1989 PLP 822 (MLD)

(2)A circular lacerated wound of entry 1/3" in diameter on the front and right side of chest in the line of posterior axillary fold of the level of injury No.1. (3)A lacerated wound of exit of injury No.2 on the right side of chest posterolateral aspect 2" behind injury No.2 (probe passed from injury No.2 comes out from injury No.3 and felt under the skin. (4)A swelling blackening 2" x 2" on the back and right side of chest lower part foreign body felt underneath. (5)A lacerated wound 1/3" in diameter on the outer side of left leg lower part 3" above the ankle. (6)A contused wound 2" x 1/3" x scalp deep on the right side of head 5‑1/2" above the right ear.

5. The same injuries were found on his dead body at the time of autopsy. This Medical Expert has opined that all the injuries collectively and injuries Nos.1 to 4 individually were sufficient to cause death in the ordinary course of nature. He has added that the fire‑arm injuries were with pellets and injury No.6 was caused by a blunt weapon. .

6. The police went to the spot, collected the blood‑stained earth and picked up two empty cartridges Exh.P.l/1‑2 from the‑ spot, which were taken into possession vide memo. Exh.P.F.

7. The appellants were arrested on 17‑6‑1977. Nazir Ahmad appellant got recovered his Sod P.2 which was not stained with blood, and it was taken into possession vide memo. Exh.P.G. Can the same day, Faqir Bakhsh appellant got recovered his pistol P.3 from his house, which was made into a sealed parcel vide memo. Exh.P.H. After the completion of the investigation, the challan of both the appellants was submitted. As a sequel to the impugned trial, they were awarded the aforementioned punishment.

8. Bakhshan P.W.3 has narrated the incident, as stated in the F.I.R. He has, however, stated that two shots were fired by Faqir Bakhsh and Nazir Ahmad gave two Soti blows to the deceased. He has admitted that Elahi Bakhsh P.W.4 happens to be his son‑in‑law, and Faqir Bakhsh fired at Rahim Bakhsh from a distance of two or three Karams.

9. Elahi Bakhsh P.W.4, who is the uncle of Rahim Bakhsh deceased, has stated that he was working in the field of sugarcane outside the‑house of Malik Fazil and, on the alarm of Bakhshan, he was attracted to the spot and saw Faqir Bakhsh firing with his pistol at Rahim Bakhsh and Nazir Ahmad giving one stick blow to Rahim Bakhsh within his view and Rahim Bakhsh fell down. He had identified the dead body of Rahim Bakhsh at the time of autopsy. He had stated before the police, that he was present at the house of Malik Faazil but it was not found so recorded in his statement Exh.DA. He does not remember that he had stated before the police that he and Allah Bakhsh P.W. were present in their house at 10 a.m. and, after hearing the alarm of Bakhshan and Rahim Bakhsh, they reached the spot. It was found so recorded in Exh.DA.

10. Allah Bakhsh P.W.S, who is neither a relative of the deceased nor of the complainant, but is a member of their brotherhood, has corroborated the fact that both Faqir Bakhsh and Nazir Ahmad appellants, who were armed with a pistol and Soti respectively, had caused the death of Rahim Bakhsh. He did not state before the police that he was working in the sugarcane field near the spot.

11. The Soti had been recovered from Nazir Ahmad appellant and when the Soti is struck on the head, it is not necessary that it should be stared with blood. The pistol was recovered at the instance of Faqir Bakhsh appellant. But the parcel containing the empties and the pistol was sent back after objections a number of tunes and they were re‑sent after a year of this incident. It may also be noted that the parcels containing pistol and the empties were sent together and the presumption is that the empties could be substituted. In this manner, the story of recovery of the pistol does not assist the prosecution case.

12. The appellants pleaded to be innocent and have stated that they have been falsely implicated in this case due to enmity and suspicion. They did not produce any defence.

13. The eye‑witnesses have given a consistent account of the fact that Faqir Bakhsh appellant had fired at Rahim Bakhsh with his pistol and Nazir Ahmad appellant had given a Soti blow on the head of Rahim Bakhsh deceased. Their statements have been corroborated by the motive for the commission of this offence and the medical evidence on the file. The P.Ws. had no previous enmity against the appellants and they had no motive to falsely depose against the appellants.

14. In the circumstances, the learned trial Court has rightly convicted the appellants. As they had murdered Rahim Bakhsh to vindicate their family honour, so the sentence awarded to them appears to be adequate. Benefit of section 382‑B of the Cr.P.C. is, however, extended to them. I see no merit in this appeal and dismiss the same. The appellants have been brought in handcuffs from jail as their bail was cancelled. They may again be sent to jail to serve their remaining term of sentence. M.Z.S./F‑119/LAppeal dismissed.