Supreme Court of India
DR. MOHAMMAD KHALIL CHISTIversusSTATE OF RAJASTHAN
- Citation
- 2012 INSC 584
- Decided
- 12 December 2012
- Disposal
- Disposed off
- Bench
- P SATHASIVAM
Holding
Each accused is liable only for his individual act under Section 324 IPC; the murder convictions and the application of Section 34 are set aside.
Summary
The case arose from a 1992 altercation in Ajmer that resulted in the death of Idris and injuries to several persons, leading to two FIRs (cross‑FIRs). The trial court convicted four accused (Yasir, Khalil, Akil and Farukh) under Sections 302 and 324 read with Section 34 of the IPC and sentenced them to life imprisonment. On appeal, the Supreme Court observed that the prosecution failed to explain the injuries sustained by the accused, presented contradictory versions of events, and that the complainants’ party was also armed and aggressive. Consequently, the Court held that Section 34 could not be invoked, each accused could be held liable only for his individual act under Section 324, and the murder convictions were unsustainable. The sentences were reduced to the period already served, with A‑1 and A‑3 released, and A‑2’s conviction modified to Section 324 only. The appeals were disposed of, and directions were given for the return of security deposited by the Pakistani national appellant.
Issues considered
- The prosecution's failure to explain the injuries on the accused – does it vitiate the murder conviction?
- Whether Section 34 IPC (common intention) can be applied when evidence is contradictory and each party acted individually
- Whether the accused are entitled to the defence of private defence
- Effect of contradictory evidence on the reliability of the prosecution case
- The scope and proper exercise of Article 136 of the Constitution in granting special leave
Legislation cited
- Code of Criminal Procedure, 1973s. 161
- Constitution of Indias. 136
- Indian Evidence Act, 1872s. 101, s. 105
- Indian Penal Code, 1860s. 302, s. 324, s. 34
Subjects
private defenceSection 34 IPCcommon intentioncontradictory evidencenon‑explanation of injuriesArticle 136murder convictionconviction modificationcross FIR
Judgment
[2012] 13 S.C.R. 777
DR. MOHAMMAD KHALIL CHISTI A
v.
STATE OF' RAJASTHAN
(Criminal Appeal No. 634 of 2012 etc.)
DECEMBER 12, 2012
B
[P. SATHASIVAM AND RANJAN GOGOi, JJ.]
Penal Code, 1860 - s. 324 - Death of one and injuries
to persons on complainant as well as accused side - Cross-
FIRs - Accused convicted ulss. 302 and 324 rlw. s. 34 /PC C
by courts below - Appeal by three accused - Held: Evidence
suggests that accused were also victims of armed aggression
at the hands of the deceased and complainant party - Non-
explanation of the injuries on the accused shows that
prosecution suppressed the real genesis of the occurrence - D
The two sets of evidence led by the prosecution being
discrepant with each other, the accused would have the
benefit of such discrepancy - Accused can be held
responsible only for their individual acts and not for the acts
with the aid of s. 34 - In view of their individual acts, the E
appellants can only be convicted uls. 324 - Their sentence
reduced to period already undergone.
Criminal Trial:
Non-explanation of injuries on the accused -Effect of - F
Held: Non-explanation of the injuries on accused leads to the
inferences: (1) that the prosecution has suppressed the
genesis of the occurrence;(2) that the witnesses who denied
the presence of the injuries, are unreliable; (3) that if defence
version explains the injuries, it creates doubt on the G
prosecution case - The non-explanation assumes greater
importance where the evidence consists of interested or
inimical witnesses or where the defence gives a version which
competes in probability with that of the prosecution one -
777 H
778 SUPREME COURT REPORTS [2012] 13 S.C.R.
A However, the non-explanation of the injuries may not affect
the prosecution case, where the injuries sustained by the
accused are minor and superficial or where the evidence is
so clear and cogent, that it outweighs the effect of the non-
explanation.
B
Contradictory Evidence - Effect of - Where prosecution
leads two sets of evidence each one contradicting and striking
at the other, accused would have the benefit of such situation
- Both sides can be convicted for their individual acts and
C normally no right of private defence is available to either party.
Constitution of India, 1950 - Article 136 - Scope and
ambit of - Held: Article 136 confers discretionary power to be
exercised sparingly to interfere in cases where grave
miscarriage of justice has resulted - It does not confer a right
D of appeal - The Court in exercise of its powers under Art. 136
not to reopen the findings of the High Court, when there are
concurrent findings of facts, no question of law is involved and
the conclusion is not perverse.
E The Incident In question In the present appeals,
reoulted In death of one person and Injuries to some, on
both sides. Cross FIRs were flied by both the parties. The
appellants-accused along-with accused 'F' were
Implicated In FIR No. 9011992. In the cross-case, six
F accused were prosecuted. The trlal court, In the present
case convicted all the accused uls. 302 and 324 r/w. s.
34 IPC. They were awarded llfe sentence. High Court
confirmed their conviction and sentence.
The accused In the cross-case were tried separately
· G and were convicted by the trlal court ulss. 3071149, 148
and 3241149 IPC. The appeal against the order Is atlll
pending before High Court.
Instant appeals were flied by A-1, A-2 and A·3.
H Disposing of the appeals, the Court
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 779
RAJASTHAN
HELD: 1.1 The analysis of the prosecution case has A
led two sets of evidence. The evidence adduced
suggests that the accused in the present appeals are to
some extent victims of armed aggression at the hands of
the deceased and his companions. The evidence of the
witnesses show that the complainant's party were armed B
with sword, hockey sticks etc., hurled abuses, threw
stones on the inmates and exhorted to kill A-2 and A-4.
Therefore, the appellants are justified in claiming that the
complainants group was responsible for the Incident and
the Injuries caused to them. [Paras 30 and 15] [794-G; c
805-F-H; 806-A]
1.2 PW-3, PW-6, PW-13 and PW-18, the eye-witnesses
did not offer any explanation to the admitted Injuries
received by A·4 and A-3. In the absence of any
explanation by the prosecution, they can be held guilty D
of suppressing the real genesis of the occurrence. No
doubt, they supported the prosecution stand, and relying
on their evidence, even If the Court accepts the case of
tho prosecution, In view of the statement of offlclal
witnesses, namely, PWs 4 and 5, the complalnanto who E
were accused In the cross-case were also rosponslble
for their lndlvldual act. [Paras 31 and 16] [794-Hi 795-C·
Di 806-C·E]
1.3 It Is tho duty of the prosecution to explaln the F
Injuries sustained by the accused and establish the
genesis of the Incident by placlng acceptable materials.
Where the prosecution falls to explaln the Injuries on the
accused, two results follow: (1) that the evldonco of tho
prosecution witness Is untrue and (2) that the lnjurlos
probablllze tho plea taken by tho appellants. In a murdor G
case, non-oxplanatlon of the Injuries sustained by the
accused at about tho time of the occurrence or In the
course of altercation Is a very Important circumstance
from which the court can draw the followlng lnforoncoo:
"(1) that the prosecution has suppressed the genesis and H
780 SUPREME COURT REPORTS [2012] 13 S.C.R.
A the origin of the occurrence and has thus not presented
the true version;(2) that the witnesses who have denied
the presence of the injuries on the person of the accused
are lying on a most material point and therefore their
evidence is unreliable; (3) that in case there is a defence
B version which explains the injuries on the person of the
accused it is rendered probable so as to throw doubt on
the prosecution case." [Paras 27 and 20] [800-A-D; 804-
D-E]
C Lakshmi Singh and Ors. v. State of Bihar (1976) 4 SCC
394 - relied on.
1.4 The omission on the part of the prosecution to
explain the injuries on the person of the accused ·
assumes much greater importance where the evidence
D consists of interested or inimical witnesses or where the
defence gives a version which competes in probability
with that of the prosecution one. However, there may be
cases where the non-explanation of the injuries by the
prosecution may not affect the prosecution case. This
E principle wo.uld apply to cases where the injuries
sustained by the accused are minor and superficial or
where the evidence is so clear and cogent, that it
outweighs the effect of the omission on the part of the
prosecution to explain the injuries. [Para 21] [800-E-G]
F Waman and Ors. v. State of Maharashtra (2011) 7 SCC
295: 2011 (6) SCR 1072- relied on.
1.5 In the present case, there is enough material to
show that in the course of the very same incident A-4 and
G A-3 also sustained injuries. In fact, A-4 sustained grievous
injury by use of sharp edged weapon. However, these
injuries were not explained at all by the prosecution. The
prosecution failed to prove the genesis of the incident
and in fact they suppressed the same. [Paras 27 and 19]
H [799-E; 804-F]
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 781
RAJASTHAN
1.6 The analysis of the materials clearly show that two A
versions of the incident adduced by the prosecution are
discrepant with each other. In such a situation where the
prosecution leads two sets of evidence each one which
contradicts and strikes at the other and shows it to be
unreliable, the result would necessarily be that the Court B
would be left with no reliable and trustworthy evidence
upon which the conviction of the accused might be
based. The accused would have the benefit of such
situation. Both sides can be convicted for their individual
acts and normally no right of private defence is available c·
to either party and they will be guilty of their respective
acts. [Para 32] (806-F-G, H; 807-A]
Raghubir Singh v. State of Rajasthan and Ors. (2011) 12
SCC 235: 2011 (10) SCR 739; Krishnan v. State of Tamil
Nadu (2006) 11 SCC 304: 2006 (4) Suppl. SCR 536; Babula/ D
Bhagwan Khandare and Anr. v. State of Maharashtra (2005)
10 sec 404: 2004 (6) Suppl. SCR 633 - relied on.
1.7 Having regard to the role attributed to A-2, there
is no scope for invoking the applicability of Section 34 E
IPC against him. Even independent witnesses, viz., PWs
4 and 5 do not attribute any overt act to him. Even if the
evidence of prosecution witnesses that A-2 was having
a sword and PW-3 sustained injuries at his instance is
accepted, considering his individual act, he can only be F
convicted u/s. 324 IPC and taking note of his age and of
the fact that he was in custody for about one year and
four months, the ends of justice would be met by altering
the sentence to the period already undergone. [Paras 33
and 38J [807-B; 808-F-G] G
1.8 A-2- being a national of Pakistan, as per the order
of this Court, had deposited a sum of Rs. 5 lakhs as
security with the Registry of this Court for visiting his
home country, i.e., Pakistan. In view of the conclusion
that no further custody is required, the Registry is H
782 SUPREME COURT REPORTS [2012) 13 S.C.R.
A directed to return the said amount to A-2 or his nominee
forthwith. It is further directed that if the passport or any
other document of the appellant is in the custody of the
trial court or any other authority of the Government of
India, they are directed to return the same to him and he
B Is free to return to his country without any restriction.
Taking note of his age and academic qualification etc., to
facllltate such course, the concerned department of the
Government of India Is directed to issue necessary visa
and complete all the formalities for his smooth return to
c his country. [Para 39) [809-A-B, C-EJ
1.9 A-1 and A-3 cannot be punished and fastened the
liability of Individual acts committed by them with the aid
of Section 34 IPC, without acceptable materials. Though
the prosecution witnesses mentioned that these
D appellants had a pistol, they did not state whether anyone
was hit by that pistol fire and no specific evidence was
led In that the shot emanated from the plstol In their hand.
Even PW-3 stated that these appellants fired from their
pistols but no one was hit from that fire. PWs 4 and 5 also
E did not attribute any overt done by them and
categorically stated that the complainant's party was the
armed aggressors. [Para 35 and 36) [807-E-F, H; 808-A]
1.10 In the absence of evidence of fire shots frnm the
F revolvers of A-1 and A-3 and In view of the statement of
PWs 3, 6, 13 and 18 alleging against the present
appellants, In order to bring the matter within a free fight,
both sides have to come armed and prepared to do battle,
must be applied In the present case with the result that
G each accused would be liable for his lndlvldual act' alone.
[Para 37] [808-D·E]
· 1.11 Thus A-1 and A-3, taking note of their Individual
acts, can only be convicted u/s. 324 IPC. In view of the
fact that A-1 and A-3 have served approximately 11 and
H 10 months respectively, the same would be sufficient and
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 783
RAJASTHAN
no further imprisonment is required, hence, both of them A
are directed to be released forthwith, if they are not
required in any other case. [Para 40] [809-F-G]
2. It Is correct that evidence in cross-case cannot be
relied upon. In the present case, neither the trial court nor 8
the High Court relied on the evidence led in the cross-
case but the same were tried separately and In fact appeals
are still pending be·fore the High Court against the
conviction In the cross case. [Para 28] [804-G; 805-B]
Mitthulal and Anr. v. The State of Madhya Pradesh (1975) C
3 sec 529 • referred to.
3. This Court In exercise of Its powers under Article
136 of the Constitution will not reopen the findings of the
High Court when there are concurrent findings of facts o
and there Is no question of law Involved and the
concluslon Is not perverse. Article 136 of the Constitution
does not confer a right of appeal on a party. It only
confers discretionary power on this Court to be
exercised sparingly to Interfere In suitable cases where E
grave mis-carriage of justice has resulted from Illegality
or misapprehension or mistake In reading evidence or
from Ignoring, excluding or Illegally admitting materlal
evidence. [Para 29) [805-C-E]
Sambhu Das alias Bijoy Das and Anr. v. State of Assam F
(201 O) 1o sec 37 4: 201 o (11) SCR 493 -relied on.
Case Law Reference:
(1978) 4 sec 394 relied on Para 20
G
2011 (6) SCR 1072 relied on Para 22
2011 (10) SCR 739 relied on Para 24
2006 (4) Suppl. SCR 636 relied on Para 26
2004 (6) Suppl. SCR 633 relied on Para 26 H
784 SUPREME COURT REPORTS [2012] 13 S.C.R.
A (1975) 3 sec 529 referred to Para 28
2010 (11) SCR 493 relied on Para 29
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
NO. 634 of 2012.
B From the Judgment & Order dated 20.12.2011 of the High
Court of Judicature for Rajasthan bench at Jaipur in D.B.
Criminal Appeal No. 189 of 2011.
WITH
Crl. A. No. 635 of 2012.
c Uday U. Lalit, K.T.S. Tulsi, Mukul Gupta, Jasbir Singh
Malik, MG, Nitin Sangra, Gaurav Agrawal, Ravinder Singti
Aadil Singh Boparai, M. Khan, Ravindra S. Garia, Rahul Verma,
Pragati Neekhra Varun Punia, lrshad Ahmad, Ranjana
Narayan, B.K. Prasad for the appearing parties.
D
The judgment of the Court was delivered by
P. SATHASIVAM, J. 1. These appeals are directed
against the common judgment and order dated 20.12.2011
passed by the High Court of Judicature for Rajasthan, Bench
E 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
F 2001.
2. 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
G 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. 90of1992) during a function at the
house of one Shabbir on account of old rivalry. On the same
H evening, Khurshid had called Idris-cousin brother of Shabbir for
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 785
RAJASTHAN [P. SATHASIVAM, J.]
having the matter resolved by way of a compromise between A
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 B
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 c
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, D
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 E
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 F
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 G
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 H
786 SUPREME COURT REPORTS [2012) 13 S.C.R.
A 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
B 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
C 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-
D 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 IPC'} whereas Khalil Chisti (A-2) was convicted
under Sections 302 and 324 of the IPC. 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
E months for the offence punishable under Section 302 of IPC.
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 IPC.
F
(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
G punishable under Section 307 read with Section 149 of IPC.
They were further sentenced to RI for 2 years under Section 148
of IPC, 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 IPC. Challenging
the said judgment, all the accused persons named in FIR 91
H of 1992 filed Criminal Appeal No. 131 of 2011 before the High
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 787
RAJASTHAN [P. SATHASIVAM, J.]
Court which is still pending. (h) Challenging the judgment in A
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 B
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 C
2012 before this Court. 3) 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 D
· 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: E
4. 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. F
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 G
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
H
788 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 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
B 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
c contended that the prosecution suppressed the true genesis of
the incident.
5. 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
D 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
E 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
F and the impugned judgment does not suffer from any infirmity
or illegality.
6. We have carefully considered the rival submissions and
perused all the relevant materials.
Discussion:
G
7. 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
H in which the present appellants and one Farukh were implicated
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 789
RAJASTHAN [P. SATHASIVAM, J.]
as accused. The said FIR was registered on the basis of a A
complaint made by one Syed Mr!. 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 B
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 c
informed them that Khalil Chisti is calling them for a compromise
following which, all of them, namely, Idris, Shamim, Md. Aslam,
Khurshid, his brother Sagir went to the house of Khalil. On
reaching there, they found that Khalil, Farukh, Yasir and Akil
were present there at home. It has been further stated that D
having entered into the house, the accused party closed the
door from behind and Khalil shouted that "they shou!d not
escape, kill all of them". It has been further stated that Khalil
was armed with a sword and Farukh was carrying a rifle. When
they tried to escape, at that time, Farukh (A-4) opened fire on
Idris (deceased) which hit at his right eye and he fell down. E
Khalil (A-2) gave a blow with the sword to the head of Md.
Aslam Chisti-the complainant which struck on his forehead and
hit his temple and eye. Akil (A-3) and Yasir (A-1), who were
armed with revolvers also opened fire. All the accused persons
ran away and Khurshid and Shamim had taken Idris to the F
hospital where he succumbed to his injuries. The above
statement was recorded at 5.45 p.m. on 14.04.1992.
8. Though we are not directly concerned about the cross
FIR No. 91 of 1992 dated 14.04.1992, in view of the plea and G
the defence of the present appellants, it is desirable to note
down the contents of the same. The complainant in this cross
FIR is Akil Chisti (A-3), the appellant in the present appeal. The
following persons were shown as accused, namely, Idris,
Shamim, Aslam, Mustqueem, Asif, Sagir and Javed. According
to the complainant, Akil Chisti, who is a resident of Baitool, H
790 SUPREME COURT REPORTS [2012] 13 S.C.R.
A Jhalra, Dargah Sharief, Ajmer that on 14.04.1992 at 5 to 5.30
p.m., when he was in the room of Farukh Chisti, they suddenly
noticed pelting of stones on the grills of their house. When they
went on the roof top, they found that Idris, his brother Shamim,
Aslam, Mustqueem, Asif, Sagir and Javed were standing there,
B armed with weapons and Shamim was armed with a country-
made pistol. When Farooq questioned about pelting of stones,
Idris stabbed him with a knife. Shamim opened fire on him
which missed him. It has been further stated that Akil-the
complainant brought a 12-bore licensed rifle of his father but
c Sagir, Asif and Javed snatched it from him and Aslam inflicted
stab wounds in his waist from behind and he fell down. Asif
opened fire from his rifle which missed him and hit Md. Idris. A
number of persons had gathered in the neighbourhood who
raised a clamour "maar diya maar diya". These people
assaulted them by entering inside their house. The above
0
statement was recorded at 10.30 p.m. by SHO Police Station,
Ajmer.
9. It is relevant to note that in respect of FIR No. 90of1992,
the present appellants and one Farukh were convicted and
E sentenced to life imprisonment by the trial Court as affirmed
by the High Court. It is brought to our notice that in respect of
cross FIR No. 91 of 1992, the same trial Judge on the same
day i.e. 31.01.2011 convicted and sentenced all of them for
various offences and the appeals filed against those
F convictions is still pending in the High Court.
10. Now, let us consider the witnesses and materials relied
on by the prosecution and the defence.
Aslam Chisti (PW-3):
G 11. In his evidence, he deposed that deceased Idris was
his cousin and Khurshid and Sahir were also his cousins.
Shamim is his real younger brother. He identified Khalil Chisti
(A-2), a Pakistani citizen in the Court. He was familiar with
accused Farukh, Yasir and Akil. He narrated that he came to
H k.now from his father that some altercation took place between
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 791
RAJASTHAN [P. SATHASIVAM, J.]
Khalil Chisti (A-2) and Khurshid Pahalwan on account of old A
rivalry on the occasion of "Peela ki Rasm" at the place of
Shabbir. He further narrated that in the evening of 14.04.1992,
when he was at his home with his brothers Shamim and Idris,
the son of Khurshid came to their residence and informed that
his father was calling all of them. After reaching there, Khurshid B
asked them to sort out the matter. In the meantime, one Tariq
Mohammad informed them that Khalil Chisti (A-2) has called
them for a meeting. He along with others went to the residence
of Khurshid. From there, he, along with the deceased-Idris,
Shamim, Khurshid, Sagir, Javed, Mustqueem and Asif c
proceeded towards the house of Khalil and on reaching there
they noticed that Khalil was standing at the entrance. On their
entering into the house of Khalil, the other persons present there
closed the door from behind and Khalil shouted to kill all of
them. In order to save their lives, he along with Idris, Shamim,
0
Asif and others climbed over the Baitool Manzil and reached
the roof top of Kaptan house. At that time, accused Khalil,
Farukh, Yasir and Akil came to that place and Khalil was
carrying a bare sword and Farukh was armed with a rifle, Yasir
and Akil were holding rifles. Farukh fixed the target and shot
fired his brother Idris. The bullet had hit on the right eye of Idris E
leading to his collapse there itself. Khalil hit two injuries of sword
in his skull and forehead. Akil and Yasir had also opened fires
from their respective revolvers but they managed to escape.
He admitted that the fire triggered from the revolver of Akil and
Yasir had hit none. In the course of the above narration, PW-3 F
admitted that two police personnel had arrived on the .rooftop,
particularly, when Akil and Yasirwere firing. From the evidence
of PW-3, it is clear that though he narrated the prosecution case
about the involvement of the present appellants as well as the
role of Farukh, he admitted the arrival of two police personnel, G
viz., Bhanwar Singh (PW-4) and Bhanwarlal Sharma (PW-5) on
the roof top when Akil and Yasir were firing.
Bhanwar Singh (PW-4):
12. At the relevant time, PW-4 was posted as LHC at H
792 SUPREME COURT REPORTS (2012] 13 S.C.R.
A Police Post Tripolia Gate, Police Station Ganj, Ajmer. In his
evidence, he has stated that on 14.04.1992, at about 4.30 p.m.,
he received information from wireless control room that a
quarrel has broken out at Jhalra. On receiving the said
information, PW-4 and Bhanwar Lal Sharma (PW-5), reached
B the spot and went to the house of Ahmed Chisti. On enquiry,
they came to know that some altercation took place on the
issue of children in the morning. In order to make a call to the
Control Room, both of them went to the room situated at the
.first floor of house of one Ahmed Chisti and while they were
c returning, they found 5-6 persons duly armed with sword and
hockey sticks climbed upstairs from the ground. They tried to
prevent them but they didn't stop. Out of them, he knew
Shamim, Aslam and Idris. He further deposed that they were
shouting "bring out Farukh", "bring out Pakistani (A-2) and where
he is, we will kill him". He also stated that in spite of their
0
intervention, the assailants reached at the roof top of the second
floor of that house. Both PWs 4 and 5 followed them. He also
stated that he had seen Farukh Chisti (A-4) with a 12 bore gun
with him. Khalil (A-2), Yasir and Akil were having swords with
them. Farukh went to the roof and fired from his gun and the
E shot hit the right eye of Idris, because of which, he died on the
spot. When PW-5 came in between, he also sustained injuries.
He was there at the same place till 11.30 p.m. and after 11.30
p.m. he went to Tripolia Gate, P.S. made necessary entries in
the daily diary in his own handwriting which is Exh. P-3. He left
F constable Bhanwar Lal Sharma (PW-5) at the place of incident.
13. Since PW-4 contradicted his statement made under
Section 161 of the Code of Criminal Procedure, 1973 (in short
'the Code'), the Public Prosecutor sought for permission to
G cross examine him. Even in the cross-examination, he admitted
that he made a statement to police and at the time of incident,
deceased-Idris and others were armed with swords and hockey
sticks and they were going upstairs which is Exh. P-4. Though
PW-4 turned hostile, to some extent, he being a police
constable, on receipt of information and after recording the
H
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 793
RAJASTHAN [P. SATHASIVAM, J.]
same in the diary he left the police station along with Bhanwar A
Lal Sharma (PW-5) another police constable to the spot and
noticed that the complainant parties rushed towards the roof
top with sword and hockey sticks. It is also clear that the present
accused appellants were inside the house of Khalil Chisti and
the complainant's group reached there with arms. It has been B
also made clear that he was accompanied by another
constable PW-5 and after noticing the incident, he rushed to
P.S. Tripoli and made necessary entries leaving PW-5 at the
spot. As rightly pointed out by learned senior counsel for the
appellants, the presence of PWs 4 and 5 at the relevant spot c
and time cannot be disputed. It is also clear from the evidence
of PW-4 that the complainant parties reached the spot armed
with sword and hockey sticks. The presence of the
complainants with arms is the subject matter of Cross FIR No.
91 of 1992.
D
Bhanwar Lal Sharma CPW-51:
14. At the relevant time, he was posted as a police
constable with the police station of Tripolia Gate and was on
duty on 14.04.1992. According to him, on that day, around 4.30
p.m., he and another constable PW-4 received an information E
on wireless from the Police Control Room in Tripolia P.S. that
some fight is going on at Jhalra. On hearing such information,
both of them went to Jhalra and noticed that there was no such
brawl. In order to inform the same to the Control Room, they
went to the house of one Ahmed Chisti by using the stairs. At F
the same time, he noticed Shamim (A-6 in Cross FIR) running
upstairs with hockey stick in his hand, Aslam (A-1 in Cross FIR)
armed with sword and two more people who were armed with
weapons were going upstairs. Both of them (PW-4 and (PW-
5) tried to stop them but they did not stop. Both of them went G
to the Chisti Manzil's room and on the roof, they noticed
Shamim Chisti and others were abusing Farukh and others and
' then they went to Jamil Chisti's room and started pelting
stones. After seeing the seriousness of the situation and to
avoid untoward incident, PW-5 went downstairs to call other H
794 SUPREME COURT REPORTS [2012) 13 S.C.R.
A police staff while PW-4 remained on the roof. He also heard
the sound of a shot being fired. When he came back after
making a call, he saw Idris was lying on the Kaptan's room and
was bodily .:injured. At the place of incident where Idris was
lying, a 12-bore gun was also found 10-15 ft. away from the
B spot. He also explained that based on his message, other police
men came to the spot. He also mentioned the injuries sustained
by him when they were trying to stop Shamim and others on
the stairs. He further narrated that in the midnight, around 12.50
a.m., they came to Tripolia Gate P.S. and made necessary
c entries of their arrival time which is Exh. P-3. Since he
contradicted his statement under Section 161 of the Code, the
Public Prosecutor sought permission of the court in order to
cross-examine him. Even in the cross-examination, he asserted
that at the time of the incident only Shamim (A6 in Cross FIR}
was throwing stones downstairs with full force in Jamil Chisti's
0
house. He also mentioned about the fights and FIRs were
registered against Aslam and Shamim.
15. Like PW-4, PW-5 narrated the incident starting from
the receipt of wireless message till the clash at Jamil DChisti's
E house. It is relevant to point out that PWs 4 and 5 were not
associated with any group, on the other hand, they were
policemen of the Tripoli P.S. having jurisdiction over the area.
The entries in the concerned registers of their departure and
arrival to the police station also prove their statement. In the light
F of their statement, we have carefully analyzed their evidence
and it is clear that the complainant's party came to the spot with
weapons like sword, hockey sticks and few from that group
also pelted stones. These aspects, though the trial Court and
the High Court failed to give credence, the appellants are
G justified in claiming that the complainants group was
responsible for the incident and the injuries caused to them.
Evidence of PWs 6, 13 and 18:
16. At the ~nstance of the counsel for the State, we were
taken through the evidence of PWs 6, 13 and 18. No doubt,
H they supported the prosecution stand and claim that it was the
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 795
RAJASTHAN [P. SATHASIVAM, J.]
appellants who caused the injuries and, particularly, Idris died A
due to the shot fired by Farukh using his revolver. They also
stated that they sustained injuries due to the sword used by
Khalil Chisti (A-2). It is also their claim that the other two
accused Yasir Chisti and Akil Chisti, A-1 and A-3 respectively
used revolver but their shots had hit none. Like PWs 6, 13 and 8
18, PW-3 who sustained sword injury at the instance of A2 also
explained about the prosecution case. It is also seen from the
evidence of PW-3 that Farukh (A-4) also sustained injuries for
which there is no explanation by the prosecution. Relying on the
evidence of PWs 3, 6 13 and 18 even if we accept the case of C
the prosecution, the statement of official witnesses examined
on the side of the prosecution, namely, PWs 4 and 5 clearly
show that the complainants were rushing towards the house of
Chisti with sword and hockey sticks and also pelted stones. In
these circumstances, as rightly pointed out by the counsel for D
the appellants, the complainants who were accused in the
cross case were also responsible for their individual act.
Occurrence at the residence of A2:
17. All the prosecution witnesses, namely, PWs 3, 4, 5, 6
13 and 18 deposed that the incident occurred at the residence F
of A-2, namely, Chisti Manzil. It is also clear from the
categorical statement of two police constables, viz., PWs 4 and
5 that on receipt of a phone call, they left Tripoli PS and
reached the house of Kaptan which is adjacent to Chisti Manzil.
It is clear that it was not the appellants/accused who went out F
of their house with arms, but even according to the prosecution
witnesses, the incident took place at the residence of A-2. It is
also clear that all of them entered the said house with weapons
like sword and hockey sticks which we have already noted from
the evidence relied on by the prosecution.
G
No explanation as to how Farukh (A-4) and Aldi (A3l
sustained ln!urles:
18. The prosecution document, viz., injury report of Farukh
dated 14.04.1992 and injury report of Akil dated 14.04.1992
have been placed as Annexure P-5 (Colly). The injury report H
796 SUPREME COURT REPORTS [2012] 13 S.C.R.
A relating to Farukh Chisti (A-4) issued by the Department of
Medical Jurist, J.L.N. Medical College and Hospital, Ajmer
reads as under:
"Admitted in MSW II, Time-5.45 p.m. date - 14.4.1992,
839/92
B Department of Medical and Health, Rajasthan, Jaipur
Injury Report Form
Accompanied by Police
c Injury Report of Shri Farukh Chisti s/o Shri Sadiq Chisti,
age 26 years,
Caste-Muslim, Resident of Khadim Mohalla, Ajmer,
Police ReportNo .............. dated .......... enclosed.
Nature Size of Hurt Normal Which Identification X-Ray Special
D of injury each on or type of mark of the descrip
of slash, injury which grievous weapon injured Tajbeez -lion
wound, in part caused
crushing inches, of the hurt
etc. length, body
width
and
depth
E
1 2 3 4 5 6 7 8
1. Stab wound 4x0.5 cm x depth Sharp M.F.1 % x % Fresh
in on umbilical region, right cm old scar on
lateral to umbilical obliquely loft side of rlgh1
pieced leg upper third
2. Stab 4x3/4 cm x on loft lcteral
F side of chect woli 6 cm beloV1
oxilla in mid axiliur lino.
3. Stab wound 3x1x? on left
scapular region Injured in the
state of shock
,.
G I I Opinon cfter
surglccl nota I
Sd/-
Dr. V.D. Kavia, MD
Reader, Head of Department
Department of Medical Jurist
H J.L.N. Medical College and Hospital, Ajmer"
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 797
RAJASTHAN [P. SATHASIVAM, J.]
Operative notes of Farukh Chisti reads as follows: A
Operative notes
Patient Name : Farukh Chishti
No. 9741
B
Date : 14/4/92
Surgical Pathology - Stab wound
1. Abdomen
2. Lt. Chest c
3. Back
Anaesthesia - G.A.
Operation - Explanatory haprotomy and repair of the tear in
stomach. D
Incision - Continuation of the stab wound (Rt. Paramedian) -
Onexploration it was found that there was a tear in the anterior
stomach wallup to the serosa. The vessel was bleeding which
was ligated and tearsutured and closed in layers.
E
· The wounds on the chest (Lt. side and back were muscle deep
and suturedin single layer.
Dr. Neera Jain Surgeons
Dr. Sanjay Kolani Dr. B.L. Laddha
Dr. K.K. Dangayeh F
Dr. Paramjeet Singh
Dr. Ashok Naraina
Forwarded in original to SHO, PS Ganj in continuation to IR No.
839/921njury Nos. 2 & 3 are simple and Injury No. 1 is grievous
(dangerous) innature. • G
The injury report of Akil Chisti (A-3) reads as under:
"Admitted in MSW II, Time-5.45 p.m. date - 14.4.1992,
839/92Department of Medical and Health, Rajasthan, Jaipur
H
798 SUPREME COURT REPORTS [2012) 13 S.C.R.
A Injury Report Form
Injury Report of Shri Akil Chisti s/o Shri Jamil Chisti, age 24
years, Caste-Muslim, Resident of Police Report
No .............. dated .......... enclosed.
Nature Size of Hurt Nonnal Which Identification X-Ray Special
B of injury each on or type of mark of the descrip·
of slash, injury which grievous weapon injured Tajbeez -lion
wound, in part caused
crushing inches, of the hurt
etc. length, body
width
and
c deoth
1 2 3 4 5 6 7 8
stab wound 4x1 cm x..... Sharp M 3x1 cm Fresh
Back of !aft region
Obliquely placed
opinion aner Old scar
D surgical note on outer
side of
back and
riaht heal
Sd/- '
Dr. V.D. Kavia, MD
E Reader, Head of Department
Department of Medical Jurist
J.L.N. Medical College and Hospital, Ajmer"
Operative notes of Akil Chisti reads thus:
F "Operative notes
Patient Name : Akil Chisti
R.No. 9740
Date : 14/4/92
G Surgical Pathology -Cut wound back
Anaesthesia - L.A.
Operation - Repair of the wound.
Notes : There was a wound on the back side near midline in
H lumber regionwhich was muscle deep and sutured in layers.
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 799
RAJASTHAN [P. SATHASIVAM, J.]
Dr. Neera Jain Surgeons A
Dr. Sanjay Kolani Dr. B.L. Laddha
Dr. K.K. Dangayeh
Dr. Paramjeet Singh
Dr. Ashok Naraina
Sd/ B
(Dr. K.K. Dangayeh)
Forwarded in original to SHO, PS Ganj in continuation to IR No.
840/921njury No. 1 is simple in nature."
19. The above 'injury reports' of Farukh Chisti and Akil c
Chisti as well as their respective 'operative notes' clearly show
that both of them sustained injuries on 14.04.1992 in the same
incident. The report relating to Farukh shows that he sustained
stab wound injuries due to the use of sharp edged weapons.
Operative notes relating to him also show that injury Nos. 2 and
0
3 are simple and injury no. 1 is grievous (dangerous) in nature.
Injury report relating to Akil Chisti also shows that he sustained
stab wound injuries by use of sharp edged weapon. Though all
the relevant aspects, namely, the injuries sustained by two
accused appellants are available in the materials placed by the E
prosecution, there is no explanation at all as to how they
sustained those injuries. In other words, the prosecution failed
to prove Cthe genesis of the incident and in fact they
suppressed the same.
20. In Lakshmi Singh and Others vs. State of Bihar, (1976) F
4 SCC 394, this Court held that:
•. .. .. . It is well settled that fouler the crime, higher the proof,
and hence in a murder case where one of the accused is
proved to have sustained injuries in the course of the same
occurrence, the non-explanation of such injuries by the G
prosecution is a manifest defect in the prosecution case
andshows that the origin and genesis of the occurrence
had beendeliberately suppressed which leads to the
irresistible conclusion that the prosecution has not come
out with a trueversion of the occurrence. .. . . .. •
H
800 SUPREME COURT REPORTS [2012] 13 S.C.R.
A It is clear that where the prosecution fails to explain the injuries
on the accused, two results follow: (1) that the evidence of the
prosecution witness is untrue and (2) that the injuries
probabilize the plea taken by the appellants. In a murder case,
non-explanation of the injuries sustained by the accused at
s about the time of the occurrence or in the course of altercation
is a very important circumstance from which the court can draw
the following inferences:
"(1) that the prosecution has suppressed the genesis and
theorigin of the occurrence and has thus not presented the
C trueversion;
(2) that the witnesses who have denied the presence of
theinjuries on the person of the accused are lying on a
mostmaterial point and therefore their evidence is
unreliable; (3) that in case there is a defence version which
D explains theinjuries on the person of the accused it is
rendered probableso as to throw doubt on the prosecution
case."
21. It is further clear that the omission on the part of the
prosecution to explain the injuries on the person of the accused
E assumes much greater importance where the evidence
consists of interested or inimical witnesses or where the
defence gives a version which competes in probability with that
of the prosecution one. However, there may be cases where
the non-explanation of the injuries by the prosecution may not
F affect the prosecution case. This principle would apply to cases
where the injuries sustained by the accused are minor and
superficial or where the evidence is so clear and cogent, that
it outweighs the effect of the omission on the part of the
prosecution to explain the injuries.
G 22. In Waman and Others vs. State of Maharashtra,
(2011) 7 SCC 295 wherein one of us (P. Sathasivam, J.)
reiterated the very same principles and held that:
"36. Ordinarily, the prosecution is not obliged to explain
eachinjury on an accused even though the injuries might
H
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 801
RAJASTHAN [P. SATHASIVAM, J.]
havebeen caused in the course of occurrence, if the A
injuries areminor in nature, however, if the prosecution fails
to explain agrievous injury on one of the accused persons
which is established to have been caused in the course
of the same occurrence then certainly the court looks at
the prosecutioncase with a little suspicion on the ground B
that the prosecutionhas suppressed the true version of the
incident. However, ifthe evidence is clear, cogent and
creditworthy then non-explanation of certain injuries
sustained by the deceased orinjury on the accused ipso
facto cannot be the basis to discardthe entire prosecution c
case."
23. Mr. Tulsi, learned senior counsel for the appellants in
Criminal Appeal No. 635 of 2012 contended by pointing out
that since the complainant's were the aggressors, armed with
sword, hockey sticks and pelted stones, the appellants/accused D
are entitled to avail the right of private defence for which he
relied on various principles enunciated by this Court.
24. In Raghubir Singh vs. State of Rajasthan and Ors.
(2011) 12 sec 235, the following conclusion in para 16 has
been pressed into service: E
"16. In the light of the facts that have been enumerated
above, itwould be seen that the observations of the High
Court that bothsides had come to do battle appears to be
justified as this is anassessment on an appreciation of the
evidence which cannot besaid to be palpably wrong so as F
to invite the intervention of thisCourt. The observation in
Gajanand case that in order to bring thematter within a
free fight both sides have to come armed andprepared to
do battle must be applied in the present case with theresult
that each accused would be liable for his individual act." G
25. In Krishnan vs. State of Tamil Nadu, (2006) 11 SCC
304, the following principles have been relied on:
"15. It is now well settled that the onus is on the accused
to establish that his action was in exercise of the right of H
802 SUPREME COURT REPORTS [2012) 13 S.C.R.
A privatedefence. The plea can be established either by
letting indefence evidence or from the prosecution
evidence itself, butcannot be based on speculation or mere
surmises. The accused need not take the plea explicitly.
He can succeed inhis plea if he is able to bring out from
B the evidence of theprosecution witnesses or other
evidence that the apparentcriminal act was committed by
him in exercise of his right ofprivate defence. He should
make out circumstances that would have reasonably
caused an apprehension in his mindthat he would suffer
c death or grievous hurt if he does notexercise his right of
private defence. There is a clear distinction between the
nature of burden that is cast on an accused under Section
105 of the Evidence Act (read with Sections 96 to 106 of
the Penal Code) to establish a plea ofprivate defence and
the burden that is cast on the prosecution under Section
D
101 of the Evidence Act to proveits case. The burden on
the accused is not as onerous as that which lies on the
prosecution. While the prosecution is requiredto prove its
case beyond a reasonable doubt, the accused
candischarge his onus by establishing a preponderance
E of probability (vide Partap v. State of U.P, Salim Zia v.
State of U.P. and Mohinder Pal Jolly v. State of Punjab.
16. In Sekar v. State this Court observed: (SCC p. 355)
"A plea of right of private defence cannot be based on
surmises and speculation. While considering whether the
F
rightof private defence is available to an accused, it is not
relevantwhether he may have a chance to inflict severe and
mortalinjury on the aggressor. In order to find whether right
ofprivate defence is available or not, the injuries received
by theaccused, the imminence of threat to his safety, the
G injuries caused by the accused and the circumstances
whether theaccused had time to have recourse to public
authorities are allrelevant factors to be considered.
Whether in a particular setof circumstances, a person
acted in the exercise of the rightof private defence, is a
H
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 803
RAJASTHAN [P. SATHASIVAM, J.]
question of fact to be determined onthe facts and A
circumstances of each case. No test in the abstract for
determining such a question can be laid down.
lndetermining this question of fact, the court must consider
allthe surrounding circumstances. It is not necessary for
theaccused to plead in so many words that he acted in self- B
defence. If the circumstances show that the right of
privatedefence was legitimately exercised, it is open to the
courtto consider such a plea. In a given case, the court
canconsider it even if the accused has not taken it, if the
same is available to be considered from the material on c
record."
(emphasis supplied)
17. The above legal position was reiterated in Rizan v.
State of Chhattisgarh. After an exhaustive reference to
several decisions of this Court, this Court summarised the D
nature ofplea of private defence required to be put forth
and thedegree of proof in support of it, thus: (SCC pp. 670-
71, para13)
"Under Section 105 of the Evidence Act, 1872, the burden
ofproof is on the accused, who sets up the plea of self- E
defence.and, in the absence of proof, it is not possible for
the court topresume the truth of the plea of self-defence.
The court shallpresume the absence of such
circumstances. It is for theaccused to place necessary
material on record either byhimself adducing positive F
evidence or by eliciting necessaryfacts from the witnesses
examined for the prosecution. An accused taking the plea
of the right of private defence isnot required to call
evidence; he can establish his plea byreference to
circumstances transpiring from the prosecution evidence G
itself. The question in such a case would be a question of
assessing the true effect of the prosecution evidence, and
not a question of the accuseddischarging any burden.
When the right of private defence ispleaded, the defence
must be a reasonable and probableversion satisfying the H
804 SUPREME COURT REPORTS (2012) 13 S.C.R.
A court that the harm caused by theaccused was necessary
for either warding off the attack orfor forestalling the further
reasonable apprehension from theside of the accused. The
burden of establishing the plea ofself-defence is on the
accused and the burden stands discharged by showing
B preponderance of probabilities in favour of that plea on the
basis of the material on record ....
The accused need not prove the existence of the right
ofprivate defence beyond reasonable doubt. It is enough
for .. him to show as in a civil case that the preponderance
C ofprobabilities is in favour of his plea."
(emphasis supplied)"
26. In Babula/ Bhagwan Khandare and Another vs. State
of Maharashtra, (2005) 10 SCC 404, this Court held that non-
explanation of the injuries sustained by the accused at about
D the time of occurrence or in the course of altercation is a very
important circumstance. It was further held that the right of self
defence is a very valuable right, serving a social purpose and
should not be construed narrowly.
27. It is clear that it is the duty of the prosecution to explain
E the injuries sustained by the accused and establish the genesis
of the incident by placing acceptable materials. In the case on
hand, we have already pointed out there is enough material to
show that in the course of the very same incident Farukh (A-4)
and Akil (A-3) also sustained injuries. In fact, Farukh sustained
F grievous injury by use of sharp edged weapon. However, these
injuries were not explained at all by the prosecution.
28. Mr. Jasbir Singh Malik, learned counsel for the State
by relying on a decision of this Court reported in Mitthu/af and
Another vs. The State of Madhya Pradesh, (1975) 3 SCC 529
G submitted that evidence in cross case cannot be relied upon.
It is true that in the said decision, this Court held that it has not
accepted the procedure followed by the High Court which has
based its conclusion not only on the finding recorded in the case
against the appellants therein and the four other accused but
H also taken into account the evidence recorded in the cross case
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 805
RAJASTHAN [P. SATHASIVAM, J.]
against Ganpat, Rajdhar and others. This Court held that the A
course adopted by the High Court was clearly impermissible.
There is no dispute about the said proposition and in fact in
the case on hand, neither the trial court nor the High Court relied
on the evidence led in the cross case but the same were tried
separately and in fact appeals are still pending before the High B
Court against the conviction in the cross case.
29. The other decision relied on by the State counsel is
reported in Sambhu Das alias Bijoy Das and Another vs.
State of Assam, (2010) 10 SCC 374 which shows that this
Court in exercise of its powers under Article 136 of the C
Constitution will not reopen the findings of the High Court when
there are concurrent findings of facts and there is no question
of law involved and the conclusion is not perverse. The above
proposition holds good. We also reiterate that Article 136 of
the Constitution does not confer a right of appeal un a party. It D
only confers discretionary power on this Court to be exercised
sparingly to interfere in suitable cases where grave mis-
carriage of justice has resulted from illegality or
misapprehension or mistake in reading evidence or from
ignoring, excluding or illegally admitting material evidence. E
Summary:
30. The analysis of the prosecution case, undoubtedly, has
led two sets of evidence. The evidence adduced suggest that
the accused in the present appeals are to some extent victims
of armed aggression at the hands of the deceased and his F
companions. We have pointed out that Tariq Mohammad (PW-
1) deposed that he saw Idris (deceased) with a knife in his
hand, Mohd. Aslam (PW-3), Sagir (PW-6), Shamim (PW-18)
and others armed with sticks left for the house of the Farukh
(A-4). It was also deposed by him that he tried to stop Idris and G
others but in vain. Bhanwar Singh (PW-4) and Bhanwar Lal
Sharma (PW-5) -the police constables, examined on the side
of the prosecution, were present at the scene of offence. We
have already dealt with the evidence of these two witnesses
which clearly show that the complainant's party, i.e., accused H
806 SUPREME COURT REPORTS [2012) 13 S.C.R.
A in FIR No. 91 of 1992 were armed with sword, hockey sticks
etc. and entered into Chisti Manzi!, hurled abuses, threw stones
on the inmates and exhorted to kill Khalil Chisti (A-2) and
Farukh (A-4). These persons also deposed that Idris
(deceased) and the accused in FIR No. 91 of 1992 were the
B aggressors in 'the incident. PWs 4 & 5 were categorized as
independent witnesses by the trial Court. Even in their evidence,
they did not attribute any specific overt act to Khalil (A-2). M.A.
Tariq 1.0. (PW-25) also deposed that the complainant's party
forcibly entered the house of the appellants herein with the intent
c to attack them.
31. Mohd. Aslam (PW-3), Sagir Ahmed (PW-6), Sayeed
Javed (PW-13) and Shamim (PW-18) were examined as eye
witnesses to the occurrence. Admittedly, none of them offered
any explanation to the admitted injuries received by Farukh (A-
D 4) and Akil (A-3). We have already adverted to the details as
to the injury report relating to these persons. In the absence of
any explanation by the prosecution, we are of the view that they
are guilty of suppressing the real genesis of the occurrence.
The trial Court had also condemned the evidence of PW-18 for
E narrating a parrot like version and also pointed out numerous
improvements made.
32.The analysis of the materials clearly show that two
versions of the incident adduced by the prosecution are
discrepant with each other. In such a situation where the
F prosecution leads two sets of evidence each one which
contradicts and strikes at the other and shows it to be
unreliable, the result would necessarily be that the Court would
be left with no reliable and trustworthy evidence upon which the
conviction of the accused might be based. Though the accused
G would have the benefit of such situation and the counsel
appearing for the appellants prayed for acquittal of the
appellants of all the charges, in view of the principles which we
have already discussed, we are of the view that each accused
can be fastened with individual liability taking into consideration
th1e specific role or part attributed to each of the accused. In
H other words, both sides can be convicted for their individual
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 807
RAJASTHAN [P. SATHASIVAM, J.]
acts and normally no right of private defence is available to A
either party and they will be guilty of their respective acts.
33. Having regard to the facts and circumstances of the
role attributed to Khalil (A-2), we are of the view that there is·
no scope for invoking the applicability of Section 34 IPC
against him. Even independent witnesses, viz., PWs 4 and 5 B
do not attribute any overt act to him.
34. As rightly pointed out by the learned counsel for the
appellants, in the light of the case and cross-case, it would be
in the fitness of things that the respective appeals preferred by
the appellants against Session Case No. 157 of 2011 and the C
one preferred by the convicts in Sessions Case No. 178 of
2011 ought to have been heard and disposed of simultaneously
by the High Court. Unfortunately, such recourse has not been
adopted by the High Court and we were informed that the other
appeal (Crl. Appeal No. 131 of 2011) relating to Sessions D
Case No. 178 of 2011 is still pending on the file of the High
Court.
35. Coming to the other accused, namely, Yasir Chisti (A-
1) and Akil Chisti (A-3), they cannot be punished and fastened
the liability of individual acts committed by them with the aid of E
Section 34 IPC without acceptable materials. Though the
prosecution witnesses mentioned that these appellants had a
pistol, they did not state whether anyone was hit by that pistol
fire and no specific evidence was led in that the shot emanated
from the pistol in their hand. Even Mohd. Aslam (PW-3) -the F
informant, stated before the Court that these appellants fired
from their pistols but no one was hit from that fire.
36. As discussed earlier, the evidence of PWs 4 & 5 -
police constables, clearly shows that the complainant's party
was armed with sword and hockey sticks and were abusing and G
pelting stones. Sagir (PW-6), though deposed that the present
appellants had a revolver and they fired from that pistol, without
telling whether anybody was injured from such firing. PW-4 -
one of the prosecution witnesses, police constable, had denied
:-Jthat these appellants had revolvers, in fact, PWs 4 and 5 did H
808 SUPREME COURT REPORTS [2012] 13 S.C.R.
A not attribute any overt done by the appellants, i.e., A-1 and A-
3 and categorically stated that the complainant's party was the
armed aggressors. It is relevant to point out that on the same
day in Sessions Case No. 178 of 2001, the informant along
with five other co-accused was convicted under Sections 307,
B 324, 326, 452 and 148 IPC read with Section 149 IPC. We
are also satisfied that though the prosecution witnesses have
stated that these appellants were having revolvers, the evidence
of PWs 4 & 5 clearly shows that the complainant's party were
aggressors and the present appellants were not carrying any
c revolver.
37. In the light of the facts that have been enumerated
above, particularly, from the evidence of PWs 4 & 5 - police
constables attached to the Tripolia Police Chowki, P.S. Ganj,
and the materials abundantly show that the deceased and the
o complainant's party were also armed with sword and hockey
sticks. In the absence of evidence of fire shot from the
revolvers of A-1 and A-3 and in view of the statement of PWs
3, 6, 13 & 18 alleging against the present appellants, in order
to bring the matter within a free fight both sides have to come
E armed and prepared to do battle must be applied in the present
case with the result that each accused would be liable for his
individual act alone.
Conclusion:
38. In the light of the above discussion, even if we accept
F the evidence of prosecution witnesses that A-2 was having a
sword and PW-3 sustained injuries at his instance, considering
his individual act, he can only be convicted under Section 324
of IPC and taking note of his age and of the fact that he was in
custody from 14.04.1992 till 09.05.1992 during the trial and
G again from 31.01.2011 to 12.04.2012 (roughly one year and
four months), we feel that the ends of justice would be met by
altering the sentence to the period already undergone. The
conviction and sentence is modified to the extent mentioned
above and Criminal Appeal No. 634 of 2012 is disposed of
H accordingly.
DR. MOHAMMAD KHALIL CHISTI v. STATE OF 809
RAJASTHAN [P. SATHASIVAM, J.]
39. By order dated 10.05.2012, this Court directed Dr. A
Mohammad Khalil Chisti - being a national of Pakistan-
appellant in Crl.A. No. 634 of 2012 or his nominee to deposit
a sum of Rs. 5 lakhs as security with the Registry of this Court
within a period of two weeks from that date and on fulfilling the
above condition, the appellant was permitted to leave India and B
visit his home country, i.e., Pakistan. It is informed to us that
the said condition has been complied with and an amount of
Rs. 5 lakhs was deposited. By another order dated 17.09.2012,
this Court directed the Registry to invest the amount deposited
by the appellant in an interest bearing account in any c
Nationalised Bank initially for a period of one year. In view of
our conclusion that no further ct1stody is required, the Registry
is directed to return the said amount to Dr. Mohammed Khalil
Chisti or his nominee forthwith. It is further directed that if the
passport or any other document of the appellant is in the D
custody of the trial Court or any other authority of the
Government of India, they are directed to return the same to
him and he is free to return to his country without any restriction.
Taking note of his age and academic qualification etc., to
facilitate such course, the concerned department of the
Government of India is directed to issue necessary visa and E
complete all the formalities for his smooth return to his country.
40. In the light of the evidence and conclusion in respect
of Yasir Chisti (A-1) and Akil Chisti (A-3), the appellants in
Criminal Appeal No. 635 of 2012, taking note of their individual F
acts, they can only be convicted under Section 324 of IPC and
also in view of the fact that A-1 and A-3 have served
approximately 11 and 10 months respectively, the same would
be sufficient and no further imprisonment is required, hence,
both of them are directed to be released forthwith, if they are G
not required in any other case.
41. With the above modification, both the appeals are
disposed of accordingly.
K.K.T. Appeals disposed of.
H
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