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Thursday, January 15, 2015

CRIMINAL APPEAL NO. 1889/2008 AHMED SHAH & ANR. .. Appellants Versus STATE OF RAJASTHAN ..Respondent

                                                                  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 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.   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.
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  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  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
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 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  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 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 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.

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 [pic]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  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  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.  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 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;
January 9, 2015

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