Moosa And Others vs State Of U.P.
2021 Latest Caselaw 4859 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
IN CHAMBER
 
Case :- CRIMINAL APPEAL No. - 2868 of 1983
 
Appellant :- Moosa And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.I. Jafri,Mohammad Khalid,Nazrul Islam Jafri,Prashant Vyas
 
Counsel for Respondent :- D.G.A.,Imran Mabood Khan,R.N.Sharma,Shahabuddin
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Rajendra Kumar-IV,J.

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

The instant appeal has been preferred against the judgment and order 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.

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 - 2½ 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.

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 anti-mortem 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 1½ cm x 1½ 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.

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

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 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).

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.

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.

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 offences under Section 148 and 302 IPC (read with Section 149 IPC.

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.

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.

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.

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 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.

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

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 2½ - 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.

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 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.

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.

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.

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.

Much emphasis has been laid on the plea that it was 'a shot and run case'. 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.

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.

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

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.

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 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.

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.

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.

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.

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 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.

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)."

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.

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.

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.

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 1½ cm x 1½ 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.

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 2½ 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.

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 lying on the cot, or he died on the same cot while being taken to hospital.

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.

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)."

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 non-exhibition of lantern and torches.

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.

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.

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.

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

(Rajendra Kumar-IV, J.)  (Manoj Kumar Gupta, J.)

Order Date :- 6.4.2021

Jaideep/-