JUDGMENT Mukteshwar Prasad, J.
1. Three accused namely Shahadat Ali, Nadir Mian and Bhurwa came up in appeal to this Court against the judgment and order-dated 30.5.1981 passed by Sri R.N. Agarwal, the then Additional Sessions Judge, Rampur whereby he convicted the appellants under Section 324 read with Section 34 I.P.C. and each of them was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 400 In default, they were ordered to undergo six months rigorous imprisonment.
2. Appellant No. 3 Bhurwa, son of Dhumai Khan, expired during pendency of this appeal.
3. In brief, the facts of the prosecution case leading to the prosecution of the appellants were as under:-
P.W.1 Wazeer Khan, son of Amir Khan, handed over a written report in Urdu at P.S. Ganj, Rampur on 11.5.78. The local police registered a case at crime No. 145 under Sections 147, 148 and 307 I.P.C. at 5-30 P.M. It was alleged in the report that there was long standing enmity between the parties. The informant's brother Ateeq was killed by Bhurwa and others and the accused were convicted and sentenced. After their conviction, they were having ill will and animosity with the informant and members of the family.
4. On 11.5.78 at about 5-00 P.M. Wazeer Khan, his brother Munney Khan and Shahid, a resident of village Nankar, were going to their fields. They stopped at the hotel of Bhurwa to have a cup of tea. In the meantime, Bhurwa, Shahadat Ali, Nadir Mian, all armed with guns, Sabbir and Safiq armed with Tamanchas arrived there. Bhurwa exhorted his associates to avail the opportunity and kill all the three enemies who were present there. Thereupon, he and Nadir Mian fired with their guns causing injuries to Shahid. Shahadat Ali also fired with his gun and caused injuries to Munney Khan. Shabbir and Safiq also rushed there with Tamanchas and fired at Wazeer Khan but he saved himself. This incident was witnessed by Najakat, Machhan Khan and Mubarak Shah Khan and Nanhey Khan. After having received gun shot injuries, Munney Khan and Shahid went inside the hotel and fell down. The assailants, on being challenged by the witnesses, ran away towards forest alongwith their arms.
5. Wazeer Khan got a report of the incident prepared by Bachhan Khan and reached the Police Station alongwith both the injured Munney and Shahid.
6. The local police sent both the injured to District Hospital Rampur through a Constable.
7. P.W.4 Dr. T.N. Gupta, the then Medical Officer of the District Hospital, examined the injuries of Shahid on 11.5.78 at 6-30 P.M. and found two injuries. Both the injuries were fresh at the time of examination and caused by firearm. The injuries were kept under observation.
8. Dr. Gupta further examined Munney Khan on the same day at 6-15 P.M. and found two circular lacerated wounds over front of the left thigh and on inner aspect of right thigh. Both the injuries were fresh and were caused by firearm.
9. After X-ray, three radio opaque shadows, rounded and of metallic density were found in the left upper side of chest of Shahid.
10. The case was investigated by P.W.7 S.I. Bharat Singh. He investigated the case as usual and after completing investigation submitted charge sheet against all the five assailants named in the F.I.R. .
11. All the five accused were charged under Sections 148 and 307 read with Section 149 I.P.C. on 7.8.80. They pleaded not guilty to the charges and claimed to be tried.
12. At the trial, the prosecution examined P.W.1 Wazeer Khan, the informant and one of the eyewitnesses, P.W.2 Munney Khan, one of the injured, P.W.3 Bachchan Khan who is also said to be eyewitness, P.W.4 Dr. T.N. Gupta, the Medical Officer, who had examined the injuries of Munney and Shahid, P.W.5 Nanhey Khan who is also an eyewitness, P.W.6 H.C. Rajveer Singh who prepared F.I.R. and made entry in the G.D. and P.W.7 S.I. Bharat Singh 1.0. of the case.
13. Both Shahadat Ali and Nadir Mian totally denied all accusations levelled against them and pleaded their false implication in the case on account of enmity and the injured are related to each other.
14. Accused examined D.W.1 Shahid, one of the injured, as defence witness.
15. After having considered the entire oral and documentary evidence on record and the submissions made on behalf of the parties, learned trial Judge acquitted Shabbir and Safiq and gave them benefit of doubt. He found Shahadat Ali, Nadir Mian and Bhurwa guilty for voluntarily causing hurt with firearms and convicted and sentenced them as mentioned above. Hence this appeal.
16. I have heard learned counsel for the appellants and learned A.G.A. and perused the record carefully.
17. It was contended on behalf of the appellants that appellant No. 3 (Bhurwa) alone had a motive against the informant and his brother and Shahadat Ali and Nadir Mian had no grudge against the injured. Therefore, there was no question of their participation in the alleged crime. The prosecution did not examine Shahid and he was examined as a defence witness and he did not prove complicity of the appellants. It was also urged that out of five assailants, two were acquitted by the court below and were extended benefit of doubt. The trial Judge, therefore, erred in convicting the three appellants on the basis of same evidence on record. It was also submitted that incident took place in the month of May, 1978 and since then more than 27 years have passed and as such, the appellants deserve all sympathy and leniency of this Court.
18. On the other hand, learned A.G.A. has submitted that the court below itself took a very lenient view in respect of sentencing the appellants and after thorough scanning of the evidence on record found that only three appellants were actual assailants and they were rightly convicted. It was also submitted that the prosecution case rests on direct ocular testimony and as such, the question of motive has no significance. The motive is always relevant and has significance in the case based on circumstantial evidence.
19. I have considered the arguments advanced on behalf of the parties. I have also scrutinized the evidence on record led by the parties carefully. In my considered opinion, the learned trial Judge committed no illegality in appraisal of the evidence and rightly found the three appellants guilty for voluntarily causing hurt to Munney Khan and Shahid on the impugned date and time.
20. There is sufficient reliable evidence on record to the effect that parties were having strained relations since long. The appellant No. 3 (Bhurwa) was convicted and sentenced to imprisonment for life for committing murder of Ateeq, brother of P.W.1 Wazeer Khan. The informant's brother Munney Khan was also convicted and sentenced to imprisonment for life for committing murder of Shabbir, brother of Nadir Mian. Besides, the informant and his brother Munney Khan faced trial in several cases. It means, both parties were criminals and were facing trial in several criminal cases in the courts. Enmity is a double-edged weapon and it cuts both ways. Enmity may be a motive for committing the crime. At the same time, the enemies are falsely implicated. In this background, the court below did appraisal of the evidence led by the parties. I am in full agreement with the conclusions of the trial court that incident did take place on the impugned date, time and the place, as alleged by the prosecution.
21. P.W.4 Dr. T.N. Gupta found two circular lacerated wounds over left and right thigh and in his opinion both injuries were caused by firearms. Dr. Gupta examined D.W. 1 Shahid also on the same day at 6-30 P.M. and found multiple lacerated wounds over back on upper part in scapular region on both sides and lacerated wounds on top of the left shoulder. The injuries of both the injured were fresh and were caused by firearms. It is crystal clear that the assailants used firearms in causing the aforesaid injuries to Munney Khan and Shahid on the impugned date and time. Besides the oral evidence of eyewitnesses, there is evidence of the 1.0. on record who recovered blood stained earth (brick) from the spot. He further found two empty cartridges, four wads and pellets at the scene of incident. There is reliable evidence of three witnesses to the effect that both injured took shelter inside the hotel of appellant No. 3 (Bhurwa) where blood had fallen down. Thus, the place of occurrence was also fixed.
22. Now the relevant question is as to whether the crime in question was perpetrated by the appellants. The prosecution relied on the testimony of P.W.1 Wazeer Khan, the informant and an eyewitness and P.W.2 Munney Khan, who sustained injuries in the course of incident. One Nanhey Khan, who is named in the F.I.R. as an eyewitness, was also examined, as P.W.5 but the court below rightly did not place much reliance. P.W.5 Nanhey Khan is admittedly brother-in-law (Sarhu) of Meena, brother of Munney Khan. Thus, he is related to the injured. I however find that Munney Khan and his brother Wazeer Khan fully supported the prosecution version and testified in clear words that Bhurwa and Nadir Mian first of all fired shots at Shahid and caused injuries. Appellant Shahadat Ali fired at Munney Khan and caused injuries. Both brothers were cross-examined extensively and effectively on behalf of the defence but nothing could be elicited in their cross-examination to show that they have not spoken the truth regarding name of the assailants. It is noteworthy that minor discrepancies in the prosecution evidence do not weaken the prosecution case. It will not be out of place to mention that evidence of both brothers was recorded after about three years from the date of occurrence. Moreover, an injured would not spare real assailants and falsely implicate innocent persons.
23. So far as the defence evidence is concerned, it is clear that Shahid, one of the injured, was won over by the accused. I however find that he could not help the appellants. According to him, he and Munney Khan received firearms injuries on the canal at about 1-30 P.M. on the impugned day while they were going to forest from the city. He testified that two shots were fired at him and Munney Khan sustained firearms injuries in his thigh. He became unconscious and was taken to the hospital. He did not identify his assailants. In cross-examination, Shahid gave out that he lodged no report regarding incident. He, however, admitted that his injuries were examined in the district hospital.
24. After close scrutiny of the entire evidence on record, I hold that the learned trial Judge was wholly justified in convicting the appellants under Section 324 read with Section 34 of the Penal Code. Having regard to the facts and circumstances of the case, including nature of the offence committed by the accused and the character of the appellants, I am not inclined to release them on probation of good conduct. The appellants were convicted for committing murder and were facing trial for committing heinous offences. Moreover, they used firearms in causing injuries in broad daylight. In this view of the matter, I hold that the sentence passed by the learned Judge is not excessive and has to be upheld.
25. In the result, the appeal is disposed of as under:-
The conviction of appellants Shahadat Ali and Nadir Mian under Section 324 read with Section 34 I.P.C. is confirmed and each of them is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 400/- within a period of two months from today. In default, they are directed to suffer rigorous imprisonment for a further period of three months. The appellants are on bail. Their bail is cancelled. They shall be taken into custody and shall be lodged in Jail to serve out the sentence.
26. A copy of this judgment alongwith lower court record shall be sent to the court below/Chief Judicial Magistrate concerned for necessary compliance. Compliance report shall be submitted to this Court within six weeks from the date of receipt of the record.