Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1166 OF 2005
ABDUL WAHEED ..Appellant
Versus
STATE OF UTTAR PRADESH ..Respondent
J U D G M E N T
R. BANUMATHI, J .
This appeal is preferred against 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 appellant Abdul Waheed
under Sections 302, 148 and 323 IPC read with Section
149 IPC and sentence of life imprisonment and one year
rigorous 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
Signature Not Verified
Vakil Khan, Abdul Hai and Shafiq Khan.
Digitally signed by
Parveen Kumar Chawla
Date: 2015.09.01
17:50:47 IST
Reason:
2. Case of the prosecution is that
complainant-Razzaq Khan’s brother Abbas and Shabbir
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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 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
06.11.1974. One day before the hearing date i.e.
05.11.1974, at about 8.00 p.m., the complainant was
sitting near the chabutra of the well along with Abbas,
Shubrati and Israr discussing about the court hearing. At
that time, Abdul Hai, appellant-Abdul Waheed, Vakil
Khan, Babu, Shafiq, Mukhtiar, Javed and Hafeez came
there and abused them giving a warning that they would
be killed if they 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 lathis and dandas . On hearing the altercations,
Ashfaq, Ishtiyaq, Yasim Khan, Ali Daraj and Mohd. 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 lathi blows. Ishtiyaq and Ashfaq used
lathis in defence. The accused Abdul Hai, Abdul Waheed
and Shafiq opened fire on the complainant party. Abdul
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Waheed’s gunshot directly hit Abbas in his arm and
Abbas sustained fracture injuries and he died little
thereafter. Israr was also hit by pellets 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 (PW-7) had taken up the
investigation. Injured Ashfaq Khan, Ishtiyaq 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. Dr. H.D. Gupta conducted post-mortem on the
body of Abbas on 06.11.1974 and issued post-mortem
certificate (Ext.Ka-25) opining that Abbas died of shock
and haemorrhage due to injuries sustained by him.
Injured Israr Khan was admitted as indoor patient in
District Hospital Fatehgarh and he was discharged from
the hospital on 18.11.1974. Thereafter Israr was again
admitted in the hospital on 14.12.1974 complaining of
intestinal obstruction. On 16.12.1974, dying declaration
of Israr Khan (Ext Ka-28) was recorded in the District
Hospital by Sri Vinai Kumar (PW-13) the then S.D.M.
Sadar. Dr. Sabir Hussain has given a certificate
(Ext.Ka-17) that Israr Khan was in a fit state of mind to
give dying declaration. Despite treatment Israr Khan
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died on 18.12.1974. Dr. S. Tandon (PW-10) conducted
the autopsy on the body of deceased-Israr 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, Israr could have developed for
want 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).
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 appellant Abdul 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
imprisonment. All the eight persons were convicted
under Sections 302/149 IPC for the murder of Israr Khan
and each of them were sentenced to undergo life
imprisonment. Accused Abdul Hai, Abdul Waheed and
Shafiq were also convicted under Section 148 IPC. All
the eight accused persons were also convicted under
Sections 323/149 IPC. Aggrieved by the verdict of
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conviction, the accused persons preferred appeal before
the Allahabad High Court which vide impugned judgment
confirmed the conviction of the appellant-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 record, Mr. Salman Khurshid, learned Senior
Counsel for the 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
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 Abbas.
It was further submitted that the accused party were not
the aggressors and only deceased Abbas Khan and Israr
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 prosecution has failed to explain as to how the gun
was found there and the material lapses in the
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prosecution case were not properly appreciated by the
High Court.
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 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.110/74 (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 in the aforesaid suit.
Ex. Ka-42 is the application moved by Shabir Khan in the
aforesaid suit No. 110/74 for taking action against the
appellant Abdul Waheed under Order XXXIX 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. 06.11.1974. By the
evidence of PW-1 and by the aforesaid documents
prosecution has established the motive of the accused.
6
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 to the evidence of the
eye-witnesses.
9. Prosecution has mainly relied on the testimony
of three eye-witnesses Razzaq Khan (PW-1), Yasin Khan
(PW-3) and Ali Daraj (PW-4). PWs 1, 3 and 4 have
spoken in one voice about 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 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
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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
06.11.1974 and at that moment deceased Abbas and
Israr 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 l athi blows to Vakil
Khan and Hafeez and Abbas fired from his gun and only
to show that the accused party were the aggressors, the
scene of occurrence was shifted as c habutra 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 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 witnesses have spoken
consistently about the place of occurrence being
8
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
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 Khan and Israr armed with gun and
pistol respectively along with other persons armed with
lathis came to c habutra 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
sustained injuries and the prosecution has suppressed
genesis of the occurrence. Evidence of PW2-Dr. G.M.
Solanki, of course 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 Ishtiyaq and Ashfaq inflicted blows
with lathis on the accused party. As discussed earlier,
the accused party were armed with guns, pistols and
9
lathis, the injuries sustained by 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 and the accused Vakil Khan and
Hafeez Khan received minor simple injuries of blunt
weapons at the hands of Ishtiyaq and Ashfaq Khan who
wielded lathis in lawful exercise of their right of private
defence.
12. Prosecution version is assailed contending that
the 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 (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 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
10
the gun of 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 hit
Abbas 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 (Ext. Ka-25), it is seen
that Abbas sustained following injuries:
(i) Gunshot wound 1½” × ½”× bone deep on the
front and inner side of right upper arm. 3½”
above elbow with fracture of the shaft of
humorous bone…
(ii) Multiple gunshot wound of exit of varying
dimensions from 1/8” × 1/8” × 1/10” × 1/10”
in middle part of right upper arm with everted
margins.
(iii) Abrasion 1/2” × 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 pistol, guns and lathis which
11
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
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 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 enmity and the weapon used, the courts
below rightly held that the appellant-accused was guilty
of committing the murder of Abbas Khan.
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 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
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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 of jurisdiction
under Article 136 of the Constitution of 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.
……………………….J.
(DIPAK MISRA)
……………………….J.
(R. BANUMATHI)
New Delhi;
September 01, 2015
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ITEM NO.1A COURT NO.4 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1166/2005
ABDUL WAHEED Appellant(s)
VERSUS
STATE OF U.P. Respondent(s)
[HEARD BY HON'BLE DIPAK MISRA AND HON'BLE R. BANUMATHI, JJ.]
Date : 01/09/2015 This appeal was called on for judgment
today.
For Appellant(s) Mr. Imtiaz Ahmad, Adv.
for M/s. Equity Lex Associates
For Respondent(s) Mr. Adarsh Upadhyay,AOR
Hon'ble Mrs. Justice pronounced the judgment of the
Bench comprising Hon'ble Mr.Justice Dipak Misra and Hon'ble
Mrs. Justice R. Banumathi.
For the reasons recorded in the Reportable
judgment, which is placed on the file, 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.
(Renuka Sadana) (Parveen Kr. Chawla)
Court Master AR-cum-PS
14