Punjab-Haryana High Court
Jai Singh And Others vs State Of Haryana on 17 May, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No. 797-DB of 2008 1
Criminal Appeal No. 673-MA of 2008
Criminal Revision No. 2756 of 2008
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:May 17, 2012
Criminal Appeal No. 797-DB of 2008
Jai Singh and others ......Appellants
Versus
State of Haryana .......Respondent
Criminal Appeal No. 673-MA of 2008
Ram Kishan ......Appellant
Versus
State of Haryana and others .......Respondents
Criminal Revision No. 2756 of 2008
Ram Kishan ......petitioner
Versus
State of Haryana and others .......Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Vinod Ghai, Sr. Advocate with
Mr.Ravinder Singh, Advocate,
Mr.Baljinder Singh, Advocate,
Mr.Deepak Balyan, Advocate and
Mr.Ashwani Bhardwaj, Advocate
for the appellants.
Mr.G.S.Chahal, Addl.A.G.Haryana.
Mr.Jitender Dhanda, Advocate,
for the applicant/ petitioner in
in CRM-A No.673-MA of 2008 and
CRR No.2756 of 2008
****
Criminal Appeal No. 797-DB of 2008 2
Criminal Appeal No. 673-MA of 2008
Criminal Revision No. 2756 of 2008
JUDGMENT
SABINA, J.
Vide this judgment, the above mentioned appeals as well as criminal revision will be disposed of as these have arisen out of a common incident/ judgment.
Prosecution case was set in motion on the basis of the statement of the complainant Ram Kishan. Complainant stated in his statement recorded on 27.10.1998 that his son Dilbag Singh had illicit relations with Sushila @ Sheela, daughter of Jai Singh. A day before, at about 3.30 P.M., his son had gone to meet Sushila in her house under construction. The said fact came to the notice of Jai Singh, Ranbir, Shamsher, Dal Singh, Kuldeep and Jai Pal. All the said persons reached the spot armed with jellies, gandasies and lathis. They caught Sushila and Dilbag and confined them in separate rooms. The said fact came to his (complainant) notice at 5.00 P.M.. He reached the house of Jai Singh along with his brother Ram Chander. Lajjo, Bimla, Krishana and Kamla were standing in front of the rooms, armed with lathis and gandasis. The said ladies told them that Jai Singh would come out soon after finishing Suhila and Dilbag. Thereafter, Jai Singh and others came out of the rooms in their presence and said that they would present their girl and his son before the panchayat. The door of the room was again closed and he was not allowed to go in the room. He went to the village along with his brother and brought Singh Ram, ex-sarpanch to the spot. However, they were not allowed to meet their son. After some Criminal Appeal No. 797-DB of 2008 3 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 time, Jai Singh and others left the spot with their respective weapons. Then they opened the doors of the rooms and saw that his son was lying on the ground after strangulation with a rope. Some poisonous substance was also seen in his mouth. In the other room Sushila was lying dead on the cot after strangulation with a rope. Some poisonous substance was also seen in her mouth. Her legs were lying down on the cot. Many villagers gathered at the spot. His son Dilbag and Sushila had been murdered by Jai Singh in a pre-planned manner. Motive behind the occurrence was that the daughter of Jai Singh i.e. Sushila and his son Dilbag were having illicit relations and due to this reason both of them had been murdered by Jai Singh and others.
On the basis of the statement of the complainant formal FIR No. 184 was registered on 27.10.1998 at police station Bawani Khera under Sections 148/ 149/ 302/ 120-B of the Indian Penal Code, 1860 (IPC for short).
Inspector Krishan Kumar reached the spot and found that there was tense atmosphere over there. He informed his higher officers. Thereafter, in the presence of respectable persons, he inspected the spot and prepared rough site plan. He took in possession some sulphas tablets and one rope lying near the dead body of Dilbag. During search of Dilbag, five letters were taken in possession. He prepared inquest reports qua the dead bodies of Sushila and Dilbag and sent the same for postmortem examination.
After completion of investigation and necessary Criminal Appeal No. 797-DB of 2008 4 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 formalities, challan was presented against accused Jai Singh, Ranbir, Jai Pal, Kuldeep and Dal Singh.
During the pendency of the trial, an application was moved by the prosecution under Section 319 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) for summoning accused Shamsher, Lajjo, Kamla, Krishna and Bimla as additional accused. The said application was allowed by the trial Court vide order dated 20.8.2001. Charge was framed against all the accused under Sections 148/ 302/ 149 IPC by the trial Court on 3.10.2001.
Complainant also moved a complaint (Ex.PC), wherein, he stated that Sushila daughter of Jai Singh and his son Dilbag were having a love affair and the accused did not approve the same. Sushila was not obeying her father in this regard. Dilbag and Sushila used to meet each other secretly. All the accused were related to each other and with a common intention they planned to kill Dilbag and Sushila. On 26.10.1998, his son was going to attend his duty. Ranbir and his wife Kamla called Dilbag to the house of Jai Singh. Sushila was kept in a big room in the house. As soon as Dilbag entered the room, they closed the door. Ramesh, his other son, who was returning from the fields, was told by Ved Pal that Ranbir and his wife had taken Dilbag to the house of Jai Singh. Ramesh and Ved Pal saw through the window of the room that Jai Singh, Ranbir, Jai Lal, Kuldeep, Shamsher and Dal Singh were present in the room. Lajjo, Kamla, Krishana and Bimla were telling them not to kill them and wife of Jai Singh was saying that her daughter would not meet Criminal Appeal No. 797-DB of 2008 5 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 Dilbag again. Ramesh came home running and informed him (complainant) in this regard. Thereafter, he went to the house of Jai Singh along with Singh Ram and Ram Chander. Lajjo, Kamla, Krishna and Bimla were standing in front of the house, armed with lathis and jellies. Wife of Jai Singh was forcibly taken to the house of Ranbir by Shamsher, Jaipal and Kuldeep. Thereafter, they took Dilbag from the big room to the small room with an intention to kill him. Many persons from the village gathered at the spot. The accused had murdered Dilbag and Sushila and came out of the rooms and said that they had finished them. When the police reached the spot, the ladies did not allow anybody to enter the house till midnight. After police pressure, the doors of the rooms were opened. The dead bodies of Sushila and Dilbag were found lying in separate rooms. On coming to know that the statements of witnesses had not been recorded properly by the investigating officer, the complaint was being filed against the accused.
Prosecution led its evidence in the State case as well as in the complaint case. Accused, when examined under Section 313 Cr.P.C., after the close of prosecution evidence, prayed that they were innocent and had been falsely involved in the case to avoid insult and humiliation from the villagers and to lower their position in the society. Thereafter, on 24.9.2008, trial Court clubbed both the trials so that they could be decided vide a common judgment. The accused did not examine any witness in their defence.
Vide impugned judgment dated 30.9.2008, accused Jai Criminal Appeal No. 797-DB of 2008 6 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 Singh, Ranbir, Jai Pal, Kuldeep and Dal Singh were held guilty of commission of offence under Sections 148/ 302/ 149 IPC by the trial Court. However, accused Shamsher, Bimla, Krishna, Kamla and Lajjo were acquitted of the charges framed against them. The version putforth by the complainant in the complaint by introducing two witnesses namely Ramesh and Ved Pal as eye witnesses was disbelieved. Hence, Criminal Appeal No.797-DB of 2008 has been filed by the accused, who were convicted and sentenced by the trial Court. Criminal Appeal No.673-MA of 2008 and Criminal Revision No.2756 of 2008 have been filed by the complainant challenging acquittal of some accused i.e. Shamsher, Lajjo, Kamla, Krishna and Bimla.
Learned senior counsel for the appellants has submitted that the medical evidence did not corroborate the prosecution case to the effect that the accused had committed the murder of Dilbag and Sushila. Rather it was a case of suicide by Dilbag and Sushila. No struggle marks were seen on the dead bodies which also strengthen the possibility that it was a case of suicide. The complainant had stated that the accused were armed with weapons. The said fact was liable to be disbelieved as the weapons had not been used at the time of crime. In fact, both the deceased had met in the house of Jai Singh, under construction. They were seen by some persons and therefore, they committed suicide. The version given by the complainant in his complaint was rightly disbelieved by the trial Court as the complaint had been filed after a long delay. Criminal Appeal No. 797-DB of 2008 7 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 Learned State counsel has submitted that the prosecution has been successful in proving its case. In fact all the accused in connivance with each other had committed the murders of Dilbag and Sushila by strangulation. All the accused had committed the crime by sharing common intention.
Learned counsel for the complainant has submitted that the version given in the complaint was liable to be believed. In fact, all the accused in connivance with each other and in a pre-planned manner had committed the murders of Sushila and Dilbag by strangulation. During investigation, the statements of the witnesses had not been correctly recorded by the investigating officer which necessitated the filing of the complaint by the complainant after presentation of challan.
PW Dr. Ved Kumar deposed that on 27.10.1998, he had conducted postmortem examination on the dead body of Dilbag at 11.00 A.M. and had observed as under:-
"A mark of ligature about 1.2" size extending from left side of neck around the neck. It was continuous in nature. Low down in the neck below the thyroid and the groove was soft and reddish. There were abrasions and ecchymosis around about the edges of ligature. The subcutaneous tissue was ecchymosed. Carotid artery of left side shows haemorrhage area and clotted blood. There was fracture of larynx and trachea and hyoid bone. Neck was swollen not elongated.Criminal Appeal No. 797-DB of 2008 8
Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 Dead body of injured young male of well built and nourished wearing shirt with brownish strips. Blue baniyan, Naswari pant. There was bleeding from mouth and nostril. Face and neck and upper part of chest was congested and eccymosed. Rigor mortis was present. Postmortem staining was present on dependent parts. Eyes were closed. Mouth was closed.
Scalp was healthy in nature. Brain was
healthy in nature. Vertebra and spinal cord were not
opened. Walls, ribs and cartilages were normal. Pleura was healthy and congested. Larynx and trachea there was fracture of both seen and fracture of hyoid bone. Right and left lungs were healthy and congested. Pericardium was healthy and congested. Heart:- both chambers contain blood. Large vessels were healthy. Abdominal wall was distended. Peritoneum was healthy. Mouth, pharynx and esophagus were congested and ecchymosed. Stomach and its contents healthy and contain semi digested food particles and gastric juices. Small intestine and their contents healthy and contain chyme. Large intestine and their contents healthy and contain faecal matter. Liver spleen and kidneys were healthy and congested. Bladder was healthy and empty. Organs of generations external internal were healthy."
In his opinion, the cause of death was due to asphyxia as Criminal Appeal No. 797-DB of 2008 9 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 a result of strangulation, which was sufficient to cause death in the ordinary course of nature.
He further deposed that on the same day, he conducted postmortem examination on the dead body of Sushila @ Sheela at 12.45 P.M. and observed as under:-
" Length of body was 5' 4". Mark of ligature on neck and dissection etc. A mark of ligature about 1 cm width extending around the neck continuous. Low down in the neck below the thyroid. The groove was soft and reddish. There were abrasions and ecchymosis around about the ligature. The subcutaneous was ecchymosed. Carotid artery of right side shows haemorrhage area. There was fracture of larynx and trachea and hyoid bone was found. Neck was swollen not elongated.
Dead body of young female of moderately built and nourished wearing pink salwar and kamij (jamphar) and tilli on left nostril, which was yellow metallic, yellow koka on right ear. Rigor mortis was present. Bleeding from mouth was present. Eyes were closed. Mouth was closed. Postmortem staining was present on dependent parts of the body. Face was eccymosed swollen. Scalp was healthy. Membrane and brain were healthy and congested. Vertebra and spinal cord cannot open. Walls, ribs and cartilages were healthy and normal. Pleura was healthy and congested. Criminal Appeal No. 797-DB of 2008 10 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 Larynx and trachea fracture of both seen and there was fracture of hyoid bone also. Right lung and left lung were healthy and congested. Pericardium and large vessels were healthy. Heart: both chambers containing blood. Abdominal wall was distended. Peritoneum was healthy. Mouth, pharynx and esophagus were congested and ecchymosed. Stomach and its contents healthy and contains food particles and gastric juices. Small intestine and their contents healthy and contain chymes. Large intestine and their contents healthy and contained faecal matter and gasses. Liver spleen and kidneys were healthy and congested. Bladder was healthy and empty. Organs of generations external and internal- uterus was normal in size. Cavity was empty. Hymen membrane was absent. Hymen tags were present. Vagina admitted two fingers easily. Vaginal swabs were prepared and public hairs sent for FSL."
In his opinion, the cause of death was due to asphyxia as a result of strangulation which was sufficient to cause death in the ordinary course of nature. He further deposed that after going through the report of the Forensic Science Laboratory, he had given the opinion that Sushila had not been raped before her murder but there might have been attempt of the same.
Ex.PF is the report of the FSL. A perusal of the same reveals that human semen was detected on the salwar of deceased Criminal Appeal No. 797-DB of 2008 11 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 Sushila and underwear of deceased Dilbag. However, no semen was detected on the public hair and vaginal swabs of deceased Sushila.
PW Ram Kishan, complainant, while appearing in the witness box as PW-6 in the trial on the basis of FIR, has stated that on 26.10.1998, Dilbag had gone to the house of Jai Singh at about 5.00 P.M and was taken in a room by Ranbir and his wife Kamla and was locked in the house. He (complainant) went there after sun set along with his brother Ram Chander and Singh Ram, ex-sarpanch. Lajjo, Kamla, Krishna and Bimla were sitting in front of the door and did not allow them to enter the room. They asked the ladies to release Dilbag but they did not agree to do so. At the instance of Banwari, head constable came to the spot. At that time, Shamsher threatened to kill them. More police was summoned to the spot. Thereafter, the doors of the rooms were opened. Dead bodies of Sushila and Dilbag were found lying in separate rooms. There were ropes around the necks of both the dead bodies. Ranbir, Jai Singh, Shamsher, Dal Singh, Jai Pal and Kuldeep had murdered Dilbag and Sushila. He identified his signatures on the FIR Ex.PB.
The complainant, while appearing in the trial conducted on the basis of his complaint as PW-3, has stated that on 26.10.1998 his son had been called to the house of Jai Singh by Ranbir and his wife Kamla while he was going to attend his job at 5.00 P.M.. His son Dilbag and Sushila daughter of Jai Singh were in a relationship. Sushila had already been detained in a room at that time. On seeing Criminal Appeal No. 797-DB of 2008 12 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 this, Ved Pal informed his son Ramesh that Dilbag had been called to the house of Jai Singh. Ved Pal and Ramesh saw through the window that Jai Singh, Ranbir, Shamsher, Dal Singh, Kuldeep and Jai Pal were inside the room. The wife of Jai Singh was saying that Sheela would not meet Dilbag and he should not be killed. Ramesh narrated the said occurrence to him (witness) and then he reached the spot along with Singh Ram and Ram Chander. Lajjo, Kamla, Bimla and Krishna were sitting outside the door of the house armed with jellies. The ladies did not allow them to enter the room. Then he came on the road and met Banwari, Lambardar. He told him the whole story. Banwari told him that police was available near his fields as some accident had taken place. Thereafter, he along with the head constable reached the house of Jai Singh but they were not allowed to enter the house. Some extra police force was summoned to the spot. On opening the doors of the rooms, the dead bodies of Dilbag and Sushila were found lying in two separate rooms with ropes around their necks.
Thus, the complainant was examined in the State case as well as in the trial started on the basis of his complaint. In the State case he has not given the version as stated by him in his complaint nor he has stated in his examination-in-chief that his statement was not correctly recorded by the investigating officer. In the trial conducted on the basis of his complaint, the complainant has tried to introduce two witnesses i.e. his son Ramesh and Ved Pal, who has allegedly seen the accused present in the room of the house. Criminal Appeal No. 797-DB of 2008 13 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 Challan in this case was presented after completion of investigation against accused Jai Singh, Rajnbir, Jai Pal, Kuldeep and Dal Singh. Vide order dated 25.1.1999, Judicial Magistrate, Ist Class had committed the trial to the Court of Sessions as offence under Section 302 IPC was exclusively triable by the Court of Sessions. Thereafter, complaint (Ex.PC) was filed on 8.3.1999 by the complainant by introducing two witnesses. The complainant has admitted his signatures on his statement recorded by the police and has rather supported the said version while appearing in the witness box in the State case. While appearing in the trial started on the basis of the complaint of the complainant the complainant has deposed as per the said version. Thus, the complainant gave two versions in the both the trials while appearing in the witness box. The complainant did not state in the State case the version put forth by him in his complaint. Hence, his version in the complaint which was introduced after a long delay was rendered doubtful. The trial Court rightly held that the version put forth by the complainant in his complaint (Ex.PC) appeared to be an afterthought and could not be relied upon.
The State case rests on circumstantial evidence. The complainant has stated, while appearing in the witness box, that the room in which the dead bodies were lying were being guarded by the ladies accused and they were not allowed to enter the said rooms. Inspector Krishan Kumar deposed qua the investigation conducted by him. First of all let us examine as to whether it is a case of strangulation as alleged by the prosecution or suicide as alleged by Criminal Appeal No. 797-DB of 2008 14 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 the defence.
A perusal of the statement of Dr.Ved Kumar, who had conducted the postmortem examination on the dead bodies of Dilbag and Sushila, shows that it was a case of strangulation. The said witness during postmortem examination had observed that the ligature mark was continuous in nature and was below the thyroid. Larynx, trachea and hyoid bone were fractured. Necks were swollen but no elongated. The said features lead to the inference that it was a case of strangulation. A reference is made to the chart as depicted in Modi's Medical Jurisprudence and Toxicology, qua differences observed in a case of hanging and strangulation and the same is reproduced below for reference:-
Hanging Strangulation 1. Mostly suicidal 1. Mostly homicidal
2. Face- Usually pale and petechiae 2. Face- Congested, livid and marked rare. with petechiae.
3. Saliva-Dribbling out of the mouth 3. Saliva- No such dribbling. down on the chin and chest.
4. Neck-Stretched and elongated in 4. Neck-Not so. fresh bodies.
5. External sings of asphyxia, usually 5. External signs of asphyxia, very well not well marked. marked (minimal if death due to vasovagal and caroti---sinus effect).
6. Bleeding from the nose, mouth and 6. Bleeding from the nose, mouth and ears very rare. ears may be found.
7. Ligature mark-Oblique, non- 7. Ligature mark-Horizontal o--- continuous placed high up on the transverse continuous, round the neck between the chin and the neck, low down in the neck below the larynx, the base of the groove or thyroid, the base of the groove or furrow being hard, yellow and furrow being soft and reddish. parchment-like.
8. Abrasions and ecchymoses round 8. Abrasions and ecchymoses round about the edges of the ligature mark, about the edges of the ligature mark, rare. common.
9. Subcutaneous tissues under the 9. Subcutaneous tissues under the mark-White, hard and glistening. mark-Ecchymosed. 10 Injury to the muscles of the neck- 10. Injury to the muscles of the neck-
. Rare. Common.
Criminal Appeal No. 797-DB of 2008 15
Criminal Appeal No. 673-MA of 2008
Criminal Revision No. 2756 of 2008
Hanging Strangulation
11 Carotid arteries, internal coats 11. Carotid arteries, internal coats
. ruptured in violent cases of a long ordinarily ruptured. drop.
12 Fracture of the larynx and trachea- 12. Fracture of the larynx and trachea- . Very rare and that too in judicial Often found also hyoid bone. hanging.
13 Fracture-dislocation of the cervical 13. Fracture-dislocation of the cervical . vertebrae-Common in judicial vertebrae-Rare. hanging.
14 Scratches, abrasions and bruises on 14. Scratches, abrasions fingernail . the face, neck and other parts of the marks and bruises on the face, neck body-Usually not present. and other parts of the body-Usually present.
15 No evidence of sexual assault. 15. Sometimes evidence of sexual . assault.
16 Emphysematous bullae on the 16. Emphysematous bullae on the . surface of the lungs-Not present. surface of the lungs-May be present.
A perusal of the said chart reveals that in the present case the doctor, who had conducted the postmortem examination on the dead bodies of Dilbag and Sushila, had rightly opined it as a case of strangulation. The features observed by the doctor during postmortem examination are seen in a case of strangulation and not in hanging. Further the dead bodies were lying on the cots with ropes around the necks and were not found in a hanging position when the doors of the rooms were opened. Although during investigation, the investigating officer had lifted sulphas tablets from the spot but there is no material on record that the same had been consumed by the deceased. The dead bodies were recovered from the house of Jai Singh. Both the deceased had died due to strangulation. The fact that no struggle marks were seen in the room where dead bodies were lying or the fact that there were no struggle marks on the dead bodies does not lead to the inference that it was a case of suicide. Rather from the medical evidence on record, it is Criminal Appeal No. 797-DB of 2008 16 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 duly established that both the deceased had been strangulated to death with the help of rope. In these circumstances, it was for Jai Singh to explain as to under what circumstances, the deceased had been murdered in his house.
Inspector Krishan Kumar, in his cross-examination, has deposed that the house from where the dead bodies were recovered was under construction. Roofs had yet not been laid on the rooms on the front side, gallery and courtyard. Thus, the dead bodies were found in the house of Jai Singh, which was under construction.
In case accused Jai Singh and his co-accused had no hand in the commission of murders of Dilbag and Sushila, they would have lodged the report with the police. However, it was not done so. The complaint was lodged by Ram Kishan, father of deceased Dilbag. The complainant, in his cross-examination, has deposed that his son Dilbag was married and was having two children. Thus, Dilbag, who was a married man having children, was having illicit relations with deceased Sushila, who was a young girl aged about 17 years. It appears that on the day of occurrence, Dilbag and Sushila met each other in the house of Jai Singh, which was under
construction. It further appears that they were seen in a compromising position by Jai Singh, Ranbir, Jai Pal, Kuldeep and Dal Singh. Semen was found on the salwar of deceased Sushila and on the underwear of deceased Dilbag. The said fact is evident from the FSL report (Ex.PF). Thus, it can be said that both the deceased were in a compromising position. From the medical evidence, it can Criminal Appeal No. 797-DB of 2008 17 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 also be presumed that the deceased were in a relationship as the doctor, who had conducted post-mortem examination on the dead body of Sushila, opined that hymen membrane was absent. Vagina admitted two fingers easily. Thus, on the day of occurrence on seeing the deceased in a compromising position accused Jai Singh, Ranbir, Jai Pal, Kuldeep and Dal Singh got provoked and lost their self control and committed the murders of the deceased by strangulation.
Section 299 IPC defines culpable homicide. As per Section 300 IPC culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death or with intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or it is done with intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death.
Exception 1 to Section 300 IPC reads as under:-
"When culpable homicide is not murder. Exception 1.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of Criminal Appeal No. 797-DB of 2008 18 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 any other person by mistake or accident. The above exception is subject to the following provisos:
First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence."
Hence, the present case would fall under Exception 1 to Section 300 IPC and, thus, it can be said that it is a case of culpable homicide not amounting to murder punishable under Section 304 (I) IPC. So far as accused Shamsher, Bimla, Krishna, Kamla and Lajjo are concerned, they were found innocent during investigation by the police. The possibility that the said persons being family members of deceased Sushila might have been falsely involved in the case to increase the numbers of the accused cannot be ruled out. The said accused were rightly acquitted by the trial Court by giving them benefit of doubt.
Accordingly, Criminal Appeal No. 797-DB of 2008 is partly allowed. The conviction and sentence of the appellants under Sections 148/ 302/ 149 IPC are set aside. The appellants are held Criminal Appeal No. 797-DB of 2008 19 Criminal Appeal No. 673-MA of 2008 Criminal Revision No. 2756 of 2008 guilty of commission of offence under Section 304 (I) IPC and are convicted thereunder. The appellants are sentenced to undergo rigorous imprisonment for ten years and fine of ` 1,000/- each. In default of payment of fine, they shall further undergo rigorous imprisonment for six months.
Criminal Appeal No.673-MA of 2008 and Criminal Revision No.2756 of 2008 are dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
May 17, 2012
anita