# Mustaq and Ors v. State of U.P

- **Citation:** (2016) 4 ILRA 876
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-08
- **Bench:** Arvind Kumar Mishra-I, Arvind Kumar Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mustaq-and-ors-v-state-of-u-p-43697
- **Pages:** 16

## Text

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876 INDIAN LAW REPORTS ALLAHABAD SERIES

14. The petitioner shall pay this cost of Rs. 1,00,000/- by way of bank draft drawn in the name
of the Registrar General of this Court. The payment must be made within a period of two months
from today.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.04.2016

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE ARVIND KUMAR TRIPATHI, J.

Criminal Appeal No.- 21 Of 1987

Mustaq and Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for Appellants:
M. Saiduddin

Counsel for Respondent:
A.G.A.

Proceedings

The criminal appeal arises against the judgment and order of conviction and sentence dated 22.12.1986,
passed by the II-Additional Sessions Judge, Saharanpur, in Sessions Trial No. 2 of 1985 (Case Crime No. 82 of
1984, under Sections 147, 148, 302/149, 323/149 IPC, Police Station Gagalheri, District Saharanpur).
The appellants originally numbered eight; four died during the pendency of appeal, rendering the appeal
confined to the surviving appellants-Ikram, Zarif, Ali Hasan, and Ismail. The appellants were on bail at the
time of hearing. The appeal was heard after detailed arguments from both parties, examination of evidence,
and scrutiny of records.
The Court perused the charge sheets, FIR, investigation reports, injury reports, post-mortem reports, and
testimonies of witnesses, including the eye witnesses PW-1 (Irfan) and PW-2 (Mauhind), medical witnesses
PW-8 (Dr. S.K. Gupta), PW-9 (Dr. R.D. Sharma), and PW-12 (Dr. A.B. Garg), as well as the Investigating
Officer PW-10 (B.D. Verma).

Procedure

FIR lodged by complainant Irfan Khan on 28.09.1984 against eight accused.
Case registered at Police Station Gagalheri, Crime No. 82/1984, Sections 147, 148, 149, 307, 302, 384 IPC.
Investigation conducted by PW-10 B.D. Verma; site visited, evidence collected (blood-stained soil, weapons,
inquest reports, medical reports).
Arrest of accused Mazid and seizure of weapons and clothing evidencing blood stains.
Injured Firdaush treated at S.B.D. Hospital; later died on 06.10.1984.
Post-mortem examination of deceased Ishrat and Firdaush conducted.
Charge sheets filed against seven accused, separate charge sheet against absconding accused Nafees.
4 All. Mustaq and Ors. Vs State Of U.P.

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Committal proceedings for trial in Sessions Court; charges framed under Sections 147, 148, 302/149, 323/149
IPC.
Trial proceeded, prosecution evidence recorded; accused statements under Section 313 CrPC recorded.
Judgment of conviction and sentence passed; appeal preferred before the High Court.

Penal Sections

Section 147 IPC - Punishment for rioting.
Section 148 IPC - Rioting, armed with deadly weapon.
Section 302/149 IPC - Punishment for murder committed by members of unlawful assembly.
Section 323/149 IPC - Voluntarily causing hurt by members of unlawful assembly.

Case Law Cited

Gurjit Singh @ Gora & Another vs. State of Haryana (2015) 2 SCC (Crl.) 624 - On reliability of
testimony by relatives and co-victims, and liability under Section 149 IPC.

Head Notes

The present criminal appeal arises from a conviction under Sections 147, 148, 302/149, and 323/149 IPC for
rioting, murder, and causing hurt by members of an unlawful assembly. The appeal challenges the reliability
of ocular evidence, timing of the incident, and the applicability of Section 149 IPC. The High Court, after
careful scrutiny of evidence including eye-witness testimonies, medical and post-mortem reports, and
investigation records, held that the prosecution had successfully established the guilt of the appellants beyond
reasonable doubt.
The Court observed that minor discrepancies in eye-witness accounts and timing of injuries did not negate the
overall credibility of the witnesses. The motive of extortion by the deceased was accepted as a credible
immediate cause of the assault. Section 149 IPC was rightly applied due to the formation of an unlawful
assembly pursuing a common objective. Convictions of the surviving appellants were upheld, and their
concurrent sentences confirmed. Personal bonds of appellants were cancelled and they were directed to
surrender for serving remaining sentences.

Facts

FIR lodged on 28.09.1984 by Irfan Khan against eight accused.
Incident involved murder of Ishrat and fatal assault on Firdaush; both belonged to Pathan community,
accused from Teli community.
Weapons used included pistol, lathi, palkati, spear, knife, and axe.
Injuries on Firdaush recorded; he died on 06.10.1984.
Post-mortem on Ishrat: circular lacerated wound on head; cause of death: hemorrhage and shock.
Eye witnesses PW-1 (Irfan) and PW-2 (Mauhind) testified on manner of assault and weapons used.
Investigating Officer PW-10 collected evidence including blood-stained soil and clothing; arrested accused.
Trial court convicted surviving appellants and sentenced them to imprisonment (concurrent sentences).

Contentions
Appellant's Contentions:

Incident allegedly occurred at night; eye-witnesses could not be present.
Contradictions in witnesses' accounts regarding assault and firing.
FIR alleged to be ante-timed; motive fabricated.
878 INDIAN LAW REPORTS ALLAHABAD SERIES
Appellants falsely implicated due to caste-based enmity.

State's Contentions:

Eye-witness accounts (PW-1 and PW-2) credible; corroborated by medical evidence.
FIR lodged promptly; special report sent to District Magistrate same day.
Weapons and injuries consistent with prosecution version.
Motive of extortion established; common object and unlawful assembly established under Section 149 IPC.

Analysis

Credibility of Witnesses: PW-1 and PW-2 provided detailed accounts of assault, consistent with medical
evidence; minor contradictions are immaterial.
Timing of Incident: Evidence establishes occurrence at 7:45 a.m.; claims of early morning assault not
substantiated.
Medical Evidence: Post-mortem and injury reports corroborate eye-witness accounts; injuries consistent
with weapons described.
Motive: Extortion demand from deceased (Rs. 2,000) provides proximate cause; not disputed effectively by
defense.
Unlawful Assembly: Presence of eight assailants with weapons confirms formation of unlawful assembly;
liability under Section 149 IPC justified.
Defense Theory: Allegations of caste enmity and false implication unsubstantiated; no evidence provided to
discredit witnesses materially.
FIR and Investigation: FIR lodged promptly; investigation thorough; evidence collected, site inspected, and
formalities completed.
Legal Principle: Reliance on Gurjit Singh (2015) confirms that testimony of relatives or close associates is
admissible and can be credible.
Consistency: Testimony of witnesses, medical reports, and investigation records collectively establish guilt
beyond reasonable doubt.
Judicial Reasoning: Trial court meticulously applied law; concurrent sentences appropriate; High Court sees
no reason to interfere.

Conclusion

After comprehensive examination of the facts, evidence, and legal submissions, the High Court holds that the
prosecution has successfully proved the guilt of the surviving appellants, Ikram, Zarif, Ali Hasan, and Ismail,
beyond reasonable doubt. The convictions under Sections 147, 148, 302/149, and 323/149 IPC were
appropriately recorded, and the concurrent sentences imposed by the trial court are upheld. Minor
inconsistencies in witness accounts or timing do not detract from the overall credibility of the prosecution's
case. The appeal is, therefore, dismissed, and the appellants are directed to surrender and serve the
remaining term of imprisonment. Personal bonds are cancelled, and sureties discharged.

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

1. We have heard the arguments of Shri Dharmendra Singhal learned counsel for the accused
appellants and Shri Mahendra Singh Yadav and Shri A.N. Mulla learned counsel on behalf of the
State as well as Shri I.M. Khan, learned counsel for the complainant and perused the record.

2.The instant criminal appeal has been preferred against the judgment and order of conviction
4 All. Mustaq and Ors. Vs State Of U.P.

879
and sentence dated 22.12.1986 passed by II-Additional Sessions Judge, Saharanpur, in Sessions
Trial No. 2 of 1985 arising out of Case Crime No.82 of 1984, under sections 147, 148, 302/149 and
323/149 I.P.C., Police Station Gagalheri, district Saharanpur, whereby two surviving appellants Ali
Hasan and Ismail have been sentenced to six months rigorous imprisonment under section 147
I.P.C. and further sentenced for committing murder of Ishrat, to life imprisonment under section
302/149 I.P.C. and further sentenced to life imprisonment for committing murder of Firdaush and
further sentenced to one year RI under section 323/149 I.P.C. for voluntarily causing hurt to Irfan.
Another two surviving appellants Zareef and Ikram have been sentenced to one year rigorous
imprisonment under section 148 I.P.C. and further sentenced to life imprisonment under section
302/149 I.P.C. for committing murder of Ishrat. Likewise sentenced to life imprisonment under
same sections for committing murder of Firdaush, they have been further sentenced to one year
rigorous imprisonment under section 323/149 I.P.C. for voluntarily causing hurt to Irfan. All the
aforesaid sentences have been directed to run concurrently.

3. Pertinent to mention that the instant appeal was preferred initially by eight appellants, out of
whom four appellants died during the pendency of appeal, therefore the appeal against Mustaq,
Furkan, Mazid, and Nafees appellants no. 1, 3, 5 and 8 stood abated vide order of this Court dated
3.2.2016, therefore, the instant appeal is now confined to the surviving appellants Ikram, Zarif, Ali
Hasan and Ismail, appellants no. 2, 4, 6, 7 respectively. All the four appellants are on bail for the
time being.

4. The facts germane as discernible from the record appears to be that the first information was
lodged at the instance of Irfan Khan son of Abdul Ajij Khan, resident of Kailashpur, Police
Gagalheri, district Saharanpur, at police station Gagalheri on 28.9.1984 at 8:30 a.m. against eight
accused persons alleging therein that his nephew Firdaush son of Barkhurdar, resident of
Kailashpur, was going to meet the plumber (tap-mechanic) for repairing his hand-pump at 7:45
a.m. The complainant also accompanied him. As soon as they reached near Peethwale Temple,
Nafees son of Lateef Teli met them and whipped out pistol pointing on the neck of Firdaush and
abused him and took him to the locality of Telis. In the meantime, Ishrat-younger brother of
Firdaush- also arrived at the scene. He was going to attend duties at Foremost Dairy. Ishrat and
complainant asked Nafees not to do such act then Nafees called his other associates/colleagues
whereupon Mushtaq son of Munshi Teli possessing Palkati, Furkan son of Mangta Teli possessing
knife, Zarif son of Mangta Teli possessing spear, Ali Hasan son of Nura Teli possessing Lathi,
Mazid son of Lala Teli possessing Axe, Ismail son of Abra Teli possessing Lathi, Ikram son of
Foola Teli possessing Palkati, arrived at the spot and began to assault with their respective
weapons. In the meantime Nafees fired with his pistol on Ishrat. The complainant tried to save him
whereupon he, too, was beaten. On alarm being raised witnesses, Ajaz son of Haneef Khan,
Mehender son of Santu Harijan, Naseem son of Abdul Hamid, Sayeed Khan son of Hamid Khan,
resident of Kailashpur etc. arrived at the spot. They saw the incident and somehow saved the
complainant. Ishrat died on the spot and Firdaush was seriously injured. Dead body of Ishrat was
lying near the house of Ibrahim Bharbhuja. It has been mentioned in the first information report
that Nafees was insisting for last two days for payment of Rs. 2,000/- from Firdaush and Ishrat.
This demand was not fulfilled, therefore, the offence was committed. Appropriate action be taken.
880 INDIAN LAW REPORTS ALLAHABAD SERIES
This written report is Ext. Ka.-1 on record. Entry of the same was made in Chik FIR at crime no. 82
of 1984 under sections 147, 148, 149, 307, 302, 384, at police station Gagalheri district Saharanpur
at 8.30 A.M. on 28.9.1984. Chik FIR is Ext Ka-10 on record. On the basis of entry made in Chik
FIR, a case was registered at Rapat No. 16 the very same day under the aforesaid sections of I.P.C.
at above mentioned crime number. Thereafter, investigation of the case followed.

5. The investigation was conducted by P.W. 10- B.D. Verma, who recorded the statement of
various witnesses and arrived at the spot at 9:30 a.m. on 28.9.1984 and also arrested the accused
Majid at 10.35 hours on the tip off information received by him on the spot. It has come on record
that injuries were caused to Majid when he was running away. He also got prepared inquest report
of deceased Ishrat and has proved the same as exhibit Ka.-17 and thereafter relevant papers like
Challan dead body and Photonash etc., were prepared and has also proved execution of these
papers. He also prepared site plan and proved the same as Ext. Ka. 20. The complainant Irfan Khan
also sustained simple injuries and he was sent to S.B.D. Hospital Saharanpur for medical
examination by the Investigation Officer. The Investigating Officer also prepared various memos
and collected sample of blood stained and simple soil from the spot and has proved the same as
Ext. Ka.-21. He also took sample of blood stained soil and simple soil from the place where injured
Firdaush sustained injuries. This memo is Ext. Ka. 22 on record. It is relevant to mention that the
injured Firdaush was medically examined by the Medical Officer Dr. R.D. Sharma on 28.9.1984 at
9.30 a.m. at S.B.D. Hospital Saharanpur and following injuries were found on his person:

1. Lacerated wound 4cm X 0.5 cm X scalp deep on top of left side head 12 cm. above
from right ear margin. Injury kept under observation. Advised X-ray.

2. L.W. 1.5 cm. X 0.5 cm. X scalp deep on left side head 7 cm. above from upper margin
of left ear. Injury kept under observation. Advised X-ray.

3. Incised wound 2 cm. X 0.5 cm. X muscle on left side face just outer to outer end of left
eyebrow, margins clean cut, fresh bleeding present.

4. Incised wound 4.0 cm x 0.5 cm x muscle on left side face 1 cm below from injury no.3,
margins clean cut, fresh bleeding present

5. Incised wound 1.5 cm x 0.5 cm x muscle on left side chin, margins clean cut, fresh
bleeding present.

6. Incised wound 1 cm x 0.5 cm x muscle on left side face upper part 2 cm below from
left eyebrow. Margins clean cut, fresh bleeding present.

7. Incised wound 3.0 cm x 0.5 cm x bone deep on bridge of nose, Injury kept U/o, Adv.
X-ray, margins clean cut, fresh bleeding present.
4 All. Mustaq and Ors. Vs State Of U.P.

881

8.Traumatic swelling on both eyes lids, measurements 7 cm x 4 cm each. Injury kept
U/O. Referred to Eye Surgeon.

9. Lacerated wound 7 cm x 0.5 cm x scalp deep on frontal part of left side head just above
hair. Margin. Injury kept under observation. Adv. X-ray.

10. Contusion 5 cm x 0.7 cm on middle and front of left thigh.

11. Traumatic swelling 1.5 cm x 8 cm on left side face,

6. Injury kept U/o. Adv. X-ray,

7. Injuries nos. 1, 2 , 7, 8, 9 and 11 were kept under observation and X-ray was advised. Injury
no. 8 was referred to Eye Surgeaon. Other injuries were said to be be simple in nature . Injury nos.
1, 2, 8, 9, 10 and 11 were caused by blunt object and injury nos. 4, 5, 6, 7 were caused by some
sharp edged weapons. Duration was said to be fresh. This injury report is Ext. Ka. 14.

8. Injured Irfan was also examined by Dr. R.D. Sharma in the same hospital on 28.9.1984 at
2.45 p.m. and following injuries were found on his person:

1. Contusion 9 cm. X 3 cm. on the front and upper part of right upper arm.

2. Contusion 6 cm. X 1.5 cm on the outer side of right elbow joint.

3. Abrasion 4 cm. X 1 cm. on the back of right elbow joint.

4. Contusion 4 cm. X 1 cm. on back and inner side of right fore-arm 8 cm. above elbow
joint.

5. Contusion 4 cm. X 1.5 cm. on front of right side chest 2.5 cm. above from right nipple.

6. Contusion 11 cm. X 1.5 cm. on the outer aspect of left upper arm upper part.

7. Complaint of pain in both knee joints but no external mark of injury seen.

9. Injuries on the person of accused Majid were also examined on the aforesaid date at 11.30
a.m. at the same hospital which are as under:

1. Tramatic Swelling 6 cm X 0.5 cm. on left side face just below left eye.

2. Multiple abrasion in an area of 4 cm. X 2 cm. on left supra scapular region.

3. Abrasion 2 cm. X 0.5 cm. on top of left shoulder joint.
882 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Patient complains of pain on left side back of chest and also right side back of chest.
Injury kept U/o. Advised X-ray.

10. This injury report is on record as Ext. Ka.-16. After completing relevant formalities, the
Investigating Officer sent the dead body of Ishrat for post mortem examination. Post mortem
examination on the body of Ishrat was conducted at mortuary Saharanpur on 29.9.1984 at 4.00
P.M. And following ante mortem injuries were found on his body:

1. A circular lacerated wound 2.2 cm. X 2 Cm. X brain deep on right side head 10 Cm.
Above right ear. Brain matter and blood coming out of wound. No singeing of hair or tattooing
mark could be seen, as such due to blood clots but after cleaning and washing the hair and wound,
tattooing mark and charring of skin could be seen around the wound.

2. Abrasion 4 cm. X 1.5 cm., 2 cm. above right eye brow on right side forehead.

3. Abrasion 2 cm. X 1.5 cm., 5 cm above right eye brow on right side forehead.

4. Abrasion 1 cm. X 0.5 cm. on front and upper part of right side chest.

5. Contusion with abrasion 2 cm. X 1 cm. on right upper arm.

11. According to the doctor, the cause of death was shock and haemorrhage due to antemortem injury no. 1. This post mortem report is on record as Ext. Ka. 13.

12. Perusal of record also reflects that another injured Firdaush who was under treatment,
expired on 6.10.1984 and this fact has been verified by P.W.3 S.I. Satyaveer Singh who received
the information of his death from S.B.D. Hospital. He proceeded to S.B.D. Hospital Saharanpur
and prepared inquest report of deceased Firdaush and has proved the same as Ext. Ka. 3. Thereafter
he also prepared relevant papers for sending the dead body for post mortem examination,
whereafter post mortem on dead body of deceased Firdaush was conducted at 4.20 P.M. on
6.10.1984 and following ante mortem injuries were found on his body by Dr. A.B. Garg, (PW-12)
(Medical Officer, S.B.D. Hospital, Sharanpur).

13. Ante-mortem Injuries:-

1. Healing contusion 3 cm x 1 cm at the root of nose.

2. Stitched wound 1 cm long and after cutting the stitches the wound is lacerated. 1/2
centimeters broad, muscle deep and it is present on the left cheek just outer of the left eye.

3. Scabbed abrasion 12 cm x 1/3 cm at the inner aspect of right forearm in the middle.

4. Scabbed contusion 5 cm x 3 cm on the right side of back, just below the right scapula.
4 All. Mustaq and Ors. Vs State Of U.P.

883

5. Lacerated wound 2 cm x 1 cm in the healing stage on the outer aspect of the right
buttock in the middle.

6. Lacerated wound 2 cm x 1/2 cm x muscle deep on the top of the head, 11 cm above the
left ear.

7. Contused swelling 6 cm x 2 cm on the front of the head, 8 cm above the root of the
nose

14. On internal examination he found fracture of the frontal and left temporal bone of the
scalp. Membranes were congested. He also found haematoma present on the brain in front part. In
chest he found right side containing blood, weight of the heart 240 grams and rest normal. He
found teeth 16x16, stomach-empty, large and small intestines contain gases and digested food,
lever-pale and gall-bladder full.

15. In his opinion the death was caused due to coma and septicaemia. He has proved the post
mortem report as Ex. Ka 28 and cause of death was due to ante mortem injuries.

16. Besides, the Investigating Officer recorded statement of various witnesses/persons and
after completing investigation , P.W. 10 I.O. B.D. Verma filed two charge sheets; one against seven
accused persons and proved the same as Ext. Ka. 24 and another charge sheet against accused
Nafees in absconding which is Ext. Ka. 25 on record. Thereafter committal proceedings took place
and the case was committed to court of Session, Saharanpur from where it was made over for trial
to the court of 2nd Additional Sessions Judge, Saharanpur and sessions trial was numbered as S.T.
No. 2 of 1985. Thereafter the appellants were heard on the charge and prima facie ground was
found existing for framing of charges under sections 147, 148, 302/149, 323/149 I.P.C.
Accordingly, the charges were framed, readover and explained to the accused persons in Hindi who
denied the charges and opted for trial.

17. The prosecution was called upon to adduce its testimony whereupon the prosecution
produced P.W. 1 Irfan, who is the first informant and claims himself to be an eye witness of the
incident. Similarly another eye witness P.W. 2 is Mauhind. He also claims himself to be an eye
witness of the incident. P.W. 3 is Satyaveer Singh. He is formal witness of fact of receiving
information of death of injured Firdaush on 6.10.1984 and he prepared inquest report and other
relevant papers for sending the body of Firdaush for post mortem examination. P.W. 4 is H.C.
Roop Chandra Tyagi. He is formal witness. He has proved Ext. Ka. 7 and Ext. Ka.- 8. P.W. 5 is
constable Ram Singh. He is also a formal witness. He has taken dead body of Firdaush for post
mortem examination on 6.10.1984 to mortuary. P.W. 6 is constable Yograj Singh. He prepared
inquest report of deceased Ishrat on 28.9.1984 and handed over the dead body at S.B.D. Hospital,
Saharanpur, for post mortem examination. P.W. 7 is constable Harveer Singh. He has proved
entries made in the Chik FIR which is as Ext. Ka. 10 on record and also proved the relevant G.D.
entries as Ext. Ka. 11. He has also made relevant entries in the concerned G.D. regarding arrest of
accused Mazid. P.W. 8 is Dr. S.K. Gupta. He conducted post mortem examination on dead body of
884 INDIAN LAW REPORTS ALLAHABAD SERIES
Ishrat on 29.9.1984 and has also proved post mortem report as Ext. Ka. 13. P.W. 9 is Dr. R.D.
Sharma who examined injured Irfan, Firdaush and accused Mazid and has proved their injury
reports as Exts. Ka. 14, 15, and 16. P.W. 10 is Investigating officer B.D. Verma. He has proved his
entire investigation and also proved that after conducting investigation, he also filed charge sheets
against appellants. P.W. 11 is constable Malkhan Singh. He has sent special report of this case at
14.10 hours on 28.9.1984 to higher authorities and made relevant entry regarding the same which
entry was made in G.D. vide Ext. Ka. 26. He also proved his return to the police station vide Rapat
no. 30 at 17.50 hours on 28.9.1984 which G.D. entry is Ext. Ka. 27 on record. P.W. 12 is Dr. A.B.
Garg who conducted the post mortem examination of deceased Firdaush on 6.10.1984 and has
proved the same as Ext. Ka. 28.

18. Thereafter, the evidence for the prosecution was closed and the statement of accused
persons was recorded under section 313 Cr.P.C.. In their statement, the appellants submitted that
they have been falsely implicated in this case on account of enmity.

19. Accused Zarif has, inter-alia, submitted that there were two parties in the village one party
was led by the 'Telis' community and the other party was led by 'Pathan'-community. He had no
enmity with the deceased and he had nothing to do with Nafees. Firdaush and Nafees belonged to
the same party. He has not committed any such offence, but he came to know about the death of
deceased (Ishrat) at 6 a.m. in the morning. The member of Pathan party had gathered on the spot.
The deceased belonged to Pathan party and all these members have wrongly implicated the
appellants. The members of both the parties were challaned by the police. Irfan is maternal uncle of
deceased and witness Mauhind is friend and next door neighbour of deceased. No ocular testimony
has been given by the defence. However, they have filed certain documents in support of their
claim of Parti-bandi in the village between 'Telies' and 'Pathan'. Certain documents have been
referred to reflecting on inimical terms. Certain documents have also been filed to impeach
credibility of the witness Mauhind.

20. The learned trial Judge thereafter heard arguments extended on behalf of the prosecution
and the defence and appraised the entire evidence and circumstances on merits and passed
aforesaid judgment and order of conviction and sentence dated 22.12.1986. Consequently, this
appeal.

21. It has been vehemently claimed on behalf of the appellant that the incident, in fact, was
caused in the darkness of night and no one has seen the incident and their bodies were lying in the
locality which was inhabited by members of Teli community due to which the complainant's side
apprehended that injures might have been caused by the appellants which fact if considered
properly vis-a-vis circumstances will be established from record. Eye witnesses, though claim to
have been present on the spot, have not given similar version of manner of assault and firing being
caused and different version have come forth and testimony of both witnesses of fact (PW-1 and
PW-2), is different in material particulars from each other. Even doctor witness who conducted
post mortem examination has expressed opinion that death of Ishrat may be possibly caused in the
morning around 3-4 O' clock on 29.8.1984.
4 All. Mustaq and Ors. Vs State Of U.P.

885

22. Further it is quite strange that witnesses have also named the weapon to which each of the
eight assailants were possessing. The nature of injuries so caused on the person of injured and
deceased as claimed by the witnesses, do not conform to the weapons used in the offence. It has
come in the testimony of the witnesses that all the assailants have caused injuries and weapons used
are knife and Palkati, but there are no incised wound on the complainant side. It is stated that two
shots hit Firdaush but there is only one fire arm injury. P.W.1, was not even present on the spot. He
did not go at the place of occurrence, then how he has sustained injuries? The main perpetrator of
crime, though assuming it to be, was Nafees, he is no more and his appeal has since been abated.

23. On behalf of the State, Shri Mahendra Singh Yadav, learned A.G.A. has engaged attention
of this Court to the testimony of P.W. 1 and 2 and submitted that the prosecution version and
causing of fire arm injuries were proved by the testimony of these witnesses of fact. Firdaush, after
receiving the injuries remained under treatment from 28.9.1984 to 6.10.1984 and he succumbed to
his injuries at last. The firing/shots at the time of occurrence, was in fact, two or more than two but
it has not come exactly as to how many number of shots hit the deceased or the injured. It is true
that Ishrat sustained wound of gun shot but this does not negate firing of two shots on the spot by
the assailants. The case of prosecution is consistently proved beyond reasonable doubt.

24. Learned AGA further added that the Investigating Officer has collected blood stained and
plain soil from the spot where dead body of Ishrat was found and also collected blood stained and
simple soil from the place, where Firdaush was lying injured. Attention of the Court was also
engaged on the statement of one of the appellants given under section 313 Cr.P.C. wherein it has
been stated that when the accused persons got awakened in the morning, they came to know about
the dead bodies lying on the spot. However, there was lying only one dead body that of Ishrat. P.W.
1, no doubt, in clear cut terms stated that only one fire had hit deceased and it has not been
specifically stated at what seat of body did the shot hit the deceased. Therefore, theory of two shots
being fired is correct but only one fire hit the deceased is also correct and no sane person will ever
spare the real perpetrator of crime and falsely implicate the innocent persons when the deceased is
nephew or close relative of the witness. More so, the incident took place in broad day light around
7.45 A.M. in the morning, otherwise, such vivid expression, manner and style of assailants could
not have been given by the witnesses of fact. Latches committed by the Investigating Officer or
minor contradictions will not throw away prosecution case.

25. We have considered the rival submissions and gone through the entire record of the case.

26. The moot point that arises for consideration, in this appeal relates to the fact as to whether
eye witness account testimony as given by P.W. 1 and 2, Irfan, Mauhind, respectively, is wholly
reliable, partly reliable, or not reliable and whether the prosecution has been able to prove its case
against the appellants beyond reasonable doubt?

27. In so far as the present incident is concerned, before we examine the meritorial aspect of
the case, we may scrutinize about the motive alleged by the prosecution for committing the offence.
It has come in the first information report itself that Nafees was demanding Rs. 2,000/- for past two
886 INDIAN LAW REPORTS ALLAHABAD SERIES
days from Firdaush and Ishrat which they did not pay. This was said to be the immediate cause of
assault being caused by the assailants. No doubt, in case of direct and immediate testimony by eye
witnesses, motive is relegated to background and becomes insignificant, but here in this case, the
motive so suggested has not been overruled specifically by the defence and no suggestion,
whatever, was put to the prosecution witnesses of fact, therefore, motive suggested by the
prosecution ought to be believed reasonably and acted upon as such and may be treated to be an
opportunity or incentive for committing the offence by the appellants.

28 Now, we may enter into merits of this case by careful scrutiny of testimony of PW-1 and
PW-2, the eye witnesses produced by the prosecution before the trial court. P.W. 1 Irfan and P.W. 2
Mauhind have narrated details of the incident and the manner in which it was caused. It has come
in their testimony that the Abadi of Teli Locality is extended to southern side of temple of Shivjee
and shop of Mustaq (accused since dead) is located about 150 paces/steps towards south of this
temple and flour mill of Bhurey is located towards south of his shop. There was a street towards
south of flour mill and house of Ibrahim Bharbhuja is located towards south of the street.

29. Eye witness account testimony of the incident has been given by Irfan PW-1 that the
accused belonged to Kailashpur and they are Teli by caste. The incident took place around 7:45
a.m. when Firdaus was going for repairing his watch, he was also following him at a little distance.
Nafees met him near the temple. Nafees pointed a gun on his neck and took him to the locality of
Telis. In the meanwhile, younger brother of Firdaus, namely Ishrat also arrived at the spot. He was
going to attend his duties in foremost dairy. This witness and Ishrat tried to pacify Nafees and
begged for the same, in the meanwhile, Nafees arrived at the shop of Mustaq along with Firdaus
where he called Mustaq, Zarif, Ismail, Furkan, Ikram, Ali Hasan and Mazid. Mustaq was
possessing Palkati (sharp edged weapon), Nafees was possessing pistol, Furkan was possessing
knife, Zarif was possessing spear, Ali Hasan was possessing Lathi and Mazid was possessing axe,
Ikram was also possessing Palkati and Ismail was also possessing Lathi. They began to beat
Firdaush and Isharat. This witness was also beaten when he tried to intervene in the ongoing
assault. Nafees fired from his pistol/gun and it is stated that Nafees fired two shots on Ishrat which
shot hit Isharat due to which he fell down and died. Firdaush rushed to the house of Ibrahim
Bharbhuja in injured condition, but the assailants chased him and beat him inside the house. The
incident was witnessed by few others say Nasim, Ajaz Khan and Mauhind etc. The assailants
escaped from scene towards southern side.

30. The report of the incident was got scribed by one Waris Ali Khan and the same was sent to
the police station. It has been stated that Nafees was demanding Rs.2000/- from Ishrat and Firdaush
for past two days prior to the incident. This witness has also proved the report Ext. Ka-1 and
clothes of Firdaush, which contained blood stains, were handed over to the Investigating Officer,
memo of which is Ext Ka-2.

31. More or less version of the incident has been given by another eyewitness Mauhind PW-2
in the same vein. He too has stated that he was going to take flour from flour mill but the same was
closed. While returning, he saw Nafees pointing gun on the neck of Firdaush and was taking him to
4 All. Mustaq and Ors. Vs State Of U.P.

887
the locality inhabited by Telis. He was being followed by Ishrat and Irfan who were trying to
reconcile him (Nafees). As soon as Nafees arrived at the shop of Mustaq, he called the other
accused persons who were possessing Palkati, Lathi, knife, spear and axe. They all opened assault
and at that juncture, Nafees opened fire on Ishrat who fell down and died on the spot. Firdaush
rushed to the house of Ibrahim Bharbhuja in injured condition but the assailants pursued him upto
inside house and beaten him in the house of Ibrahim. Incidence was witnessed by other persons.

32. It has been stated by PW-2 that report and Firdaush were taken to the police station by
Ajaz, Nawab and Mubarak in Metadoor and arrived at the police station Gogalheri at 8:30 a.m.
Both the eyewitnesses have been crossed examined and they have come out with the version that
two shots were fired by Nafees on Ishrat. At this stage, attention of the Court was engaged to the
post mortem report of Ishrat. Five ante mortem injuries have been found on his body, out of which
injury no.1 was circular lacerated wound 2.2 cm x 2 cm x brain deep on the right side head, 10 cm
above right ear. Brain matter and blood was coming out of the wound..... There were 37 small
irregular metallic pieces in the brain matter. The scalp was fractured and in the opinion of the
doctor, injury no.1 was sufficient in ordinary course of nature to cause death. All these five ante
mortem injuries on the body of the deceased may, in the opinion of the doctor, be caused at 7:45
a.m. on 28.09.1984. Injury nos. 2, 3, 4 and 5 are abrasions and contusions respectively.

33. Dr. S.K. Gupta, PW-8 who conducted post mortem examination has not been specifically
challenged that in no case, injury can be caused at 7:45 a.m. on 28.09.1984 and only this much
suggestion has been given in the cross examination of PW-8 that the deceased may have died
around 3 or 4 O' clock in the morning.

34. At this juncture, it is most relevant to take into consideration injuries found on the person
of Firdaush in his medical examination (Exhibit Ka-14). In this context, PW-9 R.D. Sharma has
testified that he examined Firdaush in S.B.D. Hospital Saharanpur on 28.09.1984 at 9:30 and he
found as many as 11 injuries on his person. Out of these 11 injuries, injury no.8 was referred to Eye
Surgeon. X-ray was advised for injury nos. 1, 2, 7, 8, 9 and 11 whereas injury nos. 1, 2, 8, 9 10 and
11, in the opinion of the doctor, may have been caused by some blunt object like Lathi. Injury no.3,
4, 5, 6, 7 may have been caused by weapon like spear, knife, Palkati and axe. Injury report of the
then injured Firdaush has been proved as Ext. Ka-14 and duration of these injuries was said to be
fresh. He has further stated that these injuries were sufficient in ordinary course of nature to cause
death. He has also stated in clear cut terms that these injuries may have been caused around 7:45
a.m to 8:00 a.m. on 28.09.1984. There is nothing on record to lead us to infer that the death of
Ishrat or injury to Firdaush was caused in the morning of 28.09.1984 around 3 or 4 a.m. Therefore,
suggestion to the extent that assault was caused at 3 or 4 O' clock in the morning stands overruled
in view of the above specific testimony of the doctor PW-8 and PW-9 (Dr. R.D. Sharma) as well as
injury on the person of Firdaush, proved as Ext Ka-14.

35. In this view of the matter, now consideration is confined to the point about presence of
witnesses PW-1 and PW-2 on the spot. It is obvious that both the witnesses have stated that the
incident took place on 28.09.1984 at 7.45 a.m. when the deceased Ishrat was going to attend his
888 INDIAN LAW REPORTS ALLAHABAD SERIES
duties at the foremost dairy and there is nothing on record which may establish that the deceased
Ishrat was not going to attend his duties in the foremost dairy. Nafees had pointed his gun on the
neck of Firdaush and took him to the shop of Mustaq where he called his accomplices who were 7
in number and they arrived at the spot possessing different weapons in their hands and they beaten
up the complainant's side and caused injuries on Firdaush and death of Ishrat. Later on, Firdaush,
too, succumbed to his injuries and died on 06.10.1984.

36. It has been stated that PW-2 was going to flour mill for taking flour but flour mill was
closed. Had there been any extraneous or ulterior motive, PW-2 could have taken even more better
excuse for his presence on the spot. Merely because, the Investigating Officer did not record
statement of the owner of the flour mill, that by itself will not nullify testimony of PW-2. PW-2 has
been named in the first information report as the person who witnessed the incident. Further, it has
come in the testimony that Firdaush was under medical treatment from 28.09.1984 to 06.10.1984
when he died. Testimony of S.I. Satyaveer Singh PW-3 is relevant. As per his testimony, he was
informed by some employees of S.B.D. Hospital, Saharanpur, about death of a man namely
Firdaush. Thereafter he rushed to the hospital and prepared inquest report (Ext Ka-3) and relevant
formalities were completed for ensuring post mortem examination.

37. PW-5 Constable Ram Singh has proved that he took dead body of Firdaush to mortuary,
Saharanpur but it is obvious that no statement of Firdaush could be recorded during 6-7 days when
he was under treatment. May be that he was not in a position to speak or he remained under semi
conscious or unconscious condition. Post mortem examination on the dead body of Firdaush was
conducted by PW-12, Dr. A.B. Garg on 06.10.1984 at 4:20 p.m. He has noted as many as 8 ante
mortem injuries on his body and on internal examination of head, he found frontal bone fractured,
fracture of left temporal bone, membranes congested, haematoma present on the brain infront part
and pus present in the frontal part and top of the brain. This post mortem report is Ext. Ka-28 on
record and in the opinion of the doctor, the cause of death was due to coma and septicaemia. These
injuries were sufficient to cause death of the injured and can be attributable to the act of the
appellants.

38.