Citations: Salim Zia Vs State of U.P., 1979 AIR 391
Date of Judgment: 24/11/1978
Equivalent citations: 1979 SCR (2) 394; 1979 SCC (2) 648
Case No.: Criminal Appeal no. 213, 237 & 238 of 1977.
Case Type: Criminal Appeal
Petitioner/Appellant: Salim Zia
Defendant/Respondent: The State of U.P.
Bench: Hon’ble Justice Jaswant Singh, Hon’ble Justice O. Chinnappa Reddy.
Court: Supreme Court of India
Statutes Referred:
- Indian Penal Code, 1860; Section 302.
- Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970; Section 2(a).
- Arms Act, 1958; Section 25& 27.
Cases Referred:
- Muhammad Nur Vs Emperor A.I.R.1945 P.C.151;
- Partap Vs The State of Uttar Pradesh A.I.R. 1976 S.C. 966;
- Munshi Ram & Ors. Vs Delhi Administration (1960) 2 S.C.R. 455;
- Sheo Swarup Vs King Emperor (1) 61 I.A.398;
- Sarlwat Singh Vs State of Rajasthan (1961) 3 S.C.R.120;
- Ramaphupala Reddy & Ors. Vs The State of Andhra Pradesh [1970] 3 S.C.C.474;
- Gopi Nath Ganga Ram Surve & Ors. Vs State of Maharashtra[1970] 3 S.C.C.627;
- Dharam Das & Ors. Vs State of U.P. [1973] 2 S.C.C.216;
- Lakha Yadav Vs State of Bihar [1973] 2 S.C.C. 424;
- Samson Hyam Kemkar Vs State of Maharashtra [1974] 3 S.C.C.494;
- Barati Vs State of U.P.[1974] 4 S.C.C.258.
Facts:
- In this case, Jaffar Ali, who owned a big farm of about 250 acres in the villages Hamid Nagar and Parbatbans in the district Rampur, leased out an acre of paddy cultivation land to Habib in exchange for his services for maintaining the hand pumps installed in the former’s land.
- On 11/11/1969 the appellant with his younger brothers armed with a gun went to the leased field where Habib (- the deceased hereinafter) was reaping and threshing the crops. The appellant then informed the deceased that this time he would be entitled to only one-third of the product rather than one-half.
- The deceased protested and claimed his complete entitlement as agreed between him and the appellant’s father (-the owner of the farm). Furious with the deceased’s protest, the appellant and his brothers hurled abuses and threatened to kill the deceased.
- Subsequently, the appellant fired four shots and the deceased died. Azmat Ali (PW1) to Bandu (PW 17) through Muzammil (PW 7) informed the father of the deceased about the incident.
- Later, a report was lodged under Section 302 of Indian Penal Code in Bilaspur Police Station and the appellant was sent for examination of the injuries & recording of the statement. Narain Singh Negi (PW 18) prepared an inquest report and the body was sent for postmortem as well as an autopsy report.
- The internal examination revealed that coma due to gunshots on the head was the cause of the death of Habib. Furthermore, the examiners also asserted that the injuries caused were from a close distance and not from 15 to 20 paces. The skull-base fracture, abdomen ruptured, brain laceration was found, and 15 pellets were taken out of the brain of the deceased.
- In the trial before the Session Judge, the court observing the prosecution’s failure to adequately suppress the defence beyond any reasonable doubt, acquitted the appellant and his brothers of the charges laid.
- On an appeal in the High Court, the court reversed the order of acquittal and convicted the appellant with life imprisonment under Section 302 of Indian Penal Code; 3 years rigorous imprisonment under Section 27 of the Arms Act and also with one-year rigorous imprisonment under Section 25 of the Arms Act. Aggrieved with the order of the High Court, the appellant brought an appeal before the Hon’ble Supreme Court on 24/11/1978.
Issues Involved:
- Whether the High Court was justified in reversing the acquittal of the appellant made prior by the Court of Session?
- In this instant case, has the appellant sufficiently discharged its onus either by adducing the defence evidence or by cross-examination of prosecution witnesses?
Contention of Petitioner/Appellant:
The counsel for the appellant submitted that:
- The High Court did not act appropriately, ignoring the material facts of the case. The interference with the acquittal order is against the guidelines laid by the Courts.
- The conviction order passed by the Court was made without any reference to the observations drawn by the Session Judge. The appellant’s act of open fire was justified in the exercise of the right of private defence.
- Also, there was unduly delay in lodging the F.I.R that makes the prosecution’s story suspicious to believe.
Contention of Defendant/Respondent:
The counsel for the State gave the following contentions to counter the appellant’s arguments:
- That those injuries inflicted upon the appellant were false and were only fabricated to look like a gun-shot injury to exercise the right of self-defense. The appellant gunshot the deceased without any justifiable cause.
- Furthermore, the appellant has not been able to establish the right of self-defense either by laying any evidence or through cross-examination of witnesses in the instant matter.
Judgment:
After the careful perusal of the case, the Hon’ble Apex court observed that the High Court was justified in reversing the acquittal of the appellant. The conviction under Section 302 of Indian Penal Code and under Section 25 and 27 of the Arms Act was thus upheld, and the appeal in the instant matter before the Supreme Court stands dismissed. The Court directed the appellant to undergo the remaining portion of his sentence.
Thus, the Appeal was Dismissed.
Ratio Decidendi:
- The expert reports of the injury revealed that the injuries inflicted upon the appellant were not gun-shot injuries and the story was fabricated to avail the right of self- defence.
- Since there was no sufficient injury found, the question of the right to exercise private defence fails ipso facto. In support of this contention, the Hon’ble Court referred to the judgment of Partap Vs State of Uttar Pradesh and Munshi Ram & Ors. Vs Delhi Administration, where it was held that the appellants should discharge the onus/burden by establishing a ‘mere preponderance of probabilities’.
- In the instant matter, the appellant has not been able to establish the right of self-defence either by laying any evidence or through cross-examination of prosecution witnesses.
- Furthermore, the guidelines laid by this Court for interference with the orders of the acquittal under the Code of Criminal Procedure were appropriately obeyed by the High Court. In the absence of a sufficient case for the defence, the conviction was rightly done.
Conclusion:
To conclude, we can say that the Hon’ble Court upheld the conviction order passed by the High Court. Further, in this present case, the Court rightly observed that the burden on the accused to establish the plea of self-defense is not as onerous as the one on the prosecution. And while the prosecution is required to prove its case beyond any reasonable doubt, the accused person may discharge his burden by establishing a mere preponderance of probabilities. This preponderance could be established either by laying a base for the plea in the cross-examination of the prosecution witnesses or by eliciting the defence evidence.
Drafted By: Shivani Tiwary, SOL DAVV Indore.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
Published On: October 29, 2021 at 16:30 IST