IMPORTANT POINT
Death during shuffle in sudden fight without premeditation does not attract section 302 IPC. It would be covered by Section 304 Part I.

Headnote:(a) Indian Penal Code, 1860m – Section 302 – Evidence on record casting a doubt as to appellants being aggressors – Incident appearing without premeditation – Section 302 not attracted. (Para 17)
       (b) Indian Penal Code, 1860 – Section 304 Part I – Shuffle in sudden fight – No premeditation – Case falling under Exception 4 of section 300 punishable u/s 304 Part I. (Para 21)
       (2004) 11 SCC 395; (2009) 17 SCC 724 – Relied upon
       © Indian Penal Code, 1860 – Section 307 – Evidence omnibus – No overt act attributed to remaining accused persons – One of deceased dying due to fat embolism due to multiple injuries and due to injuries caused to the bones – High Court rightly modifying conviction u/s 307. (Para 22, 23)
       Facts of the case:
       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, nephew Hasan Ali and Sabbir Shah, the appellants and nineteen other accused along with others 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. 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.
       Rakhu Shah was admitted in the hospital on 29.4.1996.
       Statement of Rakhu Shah was recorded. 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.
       Trial court convicted all the accused persons finding them guilty under Sections 148, 307/149 and 302/149 IPC.
       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.
       Finding of the Court:
       Conviction of the appellants Ahmed Shah and Gurmukh Singh under Sections 302/34 IPC is modified as conviction under Section 304 Part I IPC.
       Result: Appeals allowed.

JUDGMENT

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 postmortem 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

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2015 Supreme(SC) 23

IMPORTANT POINTDeath during shuffle in sudden fight without premeditation does not attract section 302 IPC. It would be covered by Section 304 Part I.

Cases Referred (2)

IMPORTANT POINT
Death during shuffle in sudden fight without premeditation does not attract section 302 IPC. It would be covered by Section 304 Part I.