Criminal Appeal Nos. 634 and 635 of 2012. Case: 1. Dr. Mohammad Khalil Chisti, 2. Yasir Chisti and Anr. Vs 1. State of Rajasthan and Ors., 2. State of Rajasthan. Supreme Court (India)
| Case Number | Criminal Appeal Nos. 634 and 635 of 2012 |
| Counsel | For Appellant: Gaurav Agrawal, Adv. and For Respondents: Ms. Pragati Neekhra, Adv. |
| Judges | P. Sathasivam and Ranjan Gogoi, JJ. |
| Issue | Evidence Act, 1872 - Sections 101, 105; Indian Penal Code, 1860 - Sections 34, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 148, 149, 302, 307, 324, 326, 452; Code of Criminal Procedure (CrPC), 1973 - Section 161; Constitution of India - Article 136 |
| Citation | 2013 (2) AJR 594, 2013 (2) CGLJ 339, 2013 CriLJ 637, JT 2012 (12) SC 405, 2013 (1) MLJ 198 (Crl), 2013 (3) RCR 514 (Crl), 2012 (12) SCALE 254, 2013 (2) SCC 541 |
| Judgement Date | December 12, 2012 |
| Court | Supreme Court (India) |
Judgment:
P. Sathasivam, J.
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These appeals are directed against the common judgment and order dated 20.12.2011 passed by the High Court of Judicature for Rajasthan, Bench at Jaipur in D.B. Criminal Appeal Nos. 189 and 188 of 2011 whereby the Division Bench of the High Court dismissed the appeals filed by the Appellants herein and affirmed the judgment dated 31.01.2011 passed by the Court of Additional Sessions Judge (Fast Track) No. 1, Ajmer in Sessions Case No. 157 of 2001.
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Brief facts
(a) The case relates to a fight between two groups of Khadim Mohalla, Jhalra, Ajmer which culminated into the death of one Idris and registration of 2 FIRs being Nos. 90 and 91 of 1992.
(b) On 14.04.1992, an altercation took place between Khalil Chisti (A-2) and Khurshid Pahalwan - cousin of Aslam Chisti (the complainant in FIR No. 90 of 1992) during a function at the house of one Shabbir on account of old rivalry. On the same evening, Khurshid had called Idris-cousin brother of Shabbir for having the matter resolved by way of a compromise between the two parties. In pursuance of the same, Idris, Shamim, Aslam, Mustqueem, Asif, Sagir and Javed (relatives) proceeded towards the house of Khalil Chisti where they found Khalil Chisti (A-2), Yasir Chisti (A-1), Akil Chisti (A-3) and Farukh Chisti (A-4) who were already present there. On entering the house, they realized that Khalil (A-2) was having sword in his hand and Farukh (A-4) was holding a gun whereas Yasir and Akil were having revolvers and the accused party immediately closed the door from behind and Khalil Chisti (A-2) shouted "no one should escape, kill all of them." On seeing their intention, the complainant party tried to run in order to save their lives at which time Farukh (A-4) fired a shot at Idris which resulted into injury to his right eye. Khalil (A-2) also gave a sword blow to the complainant-Aslam Chisti which struck on his forehead and Yasir and Akil also opened fire. Later on, considering the injured to have been shot dead, the accused persons fled away. Subsequently, Khurshid and Shamim had taken Aslam Chisti and Idris to the hospital where Idris succumbed to his injuries.
(c) On the same day, i.e., on 14.04.1992, Aslam Chisti lodged an FIR being No. 90 of 1992 at Police Station Ganj, Ajmer against Yasir (A-1), Khalil (A-2), Akil (A-3) and Farukh (A-4).
(d) On the same day, at about 10:30 to 11:00 p.m., another FIR being No. 91 of 1992 was registered at P.S. Ganj, Ajmer on the statement made by Akil Chisti, while under treatment, wherein he stated that at about 5:00 to 5:30 p.m., when he along with other persons were sitting in his house, he suddenly noticed pelting of stones on the grills of the house. When all of them went on the roof top to understand the matter, they found Idris, Shamim, Aslam, Mustqueem, Asif, Sagir and Javed standing there duly armed with weapons. On enquiring about the same, Idris stabbed Farukh (A-4) with a knife and Shamim opened fire on Akil (A-3) which missed the target. In the meantime, Akil (A-3) brought a rifle of his father but Sagir, Asif and Javed snatched the same from him and Aslam stabbed him into his waist from behind leading to his collapse. Asif also opened fire on to him which hit Idris. A number of persons had gathered in the neighbourhood on hearing the hue and cry.
(e) After investigation, chargesheets were filed against 4 persons, namely, Yasir, Khalil, Akil and Farukh in FIR No. 90 of 1992 and against 6 persons, namely, Shamim, Aslam, Mustqueem, Asif, Sagir and Javed in Cross FIR No. 91 of 1992 and both the cases were committed to the Court of Additional Sessions Judge (Fast Track) No. 1, Ajmer and were registered as Sessions Case No. 157/2001 (FIR No. 90/1992) and Sessions Case No. 178/2001 (FIR No. 91/1992).
(f) The trial Court, by judgment dated 31.01.2011 in Sessions Case No. 157 of 2001, convicted Farukh Chisti (A-4), Yasir Chisti (A-1) and Akil Chisti (A-3) Under Sections 302 and 324 read with Section 34 of the Indian Penal Code, 1860 (in short 'the Indian Penal Code') whereas Khalil Chisti (A-2) was convicted Under Sections 302 and 324 of the Indian Penal Code. A-1, A-2, A-3 and A-4 were sentenced to undergo RI for life along with a fine of Rs. 20,000/-, in default, to further undergo RI for a period of 6 months for the offence punishable Under Section 302 of Indian Penal Code. They all were further sentenced to undergo simple imprisonment for 2 years along with a fine of Rs. 2,000/-, in default, to further undergo simple imprisonment for 1 month for the offence punishable Under Section 324 read with Section 34 of Indian Penal Code.
(g) On the same day, the trial Court convicted the accused persons in Session Case No. 178 of 2001 and sentenced all of them to suffer RI for 10 years alongwith a fine of Rs. 10,000/-, in default, to further undergo RI for 6 months for the offence punishable Under Section 307 read with Section 149 of Indian Penal Code. They were further sentenced to RI for 2 years Under Section 148 of Indian Penal Code, RI for 3 years with a fine of Rs. 1,000/-, in default, to undergo RI for one month Under Section 452 and RI for 2 years Under Section 324 read with Section 149 of Indian Penal Code. Challenging the said judgment, all the accused persons named in FIR 91 of 1992 filed Criminal Appeal No. 131 of 2011 before the High Court which is still pending.
(h) Challenging the judgment in Session Case No. 157/2001, Yasir Chisti and Akil Chisti filed D.B. Criminal Appeal No. 188/2011, Dr. Mohammad Khalil Chisti filed D.B. Criminal Appeal No. 189 of 2011 and Farukh Chisti filed D.B. Criminal Appeal No. 423 of 2011 before the High Court. By a common judgment dated 20.12.2011, the High Court dismissed all the appeals and affirmed the judgment passed by the trial Court.
(i) Aggrieved by the said judgment, Dr. Mohammad Khalil Chisti preferred Criminal Appeal No. 634 of 2012 and Yasir Chisti and Akil Chisti preferred Criminal Appeal No. 635 of 2012 before this Court.
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Heard Mr. Uday U. Lalit, learned senior counsel for Dr. Mohammed Khalil Chisti -Appellant in Criminal Appeal No. 634 of 2012, Mr. K.T.S. Tulsi, learned senior counsel for Yasir Chisti and Akil Chisti, Appellants in Criminal Appeal No. 635 of 2012, Mr. Rahul Verma, learned Counsel and Jasbir Singh Malik, learned Additional Advocate General for the State in both the appeals and Mr. Mukul Gupta, learned senior counsel for the Union of India in Criminal Appeal No. 634 of 2012.
Contentions:
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After taking us through FIR No. 90 of 1992 and Cross FIR No. 91 of 1992 dated 14.04.1992, the entire material relied on by the prosecution and defence, the decision of the trial Court in Session Case No. 157 of 2001 and Session Case No. 178 of 2001 and the reasoning of the impugned decision of the High Court, Mr. Lalit as well as Mr. K.T.S. Tulsi, learned senior counsel contended that the members of the complainants' party were aggressors, they formed an unlawful assembly armed with various weapons and had climbed upon the roof of their premises in order to beat the accused persons in furtherance of their common object. It is further submitted that the Appellants/accused persons had not committed any offence and whatever they did was in exercise of their right of private defence. There is no evidence on record to show that the accused persons were having any common object to commit murder of the deceased-Idris. They further submitted that the trial Court as well as the High Court failed to take into consideration the fact that the complainant party including Idris, Aslam, Asif, Shamim, Mustqueem, Sagir and Javed were duly armed and had come to the place of the accused persons. In such circumstances, the accused Appellants deserve to get the benefit of right of private defence on their person. They also submitted that there is no explanation by the prosecution as to how Farukh (A-4) and Akil (A-3) sustained injuries. They also contended that the prosecution suppressed the true genesis of the incident.
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On the other hand, learned Counsel for the State submitted that the judgment of the trial Court as well as the High Court is based on evidence and in the light of the settled principles of law. It is pointed out that the accused Appellants, after full preparation, sent a message to Khurshid, Shamim, Idris and other members of the complainant party to meet at their house. It is pointed out that as soon as the members of the complainant party started climbing the stairs of their house and moved towards the roof top, the accused Appellants followed them and inflicted injuries by use of various weapons, consequently, Idris and Aslam were seriously injured and later on Idris succumbed to his injuries. Finally, they submitted that the prosecution has proved its case beyond reasonable doubt and the impugned judgment does not suffer from any infirmity or illegality.
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We have carefully considered the rival submissions and perused all the relevant materials.
Discussion:
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It is not in dispute that in respect of the same incident that took place on 14.04.1992, there had been two FIRs, namely, FIR No. 90 of 1992 and Cross FIR No. 91 of 1992. In these appeals, we are concerned about FIR No. 90 of 1992 in which the present Appellants and one Farukh were implicated as accused. The said FIR was registered on the basis of a complaint made by one Syed Md. Aslam who was examined as PW-3. He is a resident of Mian House, Khadim Mohalla, Ajmer. In the complaint, it has been stated that on 14.04.1992, on the occasion of "Peela Ki Rasm" at the place of Shabbir, an altercation took place between Khalil Chisti (A-2) and Khurshid Pahalwan on account of old rivalry following which Khurshid had called his brother Idris in the evening in order to finally sort out the matter by way of a compromise. When Idris, Shamim-his relative and Md. Aslam Chisti-the complainant went to the house of Khurshid at that time, one Tariq Mohammed informed them that Khalil Chisti...
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