MOHD KHANDEY Vs. STATE

JUDGEMENT

(1.) THE three appellants, Mohamad Khandey, Khaliq Khanday and Qadir Khandey, have been convicted for making attempt on the life of Lala Khandey and Kamal Khandey (P. Ws 1 & 2) by causing gunshot injuries to them. Khaliq Khandey has also been convicted for having in his possession a country made gun without license. The action arose out of an occurrence which took place on 9 -12 -1974 at about 6 P. M. in village Takanwari, Tehsil Srinagar. As it happens, the supply of electric energy in the house of Lala Khandey failed. His son, Kamal Khandey, PW 2 climbed up an electric pole on the periphery of his compound with the help of a ladder in order to remove the fault. He noticed a fishing boat in the nearby Wallah. His sister, Fata, was around the place. He asked her, whose boat it was ? "Uncle Qadirs", she said. Qadir Khandey and his son, Khaliq Khandey overheard them. Against the background of animosity resulting from dispute over property and consequent litigation between the parties, Khaliq Khandey did not relish the reference. He hurled abuses on Fata. Kamal Khandey protested. Thereupon, Khaliq Khandey took out a gun from his house. His father, Qadir Khandey instigated Khaliq saying, "Fire Kar Do,Chahay Teen Hazar Rupya Be Kharach Ho Jaay". Kamal Khandey had meanwhile come down to the lower rung of the ladder. Khaliq Khandey fired the gun and caused injury to Kamal in his both eyes. He fell down on the ground. Just at that very time Mohamad Khandey appeared on the spot armed with a gun. He fired a shot in the direction of Lala Khandey. Lala Khandey took shelter behind a tree but still got injured. The injured persons were shifted on to the main road in order to make arrangements for their transport to the hospital for treatment. There they were able to catch a passing vehicle of the Police Department with Gh. Qadir Constable (P. W.) on board and reach S.M.H.S. Hospital, Srinagar. They wore admitted in the hospital for treatment. Gh. Qadir constable P.W. informed; the police concerned on telephone. Nand Lal Head Constable, Police station Saddar. visited the hospital the same day. He immediately examined Lala Khandey. The record of the - examination EXPA forms the F. I. R. The Police registered a case and started investigation. During the course of investigation the police recovered one country made gun from, anumbal at the instance of Khaliq Khandey and Mohamad Khanday pursuant to a disclosure statement made by them. They also recovered some cartridges and ammunition from the house of Qadir Khandey. The injured persons were examined by the Doctor. He recorded a certificate in respect of each of them as below: - Lala Khandey Two wounds (of entrance) at Rt. Zygomatic region of face and other at Rt. anterior side of neck just below angle of mandible. Bleeding from both of these wounds present. X -ray of skull and face showed two metallic pieces at Rt. side of face and Rt. side of neck. No surgical Intervention was done. Patient developed no complication or neurological deficiet Bleeding over the right side of the face. Three small bleeding penetrating wounds each about 1/2 cm to 1 cm in diameter with circular margins over the right side of face. Kamal Khandey Both the eyes closed, as there is a big heamatoma on each eyes ; Bleeding all over the face ; About fifteen small penetrating wounds each about 1/2 cm to 1 cm in diameter on the whole including both the eyelids and forehead also ; and one more small penetrating wound about 1/2 cm in diameter, bleeding, over the left side near the anterior axillary. X -ray shows multiple. F. Bodies on face and orbits. In the opinion of the Dr. the injuries caused to Kamal Khandey were grevious in nature and could be caused by lead pallets fired from a gun. The injured had lost perception of light in both eyes. X -ray revealed that there were multiple metallic pieces inside the eyes and the orbits. The sclera and conjunctiva stitched and foreign bodies allowed to remain were they were. According to the Drs opinion the injury caused to Lala Khandey was simple in nature and could be caused by lead pallets fired from a gun. X -ray -showed the presence of two metallic pieces ; one inside right side of his face and the other inside right side of his neck. No surgical intervention was done to remove those pieces.

(2.) THE accused have denied their participation in the occurrence. They have staled that the occurrence has been foisted onâ„¢ them on account of their strained relations resulting from a dispute over property and consequent litigation between Qadir Khandey on one side and the injured persons on the other. They have led no evidence in defence.

(3.) THE learned Additional Sessions Judge has believed the prosecution evidence except in so far as it relates to the disclosure statement. He has said that the evidence with regard to the disclosure statement does not inspire confidence. But at the same time there is ample independent evidence to show that the gun was recovered at the instances of Khaliq Khandey accused. He has also believed the recovery of the cartridges and ammunition from the house o,f Qadir Khandey. In this background, he has held that Khaliq Khandey vielded a gun and caused injuries to Kamal Khandey which have resulted in the loss of eye sight by him. He has further held that Mohammad Khandey too has vielded a gun and caused injuries to Lala Khandey. He has also held that the firing was instigated by Qadir Khandey. Accordingly he has convicted Khaliq Khandey and Mohammad Khandey under section 307 RFC and Qadir Khandey under section 307 read with section 109 R.P.C. and sentenced them to rigorous imprisonment for seven years and to a fine of Rs. 2.000/ - in default, to suffer simple imprisonment for a period of six months each. He has also convicted Khaliq Khandey under section 25 of the Indian Arms Act for holding the gun without license and sentenced him to one months rigorous imprisonment with a proviso that the sentences imposed on him shall run concurrently. He has directed that the fine if and when recovered shall be paid to Kamal Khandey as compensation. The accused have challenged the conviction and sentence imposed on them.