MOOSA Vs. STATE OF U. P.

JUDGEMENT

(1.) 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.

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

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