Full Judgment Text
2024 INSC 191
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 1479 OF 2024
[Arising out of SLP (Criminal) No(s). 9454 of 2021]
SHAHID ALI …APPELLANT(S)
VERSUS
THE STATE OF UTTAR PRADESH …RESPONDENT(S)
J U D G M E N T
SATISH CHANDRA SHARMA, J.
1. Leave granted.
2. The present appeal is arising out of a judgment of
conviction and order dated 23.02.2018, passed by Sessons Judge,
Firozabad in S.T. No. 290 of 2016 titled ‘ State of U.P. v. Shahid
Ali ’ whereunder, the Appellant was convicted and sentenced to
undergo (i) rigorous imprisonment for life with a fine of Rs.
Signature Not Verified
10,000/- under Section 302 IPC and in default of payment of fine,
Digitally signed by
Neetu Khajuria
Date: 2024.03.11
14:57:56 IST
Reason:
SLP(Crl.) No. 9454 of 2021 Page 1 of 11
to undergo six months rigorous imprisonment; and (ii) 5 years
rigorous imprisonment under Sections 25/ 27 of the Arms Act,
1959 (the “ Arms Act ”) with fine of Rs. 5,000/- and in default of
payment of fine, to undergo rigorous imprisonment for three
months.
3. The judgment of conviction and sentence was
unsuccessfully assailed by the appellant before the High Court of
Judicature at Allahabad (the “ High Court ”) vide Criminal
Appeal No. 1462 of 2018, titled ‘ Shahid Ali v. State of U.P. ’
which came to be dismissed by the High Court vide an order
dated 04.04.2019 (the “ Impugned Order ”).
4. On 03.12.2021, this Court issued notice limited to the
question of nature of offence, that is, as to whether the Appellant
could be held guilty of the offence under Section 304 Part I or
Part II of the IPC as against Section 302 IPC.
5. The facts of the case reveal that an FIR was lodged by PW1
- Gulab Ali i.e., the chowkidar of village Katena Sikeriya, District
Firozabad, at Police Station Jasrana, by stating that on
17.03.2016, the marriage ceremony of the daughter of
Nizamuddin was being celebrated. Pertinently (i) Ishfaq Ali (the
“ Deceased ”); (ii) other co-accused person i.e., Shahid Ali; and
(iii) other relatives were also invited to the said marriage. It was
further stated in the FIR that on 17.03.2016 at about 3:30PM i.e.,
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amidst the marriage ceremony, the Appellant shot at Ishfaq Ali
which resulted in an injury on his neck and ultimately led to his
demise on the spot itself. In the FIR, previous enmity between
the Deceased and the accused came to be revealed. Furthermore,
it was stated that a large number of person(s) saw the alleged
incident as there were many people at the marriage ceremony.
Accordingly, an FIR came to be registered as Crime Case No.
108 of 2016 under Section 302 IPC at PS Jasrana, District
Firozabad. The said FIR has been proved as Ex. Ka-13.
Thereafter an entry regarding FIR was made in the G.D. Rapat
No. 34 Ex. Ka-4 on 17.03.2016 at 1705 hrs. Thereafter, PW 10
i.e., Lokendra Pal Singh, Station House Officer at Police Station
Jasrana, investigated the matter, conducted inquest on the dead
body of the Deceased and prepared an inquest report (Ex.Ka-7).
The site plan (Ex.Ka-5) was also prepared. The dead body of the
Deceased was brought to the hospital and a post-mortem was
carried out by a Medical Officer i.e., Dr. Nitin Jaggi, on
18.03.2016. The statement of accused who was arrested was
recorded in jail by the investigating officer and accused
confessed to his guilt in his statement recorded under Section 161
of Cr.P.C. Another FIR was also registered against the Appellant
for an offence punishable under Section 25/27 of the Arms Act
on 08.04.2016 which came to be registered as Case Crime No.
147 of 2016, at PS Jasrana. An investigation was carried out in
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pursuant to the FIR(s) and a charge-sheet was filed. The case was
committed to the court of Sessions by the Magistrate and charges
were framed for inter alia an offence punishable under Section
302 of the Indian Penal Code and for offences punishable under
Section 25/27 of the Arms Act.
6. The prosecution in support of its case has examined 12
witnesses, namely, PW1 Gulab Ali, PW2 Idrish Ali, PW3
Nizamuddin, PW 4 Raju Ali, PW5 Mohd. Shakeel, PW6
Shamsher Ali, PW7 Chaman Babu, PW8 Dr. Nitin Jaggi, PW9
HCP Kshetrapal Singh, PW10 SO/IO Lokendrapal Singh, PW11
SI Yashpal Singh and PW 12 Constable Clerk, Bhupendra Singh.
7. The prosecution also placed on record documentary
evidence viz., written report Ext.Ka-1, post-mortem report
Ext.Ka-2, chik FIR Ext.Ka-3, copy of G.D. Ext.Ka-4, site-plan
Ext.Ka-5, site-plan in regard to spot recovery of weapon Ext.Ka-
6, inquest report Ext.Ka-7, challanash Ext.Ka-8, photonash
Ext.Ka-9, letter to R.I. Ext.Ka-10, letter to CMO Ext.Ka-11,
charge sheet Ext.Ka-12 u/s 302 IPC against accused the
Appellant, recovery memo Ext.Ka-13, FIR Ext.Ka-13, site-plan
Ext.Ka-14, sanction to prosecute from the D.M Ext.Ka-15, copy
of G.D. Ext.Ka-16 and charge sheet Ext.Ka-17 u/s 25/27 Arms
Act against accused the Appellant.
SLP(Crl.) No. 9454 of 2021 Page 4 of 11
8. The evidence on record has been carefully examined by
this Court. PW1 Gulab Ali who was the informant of the case has
initially supported the prosecution case. He has categorically
stated that the Deceased was shot at with the country made pistol
and the bullet hit him on his neck and thereafter succumbed to
his injuries on the spot. However, in his cross-examination, the
same witness Gulab Ali stated that did not see the alleged incident
with his own eyes and that he is unaware of any old enmity
between the Deceased and the Appellant. He has further clarified
in his cross-examination that he spoke about the enmity between
the parties on the basis of hearsay evidence of the people who
were present at marriage ceremony.
9. PW2 Idrish Ali i.e., son of the Deceased who was present
at the spot initially supported the prosecution case in his
examination-in-chief, however, subsequently during his cross-
examination he has stated that there was no enmity between the
Deceased and the Appellant his father and his father Ishfaq Ali
was shot dead by some person on 17.03.2016. PW2 also turned
hostile during the trial. PW3 Nizamuddin whose daughter’s
marriage was being solemnized on 17.03.2016, also initially
supported the prosecution case, however, in his cross-
examination, he has stated that the Appellant was his Bhanja and
that he did not see the Appellant firing the shot at Deceased. PW4
Raju Ali also categorically stated that there was no enmity
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between Appellant and the Deceased and he was also declared as
a hostile witness by the prosecution. In his cross-examination,
he has categorically stated that he has not given any statement
incriminating the accused to the police. PW5 Mohd. Shakeel
who was also allegedly present at the time of incident did not
support the prosecution case and he was also declared hostile.
PW6 Shamsher Ali also did not support the prosecution case and
he has categorically stated that he has not given any statement
under Section 161 Cr.P.C. implicating the accused. He was also
declared hostile. PW7 Chaman Babu, another eye witness, was
also declared hostile. PW 8 Dr. Nitin Jaggi who carried out the
post-mortem stated before the Court that the Deceased died on
account of gunshot wound and supported the prosecution case to
the extent that he has carried out the post-mortem. He has
supported his opinion that the Deceased died on account of
haemorrhage as a result of ante-mortem gun shot injuries. PW9
Head Constable Kshetrapal Singh who was a formal witness
supported the prosecution case and proved the First Information
Report which was lodged on 17.03.2016. PW10 Station Officer
Lokendra Pal Singh also supported the prosecution case. PW11
Sub Inspector Yashpal Singh who was present along with PW-10
during the police custody remand of the Appellant has deposed
that recovery of firearm and cartridge was made at the instance
of the Appellant and has supported the prosecution case. PW12
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constable Bhupendra Singh who is also an eye witness of the
recovery of the fire arm in question and the cartridge has also
supported the prosecution case.
10. The evidence on record reveals that all the eyewitnesses
have turned hostile and the Trial Court on the basis of the
evidence has arrived at the conclusion that the Appellant was
guilty of the offences alleged under the FIR; and accordingly
proceeded to convict the Appellant. Subsequently, the High Court
affirmed the order passed by the Trial Court. Aggrieved, the
Appellant preferred the present petition. Vide an order dated
03.12.2021, this Court issued notice and on a limited question in
the matter i.e. as to whether the appellant could be held guilty of
offence under Section 304 Part I or Part II of the IPC, as against
under Section 302 of the IPC.
11. The undisputed facts of the case reveal that the incident
took place on 17.03.2016 amidst the marriage ceremony of
Nizamuddin’s daughter. Thereafter, the recovery of a weapon
along with cartridge(s) from Appellant has been proved before
the Trial Court. It is also undisputed fact that the Deceased died
on account of a single bullet injury; and that there was no known
prior enmity between the Deceased and Appellant.
12. The fulcrum of the dispute before this Court is whether the
Appellant’s act of engaging in celebratory firing during a
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marriage ceremony could be construed to be an act so imminently
dangerous so as to, in all probability, cause death or such bodily
injury as was likely to cause death?
13. The act of celebratory firing during marriage ceremonies
is an unfortunate yet prevalent practise in our nation. The present
case is a direct example of the disastrous consequences of such
uncontrolled and unwarranted celebratory firing. Be that as it
may, in the absence of any evidence on record to suggest that
either that the Appellant aimed at and / or pointed at the large
crowd whilst engaging in such celebratory firing; or there existed
any prior enmity between the Deceased and the Appellant, we
find ourselves unable to accept the Prosecution’s version of
events as were accepted by the Trial Court and confirmed by the
High Court.
14. At this juncture it would be apposite to refer to a decision
of this Court in Kunwar Pal Singh v. State of Uttarakhand ,
(2014) 12 SCC 434 wherein, this Court in a similar situation
observed as under:
“12. In these circumstances, we find that the
intention of the appellant to kill the deceased, if any,
has not been proved beyond a reasonable doubt and
in any case the appellant is entitled to the benefit of
doubt which is prominent in this case. It is not
possible therefore to sustain the sentence under
Section 304 Part I IPC, which requires that the act
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by which death is caused, must be done with the
intention of causing death or with the intention of
causing such bodily injury as is likely to cause
death. Though it is not possible to attribute intention
it is equally not possible to hold that the act was
done without the knowledge that it is likely to cause
death. Everybody, who carries a gun with live
cartridges and even others know that firing a gun
and that too in the presence of several people is an
act, is likely to cause death, as indeed it did. Guns
must be carried with a sense of responsibility and
caution and are not meant to be used in such places
like marriage ceremonies.
x-x-x
14. In the present case, we are of the view that the
appellant is guilty of committing the act which
caused the death of the deceased since the act was
done with the knowledge that is it likely to cause
death within the meaning of Section 304 Part II IPC.
In the circumstances, the appeal is allowed in part,
however, we reduce the sentence imposed upon the
appellant to a period of 7 (seven) years without
making any alteration in the fine amount imposed by
the trial court and confirmed by the High Court.”
15. Pertinently, the view in Kunwar Pal Singh (Supra) came
to be followed in Bhagwan Singh v. State of Uttarakhand ,
(2020) 14 SCC 184 wherein this Court observed as under:
“15. The facts and circumstances of the instant case,
however, do not permit to draw such a conclusion.
We have already rejected the prosecution version to
the extent that the appellant aimed at Smt Anita and
then fired the shot(s). The evidence on record
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contrarily shows that the appellant aimed the gun
towards the roof and then fired. It was an
unfortunate case of misfiring. The appellant of
course cannot absolve himself of the conclusion that
he carried a loaded gun at a crowded place where
his own guests had gathered to attend the marriage
ceremony. He did not take any reasonable safety
measure, like to fire the shot in the air or towards
the sky, rather he invited full risk and aimed the gun
towards the roof and fired the shot. He was expected
to know that pellets could cause multiple gunshot
injuries to the nearby persons even if a single shot
was fired. The appellant is, thus, guilty of an act, the
likely consequences of which including causing fatal
injuries to the persons being in a close circuit, are
attributable to him. The offence committed by the
appellant, thus, would amount to “culpable
homicide” within the meaning of Section 299,
though punishable under Section 304 Part 2 IPC.”
16. There can be no qualm about the fact that the Appellant
opened fire in a crowded place i.e., a marriage ceremony without
taking reasonable measures for safety, which led to the
unfortunate demise of the Deceased.
17. In this context, keeping in view the totality of
circumstances of the case i.e., especially the fact that (i) there was
no previous enmity between the Deceased; (ii) no intention may
be attributed to the Appellant as may be culled out from the
record to cause death of the Deceased; and (iii) position of law
enunciated by this Court in Kunwar Pal Singh (Supra) and
subsequently, followed in Bhagwan Singh (Supra) , we find that
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the Appellant is guilty of commission of ‘culpable homicide’
within the meaning of Section 299 IPC i.e., punishable under
Section 304 Part II of the IPC.
18. In view of the aforesaid, the conviction and sentence of the
Appellant under Section 302 IPC is set aside. The Appellant is
convicted for an offence under Section 304 Part II of the IPC.
The appellant has already undergone approximately 8 years of
incarceration. Considering the facts and circumstances of the
case, we award a sentence equivalent to the period already
undergone. The conviction and sentence awarded to the
Appellant under Sections 25 & 27 of the Arms Act remains
unaltered. Resultantly, the Appellant be released forthwith, if not
required in any other case.
19. The appeal is allowed accordingly, in part. Pending
application(s), if any, shall stand disposed of.
……………………………………J.
[VIKRAM NATH]
……………………………………J.
[SATISH CHANDRA SHARMA]
NEW DELHI
MARCH 11, 2024
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