Dulhey Khan and Others vs State

Dharnidhar Jha and Pankaj Naqvi, JJ.—Five accused persons were put on trial by being charged with commission of offence under Sections 147 and 307 /149, I.P.C. The judgment in the relevant Sessions Trial bearing No. 87/1980, was rendered by the learned Sessions Judge, Badaun on 21.11.1981, by which he found all the five accused persons guilty of committing the offences, they had been charged with. The convicted accused persons were heard on sentence on 23.11.1981 and while accused Nanhey Khan was directed to suffer rigorous imprisonment for 5 years for the offence under Sections 307 /149, I.P.C. and 1 year for the offence u/s 147, I.P.C., remaining four accused persons were awarded different terms of sentence for their respective convictions. Accused Dulhey Khan and Sakrullah Khan @ Vedyar Khan were directed to suffer rigorous imprisonment for 1 year and 6 months respectively for committing offences under Sections 307 /147 and 149, I.P.C., while appellant Saddiq Khan was directed to suffer rigorous imprisonment for 1 year and 2 years respectively for his individual conviction under the above two counts. All the five convicted persons preferred the appeal jointly. During the pendency of the appeal, appellant No. 1 Dulhey Khan, appellant No. 2 Nanhey Khan and appellants No. 4 and 5 Saddiq Khan and Sakrullah Khan @ Vedyar Khan died, as a result of which the appeal as against them stood abated, leaving the appeal surviving only on behalf of appellant Phundan Khan. We further find that informant-P.W. 1 Ronak All, the revisionist of Crl. Revision No. 143/1982, has also died. There was no application filed by any of his heirs or persons interested within the stipulated time, seeking permission of the Court to continue the revision. Thus, what we find is that, the connected revision petition to this appeal, has also died its own death, on account of which the revision stood abated.

The short facts leading to the present appeal, was that when the informant-P.W. 1 Ronak Ali was going from his house and when he had reached at a particular place, accused Dulhey Khan remonstrated the other accused persons to kill him, upon which all the accused persons started firing at him. He raised an alarm, as a result of which his son P.W. 2 Shamshul Hasan Khan and his daughter Alla Nooran (not examined) rushed to the scene of occurrence and accused Nanhey Khan and appellant Phundan Khan fired at the two, as a result of which all of them were injured.

The reason for commission of the offence, was that there was some litigation with nature of a proceeding under Sections 107 /117, Cr. P.C., was pending in the Executive Court and the accused persons were entertaining vengeance in their mind and, as such, they committed the offence.

Three injured persons, i.e., informant-P.W. 1 Ronak Ali. P.W. 2 Shamshul Hasan Khan and Alla Nooran (not examined), were examined by P.W. 4 Dr. N.P. Singh and injury reports Exs. Ka-2, 3 and 4 were issued by him, who was of the opinion that the injuries which appeared on the persons of three injured, had been caused by gun shots. The case was investigated into by P.W. 5 S.I. Soran Singh, who after close of the investigation, sent up the five accused persons for trial, which ultimately culminated into the impugned judgment.

We have heard Sri Pratap Narain Mishra, learned senior counsel for the appellant. We have also heard Sri A.K. Srivastava, learned A.G.A. for the State.

The solitary submission addressed to us by the learned senior counsel, was that the evidence of Doctor was too cryptic to give any assurance to this Court regarding the descriptions of the injuries, the weapon used in causing them and, finally, the nature of those injuries. It was also submitted that in case the Court was inclined to take a view that the evidence of Doctor could have sufficiently communicated to it the findings as regards the injuries upon the three injured, still it was not a case Section 307, I.P.C. as most of the injuries on the three injured persons were on non-vital parts and below the waist on each of the injured. It was further submitted that it may be a case u/s 324, I.P.C. and the appellant be exonerated of his conviction u/s 307 /149, I.P.C.

Learned A.G.A. has submitted that it is true that two of the injured namely Alia Nooran and P.W. 2 Shamshul Hasan Khan suffered number of injuries but they were not at any vital part of either of them, but the injuries of P.W. 1-informant Ronak Ali indicated that he had as many as 17 injuries, some of which were clusters of injuries and a few of them, like, those described at S.I. Nos. 12, 13 and 14, are on vital parts like chest, abdomen and the pelvic region. Submission as such was that, it was definitely a case u/s 307, I.P.C. It was further submitted in the alternative that in spite of all the fact that the injuries could be on the non-vital parts, the number of injuries was big. The number of injuries on Alia Nooran, of course being two, those on P.W. 2 Shamshul Hasan Khan were 10 in addition to 17 found by P.W. 4 on P.W. 1. Submission was that whether the number of injured was big and the number of injuries were also large, which was caused by gun shot, the Court must take a view that it was a case u/s 307, I.P.C.

We first want to point out that evidence of Dr. N.P. Singh, (P.W. 4) was, of course, not up to the expectation from an expert of his class. The evidence of the Doctor is very important as regards administration of criminal justice as it throws sufficient light not only on the manner of occurrence but also on the other aspects of the case. It is always expected that the Court gets sufficient information by being informed by an expert like a Doctor, as to what were the injuries which were present on the injured and what weapon could have been used in causing them, besides the nature of those injuries. P.W. 4 was simply giving one line evidence in respect of the three injured that he had examined each of them on 27.9.1997 at around 3.15 p.m. and had found 2 injuries on Alia Nooran, 10 on P.W. 2 and 17 on P.W. 1, which were caused by gun shots. P.W. 4 had never described as to what were the dimensions of each of those injuries. As such his opinion, in our opinion, was definitely lacking in details and it cannot be said supported by appropriate data, but the question is as to on account of incompetence of P.W. 4, should it be proper to throw out the entire case?

We have cited to the learned senior counsel for the appellant Harpal Singh and Another Vs. State of Himachal Pradesh, , holding that in a case u/s 376. I.P.C., the Admission Register maintained by the school is a relevant fact u/s 35 of the Indian Evidence Act due to being admissible in evidence for determining the age of the prosecutrix, notwithstanding the absence of proof of the Admission Register by the Clerk concerned as the said document would fall in the category of a register maintained in official course of business.

We adopt the principle and we have proceeded to read the injuries which were found on the three injured persons by P.W. 4 in spite of the fact that the injuries found by P.W. 4 on the three injured persons, are not in detail. P.W. 1 had as many as 17 injuries, we have noted it earlier, and most of the injuries, of course, are on non-vital parts like the upper arm, thigh, ankles, etc, but injury No. 12 was a gun shot wound of entry measuring.5 cm. x.5 cm. over outer side of left chest, 4 cm. below axilla directed to backwards and right and was bleeding. Injury No. 3 was again a cluster of two gun shot wounds of entry each measuring 0.5 cm. x 0.5 cm. over front and both sides of abdomen spread in an area of 22 cm. x 19 cm. directed backwards, the injury was bleeding. Fourteen injury found by P.W. 4 on P.W. 1, was a cluster of 5 gun shot wounds, all of entry, each measuring.5 cm. x.5 cm. over upper part of right thigh around pelvic region in an area of 10 cm. x 6 cm. directed backwards and to the right; the injury was bleeding. In addition, to the above, injury No. 1 was a gun shot wound of entry measuring.5 cm. x.5 cm. over left side of neck on its lower part.

We read and consider the injuries only to find as to whether there was presence of intention or knowledge while committing the act in order to attempt to commit the offence of murder. There could not be any other method of discerning intent and knowledge of an accused attempting to commit murder in a case u/s 307, I.P.C. and than considering the wounds and weapons used for causing them. The offence u/s 307, I.P.C. committed by the use of a fire arms would be different when it is considered in the light of illustration (C) appended to that particular provision. It specifies that in a case of gun shot, mere firing of the shot targeting a particular human being could be sufficient to constitute the offence, even in case the shot was not hitting the target or missing it. So, we are of the opinion that in a case of gun shot, even when no injury was caused, offence u/s 307, I.P.C. may be constituted on mere oral testimony of P.Ws. If there are injuries, it may be an additional datum to aid the Courts'' opinion, as to whether an offence u/s 307, I.P.C. was made out on facts.

We have considered the evidence of two witnesses, P.W. 1 Ronak Ali, the informant and P.W. 2 Shamshul Hasan Khan, his son. P.W. 1 Ronak Khan has generally stated that all accused persons fired at him. We have already pointed out that he had as many as 17 gun shot injuries out of which, 4 could be said to be on vital parts of his body. The number of injuries and the spread of the shots from throat to the neck, could itself be indicative of the intention of the accused persons who were remonstrated by deceased-convict Dulhey Khan to kill him as they were hell-bent to kill. It is altogether a different thing that P.W. 1 survived and he come to depose before the Court. P.W. 2, his son Shamshul Hasan Khan, has stated that he and his sister Alla Nooran were present at the shop of a particular person and after hearing the cries of their father and sounds of gun shots, both ran into the direction from where the cries had emanated and the sounds of gun shots had come. When he reached near the cattle trough, he found his father was lying injured and as soon as he and his sister appeared there, appellant Phundan Khan and deceased-Nanhey Khan shot at both of them. P.W. 2 had as many as 10 injuries; of course, all injuries being below his waist and Alla Nooran had not been examined. Thus, what we find is that it could not be said that appellant Phundan Khan was not acting in prosecution of the common object of the unlawful assembly which was formed by five accused persons with object to kill P.W. 1 Ronak Ali. The evidence is sufficiently indicating the fact that they were determined to attain their goal in prosecution of the common object that they had caused gun shot injuries, numerous in number to three injured persons.

In the above view of the evidence, we are clearly of the view that it was a case which was fully covered by Section 307 /149, I.P.C. and the conviction of appellant Phundan Khan was justified in the light of the evidence available to us.

It was contended by Sri Mishra, learned senior counsel that the appellant may be released by big sentenced to them of period already undergone by him. After considering the totality of the circumstances, which appeared from the facts of the case, we find that it was a very serious case of attempt to murder and in that case, sentence of rigorous imprisonment for 1 year, in our opinion, was too lenient to justify the order of sentencing. In our opinion, the learned trial Judge has already taken a lenient view, rationale of which cannot be upheld by us. But, our difficulty is that there is no appeal to enhance the sentence and the Court had also not issued any notice for enhancing the sentence. After 32 years of the judgment, we do not find any good reason to issue notice to enhance the sentence. In the result, while dismissing the appeal in its entirety, we leave the sentence awarded to appellant undisturbed. The appeal is dismissed. Appellant to surrender to serve out the sentence, if any part of it remains to be served and in case of nonappearance, court below to take appropriate steps for his apprehension and committal to custody.