# Yunus v. State of U.P

- **Citation:** (2022) 12 ILRA 21
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-12
- **Case number:** Criminal Appeal No. 445 of 2005
- **Bench:** Ramesh Sinha, Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yunus-v-state-of-u-p-48002
- **Pages:** 16

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 302 & 307 -
Arms Act, 1878 - Section 25 - Challenge
to-Conviction-
the
convict/appellant
murdered the three persons i.e. husband,
minor son and daughter of the informant
(P.W.1) and also caused injuries to P.W.1-
and
P.W.2-The
evidence
of
P.W.1-
informant as well as injured eyewitness of
the incident shows the true picture of the
incident -the evidence of P.W.2- narrated
the same prosecution case, who is also an
injured eyewitness of the incident and the
same found fully corroborated with the
post-mortem report of the deceased as
well as from the injury report of the two
injured persons- a bloodstained banka
was recovered along with bloodstained
pant and shirt which the appellant was
wearing from his house and as per report
of the Forensic Science Laboratory, human
blood was found on the gandasa, pant and
shirt of the appellant, the assailants were
no strangers to the inmates of the tragedy
bound house, the eyewitnesses being well
acquainted with the physiognomy of each
one of the killers-The prosecution has
proved its case beyond reasonable doubt
against the convict/appellant-it is well
settled law that the evidence of relatives
of the deceased cannot be thrown on that
count alone but their evidence has to be
examined by this Court minutely with
caution to rule out any possibility of false
implication of the accused.(Para 29 to 40)

B. As regards the contention that all the
eye-witnesses are close relatives of the
deceased, it is by now well settled that a
related witness cannot be said to be an
''interested' witness merely by virtue of
being a relative of the victim. This Court
has elucidated the difference between
''interested' and ''related' witnesses in a
plethora of cases, stating that a witness
may be called interested only when he or
she derives some benefit from the result
of a litigation, which in the context of a
criminal case would mean that the witness
has a direct or indirect interest in seeing
the accused punished due to prior enmity
or other reasons, and thus has a motive to
falsely implicate the accused. (Para 37)
The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,977 of 54,611. This is a partial read: ask again with offset=39977 for what follows._

12 All. Yunus Vs. State of U.P.
21
appellant No.5 Bhanu Pratap Singh are in
jail since 16.10.2018 and shall serve out the
sentence as awarded by the trial court and
confirmed by this Court.

44. Office is directed to send a copy
of this judgment along with lower court
record to the trial court concerned for
necessary information and follow up
action.
----------
(2022) 12 ILRA 21
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.12.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 445 of 2005

Yunus ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Amitabh Srivastava, Sanjay Kumar, Shivam
Sharma

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 302 & 307 -
Arms Act, 1878 - Section 25 - Challenge
to-Conviction-
the
convict/appellant
murdered the three persons i.e. husband,
minor son and daughter of the informant
(P.W.1) and also caused injuries to P.W.1-
and
P.W.2-The
evidence
of
P.W.1-
informant as well as injured eyewitness of
the incident shows the true picture of the
incident -the evidence of P.W.2- narrated
the same prosecution case, who is also an
injured eyewitness of the incident and the
same found fully corroborated with the
post-mortem report of the deceased as
well as from the injury report of the two
injured persons- a bloodstained banka
was recovered along with bloodstained
pant and shirt which the appellant was
wearing from his house and as per report
of the Forensic Science Laboratory, human
blood was found on the gandasa, pant and
shirt of the appellant, the assailants were
no strangers to the inmates of the tragedy
bound house, the eyewitnesses being well
acquainted with the physiognomy of each
one of the killers-The prosecution has
proved its case beyond reasonable doubt
against the convict/appellant-it is well
settled law that the evidence of relatives
of the deceased cannot be thrown on that
count alone but their evidence has to be
examined by this Court minutely with
caution to rule out any possibility of false
implication of the accused.(Para 29 to 40)

B. As regards the contention that all the
eye-witnesses are close relatives of the
deceased, it is by now well settled that a
related witness cannot be said to be an
''interested' witness merely by virtue of
being a relative of the victim. This Court
has elucidated the difference between
''interested' and ''related' witnesses in a
plethora of cases, stating that a witness
may be called interested only when he or
she derives some benefit from the result
of a litigation, which in the context of a
criminal case would mean that the witness
has a direct or indirect interest in seeing
the accused punished due to prior enmity
or other reasons, and thus has a motive to
falsely implicate the accused. (Para 37)
The appeal is dismissed. (E-6)

List of Cases cited:

1. Mano Dutt & anr. Vs St. of U.P. (2012) 4 SCC
79

2. Abdul Sayeed Vs St. of M.P. (2010) 10 SCC
259

3. St. of U.P. Vs Krishna Master (2010) 12 SCC

4. Nathuni Yadav Vs St. of Bih. (1998) 9 SCC
238
22 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Raja Vs St. of T.N. (2008) SCC Online Mad
478

6. Sudhakar Vs St. (2018) 5 SCC 435.

7. Mohd. Rojali Vs St. of Assam (2019) 19 SCC
567

(Delivered by Hon'ble Ramesh Sinha, J.)

(The judgment is pronounced in terms
of Chapter VII Sub-rule (2) of Rule (1)
of the Allahabad High Court Rules,
1952 by Hon'ble Ramesh Sinha, J.)

(1) The convict/appellant, Yunus
was tried by the Additional Sessions
Judge, Fast Tract Court No.1, District
Hardoi in Sessions Trial No.189 of 2002:
State vs. Yunus, arising out of Case Crime
No.338 of 2001 for the offence under
Sections 307, 302 of Indian Penal Code,
1860 (in short "I.P.C.") and in Sessions
Trial No.190 of 2002: State vs. Yunus
arising out of Case Crime No.351 of 2001
for the offence under Section 3/25 Arms
Act, which were registered at Police
Station Shahbad, District Hardoi.

(2) Vide judgment and order dated
01.02.2005 passed in Sessions Trial Nos.
189 of 2002 & 190 of 2002, the
Additional Sessions Judge, Fast Track
Court
No.1,
Hardoi
convicted
the
appellant under Sections 302, 307 I.P.C..
and Section 25 Arms Act and sentenced
him to undergo:-

"(a) Under Section 302 I.P.C. to
undergo life imprisonment and to pay a
fine of Rs.10,000/-, in default of payment
of
fine,
to
undergo
additional
imprisonment for two years.

(b) Under Section 307 I.P.C. to
undergo seven years imprisonment and to
pay a fine of Rs.4,000/-, in default of
payment of fine, to undergo additional
imprisonment for one year.

(c) Under Section 25 Arms Act
to
undergo
one
year
rigorous
imprisonment and to pay a fine of
Rs.2,000/-, in default of payment of fine,
to
undergo
six
months
additional
imprisonment."

All the aforesaid sentences were
directed to be run concurrently.

(3) Feeling aggrieved by the aforesaid
judgment and order dated 01.02.2005,
convict/appellant has preferred the instant
appeal before this Court.

(4) The facts relating to the case are
as under:-

The informant, Smt. Gudiya alias
Guddi (P.W.1) was sleeping along with her
family members. Her son and husband
were sleeping outside in the courtyard and
the informant alongwith her daughter Km.
Nagma were sleeping on one cot and
another
daughter
Km.
Gulshan
was
sleeping equally on the other cot. The bulb
was burning in the house, therefore, there
was light. The locks of the outer doors were
closed from inside. Then on 30.10.2001 at
around 4:30 a.m., suddenly voice of
husband and sons's of the informant was
heard, then her eyes opened. When she got
up and came to the door of the room, she
saw that her brother-in-law's son Yunus
(convict/appellant)
was
assaulting
her
husband and son with Gandasa (a sharp
edged
weapon)
and
when
the
convict/accused saw the informant then he
assaulted her with Gandasa. Then the
informant fell there after being injured.
Thereafter, she kept silent due to fear, then
convict/appellant Yunus thinking her to be
dead and also assaulted her daughter
Gulshan and Nagama with Gandasa and
12 All. Yunus Vs. State of U.P.
23
said that everyone is dead. Thinking
everyone was dead, he started leaving with
a burrow and climbed the ladder. Then the
informant cried out in fear, then people
from
outside
came.
After
that
convict/appellant
Yunus
armed
with
country-made pistol has fired at roof and
fled away by jumping from his house. Then
she opened her door. The dead body of her
husband, son and daughter are lying on the
spot. It was further stated in the F.I.R. that
the appellant Yusuf and his family members
wanted to take all the property from the
informant and her family members, due to
which, they have done this incident. She
has brought her injured daughter Nagma to
police station and submitted a report for
registering
F.I.R.
against
the
accused/appellant.

(5) The informant Smt. Gudiya alias
Guddi (P.W.1) got the written report of the
incident scribed by one Shambhu Nath
Gupta, Moharir, who after scribing it read it
over to her. She thereafter affixed her
thumb impression on it. She then proceeded
to the Police Station Shahabad and lodged
it. The written report of the incident is
proved as Ext. Ka-1.

(6) The evidence of P.W.3- Jamuna
Pandey shows that on 30.10.2001, he was
posted as Constable at Police Station
Sahabad, District Hardoi and on the said
date, at 6:15 a.m., informant- Smt. Guddi
(P.W.1) came and filed a written report, on
the basis of which, he prepared the chik
F.I.R. (Ext. Ka-2). He further entered the
same in G.D. Report No.7 (Ext. Ka-3).

(7) A perusal of the chik F.I.R. shows
that distance between the place of incident
and Police Station Sahabad was four
furlang. It is significant to mention that a
perusal of the chik F.I.R. also shows that on
its basis, a Case Crime No. 338 of 2001,
under Sections 302, 307 I.P.C. was
registered against the appellant Yunus.
After lodging the F.I.R., the informant Smt.
Guddi and Km. Nagma, who sustained
injuries, were sent to District Hospital
Hardoi wherein between 8:30 to 8:50 a.m.,
the Doctor examined them.

(8) The investigation of the case was
conducted by Shri T.P. Singh (P.W.5). His
evidence
 runs as under:-

From 30.10.2001 to 27.12.2001,
he
was
posted
as
Inspector
Incharge/S.H.O. at Police Station Sahabad.
The case was registered at police station on
30.10.2001 at 6:15 a.m. in his presence.
The investigation of the case was taken by
him on the date itself. He recorded the
statement of informant Smt. Guddi (P.W.1)
at police station and send her immediately
to the District Hospital along with her
minor daughter for medical examination.
Thereafter he proceeded to the place of
occurrence. On reaching the place of
occurrence, recorded the statement of
witness Fuddan (neighbour of informant)
and directed S.I. Maharaj Singh to conduct
the inquest proceedings and sent the three
dead bodies for post-mortem examination.
He, thereafter, inspected the place of
occurrence and prepared the site plan (Ext.
Ka-6). He collected the blood stained earth
and plain earth from the place of
occurrence in a two separate containers,
kathari and pillow (Ext. Ka-7, 8 and 9). He
further collected the 13 numbers of broken
glass bangles (Ext. Ka-10) and also
recovered one empty cartridge (Ext. Ka11). The accused Yunus was arrested on
04.11.2001 then he stated in presence of
witness that bloodstained Gandasa, with
which,
he
committed
murder
and
24 INDIAN LAW REPORTS ALLAHABAD SERIES
bloodstained
clothes,
which
he
was
wearing at the time of occurrence were
hidden in his house. Then he proceeded to
the house of accused Yunus along with
witnesses Sonpal and Nausheshah. He
recovered bloodstained Gandasa, pant and
shirt from the house of the accused and the
accused has confessed his crime there.
Then S.I. Chandra Bhan Yadav has
prepared the recovery memo of the said
recovery as Ext. Ka-12. All the aforesaid
recovered articles were sent to Forensic
Science
Laboratory,
Lucknow
for
examination. He recorded the statement of
witness Mangal Shah and after concluding
the investigation, he submitted charge-sheet
on 08.12.2001 which was proved as Ext.
Ka-13.

P.W.5- T.P. Singh further deposed
in
his
examination-in-chief
that
on
03.11.2001 at 8:30 p.m., he along with his
companion have arrested the accused Km.
Yunus from railway crossing at Bahad
village Sikandarpur and during his physical
search, a country-made pistol in running
position was recovered from the right
pocket of his pant whereas from the left
pocket of his pant, two live cartridges of 12
bore were recovered and the accused was
unable to show the licence for keeping the
aforesaid weapon with him. The accused
was acknowledged about registration of
case under Section 302 I.P.C. against him
and taken him into police custody. The
accused has confessed his crime, therefore,
he enquired him separately. He prepared
the recovery memo of a country-made
pistol and live cartridges which was proved
as Ext. Ka-17. The case under Section 25
Arms Act was registered against the
appellant. The statement of accused was
recorded on 04.11.2001, in which, he has
confessed his crime.

P.W.5- T.P. Singh, in his crossexamination deposed that prior to search of
accused, they have searched each other and
assured that no contraband item is found in
the possession of Police Team. On search
of accused, nothing incriminating was
recovered except a country-made pistol and
live cartridges at the pointing out of
accused. The recovery memo was prepared
in the light of jeep headlight and torch.

(9) The evidence of P.W.7- Sri
Krishan Yadav shows that on 03.11.2001,
he was posted as Constable at Police
Station Shahabad. On the said date, he
along with Inspector In-charge T.P. Singh
(P.W.5), S.I. C.P. Yadav, S.I. Vrishkant Ray,
S.I. Lamheraj Singh, Constable Sham
Bahadur Yadav and jeep driver Amar Nath
Tiwari had gone to Shahadara railway
station in order to arrest the wanted
accused. Then on the information given by
the informer that accused Yunus has gone
to Aujhi station. They arrested the accused
Yunus near railway crossing on 03.11.2001
at 8:30 p.m. and during search of accused
Yunus, they found one country-made pistol
of 12 bore in his right pocket of pant and
two live cartridges of 12 bore was also
found in his left pocket of pant and
recovery memo of the said articles was
prepared in his presence. In the said
recovery memo, he and his companion also
put their signature. The recovered articles
were present on the spot. The accused has
confessed the commission of murder.

P.W.7- Sri Krishan Yadav, in his
cross-examination deposed that they have
arrested the accused Yunus from the spot.
No search of anyone was made before and
after the arrest of the accused. Nothing was
recovered except a country-made pistol or
live cartridges at the pointing out of the
accused. He further deposed that records
and the arrest was made on the spot and
thereafter they came back to the police
12 All. Yunus Vs. State of U.P.
25
station and submitted the recovered articles
and custody of accused was made. The
entry of the said recovered articles and
arrest of accused in G.D. was made by S.I.
C.K. Yadav.

(10) The evidence of P.W.8- Sarvesh
Kumar Sharma shows that on 03.11.2001,
he was posted as Constable Moharir at
police station Shahbabd, District Hardoi.
He deposed in his examination-in-chief that
on the said date, he lodged the chik F.I.R.
of the said case under Section 25 Arms Act
on the basis of recovery memo which was
proved as Ext. Ka-18. He had made the
entry of the same in G.D. Report No.30.

In his cross-examination P.W.8-
Sarvesh Kumar Sharma deposed that it is
wrong to say that chik F.I.R. under Section
25 Arms Act was lodged anti-timed.

(11) The evidence of P.W.9- S.I. Ram
Awatar Singh shows that on 03.11.2001,
he was posted as S.I. at police station
Shahabad, District Hardoi. P.W.9 deposed
in
his
examination-in-chief
that
the
investigation of Case Crime No.351 of
2001, under Section 25 Arms Act was
handed over to him. During investigation,
he has recorded the chik F.I.R., copy of
report in G.D. and the statements of
companion Inspector-in-charge S.I. T.P.
Singh, S.I. Mehraj Singh, S.I. Krishna
Kant, S.I. Chandra Bhan Yadav, Constable
Sri Krishna Yadav (P.W.7) and Constable
Ram Bahadur Yadav was recorded by him.
The aforesaid procedure was done on
03.11.2001 and 04.11.2001. On 04.11.2001,
on the direction of the S.I. Krishna Kant
Roy, he inspected the place of occurrence
and prepared the site plan (naksha nazri)
under his signature which was proved as
Ext. Ka-20. The Investigating Officer has
framed the charges against the accused
Yunus under Sections 302, 307 I.P.C. and
took the custody of bloodstained Gandasa
and bloodstained clothes of the accused
Yunus and recovery memo of the said
articles was prepared under his handwriting
and signature in presence of witnesses Son
Pal and Naushad Ali (P.W.10) which was
proved as Ext. Ka-12. On 08.12.2001 the
permission for initiating proceedings under
Section 25 Arms Act was granted by the
then District Magistrate Shri V.V. Singh
which was proved by Ext. Ka-21. On the
said date, on the basis of sufficient
evidence, filed a chargesheet against the
accused/appellant Yunus under Section
3/25 of Arms Act, which was signed by him
and proved as Ext. Ka-22. He further
deposed that he is well aware of the
handwriting and signature of S.I. Mehraj
Singh as he was posted at Police Station
Sahabad along with him. In Case Crime
No.338 of 2001 which was registered under
Sections
302,
307
I.P.C.,
the
panchayatnama
and
related
police
documents of deceased Nabiullah, Asif and
Km. Gulshan was prepared by S.I. Mehraj
Singh in his presence. The said document
was presented before the witness in the
Court. The panchayatnama of deceased
Nabiullaha was proved as Ext. Ka 23,
Chitthi Mazrobi as Ext.Ka 24, letter to
C.M.O. (Ext. Ka 25), Challan lash (Ext.
Ka-26), Photo lash (Ext. Ka-27), C.M.O.
Report (Ext. Ka-28) and sample stamp
(Ext. Ka 29). The panchayatnama of
deceased Asif was proved as Ext. Ka 30,
Chithi Mazroobi (Ext. Ka 31), letter to
C.M.O. (Ext. Ka 32), Challan lash (Ext.
Ka- 33), Photo lash (Ext. Ka 34), C.M.O.
report on the cloth of deceased which was
sent to police station (Ext. Ka- 35) and
sample
stamp
(Ext.
Ka
36).
The
panchayatnama of deceased Km. Gulshan
was proved as Ext. Ka 37, Chithi Mazroobi
(Ext. Ka 38), letter to C.M.O. (Ext. Ka 39),
26 INDIAN LAW REPORTS ALLAHABAD SERIES
Challan lash (Ext. Ka- 40), Photo lash (Ext.
Ka 41), C.M.O. report on the cloth of
deceased which was sent to police station
(Ext. Ka- 42) and sample stamp (Ext. Ka
43).

P.W.9- S.I. Ram Awatar Singh,
in his cross-examination, deposed that
neither he was aware of the fact that for
how long recovered articles were in the
police station nor he knew when they
were sent to Forensic Science Laboratory,
Lucknow.
Furthermore,
he
neither
inquired anything from the accused
before the recovery of the articles nor any
statements were recorded. The statement
of accused were written in the case diary
by Investigating Officer. The place from
where the accused was arrested shown to
him by the S.I. but where the jeep was
stalled was not shown to him. The
witness was not aware as to how many
persons lived in the house with the
accused. When the witness along with the
accused entered in the house, there was
no man or woman in the house and also
no one from nearby was willing to come
when called upon by the witness. This
fact was not mentioned in the recovery
memo reason being there were two
person from public with the accused
already. He could not recollect when his
statement was taken but he affirmed that
the Investigating Officer has taken his
statement. Although upon seeing the case
diary, he deposed that statement of
witness Son Pal and others along with his
statements are not recorded in it.

(12) The evidence of P.W.10-
Naushad Ali alias Naushe shah, who is
the witness of recovery of alleged
weapon of assault i.e. Gandasa, has
deposed in his examination-in-chief that
on 04.11.2001, the accused-appellant
Yunus has not given any Gandasa or any
other items to the police. He also did not
go inside the house at the instance of the
police. The said witness was declared
hostile by the trial Court and was
permitted for the cross-examination.

In cross-examination, P.W.10
deposed that the recovery memo (ext. Ka12) was presented to the witness which
upon seeing deposed that it was his
signature which was made at the instance
of the police officer on a blank paper in
the police station. The Investigating
Officer has not ever recorded any
statement regarding to the present case. It
is wrong to say that he has joined the
hand with the accused, therefore, he has
falsely deposed.

(13) The injuries of injured Smt.
Guddi (P.W.1) and Km. Nagma (P.W.2)
were examined on 30.10.2001 at 8:30
a.m. and 8:50 a.m. respectively, by Dr.
C.K. Gupta (P.W.4), who was posted as
E.M.O. (Emergency Medical Officer) at
District Hospital Hardoi. Dr. C.K. Gupta
(P.W.4) found the following injuries on
the persons of injured Smt. Guddi (P.W.1)
and Km. Nagma (P.W.2):-

"Injury
of
informant
Smt.
Guddi (P.W.1), wife of Nabiullah

(1) I.W. on left eyebrow lateral
half 2.5 cm x 0.5 cm x bone deep fresh
bleeding.

(2) I.W. on left face cheek
transfers 2.5 cm x 0.5 cm x subcut deep
fresh blood.

(3) I.W. on Rt. forearm dorsal
middle 5 cm x 2.5 cm x subcut deep fresh
blood margin clear cut.

(4) I.W. on Rt. hand medial
border middle 3 cm x 0.5 cm x bone deep
fresh blood margin clear cut.
12 All. Yunus Vs. State of U.P.
27

(5) I.W. on Lt. wrist dorsal
extending onto hand 6 cm x 3 cm x bone
deep fresh blood.

(6) I.W. on Lt. forearm dorsal
medial border upper part 6cm x 3 cm x
subcut deep fresh blood margin clear cut.

(7) I.W. on scalp frontal region
middle transfers 4.5 cm x 0.5 cm scalp deep
7 cm above bridge of nose.

(8) I.W. on scalp front parietal
junction 5 cm x 0.5 cm x scalp deep fresh
blood."

As per the opinion of the Doctor
condition of the patient was very poor;
injuries were caused by sharp object;
duration was about fresh; all the injuries
were kept under observation; advise for xray of skull, Rt. forearm and Lt. forearm.

"Injury of Km. Nagma (P.W.2)
D/o Mohd. Nabiullah aged about 4 years

(1) I.W. on Lt. forehead transfers
extending from midleni to temporal region
side 12 cm x 3 cm x cranial cavity deep
underlying bone deep and fresh blood with
parts of cerebral malte flowing out.
Margins clear cut."

As per opinion of Doctor the
injury caused by sharp object. Duration of
injury is fresh; nature of injury kept under
observation; advised for x-ray skull.

(14) The post-mortem on the dead
body of the deceased Nabiullah, Asif and
Km.
Gulshan
were
conducted
on
30.10.2001 at 4:00 pm., 4:30 pm. and 5:00
p.m. respectively by Dr. J.L. Gautam
(P.W.6), who was posted as E.M.O.
(Emergency Medical Officer) at District
Hospital, Hardoi.

"Ante-mortem
injuries
of
deceased Nabiullah aged about 40 years

(1) Incised wound 12.0 cm x 3.0
cm x bone deep present left knee scalp 7.0
cm above from left ear. Cranial cavity
exposed brain matter coming out of wound
in obliquely placed.

(2) Incised wound 9.0 cm x 2.0
cm x cranial cavity deep present left side
scalp 1.5 cm below injury no.1.

(3) Incised wound 10.0 c.m. x 1.0
cm muscle above deep present on left face
upto left ear."

"Ante-mortem
injuries
of
deceased Asif aged about 6 years

(1) Incised wound 14.0 cm x 2.0
cm. x cranial cavity deep presema tab of
scalp
obliquely
situated
underneath
postrial part of both parietal and occipital
bones found fractured. Brain matter in
cavity."

"Ante-mortem
injuries
of
deceased Km. Gulshan aged about 10
years

(1) Incised wound 10.0 cm x 2.0
cm x cranial cavity deep presema middle of
scalp 6.0 cm. above root of nose.
Underneath frontal bone found fractured.

(2) Incised wound 3.0 cm x 1.0
cm x bone deep presema left side scalp just
above left ear with cut wound through and
through of left ear pinna underneath left
parietal bone found fractured.

(3) Incised wound 2.0 cm x 0.5
cm x bone deep present over chin."

The cause of death spelt out in
post-mortem report is due to coma as a
result of ante-mortem injuries.

P.W.6- Dr. J.L. Gautam has
proved the post-mortem of all the three
deceased as Ext.Ka-14, Ka-15 and Ka-16.
He further opined that ante-mortem injuries
of all the three deceased could be
attributable by sharp edged weapon i.e.
Gandasa. He further deposed that death of
the deceased could be caused possibly on
30.10.2001 at 4:30 a.m.

In his cross-examination P.W.6-
Dr. J.L. Gautam deposed that upon
observing the injuries of the deceased, it
28 INDIAN LAW REPORTS ALLAHABAD SERIES
can be perceived that it could be sustained
from one or two sharp-edged heavy
weapon. The time of death of the deceased
mentioned could be inclusive of 2-3 hours
from both end.

(15) The case was committed to the
Court of Chief Judicial Magistrate, Hardoi
on 25.02.2002 and the Additional Sessions
Judge, Court No.5, Hardoi framed charges
against convict/appellant- Yunus, under
Sections 302/307 I.P.C. on 06.10.2003 and
Additional Sessions Judge, Fast Tract Court
No.1,
Hardoi
framed
charge
against
convict/appellant under Section 25 Arms Act
on 20.11.2004. He pleaded not guilty to the
charges and claimed to be tried. His defence
was of denial.

(16) During trial, in all, the
prosecution examined ten witnesses viz.
P.W.1-Smt. Gudiya alias Guddi, who is the
informant of the case, P.W.2- Km. Nagma,
who is an eyewitness of the incident,
P.W.3- Constable Jamuna Pandey, who
lodged
chik
F.I.R.
against
the
convict/appellant, P.W.4- Dr. C.K. Gupta,
who examined the injury of injured i.e.
Smt. Gudiya alias Guddi (P.W.1) and Km.
Nagma (P.W.2), P.W.5- T.P. Singh, who is
the Investigating Officer of the case, P.W.6-
Dr. J.L. Gautam, who conducted postmortem of the body of deceased, P.W.7-
Constable Sri Krishan Yadav, P.W.8-
Sarvesh Kumar Sharma, P.W.9- S.I. Ram
Awatar,
P.W.10-
Naushad
Ali
alias
Nausheshah, who is the witness of recovery
of alleged weapon of assault i.e. Gandasa.

(17) After completion of prosecution,
statement of convict/appellant- Yunus was
recorded under Section 313 Cr.P.C., wherein
he denied the prosecution evidence and
stated that he has been falsely implicated in
the present case due to enmity.

(18) Now, we would first like to deal
with the evidence of informant, P.W.1-
Smt. Gudiya alias Guddi, who is also an
injured
witness,
deposed
in
her
examination-in-chief
that
deceased
Nabiullah was her husband, deceased Asif
was her son and deceased Gulshan was her
daughter. The incident was of around two
and half years ago, the witness, her
husband and their children were sleeping
inside the house. Her house is in Shahbad
where the facility of electricity is available.
On the night of the incident, a bulb was
illuminating because of which there was
light over there. Her husband and her son
was lying in the corridor while the witness
and her daughters were lying in a room. At
around 4-4:30 a.m., she heard the cries of
her husband and son and she ran. When she
reached at the doorstep of the room, she
saw that accused Yunus armed with
Gandasa was hitting her husband and son.
Accused Yunus was accompanied by Asif
Beg, Tanveer, Nasir, Waseem, Nanhey and
Raviullah. The companions of the accused
ran and grabbed her, meanwhile, the
daughters Gulshan and Nagma also came
out, all the companions of the accused
caught hold of the witness and her daughter
while accused Yusuf hit them with
Gandasa. On hearing the hues and cries of
them, the people of the locality gathered
then accused and his companions run away
from where they came i.e. the roof of the
house. The accused was on the roof and he
fired. Thereafter, other companion ran
away. Then somehow the witness opened
the front door and saw that her husband and
son Asif and daughter were dead. She and
her daughter Nagma had sustained injuries.
All the accused had country-made pistol in
their hand. The accused Rafiqullah is jeth
(brother-in-law) of the witness and the
accused Yunus is his son. The house of the
witness had three shops which are in
12 All. Yunus Vs. State of U.P.
29
possession of Asif, Nasir, Tanveer and
Waseem and in her house, has been taken
possession
by
her
brother-in-law
Rafiqullah. The witness is living in fear in
Momeen District Hardoi and the accused
are still searching for her with the intention
to kill her. She went to Shahabad Police
Station in order to lodge the report of the
incident where she met one Munshi and she
narrated whole incident to him and told him
the names of the accused. The witness
deposed that she is illiterate and also that
report was not read over to her but she
imprinted the thumb impression over the
report. The witness is sustained a lot of
injuries because of which, she could not
understand that the names of the accused
she was telling while deposing in the trial
Court has not been mentioned in the said
report. When the said report was read it
over to her, she said that the names of
accused is not completed and remaining
thing is true which was proved as Ext. Ka1. All the accused were identified in proper
light by her.

P.W.1- Smt. Gudiya alias Guddi
in her cross-examination deposed that her
mother is alive. She has no real brother,
cousin brothers. Names of cousin brothers
are Firoz, Siddiq, Anis, Siraj etc. She did
not know their father's name. He died. Her
father's name is Babu. He also died. After
the murder, she was living at Mominabad.
She has danger to her life and also to the
person on whose place she lives. In
Mominabad, she lives at the place of one
Sakraula. Sakraula is present in the Trial
Court. She attends the Court along with
Sakraula and cousins. Younger brother of
the accused Yunus is Yusuf. The house of
the witness and the house of the accused
Yunus are separate. The witness and her
husband along with their children used to
live in a separate house. Accused Yunus,
Yusuf (brother) and father used to live
together in a separate house. There was not
any difference in the age of the witness and
her husband at the time of their marriage. It
is wrong to say that the age of the husband
was older than the witness. The Inspector
has taken the statement of the witness. The
witness denied that she has given the
statement to the police that her husband
was much older to her, if the Inspector has
written such a statement then witness is not
aware of reason thereof. After the incident,
the witness didn't go to the police station.
The police personnel had came to her
house. She told the names of Naseer,
Wasim, Yunus, who had killed her husband
and children by a Gandasa. One boy
Tanveer and Asif were involved in murder.
Wasim, Naseer, Nanhe, Rafiullah were also
involved in the murder. The witness had
told the names of all the accused to the
Police. The police has not lodged any
report. The witness opened the lock when
the police had arrived. She had told the
names of the accused to the police and after
telling the names she fainted. The witness
deposed that she remained unconscious till
reaching to Lucknow. The witness doesn't
know to which place did the Police take
her. During the scuffle, she had also
sustained injuries. She was hit by the
Banka six times. The witness had also the
scar of the injuries on her head and hand.
The witness is illiterate. At the time of the
incident she was sleeping in the room along
with her two daughters. The husband of the
witness and her son Asif were sleeping
outside the house. When Tanvir and Asif
grabbed her husband then she screamed
and made a lot of noise. While screaming
she reached to rescue. Accused Yunus had
cut the husband of the witness by Gandasa.
When she reached near her husband to
protect then Naseer and Wasim had
grabbed her. Accused Yunus also hit her on
30 INDIAN LAW REPORTS ALLAHABAD SERIES
the said spot with the Gandasa. She
instructed the children to run away. The
daughter of the witness Gulshan ran away
in the room and hid under the blanket and
pleaded "dear brother don't kill me". Nanhe
caught the daughter of the witness and
Yunus hit her. The son of the witness hold
her then the accused Yunus also hit her. The
roof of the house of Yunus , Rafeeullah and
the witness is conjoined and their stairs are
always there. They came in and went back
by climbing up to the roof of the house.
The witness had deposed that names of all
the accused in the court and had not told it
before anyone. The witness deposed a total
of seven persons came into her house.

(19) P.W.2- Nagma, who is daughter
of the informant in her examination-inchief deposed that name of her mother is
Gudiya (P.W.1). In her house, father
Nabiullah, brother Asif Beg, sister Gulshan
and her mother Gudi were lived. The
accused Yunus intruded in her house in the
night which is present in the trial court. He
had hit everyone present in the house. Her
father, Asif and Gulshan died on the spot
while the witness sustained injuries. There
was light in the house as the bulb was
illuminating.

(20) In her cross-examination P.W.2-
Nagma deposed that she and her mother
were lived with Babu at Mominabad,
Hardoi. Accused Yunus had grabbed her in
the house. Asif, Tanvir and Yunus had hit
the witness. They also hit her mother and
father. Naseer and Wasim had grabbed her
mother and the witness remained standing
there. There were seven people who
intruded in the house and all seven of them
were involved in the fight. They took away
the box from her house. When the fight
occurred, the mother of the witness (P.W.1)
was present on the spot. The witness had
eye-witness of the incident. It is wrong to
say that the witness is deposing after being
tutored.

(21) Heard Shri Sanjay Kumar,
learned counsel for the appellant, Shri
Arunendra, learned A.G.A. for the Staterespondents and perused the material
available on record.

(22) It has been argued by learned
counsel for appellant that the appellant has
been falsely implicated in the present case
on account of the fact that he was having
some
previous
animosity
with
the
informant and her husband, as the appellant
was the son of the elder brother of the
husband of the deceased. He further argued
that the incident has taken place in the
night wherein the deceased and his minor
son and daughter was done to death by
some
unknown
miscreants
with
an
intention to commit dacoity in his house
entered and murdered three persons and the
informant and her daughter received
injuries at their hands. He further argued
that from the F.I.R., it is apparent that the
same was lodged against the appellant but
during the trial the statement of the
informant P.W.1- Smt. Gudiya alias Guddi
was recorded by the trial court wherein, she
has stated that there were six other accused
persons i.e. Asif Beg, Tanveer, Naseer,
Wasim, Nanhey, Rafiullah along with the
appellant, who have entered her house and
committed murder of her husband, two
children and also inflicted injury on her as
well as on her daughter. The falsity of the
prosecution case is evident from the fact
that the said accused persons were not put
to trial by the prosecution and the appellant
alone has been tried and convicted and
sentenced by the trial court without there
being any cogent evidence against him,
hence, the impugned judgment and order
12 All. Yunus Vs. State of U.P.
31
passed by the trial Court is liable to be set
aside and the appellant be acquitted.

(23) It has further been argued by
learned counsel for appellant that there was
no proper source of light at the place of
occurrence, in which the appellant could be
identified and it has come in the evidence
that the bulb was illuminiting at the house
of the informant and deceased but the
Investigating Officer has not shown the
source of light in the site plan prepared of
the place of occurrence, hence, the
involvement of the appellant in the present
crime is only on the basis of suspicion and
inimical relationship with the informant's
family.
He
next
argued
that
the
bloodstained Gandansa, which is a weapon
of assault, stated to have been recovered at
the pointing out of the appellant from his
house along with the bloodstained pant and
shirt of the appellant which he was wearing
at the time of the occurrence, is in fact, a
false recovery, as two witnesses of recovery
of the said recovery which has been
prepared as recovery memo Ext. Ka-12
dated 04.11.2001, namely, Son Pal and
Naushad Ali (P.W. 10), out of which, Son
Pal
was
not
produced
before
the
prosecution to prove the said recovery
whereas Naushad Ali (P.W. 10) has not
supported the said recovery.

(24) Learned counsel for appellant
further argued that the evidence of P.W.1-
Smt. Gudiya alias Guddi is not a reliable
piece of evidence because informant is a
highly interested and partitioned witness
and moreover there appears to be major
contradiction in her evidence which is
contrary to the F.I.R. lodged by her of the
incident. P.W.3- Kumari Nagma, who is a
child witness, is also not a reliable one, as
she happens to be a tutored witness, as she
was in the company of some other, who has
compelled her to depose against the
appellant. He further argued that one
Waseem had lodged the N.C.R. for the
offence under Sections 498 I.P.C. on
30.01.2001 stating that his wife Smt. Guddi
(P.W.1) has been enticed away by some
persons and she was found at the house of
the deceased Nabiullah, due to which, the
appellant has been implicated in the present
case and the origin of the prosecution case,
has been deliberately concealed by the
prosecution.

(25) Learned A.G.A., on the other
hand,
has
vehementally
rebutted
the
argument of learned counsel for appellant
and has submitted that appellant was
named in the F.I.R. and he has committed
the murder of deceased (Nabiullah), who
was his uncle and two cousins by Gandasa
and also assaulted the informant P.W.1-
Smt. Guddi, who is wife of the deceased
Nabiullah and her minor daughter, namely,
Km. Nagma, who have suffered incised
wound
on
their
person. He
further
submitted that one of the deceased (Km.
Gulshan) was aged about 10 years whereas
deceased Asif was aged about 6 years and it
is a cold blooded murder and the P.W.1-
Smt. Guddi along with P.W.2- Kumari
Nagma, who are the injured witnesses of
the occurrence have fully supported the
prosecution case which is corroborated by
the ocular testimony. He next submitted
that the complicity of the appellant in the
present case cannot be ruled out as when
the appellant was arrested by the police on
03.11.2021 and he was taken out from the
police lockup on 04.11.2021 and on his
pointing
out
bloodstained
Gandasa,
weapon of assault and bloodstained pant
and shirt were recovered from his house
and it was kept in a jute beg. The said
articles were sent to the Forensic Science
Laboratory, Lucknow and as per report of
32 INDIAN LAW REPORTS ALLAHABAD SERIES
the Forensic Science Laboratory, human
blood was found on the Gandasa, pant and
shirt of the appellant.

(26)

Learned
A.G.A.
further
submitted that the appellant has also strong
motive to commit the murder of the
deceased, as it has come in the evidence of
P.W.1- Smt. Guddi that the appellant
wanted to grab the property of the deceased
(Nabiullah) and the informant due to which
her husband and two children were done to
death and the recovery memo Ext. Ka-12,
shows
the
recovery
of
bloodstained
Gandasa, pant and shirt of the appellant
has also been prepared and the same was
also signed in the presence of all the
witnesses, namely, Son Pal and one
Naushad Ali alias Nausheshah (P.W.10).
He further submitted that simply because
Naushad Ali (P.W.10) has turned hostile,
the recovery memo cannot be said to be
doubted, as the appellant has also signed in
the recovery memo.

(27) After considered the submissions
advanced by learned counsel for parties, we
have perused the impugned judgment along
with lower court record and its exhibits and
has further given a thoughtful consideration
to the submissions advanced by learned
counsel for the parties.

(28) It is evident from the prosecution
case that the incident has taken place in the
house of the informant in early hours of the
morning on 10.02.2001 at 4:30 a.m. in
which, the appellant, who entered the house
of informant and the deceased, who were
sleeping in their house with their children.
The house of the appellant was adjacent to
the
house
of
the
deceased.
The
convict/appellant entered and assaulted the
deceased Nabiullah and his son, who were
sleeping outside the room whereas the
informant and his two minor daughters
were sleeping inside the room on other cot
and on hearing alarm raised by her husband
Nabiullah while he was assaulted by the
appellant with Gandasa, she woke up and
saw that the appellant was assaulted her
husband and minor son Asif with Gandasa
and when she and her daughter tried to save
them then the appellant assaulted the
informant as well as his two daughters with
Gandasa due to which her daughter Km.
Gulshan has succumbed to her injuries
whereas the informant and other daughter
Km. Nagma (P.W.2) received injuries. The
F.I.R. of the incident was lodged by the
informant after getting the written report
prepared by Munshi and she lodged the
same at Police Station Shahabad, District
Hardoi on 30.10.2001 at 6:15 pm. against
the appellant which was at the distance of
four furlang. The said F.I.R. was registered
as Case Crime No.