Punjab-Haryana High Court
Kuldeep Nath vs State Of Punjab on 2 July, 2008
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 359-DB of 1999
Date of Decision: July 02, 2008
Kuldeep Nath.
... Appellant
Versus
State of Punjab.
... Respondent
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL,
HON'BLE MR. JUSTICE S.D. ANAND.
Present : Ms. Monika Jalota, Advocate,
as Amicus Curiae,
for the appellant.
Mr. Rajesh Bhardwaj, Deputy Advocate General, Punjab,
for the respondent.
S.D. Anand, J.
The present appeal has been filed by appellant - Kuldeep Nath to impugn his conviction under Section 302 of the Indian Penal Code. The learned Trial Judge held the appellant guilty of having committed the murder of Fatta Bhagat (father of first informant - Gurbachan Singh PW2) and sentenced him to undergo life imprisonment and to pay a fine of Rs. 5,000/-. In default of payment of fine, the appellant was directed to undergo further rigorous imprisonment for a period of one year.
Crl. Appeal No. 359-DB of 1999 2
On the fateful day, the appellant was engaged in a conversation with deceased Fatta Bhagat. The venue of conversation was the house of PW3 - Satta. The subject of discussion centred around the credentials of Sainthood. Fatta Bhagat told the appellant that the latter was neither a Saint nor was he familiar with the exact connotation of a Sadhu. The utterance annoyed the appellant who felt agitated. Fatta Bhagat tried to escape from the spot. However, he was chased by the appellant who, before giving the chase, picked up a Gandhali lying nearby. Fatta was accosted by the appellant and the latter gave Gandhali blows to the former. PW2 - Gurbachan Singh son of Fatta Bhagat deceased, PW3 - Satta and Niamat (not examined at the trial) witnessed the impugned occurrence. Fatta Bhagat was initially taken to Gharyala Hospital where the Medical Officer gave first aid to him and referred the patient to GND Hospital, Amritsar. It was at the latter health institution that Fatta Bhagat was hospitalized. However, he died that very night at about 11/11.30 p.m. The offence was notified to the police by PW2 - Gurbachan Singh vide, statement Ex.PB.
The learned Trial Judge placed reliance upon the eye witness account furnished by PW2 - Gurbachan Singh and PW3 - Satta and also the medical evidence given by PW4 - Dr. Ashok Chanana (who had conducted the post mortem examination on the dead body of the deceased on 25.03.1997 and had found two punctured incised wounds, caused by sharp-edged weapon) and convicted the appellant. In support of the finding, the learned Trial Judge also drew sustenance from the fact that the appellant, in Crl. Appeal No. 359-DB of 1999 3 pursuance of a disclosure statement, had got the recovery of Gandhali Ex.P5 effected.
The learned counsel, appearing on behalf of the appellant as Amicus Curiae, argues that the non-production of Niamat at the trial is adequate enough to doubt the bona fides of the prosecution presentation. Apart therefrom, she also argues that the testimony of PW3 - Satta and relation witness PW2 - Gurbachan Singh does not inspire confidence, inasmuch as their very presence at the spot at the relevant point of time has not been established. In support of the latter contention, it is pointed out that if PW2 - Gurbachan Singh and PW3 - Satta had actually been available at the spot, they would have themselves taken injured to the hospital and would not have left that job to be done by Niamat Singh who has not even been examined at the trial. She also has a grievance that PW2 - Gurbachan Singh appears to have been introduced into the case being a son of the deceased.
We have given our careful consideration to the points advocated by the learned Amicus Curiae and have also heard the learned State counsel. Record has been examined.
The present appeal must be negatived. The reasons therefor are as under:-
There is no law which requires that all the witnesses qua a particular occurrence / fact must be examined at the trial. The number of witnesses is not the insistence of the law. The only requirement is that reliable witnesses may be examined whose testimony is substantive in character and inspires confidence. In that Crl. Appeal No. 359-DB of 1999 4 background, the mere non-examination of Niamat Singh at the trial does not affect the validity of the prosecution plea.
The fact that the clothes and hands of PW2 - Gurbachan Singh did not come to bear any blood stain is also of no legal significance. As per the testimony of PW2 - Gurbachan Singh, he left Niamat Singh at the spot to guard the dead body and went over to the police station to lodge the First Information Report. Being a son of the deceased and under mental pressure, there was nothing unnatural if Niamat Singh only handled the injured. As a son of the deceased, PW2 - Gurbachan Singh would be most interested to ensure that the appellant, who had eliminated his father, would face the frown of the law. He cannot be expected to substitute the real perpetrator of the crime with the appellant, particularly when there is not even an allegation that he had any inimical inclination towards the appellant or he had any score to settle with the latter on account of which he would have been inclined to falsely implicate him.
We find the testimony of PW2 - Gurbachan Singh and PW3 - Satta to be categorical in nature in the context of the motive which actuated the appellant to chase the deceased while carrying a Gandhali and they are equally precise in accusing the appellant for having murdered Fatta Bhagat. Both of them were subjected to fairly lengthy cross-examination but their credit could not be shaken or impeached in the course thereof. Furthermore, the ocular presentation is in complete accord with the finding of PW4 - Dr. Ashok Chanana who, after stating that two punctured incised wounds were found on the dead body of the deceased, opined that the Crl. Appeal No. 359-DB of 1999 5 injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature.
Faced with the predicament aforementioned, the learned Amicus Curiae argues that the present is a fit case in which the conviction may be altered to an offence under section 304 of the Indian Penal Code because the quarrel had taken place all of a sudden and there was no previous enmity between the appellant and the deceased.
The endeavour made by the learned Amicus Curiae to bring the offence within the ambit of the exception indicated in the Penal Code proves abortive. Though it is in evidence that there was no previous enmity between the appellant and the deceased and it is also proved that the appellant flew into rage when the deceased challenged his credentials as a Saint, it is equal apparent from the record that the provocation, though sudden, cannot be said to be grave in character. For attracting the applicability of the exception clauses, the defence must prove that the provocation offered by the deceased was sudden and grave. The provocation must be grave i.e., of such a nature as to deprive the accused of the power of self- control. It must be shown distinctly not only that the act was done under the influence of some feeling which took away from the person doing it all control over his actions, but that that feeling had an adequate cause. When the derangement of the mind reaches that degree that the judgment and reason cease to hold dominion over it
- their authority being suspended and yielding place to violent and ungovernable passion - the man who was before a rational being is Crl. Appeal No. 359-DB of 1999 6 no longer the master of his own understanding, becomes incapable of cool reflection and ceases to have control over his passions. It is to such a state of mind that the law, in judging of acts which cause death, gives indulgent consideration. No mental perturbation or agitation which falls short of this and leaves way to reason and the power of self-control, can reduce a murder to an offence within the range of this mitigating exception. In that backdrop of things, we do not find any cogent ground to concede the plea for conversion of the offence.
For the reasons noticed in the foregoing paras, the appeal shall stand dismissed.
( S.D. ANAND )
JUDGE
July 02, 2008 ( ADARSH KUMAR GOEL )
vkd JUDGE
Note: Whether to be referred to reporter : Yes/No