REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 634 OF 2012
Dr. Mohammad Khalil Chisti .... Appellant(s)
Versus
State of Rajasthan & Ors. .... Respondent(s)
2
WITH
CRIMINAL APPEAL NO. 635 OF 2012
Yasir Chisti & Anr. .... Appellant(s)
Versus
State of Rajasthan .... Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) These appeals are directed against the common judgment and order
dated 20.12.2011 passed by the High Court of Judicature for Rajasthan,
Bench at Jaipur in D.B. Criminal Appeal Nos. 189 and 188 of 2011 whereby
the Division Bench of the High Court dismissed the appeals filed by the
appellants herein and affirmed the judgment dated 31.01.2011 passed by the
Court of Additional Sessions Judge (Fast Track) No.1, Ajmer in Sessions
Case No.157 of 2001.
2) Brief facts
(a) The case relates to a fight between two groups of Khadim Mohalla,
Jhalra, Ajmer which culminated into the death of one Idris and registration
of 2 FIRs being Nos. 90 and 91 of 1992.
(b) On 14.04.1992, an altercation took place between Khalil Chisti (A-2)
and Khurshid Pahalwan – cousin of Aslam Chisti (the complainant in FIR No.
90 of 1992) during a function at the house of one Shabbir on account of old
rivalry.
On the same evening, Khurshid had called Idris-cousin brother of
Shabbir for having the matter resolved by way of a compromise between the
two parties.
In pursuance of the same, Idris, Shamim, Aslam, Mustqueem,
Asif, Sagir and Javed (relatives) proceeded towards the house of Khalil
Chisti where they found Khalil Chisti (A-2), Yasir Chisti (A-1), Akil
Chisti (A-3) and Farukh Chisti (A-4) who were already present there.
On
entering the house, they realized that Khalil (A-2) was having sword in his
hand and Farukh (A-4) was holding a gun whereas Yasir and Akil were having
revolvers and the accused party immediately closed the door from behind and
Khalil Chisti (A-2) shouted “no one should escape, kill all of them.”
On
seeing their intention, the complainant party tried to run in order to save
their lives at which time Farukh (A-4) fired a shot at Idris which resulted
into injury to his right eye. Khalil (A-2) also gave a sword blow to the
complainant-Aslam Chisti which struck on his forehead and Yasir and Akil
also opened fire. Later on, considering the injured to have been shot
dead, the accused persons fled away. Subsequently, Khurshid and Shamim had
taken Aslam Chisti and Idris to the hospital where Idris succumbed to his
injuries.
(c) On the same day, i.e., on 14.04.1992, Aslam Chisti lodged an FIR
being No. 90 of 1992 at Police Station Ganj, Ajmer against Yasir (A-1),
Khalil (A-2), Akil (A-3) and Farukh (A-4).
(d) On the same day, at about 10:30 to 11:00 p.m., another FIR being No.
91 of 1992 was registered at P.S. Ganj, Ajmer on the statement made by Akil
Chisti, while under treatment, wherein he stated that at about 5:00 to 5:30
p.m., when he along with other persons were sitting in his house, he
suddenly noticed pelting of stones on the grills of the house. When all of
them went on the roof top to understand the matter, they found Idris,
Shamim, Aslam, Mustqueem, Asif, Sagir and Javed standing there duly armed
with weapons.
On enquiring about the same, Idris stabbed Farukh (A-4) with
a knife and Shamim opened fire on Akil (A-3) which missed the target. In
the meantime, Akil (A-3) brought a rifle of his father but Sagir, Asif and
Javed snatched the same from him and Aslam stabbed him into his waist from
behind leading to his collapse. Asif also opened fire on to him which hit
Idris. A number of persons had gathered in the neighbourhood on hearing
the hue and cry.
(e) After investigation, chargesheets were filed against 4 persons,
namely, Yasir, Khalil, Akil and Farukh in FIR No. 90 of 1992 and against 6
persons, namely, Shamim, Aslam, Mustqueem, Asif, Sagir and Javed in Cross
FIR No. 91 of 1992 and both the cases were committed to the Court of
Additional Sessions Judge (Fast Track) No.1, Ajmer and were registered as
Sessions Case No. 157/2001 (FIR No.90/1992) and Sessions Case No. 178/2001
(FIR No.91/1992).
(f) The trial Court, by judgment dated 31.01.2011 in Sessions Case No.
157 of 2001, convicted Farukh Chisti (A-4), Yasir Chisti (A-1) and Akil
Chisti (A-3) under Sections 302 and 324 read with Section 34 of the Indian
Penal Code, 1860 (in short ‘the IPC’) whereas Khalil Chisti (A-2) was
convicted under Sections 302 and 324 of the IPC. A-1, A-2, A-3 and A-4
were sentenced to undergo RI for life along with a fine of Rs. 20,000/-, in
default, to further undergo RI for a period of 6 months for the offence
punishable under Section 302 of IPC. They all were further sentenced to
undergo simple imprisonment for 2 years along with a fine of Rs. 2,000/-,
in default, to further undergo simple imprisonment for 1 month for the
offence punishable under Section 324 read with Section 34 of IPC.
(g) On the same day, the trial Court convicted the accused persons in
Session Case No. 178 of 2001 and sentenced all of them to suffer RI for 10
years alongwith a fine of Rs.10,000/-, in default, to further undergo RI
for 6 months for the offence punishable under Section 307 read with Section
149 of IPC. They were further sentenced to RI for 2 years under Section
148 of IPC, RI for 3 years with a fine of Rs.1,000/-, in default, to
undergo RI for one month under Section 452 and RI for 2 years under Section
324 read with Section 149 of IPC. Challenging the said judgment, all the
accused persons named in FIR 91 of 1992 filed Criminal Appeal No. 131 of
2011 before the High Court which is still pending.
(h) Challenging the judgment in Session Case No. 157/2001, Yasir Chisti
and Akil Chisti filed D.B. Criminal Appeal No. 188/2011, Dr. Mohammad
Khalil Chisti filed D.B. Criminal Appeal No. 189 of 2011 and Farukh Chisti
filed D.B. Criminal Appeal No. 423 of 2011 before the High Court. By a
common judgment dated 20.12.2011, the High Court dismissed all the appeals
and affirmed the judgment passed by the trial Court.
(i) Aggrieved by the said judgment, Dr. Mohammad Khalil Chisti preferred
Criminal Appeal No. 634 of 2012 and Yasir Chisti and Akil Chisti preferred
Criminal Appeal No. 635 of 2012 before this Court.
3) Heard Mr. Uday U. Lalit, learned senior counsel for Dr. Mohammed
Khalil Chisti –appellant in Criminal Appeal No. 634 of 2012, Mr. K.T.S.
Tulsi, learned senior counsel for Yasir Chisti and Akil Chisti, appellants
in Criminal Appeal No. 635 of 2012, Mr. Rahul Verma, learned counsel and
Jasbir Singh Malik, learned Additional Advocate General for the State in
both the appeals and Mr. Mukul Gupta, learned senior counsel for the Union
of India in Criminal Appeal No. 634 of 2012.
Contentions:
4) After taking us through FIR No. 90 of 1992 and Cross FIR No. 91 of
1992 dated 14.04.1992, the entire material relied on by the prosecution and
defence, the decision of the trial Court in Session Case No. 157 of 2001
and Session Case No. 178 of 2001 and the reasoning of the impugned decision
of the High Court, Mr. Lalit as well as Mr. K.T.S. Tulsi, learned senior
counsel contended that the members of the complainants’ party were
aggressors, they formed an unlawful assembly armed with various weapons and
had climbed upon the roof of their premises in order to beat the accused
persons in furtherance of their common object. It is further submitted
that the appellants/accused persons had not committed any offence and
whatever they did was in exercise of their right of private defence. There
is no evidence on record to show that the accused persons were having any
common object to commit murder of the deceased-Idris. They further
submitted that the trial Court as well as the High Court failed to take
into consideration the fact that the complainant party including Idris,
Aslam, Asif, Shamim, Mustqueem, Sagir and Javed were duly armed and had
come to the place of the accused persons. In such circumstances, the
accused appellants deserve to get the benefit of right of private defence
on their person. They also submitted that there is no explanation by the
prosecution as to how Farukh (A-4) and Akil (A-3) sustained injuries. They
also contended that the prosecution suppressed the true genesis of the
incident.
5) On the other hand, learned counsel for the State submitted that the
judgment of the trial Court as well as the High Court is based on evidence
and in the light of the settled principles of law. It is pointed out that
the accused appellants, after full preparation, sent a message to Khurshid,
Shamim, Idris and other members of the complainant party to meet at their
house. It is pointed out that as soon as the members of the complainant
party started climbing the stairs of their house and moved towards the roof
top, the accused appellants followed them and inflicted injuries by use of
various weapons, consequently, Idris and Aslam were seriously injured and
later on Idris succumbed to his injuries. Finally, they submitted that the
prosecution has proved its case beyond reasonable doubt and the impugned
judgment does not suffer from any infirmity or illegality.
6) We have carefully considered the rival submissions and perused all
the relevant materials.
Discussion:
7) It is not in dispute that in respect of the same incident that took
place on 14.04.1992, there had been two FIRs, namely, FIR No. 90 of 1992
and Cross FIR No. 91 of 1992. In these appeals, we are concerned about FIR
No. 90 of 1992 in which the present appellants and one Farukh were
implicated as accused. The said FIR was registered on the basis of a
complaint made by one Syed Md. Aslam who was examined as PW-3. He is a
resident of Mian House, Khadim Mohalla, Ajmer. In the complaint, it has
been stated that on 14.04.1992, on the occasion of “Peela Ki Rasm” at the
place of Shabbir, an altercation took place between Khalil Chisti (A-2) and
Khurshid Pahalwan on account of old rivalry following which Khurshid had
called his brother Idris in the evening in order to finally sort out the
matter by way of a compromise. When Idris, Shamim-his relative and Md.
Aslam Chisti-the complainant went to the house of Khurshid at that time,
one Tariq Mohammed informed them that Khalil Chisti is calling them for a
compromise following which, all of them, namely, Idris, Shamim, Md. Aslam,
Khurshid, his brother Sagir went to the house of Khalil. On reaching
there, they found that Khalil, Farukh, Yasir and Akil were present there at
home. It has been further stated that having entered into the house, the
accused party closed the door from behind and Khalil shouted that “they
should not escape, kill all of them”. It has been further stated that
Khalil was armed with a sword and Farukh was carrying a rifle. When they
tried to escape, at that time, Farukh (A-4) opened fire on Idris (deceased)
which hit at his right eye and he fell down. Khalil (A-2) gave a blow with
the sword to the head of Md. Aslam Chisti-the complainant which struck on
his forehead and hit his temple and eye. Akil (A-3) and Yasir (A-1), who
were armed with revolvers also opened fire. All the accused persons ran
away and Khurshid and Shamim had taken Idris to the hospital where he
succumbed to his injuries. The above statement was recorded at 5.45 p.m.
on 14.04.1992.
8) Though we are not directly concerned about the cross FIR No. 91 of
1992 dated 14.04.1992, in view of the plea and the defence of the present
appellants, it is desirable to note down the contents of the same. The
complainant in this cross FIR is Akil Chisti (A-3), the appellant in the
present appeal. The following persons were shown as accused, namely,
Idris, Shamim, Aslam, Mustqueem, Asif, Sagir and Javed. According to the
complainant, Akil Chisti, who is a resident of Baitool, Jhalra, Dargah
Sharief, Ajmer that on 14.04.1992 at 5 to 5.30 p.m., when he was in the
room of Farukh Chisti, they suddenly noticed pelting of stones on the
grills of their house. When they went on the roof top, they found that
Idris, his brother Shamim, Aslam, Mustqueem, Asif, Sagir and Javed were
standing there, armed with weapons and Shamim was armed with a country-made
pistol. When Farooq questioned about pelting of stones, Idris stabbed him
with a knife. Shamim opened fire on him which missed him. It has been
further stated that Akil-the complainant brought a 12-bore licensed rifle
of his father but Sagir, Asif and Javed snatched it from him and Aslam
inflicted stab wounds in his waist from behind and he fell down. Asif
opened fire from his rifle which missed him and hit Md. Idris. A number of
persons had gathered in the neighbourhood who raised a clamour “maar diya -
maar diya”. These people assaulted them by entering inside their house.
The above statement was recorded at 10.30 p.m. by SHO Police Station,
Ajmer.
9) It is relevant to note that in respect of FIR No. 90 of 1992, the
present appellants and one Farukh were convicted and sentenced to life
imprisonment by the trial Court as affirmed by the High Court. It is
brought to our notice that in respect of cross FIR No. 91 of 1992, the same
trial Judge on the same day i.e. 31.01.2011 convicted and sentenced all of
them for various offences and the appeals filed against those convictions
is still pending in the High Court.
10) Now, let us consider the witnesses and materials relied on by the
prosecution and the defence.
Aslam Chisti (PW-3):
11) In his evidence, he deposed that deceased Idris was his cousin and
Khurshid and Sahir were also his cousins. Shamim is his real younger
brother. He identified Khalil Chisti (A-2), a Pakistani citizen in the
Court. He was familiar with accused Farukh, Yasir and Akil. He narrated
that he came to know from his father that some altercation took place
between Khalil Chisti (A-2) and Khurshid Pahalwan on account of old rivalry
on the occasion of “Peela ki Rasm” at the place of Shabbir. He further
narrated that in the evening of 14.04.1992, when he was at his home with
his brothers Shamim and Idris, the son of Khurshid came to their residence
and informed that his father was calling all of them. After reaching
there, Khurshid asked them to sort out the matter. In the meantime, one
Tariq Mohammad informed them that Khalil Chisti (A-2) has called them for a
meeting. He along with others went to the residence of Khurshid. From
there, he, along with the deceased-Idris, Shamim, Khurshid, Sagir, Javed,
Mustqueem and Asif proceeded towards the house of Khalil and on reaching
there they noticed that Khalil was standing at the entrance. On their
entering into the house of Khalil, the other persons present there closed
the door from behind and Khalil shouted to kill all of them. In order to
save their lives, he along with Idris, Shamim, Asif and others climbed over
the Baitool Manzil and reached the roof top of Kaptan house. At that time,
accused Khalil, Farukh, Yasir and Akil came to that place and Khalil was
carrying a bare sword and Farukh was armed with a rifle, Yasir and Akil
were holding rifles. Farukh fixed the target and shot fired his brother
Idris. The bullet had hit on the right eye of Idris leading to his
collapse there itself. Khalil hit two injuries of sword in his skull and
forehead. Akil and Yasir had also opened fires from their respective
revolvers but they managed to escape. He admitted that the fire triggered
from the revolver of Akil and Yasir had hit none. In the course of the
above narration, PW-3 admitted that two police personnel had arrived on the
roof top, particularly, when Akil and Yasir were firing. From the evidence
of PW-3, it is clear that though he narrated the prosecution case about the
involvement of the present appellants as well as the role of Farukh, he
admitted the arrival of two police personnel, viz., Bhanwar Singh (PW-4)
and Bhanwarlal Sharma (PW-5) on the roof top when Akil and Yasir were
firing.
Bhanwar Singh (PW-4):
12) At the relevant time, PW-4 was posted as LHC at Police Post Tripolia
Gate, Police Station Ganj, Ajmer. In his evidence, he has stated that on
14.04.1992, at about 4.30 p.m., he received information from wireless
control room that a quarrel has broken out at Jhalra. On receiving the
said information, PW-4 and Bhanwar Lal Sharma (PW-5), reached the spot and
went to the house of Ahmed Chisti. On enquiry, they came to know that some
altercation took place on the issue of children in the morning. In order
to make a call to the Control Room, both of them went to the room situated
at the first floor of house of one Ahmed Chisti and while they were
returning, they found 5-6 persons duly armed with sword and hockey sticks
climbed upstairs from the ground. They tried to prevent them but they
didn’t stop. Out of them, he knew Shamim, Aslam and Idris. He further
deposed that they were shouting “bring out Farukh”, “bring out Pakistani (A-
2) and where he is, we will kill him”. He also stated that in spite of
their intervention, the assailants reached at the roof top of the second
floor of that house. Both PWs 4 and 5 followed them. He also stated that
he had seen Farukh Chisti (A-4) with a 12 bore gun with him. Khalil (A-2),
Yasir and Akil were having swords with them. Farukh went to the roof and
fired from his gun and the shot hit the right eye of Idris, because of
which, he died on the spot. When PW-5 came in between, he also sustained
injuries. He was there at the same place till 11.30 p.m. and after 11.30
p.m. he went to Tripolia Gate, P.S. made necessary entries in the daily
diary in his own handwriting which is Exh. P-3. He left constable Bhanwar
Lal Sharma (PW-5) at the place of incident.
13) Since PW-4 contradicted his statement made under Section 161 of the
Code of Criminal Procedure, 1973 (in short ‘the Code’), the Public
Prosecutor sought for permission to cross examine him. Even in the cross-
examination, he admitted that he made a statement to police and at the time
of incident, deceased-Idris and others were armed with swords and hockey
sticks and they were going upstairs which is Exh. P-4. Though PW-4 turned
hostile, to some extent, he being a police constable, on receipt of
information and after recording the same in the diary he left the police
station along with Bhanwar Lal Sharma (PW-5) another police constable to
the spot and noticed that the complainant parties rushed towards the roof
top with sword and hockey sticks. It is also clear that the present
accused appellants were inside the house of Khalil Chisti and the
complainant’s group reached there with arms. It has been also made clear
that he was accompanied by another constable PW-5 and after noticing the
incident, he rushed to P.S. Tripoli and made necessary entries leaving PW-5
at the spot. As rightly pointed out by learned senior counsel for the
appellants, the presence of PWs 4 and 5 at the relevant spot and time
cannot be disputed. It is also clear from the evidence of PW-4 that the
complainant parties reached the spot armed with sword and hockey sticks.
The presence of the complainants with arms is the subject matter of Cross
FIR No. 91 of 1992.
Bhanwar Lal Sharma (PW-5):
14) At the relevant time, he was posted as a police constable with the
police station of Tripolia Gate and was on duty on 14.04.1992. According
to him, on that day, around 4.30 p.m., he and another constable PW-4
received an information on wireless from the Police Control Room in
Tripolia P.S. that some fight is going on at Jhalra. On hearing such
information, both of them went to Jhalra and noticed that there was no such
brawl. In order to inform the same to the Control Room, they went to the
house of one Ahmed Chisti by using the stairs. At the same time, he
noticed Shamim (A-6 in Cross FIR) running upstairs with hockey stick in his
hand, Aslam (A-1 in Cross FIR) armed with sword and two more people who
were armed with weapons were going upstairs. Both of them (PW-4 and (PW-5)
tried to stop them but they did not stop. Both of them went to the Chisti
Manzil’s room and on the roof, they noticed Shamim Chisti and others were
abusing Farukh and others and then they went to Jamil Chisti’s room and
started pelting stones. After seeing the seriousness of the situation and
to avoid untoward incident, PW-5 went downstairs to call other police staff
while PW-4 remained on the roof. He also heard the sound of a shot being
fired. When he came back after making a call, he saw Idris was lying on
the Kaptan’s room and was bodily injured. At the place of incident where
Idris was lying, a 12-bore gun was also found 10-15 ft. away from the spot.
He also explained that based on his message, other police men came to the
spot. He also mentioned the injuries sustained by him when they were
trying to stop Shamim and others on the stairs. He further narrated that
in the midnight, around 12.50 a.m., they came to Tripolia Gate P.S. and
made necessary entries of their arrival time which is Exh. P-3. Since he
contradicted his statement under Section 161 of the Code, the Public
Prosecutor sought permission of the court in order to cross-examine him.
Even in the cross-examination, he asserted that at the time of the incident
only Shamim (A-6 in Cross FIR) was throwing stones downstairs with full
force in Jamil Chisti’s house. He also mentioned about the fights and FIRs
were registered against Aslam and Shamim.
15) Like PW-4, PW-5 narrated the incident starting from the receipt of
wireless message till the clash at Jamil Chisti’s house. It is relevant to
point out that PWs 4 and 5 were not associated with any group, on the other
hand, they were policemen of the Tripoli P.S. having jurisdiction over the
area. The entries in the concerned registers of their departure and
arrival to the police station also prove their statement. In the light of
their statement, we have carefully analyzed their evidence and it is clear
that the complainant’s party came to the spot with weapons like sword,
hockey sticks and few from that group also pelted stones. These aspects,
though the trial Court and the High Court failed to give credence, the
appellants are justified in claiming that the complainants group was
responsible for the incident and the injuries caused to them.
Evidence of PWs 6, 13 and 18:
16) At the instance of the counsel for the State, we were taken through
the evidence of PWs 6, 13 and 18. No doubt, they supported the prosecution
stand and claim that it was the appellants who caused the injuries and,
particularly, Idris died due to the shot fired by Farukh using his
revolver. They also stated that they sustained injuries due to the sword
used by Khalil Chisti (A-2). It is also their claim that the other two
accused Yasir Chisti and Akil Chisti, A-1 and A-3 respectively used
revolver but their shots had hit none. Like PWs 6, 13 and 18, PW-3 who
sustained sword injury at the instance of A-2 also explained about the
prosecution case. It is also seen from the evidence of PW-3 that Farukh (A-
4) also sustained injuries for which there is no explanation by the
prosecution. Relying on the evidence of PWs 3, 6 13 and 18 even if we
accept the case of the prosecution, the statement of official witnesses
examined on the side of the prosecution, namely, PWs 4 and 5 clearly show
that the complainants were rushing towards the house of Chisti with sword
and hockey sticks and also pelted stones. In these circumstances, as
rightly pointed out by the counsel for the appellants, the complainants who
were accused in the cross case were also responsible for their individual
act.
Occurrence at the residence of A2:
17) All the prosecution witnesses, namely, PWs 3, 4, 5, 6 13 and 18
deposed that the incident occurred at the residence of A-2, namely, Chisti
Manzil. It is also clear from the categorical statement of two police
constables, viz., PWs 4 and 5 that on receipt of a phone call, they left
Tripoli PS and reached the house of Kaptan which is adjacent to Chisti
Manzil. It is clear that it was not the appellants/accused who went out of
their house with arms, but even according to the prosecution witnesses, the
incident took place at the residence of A-2. It is also clear that all of
them entered the said house with weapons like sword and hockey sticks which
we have already noted from the evidence relied on by the prosecution.
No explanation as to how Farukh (A-4) and Akil (A-3) sustained injuries:
18) The prosecution document, viz., injury report of Farukh dated
14.04.1992 and injury report of Akil dated 14.04.1992 have been placed as
Annexure P-5 (Colly). The injury report relating to Farukh Chisti (A-4)
issued by the Department of Medical Jurist, J.L.N. Medical College and
Hospital, Ajmer reads as under:-
“Admitted in MSW II, Time-5.45 p.m. date – 14.4.1992, 839/92
Department of Medical and Health, Rajasthan, Jaipur
Injury Report Form
Accompanied by Police
Injury Report of Shri Farukh Chisti s/o Shri Sadiq Chisti, age 26 years,
Caste-Muslim, Resident of Khadim Mohalla, Ajmer, Police Report
No…………..dated……….enclosed.
|Nature |Size of|Hurt |Normal |Which |Identificat|X-Ray |Special |
|of |each |on |or |type of|ion mark of|Tajbeez|descripti|
|injury |injury |which|grievou|weapon |the injured| |on |
|of |in |part |s |caused | | | |
|slash, |inches,|of | |hurt | | | |
|wound, |length,|the | | | | | |
|crushing|width |body | | | | | |
|etc. |and | | | | | | |
| |depth | | | | | | |
|1 |2 |3 |4 | 5 | 6 | 7 | 8 |
|Stab wound 4x0.5 cm x depth in| Sharp |M.F.1 ½ x | |Fresh |
|on umbilical region, right | |½ cm old | | |
|lateral to umbilical obliquely| |scar on | | |
|placed | |left side | | |
|Stab 4x3/4 cm x on left | |of right | | |
|lateral side of chest wall 6 | |leg upper | | |
|cm below axilla in mid axillur| |third | | |
|line. | | | | |
|Stab wound 3x1x? on left | | | | |
|scapular region | | | | |
|Injured in the state of shock | | | | |
| | | | | |Opinion | | |
| | | | | |after | | |
| | | | | |surgical | | |
| | | | | |note | | |
Sd/-
Dr. V.D. Kavia, MD
Reader, Head of Department
Department of Medical Jurist
J.L.N. Medical College and Hospital,
Ajmer”
Operative notes of Farukh Chisti reads as follows:
Operative notes
Patient Name : Farukh Chishti
No. 9741
Date : 14/4/92
Surgical Pathology – Stab wound
1. Abdomen
2. Lt. Chest
3. Back
Anaesthesia – G.A.
Operation – Explanatory haprotomy and repair of the tear in stomach.
Incision – Continuation of the stab wound (Rt. Paramedian) – On exploration
it was found that there was a tear in the anterior stomach wall up to the
serosa. The vessel was bleeding which was ligated and tear sutured and
closed in layers.
The wounds on the chest (Lt. side and back were muscle deep and sutured in
single layer.
Dr. Neera Jain Surgeons
Dr. Sanjay Kolani Dr. B.L. Laddha
Dr. K.K. Dangayeh
Dr. Paramjeet Singh
Dr. Ashok Naraina
Forwarded in original to SHO, PS Ganj in continuation to IR No. 839/92
Injury Nos. 2 & 3 are simple and Injury No. 1 is grievous (dangerous) in
nature.”
The injury report of Akil Chisti (A-3) reads as under:
“Admitted in MSW II, Time-5.45 p.m. date – 14.4.1992, 839/92
Department of Medical and Health, Rajasthan, Jaipur
Injury Report Form
Injury Report of Shri Akil Chisti s/o Shri Jamil Chisti, age 24 years,
Caste-Muslim, Resident of Police Report No…………..dated……….
enclosed.
|Nature |Size of|Hurt |Normal |Which |Identificat|X-Ray |Special |
|of |each |on |or |type of|ion mark of|Tajbeez|descripti|
|injury |injury |which|grievou|weapon |the injured| |on |
|or |in |part |s |caused | | | |
|slash, |inches,|of | |hurt | | | |
|wound, |length,|the | | | | | |
|crushing|width |body | | | | | |
|etc. |and | | | | | | |
| |depth | | | | | | |
|1 |2 |3 |4 | 5 | 6 | 7 | 8 |
|Stab wound 4x1 cm x ….. | Sharp |M. |3x1 cm |Fresh |
|Back of left region | | | | |
|Obliquely placed | | | | |
| | | | | |Opinion |Old scar| |
| | | | | |after |on outer| |
| | | | | |surgical |side of | |
| | | | | |note |back and| |
| | | | | | |right | |
| | | | | | |heal | |
Sd/-
Dr. V.D. Kavia, MD
Reader, Head of Department
Department of Medical Jurist
J.L.N. Medical College and Hospital,
Ajmer”
Operative notes of Akil Chisti reads thus:
“Operative notes
Patient Name : Akil Chisti
R.No. 9740
Date : 14/4/92
Surgical Pathology –Cut wound back
Anaesthesia – L.A.
Operation – Repair of the wound.
Notes : There was a wound on the back side near midline in lumber region
which was muscle deep and sutured in layers.
Dr. Neera Jain Surgeons
Dr. Sanjay Kolani Dr. B.L. Laddha
Dr. K.K. Dangayeh
Dr. Paramjeet Singh
Dr. Ashok Naraina
Sd/-
(Dr. K.K. Dangayeh)
Forwarded in original to SHO, PS Ganj in continuation to IR No. 840/92
Injury No. 1 is simple in nature.”
19) The above ‘injury reports’ of Farukh Chisti and Akil Chisti as well
as their respective ‘operative notes’ clearly show that both of them
sustained injuries on 14.04.1992 in the same incident. The report relating
to Farukh shows that he sustained stab wound injuries due to the use of
sharp edged weapons. Operative notes relating to him also show that injury
Nos. 2 and 3 are simple and injury no. 1 is grievous (dangerous) in nature.
Injury report relating to Akil Chisti also shows that he sustained stab
wound injuries by use of sharp edged weapon. Though all the relevant
aspects, namely, the injuries sustained by two accused appellants are
available in the materials placed by the prosecution, there is no
explanation at all as to how they sustained those injuries. In other
words, the prosecution failed to prove the genesis of the incident and in
fact they suppressed the same.
20) In Lakshmi Singh and Others vs. State of Bihar, (1976) 4 SCC 394,
this Court held that:
“… … It is well settled that fouler the crime, higher the proof, and
hence in a murder case where one of the accused is proved to have
sustained injuries in the course of the same occurrence, the non-
explanation of such injuries by the prosecution is a manifest defect
in the prosecution case and shows that the origin and genesis of the
occurrence had been deliberately suppressed which leads to the
irresistible conclusion that the prosecution has not come out with a
true version of the occurrence. … …”
It is clear that where the prosecution fails to explain the injuries on the
accused, two results follow: (1) that the evidence of the prosecution
witness is untrue and (2) that the injuries probabilize the plea taken by
the appellants. In a murder case, non-explanation of the injuries
sustained by the accused at about the time of the occurrence or in the
course of altercation is a very important circumstance from which the court
can draw the following inferences:
“(1) that the prosecution has suppressed the genesis and the origin
of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on
the person of the accused are lying on a most material point and
therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the
injuries on the person of the accused it is rendered probable so as to
throw doubt on the prosecution case.”
21) It is further clear that the omission on the part of the prosecution
to explain the injuries on the person of the accused assumes much greater
importance where the evidence consists of interested or inimical witnesses
or where the defence gives a version which competes in probability with
that of the prosecution one. However, there may be cases where the non-
explanation of the injuries by the prosecution may not affect the
prosecution case. This principle would apply to cases where the injuries
sustained by the accused are minor and superficial or where the evidence is
so clear and cogent, that it outweighs the effect of the omission on the
part of the prosecution to explain the injuries.
22) In Waman and Others vs. State of Maharashtra, (2011) 7 SCC 295
wherein one of us (P. Sathasivam, J.) reiterated the very same principles
and held that:
“36. Ordinarily, the prosecution is not obliged to explain each injury
on an accused even though the injuries might have been caused in the
course of occurrence, if the injuries are minor in nature, however, if
the prosecution fails to explain a grievous injury on one of the
accused persons which is established to have been caused in the course
of the same occurrence then certainly the court looks at the
prosecution case with a little suspicion on the ground that the
prosecution has suppressed the true version of the incident. However,
if the evidence is clear, cogent and creditworthy then non-explanation
of certain injuries sustained by the deceased or injury on the accused
ipso facto cannot be the basis to discard the entire prosecution
case.”
23) Mr. Tulsi, learned senior counsel for the appellants in Criminal
Appeal No. 635 of 2012 contended by pointing out that since the
complainant’s were the aggressors, armed with sword, hockey sticks and
pelted stones, the appellants/accused are entitled to avail the right of
private defence for which he relied on various principles enunciated by
this Court.
24) In Raghubir Singh vs. State of Rajasthan and Ors. (2011) 12 SCC 235,
the following conclusion in para 16 has been pressed into service:
“16. In the light of the facts that have been enumerated above, it
would be seen that the observations of the High Court that both sides
had come to do battle appears to be justified as this is an assessment
on an appreciation of the evidence which cannot be said to be palpably
wrong so as to invite the intervention of this Court. The observation
in Gajanand case that in order to bring the matter within a free fight
both sides have to come armed and prepared to do battle must be
applied in the present case with the result that each accused would be
liable for his individual act.”
25) In Krishnan vs. State of Tamil Nadu, (2006) 11 SCC 304, the following
principles have been relied on:
“15. It is now well settled that the onus is on the accused to
establish that his action was in exercise of the right of private
defence. The plea can be established either by letting in defence
evidence or from the prosecution evidence itself, but cannot be based
on speculation or mere surmises. The accused need not take the plea
explicitly. He can succeed in his plea if he is able to bring out from
the evidence of the prosecution witnesses or other evidence that the
apparent criminal act was committed by him in exercise of his right of
private defence. He should make out circumstances that would have
reasonably caused an apprehension in his mind that he would suffer
death or grievous hurt if he does not exercise his right of private
defence. There is a clear distinction between the nature of burden
that is cast on an accused under Section 105 of the Evidence Act (read
with Sections 96 to 106 of the Penal Code) to establish a plea of
private defence and the burden that is cast on the prosecution under
Section 101 of the Evidence Act to prove its case. The burden on the
accused is not as onerous as that which lies on the prosecution. While
the prosecution is required to prove its case beyond a reasonable
doubt, the accused can discharge his onus by establishing a
preponderance of probability (vide Partap v. State of U.P, Salim Zia
v. State of U.P. and Mohinder Pal Jolly v. State of Punjab.
16. In Sekar v. State this Court observed: (SCC p. 355)
“A plea of right of private defence cannot be based on surmises and
speculation. While considering whether the right of private defence is
available to an accused, it is not relevant whether he may have a
chance to inflict severe and mortal injury on the aggressor. In order
to find whether right of private defence is available or not, the
injuries received by the accused, the imminence of threat to his
safety, the injuries caused by the accused and the circumstances
whether the accused had time to have recourse to public authorities
are all relevant factors to be considered. Whether in a particular set
of circumstances, a person acted in the exercise of the right of
private defence, is a question of fact to be determined on the facts
and circumstances of each case. No test in the abstract for
determining such a question can be laid down. In determining this
question of fact, the court must consider all the surrounding
circumstances. It is not necessary for the accused to plead in so many
words that he acted in self-defence. If the circumstances show that
the right of private defence was legitimately exercised, it is open to
the court to consider such a plea. In a given case, the court can
consider it even if the accused has not taken it, if the same is
available to be considered from the material on record.”
(emphasis supplied)
17. The above legal position was reiterated in Rizan v. State of
Chhattisgarh. After an exhaustive reference to several decisions of
this Court, this Court summarised the nature of plea of private
defence required to be put forth and the degree of proof in support of
it, thus: (SCC pp. 670-71, para 13)
“Under Section 105 of the Evidence Act, 1872, the burden of proof is
on the accused, who sets up the plea of self-defence, and, in the
absence of proof, it is not possible for the court to presume the
truth of the plea of self-defence. The court shall presume the absence
of such circumstances. It is for the accused to place necessary
material on record either by himself adducing positive evidence or by
eliciting necessary facts from the witnesses examined for the
prosecution. An accused taking the plea of the right of private
defence is not required to call evidence; he can establish his plea by
reference to circumstances transpiring from the prosecution evidence
itself. The question in such a case would be a question of assessing
the true effect of the prosecution evidence, and not a question of the
accused discharging any burden. When the right of private defence is
pleaded, the defence must be a reasonable and probable version
satisfying the court that the harm caused by the accused was necessary
for either warding off the attack or for forestalling the further
reasonable apprehension from the side of the accused. The burden of
establishing the plea of self-defence is on the accused and the burden
stands discharged by showing preponderance of probabilities in favour
of that plea on the basis of the material on record. …
The accused need not prove the existence of the right of private
defence beyond reasonable doubt. It is enough for him to show as in a
civil case that the preponderance of probabilities is in favour of his
plea.”
(emphasis supplied)”
26) In Babulal Bhagwan Khandare and Another vs. State of Maharashtra,
(2005) 10 SCC 404, this Court held that non-explanation of the injuries
sustained by the accused at about the time of occurrence or in the course
of altercation is a very important circumstance. It was further held that
the right of self defence is a very valuable right, serving a social
purpose and should not be construed narrowly.
27) It is clear that it is the duty of the prosecution to explain the
injuries sustained by the accused and establish the genesis of the incident
by placing acceptable materials. In the case on hand, we have already
pointed out there is enough material to show that in the course of the very
same incident Farukh (A-4) and Akil (A-3) also sustained injuries. In
fact, Farukh sustained grievous injury by use of sharp edged weapon.
However, these injuries were not explained at all by the prosecution.
28) Mr. Jasbir Singh Malik, learned counsel for the State by relying on a
decision of this Court reported in Mitthulal and Another vs. The State of
Madhya Pradesh, (1975) 3 SCC 529 submitted that evidence in cross case
cannot be relied upon. It is true that in the said decision, this Court
held that it has not accepted the procedure followed by the High Court
which has based its conclusion not only on the finding recorded in the case
against the appellants therein and the four other accused but also taken
into account the evidence recorded in the cross case against Ganpat,
Rajdhar and others. This Court held that the course adopted by the High
Court was clearly impermissible. There is no dispute about the said
proposition and in fact in the case on hand, neither the trial court nor
the High Court relied on the evidence led in the cross case but the same
were tried separately and in fact appeals are still pending before the High
Court against the conviction in the cross case.
29) The other decision relied on by the State counsel is reported in
Sambhu Das alias Bijoy Das and Another vs. State of Assam, (2010) 10 SCC
374 which shows that this Court in exercise of its powers under Article 136
of the Constitution will not reopen the findings of the High Court when
there are concurrent findings of facts and there is no question of law
involved and the conclusion is not perverse. The above proposition holds
good. We also reiterate that Article 136 of the Constitution does not
confer a right of appeal on a party. It only confers discretionary power
on this Court to be exercised sparingly to interfere in suitable cases
where grave mis-carriage of justice has resulted from illegality or
misapprehension or mistake in reading evidence or from ignoring, excluding
or illegally admitting material evidence.
Summary:
30) The analysis of the prosecution case, undoubtedly, has led two sets
of evidence. The evidence adduced suggest that the accused in the present
appeals are to some extent victims of armed aggression at the hands of the
deceased and his companions. We have pointed out that Tariq Mohammad (PW-
1) deposed that he saw Idris (deceased) with a knife in his hand, Mohd.
Aslam (PW-3), Sagir (PW-6), Shamim (PW-18) and others armed with sticks
left for the house of the Farukh (A-4). It was also deposed by him that he
tried to stop Idris and others but in vain. Bhanwar Singh (PW-4) and
Bhanwar Lal Sharma (PW-5) –the police constables, examined on the side of
the prosecution, were present at the scene of offence. We have already
dealt with the evidence of these two witnesses which clearly show that the
complainant’s party, i.e., accused in FIR No. 91 of 1992 were armed with
sword, hockey sticks etc. and entered into Chisti Manzil, hurled abuses,
threw stones on the inmates and exhorted to kill Khalil Chisti (A-2) and
Farukh (A-4). These persons also deposed that Idris (deceased) and the
accused in FIR No. 91 of 1992 were the aggressors in the incident. PWs 4 &
5 were categorized as independent witnesses by the trial Court. Even in
their evidence, they did not attribute any specific overt act to Khalil (A-
2). M.A. Tariq I.O. (PW-25) also deposed that the complainant’s party
forcibly entered the house of the appellants herein with the intent to
attack them.
31) Mohd. Aslam (PW-3), Sagir Ahmed (PW-6), Sayeed Javed (PW-13) and
Shamim (PW-18) were examined as eye witnesses to the occurrence.
Admittedly, none of them offered any explanation to the admitted injuries
received by Farukh (A-4) and Akil (A-3). We have already adverted to the
details as to the injury report relating to these persons. In the absence
of any explanation by the prosecution, we are of the view that they are
guilty of suppressing the real genesis of the occurrence. The trial Court
had also condemned the evidence of PW-18 for narrating a parrot like
version and also pointed out numerous improvements made.
32) The analysis of the materials clearly show that two versions of the
incident adduced by the prosecution are discrepant with each other.
In
such a situation where the prosecution leads two sets of evidence each one
which contradicts and strikes at the other and shows it to be unreliable,
the result would necessarily be that the Court would be left with no
reliable and trustworthy evidence upon which the conviction of the accused
might be based.
Though the accused would have the benefit of such
situation and the counsel appearing for the appellants prayed for acquittal
of the appellants of all the charges, in view of the principles which we
have already discussed, we are of the view that each accused can be
fastened with individual liability taking into consideration the specific
role or part attributed to each of the accused. In other words, both sides
can be convicted for their individual acts and normally no right of private
defence is available to either party and they will be guilty of their
respective acts.
33) Having regard to the facts and circumstances of the role attributed
to Khalil (A-2), we are of the view that there is no scope for invoking the
applicability of Section 34 IPC against him. Even independent witnesses,
viz., PWs 4 and 5 do not attribute any overt act to him.
34) As rightly pointed out by the learned counsel for the appellants, in
the light of the case and cross-case, it would be in the fitness of things
that the respective appeals preferred by the appellants against Session
Case No. 157 of 2011 and the one preferred by the convicts in Sessions Case
No. 178 of 2011 ought to have been heard and disposed of simultaneously by
the High Court. Unfortunately, such recourse has not been adopted by the
High Court and we were informed that the other appeal (Crl. Appeal No. 131
of 2011) relating to Sessions Case No. 178 of 2011 is still pending on the
file of the High Court.
35) Coming to the other accused, namely, Yasir Chisti (A-1) and Akil
Chisti (A-3), they cannot be punished and fastened the liability of
individual acts committed by them with the aid of Section 34 IPC without
acceptable materials. Though the prosecution witnesses mentioned that
these appellants had a pistol, they did not state whether anyone was hit by
that pistol fire and no specific evidence was led in that the shot emanated
from the pistol in their hand. Even Mohd. Aslam (PW-3) - the informant,
stated before the Court that these appellants fired from their pistols but
no one was hit from that fire.
36) As discussed earlier, the evidence of PWs 4 & 5 – police constables,
clearly shows that the complainant’s party was armed with sword and hockey
sticks and were abusing and pelting stones. Sagir (PW-6), though deposed
that the present appellants had a revolver and they fired from that pistol,
without telling whether anybody was injured from such firing. PW-4 – one
of the prosecution witnesses, police constable, had denied that these
appellants had revolvers, in fact, PWs 4 and 5 did not attribute any overt
done by the appellants, i.e., A-1 and A-3 and categorically stated that the
complainant’s party was the armed aggressors. It is relevant to point out
that on the same day in Sessions Case No. 178 of 2001, the informant along
with five other co-accused was convicted under Sections 307, 324, 326, 452
and 148 IPC read with Section 149 IPC. We are also satisfied that though
the prosecution witnesses have stated that these appellants were having
revolvers, the evidence of PWs 4 & 5 clearly shows that the complainant’s
party were aggressors and the present appellants were not carrying any
revolver.
37) In the light of the facts that have been enumerated above,
particularly, from the evidence of PWs 4 & 5 – police constables attached
to the Tripolia Police Chowki, P.S. Ganj, and the materials abundantly show
that the deceased and the complainant’s party were also armed with sword
and hockey sticks. In the absence of evidence of fire shot from the
revolvers of A-1 and A-3 and in view of the statement of PWs 3, 6, 13 & 18
alleging against the present appellants, in order to bring the matter
within a free fight both sides have to come armed and prepared to do battle
must be applied in the present case with the result that each accused would
be liable for his individual act alone.
Conclusion:
38) In the light of the above discussion, even if we accept the evidence
of prosecution witnesses that A-2 was having a sword and PW-3 sustained
injuries at his instance, considering his individual act, he can only be
convicted under Section 324 of IPC and taking note of his age and of the
fact that he was in custody from 14.04.1992 till 09.05.1992 during the
trial and again from 31.01.2011 to 12.04.2012 (roughly one year and four
months), we feel that the ends of justice would be met by altering the
sentence to the period already undergone. The conviction and sentence is
modified to the extent mentioned above and Criminal Appeal No. 634 of 2012
is disposed of accordingly.
39) By order dated 10.05.2012, this Court directed Dr. Mohammad Khalil
Chisti – being a national of Pakistan-appellant in Crl.A. No. 634 of 2012
or his nominee to deposit a sum of Rs. 5 lakhs as security with the
Registry of this Court within a period of two weeks from that date and on
fulfilling the above condition, the appellant was permitted to leave India
and visit his home country, i.e., Pakistan. It is informed to us that the
said condition has been complied with and an amount of Rs. 5 lakhs was
deposited. By another order dated 17.09.2012, this Court directed the
Registry to invest the amount deposited by the appellant in an interest
bearing account in any Nationalised Bank initially for a period of one
year. In view of our conclusion that no further custody is required, the
Registry is directed to return the said amount to Dr. Mohammed Khalil
Chisti or his nominee forthwith. It is further directed that if the
passport or any other document of the appellant is in the custody of the
trial Court or any other authority of the Government of India, they are
directed to return the same to him and he is free to return to his country
without any restriction. Taking note of his age and academic qualification
etc., to facilitate such course, the concerned department of the Government
of India is directed to issue necessary visa and complete all the
formalities for his smooth return to his country.
40) In the light of the evidence and conclusion in respect of Yasir
Chisti (A-1) and Akil Chisti (A-3), the appellants in Criminal Appeal No.
635 of 2012, taking note of their individual acts, they can only be
convicted under Section 324 of IPC and also in view of the fact that A-1
and A-3 have served approximately 11 and 10 months respectively, the same
would be sufficient and no further imprisonment is required, hence, both of
them are directed to be released forthwith, if they are not required in any
other case.
41) With the above modification, both the appeals are disposed of
accordingly.
...…………….…………………………J.
(P. SATHASIVAM)
...…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
DECEMBER 12, 2012.
-----------------------
42
