Page 1

1

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1889/2008

AHMED SHAH & ANR.     .. Appellants Versus

STATE OF RAJASTHAN    ..Respondent WITH

CRIMINAL APPEAL NO. 1904/2008

STATE OF RAJASTHAN        ..Appellant  Versus

RASOOL SHAH & ORS.   ..Respondents WITH

CRIMINAL APPEAL NO. 1938/2008

STATE OF RAJASTHAN        ..Appellant  Versus

MST. HALIMA & ORS.   ..Respondents AND

CRIMINAL APPEAL NO. 17/2009

STATE OF RAJASTHAN        ..Appellant Versus

IQBAL & ORS.           ..Respondents

J U D G M E N T

R. BANUMATHI, J  .   

These  appeals  arise  out  of  the  judgment  dated  

20.08.2007  passed  in  Criminal  Appeal  No.704  of  2005  in  which  

Jodhpur Bench of Rajasthan High Court confirmed the conviction of

Page 2

2

the  appellants  under  Section  302  and  also  the  sentence  of  life  

imprisonment imposed on them with a fine of Rs.1,000/-.   The High  

Court  acquitted  eighteen  other  accused  of  the  charges  under  

Section  302  IPC  read  with  Section  149  IPC  and  convicted  them  

under  Section  148  IPC  and  sentenced  those  eighteen  accused  

persons to the period already undergone by them.

2. Case of  the prosecution is  that,  on 29.4.1996 at  about  

3.30 P.M.  when complainant - Rakhu Shah was at the field of his  

brother-in-law  Abdul  Shah  along  with  his  sister  Rakhia  (PW-8),  

nephew Hasan Ali  and Sabbir  Shah,  the appellants and nineteen  

other  accused  along  with  others  forming  themselves  into  an  

unlawful  assembly  came  to  the  field.   Appellants  Ahmed  Shah,  

Gurmukh Singh and Rasool Shah were armed with weapons namely  

spears and Lathis.   Rasool Shah inflicted injuries to complainant-

Rakhu Shah.  The accused persons assaulted complainant’s sister  

Rakhia (PW-8).  Ahmed Shah and Gurmukh Singh attacked Sabbir  

Shah.  Gurmukh Singh inflicted injuries on the neck of Sabbir Shah  

with spear as a result of which his neck was cut and he started  

bleeding profusely and appellant-Ahmed Shah inflicted injuries with  

spear on the scalp of Sabbir Shah and Sabbir Shah died on the spot.

3. Rakhu Shah was admitted in the hospital on 29.4.1996.

Page 3

3

After obtaining opinion of the doctor that Rakhu Shah was in a fit  

state  of  mind  to  make  the  statement,  PW-21  Mangu  Singh,  

Investigating Officer recorded the statement of Rakhu Shah.  Based  

on the said statement, a case was registered in F.I.R. No. 68/1996  

under Sections 302, 307, 323, 147, 148 and 149 IPC.  PW-21 Mangu  

Singh  Investigating  Officer  had  taken  up  the  investigation  and  

prepared the site plan and recovered the articles from the place of  

incident and recorded statement of witnesses.

4. PW-13, Dr.P.S. Mathur had conducted post-mortem on the  

dead body of Sabbir Shah and Ext P.46 is the post-mortem report  

and opined that  death was due to multiple injuries sustained by  

him.  PW-8 Rakhia was admitted in the hospital  for treatment of  

injuries  sustained  by  her.   PW-13-Dr.  P.S.  Mathur  had  noted  the  

injuries  sustained  by  Rakhia  and  issued  Ext  P.44  injury  report.  

Rakhu  Shah  was  admitted  in   the  hospital   and  treated  in  the  

emergency ward.  Rakhu Shah succumbed to injuries on 4.5.1996-

12.10 hrs in the night.  PW-9 Dr. Rajkumar Dargar conducted post-

mortem examination on the dead body of Rakhu Shah and Ext P.28  

is the post-mortem report.  PW-9 opined that the cause of death  

was fat embolism due to multiple injuries which is the consequence  

of all the injuries.  

Page 4

4

5. To  prove  the  charges  against  the  accused,  prosecution  

has  examined  four  eye  witnesses  (PW-3  Rau  Ram,  PW-4  Darey  

Shah, PW-7 Hasan Shah and PW-8 Rakhia) and other witnesses and  

exhibited  several  documents  and  material  objects.  The  accused  

were questioned under Section 313 Cr.P.C. about the incriminating  

evidence and circumstances and the accused denied all  of them.  

Some of the accused stated that the date of incident was Eid and  

that they were celebrating Eid and they were not present at the  

scene of occurrence.  

6.  The appellant  Ahmed Shah came with  a  specific  case  

that in the year 1987,  he had purchased a piece of land from Abdul  

Shah  for  a  consideration  of  Rs.75,000/-  and  that  he  was  in  

possession of the same through his cultivator Roopa Ram Bajigar.  

The appellant Ahmed Shah further pleaded that Sabbir Shah, Rakhu  

Shah and Rakhia and the complainant party came to his field to  

forcibly occupy the same and Sabbir Shah fired the gun and then he  

ran  away.   Accused  thus  pleaded  that  the  deceased  were  the  

aggressors.  The accused persons exhibited 35 documents in their  

defence.

7. Upon evaluation of  the case of  the prosecution,    trial  

court convicted all the accused persons finding them guilty under

Page 5

5

Sections  148,  307/149  and  302/149  IPC  and  sentenced  them to  

three  years  rigorous  imprisonment,  ten  years  rigorous  

imprisonment and life imprisonment respectively along with fine of  

Rs.1,000/- with default clause and all sentences were ordered to run  

concurrently.    Aggrieved  by  the  same,  the  accused  preferred  

appeal  before  the  High  Court.   The  High  Court  held  that  the  

appellants Gurmukh Singh and Ahmed Shah were responsible for  

causing  the  death  of  Sabbir  Shah  and  accordingly  they  were  

convicted under Sections 302/34 IPC.   Accused Subhan Shah and  

Rasool Shah  were convicted under Sections 307/149 IPC  and their  

sentence was reduced to the period already undergone.   Except  

above named accused persons, all other accused were acquitted of  

the charges under Sections 302/149 and 307/149 IPC and they were  

convicted under Section 148 IPC and the substantive sentence was  

reduced  to  the  period  already  undergone.    Aggrieved,  the  

appellants  have  filed  Criminal  Appeal  No.1889/2008.  Challenging  

the acquittal of other accused persons, State has also preferred the  

appeals.  

8. Learned counsel for the appellants stressed on the point  

that the F.I.R. mentioned names of only seven accused persons and  

only subsequently more names were added and there was gross

Page 6

6

over-implication of  accused persons.   It  was submitted that  it  is  

evident  from  the  statement  of  investigating  officer  and  other  

witnesses that the possession of the land in dispute was with the  

accused and this  fact  alters  the entire prosecution case.   It  was  

argued  that  the  instant  case  was  a  one  of  free  fight  and  since  

individual liability of the accused persons could not be ascertained  

and the appellants could not have been convicted under Sections  

302/34 IPC and Sections 307/34 IPC.  

9. Learned counsel for the respondent-State submitted that  

the appellants and other accused persons formed themselves into  

an unlawful assembly in furtherance of their common object caused  

murder of Sabbir Shah and Rakhu Shah while causing fatal injuries  

to Rakhia and the evidence of the eye-witnesses (PWs 3, 4, 7 & 8)  

clearly established the overt act of the accused persons.  It  was  

further contended that the land in dispute was in possession and  

ownership of Abdul Shah and the accused persons were aggressors  

and  the  accused  had  no  right  of  defence  in  protection  of  their  

property.  It was contended that since overt act of the individual  

accused has been clearly proved by the prosecution, the High Court  

ought not to have acquitted the other accused persons.

10. We have carefully considered the rival submissions of the

Page 7

7

parties  and  perused  the  evidence  on  record  and  the  impugned  

judgment.

11. The dispute between the parties pertains to the  land-14  

bighas.  The said land was sold by Abdul Shah to appellant-Ahmed  

Shah for a consideration of Rs.75,000/- and the possession of the  

field  is said to have been handed over to  Ahmed Shah.  Ex D8 is  

the  sale  agreement  dated  9.4.1987  executed  by  Abdul  Shah  in  

favour of Ahmed Shah.  Regarding the land, there was a litigation  

then going on between the parties.Case of  prosecution  is  that  the  

accused party went to the field and attempted to dispossess Abdul  

Shah  and  Sabbir  Shah  and  thereby  alleged  to  have  caused  the  

death of Sabbir Shah and Rakhu Shah and also caused injuries to  

PW-8  Rakhia.   By  careful  reading  of  evidence  and  materials  on  

record, it is seen that the accused party was in actual possession of  

the land and the complainant’s party had gone to the field to take  

forcible possession.  

12. PW-8 Rakhia had admitted that about seven or eight days  

prior to the incident,  her husband Abdul Shah and her elder son  

Hasan  Shah  had  forcibly  taken  over  possession  of  the  field  and  

Ahmed Shah and Rasool Shah thwarted the same.  PW-8 had stated  

that Rafik Shah told them that he would arrange to put them in

Page 8

8

possession  of  the  field  and  therefore  on  the  said  date  the  

complainant party had gone to the field with him.  She had also  

admitted that there was   crop of Narma in the field.    PW-8 had  

also  stated that on the date of incident i.e. 29.4.1996, Rakhia, her  

brother Rakhu Shah, Hasan Shah, Sabbir Shah and few others went  

to take possession of the land and that Sabbir Shah was armed with  

gun.  PW-8 being an injured witness, her evidence stands on higher  

footing and is entitled to greater weight.  For proper appreciation of  

the  case  as  to  the  genesis  of  the  occurrence,  we  may  usefully  

extract  the  evidence  of  PW-8  as  elicited    during  her  cross-

examination which is as under:-

“…whether  this  land was sold  by her  husband to  Ahmed  Shah in April, 87 for a consideration of Rs.75,000/- and the  documents were executed.   Herself stated that this fact is  known  to maternal uncle  and maternal nephew.   It is true  that before 7-8 days of the incident  her husband and  her  elder son had forcibly  taken over the possession of the field  and Ahmed Shah, Rasool Shah  had put her husband, her son  and her articles  in a tractor  and left  the same near Jalasar  Railway line.  It is also true that thereafter on the day  of Eid,  Rakhia,   her  brother  Rakhu Shah , her son Hasan Shah,  Sabbir Shah, Darey Shah, Moti Shah   and Rauram went to  take over the  possession of the field and had sit down in the  field.   It  is  also  true  that   on  the  day  of  Eid  due  to  the  apprehension  that  Ahmed  Shah  would  again  dispel   them  from the field, therefore, Sabbir Shah had bring the gun of his  brother and Rauram had bring  crackers gun….”  

Evidence of  PW-8 that accused were actually in possession of the  

field  and that  her  husband Abdul  Shah,  Sabbir  Shah and Rakhu

Page 9

9

Shah made an unsuccessful attempt to take forcible possession of  

the land few days before  the incident is amply  strengthened by  

the evidence of PW-21-the investigating officer.

13. In the cross-examination, PW-21 had clearly   admitted  

that on  the date of incident,  Ahmed Shah   and his party  were  

holding   the  possession  over  the  field   and  that  the  field  was  

cultivated by Ahmed Shah  through his  Hadi Roopa Ram  Bajigar  

and at the time of  incident Narma crop had been  raised in the field  

by Roopa Ram Bajigar on behalf of Ahmed Shah.  PW-21 had also  

admitted that during the course of investigation it emerged that on  

28.4.1996,  the  complainant  party  had  made  an  unsuccessful  

attempt to take forcible possession of the land.  PW-21 had clearly  

admitted  that  on  the  date  of  incident,  the  accused  party  were  

holding the possession of the land in dispute.

14. From the evidence of PW-21 and from Ext D.35 it is seen  

that  there  was  a  counter  case  in  F.I.R.  No.  67/1996.       The  

judgment of the said case is Ext D.35 which also indicates that the  

accused party was in possession of the land in dispute.  Ext D.8 is  

the  sale  agreement  dated  9.4.1987  executed  by  Abdul  Shah  in  

favour of Ahmed Shah also indicates possession of the land by the  

accused persons.  The accused persons seems to have produced

Page 10

10

Exts D.8, 9, 10, 28 and 35 to show that they were in possession of  

the  land  in  dispute  as  it  emerges  from  the  evidence  that  the  

possession    of  the  land  was  with  the  accused  and  that  the  

complainant party armed with gun went to the field to take forcible  

possession of the property raises serious doubts about the genesis  

of occurrence as projected by the prosecution.

15. PW-7  Hasan  Shah  has  stated  that  PW-8  Rakhia  was  

preparing the tea inside the hut and that the accused party came in  

group and that the appellants inflicted injuries to Sabbir Shah while  

he was sleeping in a cot nearby and that Subhan Shah inflicted axe  

blow on the right leg of Rakhu Shah.  PW-8 had also stated that she  

was preparing the tea inside the hut on the stove of brick and tea  

was being prepared in a topia and that after the incident the topia  

and stove were left there in the hut.  Ext P.14 is the site plan in  

which the hut and the scene of occurrence  is marked.  When PW-21  

investigating officer was confronted with the site plan     Ext P.14,  

he stated that he had not noted any stove in Ext P.14.  PW-21 had  

also stated that in the place of incident he had not seen any topia  

or utensil  for  preparing the tea.   On the other hand,  PW-21 had  

stated that a broken wooden pestle of the air gun was found lying  

inside the hut.   As stated by PWs 7 and 8, if really tea was prepared

Page 11

11

in the hut at the time of incident, in the melee,  topia,  stove and  

utensils  would have been scattered inside the hut.  The fact that  

neither stove nor utensils were found by PW-21 investigating officer  

also improbablises the case as suggested by the prosecution that  

the accused are the aggressors.

16. PWs 3, 4 and 7 have spoken about the overt act of the  

appellants  that  appellant  Gurmukh  Singh  inflicted  blows  with  

gandasi  on  the  neck  of  Sabbir  Shah  and  Ahmed  Shah  inflicted  

injuries with the spear on the scalp.  PW-8 injured witness had also  

stated  about  the  injuries  being  caused  to  Sabbir  Shah  by  the  

appellants.

17. We  are in  agreement  with the concurrent  views of the  

courts below regarding  their overt acts as the same is proved by  

the  version   of  eye  witnesses  particularly   PW-8  who  has  been  

consistent  in  her  deposition regarding the participation and fatal  

injuries  inflicted  by  the  two  appellants.   But  as  far  as  their  

conviction under Sections 302/34 IPC is concerned, in the facts and  

circumstances, we are unable to agree with the view taken by the  

High Court.

Page 12

12

18. As per Exception 4 to Section 300 IPC, culpable homicide  

is not murder if it is committed without premeditation in a sudden  

fight in the heat of passion upon a sudden quarrel and without the  

offender  having  taken  undue  advantage  or  acted  in  a  cruel  or  

unusual manner.   To invoke  Exception 4 to Section 300 IPC, four  

requisites must be satisfied namely:- (i)  it was a sudden fight; (ii)  

there was no premeditation; (iii)  the act was committed in a heat of  

passion;  and   (iv)   the  assailant   had  not  taken   any  undue  

advantage  or acted in a cruel  manner.

19. This Court in  Sridhar Bhuyan vs.  State of Orissa, (2004)  

11 SCC 395 held as under:-

“7. For bringing in operation of Exception 4 to Section 300  IPC,  it  has  to  be  established  that  the  act  was  committed  without  premeditation,  in  a  sudden  fight  in  the  heat  of  passion upon a sudden quarrel without the offender having  taken undue advantage and not having acted in a cruel or  unusual manner. 8. The fourth exception of Section 300 IPC covers acts done  in a sudden fight.  The said exception deals with a case of  prosecution not covered by the first exception, after which its  place would have been more appropriate. The exception is  founded upon the same principle, for in both there is absence  of premeditation. But, while in the case of Exception 1 there  is  total  deprivation  of  self-control,  in  case  of  Exception  4,  there is only that heat of passion which clouds men’s sober  reason  and  urges  them  to  deeds  which  they  would  not  otherwise  do.  There  is  provocation  in  Exception  4  as  in  Exception  1;  but  the  injury  done  is  not  the  direct  consequence of that provocation. In fact Exception 4 deals  with cases in which notwithstanding that a blow may have  been struck, or some provocation given in the origin of the  dispute or in whatever way the quarrel may have originated,  yet  the  subsequent  conduct  of  both  parties  puts  them in

Page 13

13

respect of guilt upon equal footing. A “sudden fight” implies  mutual  provocation and blows on each side.  The homicide  committed  is  then  clearly  not  traceable  to  unilateral  provocation,  nor  in  such  cases  could  the  whole  blame be  placed on one side.  For  if  it  were  so,  the  exception  more  appropriately applicable would be Exception 1.  There is no  previous  deliberation  or  determination  to  fight.  A  fight  suddenly takes place, for which both parties are more or less  to be blamed. It may be that one of them starts it, but if the  other had not aggravated it by his own conduct it would not  have  taken  the  serious  turn  it  did.  There  is  then  mutual  provocation and aggravation, and it is difficult to apportion  the share of blame which attaches to each fighter. The help  of Exception 4 can be invoked if death is caused: (a) without  premeditation;  (b)  in  a  sudden  fight;  (c)  without  the  offender’s having taken undue advantage or acted in a cruel  or unusual manner; and (d) the fight must have been with the  person  killed.  To  bring  a  case  within  Exception  4  all  the  ingredients mentioned in it must be found. It is to be noted  that the “fight” occurring in Exception 4 to Section 300 IPC is  not  defined  in  IPC.  It  takes  two  to  make  a  fight.  Heat  of  passion requires that there must be no time for the passions  to  cool  down  and  in  this  case,  the  parties  have  worked  themselves into a fury on account of the verbal altercation in  the beginning. A fight is  a combat between two and more  persons whether with or without weapons. It is not possible to  enunciate any general rule as to what shall be deemed to be  a  sudden  quarrel.  It  is  a  question  of  fact  and  whether  a  quarrel is sudden or not must necessarily depend upon the  proved facts of each case. For the application of Exception 4,  it is not sufficient to show that there was a sudden quarrel  and there was no premeditation.  It  must further be shown  that the offender has not taken undue advantage or acted in  a  cruel  or  unusual  manner.  The  expression  “undue  advantage”  as  used  in  the  provision  means  “unfair  advantage.”

In Satish Narayan Sawant vs. State of Goa, (2009) 17 SCC 724, the  

same principle was reiterated.

20. As noticed earlier, Abdul Shah had sold the property to  

Ahmed Shah in 1987 and that Ahmed Shah had been in possession

Page 14

14

of the land.  On behalf of Ahmed Shah, Roopa Ram Bajigar had been  

cultivating the land.  It is brought in evidence that on the date of  

the incident there was Narma crop standing in the field which was  

cultivated   by the said Roopa Ram Bajigar.    As seen from the  

evidence of PW-8 the complainant’s party namely, Rakhia, Rakhu  

Shah, Hasan Shah, Sabbir Shah, Darey Shah, Moti Shah and Rauram  

numbering seven had gone to take forcible possession.  As seen  

from Ext P.65,  accused were about seven in number viz.,  Rasool  

Shah, Ahmed Shah, Amar Shah, Zakir, Subhan, Sheru and Gurmukh  

Singh were present.   There seems to be mutual provocation and  

aggravation as the complainant party went to take possession of  

the land, there appears to be scuffle between the parties.  There  

was no previous deliberation or pre-meditation and the incident is a  

result of sudden fight.

21. As elaborated earlier, complainant party went to the field  

and Sabbir Shah was armed with gun.  In the sudden fight, there  

was a scuffle.  During the course of scuffle, the appellants inflicted  

injuries on the deceased Sabbir Shah.  The accused tried to grapple  

the gun from Sabbir Shah.  There was no premeditation and that the  

incident  was  the  result  of  sudden  fight.   In  the  scuffle,  other  

accused  inflicted  injuries  on  Rakhu  Shah  and  PW-8  Rakhia.

Page 15

15

Considering the facts and circumstances of the case, in our view,  

the present  case cannot  be said  to  be a  case punishable  under  

Section 302 IPC but a case falling under Exception 4 to Section 300  

IPC.   Since the appellants inflicted injuries on the neck and scalp of  

Sabbir Shah with the intention of causing death and the act of the  

accused-appellants is punishable under Section 304 Part I IPC.

22. Insofar as the appeal against acquittal filed by the State,  

the High Court has recorded finding that accused Subhan Shah and  

Rasool Shah caused injuries to Rakhu Shah on the left leg and left  

shoulder.   Inspite  of  treatment,  Rakhu  Shah  died  due  to  fat  

embolism due to multiple injuries and due to injuries caused to the  

bones. Upon consideration  of evidence and having regard to the  

nature of injuries and cause of death, the High Court modified the  

conviction of Subhan Shah and Rasool Shah as one under Section  

307 IPC and reduced the substantive sentence to the period already  

undergone.

23. High Court has analyzed the evidence and observed that  

the evidence is omnibus and generalized and that no specific overt  

act is attributed to the remaining accused.  As pointed out earlier,  

names of only seven persons are mentioned in the first information

Page 16

16

report. In the facts and circumstances of the case, the High Court  

cannot  be  said  to  have  misdirected  itself  in  acquitting  other  

accused.  In the facts and circumstances of the case, we do not find  

any  substantial  ground  to  interfere  with  the  order  of  acquittal  

recorded by the High Court.

24. The  conviction  of  the  appellants  Ahmed  Shah  and  

Gurmukh Singh under Sections 302/34 IPC is modified as conviction  

under Section 304 Part I IPC and the substantive sentence of life  

imprisonment  is  reduced  to  the  period  of  sentence  already  

undergone  by  them  and  the  appeal  preferred  by  the  accused-

appellants is partly allowed.   The accused be set at liberty forthwith  

if not required in any other case. The appeals preferred by the State  

are dismissed.

………………………….J. (T.S. Thakur)

………………………….J. (Adarsh Kumar Goel)

………………………….J. (R. Banumathi)

New Delhi;

Page 17

17

January 9, 2015