Paragraph numbers below are the court’s original numbering, recovered from the source text.
6. Per contra, Mr. Ratnakar Dash, learned Senior Counsel appearing for the respondent submitted that the prosecution has established the guilt of the accused beyond reasonable doubt and the trial court rightly convicted the appellant for committing the murder of Abbas Khan and the High Court rightly F dismissed the appeal.
7. We have carefully considered the rival contentions and perused the impugned judgment and material on record.
8. Shabbir Khan and Abbas filed the civil suit No.110/7 4 G (Ex.Ka-40) alleging that the appellant Abdul Waheed has started construction of his house over the site of Panchayat Ghar. On the application of Abbas Khan, the Munsif Court vide order dated 17.04.1974 passed the order of status quo. Ex. Ka-41 is the copy of the Commissioner's report and map H in the aforesaid suit. Ex. Ka-42 is the: application moved by Shabir Khan in the aforesaid suit No. 110/74 fortaking action A against the appellantAbdul Waheed under Order XX.XIX Rule 2 CPC which was registered as Miscellaneous Case No.65/ 7 4 of 197 4 and the same was scheduled to be heard on the next date of the incident i.e. 06.11.197 4. By the evidence of PW-1 and by the aforesaid documents prosecution has B established the motive of the accused. Admittedly, the accused persons were close relations of the accused-appellant hence they also rendered a helping hand in the commission of the crime and all of them formed an unlawful assembly with common intention of inflicting injuries to the complainant party. There is plausible and cogent evidence establishing motive of the accused person for committing the alleged crime. Proof of motive of the accused towards the deceased heightens the possibility of the crime. Proof of motive adds weight and value D to the evidence of the eye-witnesses.
9. Prosecution has mainly relied on the testimony of three eye-witnesses Fazzaq Khan (PW-1 ), Yasin Khan (PW-3) and Ali Daraj (PW-4). PWs 1, 3 and 4 have spoken in one voice aboyt the overt acts of the accused. PW1-Razzaq Khan being injured witness, his evidence stands on a higher footing. Unless there are cogent and convincing grounds, evidence of PW1- injured witness cannot be doubted. PW-3's house is at a distance of 30 to 35 paces towards the west of the house of F Abbas Khan and his presence on the spot is quite natural. At the time of occurrence PWs 3 and 4 were present in the house of PW3 and on hearing the hues and cries of the occurrence, both of them rushed to the spot and their evidence is fully corroborated by the evidence of PW-1. Courts below recorded concurrent findings of fact that the evidence of PWs 1, 3 and 4 remains unshaken and in spite of lengthy cross- examination of these witnesses, the accused were not able to bring any point shaking credibility of PWs 1, 3 and 4.
10. Learned Senior Counsel for the appellant contended that the appellant Abdul Waheed and the accused party were not the aggressors and that the fateful incident took place near the chabutra of Shafiq where co-accused Vakil Khan, Hafeez were sitting and discussing the strategy of the contempt case listed on 06.11.197 4 and at that moment deceased Abbas B and lsrar armed with gun and pistol respectively along with other accused armed with lathis came there hurling abuses and an altercation took place between both parties and Razzaq Khan had given lathi blows to Vakil Khan and Hafeez and Abbas fired from his gun and only to show that the accused C party were the aggressors, the scene of occurrence was shifted as chabutra of Abbas. As per prosecution version, in the evening of 5.11.197 4, PW-1 was sitting on the chabutra of the well situated in front of.the house of Abbas Khan and the accused party came and fired gunshot injuries and attacked them with lathis. The controversy between the parties is about the exact location of the place of occurrence. Admittedly, both parties have stated that after the wordy altercation on account of civil dispute, the fight ensued between them. PW-1 and other E witnesses have spoken consistently about the place of occurrence being chabutra of Abbas. If the occurrence had taken place at the chabutra of Shafiq Khan as alleged by the defence, then it was expected that some blood would have been found near the chabutra of the house of Shafiq; the fact F that no blood was found at the chabutra of Shafiq Khan improbabilises the defence version.
11. On behalf of the accused it was contended that the complainant party were the aggressors and deceased Abbas G Khan and lsrar armed with gun and pistol respectively along with other persons armed with lathis came to chabutra of Shafiq Khan hurling abuses and the complainant gave lathi blows to Vakil Khan and Hafeez and Abbas Khan opened fire from his gun as a result of which accused viz. Vakil Khan and Hafeez H sustained injuries and the prosecution has suppressed genesis of the occurrence. Evidence of PW2-Dr. GM. Solanki, of course A shows that the accused persons namely Mohd. Hafeez and Vakil Khan sustained simple injuries (Ext. Ka-6 and Ka-43). Prosecution is obliged to explain injuries sustained by the accused, if it is not trivial in nature. The injuries sustained by Mohd. Hafeez and Vakil Khan were simple injuries. However, the prosecution has sufficiently explained the injuries sustained by accused even at the time of registration of the FIR as in defence lshtiyaq and Ashfaq inflicted blows with lathis on the accused party. As discussed earlier, the accused party were armed with guns, pistols and lathis, the injuries sustained by C the complainant party and that there were two deaths on the side of the complainant party and the injuries sustained by them would clearly prove that the accused party were the aggressors. The truth of the matter is that the accused were the aggressors D and the accused Vakil Khan and Hafeez Khan received minor ·simple injuries of blunt weapons at the hands of lshtiyaq and Ashfaq Khan who wielded lath is in lawful exercise of their right of private defence.
12. Prosecution version is assailed contending that the E prosecution has not explained the recovery of third gun from the scene of occurrence. Learned Senior Counsel for appellant contended that three allegedly recovered empty cartridges were sent to Ballistic Expert-PW8 who has given a certificate F (Ex. Ka- 23) that two of the said cartridges were fired from gun No.3696-69 i.e. the gun allegedly recovered from co-accused Abdul Hai and the third cartridge was not fired from either of the two guns and in the absence of the recovery of third gun, the version of the prosecution becomes highly doubtful. Be it G noted that although it is proved that two cartridges were fired from the gun recovered from the accused, from the statement adduced by the three eye witnesses it is evident that Abdul Waheed had a gun and he fired one shot from his gun. The said cartridges could have been possibly from the gun of H appellant-Abdul Waheed which was not recovered. Non- recovery.of gun from the appellant nor opinion of ballistic expert regarding three cartridges does not in any way raise doubts about the prosecution case and the involvement of the appellant.
13. Learned Senior Counsel Mr. Salman Khurshid further urged that gun shot fired by the appellant hitAbbas on his arm which is not a vital part of the body and appellant cannot be held guilty of the murder. By perusal of post-mortem certificate C (Ext. Ka-25), it is seen thatAbbas sustained following injuries: (i) Gunshot wound 1 Yi'' x Yz"x bone deep on the front and inner side of right upper arm. 3Yz" above elbow with fracture of the shaft of humorous bone … (ii) Multiple gunshot wound of exit of varying dimensions from 1 /8" x 1 /8" x 1 /1 O" x 1 /1 O" in middle part of right upper arm with everted margins. (iii) Abrasion 1 /2" x 1 /2" on the right side of tip of nose. The doctor recovered twelve shots from the wounds and Dr. H. D. Gupta opined that the death of the deceased Abbas was due to shock and haemorrhage as a result of injuries sustained by him.
14. The appellant and the accused party were having enmity against the deceased-Abbas Khan on account of civil suit and filing of contempt petition. The appellant and the accused party went to chabutra of Abbas Khan armed with G pistol, guns and /athis which shows the intention of the appellant to commit the murder. An ordinary person is not presumed to know the precise location of the arteries in the human limbs. Therefore, if a stab with a knife or dagger, aimed at an arm or a leg, severs an artery and the injured man dies H as a result, it may be reasonable to argue that the offence is not one of culpable homicide and that the assailant can only · A be presumed to have intended to cause hurt or grievous hurt with a dangerous weapon. The case in hand is quite different. When gun is used and the person who fires the gun must be presumed to have knowledge and intention that he is inflicting an injury which in the ordinary course of nature is sufficient to cause death and the offence is clearly murder. Having regard '.o tHe enmity and the weapon used, the courts below rightly held that the appellant-accused was guilty of committing the murder of Abbas Khan. c
15. On behalf of the appellant it was stated that the occurrence was of the year 197 4 and the appellant is aged about ninety years and sending him to prison at this distant point of time would be harsh. We are not impressed with this submission. In the occurrence when two persons died and D number of others were injured, in our view, age of the accused is of no relevance. Undue sympathy would do more harm to the Criminal Justice System undermining the public confidence in the efficacy of the system. It is therefore the duty of every court to award proper sentence having regard to the manner E in which the offence was committed. The trial court and the High Court have recorded concurrent findings and the findings are based upon evidence warranting no interference in exercise of jurisdiction under Article 136 of the Constitution of F India.
16. The appeal is dismissed. Appellant is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith to serve the remaining sentence. Devika Gujral Appeal dismissed.