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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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