ABDUL WAHEEDversusSTATE OF UTTAR PRADESH

                    [2015] 9 S.C.R. 741


                    ABDUL WAHEED                              A
                             v.
              STATE OF UTTAR PRADESH
            (Criminal Appeal No.1166 .of 2005)
                  SEPTEMBER 01, 2015                          B

        [DIPAK MISRA AND R. BANUMATHI, JJ.]

     Penal Code, 1860: s. 302 - Murder- Previous enmity-
Appellant armed with gun and other accused armed with lathis C
and dandas- Gun shot by appellant resulting in death of two
persons - Other accused inflicting injuries on complainant
party with lathis and dandas - Convir;;tion by courts below-
Held: In case of gun shot, person who fires the gun is
presumed to have knowledge and intention that he is inflicting D
an injury which in the ordinary course of nature is sufficient
to cause death and the offence is clearly murder - Courts
below recorded concurrent findings offact that the evidence
of PWs 1, 3 and 4 remained unshaken and inspite of lengthy
cross-examination of these witnesses, the accused were not E
able to bring any point shaking their credibility - No
interference with the order of conviction called for.

    Sentence/Sentencing: Magnitude of crime -
Proportionality of punishment - Held: It is the duty of every F
court to award proper sentence having regard to the manner
in which the offence was committed.

    Dismissing the appeal, the Court

    HELD: 1. The appellant and the accused party were G
having enmity against the deceased on account of civil
suit and filing of contempt petition. The appellant and
the accused party went to chabutra of the deceased

                            741                               H
742       SUPREME COURT REPORTS              [2015) 9 S.C.R.


A armed with 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,
B severs an artery and the injured man dies as a result, it
  may be reasonable to argue that the offence is not one
  of culpable homicide and that the assailant can only be
  presumed to have intended to cause hurt or grievous
  hurt with a dangerous weapon. The case in hand is quite
C 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 to the
0
  enmity and the weapon used, the courts below rightly
  held that the appellant-accused was guilty of committing
  the murder of the deceased. [Para 14] [750-F-H; 751-A-.
  B]
 E      2. In the occurrence when two persons died and
   number of others were injured, 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
 F the duty of every court to award proper sentence having
   regard to the manner 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
 G of jurisdiction under Article 136 of the Constitution of
   India. [Para 15] [751-0-F]

         CRIMINAL APPELLATE JURISDICTION: Criminal
      Appeal No. 1166 of 2005.
 H
         From the Judgment and Order dated 17.12.2004 of the
          ABDUL WAHEED v. STATE OF UTTAR PRADESH                    743


      High Court of Judicature atAllahabad in Criminal Appeal No.    A
      796of1981.

          Salman Khurshid, lmtiaz Ahmed, Naghma lmtiaz (for
      Equity Lex Associates) for the Appellant.
                                                                     B
           Ratnakar Dash, Harsh Vardhan Jha, Adarsh Upadhyay
      forthe Respondent.

          The Judgment of the Court was delivered by

          R. BANUMATHI, J. 1. This appeal is preferred against       c
      the judgment dated 17.12.2004 passed by the Allahabad High
      Court in Criminal Appeal No. 796 of 1981 whereby the High
      Court affirmed the conviction of the appellantAbdul Waheed
      under Sections 302, 148 and 323 IPC rea~ with Section 149
      IPC and sentence of life imprisonment and one year rigorous D
      imprisonment respectively awarded to him. The High Court
      partly allowed the appeal qua accused Babu Khan, Mukhtiyar,
      Javed Khan and Mohd. Hafeez Khan. The appeal before the
      High Court abated qua accused Vakil Khan, Abdul Hai and
      Shafiq Khan.                                                E

           2. Case of the prosecution is that complainant-Razzaq
      Khan's brother Abbas and Shabbir instituted a suit in the court
      of Munsif, Farrukhabad and an injunction order was issued by
      the court. Despite the court order, appellant Abdul Waheed F
      did not stop construction and continued the construction on
      the Panchayat Ghar. Due to the continuing unlawful act of the
      appellant, contempt proceedings were initiated against him
      and the case was listed for hearing on 06.11.197 4. One day
      before the hearing date i.e. 05.11.1974, at about 8.00 p.m., G
      the complainant was sitting near the chabutra of the well along
...   with Abbas, Shubrati and lsrar discussing about the court
      hearing. At that time, Abdul Hai, appellant-AbdulWaheed, Vakil
      Khan, Babu, Shafiq, Mukhtiar, Javed and Hafeez came there
                                                                      H
      and abused them giving a warning that they would be killed if
744        SUPREME COURT REPORTS                     [2015] 9 S.C.R.


A     th~y proceeded to the court next day.     Abbas replied back
  saying that he has instituted the suit and he will pursue the
  matter. Appellant-Abdul Waheed,Abdul Hai and Shafiq were
  armed with licensed guns, while the rest had /athis and dandas.
  On hearing the altercations,A$hfaq, lshtiyaq, Yasim Khan.Ali
B Daraj and r.~.:.hd. Yaseen came to the spot and intervened
  saying that the court would decide the issue. Abdul Waheed
  and Shafiq exhorted others to break the bones, whereupon
  Babu, Vakil, Mukhtiyar, Javed and Hafeez started inflicting
  injuries by giving /athi blows. lshtiyaq and Ashfaq used /athis
C in defence. The accused Abdul Hai, Abdul Waheed and Shafiq
  opened fire on the complainant party. Abdul Waheed's gunshot
  directly hit Abbas in his arm and Abbas sustained fracture
  injuries and he died little thereafter. lsrar was also hit by pellets
D and sustained gunshot injuries.

        3. On the complaint lodged by Razzaq Khan (PW-1), a
   case was registered in Crime Case No. 313/1974 at Police
   Station Kamalganj under Sections 147, 148, 302, 302/149 &
   302/149 IPC and Bisheshwar Singh, Sub Inspector of Police
 E (PW-7) had taken up the investigation. Injured Ashfaq Khan,
   lshtiyaq Khan, Razzaq Khan and Shubrati were admitted in
   Primary Health Centre Kamalganj and after first aid they were
   referred to District Hospital Fatehgarh where they were treated.
 F Dr. H.D. Gupta conducted post-mortem on the body of Abbas
   on 06.11.197 4 and issued post-mortem certificate (Ext.Ka-
   25) opining that Abbas died of shock and haemorrhage due
   to injuries sustained by him. Injured lsrar Khan was admitted
   as indoor patient in District Hospital Fatehgarh and he was
 G discharged from the hospital on 18.11.1974. Thereafter lsrar
   was again admitted in the hospitafon 14.12.19.74 complaining
   of intestinal obstruction. On 16.12.1974, dying declaration of
   lsrar Khan (Ext Ka-28) was recorded in the Distrfct Hospital
   by Sri Vinai Kumar (PW-13) the then S.D.M. Sadar. Dr. Sabir
 H Hussain has given a certificate (Ext. Ka-17) that lsrar Khan was
         ABDUL WAHEED v. STATE OF UTTAR PRADESH                   745
                    [R. BANUMATHI, J.]

     in a fit state of mind to give dying declaration. Despite A
     treatment lsrar Khan died on 18.12.1974. Dr. S. Tandon (PW-
     10) conducted the autopsy on the body of deceased-lsrar Khan
     and issued post-mortem certificate (Ext.Ka-24) opining that
     the death was due to shock as septic peritonitis which
     according to the doctor, lsrar could have developed for want B
     of proper treatment of injuries. After due investigation charge
     sheet was filed against the accused on 07.01.1975 under
     Sections 147, 148, 302 IPC read with Section 149 IPC (two
     counts).
                                                                   c
         4. To bring home the guilt of the accused, prosecution has
     examined thirteen witnesses. On behalf of the accused,
     defence has examined two witnesses. Upon consideration of
     the evidence, the II Additional District & Sessions Judge
     Farrukhabad vide judgment dated 31.03.1981 convicted the D
     appellantAbdul Waheed under Section 302 IPC for murder of
     Abbas Khan and sentenced him to undergo life imprisonment.
     Other seven accused persons were convicted for murder of
     Abbas Khan under Section 302 IPC read with Section 149
     IPC and each of them were sentenced to undergo life E
     imprisonment. All the eight persons were convicted under
     Sections 302/149 IPC forthe murder of lsrar Khan and each
     of them were sentenced to undergo life imprisonment.
     Accused Abdul Hai, Abdul Waheed and Shafiq were also F
     convicted under Section 148 IPC. All the eight accused
     persons were also convicted under Sections 323/149 IPC.
     Aggrieved by the verdict of conviction, the accused persons
     preferred appeal before the Allahabad High Court which vide
     impugned judgment confirmed the conviction of the appellant- G
     Abdul Waheed as awarded by the trial court and partly allowed
     the appeal qua other accused as aforesaid. This appeal
..   assails the correctness of the impugned judgment.

        . 5. Taking us through the evidence and the material on    H
     record, Mr. Salman Khurshid, learned Senior Counsel forthe
746         SUPREME COURT REPORTS                 [2015] 9 S.C.R.


A appellant assailed the conviction inter alia on the grounds:- (i)
  the discrepancy as to the place of occurrence; (ii) complainant
  party were the aggressors and (iii) conviction of the appellant
  could only be under Section 304 Part II IPC and not under
  Section 302 IPC. Learned Senior Counsel submitted that the
B incident took place near the chabutra of Shafiq where Shafiq
  and co-accused Vakil and Hafeez were sitting and not in the
  place and manner as putforth by the prosecution. It was further
  submitted that the investigating officer did not find any blood
  spot at the alleged place of occurrence i.e. in front of door of
c Abbas. It was further submitted that the accused party were
  not the aggressors and only deceased Abbas Khan and lsrar
  were armed with gun and pistol respectively and the
  investigating officer recovered a gun belonging to the
  deceased Abbas Khan from the place of occurrence but the
D
  prosecution has failed to explain as to how the gun was found
  there and the material lapses in the prosecution case were
  not properly appreciated by the High Court.

          6. Per contra, Mr. Ratnakar Dash, learned Senior Counsel
 E    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 ofAbbas Khan and the High Court rightly
      dismissed the appeal.
 F
          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.110/74
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
    ABDUL WAHEED v. STATE OF UTTAR PRADESH                    747
               [R. BANUMATHI, J.]

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/
74 of 1974 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. C
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 E
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 G
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.
                                                                 H
     10. Learned Senior Counsel for the appellant contended
748       SUPREME COURT REPORTS                  [2015] 9 S.C.R.


A 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 06.11.1974 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 5.11.1974, 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
0
  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
     ABDUL WAHEED v. STATE OF UTTAR PRADESH                       749
                [R. BANl:JMATHI, J.]

 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,           B
 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
750             SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A     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.
B
           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 1Yi'' 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 ...
D
        (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.
 E
           The doctor recovered twelve shots from the wounds and          I

      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.
 F
       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
    ABDUL WAHEED v. STATE OF UTTAR PRADESH                       751
               [R. BANUMATHI, J.]

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 B
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 1974 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.
                                                                     G
Devika Gujral                                    Appeal dismissed.