The main legal point established is that the provisions of the Probation of Offenders Act, 1958 do not apply to offences punishable with life imprisonment, and the principle of common intention under Section 34 IPC can be used to establish guilt in cases of assault.

G.P. Mittal, J.

1. Appellant who is a victim of murderous assault by Respondents No.2 to 4 approaches this Court under Section 372(proviso) for enhancement of sentence to them as they were released on furnishing bond of good conduct under Section 4 of the Probation of Offenders Act, 1958(Act of 1958) after having holding them guilty under Section 307 Indian Penal Code (IPC).

2. The Appellant is brother of Wasim. Wasim is husband of Shabnam. Respondents Rashid and Shahid are brothers of Shabnam, whereas Respondent Imran is cousin of Shabnam. It is the case of the prosecution that there was some acrimony between the family of Wasim (complainant’s family) and the family of Shabnam on account of matrimonial discord between the two (Wasim and Shabnam). The Respondents were nursing a grudge against Wasim and his family members as their sister Shabnam was being ill-treated by Wasim and his family members.

3. As per prosecution version, on 16.05.2007 at about 12 midnight Appellant Nadeem was sitting on the stairs leading to his house when the three Respondents came there. It is alleged that the three Respondents who were accompanied by one more person at that time wanted to know about Wasim. The Appellant allegedly informed the Respondents that Wasim might be available on the second floor where he used to reside with his parents. In the meanwhile Rashid exhorted his brother Shahid to finish the job by saying ‘Dekhta kya hai kaam jaldi kar de’. Shahid allegedly took out a country-made pistol and fired on the complainant/Appellant. He suffered a bullet injury on his right arm and started bleeding. The three Respondents along with their fourth associate escaped from the spot. The Appellant’s employee Dilshad (PW10) witnessed the incident. On hearing the cries of his son, the Appellant’s father came downstairs and noticed the three Respondents along with one more person fleeing from the spot. The Appellant was removed to Guru Teg Bahadur (GTB Hospital). He was initially treated in the emergency ward and was later referred to orthopaedics and surgery emergencies for further treatment. The doctor opined that there was no blackening on the site of injury as the wound was not caused from the firearm at a close range.

4. The Appellant’s shirt containing two holes, one vest and a pair of trousers were seized which were found to be stained with the blood of ‘AB’ group. Country-made pistol could not be recovered from the possession of the Respondents. After completion of the investigation, a charge sheet was presented against them(the Respondents No.2 to 4).

5. In order to establish its case, the prosecution examined 21 witnesses including Nadeem(PW2), the complainant and victim of the gun shot injury, Rahees(PW1), father of the victim who reached the spot immediately after the incident and Dilshad(PW10), an employee of the victim who is an eye witness to the incident.

6. In their examination under Section 313 Cr.P.C., the Respondents denied the allegation of the prosecution and pleaded false implication. Respondents No.2 to 4 examined Shahbuddin(DW1) who was a mediator in the marriage of Shabnam and Wasim and Liyakat Ali (DW-2) who is father of Shabnam. They simply deposed about the acrimony between the two families on account of the alleged harassment meted out to Shabnam at the hands of Wasim and his family members.

7. On appreciation of evidence, the learned Additional Sessions Judge(ASJ) held that although the recovery of country-made pistol had not been established, yet believing the version given by the Appellant(the Complainant) and eye witness Dilshad(PW10), the learned ASJ found that the evidence produced by the prosecution was reliable and even if there was some enmity between the family of Shabnam on the one hand and the family of Wasim on the other hand, the real culprits will not be allowed to go scot free to falsely rope in the Respondents. He held that the Appellant was hurt with intention to cause death in furtheranc