abdul Rauf
Khan and Ishratyar Khan were sleeping on
separate cots by his side. The 'chabutra' as
per statement of witnesses and the site plan
was 21⁄2 feet in height. According to PW1,
Moosa Khan was lying on the right side of
the victim and thereafter, there were cots of
Moosa Khan, Usman Khan, Abdul Rauf
Khan and Ishratyar Khan. PW1 in his
statement said that the assailants fired
standing from galli on the left side of the
cot on which Yusuf Khan was sleeping.
PW2 stated that they fired flat, aiming at
the victim. A specific question was put to
the doctor PW6 if it was possible to inflict
injuries on the victim while he was lying
supine and firing takes place from one side.
It was replied by stating that it was both
possible and not possible to receive such
injuries.
He
then
explained
various
possibilities in relation to the position of
the assailants. His statement when read as a
whole, supports the prosecution case that
injuries received by the victim were
possible even if firing takes place from one
side. It has come in the statement of PW1,
PW2 and PW3 that the victim did not die
immediately despite being badly injured.
His death took place while on way to the
hospital. It was possible to receive Injury
No. 2 as also explained by PW6, if firing
takes place from the left of the victim while
he was lying supine. The victim after
receiving gunshot injury on the left anterior
axiliary line above iliac crest (injury no. 2)
may have turned to his right, resulting in
Injury No. 1 and then fell flat (prone),
resulting in Injury No. 4. Injury No. 3 is
exit wound of firearm shot of Injury No. 4.
Injury No. 5 is abraded contusion 5cm x
1cm on the front of right leg, 2cm below
the knee. PW6, the doctor, stated that this
injury could be a result of rubbing against
hard object. It could be wooden edge of the
cot. As noted above, he did not rule out the
possibility of receiving the above injuries,
depending upon the position from which
firing was done. It has come in evidence
that firing was done in quick succession. In
the above scenario, it cannot be expected
from the witnesses to describe with
exactitude the order in which injuries came
to be inflicted, nor much emphasis could be
laid on that part of the statement which
seeks to describe the movement of the
victim at the time he was being shot. The
defence plea that the medical evidence does
not corroborate the prosecution version has
no force.

33. One of the contentions of learned
counsel for the appellants was that the
prosecution did not exhibit the cot on
which the victim was sleeping at the time
of alleged incidence. It is submitted that the
Investigating Officer had admitted that he
did not find blood on the cot, whereas dari
(Ext. 2) was blood stained and according to
prosecution case, blood was also found on
the ground. PW1 also stated that there was
no blood on the cot. It raises doubt about
the creditworthiness of the prosecution
story that the deceased was attacked while
4 All. Moosa & Ors. Vs. State of U.P.
315
lying on the cot, or he died on the same cot
while being taken to hospital.

34. Although PW5 stated that no
blood was found on cot, but he also stated
that he himself had not seen the cot. His
statement was based on Panchayatnama /
inquest report which was not prepared by
him. So far as statement of PW1 is
concerned, it is noteworthy that his
presence on the spot is found to be natural.
He has given a natural version regarding
the incident. It may be that he could not
notice the presence of blood on cot, that is
why he said that there was no blood on cot.
In this type of heinous crime, no one can
expect the witness to pay attention to
smallest things. Minor embellishments
which do not go to the root of the case is
not fatal to prosecution case.

35. In Yogesh Singh (Supra),
Supreme Court has held that minor
inconsistencies
or
insignificant
embellishments
in
the
statement
of
witnesses should yield to the fallibility of
human faculties and be ignored if the
evidence is otherwise trustworthy and
corroborates in material particulars: -

"29. It is well settled in law that
the minor discrepancies are not to be given
undue emphasis and the evidence is to be
considered from the point of view of
trustworthiness. The test is whether the
same inspires confidence in the mind of the
Court. If the evidence is incredible and
cannot be accepted by the test of prudence,
then it may create a dent in the prosecution
version. If an omission or discrepancy goes
to the root of the matter and ushers in
incongruities,
the
defence
can
take
advantage of such inconsistencies. It needs
no special emphasis to state that every
omission cannot take place of a
material omission and, therefore, minor
contradictions,
inconsistencies
or
insignificant embellishments do not affect
the core of the prosecution case and should
not be taken to be a ground to reject the
prosecution evidence. The omission should
create
a
serious
doubt
about
the
truthfulness or creditworthiness of a
witness. It is only the serious contradictions
and omissions. (See Rammi @ Rameshwar
Vs. State of M.P. (1999) 8 SCC 649; Leela
Ram (dead) through Dulli Chand Vs. State
of Haryana and Another, (1999) 9 SCC
525; Bihari Nath Goswami Vs. Shiv Kumar
Singh & Ors., (2004) 9 SCC 186; Vijay @
Chinee Vs. State of Madhya Pradesh,
(2010) 8 SCC 191; Sampath Kumar Vs.
Inspector of Police, Krishnagiri, (2012) 4
SCC 124; Shyamal Ghosh Vs. State of West
Bengal, (2012) 7 SCC 646 and Mritunjoy
Biswas Vs. Pranab @ Kuti Biswas and
Anr., (2013) 12 SCC 796)."

36. One other contention was that
lantern and torches were not produced
before the Trial Court . It is noteworthy
that fard of lantern is Ext. Ka 11 and fard
of torches is Ext. Ka 12. Both these
documents were duly exhibited and
proved by PW5. PW5 in his statement
categorically
stated
that
soon
after
lodging FIR, he went to the place of
occurrence and found the lantern and
torches. He also stated that the fard in
relation to lantern and torches were duly
prepared.
Moreover,
it
has
been
consistently stated by the eye witnesses
that it was a moonlit night. The assailants
were all known persons. They were
hardly at a distance of 5 to 7 paces and
thus, not difficult to identify. Nothing
material turns on account of nonexhibition of lantern and torches.
316 INDIAN LAW REPORTS ALLAHABAD SERIES

37. One more submission was that the
prosecution witnesses attributed role of
firing the third gunshot to Nawab, although
it was not mentioned in the FIR. This was
an afterthought, just to explain the third
gunshot injury.

38. It has already been held that the
assailants were having old enmity with the
deceased victim. They were all closely
related. They attacked him with a common
object to murder him. Thus, even if for
argument sake it is assumed that PW1 tried
to improve upon the prosecution case by
assigning role of firing the third gunshot to
Nawab, it will hardly have any effect on the
final
outcome
of
the
instant
case.
Moreover, the instant appeal at the behest
of Nawab already stands abated.

39. The result of above discussion is
that there is clinching evidence to prove the
prosecution case. The ocular version stands
corroborated by the medical evidence. The
accused had come armed with deadly
weapons and in prosecution of the common
object
murdered
Yusuf
Khan.
They
succeeded
in
executing
their
plan
successfully. They were rightly found
guilty of offences under Section 148, 302
IPC (read with Section 149 IPC). There is
no mitigating circumstance or evidence for
taking a different view on the quantum of
punishment. The appeal is devoid of merit
and is dismissed. If the surviving appellants
are on bail, they shall be taken in custody
forthwith to serve out their sentence.

40. Let a copy of this judgment be
sent to the trial court concerned.
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