Shaukat vs State Of Uttaranchal

commission of offences punishable under Section 302 read 2

with Section 34 Indian Penal Code (IPC) and Section 307

read with Section 34 IPC for causing death of Wilayat and

attempting to commit murder of Rahmat. The learned

Sessions Judge, Nainital by judgment dated September 18,

1982 passed in Sessions Trial No.17 of 1981 convicted the

appellant under Sections 302 and 307 for causing murder

of deceased Wilayat and for making attempt to murder

Rahmat and sentenced him to life imprisonment for

commission of offence punishable under Section 302 as well

as R.I. for ten years for commission of offence punishable

under Section 307 IPC. His father Sabbir was convicted

under Section 302 read with Section 34 IPC and Section

307 read with Section 34 IPC. Mr. Sabbir was sentenced to

life imprisonment for commission of offence under Section

302 read with Section 34 IPC and R.I. for seven years for

commission of offence under Section 307 read with Section

34 IPC.

2. Feeling aggrieved, the appellant and his father

preferred Criminal Appeal No.1034 of 2001 in the High

Court of Uttaranchal at Nainital. During the pendency of

the said appeal, Sabbir, who was father of the appellant, 3

expired. Therefore, the appeal filed by the appellant was

considered by the High Court. The Division Bench of the

High Court, by judgment dated December 24, 2004, held

the appellant guilty for commission of offence of culpable

homicide not amounting to murder punishable under

Section 304 Part-I IPC and sentenced him to undergo R.I.

for 10 years and a fine of Rs.5,000/- in default R.I. for one

year. The High Court also found the appellant guilty for

commission of offence under Section 308 IPC and sentenced

him to R.I. for two years and fine of Rs.1,000/- in default

R.I. for three months. Feeling aggrieved, the appellant has

filed Criminal Appeal No.757 of 2005 by Special Leave.

3. As noticed earlier, the appellant was acquitted of the

offences punishable under Sections 302 IPC and Section

307 IPC. Therefore, feeling aggrieved by the said acquittal,

the State of Uttaranchal has filed Criminal Appeal No.758 of

2005 by Special Leave.

4. Both the appeals arise out of the common judgment

dated December 24, 2004 rendered by the Division Bench of

the High Court of Uttaranchal at Nainital. Therefore, this 4

Court proposes to dispose them of by this common

judgment.

5. The facts emerging from the record of the case lie in

narrow compass. The appellant is resident of Village

Darauki Madhaia, P.S. Kichha, District Nainital. In the

village, there is a Panchayat pond. The length of the pond

from east to west is about 40 to 50 paces whereas its width

from north to south is about 25 to 30 paces. The said pond

is meant for common use of all the villagers. The people of

the village used to take earth from the said pond for

maintenance of their houses and other household purposes.

The field of the appellant is located on the southern side of

the pond. Between the pond and the field of the appellant,

there is a palm tree. The boundary of the field belonging to

the appellant is extended upto the said palm tree after

which the boundary of the pond begins. On the western

side of the pond, there is a house of one Sagir and on the

west side of the said house, there is a passage whereas on

the west side of the passage there is abadi of the village.

Injured Rahmat and deceased Wilayat were also residents of

this very village. From the place which is near to the field of 5

the appellant, deceased Wilayat used to dig and take earth

from the pond. This was not approved by Sabbir who was

father of the appellant and he used to object to the digging

of soil from the pond on the ground that the field belonging

to him would get damaged. The incident in question took

place on October 13, 1980. On that day, in the morning at

about 5.00 a.m., Rahmat, with his deceased brother Wilayat

and Chhote went for offering prayers in a mosque. After

offering Namaz, they came out from the mosque at about

5.30 a.m. Rahmat and his brother Chhote were residing in

the same house and the house of deceased Wilayat was

situated leaving one house from their house. The appellant

with his father was residing near the mosque. The

appellant and his father stopped Wilayat and Rahmat and

told that they had taken earth from the place near their field

and if earth was again taken from the same place, they

would be appropriately dealt with. Thereupon deceased

Wilayat replied the appellant and his father that their field

was upto the palm tree whereas pond was common for the

villagers and he would bring soil from the pond even on that

day. On hearing such reply, the appellant told Wilayat that 6

he would see Wilayat on the spot. Thereafter, the three

brothers came to their respective houses. Deceased

Wilayat, after taking a spade, went towards the pond for

bringing soil at about 5.45 a.m. After some time, Chhote

came out from his house and witnessed that deceased

Sabbir and the appellant were going speedily towards the

pond. As Chhote saw the appellant and his father going

speedily towards the pond, he decided to go to the place

where his deceased brother Wilayat was digging the earth to

see that nothing untoward happened to him. Chhote was

also accompanied by his brother Rahmat. When they

reached the pond, they saw that their brother Wilayat was

digging earth in the pond from 10 to 12 paces away from the

field of the appellant. Accused Sabbir forbade Wilayat from

digging the soil but Wilayat continued digging the soil.

Thereupon a scuffle ensued between accused Sabbir and

deceased Wilayat. When scuffle was so going on, the

accused Sabbir asked the appellant to kill Wilayat by saying

as to what he was looking at. On this, the appellant who

was already armed with a knife, took out the same from his

pant's pocket and gave one blow on the back of Wilayat. On 7

receipt of the knife blow, Wilayat immediately turned.

Thereupon, the appellant inflicted another injury by knife

on left side of chest of Wilayat from the front side. On

sustaining injuries, Wilayat fell down in the mud. Rahmat

tried to catch hold of the appellant but the appellant

inflicted injuries by knife on Rahmat also. Chhote also tried

to catch hold of the appellant but accused Sabbir caught

hold of collar of the shirt of Chhote and in the meantime the

appellant made his escape good from the place of incident.

Because of the hubbub created by the incident, Ms. Banu

Begum, Pattu Wilayat, Mohd. Yasin, Bafati Shah etc.

reached the place of incident. They found that Wilayat had

died on the spot. They also noticed that Rahmat who had

attempted to rescue his brother Wilayat was also assaulted

by the appellant with knife as a result of which Rahmat had

fallen down. Accused Sabbir had also made attempt to flee

from the place of incident but Md. Yasin with others had

caught hold of the legs of Sabbir and, therefore, Sabbir had

also fallen down and dashed with another palm tree and

sustained superficial injuries. Thereafter, those people who

had gathered near the place of incident had tied Sabbir with 8

the tree. A cart was summoned at the place of incident and

Chhote along with injured Rahmat had gone to Kichha

where he had met Sayed Mohammed Saleem who had

reduced the information into writing. After the complaint

was scribed, Chhote had put his thumb mark thereon and

went to the Police Station. At the Police Station, the

complaint was presented. In view of the contents of the

First Information Report, offences punishable under Section

302 read with Section 34 IPC and Section 307 read with

Section 34 IPC were registered and investigation

commenced. The Investigating Officer went to the place of

incident and held inquest on the dead body of Wilayat in the

presence of Panchas. He also made arrangement for

sending the dead body of the deceased to hospital for post

mortem examination. He recorded the statements of those

persons who were found to be conversant with the facts of

the case. Incriminating articles were seized from the place

of incident. Injured Rahmat was referred to hospital for

treatment. His condition was precarious and, therefore, his

statement could not be recorded. The accused Sabbir was

arrested from the spot. The appellant was also arrested on 9

the same day. After investigation was over and chargesheet

was submitted, the case was committed to the Court of

learned Sessions Judge, Nainital for trial.

6. The learned Sessions Judge framed charge against the

appellant for commission of offences punishable under

Sections 302 and 307 IPC and against accused Sabbir for

commission of offences punishable under Section 302 read

with Section 34 IPC and Section 307 read with Section 34

IPC. The charge was read over and explained to the

appellant and his father. Both of them pleaded not guilty to

the same. Therefore, the prosecution examined witnesses

and produced documents to prove its case against the

appellant and his father. After recording of evidence of the

prosecution witnesses was over, the learned Judge

explained to the appellant and his father the circumstances

appearing against them in the evidence of prosecution and

recorded their further statements as required by Section

313 of the Code of Criminal Procedure, 1973. In their

further statements, the appellant and his father pleaded

that they were innocent. However, no witness was 10

examined by any of them in support of their defence that

they were innocent.

7. On appreciation of the evidence adduced by the

prosecution, the learned Judge held that it was proved by

the prosecution beyond reasonable doubt that the deceased

Wilayat had died a homicidal death. The learned Judge

considered the eye-witness account tendered by the first

informant Chhote, injured Rahmat as well as witness Md.

Yasin and found that their evidence was reliable. Placing

reliance on the testimony of the abovementioned witnesses,

the learned Judge held that the appellant had committed

murder of deceased Wilayat and had made attempt to

murder injured Rahmat and was, therefore, liable to be

convicted under Section 302 and 307 IPC. The learned

Judge further held that accused Sabbir had shared common

intention with the appellant to cause death of the deceased

Wilayat and had attempted to murder injured Rahmat and,

therefore, he was liable to be convicted for commission of

offences punishable under Section 302 read with Section 34

IPC and Section 307 read with Section 34 IPC. Accordingly,

the appellant and his father were convicted. Thereafter, the 11

appellant and his father were heard on the question of

sentence. After hearing the appellant and his father as well

as learned Additional Public Prosecutor and the defence

counsel, the appellant was sentenced to life imprisonment

for commission of offence punishable under Section 302 as

well as R.I. for ten years for commission of offence

punishable under Section 307 IPC whereas his father

Sabbir was sentenced to life imprisonment for commission

of offence punishable under Section 302 read with Section

34 IPC and R.I. for seven years for commission of offence

punishable under Section 307 read with Section 34 IPC.

8. Feeling aggrieved, the appellant and his father

preferred Criminal Appeal No.1034 of 2001. During the

pendency of the appeal, the father of the appellant, i.e.,

Sabbir expired and, therefore, the case of the appellant

alone was considered by the Division Bench of the High

Court of Uttaranchal at Nainital. The High Court found that

there was no enmity between the parties nor there was

premeditation between the appellant and his father for

committing the crime. According to the High Court, the

quarrel took place suddenly under the heat of passion 12

because the time between the quarrel and the fight was

stated to be few minutes. The High Court was of the view

that the quarrel had taken place on account of sudden

provocation in which the appellant had caused injuries to

the deceased with knife and, therefore, the appellant had

committed the offence of culpable homicide not amounting

to murder punishable under Section 304, Part I of the IPC.

The appellant was accordingly convicted and was sentenced

to undergo R.I. for ten years and a fine of Rs.5,000/- in

default R.I. for one year. The High Court was further of the

view that the injuries on the person of Rahmat indicated

that Rahmat had tried to apprehend the appellant when the

appellant was trying to make his escape good from the place

of occurrence and, therefore, it was natural for the appellant

to inflict injuries on the person of Rahmat in order to make

his escape good. The High Court, therefore, concluded that

the appellant had, in fact, no intention to make an attempt

to commit murder of Rahmat and had committed offence

punishable under Section 308 IPC. Accordingly, the High

Court convicted the appellant under Section 308 IPC and

sentenced him to R.I. for two years and a fine of Rs.1,000/- 13

in default R.I. for three months by judgment dated

December 24, 2004. The above judgment has given rise to

the two appeals.

9. This Court has heard learned counsel for the parties at

length and considered the documents forming part of the

appeal as well as original record summoned from the Trial

Court.

10. The fact that deceased Wilayat died a homicidal death

is not disputed before this Court. The said fact stands

amply proved by the testimony of PW9, Dr. S.C. Mishra.

According to the Medical Officer, Haldwani, he had

conducted autopsy on the dead body of deceased Wilayat on

October 14, 1980 and found a stab wound measuring about

8 cm x 4 cm x cavity deep over left side of chest about 2 cm

below left nipple and one incised wound measuring about 6

cm x 2 cm x muscle deep in left luminar region about 8 cm

above head of femur. The injuries mentioned by Dr. Mishra

are also noted in the post mortem report prepared by him

and produced on the record of the case at Exhibit KA-19. It

is nobody's case that the deceased received the 14

abovementioned injuries accidentally. Nor it is the case of

anyone that the deceased had received those injuries in an

attempt to commit suicide. On the facts and in the

circumstances of the case, this Court is of the definite

opinion that the fact that the deceased had died a homicidal

death is firmly established.

11. The evidence of the three eye-witnesses, namely,

Chhote, who was the first informant as well as that of

injured Rahmat and witness Md. Yasin would indicate that

when the deceased was digging earth, he was prevented

from doing so by accused Sabbir whereupon a scuffle had

ensued between the deceased and accused Sabbir. All the

witnesses have specifically stated that accused Sabbir had

told his son, i.e., the appellant not to be a passive spectator

and kill the deceased. According to the witnesses, the

appellant had thereupon taken out knife from his pant's

pocket and inflicted first blow on the back of the deceased.

Their evidence further shows that on receipt of the blow on

his back, the deceased had immediately turned and,

therefore, another blow was inflicted by the appellant on the

chest of the deceased whereupon the deceased had fallen 15

down on the ground and died on the spot. The eye-witness

account further establishes that injured Rahmat had tried

to save his brother Wilayat but the appellant had also

injured him with the knife. As per the medical evidence on

record, injured Rahmat had received as many as six

injuries. This is amply proved by PW4, Dr. Yogesh Mishra,

who was the then surgeon, Primary Health Centre, Kichha.

On reappraisal of the testimony of the three witnesses, this

Court finds that the version presented by them before the

Court inspires confidence. Though each of them was

subjected to searching cross-examination, nothing could be

brought on record to impeach credibility of any of them. It

is relevant to notice that one of the eye-witnesses was

injured Rahmat himself. Therefore, his presence at the

place of incident can hardly be doubted. He being real

brother of the deceased and he himself having received

injuries, would not allow the real culprit to go scot free and

involve innocent persons falsely. The evidence of the eye-

witnesses further makes it clear that there are no major

contradictions or omissions. Under the circumstances, this

Court is of the opinion that neither the Trial Court nor the 16

High Court committed any error in placing reliance on the

testimony of the three eye-witnesses for the purpose of

coming to the conclusion that the appellant was the author

of the injuries sustained by the deceased and injured

Rahmat.

12. The learned counsel for the appellant in Criminal

Appeal No.757 of 2005 argued that the accused Sabbir had

received two injuries whereas the appellant had sustained

one injury and, therefore, injuries having been caused to the

deceased in exercise of right of self-defence, the conviction

of the appellant under Section 304, Part-I for the death of

the deceased and under Section 308 IPC for causing injuries

to Rahmat should be set aside. On the other hand, the

learned Additional Public Prosecutor vehemently argued

that the Trial Court had given cogent and convincing

reasons for the purpose of coming to the conclusion that the

appellant is guilty under Section 302 IPC for causing

murder of the deceased Wilayat and under Section 307 for

attempting to commit murder of injured Rahmat and the

High Court was not justified in coming to the conclusion

that the appellant had committed offence punishable under 17 Section 304, Part I IPC as far as murder of the deceased was

concerned and offence punishable under Section 308 IPC

for causing injuries to injured Rahmat.

13. In order to determine whether the appellant is guilty

under Section 302 for causing murder of the deceased and

under Section 307 for attempting to commit murder of

injured Rahmat, it would be necessary to consider the

relevant facts which have emerged from the record of the

case.

14. The learned counsel for the appellant would argue that

the injuries sustained by the appellant and his father would

indicate that the appellant had murdered deceased Wilayat

and injured witness Rahmat, in exercise of right of self-

defence as a result of which conviction under Section 304,

Part-I for murder of the deceased and under Section 308

IPC for causing injuries to the injured Rahmat should not

be interfered with by this Court in State appeal. While

considering these submissions, this Court finds that PW4,

Dr. Yogesh Mishra had examined accused Sabbir on

October 13, 1980 and had found the following injuries : 18

"(i) Contusion 2 cm x 1 cm present on the noce, = cm below the bridge of nose.

(ii) Contusion 2 cm x 3 cm present on the right of face 1 cm below the right eye."

The testimony of Dr. Yogesh Mishra further makes it

very clear that on the same day he had also examined the

appellant and found following injury :

(i) Incised wound 3 cm x 0.5 cm x skin deep present on the right palm on middle side 6 cm above ulnar styloid process."

The doctor has stated in his testimony that the two

injuries sustained by accused Sabbir were simple and could

have been caused by dash with the palm tree. As far as

injury sustained by the appellant is concerned, it was

mentioned by the same medical officer that the injury could

have been caused by sharp weapon like knife or could have

been self-inflicted. This medical officer was cross-examined

on behalf of the appellant and a suggestion was made to

him that the injury sustained by the appellant could have

been caused by a sharp side of the spade. It may be 19

mentioned that this suggestion was made because

according to the prosecution witnesses, the deceased was

digging earth with a spade. However, the medical officer

has in terms stated that the injuries sustained by the

appellant could not have been caused by the sharp side of a

spade as it could have been caused by a sharper weapon

than spade and that the spade was not sharp enough to

cause the injury sustained by the appellant. From the

record, it is clear that the learned Sessions Judge had put a

question to the witness to elicit answer from him as to

whether the sharp edged spade used by the deceased for

digging the earth, produced as Exhibit-I could have caused

the injury sustained by the appellant. The medical Officer,

after looking to the spade, answered that its sharpness was

not such so as to cause injury sustained by the appellant.

The medical officer was further questioned by the learned

counsel for the appellant and it was replied by him that if

the spade had been used to cause injury to the appellant, it

would have caused an abrasion and not the incised wound.

After explaining the difference between incised wound and

an abrasion, namely, that incised wound contains edge and 20

also intermediary tissue and all those are clean cut whereas

in case of an abrasion, skin tissues slough superficially, it

was mentioned by the medical officer that Exhibit-I was not

that sharp so as to cause incised wound sustained by the

appellant. It was suggested to the medical officer that

Exhibit-I, spade, before it was opened in the court was kept

at different places for a period of about 1= years and,

therefore, its edge might have become blunt, but this

suggestion was emphatically denied by him. As far as

injuries sustained by accused Sabbir are concerned, it was

mentioned by this witness in cross-examination that both

the injuries sustained by Sabbir could have been caused by

only one dash with any blunt object.

15. A fair reading of the testimony of the medical officer

makes it abundantly clear that the accused Sabbir had

sustained two superficial injuries when he had hit the palm

tree whereas the injury sustained by the appellant was self-

inflicted one. The evidence on record does not indicate that

any assault was mounted either on the appellant or his

father by the deceased or injured Rahmat. On the contrary,

the evidence shows that the appellant and his father had 21

gone to the place where deceased was digging earth and

accused Sabbir had picked up quarrel with him. On the

facts and in the circumstances of the case, this Court finds

that plea of self-defence is not made out by the appellant

and, therefore, contention that the finding recorded by the

High Court that he is guilty under Section 304, Part-I IPC

for causing death of the deceased and under Section 308

IPC for causing injuries to Rahmat should be sustained

cannot be accepted.

16. As far as the High Court is concerned, this Court finds

that the High Court has recorded a finding that there was

no enmity between the appellant and his father on one

hand and the deceased and the injured on the other nor

was there premeditation on the part of the appellant and

his father to murder the deceased and as the quarrel had

taken place all of a sudden under the heat of passion, the

appellant would be guilty under Section 304, Part I IPC for

causing death of the deceased and under Section 308 for

causing injuries to injured Rahmat. However, this Court

notices that several important aspects of the matter have

been totally lost sight of and ignored by the High Court 22

while recording abovementioned findings. To begin with,

the reliable testimony of three witnesses has established

that in the morning at about 5.30 a.m. on the date of the

incident, the accused Sabbir and the appellant had asked

the deceased not to dig earth from the place which was near

their field whereupon the deceased had told him that pond

was meant for general public and, therefore, he would dig

the earth from the same place. Two brothers of the

deceased, namely, Chhote and Rehmat have in terms stated

that the accused Sabbir had threatened that he would not

spare the deceased. The evidence of the witnesses would

further show that the deceased had gone in the early

morning to dig the earth and thereupon the appellant and

his father had followed him. What is relevant to mention is

that the appellant was carrying a knife in his pant's pocket

and this fact was known to his father Sabbir, who had

asked him to kill the deceased. As soon as the appellant

was asked by his father to kill the deceased, he had taken

out the knife from his pant's pocket and inflicted a blow on

the back of the deceased. The evidence further establishes

that on receipt of the blow, the deceased had turned and 23

the appellant who was bent upon obeying directions of his

father to kill the deceased had inflicted another blow on the

chest of the deceased. The testimony of Dr. S.C. Mishra,

who performed autopsy on the dead body of the deceased

would indicate that during the internal examination, heart

was found to be pale, empty and punctured whereas the

fifth rib of the left side was found fractured. This

establishes that the blow with knife on chest of the

deceased was inflicted with a great force. According to the

doctor, the puncture of heart and fracture of the fifth rib

was corresponding to injury No.1. The doctor further

mentioned that injury No.1 could have been caused by knife

which was produced as Exhibit-3 and that the said injury

was sufficient in the ordinary course of nature to cause

death of the deceased immediately. This assertion made by

the medical officer was not challenged during his cross-

examination at all. The evidence on record, thus, shows

that before reaching the place of incident, the appellant had

armed himself with a dangerous weapon and had caused

injury by using that weapon with such a great force on vital

part of the body of the deceased that it had resulted into 24

instant death of the deceased on the spot. It is not the case

of the appellant that he had intended to inflict injury No.1

on other part of the body of the deceased and due to

movement of the deceased, the blow had landed on the

chest of the deceased which had punctured his heart and

fractured his rib. The eye-witness account of assault on the

deceased by the appellant read with medical evidence

makes it more than clear that the act of the appellant, by

which the death of the deceased was caused, was done with

the intention of causing such bodily injury to the deceased

as found by medical evidence in this case and that the

bodily injury intended to be inflicted was sufficient in the

ordinary course of nature to cause death of the deceased.

Thus the facts proved, bring the case of the appellant within

four corners of clause Thirdly of Section 300 IPC and it will

have to be held that the appellant had committed murder of

the deceased punishable under Section 302 IPC.

17. As observed earlier, the High Court has held that there

was no enmity between the parties nor there was

premeditation on the part of the appellant and his father to

murder the deceased and as the quarrel had taken place all 25

of a sudden under the heat of passion, the appellant would

be guilty under Section 304 Part I IPC. In view of this

finding, it has become necessary for this Court to examine

the question whether Exception 4 to Section 300 IPC would

be applicable to the facts of this case.

Exception 4 to Section 300 IPC would be attracted only

if four requirements are satisfied, namely, (1) it was a

sudden fight; (2) there was no premeditation; (3) the act was

done in a heat of passion; and (4) the assailant had not

taken any undue advantage or acted in a cruel manner.

The facts of the instant case establish beyond pale of doubt

that there was premeditation between the appellant and his

father to cause the death of the deceased and to execute the

threat given by accused Sabbir to the deceased near the

mosque at about 5.30 in the morning. Thus, both of them

had followed the deceased who had gone to the pond for the

purpose of digging the earth and ultimately the appellant

had murdered him. Further, the appellant had carried with

him lethal weapon like knife while following the deceased.

The record would show that the father of the appellant had

asked the deceased to stop digging the earth but the 26

deceased had continued to dig the earth because the pond

was meant for the benefit of all the villagers including the

deceased and thereupon a scuffle had ensued between the

father of the appellant and the deceased. The evidence does

not indicate at all that any scuffle had taken place between

the appellant and the deceased. It is also established that

the father of the appellant had asked the appellant not to

look at the scuffle as a passive spectator and kill the

deceased and thereupon the appellant had first of all given

blow with knife on the back of the deceased and thereafter

on the chest of the deceased. If the intention of the

appellant had not been to murder the deceased, the

appellant would not have inflicted second blow with knife

with such a great force on vital part of the body of the

deceased which resulted into puncture of heart and fracture

of rib and ultimately into death of the deceased within no

time. Further, the evidence of the injured, i.e., Rahmat

would show that he had tried to save his brother but as

many as six injuries were caused to him by the appellant.

The record amply establishes that motive for the crime was

digging of earth by the deceased near the field of the 27

appellant. There is nothing on the record of the case to

suggest even remotely that a sudden quarrel had taken

place either between the appellant and the deceased or

between the father of the appellant and the deceased. On

the contrary, the evidence establishes that the appellant

and his father had followed the deceased who had gone to

the pond for the purpose of digging earth and after picking

up quarrel with him, the appellant had murdered him. This

cannot be said to be a sudden quarrel within the meaning

of Exception IV to Section 300 IPC at all. Further, the

appellant had taken disadvantage of the situation in the

sense that after inflicting one blow on the back of the

deceased, he was not contented and had caused another

fatal injury on the chest as well and also caused as many as

six injuries to injured Rahmat who had made attempt to

save his brother. There is nothing on the record of the case

even to remotely suggest that a sudden fight had taken

place between the appellant and the deceased.

Premeditation to cause death of the deceased stands proved

by reliable evidence adduced by the prosecution. Nothing is

brought on record of the case to show that the act of 28

mounting fatal attack on the deceased was done by the

appellant in a heat of passion. The evidence adduced

positively proves that the appellant had taken undue

advantage while delivering fatal blow to the deceased. The

four requirements for applicability of Exception 4 to Section

300 IPC are not satisfied at all and, therefore, the

conclusion of the High Court that the appellant would be

guilty under Section 304 Part I IPC, being erroneous in law,

is liable to be set aside. Therefore, the appellant will have

to be found guilty under Section 302 IPC for causing

murder of the deceased.

18. As far as conviction of the appellant recorded under

Section 308 IPC for attempting to commit culpable homicide

by causing injuries on the person of Rahmat is concerned,

this Court finds that the medical officer had found following

six injuries on the person of the injured Rahmat when he

was examined at 7.50 a.m. on October 13, 1980 :

"(i) An incised wound 10 cm x 7 cm x bone deep with fracture of left side ribs with surgical empty semi with tear of pleura on the left side of chest, posturaly 8 cm lateral to left nipple.

29 (ii) An incised wound 6 cm x 4 cm x bone deep with fracture of under lying bone present on left side of back just at the iliac crest.

(iii) Incised wound 4 cm x 1 cm x bone deep present on the left hand 2 cm below the left index finger base.

(iv) An incised wound 2 cm x 0.5 cm x muscle deep present on the left thumb in the aspect 2 cm above the base of right thumb

(v) Incised wound 1 cm x 0.2 cm x skin deep present on the inner aspect of right thumb just at the nail root.

(vi) An incised wound 4 cm x 2 cm present on the ventral aspect of left tercunum 6 cm above the left writ joint."

The medical officer has in terms stated that the first

two injuries sustained by the injured were grievous whereas

injuries 3, 4, 5 and 6 were simple. According to the doctor,

all the injuries could have been caused by a sharp object.

What is relevant to notice is that the doctor had conducted

operation of injured Rahmat with regard to injury No.1 and,

for that purpose, the injured was admitted in the hospital.

The assertion made by the doctor that injury Nos. 1 and 2

sustained by the injured were grievous in nature has gone

unchallenged and was never disputed by the defence. 30

Causing an incised wound 10 cm x 7 cm x bone deep with

fracture of left side rib with surgical empty semi with tear of

pleura on the left side chest, and another incised wound 6

cm x 4 cm bone deep with fracture of under lying bone on

left side of back just at the iliac crest, cannot be regarded as

bringing the case of the appellant within the purview of

Section 308 IPC. There is no manner of doubt that the

injuries were caused to injured Rahman with a view to

committing his murder. The finding recorded by the High

Court that the appellant had caused injuries to Rahmat in

an attempt to escape, is not borne out from the record of

the case at all. Even no suggestion was made to any of the

eye-witnesses that the appellant had caused injuries to

injured Rahmat while making attempt to make his escape

good. On the contrary, reliable evidence of Rahmat

satisfactorily proves that the appellant had caused injuries

to this witness when the witness had made attempt to save

his brother. The findings recorded by the High Court are

not only not borne out from the record of the case but are

contrary to the positive evidence on record. Therefore, this

Court is of the firm opinion that the appellant could not 31

have been convicted under Section 308 for causing injuries

to injured Rahmat and is liable to be convicted under

Section 307 IPC.

19. For the foregoing reasons, Criminal Appeal No.757 of

2005 filed by the appellant Shaukat is dismissed whereas

Criminal Appeal No.758 of 2005 filed by the State of

Uttaranchal is accepted. The appellant is held guilty under

Section 302 IPC for commission of murder of deceased

Wilayat and under Section 307 for attempting to commit

murder of injured Rahmat. The sentences, as imposed on

the appellant by the Trial Court for commission of offences

under Sections 302 and 307 IPC, are restored. Both the

appeals accordingly stand disposed of.

..............................J. [J.M. Panchal]

..............................J. [Deepak Verma] New Delhi;

April 22, 2010