G.M. Lodha, J.
1. Sabir has filed this appeal against his conviction under Section 302 IPC and 307 IPC for causing death of his brother Ismile and causing another gun shot injury, with the intention to cause death of Hanif, his third brother. The conviction has been recorded by the Additional Sessions Judge, Pratabgarh, who conducted the trial.
2. According to the prosecution, there were four brothers Sabir, Ismile Hanif and Mohammed Ali. The eldest was Ismile, who used to live separately from the other three brothers. Sabir, Hanif and Mohammed Ali used to live together.
3. About 7-8 months prior to the date of the occurrence, there was dispute bet wean these 3 brothers in respect of the partition of the agricultural land. This dispute led to separation of Sabir. On 24th May, 1978 at about 7 A.M., Mohammed Ali (P W. 2) was taking his four bullocks and one calf from his house to the well. He tied at the well. At that very time, Sabir came there. He had a gun and a pharsa with him. He untied the bullocks and the calf and started taking them inspite of Mohammed Ali's request not to do so.
4. When Mohammed Ali wanted to prevent him from doing so, he took up the position with pharsa, which led to running of Mohammed Ali from the spot. Mohammed Ali then came to his brother Hanif and told him the story and he also narrated it to another brother Ismile.
5. Ismile and Hanif accompanied Mohammed Ali in order to persuade Sabir not to take the bullocks and the calf. At a distance of about half a mile from the well, they saw Sabir walking on the road along with the bullocks. Rahim Bux (P.W. 3) and Karim Bux (P.W. 4) were following these three persons at some distance. When Sabir observed these three brother coming behind him, then he just turned back and at this point of time. Hanif told where he is taking the bullocks and he should stop.
6. On this Sabir took position with the gun and fired a shot at Hanif which hit him on the left leg. Hanif fell down. Ismile then came forward and Ismile said that why he had shot at Hanif. Sabir then took position and shot at Ismile with the gun which hit him on the thigh of the left leg. He also fell down.
7. Sabir then tried to beat Mohammed Ali with the barrel of the gun but Mohammed Ali caught hold of the barrel and relieved Sabir of the gun. Sabir then threw the bag which he was carrying and ran away. On account of gun shot injuries, Hanif and Ismile bleeded. Mohammed Ali then went to his relative Jamal and took the bullock cart. Jamal etc. brought the bullock cart and in the bullock cart, Hanif and Ismile were taken from the place of the occurrence. However, before they could reach the hospital of Pratabgarh, Ismile breathed his last and only Hanif reached in an injured condition. Pratabgarh is said to be at distance of 4 kms. from the place of occurrence.
8. During this period, the police came to know about the incident and Shiv Singh (P.W. 11) came to the hospital. He recorded the F.I R. from Mohammed Ali (P.W. 2) at 9 A.M. and started investigation. He inspected the site, prepared the site inspection note and other memos. Mohammed Ali (P.W. 2) and Moinuddin (P.W.12) produced before the police gun of Sabir accused and the farsa and the bag was also produced. The bag contained a licence of the gun in the name of Sabir. This licence is Ex. P.12. There in another licence in the name of Sabir was also found. There were pellets also in the bag.
9. Blood stained clothes were taken from the body of Hanif and blood stained earth was also recovered from the shot and memos were prepared.
10. Accused were arrested at about 2 P.M. on that very day. After completing the investigation, the accused was challened and then committed. The accused claimed to be tried and pleaded not guilty to the change under Sections 302 and 307, which were read over to him.
11. The prosecution examined 14 witnesses in all. Hanif(P.W. 1) and Mohammed Ali (P.W. 2) are eye witnesses. Rahim Bux (P W. 3) and Karim Bux (P.W. 4) reached the place of occurrence and are also eye witnesses. Karim Bux is the son of the deceased Ismile and Rahim Bux is the maternal uncle of the accused.
12. Dr. N.L. Solapurkar (P.W. 5) examined Hanif and conducted the x-ray (Exs. P 3 and P 4). Jamalluddin (P.W. 6) was also examined as be brought the bullock cart. The Investigating officer and other witnesses regarding the preparation of the memos were also examined. Hisani was examined to prove that the gun (Ex. P 7) from which, the shots were fired was sold by her to Sabir on 18th May, 1976. Shiv Singh ( PW 11 ), Moinuddin (PW 12) and Man Singh ( P W 13 ) are all witnesses connected with the investigation. Dr. Ganedranath Rai ( P W 14 ) is a medical witness, who examined the injuries on Ismile and prepared Ex. P 20 and conducted the post mortem and after which he gave post mortem report Ex. P 21.
13. The accused was examined under Section 313. He denied the allegations of the prosecution. According to the accused, the four bullocks belonged to him. He never attacked the deceased or the injured brothers nor there was any story of taking bullocks. According to him, there was a quarrel between Hanif & Ismile about the house & it might have been possible that on account of that, there was firing He stated that Mohammed Ali told him that there was firing between Hanif and Ismile in which gun was used & he came to the police station to lodge the report. According to the accused, a false case has been concocted because of the dispute about the land, and 10 bighas of land is being given to Ismile's son for giving false evidence and Hanif has also agreed to give house to Ismile's son.
14. The accused did not examine any defence witness. The learned Sessions Judge on a very exhaustive, careful and concidered appreciation of the evidence recorded by him, came to the cunclusion that Sabir was guilty for committing the murder of Ismile and also for causing gun shot wound to Mohammed Ali with the intention to cause his death.
15. In this appeal the learned Counsel for the appellant had not challen ged the fact that injuries were caused to the deceased Ismile, who died on account of the gun shot wound & further that the gun shot wound was also caused to another brother Hanif. According to the defence counsel, it was a case in which if at all the accused is held to be guilty, he should be held liable for offence under Section 304(2) IPC only. It was submitted that there was dispute about the property and obviously as per the evidence and admissions of the prosecution witnesses themselves, it was the deceased & his other brothers, who wanted to rob & unlawfully take away the share of the property from the accused. It was pointed out that the accused was all alone as there were 3 brothers on the other side and, therefore, all the three have joined to concoct this false case of murder.
16. The learned counsel for the appellant submitted that the injury has not been caused on the vital part of the body because the gun shot wound of Ismile as well as Hanif are on the legs only. From this, it was argued that it must be inferred that the accused wanted to avoid any serious injury to his brothers and all that he wanted was to scare them by causing such minor injuries on account of which, they may not physically take away the bullocks from him.
17. The learned Public Prosecutor has opposed the appeal. According to him, the present one is a case where the accused did not stop after first gun fire. Mr. Bhati's contention is that the deceased as well as the two brothers were unarmed and all of them only wanted to persuade the accused not to take away bullocks and that request was being done by verbal words of mouth. It was argued that the fact that the accused received no injury & that the deceased & other brothers were unarmed, goes to show that the accused acted in a merciless manner by causing gun shot wound & one of his brothers died and the other has been handicapped permanently on account of fracture of upper thigh in the leg due to which he cannot walk properly and has become lame and this will remain for whole of life.
18. We have carefully considered the rival contentions of the learned Counsel for the parties and have also gone through the record of the case. No doubt the present one is very unforunate case where one brother has killed his own brother and further permanently disabled his third brother. We have carefully gone through the cross-examination of the two brothers Moh-mmed Ali and Hanif in order to find out whether any plausible foundation cannote laid for holding that the accused exercised right of defence of his person or property or that he while firing the gun shots had neither any knowledge nor any intention to kill his brother.
19. There is no doubt that the prosecution story is consistent right from the recording of the FIR to the examination of the witnesses and nothing has been shown in the cross-examination of any witness on account of which he can be disbelieved.
20. It is to be noted that Hanif received gun shot injury. This gun shot wound, according to the doctor's evidence was inflicted on his left thigh and which penetrated resulting in multiple injuries to the various inner portions of the body and one of the pellets pierced the testacies. In all there were ten wounds. All the injuries were grevious because the internal organs were adversely affected. The blood vessels were seriously damaged and had endangered the life of Hanif. In view of this, it cannot be said that the gun shot wound caused to Hanif was not intended to cause death. In our opinion, the site of the injuries also is just adjoining to the stomach which contained liver and kidneys and other vital organs of the body. The upper-portion of the thigh and bullocks were injuried and the fact that kidney was not damaged, is only a matter of chance. It is, therefore, not possible to hold that while aiming the gun, the accused avoided vital parts of the body, as argued by the learned counsel for the appellant.
21. Dr. Ganendranath Rai (PW. 14) conducted the post mortem of the deceased Ismile. He found gun shot wound on the thigh, just adjoining to the testacies. There was blackening, on the injury which shows that the gun was fired from a very close range. The Formal triangle of left thigh was involved and destroyed. It is not possible to hold that the site of the injury of Ismile was such that an inference can be drawn that the accused wanted to avoid vital parts of the body of his brother.
22. As mentioned above in the case of Hanif similarly in the case of Ismile, the shot was fired on the upper most part of the thigh which connect the stomach. The vital portions connecting the thigh with the other portions which is known as femoral triangle was completely destroyed. We are, therefore, convinced that on the basis of the site of the injury, it cannot be said that the accused wanted to avoid any injury, which may prove fatal to his brothers.
23. Contrary to it, the fact that even after Hanif fell down on account of the first gun shot, the accused persisted and fired at the eldest brother Ismile, who came forward with the object of persuading him, goes to show that the accused had full intention to cause such injury by gun to Ismile which would in the ordinary course of nature be sufficient to cause his death. The very fact that gun was used with such a close range and at the time when the accused never sustained any injury what so ever & that the deceased had no weapon with him goes to show that the accused deliberately fired with the full intention to cause death of Ismile That being so, we are afraid, it is not possible to alter the conviction from Section 302 to Section 304 as prayed by the learned counsel for the defence.
24. The next question which requires consideration is whether at the time when the gun shot injuries were caused by the accused, he had any app rehension and a serious threat to his person or to property on account of which, he could in his defence cause death of his brothers. Undoubtedly from the cross-examination of prosecution witnesses, it is revealed that there was litigation between the parties about the land and further that the land stood in Sabir's name. We can further reasonably hold that the prosecution has not been able to prove that the bullocks were exclusive property of the deceased or the other two. namely, Hanif and Mohmmed Ali only and that the accused had nothing to do with it.
25. But even after holding the above, the accused cannot get any help for claiming any right of private defence of person or property in view of the nature of the incident, which happened. It is not a case either proved or plausible that these three brothers attacked the accused with any weapons. We are not in a position to give a finding that there is any plausible case that these three brothers forcibly took away the bullocks from the custody of the accused. Contrary to it, the evidence of Mohammed Ali, Hanif further corroborated by Rahim Bux and Karim Bux goes to show that the accused was going ahead with the bullocks and the calf and these three brothers came there from their house and were at some distance when they called accused to stop and hear them. The very fact that gun was used by the accused shows that the three brothers were at some distance. The fact that the accused received no injury at all and he now here claims or alleges to have received injury further shows that these three brothers never grappled with him and forcibly tried to take away the bullocks, nor beaten him.
26. In these facts and circumstances, we have got no hesitation in believing the prosecution story that the gun was fired for the first time by the accused on Hanif who was at a distance of 10 to 15 paces and that Ismile came forward after Hanif had fallen and the second fire was made on Ismile which proved fatal.
27. Since we are in agreement with the appreciation of the evidence by the trial court, we feel that it is not necessary to discuss the entire evidence afresh. We have, therefore, considered the salient & pertient, important features of the case in order to find out whether it is possible to convert the conviction of the accused from Section 302 IPC to Section 304 IPC as prayed by the learned counsel for the appellant. In view of our above discussion, we are of the opinion that the present one is a case where it is not possible to punish the accused of lesser offence of Section 304 as offence of Section 302 is clearly made out.
28. The result is that appeal fails and is hereby dismissed. The conviction of the accused Sabir for the offence under Section 302 for causing death of Ismile and for the offence under Section 307 for causing gun shot injury with the intention to cause death to Hanif and the sentences passed against the appellant for these offences are upheld.