Allahabad High Court
Mushtaq vs State Of U.P. on 14 July, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2026:AHC-LKO:46042
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 311 of 1998
Mushtaq
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
V. Shrotria, Karuna Shankar Rastogi, Karuna Shanker Pandey
Counsel for Respondent(s)
:
Govt. Advocate, Nagendra Mohan, Salil Mohan
Reserved on 25.05.2026 Pronounced on 14.07.2026 Uploaded on 14.07.2026
Court No. - 15
HON'BLE BRIJ RAJ SINGH, J.
1. The present appeal under Section 374(2) of Criminal Procedure Code (in short ?CrPC?) has been filed against the judgement and order dated 12.05.1998 passed by the Special Sessions Judge, Unnao (in short ?Trial Court?) in Sessions Trial No.286 of 1993, Police Station Bangarmau, District Unnao, thereby convicting and sentencing the appellants under Section 307 read with Section 34 of Indian Penal Code (in short ?IPC?) for ten years rigorous imprisonment with a fine of Rs.5,000/- each and in default of payment of fine to further undergo additional imprisonment of one year each.
2. The prosecution case, in brief, is that Safiuzzama S/o Wasiuzzama, resident of Village Atardhani, Police Station Bangarmau, District Unnao submitted an application to the Police with the allegations that on 07.07.1992 at 5 P.M. informing that some quarrel took place between the children of his brother Waliuzzama and accused appellant no.3/Minnoo, on which accused Minnoo armed with his licensed gun and the other three accused-appellants armed with country made pistols (Addi) came to the spot and fired at his brother, due to which his brother Waliuzzama received gunshot injuries on his chest and stomach. It is stated that the said incident was witnessed by Kalam S/o Kamal, Ram Kishore S/o Ram Dayal, Hasinuzzama S/o Wasiuzzama and other villagers.
3. On this report of the complainant, F.I.R. was lodged against the accused-appellants registered as Case Crime No. 240 of 1992, under Section 307 read with Section 34 IPC. The case was investigated by the Investigating Officer and after completing the investigation, charge sheet was filed under the aforesaid Sections against the accused-appellants. Charges were framed under the aforesaid sections. The accused pleaded not guilty and claimed for trial.
4. The prosecution to prove its case, produced the following seven witnesses:-
PW-1 Safiuzzama (complainant)
PW-2 Waliuzzama (injured)
PW-3 Dr. Suveer Kumar Sen
PW-4 Ram Kumar Bajpai (Retd. S.I.)
PW-5 Constable Abdul Wadood
PW-6 Dr. M. M. Gupta
PW-7 Dr. Vinay Krishna
5. The prosecution also produced seven exhibits to prove its case:-
Ex.Ka.1 ? Written Report
Ex.Ka.2 ? Injury Report
Ex.Ka.3 ? Site Plan
Ex.Ka.4 ? Charge-sheet
Ex.Ka.5 ? GD Entry
Ex.Ka.6 ? Site Plan
Ex.Ka.7 ? Bedhead ticket
6. The accused were confronted under Section 313 CrPC and they denied the charges and pleaded before the court that they were falsely implicated in the case due to enmity.
7. PW-1 Safiuzzama, complainant and real brother of injured Waliuzzama @ Munna, deposed that he knew all the accused namely Binnu, Puttan, Mushtaq and Laddan – as they belonged to the same village. About 3 years prior to the statement, at around 5:00 PM, the accused were at the door of their uncle Masran. Binnu was carrying his father?s licensed gun and the other three had country-made ?Addhi? guns. At that time, injured Waliuzzama was standing in the lane in front of his house. PW-1 deposed that all four accused fired at Waliuzzama after abusing him. Firearm injuries were caused on the chest and abdomen of Waliuzzama, who then ran inside and fell in the courtyard. PW-1 further deposed that he witnessed the entire occurrence from a chabutra 8-10 steps away. Ram Kishore and Kalam were also said to be eye-witnesses. He deposed that there had been a quarrel between the children about an hour before, and there was prior enmity of 15-16 years between his father and accused Minnoo. The proceeding under Section 107 CrPC was also undertaken against both parties. After the incident, he took the injured to Bangarmau by jeep, informed his maternal uncle Fakhruzzama who scribed the FIR Ext. Ka-1 on his dictation. The injured was medically examined at Bangarmau, then referred to Unnao and Hallet Hospital, Kanpur, and remained admitted for 13-14 days. He stayed with injured throughout. He deposed that Kamal and Ram Kishore later sided with the accused.
In cross-examination, he admitted that his father Wasiuzzama @ Bhallu and injured Waliuzzama had been convicted under Section 307 IPC, and that cases under Section 376 IPC, Harijan Act, and Sections 307/325 IPC were earlier lodged against his father. He stated his statement was recorded about one month after the incident. Though he told the scribe and Investigating Officer that he was present at the site of occurrence but he did not remember whether his presence was mentioned in the FIR or in his statement. He denied being tutored or that the FIR was lodged later in consultation with police. He reiterated the time, place and distance of firing i.e. about 50-55 steps from the northern side of Masroof?s house, with about 4 shots fired simultaneously. He admitted that he did not see empty cartridges, and no blood was found in the lane, though blood was oozing from injuries. He denied the defence suggestion that the injured was assaulted elsewhere near Kanta Gulzarpur at 8:00-8:30 PM, and reiterated that he was an eye-witness to the occurrence at the door of Waliuzzama.
8. PW-2 Waliuzzama @ Munna, the injured witness, deposed that about 3 years prior to his statement, at around 5:00 PM, he was at the door of his house when the accused ? Minnoo along with his father?s licensed gun and the other three accused with country-made ?Addhi? guns, came there. They started abusing him. When he objected, all four accused fired at him. He sustained firearm injuries on his chest and abdomen and ran inside the house where he fell in the courtyard. He stated that his brother PW-1 Safiuzzama was standing nearby and had witnessed the occurrence. Kalam and Ram Kishore had also seen it. Shortly before the incident there had been a quarrel between his children and the children of accused Minnoo, and due to that enmity the accused fired upon him. He denied any other enmity. After the incident he was taken by jeep to his maternal uncle?s house, and thereafter his brother lodged the FIR. He was then taken to Bangarmau Hospital, referred to Unnao and subsequently to Hallet Hospital, Kanpur, where he remained admitted for 13-14 days and his X-ray was done.
In cross-examination, he stated that the firing took place at the door of his own house, not his father?s house. The quarrel among children occurred just before 5:00 PM and only his son and the son of accused Minnoo were involved. The accused came together and fired from about 30-35 steps near Ram Kishore?s house while he was standing on the chabutra. He admitted he did not become unconscious, and did not remember if blood had fallen at the spot or inside the house. He stated that he was first taken to the police station and then to hospital. His statement was recorded by the Investigating Officer at the police station after about one month. He admitted that he did not tell the Investigating Officer that he ran inside and fell in the courtyard after receiving injuries, and could give no reason for the omission. He denied being assaulted elsewhere at Kanta Gulzarpur and denied the other defence suggestions. He also admitted being fined in one case under Section 307 IPC.
9. PW-3 Dr. Subir Kumar Sen, Medical Officer, PHC Bangarmau, District Unnao, deposed that on 07.07.1992 at about 10:35 PM, injured Waliuzzama, aged about 33 years, son of Wasiuzzama, resident of Village Atardhani, Police Station Bangarmau, was brought before him by Home Guard Ram Singh of Police Station Bangarmau who identified the injured. On examination, he found the following injuries:
1. Firearm wound measuring 0.2 cm x 0.2 cm, subcutaneous deep, on the right side of chest, 3 cm below the right nipple.
2. Firearm wound measuring 0.2 cm x 0.2 cm, subcutaneous deep, on the chest, 5 cm medial to the left nipple.
3. Firearm wound measuring 0.2 cm x 0.2 cm, subcutaneous deep, on the chest, 13 cm below the nipple.
4. Firearm wound measuring 0.2 cm x 0.2 cm, subcutaneous deep, over the left clavicular region, 5 cm away from the sterno-clavicular joint.
5. Firearm wound measuring 0.2 cm x 0.2 cm, subcutaneous deep, on the right side of chest, 8 cm above the right nipple.
6. Firearm wound measuring 1 cm x 0.5 cm, subcutaneous deep, on the right side of chest, 8 cm above and at 11 O?clock position to the right nipple.
7. Firearm wound measuring 0.2 cm x 0.2 cm, subcutaneous deep, on the front of the right shoulder joint.
8. Firearm wound measuring 0.5 cm x 0.5 cm, subcutaneous deep, on the front of the right upper arm, 2 cm above the right cubital fossa.
9. Firearm wound measuring 0.2 cm x 0.2 cm, subcutaneous deep, on the abdomen, 7 cm below and at 4 O?clock position to the umbilicus.
10. Firearm wound measuring 0.5 cm x 0.5 cm, subcutaneous deep, on the front of left thigh, 30 cm above the left knee.
He deposed that blood was oozing from all the wounds. All injuries were fresh and caused by firearms. The injured was kept under observation and referred to District Hospital, Unnao for X-ray of the chest, abdomen, right shoulder joint area, left thigh, left clavicular area and right upper arm for expert opinion and further treatment. PW-3 proved the injury report Ext. Ka-2 prepared by him in his own handwriting and signatures. He also verified the thumb impression and identification marks of the injured. He opined that the injuries could have been caused on 07.07.1992 at about 5:00 PM. The injuries were on vital parts and could be dangerous to life, but since no probing was done he could not say definitely whether they were fatal.
In cross-examination, he stated that injuries could have been caused within six hours prior to examination, or 1.5 to 2 hours before. He admitted that there was no blackening or charring around any injury. He had not received any X-ray report. He had not specifically mentioned in the injury report that injuries were dangerous to life. All injuries were on the front side of the body and could have been caused by a single fire.
10. PW-4 Ram Kumar Bajpai, retired Sub-Inspector, deposed that in July?August 1992 he was posted as Sub-Inspector at PS Bangarmau. The investigation of the present case was transferred to him from S.I. K.B. Singh on the complaint of the informant. He deposed that on 07.08.1992 he recorded the statements of informant Safiuzzama, injured Waliuzzama, and witnesses Kalam Khan, Ram Kishore and Hasinuzzama. Thereafter, at the pointing out of the informant, he inspected the place of occurrence and prepared the site plan ?Naksha Nazri? in his own handwriting and bearing his signatures. He proved the site plan Ext. Ka-3 and stated that it correctly represented the spot. He further deposed that on 18.08.1992 he recorded the statements of accused Mushtaq, Minnu, Laddan and Puttan, and after the conclusion of investigation submitted the charge-sheet Ext. Ka-4 in his own handwriting and bearing his signatures.
In cross-examination, he admitted that the site plan was prepared at the pointing out of the informant. Place ?E? in the site plan represented the place where the injured sustained firearm injuries and was pointed out by witnesses. Place ?E? was situated towards the south of the house of Wasiuzzama. He admitted that before him, S.I. K.B. Singh had prepared another site plan of the same occurrence on 08.07.1992. He had seen that earlier site plan, read the case diary and the explanation of the earlier I.O. He also admitted that there was a difference between the place of occurrence shown in the earlier site plan and the place disclosed to him during his investigation. He further admitted that injured Waliuzzama had not stated before him that his brother Safiuzzama had witnessed the occurrence. He denied the defence suggestion that he had colluded with the informant and prepared a false site plan or recorded false statements of the witnesses.
11. PW-5 Abdul Wadood has proved FIR (Ext.Ka.4). He has also proved carbon copy of GD Entry.
12. PW-6 Dr. M.M. Gupta has proved the bedhead ticket (Ex.Ka.7) of injured.
13. PW-7 Dr. Vinay Krishna, Lecturer, Department of Cardio-thoracic and Vascular Surgery, Medical College, Kanpur, deposed that in July, 1992 injured Waliuzzama, son of Wasiuzzama, resident of village Atardhani, PS Bangarmau, was admitted under his care on 08.07.1992 at about 5:00 AM. The injured was suffering from gunshot injuries on the chest accompanied by bilateral haemopneumothorax along with injury on the right arm. He deposed that on 08.07.1992 he performed an operation upon the injured and inserted chest tubes in the fourth and eighth inter-costal spaces on the right side of the chest. The tubes were connected to an underwater seal bottle and through them blood and air leaking from the lungs came out. Thereafter the condition of the injured improved slightly. On 09.07.1992 a similar operation was conducted on the left side of the chest and two chest tubes were inserted there also from which blood and air was leaking. Both operations were necessary to save the life of the injured. On 10.07.1992 the tubes inserted on the right side were removed and on 11.07.1992 the tubes inserted on the left side were also removed. Due to internal bleeding the injured had suffered loss of blood and therefore one bottle blood was transfused to him on 11.07.1992. He further deposed that due to firearm injury on the right arm, the injured was suffering from burning sensation and weakness in the right hand and fingers. The injured was advised treatment through medicines for the said condition and was discharged from the hospital on 13.07.1992. PW-7 stated that pellets and bullets present inside the body of the injured were not removed as no necessity was felt for the same. In case specialised operation of the chest injuries had not been conducted, the death of the injured could have been possible due to the said injuries. He further deposed that merely on the basis of description of injuries mentioned in Ext. Ka-2, it was not possible to state from what distance the injuries had been caused and for that purpose X-ray reports were necessary.
In response to a specific question whether injuries nos.1 to 10 mentioned in Ext. Ka-2 could have been caused by more than one fire, PW-7 stated that such possibility could not be ruled out though a definite opinion could only be given after examining the X-ray reports. The bed-head ticket and treatment papers relating to injured Waliuzzama comprising nine pages were before him and bore the signatures of Resident Doctor Prajay Srivastava.
In cross-examination, he stated that Ext Ka-7 was not written by him and that as the firing distance increases, the spread of pellets also increases. He further stated that in technical terms pulse rate of 120 per minute, bilateral haemopneumothorax and leakage of blood and air through chest tubes indicated a serious condition of the patient and if proper operation had not been conducted, the injuries could prove fatal. However, he admitted that he had not specifically mentioned in the bed-head ticket that the patient was likely to die.
14. In defence, though the accused-appellants have pleaded that due to enmity and village rivalry, they have been falsely implicated in the case, they neither produced any witness nor led any evidence to prove the same.
15. The Trial Court after examining the witnesses and adducing the evidence on record, convicted the appellants as mentioned above. Hence, the present appeal has been filed.
16. The appeal insofar as relates to appellant nos.1 and 4, namely, Mushtaq and Laddan has already been abated vide order dated 22.11.2018 on the basis of the report of the Chief Judicial Magistrate, Unnao.
17. Sri K.S. Rastogi, counsel for the appellants has submitted that there are contradictions regarding the place, time, and occurrence. The FIR does not state the place of occurrence. He has submitted that PW-1 deposed that the accused were present at the front of the house of their uncle Masran, and his brother Waliujama was present in the lane outside his house. PW-2 deposed that Minnu came to his house and rebuked him. He asked him not to rebuke him. Therefore, all the accused fired at him. It has been submitted that Site Plan-2 dated 07.08.1992 indicates that the first investigating officer shows the place of occurrence in front of the house of the victim, and the place of firing from 53 paces (about 80 feet). Whereas the first site plan dated 08.07.1992 indicates that the first investigating officer demonstrated the place of occurrence from where the accused fired, which is different.
18. He has further submitted that the injury report dated 07.07.1992 of Primary Health Centre, Bangarmau shows that the victim received ten firearm injuries on different parts of the body. No internal damage has been caused, and no opinion has been given to the extent that the injuries were grievous and were sufficient to cause death. It has been submitted by learned counsel for the appellants that there is nothing on record which shows that the victim was taken to the District Hospital. There is no X-ray report, no opinion of the doctor, and no evidence of treatment at the District Hospital. It has been further submitted that Dr. Prajay Srivastava, who prepared the medical report, has not been produced for examination before the Trial Court. PW-1 and PW-2 in their statements have stated that the victim remained in hospital for thirteen to fourteen days, against the medical record which shows that the victim remained there for five days, from 08.07.92 to 13.07.1992.
19. It has been submitted that there is no statement of fact in the FIR that the firing was done with an intention to kill the victim. PW-1, the informant, and PW-2, the victim, did not state that the appellants fired upon the victim with the intention to kill. There is not even a whisper in their statements that any of the accused fired with the intention to kill or that any of the appellants uttered any word indicating an intention to kill. It has been further submitted that PW-3, Dr. Subeer Sen, has stated that the injuries suffered by the victim could have been caused by a single firearm. Neither is it the case of the prosecution that repeated firing was done, nor has it been proved that repeated firing was done. It cannot safely be said that there was any intention to kill the victim.
20. It has been further submitted that there was no recovery of any gun, despite allegation that country-made pistols (Addi) were used for commission of the crime. There was no recovery of pellets or cartridges from the spot. There was no recovery of the victim?s bloodstain, nor soil was collected. Also, no recovery of cloths was made.
21 In support of his submissions, counsel for the appellants has placed reliance upon the following judgments:-
–
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578;
–
P. Rajagopal and others Etc. Vs. The State of Tamil Nadu (2019) 4 SCC 771;
–
Sivamani and another Vs. State Represented by Inspector of Police, Vellore Taluk Police Station Vellore District, 2023 SCC OnLine SC 1581;
–
Thulia Kali Vs. The State of Tamil Nadu(1972) 3 SCC 393;
–
Balu @ Bal Subramaniam and another Vs. State (U.T. of Pondicherry), (2016) 15 SCC 471;
–
Neelam Bahal and another Vs. State of Uttarakhand, (2010) 2 SCC 229;
–
State of Madhya Pradesh Vs. Shyamlal and others, AIR 2025 SC (Criminal) 764:AIR OnLine 2025 SC 176;
–
Sarnam Singh Vs. State of U.P., 2014 985) ACC 53;
–
Nandan and others Vs. State of U.P., 2010 (69) ACC 737;
–
Bangali and others Vs. State of U.P., 2014 (84) ACC 971;
–
Criminal Appeal No.1510 of 2003, Kandhai and 3 others Vs. State of U.P., decided on 16.02.2018;
–
Criminal Appeal No.493 of 2006, Faqeeray and another Vs. The State, decided on 20.09.2023.
22. Sri S.N. Mishra holding brief of Sri Salil Mohan, counsel for the complainant while rebutting the arguments of learned counsel for the appellants has submitted that seven witnesses have been examined and they have proved their case. He has further submitted that prosecution case is corroborated with medical evidence, therefore, no interference is called for by this Court and the appeal is liable to be dismissed.
23. Sri Piyush Kumar Singh, learned AGA while rebutting the arguments of learned counsel for the appellants has submitted that even if the recovery of the weapon is not proved and even if there is serious doubt about the timing and place of the incident, the accused cannot be acquitted. He has further submitted that PW-1 is an eye-witness and PW-2 is an injured witness, who has received ten injuries, and the same have been proved by the doctor, therefore, recovery of the weapon is not necessary factum to be considered by this Court. In support of his contention, he has placed reliance upon the judgement of the Hon?ble Supreme Court rendered in the case of State through the Inspector of Police Vs. Laly @ Manikandan and another Etc. 2022 SCC OnLine SC 1424.
24. Relevant observation is quoted herein-under:-
?20. The submission on behalf of the accused that as the original informant – Mahendran has not been examined and that the other independent witnesses have not been examined and that the recovery of the weapon has not been proved and that there is a serious doubt about the timing and place of the incident, the accused are to be acquitted cannot be accepted. Merely because the original complainant is not examined cannot be a ground to discard the deposition of PW1. As observed hereinabove, PW1 is the eye witness to the occurrence at both the places. Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted. Similarly, even in the case of some contradictions with respect to timing of lodging the FIR/complaint cannot be a ground to acquit the accused when the prosecution case is based upon the deposition of eye witness.?
25. Heard Sri Karuna Shankar Rastogi, learned counsel for the appellants, Sri S.N. Mishra, holding brief of Sri Salil Mohan, learned counsel for the complainant and Sri Piyush Kumar Singh, learned AGA for the State.
26. Learned counsel for the appellants has submitted that the place of occurrence is different in the FIR and in the site plan, the alleged place of occurrence has changed. PW-4 deposed that on the complaint of PW-1, investigation was transferred from IO S.I. K.B. Singh, and was handed over to him. PW-1 also stated in his testimony that he had filed a complaint against the investigating officer K.B. Singh. PW-4 further deposed that on pointing out of PW-1, the place of occurrence was indicated in site plan. The injured was shot at place ?E?. PW-2 deposed that he lives separately from his father Wasiuzzama, and his house is adjacent to the house of Wasiuzzama. The statements of PW-1 and PW-2 clearly indicate that the accused-appellants fired in front of the house of injured. As per site plan, place ?E? indicates the place of occurrence where the incident took place, therefore, place of occurrence as stated by PW-1 is correct place where the incident took place.
27. PW-3 examined the ten injuries received by PW-2. In the opinion of the doctor, all the injuries were caused by firearm. The patient was kept under observation and later was referred to District Hospital, Unnao for X-ray examination of chest, abdomen, right shoulder joint area, left thigh, left clavicular area and right upper arm. PW-3 deposed that all the injuries were caused by firearm and were grievous since the injuries were on the vital parts of the body and such injuries could be dangerous to life. PW-3 further deposed that injuries were caused within six hours.
28. PW-7 deposed before the Court that on 08.07.1992 at about 5:00 AM, PW-2 was brought before him who suffered the injuries from gunshot. He further deposed that on 08.07.1992, he performed an operation upon the injured and inserted chest tubes in the fourth and eighth inter-costal spaces on the right side of the chest. The said tubes were connected to an underwater seal bottle and through the said tubes blood and air leaking from the lungs came out. He stated that thereafter the condition of the injured improved slightly. PW-7 further deposed that on 09.07.1992 a similar operation was conducted on the left side of the chest and two chest tubes were inserted as well, from which blood and air was leaking. Both the operations were necessary to save the life of the injured. He further stated that thereafter on 10.07.1992 the tubes inserted on the right side of the chest were removed and on 11.07.1992 the tubes inserted on the left side were also removed And due to internal bleeding the injured had suffered loss of blood and therefore one bottle of blood was transfused to him on 11.07.1992.
29. PW-2 who is the injured witness has specifically stated that all the accused armed with guns opened fire upon him. The said fact is also stated by PW-1. Thus, this Court is of the opinion that ten injuries have been received by injured and the fire was opened by accused and they had common intention to kill the victim/PW-2. This Court is also of the opinion that injuries were not simple in nature rather they were caused with intention to kill the victim.
30. PW-1 in his cross-examination deposed that fifteen to sixteen years ago there was a case under Section 107/116 CrPC between the parties. After such a long lapse of time, it cannot be said that the accused will be falsely implicated in the present case. In the FIR, it has been clearly stated that some quarrel took place between the children of his brother and accused-appellant no.3/Minnoo and thereafter, fire was opened by the accused-appellants due to which ten injuries were received by the injured on his chest and stomach. PW-2/injured witness is the best person who can state the correct fact before the Trial Court. He deposed that all the accused had fired at him.
31. In view of the above, the prosecution has proved its case beyond reasonable doubt. The discrepancies pointed out by appellants? counsel are not material enough to discard the entire prosecution case. Therefore, the Trial Court has appreciated the evidence on record correctly and reached the right conclusion regarding the guilt of the appellants. The appellants have been rightly held guilty and convicted and sentenced under Section 307 read with Section 34 IPC, by the Trial Court. Accordingly, this appeal has no force and is liable to be dismissed. Accordingly, it is dismissed.
32. The impugned judgment and order is upheld and the conviction and sentence of the appellant nos.2 and 3 i.e. Minnoo alias Minhaj and Puttan are affirmed. Appellants are on bail. Their personal bonds and bail bonds are cancelled and sureties are discharged. They are directed to surrender before the Trial Court within four weeks to undergo the remaining part of their sentence, failing which, the Trial Court is directed to adopt coercive measures for securing their presence.
33. Let a copy of this judgment be forwarded to the Trial Court, alongwith trial court record for information and necessary compliance.
(Brij Raj Singh,J.)
July 14, 2026
Mohit Singh/-
Â
Â
