Punjab-Haryana High Court
Surender vs State Of Haryana on 6 December, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
Criminal Appeal No. 113-DB of 2007 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 113-DB of 2007 (O&M)
Date of Decision : 6.12.2012
Surender
...Appellant
Versus
State of Haryana
.....Respondent.
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr. R.S.Cheema, Senior Advocate with
Ms. Sumanjit Kaur, Advocate
for the appellant.
Mr. Sandeep Varmani, Additional A.G, Haryana.
****
1. To be referred to the Reporters or not?
2.Whether the judgment should be reported in the Digest? RAMESHWAR SINGH MALIK J.
The instant appeal is directed against the judgment dated 11.1.2007 and the order of sentence dated 12.1.2007 passed by the learned Additional Sessions Judge, Hisar, whereby the appellant was convicted for an offence punishable under Section 302 of the Indian Penal Code ('IPC' for short), and Section 27 of the Arms Act, 1959. Accordingly, he was sentenced to undergo rigorous imprisonment for life and to pay a fine of `10,000/- for committing an offence punishable under Section 302 IPC. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of one year. The appellant was also sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Criminal Appeal No. 113-DB of 2007 (O&M) 2 `2,000/- for committing an offence punishable unde Section 27 of the Arms Act. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of three months.
Facts first. The case of the prosecution, as unfolded from the First Information Report ('FIR' for short)-Ex.P-68 was that a telephonic message was received at 12:40.a.m, on 24.5.2006 from Police Station Bhattu Kalan through EHC Ramesh Kumar No. 244, at Police Station Adampur, to the effect that Subhash son of Lal Chand, Lilu Ram son of Nanha Ram, Kuldeep son of Shiv Charan, caste Jat, resident of Chuli Bagrian were lying admitted in CHC, Bhattu Kalan, on receipt of gun shot injuries. Taking of suitable action was requested by deputing an Investigating Officer.
On receipt of the above said information, ASI Chhottu Ram alongwith HC Dev Raj No. 404, EHC Ramesh Chand No. 417, reached at CHC Bhattu Kalan and sought an opinion of the doctor. Doctor gave in writing that Kuldeep had been referred to Government Hospital, Hisar/Fatehabad and reported that Lilu Ram was not fit to make his statement. It was also reported that Subhash had died. Upon this, ASI Chhottu Ram intimated SI Ram Chander, SHO Police Station Adampur, on telephone that Subhash had succumbed to the bullet injuries in Bhattu hospital. Receiving this information, SI/SHO Ram Chander, along with ASI Gopi Chand, HC Man Singh No. 530 and HC Bhagirath 1063 left for CHC Bhattu Kalan in Government gypsy bearing registration No. HR-39-A/2731, which was being driven by EHC Sudhir Kumar No. 1326. On reaching CHC, Bhattu Kalan, he found ASI Chhottu Ram along with accompanied staff, Criminal Appeal No. 113-DB of 2007 (O&M) 3 present there. In order to ascertain the circumstances under which the occurrence had taken place, relatives of the deceased were being awaited.
In the meantime, Sugriv son of Lal Chand, caste Jat, resident of Chuli Bagrian, came present at CHC Bhattu Kalan. He got his statement recorded to the effect that he was resident of above mentioned address and was carrying agricultural pursuits. They were four brothers. The eldest was Bahadur Singh, younger to him was Sugriv. Daya Ram was younger to Sugriv and the youngest was Subhash. All of them were residing separately and used to carry agricultural pursuits. On the previous evening i.e. 23.5.2006, at about 10/10:15 p.m., he was present in his house. His house was situated near the Bus Stand, Chuli Bagrian. He heard the noise of roar of gun shots and also the noise of people. He reached at the bus stand and found that Surender son of Mahabir, caste Jat, resident of Chuli Kalan, who was holding a small pistol in his hand, in the presence of the complainant-Sugriv and within his vision, started firing the bullet shots aiming at the people of the village Chuli Bagrian.
The bullet shots hit his brother Subhash, Lilu Ram son of Nanha Ram and Kuldeep @ Lal Singh son of Shiv Charan, Jat, residents of Chuli Bagrian. Upon this, in order to take the injured persons to hospital, complainant Sugriv, Mahender @ Chiman son of Bahadur Singh and Daya Ram, bodily lifted all the three injured persons and when they were in the process of removing the injured to the vehicle owned by Subhash resident of Chaharwala (shopkeeper), at that time, Surender armed with DBBL gun, fired Criminal Appeal No. 113-DB of 2007 (O&M) 4 aiming at them. Chhottu Ram son of Ram Lal, caste Jat, who was armed with country made pistol, also openly fired aiming at them. Satbir son of Devi Lal, caste Jat, Rakesh son of Atma Ram, caste Jat, Vinod son of Tokh Ram caste Jat, Raghubir son of Ram Sawroop caste Jat, Ramesh son of Tok Ram caste Jat, Ved son Siri Chand caste Jat, Ramesh son of Neki Ram caste Jat, all residents of Village Chuli Kalan had also accompanied Surender.
All these persons started hurling brickbats on the vehicle of the complainant, but they escaped. None of the brickbats hit them. All three of them, took Kuldeep @ Lal Singh, Lilu Ram and Subhash (brother of the complainant), to Government Hospital, Bhattu for medical treatment. After reaching the hospital and after the lapse of about half an hour, during the course of treatment, his brother-Subhash succumbed to the bullet injuries, which he had sustained, on his body. Kuldeep @ Lal Singh was referred by the doctor to Government Hospital, Fatehabad and Hisar, respectively. The motive behind this occurrence was that there was a complaint that Kalu Ram son Nanha Ram, caste Jat, resident Chuli Bagrian, used to indulge in sale of illicit (outside) liquor and the contractor of liquor vend, used to object to it. A day before, Kalu Ram was trapped. The residents of the village went to implore Surender contractor, who felt annoyed. He fired bullet shots upon them. The bullet shots hit them. He requested for taking legal action against the accused.
The above statement of the complainant-Sugriv was reduced into writing and was read over to him. After having Criminal Appeal No. 113-DB of 2007 (O&M) 5 understood and admitting it to be correct, he put his signatures thereon. In MLR No. MB/75 dated 23.5.2006 of Kuldeep, the doctor recorded in all, two injuries, out of which, injury No. 1 had been recorded as suspected gun shot injury, whereas injury No.2 was recorded as blunt, in nature. Both the injuries were kept under observation. In the MLR No. MB/76 dated 23.5.2006 pertaining to Lilu Ram, the doctor recorded three injuries in all. Injuries No. 1 and 2 were found blunt in nature while injury No. 3 was recorded as gun shot injury. All the injuries were kept under observation. Likewise, in MLR No. MB/77 dated 23.5.2006 pertaining to Subhash, three injuries were recorded. All the three injuries were observed as suspected to be gun shot injuries and all three injuries were kept under observation.
From the above statement of the complainant-Sugriv and three MLRs, an offence under Sections 302/307/148/149 IPC and Sections 25/27-54-59 of the Arms Act was found to be made out. The statement was sent through EHC Ramesh No. 417, to the police station for registration of the case. It was directed that after the registration of the case, its number be intimated. FIR as well as special report be sent to the authorities concerned, whereas SI/SHO along with his companion employees and with the complainant was busy in conducting the investigation, at the spot.
On the basis of the above said statement, FIR No. 103 was registered under Sections 302/307/148/149 IPC and Section 25 of the Arms Act, at police station Adampur. The investigation was started. Rough site plan of the place of occurrence with correct Criminal Appeal No. 113-DB of 2007 (O&M) 6 marginal notes, was prepared. Statements of the witnesses were recorded. Accused Chhotu Ram was arrested on 28.5.2006. He suffered a disclosure statement on 29.5.2006 regarding the pistol used by him in the incident, but the same could not be recovered. Accused Surender, Ramesh and Ved Pal were arrested on 29.5.2006. Surender accused suffered a disclosure statement on 30.5.2006 to the effect that he had kept concealed a pistol and .12 bore gun in the area of village Ninan in Rajasthan and could get the same recovered. However, nothing could be recovered in pursuance of the abovesaid disclosure statement made by accused Surender. Later on, accused Surender suffered another disclosure statement on 31.5.2006 to the effect that he had kept concealed .22 bore revolver and .12 bore double barrel gun in his field under the fodder and offered to get the same recovered. Both the disclosure statements were attested by Daya Ram and Mahender. The revolver and gun were recovered in pursuance of the abovesaid disclosure statement dated 31.5.2006. The revolver and gun were taken into possession vide separate recovery memos, which were attested by Daya Ram and Mahender. Accused Vinod was arrested on 9.6.2006.
After completion of the investigation, final report under Section 173 Cr.P.C. was presented before the learned Ilaqa Magistrate. The relevant documents were supplied to the accused, in accordance with law. However, the offence having been found to be exclusively triable by the learned court of Sessions, the learned Judicial Magistrate 1st Class, Hisar, committed the case to the learned court of Sessions, for its trial.
Criminal Appeal No. 113-DB of 2007 (O&M) 7
Having found a prima facie case to be made out, accused were charge sheeted for the offence punishable under Sections 302, 307, 148, 149 IPC. Additionally, accused-Surender was charged under Section 27 of the Arms Act. Accused pleaded not guilty and claimed trial.
The prosecution, in order to prove its case, examined as many as 21 PWs, besides tendering relevant documents in evidence. After conclusion of the prosecution evidence, separate statements of the accused were recorded under Section 313 Cr.P.C. All the incriminating material brought on record, was put to the accused. They denied the allegations and alleged false implication claiming themselves to be completely innocent.
After hearing the parties and considering the evidence brought on record, the learned trial court came to the conclusion that the prosecution has failed to prove its case against accused namely Chhotu Ram, Ramesh, Vedpal and Vinod, beyond reasonable doubt. Consequently, giving them the benefit of doubt, all these accused were acquitted of the charge framed against them. However, simultaneously, it was held that the prosecution has successfully proved its case beyond reasonable doubt against accused Surender. Accordingly, accused Surender was held guilty and convicted for the offence punishable under Section 302 IPC and Section 27 of the Arms Act, vide impugned judgment dated 11.1.2007.
Consequently, vide order of sentence dated 12.1.2007, convict Surender was sentenced to undergo rigorous imprisonment for life and to pay a fine of `10,000/- for the offence punishable under Criminal Appeal No. 113-DB of 2007 (O&M) 8 Section 302 IPC. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of one year. The convict was also sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of `2,000/- for committing offence punishable under Section 27 of the Arms Act. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of three months. However, both the sentences were ordered to run concurrently.
Feeling aggrieved against the above said impugned judgment of conviction and order of sentence, the appellant has approached this Court, by way of instant appeal. That is how, this Court is seized of the matter.
Learned senior counsel for the appellant vehemently contended that all the material PWs including PW1-Sugriv, PW2- Daya Ram, PW3-Lilu Ram, PW4-Mohinder @ Chiman, did not support the case of the prosecution. He further contended that Lilu Ram-injured was not found to have suffered any firearm injury because of which the charge under Section 307 IPC could not be proved. Learned senior counsel for the appellant next contended that Kuldeep-deceased did not die because of any firearm injury but due to septicemia. He submits that only Subhash-deceased had died by firearm injury. These material facts were established on the basis of medical evidence available on record. He submits that because of these reasons, very serious doubt had been created in the prosecution story. However, since the learned trial court has proceeded on an erroneous approach in this regard, the impugned Criminal Appeal No. 113-DB of 2007 (O&M) 9 judgment of conviction was not sustainable in law.
Learned senior counsel for the appellant submits that in view of the peculiar facts and circumstances of the case, conviction of the appellant under Section 302 IPC was wholly unwarranted. He further submits that since it was a free fight and the deceased were the aggressors who came at the liquor vend of the appellant, he fired from his licenced revolver, without any premeditation and in the heat of passion. He next contended that since admittedly no sanction was granted by the District Magistrate under Section 39 of the Arms Act, conviction of the appellant for the offence under Section 27 of the Arms Act was also not sustainable. Finally, he submitted that conviction and sentence of the appellant may be set aside by allowing the present appeal. Learned senior counsel, to substantiate his arguments, relies upon the judgment of the Hon'ble Supreme Court, in the case of Partap versus the State of Uttar Pradesh, (1976) 2 SCC 798.
Per contra, learned counsel for the State submits that when the statement of PW8-Dr.Manish Bansal coupled with Ex. P-51 (operation record) are read in their entirety, it clearly makes out that Kuldeep-deceased also died primarily because of the gun shot injury. He further submits that minor discrepancies apart, the prosecution has duly proved its case against the appellant. Learned counsel for the State next contended that it was a case of double murder. The chain of events has been meticulously completed and duly proved by the prosecution, bringing home guilt against the appellant. He also submits that in view of the facts of this case, sanction under Section Criminal Appeal No. 113-DB of 2007 (O&M) 10 39 of the Arms Act was not required. He concluded by submitting that since the learned trial court has rightly appreciated the evidence brought on record, the appeal was without any merit and the same was liable to be dismissed.
Having heard the learned counsel for the parties, after careful examination of the evidence available on record and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the instant appeal deserves to be partly allowed. In the given fact situation of the case, conviction of the appellant under Section 302 IPC as well as under Section 27 of the Arms Act is not sustainable in law. In fact, the present case would fall under Section 304 Part-I IPC. To say so, reasons are more than one, which are being recorded hereinafter.
When the statements of PW1 to PW6 Sugriv son of Lal Chand, Daya Ram son of Lal Chand, Lilu Ram son of Nanha Ram, Mohinder @ Chiman son of Bahadur, Kalu Ram son of Nanha Ram and Guljari son of Jai Narain, respectively, are read together, it leaves no manner of doubt that all these prosecution witnesses have not supported the prosecution version. Further, having been declared hostile and put to cross examination by the learned Public Prosecutor, nothing substantial could be elicited from these prosecution witnesses.
All these witnesses aforementioned deposed in one voice that liquor vend of Surender-appellant was attacked by huge crowd of villagers. They further deposed that accused-Surender, Chhotu Ram, Ramesh Kumar and Ved Pal were not seen by them at the spot. Criminal Appeal No. 113-DB of 2007 (O&M) 11 They could not identify the persons who fired shots at the spot. PW2-Daya Ram deposed that few shots were fired by unidentified employees of the liquor vend from inside in order to save themselves. He denied that Surender-appellant was interrogated in his presence. Similar is the statement of PW3-Lilu Ram-injured. These witnesses deposed that the police obtained their signatures on blank papers. They also denied to have witnessed the recovery of weapons of offence.
Dr. Davender Sindhu-PW7 deposed that he along with Dr. A.L.Bajaj, conducted post mortem on the dead body of deceased- Kuldeep on 8.6.2006. He proved the post mortem report as Ex. P-
17. He further deposed that the cause of death was septicemia shock and the probable duration was within 24 hours. He also proved the clothes of deceased Kuldeep i.e. pant Ex. P-18 and shirt Ex. P-19.
Dr. Manish Bansal-PW8 deposed that he medico legally examined deceased-Kuldeep on 23.5.2006 and found two injuries on his person. He proved MLR Ex. P-20 and the diagram as Ex. P-21 showing location of injuries. He also medico legally examined Lilu Ram on 23.5.2006, as per MLR Ex. P-22 and found three injuries on his person. Likewise, he medico legally examined Subhash- deceased on 23.5.2006, vide MLR Ex. P-24 and found three injuries on his person. Ex. P-25 was the diagram showing location of the injuries. He proved his opinion Ex. P-32 dated 27.5.2006 on police application Ex. P-31 dated 26.5.2006 regarding nature of injures on the person of Lilu Ram. He also deposed the injuries suffered by Criminal Appeal No. 113-DB of 2007 (O&M) 12 PW3-Lilu Ram were simple in nature. He did not suffer any firearm injury. All the three injuries were on the non-vital parts of the body.
Dr. Vinod Sharma PW-9 conducted post mortem on the body of deceased-Subhash. He proved post mortem report as Ex. P-
38. He also proved police request Ex. P-39, which was accompanied by inquest report Ex. P-40. In his opinion, cause of death was shock and haemorrhage as a result of injuries suffered by the deceased which were ante mortem in nature and sufficient to cause death in ordinary course of nature. He also proved bullet Ex. P-47 and clothes of deceased Subhash as Ex P-48, Ex. P-49 and Ex. -50, shirt, pant and underwear, respectively. Besides, this witness proved X-ray reports Ex. P-41 to Ex. P-46.
Dr. Sanjay Verma PW10 deposed that he examined deceased Kuldeep on 24.5.2006. He was operated upon for bullet injury and the same was removed from his body. The operation was conducted by Dr. Yogesh. He proved operational record as Ex. P-51, treatment chart as Ex. P-52, X-ray films as Ex. P-54, besides Ex. P- 55, besides C.T. Scan as Ex. P-56 and P-57. He deposed that on 29.5.2006, police moved an application Ex. P-59 seeking opinion on fitness of Kuldeep Singh to make the statement. On 30.5.2006, he declared Kuldeep Singh fit to make the statement.
A combined reading of the above said medical evidence would show that Subhash-deceased died due to gun shot injuries, whereas Kuldeep died of septicemia, which was an infection. It has also been duly proved by Dr. Davender Sindu-PW7 that injury No. 2 on the person of Kuldeep-deceased was the surgical wound. The Criminal Appeal No. 113-DB of 2007 (O&M) 13 foul smelling fluid was also due to infection which was the sign of septicemia, and the cause of death, as well. In this view of the matter, it is unhesitatingly concluded that Lilu Ram PW3 did not suffer any firearm injury, whereas Kuldeep deceased died due to septicemia and Subhash died because of firearm injury.
PW11 was formal official witness. However, PW12 Hoshiar Singh, Steno, District Excise and Taxation Office, Hisar, deposed that on 24.5.2006, Deputy Excise and Taxation Commissioner, imposed penalty of `7,500/- on a Maruti Car bearing No. DDA 7146 owned by Kalu Ram son of Nanu Ram resident of Chuli Bagrian. He proved penalty certificate as Ex. P-62. PW13 and 14 were also the formal official witnesses. In view of the fact that PW1 to PW6 were declared hostile, the investigating officer remains the only important prosecution witness, besides the doctors.
PW15 was Ram Chander, SI/SHO, Police Station Adampur, who conducted the investigation of the case. Before that, he recorded statement as Ex.P-1 made by the complainant Sugriv PW1 and put his endorsement thereon as Ex. P-67. He deposed that thereafter, a ruqa was sent through EHC Ramesh to the police station Adampur for registration of the case, on which formal FIR Ex. P-68 was registered by Ranbir Singh MHC. He prepared inquest report regarding the dead body of Subhash, vide Ex. P-40.
When he went to inspect the spot, he found a photographer and the crime team present there. During the course of inspection of the place of occurrence, he recovered two blood stained lathies and one empty cartridge of .12 bore and some stones. Criminal Appeal No. 113-DB of 2007 (O&M) 14 These were put into sealed parcels and were taken into possession vide separate recovery memos. Then he recorded the statement of Daya Ram-PW2 and Mohinder @ Chiman PW4.
Thereafter, he went to CHC Bhattu Kalan for recording the statement of Lilu Ram-injured. An Application Ex. P-73 was moved seeking opinion of the doctor regarding Lilu Ram, who declared him unfit to make the statement, vide Ex. 74. Thereafter, he went to village Chuli Bagrian, where at the bus stand, HC Bhagirath-PW13 and HC Man Singh-PW21 produced two sealed parcels, one containing clothes of deceased-Subhash and another containing one bullet recovered from the body of Subhash. These were taken into possession, vide recovery memo ex. P-64, which was attested by Man Singh and Bhagirath. He further deposed that thereafter, he again went to CHC Bhattu Kalan on 26.5.2006 and sought opinion of the doctor who gave his opinion, vide Ex. P-30, that Lilu Ram was fit to make the statement. Statement of Lilu Ram was recorded under Section 161 Cr.P.C. He moved another application Ex. P-31 before the doctor, seeking his opinion regarding nature of injuries sustained by Lilu Ram, which were declared simple.
On 28.5.2006, I.O. Ram Chander SI/SHO arrested Chhotu Ram accused. Tejbir Singh, DSP, verified the investigation and found Satbir Singh son of Devi Lal, Naresh son of Mahabir, Raghbir son of Ram Sarup, Vinod son of Neki Ram and Vijender son of Neki Ram innocent. PW15 further deposed that he arrested accused-appellant Surender, Ramesh and Vedpal on 29.5.2006. On 30.5.2006, he interrogated the appellant in police station Adampur, after taking him Criminal Appeal No. 113-DB of 2007 (O&M) 15 out from the lock up in the presence of Daya Ram PW2 and Mohinder @ Chiman-PW4. Surender-appellant made a disclosure statement that he had kept concealed a pistol and .12 bore gun in the area of village Ninan in Rajasthan and he could get the same recovered. Statement of the appellant-Surender, Ex. P-5 was recorded which was signed by him and attested by Daya Ram and Mohinder.
Thereafter, appellant Surender was produced in court and his police remand was taken for two days. On 31.5.2006, appellant- Surender was again interrogated by I.O. in police station Adampur in the presence of Daya Ram and Mohinder. He made another disclosure statement that he had kept concealed .22 revolver and .12 DBBL gun in his field under the fodder and offered to get the same recovered. His disclosure statement Ex. P-7 was recorded which was signed by him and attested by Mohinder @ Chiman. Thereafter, the appellant led the police party along with witnesses to his field and he got recovered .22 revolver and .12 bore gun from the fodder. The arms license of Surender was also recovered. These were converted into separate sealed parcels and were taken into police possession, vide recovery memo Ex. P-9 and attested by Daya Ram and Mohinder @ Chiman. He also prepared the rough site plan of the place of recovery with correct marginal notes, vide Ex. P-77. Statements of PWs Daya Ram and Mohinder @ Chiman were also recorded under Section 161 Cr.P.C.
PW15 further deposed that he did not check liquor shop at bus stand Chuli Bagrian, before the date of occurrence. However, he Criminal Appeal No. 113-DB of 2007 (O&M) 16 knew that the liquor vend was being run by Chhotu, Surender etc. He also deposed that he received first information of the occurrence in the mid night of 23/24.5.2006 at 12:40 a.m. He reached CHC Bhattu Kalan and stayed there throughout the night. The complainant Sugriv etc. came in the morning at 7:30 a.m. They were 7/8 in number. He had seen the dead body of Subhash-deceased and then recorded the statement of complainant Sugriv PW1. This witness further deposed in his cross examination that when he reached at the place of occurrence, for the first time, it was revealed to him at the spot by the persons who had collected there, that a mob had attacked the liquor vend on account of the arrest of Kalu Ram. This witness was put to detailed cross examination on behalf of accused but nothing substantial could be elicited from him, so as to prove non involvement in the incident and complete innocence of the appellant- Surender. PW16 to PW21 were the formal official witnesses.
In view of the foregoing discussion, the prosecution has proved its case against the appellant, meticulously completing the chain of events. So far as the licensed .12 bore DBBL gun owned by the appellant is concerned, no injury was found on the dead body of either of the deceased or on the person of Lilu Ram-injured, which might have been caused by the gun shot fired from .12 bore DBBL gun. According to Dr. Davender Sindhu-PW7 Kuldeep-deceased died because of septicemia and the cause of death was not any firearm injury. However, it has also been established on record that Subhash-deceased died because of firearm injury.
In this view of the matter, it remains to be ascertained that Criminal Appeal No. 113-DB of 2007 (O&M) 17 as to what was the FSL report qua .22 revolver which was again a licensed arm owned by the appellant Surender. This issue has gained importance due to the cause of death of Subhash-deceased. As per medical evidence, death was due to the firearm injury caused by the bullet fired from .22 revolver, which was admittedly a licensed arm owned by the appellant-Surender. In this regard, it is pertinent to note the relevant part of FSL report including result thereof and the same reads as under:-
"Contained one .22" fired bullet stated to have been taken out from the body of deceased Subhash (marked BC/a by me).
Contained one .22" revolver bearing Sr. No. 04510095- RFI-2004 along with two .22" live cartridges stated to have been recovered from accused Surender (Market w/1 by me) RESULT The firing mechanisms of .22" revolver marked W/1 and 12 bore DBBL gun marked W/2 were found in working order.
The 12 bore fired cartridge case marked C/1 has been fired from left barrel of 12 bore DBBL gun W/2 and not from any other firearm even of same make & bore because firearm has its own individual characteristic marks.
The .22" fired bullets marked BC/1 & BC/2 have been fired from .22" revolver marked W/1 and Criminal Appeal No. 113-DB of 2007 (O&M) 18 not from any other firearm even of same make & calibre because every firearm has its own individual characteristic marks.
The holes on shirt, pant and underwear contained in parcel No. IV have been caused by bullet It brings this Court to the next issue, whether the appellant used a licensed arm i.e. .22 revolver without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without taking undue advantage, so as to bring the present case within the scope of Exception 4 to Section 300 IPC, for the commission of offence under Section 304 Part-I IPC or the appellant had committed the offence under Section 302 IPC. In the present case, there is no denying the fact that Kalu Ram son of Nanha Ram PW5 was arrested for the commission of offence under Excise Act and a huge mob of the villagers attacked the liquor vend of the appellant-Surender. The prosecution witnesses were also consistent in this regard while deposing before the court.
After critically analysing facts of the present case and the evidence available on record, this Court is of the considered view that the present case would not fall under Section 302 IPC but the same would fall under Section 304-Part I IPC.
In order to hold that the case would fall under Section 304 Part I IPC, the death must have been caused by the appellant under the circumstances mentioned in any of the five exceptions to Section 300 IPC.Criminal Appeal No. 113-DB of 2007 (O&M) 19
In this view of the matter, it is held that keeping in view the peculiar fact situation of the present case, the instant case would fall within the scope of Exception - 4 to Section 300 IPC, which reads as under:-
"300. Murder:- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 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 .
Explanation: It is immaterial in such cases which party offers the provocation or commits the first assault."
In terms of the explanation to Exception 4 to Section 300 IPC, it is immaterial in such cases as to which party offers the provocation or commits the first assault. For the applicability of Exception 4 to Section 300 IPC, the number of injuries caused during the occurrence, is not a decisive factor but the occurrence itself must be sudden and not premeditated while the offender had acted in heat of passion. Of course, he is not entitled to take any undue advantage or act in a cruel manner. In the present case, appellant committed the offence under Section 304 Part-I because he fired on the deceased but without premeditation and in the heat of passion.
Criminal Appeal No. 113-DB of 2007 (O&M) 20
The Hon'ble Supreme Court in the case of Muthu versus State by Inspector of Police, Tamil Nadu, (2009) 17 SCC 433, observed as under:-
"However, when the weapon was not initially in the hand of the accused, but was picked up from the spot during the altercation, then it cannot be said that it is a case under Section 302 IPC, rather it is only a case of culpable homicide not amounting to murder which comes under Section 304 IPC and not under Section 302 IPC.
xxxxxxxxx No doubt, even in the heat of the moment or fit of anger one should not attack somebody since human beings are different from animals inasmuch as they have the power of self-control. Nevertheless, the fact remains that in the heat of the moment and in a fit of anger people some times do acts which may not have been done after premeditation. Hence the law provides that while those who commit acts in the heat of the moment or fit of anger should also be punished, their punishment should be lesser than that of premeditated offences. It is for this reason that Exceptions I and 4 have been inserted in Section 300 IPC.
We may also refer to Exception 4 to Criminal Appeal No. 113-DB of 2007 (O&M) 21 Section 300 IPC which reads as under:
"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".
The difference between Exception I and Exception 4 to Section 300 has been explained by this Court in Pappu vs. State of M.P. 2006 (7) SCC
391. In our opinion, the present case also comes under Exception 4 to Section 300 IPC since the ingredients of Exception 4 are all satisfied in the facts of the present case.
In our opinion, throwing waste and rubbish inside the house or shop of somebody is certainly a grave and sudden provocation. Everyone wishes to keep his premises neat and clean, and is likely to lose his self-control in such a situation. The incident in question occurred in a sudden fight and a heat of passion by a sudden quarrel without the appellant having taken undue advantage or acted in a cruel or unusual manner. Hence the appellant is entitled to the benefit of Exceptions I and 4 and the case comes under Section 304 IPC."
Similarly, the observations made by the Hon'ble Supreme Court, in the case of Posuram Deshmukh versus State of Criminal Appeal No. 113-DB of 2007 (O&M) 22 Chhattisgarh, (2009) 13 SCC 154, which aptly apply and can be gainfully followed in the present case, are as under:-
"For bringing in operation of Exception 4 to Section 300 IPC it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of Criminal Appeal No. 113-DB of 2007 (O&M) 23 the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A `sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the `fight' occurring in Exception 4 to Criminal Appeal No. 113-DB of 2007 (O&M) 24 Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression `undue advantage' as used in the provision means `unfair advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat, (2003) 9 SCC 322, Parkash Chand v. State of H.P (2004) 11 SCC 381, Byvarapu Raju v. State of A.P. and Anr. (2007) 11 SCC 218 and Hawa Singh . v. State of Haryana. (2009) 3 SCC 411."
The ratio of the abovesaid judgments would apply to the facts and circumstances of the present case inasmuch as it was not Criminal Appeal No. 113-DB of 2007 (O&M) 25 the premeditated act of the accused-appellant to commit the murder of the deceased and the death had occurred in a sudden fight, without any premeditation and the act was done in the heat of passion, without the accused-appellant taking any undue advantage or acting in a cruel manner.
Therefore, keeping in view the evidence and material discussed in the foregoing part of the judgment, this Court has unhesitatingly come to the conclusion that the present case would fall not under Section 302 IPC but it would fall under Section 304 Part -I IPC. In this view of the matter, we are of the considered opinion that this case will fall under Exception 4 to Section 300 IPC because the incident took place in the heat of passion upon a sudden quarrel. Therefore, in the circumstances of the present case, the accused- appellant-Surender is liable to be convicted for the offence punishable under Section 304 Part-I IPC.
The next question that falls for consideration of this Court is whether any previous sanction of the District Magistrate was required under Section 39 of the Arms Act, as argued by the learned senior counsel for the appellant. When this argument is considered in the context of peculiar fact situation of the present case, it has been found misconceived and without any force. We say so because previous sanction of the District Magistrate is required only in respect of offence under Section 3 of the Arms Act. It would be appropriate to refer to the provisions of Section 3 (1) and Section 39 of the Arms Act and the same, read as under:-
3. Licence for acquisition and Criminal Appeal No. 113-DB of 2007 (O&M) 26 possession of firearms and ammunition.- (1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.
39. Previous sanction of the district magistrate necessary in certain cases.- No prosecution shall be instituted against any person in respect of any offence under Section 3 without the previous sanction of the district magistrate.
It is an admitted fact that in the present case, both the firearms allegedly used by the appellant were his licenced firearms, owned by him.
Another material fact in this regard is that vide order 1.8.2006 passed by the learned trial court, charge was framed against the appellant for the alleged contravention of Section 5 read with Section 27 of the Arms Act.
It is again a matter of record that the appellant has been held guilty for the alleged contravention of Section 5 of the Arms Act and he was convicted for the offence punishable under Section 302 IPC and Section 27 of the Arms Act. Accordingly, he was sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of `2,000/- for committing the offence punishable under Section 27 of the Arms Act. In this view of the matter, it becomes relevant to refer to the provisions of the Section 5 (1) and Section 27 Criminal Appeal No. 113-DB of 2007 (O&M) 27 of the Arms Act and the same read as under:-
5 Licence for manufacture, sale, etc., of arms and ammunition.- No person shall--
(a) [use, manufacture], sell, transfer, convert, repair, test or prove, or
(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearm or any other arms of such class or description as may be prescribed or any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.
27. Punishment for using arms, etc.-
(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine The relevant part of the order dated 1.8.2006 passed by the learned trial court framing charge against the appellant under the Arms Act, reads as under:-
"That on 23.5.2006 at about 10:00 p.m., in the area of village Chulia Bagriyan you used your licencee Revolver and DBBL gun .12 bore in contravention of Section 5 of the Indian Criminal Appeal No. 113-DB of 2007 (O&M) 28 Arms Act and you thereby committed an offence punishable U/s 27-54-59 of the Indian Arms Act and within my cognizance."
When the above said order dated 1.8.2006 vide which the charge was framed under the Arms Act against the appellant is read with the statutory provisions of the Arms Act, reproduced above, it becomes crystal clear that the learned trial court has committed an error of law apparent on the record. We say so because since the appellant was having licensed firearms and he used the same without any premeditation in a sudden fight and in the heat of passion, he cannot be said to have misused the licenced firearms or contravened in any of the conditions of licence, nor it was the allegation of the prosecution against the appellant. Even if the appellant has contravened any condition of the lincence, Section 17 of the Arms Act deals with the suspension and revocation of the licence by the competent authority, which is not the case here.
The view taken by this Court also finds support from the judgment of the Hon'ble Supreme Court in Salim and others versus State of Haryana, 2008 (4) R.C.R. (criminal), 19. In almost similar situation, where Salim was also charge sheeted and convicted under Section 27 of the Arms Act along with other offence under the IPC, the Hon'ble Supreme Court held:
"On considering the evidence it is held that existence of the material to show that the accused were exercising the right of private defence, was not established. On the date of occurrence i.e. 25.11.2000 the land in question was Criminal Appeal No. 113-DB of 2007 (O&M) 29 lying vacant and the matter regarding possession was pending adjudication before the revenue authorities. After the order of remand passed by the Commissioner on 17.2.2000, there is no material to show who was in possession over the land in question. Leaned counsel for the appellant has brought to our notice the evidence of Patwari to show about the possession about the date of occurrence. It is true that the Patwari has taken that during the investigation he found that actual physical possession of the accused persons over the disputed property. It is also similarly stated by PW 22 SHO. The Trial Court observed that one of the parties used force to take possession of the land in question.
Above being the position the plea that the accused persons were exercising right of private defence cannot be accepted. Though the material on record shows that though initially the accused were exercising right of private defence, same was exceeded. In the factual background appropriate conviction of Salim would be under Section 304 Part I read with Section 149 IPC. The conviction is accordingly altered."
In this view of the matter, it is unhesitatingly held that conviction of the appellant under Section 27 of the Arms Act is unsustainable in law and the same is hereby ordered to be set aside.
Since the appellant admittedly has not taken a plea of self defence, nor it was argued as such by the leaned senior counsel for the appellant, the judgment relied upon by him in Pratap's case (supra), will have no application in the present case, because the same is distinguishable on facts.
Criminal Appeal No. 113-DB of 2007 (O&M) 30
No other argument was raised.
Considering the totality of facts and circumstances of the present case noted above, coupled with the reasons aforementioned, this Court feels no hesitation to hold that the offence committed by the appellant would be covered under Section 304 Part-I IPC and not under Section 302 IPC. Thus, the appeal is partly allowed. Consequently, the conviction and sentence of the appellant for the offence punishable under Section 302 IPC are ordered to be set aside. However, the appellant is convicted for the offence under Section 304 Part-I IPC.
In view of what has been observed above, while upholding the impugned judgment, conviction of the appellant under Section 27 of the Arms Act is set aside and his conviction is modified from Section 302 IPC to Section 304 Part-I IPC. Accordingly, sentence of the appellant is modified from imprisonment for life to rigorous imprisonment for 10 years. However, the fine imposed by the learned trial court and also the default clause thereof, shall remain intact.
Resultantly, the instant appeal is partly allowed and disposed of, accordingly.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
6.12.2012
Ak Sharma