SHAHID ALIversusTHE STATE OF UTTAR PRADESH

                 [2024] 3 S.C.R. 377 : 2024 INSC 191

                               Shahid Ali
                                    v.
                       The State of Uttar Pradesh
                    (Criminal Appeal No. 1479 of 2024)
                                11 March 2024
           [Vikram Nath and Satish Chandra Sharma,* JJ.]

                           Issue for Consideration
       In a celebratory firing during a marriage ceremony, the Appellant
       shot the deceased resulting in his demise. 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.

                                  Headnotes
       Penal Code, 1860 – s. 302, 304 Part I, 304 Part II – Arms Act,
       1959 – s.25, s.27 – Deceased shot with country-made pistol
       – Succumbed to death after bullet hit the deceased on his
       neck – FIR registered under s.302 along with s.25, 27 Arms
       Act - All Eyewitnesses turned hostile – Trial Court based on
       evidence arrived at the conclusion that Appellant guilty of
       the offence alleged under the FIR – High Court affirmed the
       judgment passed by the Trial Court – Held, sentence under
       s.302 set aside and Appellant convicted for offence under s.304
       Part II IPC – Sentence under s.25 & 27 Arms Act sustained.
       Held: The Appellant shot the deceased at a marriage ceremony
       resulting in injury on his neck leading to his demise on the spot
       - FIR came to be registered under s. 302 IPC - The Appellant
       confessed to his guilt in his statement under s.161 CrPC - Another
       FIR registered under s.25 & 27 of the Arms Act, 1959 - PW1,
       father of the deceased, supported the case of prosecution – All
       the eyewitnesses turned hostile and the Trial Court based on the
       evidence arrived at the conclusion that the Appellant was guilty
       of S.302 IPC – The High Court upheld the judgment of the Trial
       Court convicting the Appellant under s.302 IPC – Question to be
       determined whether the Appellant’s act of engaging in celebratory
       firing during a marriage ceremony could be construed to be an act
       so imminently dangerous to cause death or such bodily injury likely
       to cause death – Prevalent act of celebratory firing condemned
       – Totality of circumstances to be considered – No previous
* Author
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       enmity – No intention attributed to the Appellant to cause death
       – Appellant not guilty of offence under s. 302 in the facts of the
       case – Appellant guilty of culpable homicide with the meaning of
       s. 299 IPC punishable under s.304 Part II IPC – Conviction under
       s.302 set aside, conviction under s. 25 & 27 Arms Act sustained
       [Paras 12-18]

                                 List of Acts
            Penal Code, 1860; Arms Act, 1959

                              List of Keywords
       Celebratory firing; Hostile witnesses; No previous enmity; No
       intention.

                             Case Arising From
       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1479
       of 2024
       From the Judgment and Order dated 04.04.2019 of the High Court
       of Judicature at Allahabad in CRLA No.1462 of 2018
                          Appearances for Parties
       Sanjay Kumar Dubey, Shuchi Singh, Rakesh Kumar Tewari, Mr./
       Ms. Krishna Kant Dubey, Vivek Kumar Pandey, Ujjawal Kr. Dubey,
       Aman, Advs. for the Appellant.
       Ardhendumauli Kumar Prasad, Sr. A.A.G., Vishnu Shankar Jain,
       Aayush Mishra, Advs. for the Respondent.
                  Judgment / Order of the Supreme Court

                                     Judgment
       Satish Chandra Sharma, J.
1.     Leave granted.
2.     The present appeal is arising out of a judgment of conviction and
       order dated 23.02.2018, passed by Sessons Judge, Firozabad in
       S.T. No. 290 of 2016 titled ‘State of U.P. v. Shahid Ali’ whereunder,
       the Appellant was convicted and sentenced to undergo (i) rigorous
       imprisonment for life with a fine of Rs. 10,000/- under Section
       302 IPC and in default of payment of fine, to undergo six months
[2024] 3 S.C.R.                                                           379

                Shahid Ali v. The State of Uttar Pradesh


     rigorous imprisonment; and (ii) 5 years rigorous imprisonment under
     Sections 25/ 27 of the Arms Act, 1959 (the “Arms Act”) with fine of
     Rs. 5,000/- and in default of payment of fine, to undergo rigorous
     imprisonment for three months.
3.   The judgment of conviction and sentence was unsuccessfully assailed
     by the appellant before the High Court of Judicature at Allahabad (the
     “High Court”) vide Criminal Appeal No. 1462 of 2018, titled ‘Shahid
     Ali v. State of U.P.’ which came to be dismissed by the High Court
     vide an order dated 04.04.2019 (the “Impugned Order”).
4.   On 03.12.2021, this Court issued notice limited to the question of
     nature of offence, that is, as to whether the Appellant could be held
     guilty of the offence under Section 304 Part I or Part II of the IPC
     as against Section 302 IPC.
5.   The facts of the case reveal that an FIR was lodged by PW1 - Gulab
     Ali i.e., the chowkidar of village Katena Sikeriya, District Firozabad, at
     Police Station Jasrana, by stating that on 17.03.2016, the marriage
     ceremony of the daughter of Nizamuddin was being celebrated.
     Pertinently (i) Ishfaq Ali (the “Deceased”); (ii) other co-accused person
     i.e., Shahid Ali; and (iii) other relatives were also invited to the said
     marriage. It was further stated in the FIR that on 17.03.2016 at about
     3:30PM i.e., 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
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       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.
6.     The prosecution in support of its case has examined 12 witnesses,
       namely, PW1 Gulab Ali, PW2 Idrish Ali, PW3 Nizamuddin, PW 4 Raju
       Ali, PW5 Mohd. Shakeel, PW6 Shamsher Ali, PW7 Chaman Babu,
       PW8 Dr. Nitin Jaggi, PW9 HCP Kshetrapal Singh, PW10 SO/IO
       Lokendrapal Singh, PW11 SI Yashpal Singh and PW 12 Constable
       Clerk, Bhupendra Singh.
7.     The prosecution also placed on record documentary evidence viz.,
       written report Ext.Ka-1, post-mortem report Ext.Ka-2, chik FIR Ext.
       Ka-3, copy of G.D. Ext.Ka-4, site-plan Ext.Ka-5, site-plan in regard to
       spot recovery of weapon Ext.Ka-6, inquest report Ext.Ka-7, challanash
       Ext.Ka-8, photonash Ext.Ka-9, letter to R.I. Ext.Ka-10, letter to CMO
       Ext.Ka-11, charge sheet Ext.Ka-12 u/s 302 IPC against accused the
       Appellant, recovery memo Ext.Ka-13, FIR Ext.Ka-13, site-plan Ext.
       Ka-14, sanction to prosecute from the D.M Ext.Ka-15, copy of G.D.
       Ext.Ka-16 and charge sheet Ext.Ka-17 u/s 25/27 Arms Act against
       accused the Appellant.
8.     The evidence on record has been carefully examined by this Court.
       PW1 Gulab Ali who was the informant of the case has initially
       supported the prosecution case. He has categorically stated that the
       Deceased was shot at with the country made pistol and the bullet
       hit him on his neck and thereafter succumbed to his injuries on the
       spot. However, in his cross-examination, the same witness Gulab Ali
       stated that did not see the alleged incident with his own eyes and
       that he is unaware of any old enmity between the Deceased and the
       Appellant. He has further clarified in his cross-examination that he
       spoke about the enmity between the parties on the basis of hearsay
       evidence of the people who were present at marriage ceremony.
9.     PW2 Idrish Ali i.e., son of the Deceased who was present at the
       spot initially supported the prosecution case in his examination-
[2024] 3 S.C.R.                                                       381

                Shahid Ali v. The State of Uttar Pradesh


     in-chief, however, subsequently during his cross-examination he
     has stated that there was no enmity between the Deceased and
     the Appellant his father and his father Ishfaq Ali was shot dead
     by some person on 17.03.2016. PW2 also turned hostile during
     the trial. PW3 Nizamuddin whose daughter’s marriage was being
     solemnized on 17.03.2016, also initially supported the prosecution
     case, however, in his cross-examination, he has stated that the
     Appellant was his Bhanja and that he did not see the Appellant firing
     the shot at Deceased. PW4 Raju Ali also categorically stated that
     there was no enmity between Appellant and the Deceased and he
     was also declared as a hostile witness by the prosecution. In his
     cross-examination, he has categorically stated that he has not given
     any statement incriminating the accused to the police. PW5 Mohd.
     Shakeel who was also allegedly present at the time of incident did
     not support the prosecution case and he was also declared hostile.
     PW6 Shamsher Ali also did not support the prosecution case and he
     has categorically stated that he has not given any statement under
     Section 161 Cr.P.C. implicating the accused. He was also declared
     hostile. PW7 Chaman Babu, another eye witness, was also declared
     hostile. PW 8 Dr. Nitin Jaggi who carried out the post-mortem stated
     before the Court that the Deceased died on account of gunshot
     wound and supported the prosecution case to the extent that he
     has carried out the post-mortem. He has supported his opinion that
     the Deceased died on account of haemorrhage as a result of ante-
     mortem gun shot injuries. PW9 Head Constable Kshetrapal Singh
     who was a formal witness supported the prosecution case and proved
     the First Information Report which was lodged on 17.03.2016. PW10
     Station Officer Lokendra Pal Singh also supported the prosecution
     case. PW11 Sub Inspector Yashpal Singh who was present along
     with PW-10 during the police custody remand of the Appellant has
     deposed that recovery of firearm and cartridge was made at the
     instance of the Appellant and has supported the prosecution case.
     PW12 constable Bhupendra Singh who is also an eye witness of
     the recovery of the fire arm in question and the cartridge has also
     supported the prosecution case.
10. The evidence on record reveals that all the eyewitnesses have turned
    hostile and the Trial Court on the basis of the evidence has arrived at
    the conclusion that the Appellant was guilty of the offences alleged
    under the FIR; and accordingly proceeded to convict the Appellant.
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       Subsequently, the High Court affirmed the order passed by the Trial
       Court. Aggrieved, the Appellant preferred the present petition. Vide
       an order dated 03.12.2021, this Court issued notice and on a limited
       question in the matter i.e. as to whether the appellant could be held
       guilty of offence under Section 304 Part I or Part II of the IPC, as
       against under Section 302 of the IPC.
11. The undisputed facts of the case reveal that the incident took place on
    17.03.2016 amidst the marriage ceremony of Nizamuddin’s daughter.
    Thereafter, the recovery of a weapon along with cartridge(s) from
    Appellant has been proved before the Trial Court. It is also undisputed
    fact that the Deceased died on account of a single bullet injury; and
    that there was no known prior enmity between the Deceased and
    Appellant.
12. The fulcrum of the dispute before this Court is whether the Appellant’s
    act of engaging in celebratory firing during a marriage ceremony
    could be construed to be an act so imminently dangerous so as to,
    in all probability, cause death or such bodily injury as was likely to
    cause death?
13. The act of celebratory firing during marriage ceremonies is an
    unfortunate yet prevalent practise in our nation. The present case is a
    direct example of the disastrous consequences of such uncontrolled
    and unwarranted celebratory firing. Be that as it may, in the absence
    of any evidence on record to suggest that either that the Appellant
    aimed at and / or pointed at the large crowd whilst engaging in such
    celebratory firing; or there existed any prior enmity between the
    Deceased and the Appellant, we find ourselves unable to accept
    the Prosecution’s version of events as were accepted by the Trial
    Court and confirmed by the High Court.
14. At this juncture it would be apposite to refer to a decision of this Court
    in Kunwar Pal Singh v. State of Uttarakhand, (2014) 12 SCC 434
    wherein, this Court in a similar situation observed as under:
            “12. In these circumstances, we find that the intention of the
            appellant to kill the deceased, if any, has not been proved
            beyond a reasonable doubt and in any case the appellant
            is entitled to the benefit of doubt which is prominent in this
            case. It is not possible therefore to sustain the sentence
            under Section 304 Part I IPC, which requires that the act by
[2024] 3 S.C.R.                                                            383

                Shahid Ali v. The State of Uttar Pradesh


           which death is caused, must be done with the intention of
           causing death or with the intention of causing such bodily
           injury as is likely to cause death. Though it is not possible
           to attribute intention it is equally not possible to hold that
           the act was done without the knowledge that it is likely
           to cause death. Everybody, who carries a gun with live
           cartridges and even others know that firing a gun and that
           too in the presence of several people is an act, is likely to
           cause death, as indeed it did. Guns must be carried with
           a sense of responsibility and caution and are not meant
           to be used in such places like marriage ceremonies.
                                    x-x-x
           14. In the present case, we are of the view that the appellant
           is guilty of committing the act which caused the death of
           the deceased since the act was done with the knowledge
           that is it likely to cause death within the meaning of Section
           304 Part II IPC. In the circumstances, the appeal is allowed
           in part, however, we reduce the sentence imposed upon
           the appellant to a period of 7 (seven) years without making
           any alteration in the fine amount imposed by the trial court
           and confirmed by the High Court.”
15. Pertinently, the view in Kunwar Pal Singh (Supra) came to be
    followed in Bhagwan Singh v. State of Uttarakhand, (2020) 14
    SCC 184 wherein this Court observed as under:
           “15. The facts and circumstances of the instant case,
           however, do not permit to draw such a conclusion. We
           have already rejected the prosecution version to the extent
           that the appellant aimed at Smt Anita and then fired the
           shot(s). The evidence on record contrarily shows that the
           appellant aimed the gun towards the roof and then fired.
           It was an unfortunate case of misfiring. The appellant of
           course cannot absolve himself of the conclusion that he
           carried a loaded gun at a crowded place where his own
           guests had gathered to attend the marriage ceremony. He
           did not take any reasonable safety measure, like to fire
           the shot in the air or towards the sky, rather he invited
           full risk and aimed the gun towards the roof and fired the
           shot. He was expected to know that pellets could cause
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            multiple gunshot injuries to the nearby persons even if a
            single shot was fired. The appellant is, thus, guilty of an
            act, the likely consequences of which including causing
            fatal injuries to the persons being in a close circuit, are
            attributable to him. The offence committed by the appellant,
            thus, would amount to “culpable homicide” within the
            meaning of Section 299, though punishable under Section
            304 Part 2 IPC.”
16. There can be no qualm about the fact that the Appellant opened
    fire in a crowded place i.e., a marriage ceremony without taking
    reasonable measures for safety, which led to the unfortunate demise
    of the Deceased.
17. In this context, keeping in view the totality of circumstances of the
    case i.e., especially the fact that (i) there was no previous enmity
    between the Deceased; (ii) no intention may be attributed to the
    Appellant as may be culled out from the record to cause death of
    the Deceased; and (iii) position of law enunciated by this Court in
    Kunwar Pal Singh (Supra) and subsequently, followed in Bhagwan
    Singh (Supra), we find that the Appellant is guilty of commission
    of ‘culpable homicide’ within the meaning of Section 299 IPC i.e.,
    punishable under Section 304 Part II of the IPC.
18. In view of the aforesaid, the conviction and sentence of the Appellant
    under Section 302 IPC is set aside. The Appellant is convicted for
    an offence under Section 304 Part II of the IPC. The appellant
    has already undergone approximately 8 years of incarceration.
    Considering the facts and circumstances of the case, we award a
    sentence equivalent to the period already undergone. The conviction
    and sentence awarded to the Appellant under Sections 25 & 27 of the
    Arms Act remains unaltered. Resultantly, the Appellant be released
    forthwith, if not required in any other case.
19. The appeal is allowed accordingly, in part. Pending application(s),
    if any, shall stand disposed of.


       Headnotes prepared by:                             Result of the case:
       Mukund P Unny, Hony. Associate Editor            Appeal partly allowed.
       (Verified by: Liz Mathew, Sr. Adv.)