Bombay High Court
Yahya Khan S/O Kayyum Khan Pathan And … vs The State Of Maharashtra on 7 March, 2025
Author: R.G. Avachat
Bench: R.G. Avachat
2025:BHC-AUG:7195
APEAL-841-15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 841 OF 2015
AND CRIMINAL APPLICATION NO. 4902 OF 2024
1. Yahya Khan Kayyum Khan Pathan
Age: 30 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
2. Shiraj Khan Kayyum Khan Pathan
Age: 28 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad ..APPELLANTS
VERSUS
State of Maharashtra ..RESPONDENT
AND CRIMINAL APPEAL NO. 846 OF 2015
1. Shaheenbee Kayyum Khan Pathan
Age: 45 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
2. Naeembee Nawaj Khan
Age: 45 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
3. Hameed Khan Daud Khan Copdar
Age: 52 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
4. Sharookh Hameed Khan
Age: 19 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
5. Abubakar Jabbar Khan Pathan
Age: 22 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
6. Husen Khan Nawaj Khan
Age: 45 years, Occu.: Business,
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R/o Near Waluj Jama Masjid,
Aurangabad ..APPELLANTS
VERSUS
State of Maharashtra ..RESPONDENT
AND CRIMINAL APPEAL NO. 847 OF 2015
1. Kayyum Khan Mehtab Khan
Age: 55 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
2. Ayyub Khan Noor Khan Chopdar
Age: 46 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad ..APPELLANTS
VERSUS
State of Maharashtra ..RESPONDENT
AND CRIMINAL APPEAL NO. 835 OF 2015
1. Rizawan Rashid Pathan
Age: 23 years, Occu.: Service,
R/o Waluj, Tq. Gangapur,
Dist. Aurangabad
2. Ejajkhan Asmatkhan Pathan
Age: 32 years, Occu.: Contractor,
R/o Ganesh Colony, Aurangabad
3. Shaikh Firoj Shaikh Yusuf
Age: 33 years, Occu.: Business,
R/o Indira Nagar, Baijipura,
Lane No.20, Aurangabad
4. Asiyabegum Rashidkhan Pathan
Age: 48 years, Occu.: Household,
R/o Jama Masjid, Waluj,
Tq. Gangapur, Dist. Aurangabad
5. Aslam Asmatkhan
Age: 34 years, Occu.: Contractor,
R/o Rahemaniya Colony,
Aurangabad
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6. Khalilkhan Habibkhan
Age: 45 years, Occu.: Centering Work,
R/o Waluj, Tq. Gangapur,
Dist. Aurangabad ..APPELLANTS
VERSUS
1. Kayyum Khan Mehtab Khan
Age: 55 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
2. Nawaj Khan Nabab Khan Pathan (Abated)
3. Ayyub Khan Noor Khan Chopdar
Age: 46 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
4. Shaheenbee Kayyum Khan Pathan
Age: 45 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
5. Naeembee Nawaj Khan
Age: 45 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
6. Hameed Khan Daud Khan Copdar
Age: 52 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
7. Yahya Khan Kayyum Khan Pathan
Age: 30 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
8. Sheraj Khan Kayyum Khan Pathan
Age: 28 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
9. Shahrookh Hameed Khan
Age: 19 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
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10. Abubakar Jabbar Khan Pathan
Age: 22 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
11. Husen Khan Nawaj Khan
Age: 45 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
12. State of Maharashtra
Through : Waluj Police Station,
Waluj, Dist. Aurangabad ..RESPONDENTS
AND CRIMINAL APPEAL NO. 880 OF 2015
State of Maharashtra
Through Waluj Police Station,
Dist. Aurangabad ..APPELLANT
VERSUS
1. Kayyum Khan Mehtab Khan
Age: 55 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
2. Nawaj Khan Nabab Khan Pathan (Abated)
3. Ayyub Khan Noor Khan Chopdar
Age: 46 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
4. Shaheenbee Kayyum Khan Pathan
Age: 45 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
5. Naeembee Nawaj Khan
Age: 45 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
6. Hameed Khan Daud Khan Copdar
Age: 52 years, Occu.: Business,
4 / 21
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R/o Near Waluj Jama Masjid,
Aurangabad
7. Yahya Khan Kayyum Khan Pathan
Age: 30 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
8. Sheraj Khan Kayyum Khan Pathan
Age: 28 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
9. Shahrookh Hameed Khan
Age: 19 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
10. Abubakar Jabbar Khan Pathan
Age: 22 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad
11. Husen Khan Nawaj Khan
Age: 45 years, Occu.: Business,
R/o Near Waluj Jama Masjid,
Aurangabad ..RESPONDENTS
....
Mr. N.S. Ghanekar, Advocate for appellants in APEAL/841/15, 846/15,
847/15 and APPLN/4902/24
Mr. S.S. Halkude, Advocate for appellant in APEAL/835/15
Mrs. S.N. Deshmukh, A.P.P. for appellant - State in APEAL/880/2015 and for
respondent - State in all other matters
....
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 27th FEBRUARY, 2025
PRONOUNCED ON : 07th MARCH, 2025
JUDGMENT ( PER : R.G. AVACHAT,J. ) :
1. This group of five appeals is decided by this common judgment
since the challenge therein is to one and the same judgment of conviction
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and order of consequential sentence dated 03rd October, 2015 passed by the
Court of Additional Sessions Judge, Vaijapur (‘trial Court’) in Sessions Case,
No. 116 of 2012. Criminal Appeal Nos. 841 of 2015, 846 of 2015 and 847 of
2015 have been preferred against conviction while Criminal Appeal No. 880
of 2015 by the State and Criminal Appeal No. 835 of 2015 by the victim, have
been preferred for enhancement of sentence.
2. The charge (Exh.52) was framed against eleven accused
persons. Accused No.2 passed away pending trial. The case, therefore,
stood abated against him. The prosecution examined twenty-two witnesses
and adduced in evidence certain documents. The appellants/convicts
examined seven witnesses in their defence. On appreciation of the evidence
in the case, the trial Court convicted the original accused nos. 7 and 8
(Criminal Appeal No.841 of 2015) for offence punishable under Section 302
of the Indian Penal Code (I.P.C.), and therefore, sentenced them to suffer
imprisonment for life and to pay fine of Rs.2,000/- each with default
stipulation. While rest of the accused were convicted for the offence
punishable under Section 324 of the I.P.C., and therefore, sentenced to
suffer rigorous imprisonment for three years and to pay fine of Rs.1,000/-
each with default stipulation. All the accused persons, however acquitted of
the offences punishable under Sections 143, 147, 148, 307, 326 read with
Section 149 of the I.P.C. Except Accused Nos. 7 and 8, rest have also been
acquitted of the offence punishable under Section 302 of the I.P.C. Hence,
all these appeals.
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3. The facts, in brief giving rise to the present appeals are as
follows :-
The appellants were residing near Jama Masjid, Waluj,
Aurangabad. PW 2 – Rizwan (informant) alongwith his family members
would also reside at Waluj. There is an open plot adjoining residence of the
informant. It was the case of the appellants/convicts that there was another
plot adjoining the said plot. There was no boundary intervening the two plots
so as to identify ownership of the respective plots. On the given day i.e. on
06th April, 2011 by little past 12:30 p.m., the informant and his family
members brought construction material on the plot. They had already invited
their number of relations with a view to ensure that any objection raised to
the proposed construction shall be resisted. As such, the informant and his
family members and relations, who were more than 10-20 persons,
assembled on the plot.
4. Yahya Khan (original accused no.7) came on the plot and asked
them not to proceed with construction for erection of a shed. He claimed title
to the said plot. The other side did not listen. All the appellants, since have
their respective residences adjoining the other plot, came on the site one by
one. They were armed with knifes, sticks and kattis. Oral wrangle took place
between the two factions. The appellants mounted attack. The appellants
(Yahya Khan and Shiraj Khan) assaulted Mohsin. Other appellants
assaulted other injured on the vital parts of the body, either with knives or
with sticks. The appellants then left the site. The injured were rushed to
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Ghati hospital. Mohsin succumbed to the injuries. PW 2 – Rizwan lodged
the F.I.R. (Exh.79).
5. Crime, vide C.R. No.39 of 2011 was registered for the offences
punishable under Sections 302, 307, 326, 324, 143, 147, 148 and 149 of the
I.P.C. Crime scene panchanama (Exh.77) was drawn. Mortal remains of
Mohsin was subjected to inquest and autopsy as well. The appellants were
arrested. Clothes on the persons of the appellants and deceased too, were
seized. Pursuant to the disclosure statements made by the appellants
(Shainbi, Naimbi, Kayyum, Yahyakhan, Siraj, Ayyubkhan and Abubakar),
weapons wielded in the incident were seized. All the seized articles were
sent to R.F.S.L., Aurangabad. The C.A. reports were received. Statements
of the persons acquainted with the facts and circumstances of the case were
recorded. On completion of investigation, the appellants were proceeded
against by filing the charge-sheet.
6. The charge (Exh.52) was framed. The appellants pleaded not
guilty. Initially their defence was of false implication. On appreciation of the
evidence in the case, the trial Court convicted and consequently sentenced
the appellants as stated above.
7. Learned counsel for the appellants would submit that the evidence
on record would indicate that both the factions were the relations of each
other. They had cordial relations for long until the time of the incident. The
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injured had already summoned their number of relatives with a view to put up
resistance. The plot was owned by the appellants. Family of PW 2 – Rizwan
(informant) did not have any document of title to the said plot. Post 12:00
noon, the construction material was brought at the site. As such, there were
articles like spade, stones, pick axe, iron rods, tin sheets, etc. They did not
listen to the request of Yahya Khan. They proceeded with the construction.
The quarrel, therefore, ensued. The appellants did not have intention either
to kill or cause injury. The incident happened in a spur of moment. It was
resulted in exercise of right of private defence of own property. Learned
counsel relied on Exceptions 2 and 4 to Section 300 of the I.P.C. and urged
for dealing with the appellants accordingly.
8. Learned A.P.P. and learned counsel for the victim would, on the
other hand, submit that the appellants suffered no injury. As such, there was
no question of fight. No Exception 4 could, therefore, be invoked. The injury
certificates of the deceased and the victims indicate them to have suffered
injuries on the vital parts. The injuries were caused with sharp weapons.
Intention of the convicts was writ large. Learned counsel would submit that
for the offence punishable under Section 307 of the I.P.C., it was not
necessary that injury should be caused and it should be grievous one. They
would submit that nature of weapons and the part of body on which the injury
was caused would demonstrate intention of the appellants was attempt to
commit murder. All the appellants had come together. The same
demonstrates common object was to do away with the rivals (victims).
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Learned counsel took us through the definition of the offence of murder and
the quoted judgment of the Supreme Court in the case of Virsa Singh vs.
State of Punjab , AIR 1958 SC 465 . They also relied on following set of
authorities to ultimately urge for enhancing the sentence of the convicts :-
1. Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of A.P. (2006) 11 SCC 444
2. Jai Prakash Vs. State (Delhi Administration) (1991) 2 SCC 32
3. Anda and Ors. Vs. State of Rajasthan AIR 1966 SC 148
4. State of Maharashtra Vs. Balram Bama Patil and Ors. AIR 1983 SC 305(1)
5. Awadhesh Kumar Vs. State of UP and Anr. (2019) 10 SCC 323
6. State of UP Vs. Faquirey (2019) 5 SCC 605
7. Vasant Vithu Jadhav Vs. State of Maharashtra (2004) 9 SCC 31
8. Baleshwar Mahto and Anr. Vs. State of Bihar and Anr (2017) 3 SCC 152
9. State of Rajasthan Vs. Kanhaiya Lal (2019) 5 SCC 639
9. Let us advert to the evidence on record and appreciate the same.
PW 19 – Dr. Kailash conducted autopsy on the mortal remains of
Mohsin. He noticed following external injuries on Mohsin’s body :-
“(I) Evidence of stab wound over lower front of chest on right side of
size 2.5 x 1 x 5 cm. at coastal arch, in midelavicular line with
medial angle being acute and lateral angle being obtuse, directed
straight inwards. Stab wound is situated 7 cm., right lateral to
midline.
(II) Evidence of stab wound over lower front of chest on left side of
size 7 x 2 cm., into cavity deep, situated 1 cm., left lateral to
midline, medial angle acute, lateral angle obtuse.
Injury Nos. I and II are horizontally oblique with clean cut edges.
(III) Lacerated wound over right frontal area of size 2.5x1cm., into
bone-deep, contuse margin irregular blood infiltrate, vertical.
(IV) Abrasion of size 2.5 x 1 cm., on lower back of left side at
intrascapular area, 7 cm., left lateral to midline, blood infiltrated
irregular, reddish. All these injuries were antemortem in nature.”
According to him, Injury nos. 1 and 2 were possible by article
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no.39. He issued postmortem report (Exh.153). In his opinion, Mohsin died
of haemorrhagic shock due to stab injury to liver and left lung.
10. PW 22 – Dr. Farina was the Medical Officer with Ghati Hospital.
She was on duty on 06th April, 2011. She examined the injured and issued
their medical certificates. We propose to refer to each and every injury
certificate, as follows :-
Name Injury Nature Weapon
Aziz Asmat Khan CLW to forehead of size 3x1x1cm. Simple Hard object
(Exh.184)
Rizwankhan Pathan CLW over scalp of size 3x1x1cm. Simple Hard object
(Exh.185)
Khalil Habibkhan CLW over left side abdomen of size Simple Hard Object
(Exh.186) 2x1x1 cm.
Aslamkhan Hasmatkhan One sharp injury at left side of chest Simple Hard & Blunt
(Exh.187) Two stab injuries over left side chest object
measuring 3x2x2 cm. & 2x2x1 cm.
Asifabegum Stab injury at neck left side of size Simple Sharp weapon
(Exh.188) 8x2x2 cm.
Firoj Qureshi CLW over occipital region of size Simple Hard & Blunt
(Exh.189) 3x2x1 cm. object
11. The appellants did not dispute the incident. Original accused nos.
7 and 8 have come with the defence in the nature of the case falling under
Exceptions 2 and 4 to Section 300 of I.P.C. The other appellants are also
alleged to have exercised the same right. Admittedly, except accused nos. 7
and 8, no other appellant is alleged or proved to have assaulted the
deceased. True, all of them were there when the incident took place. Cross-
examination of the injured witnesses, however indicate the appellants arrived
at the crime scene one after the other. A quarrel ensued between the two
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factions first. Yahya Khan had asked PW 2 – Rizwan not to go ahead with
the proposed construction. In the light of this and the other admissions
elicited from the cross-examination of the injured witnesses, we have to
conclude whether the defence has been made out. Original accused nos. 7
and 8 have been behind the bars for about fourteen years.
12. Since the evidence of the informant and the injured witnesses is
consistent with each other, with a view to avoid repetition, we do not propose
to reproduce their evidence in the examination-in-chief, except of PW 2 –
Rizwan (informant).
13. It is in the evidence of PW 2 – Rizwan that by little past 01:00 p.m.
on 06th April, 2011, he was cleaning the said plot. Appellant – Yahya Khan
came there and told him that he is the owner of the plot and do not clean the
same. PW 2, alongwith Jalil Khan went to the police station and lodged the
complaint. According to PW 2, the plot was purchased by his brother –
Rashid Khan from one Harun Khan, resident of Pune. No registered sale-
deed, however was executed. Only a bond paper was executed and
appellant – Kayyum signed the same as witness. Since PW 2 and his family
members wanted to erect a shed on the said plot, he had asked his brother-
in-law, PW 3 – Ejajkhan, who is a contractor, to come with the construction
material. He and his brothers had accordingly came to the site with
construction material. All of them were engaged in digging the pits and
planting a wooden pole for construction of a shed. The pole was even
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erected. A few pits were being dug. That time all the appellants armed with
sticks, iron rods, gupti, knife, etc. arrived. All of them started abusing and
beating him and his brothers and others as well. Details of the assault
mounted by the appellants were as under :-
– Shaharaz Khan assaulted on the chest of Mohsin with gupti;
– Yahya Khan assaulted on the chest and abdomen of Mohsin with kinfe;
– Hussein Khan assaulted on the head of Rizwan with stick;
– Abu Bakar assaulted on left side rib and forehead of Ejajkhan with knife;
– Shahrukh assaulted on left side rib of Khalil Khan with knife;
– Ayub assaulted on the left side of Aslam Khan with knife;
– Hamid assaulted on the back and legs of Aslam Khan with stick;
– Kayyum assaulted on the head of Firoj with iron rod;
– Nawaz assaulted on the back and leg of Firoj by wooden rod;
– Shainbi assaulted on neck of Asiyabegum by knife;
– Naimbee assaulted on the chest of Asiyabegum by belt;
Villagers gathered on the spot. They took all the injured to Ghati
hospital. Mohsin was declared dead on admission to the hospital. PW 2 –
Rizwan was discharged within two hours. He approached the Waluj Police
Station in the evening and lodged the report of the incident (F.I.R., Exh.79).
14. On the same lines is the evidence of PW 4 – Firoj, PW 6 – Asmat,
PW 9 – Asiyabegum, PW 17 – Aslam and PW 18 – Khalilkhan (injured
witnesses).
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15. All the witnesses were subjected to a searching cross-
examination. The gist of the matter elicited during the cross-examination is
as under :-
All the appellants and the injured were relatives of each other.
The appellants and PW 2 – Rizwan and his family members were residing in
the same area. Although initially it was denied that there were two plots, the
witnesses came around to admit that there were two plots adjoining each
other. One of them was claimed to have been purchased by PW 2 –
Rizwan’s brother from Harun Khan. Appellant – Yahya Khan claimed title
with possession over the adjoining plot. The crime scene panchanama
(Exh.77) indicates the site was seen like one plot. A few pits were dug. A
wooden pole was erected. There was nothing at the site to distinguish the
two plots (no boundary line separating the two plots). PW 2 and his family
members had very good relations with the appellants until the incident. Both,
the appellants and family of the informant were visiting each other. The
informant and his family members had planned to erect a shed on the said
plot. They had suspected that someone may raise objection. They had,
therefore, invited their relatives residing at Newasa and Aurangabad as well.
Informant’s brother-in-law was also there with construction material. As
such, the injured and their relatives, not less than 10-12 persons, were on the
plot by little past 12:00 noon. One of them was Jalil Khan. He was in
constabulary. It appears that his presence was also secured to meet all
eventualities. One of the injured witnesses admitted that the appellants
arrived at the crime scene one after the other. That rules out their
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assembly can be formed in a spur of moment. Admittedly, appellant – Yahya
Khan had requested the informant and others not to go ahead with the
construction. The crime scene panchanama (Exh.77) indicates they did not
listen. They proceeded with the work. Admittedly, quarrel had ensued
before the incident of assault. The informant admitted that quarrel and
beating lasted for five minutes. Articles like peak axe and wooden rod were
already there for construction work. Learned A.P.P. and learned counsel for
the victim were right in submitting that none of the appellants had suffered
any injury. In our view, however for falling a case under Exception 4 to
Section 300 of the I.P.C., incident of manhandling or push and pull may be
sufficient. The injured witnesses gave only their side of story. No
independent witness has been examined. PW 2 testified that an hour after
Yahya Khan arrived at the spot, the assault started. It started no sooner they
planted a wooden pole in the pit on the plot. He had been in the Ghati
hospital for two hours. In spite of police station having been there, he did not
report the matter there. According to him, all the relations were invited since
he felt that objection may be raised for the proposed work. He further
testified that Siraj, Abu Bakar, Shahruk and Hussain (appellants) came at the
site one after the other.
16. PW 3 – Ejaj admitted that there are two plots adjoining each other.
He came to know that one of the plots belonged to Kayyum Khan (appellant
herein). There were no markings on the plot. Jalil Khan was invited since he
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was in police department. Although he claimed to have suffered injury at his
waist and ribs, his injury certificate negatives his claim.
17. PW 4 – Firoj and his brother being relatives of PW 2 – Rizwan and
in construction business, had brought construction material at the site in an
auto.
18. PW 1 – Aman is a witness to the crime scene panchanama
(Exh.77). Details thereof have been referred to hereinabove. PW 5, 7, 8, 11
to 16 are the panch witnesses to the seizure of clothes of the deceased,
injured and the appellants besides disclosure statements made by the
respective appellants and recovery of weapons used. Since the incident is
undisputed, we do not propose to refer to the evidence of these witnesses in
extenso.
Conclusion/Appreciation :-
19. What could be concluded on appreciation of the evidence referred
to hereinabove is –
There were two plots adjoining each other. One of them belongs
to appellant – Kayyum Khan. The informant claimed to have purchased the
another plot from Harun Khan. However, he did not have document of title.
At the site, there were no boundary marks to distinctly identify both the plots.
The deceased and the injured had all gathered at the site for raising
construction of a shed. They even dig-up 3-4 pits and raised one wooden
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pole in one of the pits. Appellant – Yahya Khan came there and asked the
injured witnesses not to proceed with the work. They appear to have not
listened. The appellant admittedly arrived one after the other. Although one
of the appellants was said to have wielded gupti, the corresponding injury do
not justify the same. None of the appellants had come with brandishing
sharp weapon. Admittedly, one of the plots belong to appellant – Kayyum
Khan. Section 96 of the I.P.C. speaks of exercise of right of private defence,
while Section 97 speaks of right of private defence of property, movable or
immovable, of himself or any other person against any act which is an
offence falling under definition of theft, robbery, mischief or criminal trespass
or attempt to commit any of the corresponding offences. Section 441 of the
I.P.C. defines criminal trespass to mean whoever enters into the property in
possession of another with intent to commit an offence or to intimidate, insult
or annoy any person in possession of such property is said to commit
criminal trespass. In our view, entering into someone else’s property
unauthorisedly (trespassing) with an intention to grab the same may be an
offence. Every person has a right to protect his property from being
unauthorisedly taken over and he should be justified in putting up the
resistance to protect the property. It is said that the exercise of right of
private defence cannot be weighed in golden scale. Entering upon the plot of
the appellants and keeping it in possession by the injured would be nothing
short of attributing knowledge to them that they thereby likely to cause
wrongful loss or damage to the plot owner/s (the appellants). The
ingredients of offence of mischief also thereby get covered.
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20. Although Section 300 of the I.P.C. defines the offence of murder,
it is not without an exception. Exceptions 2 and 4 to Section 300 of the I.P.C.
read thus :-
Exception 2.–Culpable homicide is not murder if the offender, in the
exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law and causes the death
of the person against whom he is exercising such right of defence
without premeditation, and without any intention of doing more harm
than is necessary for the purpose of such defence.
Exception 4.–Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender having taken undue advantage
or acted in a cruel or unusual manner.
In the case of Surinder Kumar vs. Union Territory,
Chandigarh, AIR 1989 SC 1094, the Supreme Court, with regard to
Exception 4 to Section 300 of the I.P.C., has observed as under :-
“7. To invoke this exception four requirements must be satisfied,
namely, (i) it was a sudden fight ; (ii) there was no premeditation ; (iii)
the act was done in a heat of passion ; and (iv) the assailant had not
taken any undue advantage or acted in a cruel manner. The cause of the
quarrel is not relevant nor is it relevant who offered the provocation or
started the assault. The number of wounds caused during the
occurrence is not a decisive factor but what is important is that the
occurrence must have been sudden and unpremeditated and the
offender must have acted in a fit of anger. Of course, the offender must
not have taken any undue advantage or acted in a cruel manner. Where,
on a sudden quarrel, a person in the heat of the moment picks up a
weapon which is handy and causes injuries, one of which proves fatal,
he would be entitled to the benefit of this exception provided he has
not acted cruelly.”
21. In the case in hand, the appellants have acted in exercise of their
right of private defence of their self property. Accused Nos. 7 and 8 appear
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to have exceeded the exercise of their right of defence of their property.
Unfortunately, Mohsin lost his life. He suffered two injuries, one of which
proved fatal. As such, the appellants could be said, on preponderance of
probabilities, to have proven their defence of exercise of right of defence of
property and the incident to have occurred in a spur of moment, falling within
Exception 4 to Section 300 of the I.P.C.
22. Except original accused nos. 7 and 8 (Criminal Appeal No.841 of
2015), none other appellants admittedly assaulted the deceased. Each of
the appellant has his independent victim. Some of the injured suffered
injuries to their vital parts, although simple in nature. Had these appellants
really intended to commit murder of the other injured, they would not have
stopped after each one making a single assault. They could have rained
blows to translate their intention into action. The trial Court has convicted
them for the offence punishable under Section 324 of the I.P.C. and
sentenced them to suffer imprisonment for three years with fine. For over
thirteen years have passed post incident. Pendency of these appeals was
nothing short of an hanging sword of an apprehension to the other appellants
of their sentence being enhanced with conviction for more grievous offence.
Since the other appellants are also held to have exercised the right of private
defence of property and even if for the sake of assumption and not
acceptance, we consider the submissions of learned A.P.P. and learned
counsel for the victim that it was an attempt on the life of the other injured.
The same would, in view of Exceptions 2 and 4 to Section 300 of the I.P.C.,
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be an offence of attempt to commit culpable homicide punishable under
Section 308 of the I.P.C. The punishment provided for the said offence is
imprisonment of either description for a term which may extend to seven
years or even with fine or with both. We, therefore, do not propose to
interfere with the impugned order of convicting the other appellants for the
offence punishable under Section 324 of the I.P.C. The trial Court has
observed that these appellants had already undergone imprisonment during
investigation, enquiry and trial as well. The said period appears to have
been more than three months against each of such appellants. We,
therefore, propose to reduce the quantum of sentence to the period already
undergone, without there being any change in the quantum of fine and in
default sentence. The entire fine amount be paid to the widow of the
deceased as compensation. In the facts and circumstances of the case,
prayer for additional compensation cannot be accepted.
23. In view of above, we pass the following order :-
ORDER
(I) Criminal Appeal No. 841 of 2015 is partly allowed. Order dated
03rd October, 2015 passed by the Court of Additional Sessions
Judge, Vaijapur in Sessions Case, No. 116 of 2012 convicting and
sentencing appellants – Yahya Khan Kayyum Khan Pathan and
Shiraj Khan Kayyum Khan Pathan is set aside.
Instead, they are convicted for the offence punishable under
Section 304 Part II of the Indian Penal Code, and therefore,
sentenced to suffer R.I. for ten years. These appellants are behind
the bars since 2011. As such, they have served of entire
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sentence. They, therefore, be released forthwith, if not required in
any other case. There is no change in the quantum of fine and
default sentence.
(II) Criminal Appeal Nos. 846 of 2015 and 847 of 2015 are partly
allowed. Conviction of these appellants for the offence punishable
under Section 324 of the Indian Penal Code is maintained,
however the quantum of sentence is reduced to the period for
which they have already undergone, without there being any
change in the quantum of fine and in default sentence.
(III) Criminal Appeal Nos. 835 of 2015 and 880 of 2015, filed for
enhancement of sentence, stand dismissed.
(IV) Since Criminal Appeal No. 841 of 2015 is disposed of, nothing
survives in Criminal Application No. 4902 of 2024 and same
stands disposed of accordingly.
(V) The entire fine amount deposited by the accused be paid to the
widow of the deceased, as compensation.
(VI) Registrar (Judicial) of this Court to ensure compliance of this order
forthwith.
( NEERAJ P. DHOTE, J. ) ( R.G. AVACHAT, J. )
SSD
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