AHMED SHAH Vs STATE OF RAJASTHAN
Bench: T.S. THAKUR,ADARSH KUMAR GOEL,R. BANUMATHI
Case number: Crl.A. No.-001889-001889 / 2008
Diary number: 17639 / 2008
Advocates: V. J. FRANCIS Vs
MILIND KUMAR
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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;
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January 9, 2015