Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.757 OF 2005

Shaukat ... Appellant

Versus

State of Uttaranchal        ...Respondent

WITH

CRIMINAL APPEAL NO.758 OF 2005

State of Uttaranchal ... Appellant

Versus

Shaukat        ...Respondent

J U D G M E N T

J.M. PANCHAL, J.

1. The appellant in Criminal Appeal No.757 of 2005 with  

his  father  Sabbir,  son  of  Ilahi  Bux  was  charged  for  

commission of offences punishable under Section 302 read

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,  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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/-  

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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  

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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  

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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  

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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  

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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 :

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“(i) Contusion 2 cm x 1 cm present on  the noce, ½ 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  

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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  

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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  1½  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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.

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(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.  

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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  

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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

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