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Supreme Court of India
P. SATHASIVAM & RANJAN GOGOI, JJ.
Dr. Mohammad Khalil Chisti & Others
Versus
State of Rajasthan & Others
CRIMINAL APPEAL NO. 634 OF 2012 WITH CRIMINAL APPEAL NO. 635 OF 2012
Decided On : 12-12-2012
(1976) 4 SCC 394; (2011) 7 SCC 295 - Relied upon
(b) Indian penal Code, 1860 - Section 96 - Right to private defence - Accused persons, to some extent, victims of armed aggression at the hands of the deceased and his companions - Prosecution presenting two discrepant versions of incidence - No right of private defence available to either party - Each accused can be fastened with individual liability if found guilty of their respective roles. (Para 32)
(2011) 12 SCC 235; (2006) 11 SCC 304; (2005) 10 SCC 404 - Relied upon
(1975) 3 SCC 529 - Distinguished
(2010) 10 SCC 374 - Referred
(c) Criminal Trial - Case and cross-case - Desirable to hear both together. (Para 33)
Facts of the case:
This is an appeal against conviction and sentence under Sections 302 and 324 read with Section 34 of the Indian Penal Code, 1860
Finding of the Court:
Prosecution case suffers from suppression of facts. Case and cross-cse should been heard together.
Result : Appeals disposed of.
Key Points: - The non-explanation of injuries sustained by accused persons in a murder case indicates suppression of the genesis of the occurrence and renders the prosecution evidence unreliable (!) (!) (!) . - When prosecution evidence presents two discrepant versions of an incident, the court should not base conviction on either unreliable version, though individual liability may still be fastened based on specific roles (!) (!) . - The right of private defence is not automatically available to both parties in a "free fight" scenario; each accused is liable only for their individual acts if the evidence is inconclusive regarding a common object (!) (!) . - It is desirable for the High Court to hear appeals related to a "case and cross-case" together to ensure a consistent and fair assessment of evidence (!) . - Conviction for murder (Section 302 IPC) may be reduced to voluntary causing of hurt (Section 324 IPC) if the prosecution fails to prove the specific act of killing or the common intention to kill (!) (!) . - The burden on the accused to establish the plea of private defence is lighter than the prosecution's burden and requires showing a preponderance of probabilities rather than proof beyond reasonable doubt (!) (!) . - Independent witnesses (like police constables) whose testimony contradicts prosecution witnesses on material facts, such as the presence of weapons or the nature of the attack, significantly weaken the prosecution case (!) (!) . - If the prosecution fails to explain how co-accused sustained injuries, it casts doubt on the entire narrative and may lead to acquittal or modification of charges (!) (!) . - The court may direct the release of an accused if the conviction is modified to a period of imprisonment already undergone during the trial (!) (!) . - Even if the accused are victims of armed aggression, they cannot claim a general right of private defence if they also initiated the violence or if the evidence shows a free fight where both sides are liable for their individual acts (!) (!) .
Judgment :-
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, 18
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