Challenge
2. The present appeal is arising out of a judgment of conviction and order dated 23.02.2018, passed by Sessons Judge, Firozabad in S.T. No. 290 of 2016 titled ‘State of U.P. v. Shahid Ali’ whereunder, the Appellant was convicted and sentenced to undergo (i) rigorous imprisonment for life with a fine of Rs. 10,000/- under Section 302 IPC and in default of payment of fine, to undergo six months rigorous imprisonment; and (ii) 5 years rigorous imprisonment under Sections 25/ 27 of the Arms Act, 1959 (the “Arms Act”) with fine of Rs. 5,000/- and in default of payment of fine, to undergo rigorous imprisonment for three months.
3. The judgment of conviction and sentence was unsuccessfully assailed by the appellant before the High Court of Judicature at Allahabad (the “High Court”) vide Criminal Appeal No. 1462 of 2018, titled ‘Shahid Ali v. State of U.P.’ which came to be dismissed by the High Court vide an order dated 04.04.2019 (the “Impugned Order”).
Notice issued as to question of nature of offence
4. On 03.12.2021, this Court issued notice limited to the question of nature of offence, that is, as to whether the Appellant could be held guilty of the offence under Section 304 Part I or Part II of the IPC as against Section 302 IPC.
5. The facts of the case reveal that an FIR was lodged by PW1 – Gulab Ali i.e., the chowkidar of village Katena Sikeriya, District Firozabad, at Police Station Jasrana, by stating that on 17.03.2016, the marriage ceremony of the daughter of Nizamuddin was being celebrated. Pertinently (i) Ishfaq Ali (the “Deceased”); (ii) other co-accused person i.e., Shahid Ali; and (iii) other relatives were also invited to the said marriage. It was further stated in the FIR that on 17.03.2016 at about 3:30PM i.e., amidst the marriage ceremony, the Appellant shot at Ishfaq Ali which resulted in an injury on his neck and ultimately led to his demise on the spot itself. In the FIR, previous enmity between the Deceased and the accused came to be revealed. Furthermore, it was stated that a large number of person(s) saw the alleged incident as there were many people at the marriage ceremony. Accordingly, an FIR came to be registered as Crime Case No. 108 of 2016 under Section 302 IPC at PS Jasrana, District Firozabad. The said FIR has been proved as Ex. Ka-13. Thereafter an entry regarding FIR was made in the G.D. Rapat No. 34 Ex. Ka-4 on 17.03.2016 at 1705 hrs. Thereafter, PW 10 i.e., Lokendra Pal Singh, Station House Officer at Police Station Jasrana, investigated the matter, conducted inquest on the dead body of the Deceased and prepared an inquest report (Ex.Ka-7). The site plan (Ex.Ka-5) was also prepared. The dead body of the Deceased was brought to the hospital and a post-mortem was carried out by a Medical Officer i.e., Dr. Nitin Jaggi, on 18.03.2016. The statement of accused who was arrested was recorded in jail by the investigating officer and accused confessed to his guilt in his statement recorded under Section 161 of Cr.P.C. Another FIR was also registered against the Appellant for an offence punishable under Section 25/27 of the Arms Act on 08.04.2016 which came to be registered as Case Crime No. 147 of 2016, at PS Jasrana. An investigation was carried out in pursuant to the FIR(s) and a charge-sheet was filed. The case was committed to the court of Sessions by the Magistrate and charges were framed for inter alia an offence punishable under Section 302 of the Indian Penal Code and for offences punishable under Section 25/27 of the Arms Act.
10. The evidence on record reveals that all the eyewitnesses have turned hostile and the Trial Court on the basis of the evidence has arrived at the conclusion that the Appellant was guilty of the offences alleged under the FIR; and accordingly proceeded to convict the Appellant. Subsequently, the High Court affirmed the order passed by the Trial Court. Aggrieved, the Appellant preferred the present petition. Vide an order dated 03.12.2021, this Court issued notice and on a limited question in the matter i.e. as to whether the appellant could be held guilty of offence under Section 304 Part I or Part II of the IPC, as against under Section 302 of the IPC.
13. The act of celebratory firing during marriage ceremonies is an unfortunate yet prevalent practise in our nation. The present case is a direct example of the disastrous consequences of such uncontrolled and unwarranted celebratory firing. Be that as it may, in the absence of any evidence on record to suggest that either that the Appellant aimed at and / or pointed at the large crowd whilst engaging in such celebratory firing; or there existed any prior enmity between the Deceased and the Appellant, we find ourselves unable to accept the Prosecution’s version of events as were accepted by the Trial Court and confirmed by the High Court.
14. At this juncture it would be apposite to refer to a decision of this Court in Kunwar Pal Singh v. State of Uttarakhand, (2014) 12 SCC 434 wherein, this Court in a similar situation observed as under:
“12 & 13”
15. Pertinently, the view in Kunwar Pal Singh (Supra) came to be followed in Bhagwan Singh v. State of Uttarakhand, (2020) 14 SCC 184 wherein this Court observed as under:
“para. 15”
Open fire in a crowded place
16. There can be no qualm about the fact that the Appellant opened fire in a crowded place i.e., a marriage ceremony without taking reasonable measures for safety, which led to the unfortunate demise of the Deceased.
Appellant is guilty of commission of culpable homicide punishable under section 304 part II IPC
17. In this context, keeping in view the totality of circumstances of the case i.e., especially the fact that (i) there was no previous enmity between the Deceased; (ii) no intention may be attributed to the Appellant as may be culled out from the record to cause death of the Deceased; and (iii) position of law enunciated by this Court in Kunwar Pal Singh (Supra) and subsequently, followed in Bhagwan Singh (Supra), we find that the Appellant is guilty of commission of ‘culpable homicide’ within the meaning of Section 299 IPC i.e., punishable under Section 304 Part II of the IPC.
Conviction under section 302 IPC set aside instead section 304 part II
18. In view of the aforesaid, the conviction and sentence of the Appellant under Section 302 IPC is set aside. The Appellant is convicted for an offence under Section 304 Part II of the IPC. The appellant has already undergone approximately 8 years of incarceration. Considering the facts and circumstances of the case, we award a sentence equivalent to the period already undergone. The conviction and sentence awarded to the Appellant under Sections 25 & 27 of the Arms Act remains unaltered. Resultantly, the Appellant be released forthwith, if not required in any other case.
Party
SHAHID ALI …APPELLANT(S) VERSUS THE STATE OF UTTAR PRADESH …RESPONDENT(S) – CRIMINAL APPEAL NO(S). 1479 OF 2024 [Arising out of SLP (Criminal) No(s). 9454 of 2021] – 2024 INSC 191 – MARCH 11, 2024.
https://main.sci.gov.in/supremecourt/2021/25699/25699_2021_9_1502_51255_Judgement_11-Mar-2024.pdf
