Punjab-Haryana High Court
Inderjit Singh @ Bantu vs State Of Punjab on 24 September, 2014
Author: Harinder Singh Sidhu
Bench: Ashutosh Mohunta, Harinder Singh Sidhu
Crl. Appeal No.D-1220-DB of 2011
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.D-1220-DB of 2011
Date of Decision: September 24, 2014
Inderjit Singh alias Bantu ... Appellant
Versus
State of Punjab ... Respondent
CORAM: HON'BLE MR.JUSTICE ASHUTOSH MOHUNTA,
ACTING CHIEF JUSTICE and
HON'BLE MR.JUSTICE HARINDER SINGH SIDHU
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported
in the Digest?
Present: Mr. L.S. Goraya,Advocate
for the appellant.
Ms. Ritu Punj, Addl. Advocate General, Punjab
for the respondent-State.
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HARINDER SINGH SIDHU, J.
Inderjit Singh alias Bantu, the appellant has filed this appeal against the judgment of conviction and order of sentence dated 31.10.2011, passed by the Court of Additional Sessions Crl. Appeal No.D-1220-DB of 2011
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Judge, Gurdaspur, whereby, he has been convicted under Section 302 of the Indian Penal Code (in short 'IPC') for committing the murder of Jaspal Singh, brother of Jagtar Singh @ Fauji, the complainant and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- and in default thereof, to further undergo rigorous imprisonment for a period of six months. He was also convicted under Section 27 of the Arms Act, 1959 and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- and in default thereof, to further undergo rigorous imprisonment for a period of one month. It was ordered that both the sentences shall run concurrently.
The facts giving rise to the present appeal are as under:-
On 09.05.2007 Sub Inspector Jarnail Singh alongwith other police officials was present at Dadwan Chowk, Dhariwal in connection with patrol duty, where complainant Jagtar Singh alias Fauji met him and got recorded his statement to the effect that his brother Jaspal Singh has a furniture shop at Dadwan road. At about 3.30 PM he alongwith his brother Jaspal Singh and his brother's son Malwinder Singh were sitting in his shop and were talking with each other. In the meantime, Inderjit Singh alias Bantu, the accused, whose house is located in front of the shop, Crl. Appeal No.D-1220-DB of 2011
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came from his house holding his licensed pistol 7.65 mm (.32 bore) in his right hand. While moving towards us, he started abusing Jaspal Singh by saying that he had illicit relations with his wife namely Sukhdip Kaur. He had been asked many times but did not resist from such activities and that today he (Inderjit Singh) would teach him (Jaspal Singh) a lesson . Thereafter, while the complainant and his brother's son Malwinder Singh were sitting on a side the accused crossed the road and fired two shots with his pistol at Jaspal Singh. One shot hit on the right side of the chest of Jaspal Singh and another one hit in front of his chest. Jaspal Singh fell down on the ground and succumbed to the injuries on the spot. The accused, after committing the crime, ran away from the spot alongwith his weapon.
Complainant stated that the motive behind the occurrence was that the accused had suspicion that Jaspal Singh was having illicit relations with Sukhdip Kaur, wife of the accused and due to this grudge, he murdered Jaspal Singh, brother of the complainant.
After recording the statement of Jagtar Singh alias Fauji, SI Jarnail Singh made an endorsement Ex. PA/1 thereon. Formal FIR. Ex.PA/2 was registered by Ram Lal, ASI. Thereafter, Jarnail Singh, SI along with other police officials went to the spot and prepared site plan Ex.PC with correct marginal Crl. Appeal No.D-1220-DB of 2011
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notes. Two empty cartridges of 7.65mm (.32 bore) caliber were found lying near the dead body and were taken into possession vide separate recovery memo Ex.PD. Blood stained earth was also taken into possession vide recovery memo Ex.PE. The inquest report Ex.PF of the dead body of Jaspal Singh was prepared. The body was sent for post mortem examination. Thereafter, accused was arrested on 10.05.2007 vide memo Ex PG. The accused was searched and a pistol 7.65 MM (.32 bore) was recovered from his left dub. It was taken into possession vide memo PJ. Five live cartridges were also recovered which were taken into possession vide separate parcel.
After completion of investigation, challan was presented in the court of Illaqa Magistrate, who committed the same to the Court of Sessions for trial. The appellant was charge-sheeted under Sections 302 IPC and Section 27 of the Arms Act, to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined the following witnesses:-
PW-1 Jagtar Singh, the complainant, who on oath supported the prosecution version as narrated by him in his statement (Ex.PA) before Jarnail Singh, SI on 09.05.2007. He stated that at about 3.30 P.M. on 9.5.2007 the accused came out of his house/ kothi holding a pistol 7.65 MM (.32 bore) and Crl. Appeal No.D-1220-DB of 2011
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was hurling abuses directed to the complainant's brother and stating that he was having illicit relations with his wife Sukhdeep Kaur and that despite warning he had not desisted from it and that today he would give him a taste of it. Then accused came to the shop of his brother and fired twice at him which hit him on his chest, one in the front and the second on his right flank. His brother fell in the shop itself and died on the spot . The accused ran away from the shop with his weapon. In cross examination, he admitted that the place of occurrence is a thorough fare and thickly populated. Many people had assembled at the spot at the time of occurrence. He stated that he was at a distance of 10/12 feet when the occurrence took place. He also stated that he tried to save himself while remaining at the spot. He stated that the shots were fired from a distance of 8/10 feet on the deceased. He denied the suggestion that the accused had returned to his house just before the occurrence. He also denied the suggestion that when the accused entered his house he saw the deceased with his wife in his bedroom and he ran away by giving a push to the accused and resultantly the accused got angry, lost self control and followed the deceased under grave and sudden provocation.
PW-2 Malwinder Singh, son of the deceased deposed on similar lines. In cross examination, he stated that he did not Crl. Appeal No.D-1220-DB of 2011
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intervene or stop the accused. He stated that he did not try to save his father as he was saving himself. He stated that he and his uncle were at a distance of two feet when shots were fired at his father. He stated that the shots were fired from a distance of 8/9 feet. He admitted that the accused had just arrived at his house before the occurrence. However, he denied the suggestion that when the accused entered his house he saw the deceased with his wife in his bedroom and he ran away by giving a push to the accused and resultantly the accused got angry, lost self control and followed the deceased under grave and sudden provocation.
PW-3 Jagir Singh, had identified the dead body of Jaspal Singh. He proved his signatures Ex.PW3/A on the inquest report of Jaspal Singh.
PW-4 Surinder Kumar, Junior Assistant, proved the arms licence Ex.P-1, issued in the name of Inderjit Singh, accused.
PW-5 Satbir Singh, Head Constable, who on direction of Jarnail Singh, SI, got conducted the post mortem on the dead body of Jaspal Singh son of Bachan Singh, proved police request Ex.PB. He further deposed that the clothes were handed over to the Investigating Officer by him alongwith one plastic box containing bullets who after converting the same into the parcels, Crl. Appeal No.D-1220-DB of 2011
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sealed with seal mark 'JS' and were taken into possession vide recovery memo Ex.PC.
PW-6 Jarnail Singh, SI, the Investigating Officer, deposed that on 09.05.2007 he alongwith other police officials was present at Dadwan Chowk, Dhariwal, where he recorded the statement of Jagtar Singh, complainant, and made endorsement Ex.PA/1 over that and sent to the police station for registration of formal FIR. On the basis thereof, FIR No.60 dated 09.05.2007 under Sections 302 IPC and 27 of the Arms Act (Ex.PA/2) was registered by Ram Lal, ASI. Thereafter, he alongwith other police officials went to the place of occurrence and prepared the site plan Ex.PC with correct marginal notes. He further deposed about the recovery of empty cartridges, which were lying near the dead body, and proved that the same were taken into possession by him vide recovery memo Ex.PD and the blood stained earth was also taken into possession vide recovery memo Ex.PE. PW- 6 also deposed about the recording of the statements of the witnesses under section 161 Cr.P.C.
The Investigating Officer (PW-6) further deposed that on 10.05.2007 accused was arrested vide memo Ex.PG. During the course of investigation, a pistol of calibre 7.65 mm (.32 bore) was recovered from the left dub of the accused and the same was taken into possession vide recovery memo Ex.PJ along with Crl. Appeal No.D-1220-DB of 2011
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five live cartridges Ex.P-6 to Ex.P-10. Parcel of clothes along with parcel containing bullet was taken into possession vide recovery memo Ex.PC. Thereafter, the case property was deposited with the MHC. On completion of investigation and on receipt of report of Chemical Examiner of Forensic Science Laboratory (Ex.PL), challan was presented before the court for trial.
During cross-examination, he stated that during the investigation, it has come that the occurrence took place due to illicit relations of the deceased with the wife of the accused in his absence. He stated that it has come in the investigation that prior to the occurrence on that day, deceased Jaspal Singh had gone to the house of the accused to meet his wife in his absence. Accused suddenly came to the house and saw Jaspal Singh in his house and got angry. He stated that the shops were open at the time of occurrence and many people were frequenting the road which passes in front of the furniture shop. The statements of persons of adjoining shops were not recorded under Section 161 Cr.P.C. as they were not willing to make their statements.
In cross examination, he also stated that the road in front of the furniture shop is around 18 feet. The dead body was lying near the road in front of the furniture shop.
PW-7, Narinder Singh HC tendered his affidavit Ex.PW7/A deposing therein that on 22.05.2007 Jasbir Singh, Crl. Appeal No.D-1220-DB of 2011
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Record Keeper brought out from the malkhana one parcel containing pistol 7.65 mm (.32 bore) caliber and another parcel containing live cartridges, and the same were handed over to him. On 23.05.2007, he deposited both the parcels alongwith sample seals intact in the office of FSL, Chandigarh.
PW-8 Jaspal Singh, HC tendered his affidavit Ex.PW8/A deposing therein that on 12.06.2007 Record Keeper Jasbir Singh handed over to him a parcel containing clothes of the dead body of Jaspal Singh, duly sealed for depositing in the office of FSL, Chandigarh. He after depositing the same, handed over a receipt to Jasbir Singh, Record Keeper on 13.06.2007. He also deposed that so long as parcel remained in his possession, no one had tempered with the seals.
PW-9 Dr. Arvind Mahajan, MO, deposed that on 10.05.2007 he conducted post mortem examination on the dead body of Jaspal Singh and found the following injuries on his person:-
"1- There was a lacerated wound 0.5 cm x 0.5 cm having inverted margins with blackening of margins present on the front of the right side of chest, 1.5"
below the sterno clavicular joint and 2" from the mid line. There was a corresponding tear on the clothes with blackening.
2- Another lacerated wound 6 mm x 5 mm in size with inverted margins with furrow towards posterior Crl. Appeal No.D-1220-DB of 2011
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latterly and upward with blackening of margins on the front of left side of chest in the forth intercoastal space 2.5" from the mid line with corresponding tear on the clothes."
He deposed that the ribs on the left posterior chest 4th to 7th were fractured. The corresponding muscles were lacerated and there was a bullet present in the lacerated muscles of the posterior wall of chest on left side. Similarly, he stated that on the posterior wall on left side 9th, 10th, 11th, and 12 th ribs were fractured with corresponding muscles were lacerated. On further dissection of muscles there was a bullet present in the muscles.
PW-9 opined that the cause of death in this case was due to injury to the vital organs leading to hemorrhage and shock. Injury was ante-mortem in nature and was caused by firearm. It was sufficient to cause death in the ordinary course of nature. The probable time between injury and death was immediate and between death and post mortem was within 24 hours. He deposed that after postmortem the following things were handed over to the police.
1. Reconstituted dead body alongwith its belongings.
2. Copy of post mortem examination report.
3. Ten police inquest papers
4. A sealed jar containing two bullets bearing three Crl. Appeal No.D-1220-DB of 2011
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seals.
He proved postmortem report of deceased Jaspal Singh as Ex.PN.
PW-9 (wrongly written) Yash Pal, retired Sub Inspector, who was a member of the police party headed by SI Jarnail Singh, deposed on the same lines as deposed by PW-6 Jarnail Singh, SI. He deposed about the recovery of two empty cartridges of pistol 7.65 mm (.32 bore) from near the dead body of deceased Jaspal Singh. He was also a witness to the arrest of accused and the recovery of the pistol 7.65 of .32 bore from the left dub of the accused. In his cross examination he stated that the fired cartridges were lying outside the shop. The dead body was also lying outside the shop.
PW-10, PW-11 and PW-13, Constable Harbhajan Singh, PHC Gurdev Singh and ASI Jasbir Singh, respectively, are formal witnesses, who proved the deposit of sealed parcels of recovered articles to the Forensic Science Laboratory, Chandigarh. Draftsman Janak Singh Dhanjal, who was examined as PW-14 proved the map of the place of occurrence.
The report of the Forensic Science Laboratory is Ex PL . The result of the examination was that the cartridge cases marked C/1 and C/2 contained in parcel A had been fired from 7.65 mm 10F pistol No. RP-125576. The firing mechanism of the Crl. Appeal No.D-1220-DB of 2011
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pistol was found to be in working condition.
After conclusion of prosecution evidence, statement of the accused-appellant was recorded under Section 313 Cr.P.C., wherein he denied having committed any offence and alleged that he has been falsely implicated in the case. He stated that he is a Govt. teacher and belongs to a well educated family. His father was a professor, a doctorate and a highly renowned religious personality who had authored many religious books. He was married with Sukhdip Kaur, who belonged to a religious family but unfortunately had a genetic mental problem and she and her brothers and sisters were not fully mentally developed. He came to know of this fact later on, but as his father had given a word and already settled his marriage he went ahead with the same in order to fulfil his father's promise. The two brothers of his wife are also mentally disabled and his wife has intelligence quotient equivalent to a girl of 15 years.
He further stated that Jaspal Singh, deceased, who was running a shop in front of his house, was a vagabond and influential and having dominating effect. The people of the locality feared from him as many FIRs were registered against him and he was convicted for an offence under section 326 IPC. Jaspal Singh, deceased by taking advantage of the mental condition of his wife Sukhdip Kaur, having less intelligence quotient than a Crl. Appeal No.D-1220-DB of 2011
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normal person, put fear into her mind and in the absence of the accused, he used to sexually exploit her and developed illicit relations by giving threats and used to warn her that he would kill her children and husband in case she disclosed anything about him. Jaspal Singh started visiting his house to meet his wife in his absence. He had warned Jaspal Singh not to enter his house, but Jaspal Singh did not mend his ways and in fact used to taunt him by saying double meaning lascivious words with apparent reference to his wife. On the day of the occurrence, his wife was alone in the house and when he returned from his school, he saw Jaspal Singh in his bed room with his wife and on seeing him, he (Jaspal Singh ) ran away by giving him a push. He thereafter chased him when he was running towards his shop. He got angry and lost self control on sudden provocation. He stated that the police has falsely implicated him by planting the witnesses.
No evidence in defence was led by the accused. After hearing learned counsel for the parties and going through the record, learned trial Court held the accused guilty for an offence punishable under sections 302 IPC and 27 of the Arms Act and sentenced him vide the impugned judgment and order.
Sh. Goraya, learned counsel for the appellant has Crl. Appeal No.D-1220-DB of 2011
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raised the following contentions:
(i) PW-1 and PW-2 who are stated to be the eyewitnesses to the incident in their deposition have stated that the accused came to the shop of the deceased, fired twice at him which hit him on the chest, one in the front and second on the right flank, due to which the deceased fell down in the shop itself and died on the spot.
(ii) As against this the Investigating Officer SI Jarnail Singh in his cross examination stated that the road in front of the furniture shop of the deceased is 18 feet and the dead body was lying near the road in front of the furniture shop.
He also referred to the site plan and indicated that as per this site plan the distance between the shop and the place where the dead body was lying was about 13 ft.
Similarly Yash Pal (Retired Sub Inspector) PW-9 who was in the police party with SI Jarnail Singh in his cross examination stated that the dead body was lying outside the shop.
By referring to the aforesaid contradictions between the version of the PW-1 and PW-2 on the one hand and that of the IO and others on the other with regard to the place where the dead body was found, Ld. Counsel has Crl. Appeal No.D-1220-DB of 2011
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contended that PW-1 and PW-2 have, in fact, not witnessed the incident and they are deposing falsely.
(iii) The medical evidence falsifies the version of PW-1 and PW-2 and proves that they are deposing falsely and have, in fact, not witnessed the occurrence. He referred to the statement of PW-1 in cross examination that the shots were fired from a distance of 8/10 feet on the deceased. PW-2 in his cross examination stated that the shots were fired from a distance of 8/9 feet. He then referred to the deposition of Dr. Arvind Mahajan, according to whom, both the injuries had inverted margins with blackening of margins. Sh. Goraya has contended that it is an authoritatively accepted fact that carbonaceous tatooing (blackening) is normally possible only upto a distance of about 18''. As there was blackening of margins, the version of PW-1 and PW-2 that the shots were fired from a distance of about 8/9 feet is falsified by the medical report. This clearly suggests that the witnesses have not witnessed the occurrence and they are deposing falsely and their evidence cannot be relied upon.
(iv) There is delay in sending the Special report. The occurrence took place at 3.30 P.M and the FIR was registered at 5.05 P.M, whereas, the Special Report Crl. Appeal No.D-1220-DB of 2011
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reached the Ilaqa Magistrate Gurdaspur at 8.15 P.M. The distance between P.S. Dhariwal and Gurdaspur is only about 10 Kms. He refers to the cross examination of HC Gurdev Singh who had delivered the Special Report to the Ilaqa Magistrate that it took him 15 minutes from the police station to reach the house of the Ilaqa Magistrate. As only fifteen minutes were taken in reaching the Ilaqa Magistrate, the Ld. Counsel contended that there is unexplained delay in sending the Special Report.
(v) PW-1 and PW-2 are not natural witnesses. Their presence at the spot has not been explained. PW-1 in his deposition stated that his house is at a distance of about one and half Kilometer from the furniture shop and that he is an agriculturist. He reached the shop at about 11.00 A.M. He stated that there was no particular purpose for him to stay at the shop. Similarly PW-2 stated in his cross examination that his shop is at a distance of one and half kilometer from the furniture shop. He stated that he had reached the shop at about 8.00 A.M. He also did not explain any purpose for his visit and staying at the shop.
(vi) Motive and recovery is of no consequence if the witnesses are proved to be lying.
Lastly, the Ld. Counsel has argued that if the Court Crl. Appeal No.D-1220-DB of 2011
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comes to the conclusion that the offence has been committed by the appellant, then he is entitled to the benefit of Exception 1 of Section 300 IPC and the act he held to have been committed due to grave and sudden provocation.
To the contrary the Ld. State Counsel has contended that the charge has been fully proved. PW-1 and PW-2 have witnessed the incident and have proved that the death has occurred due to pistol shots fired by the accused. The pistol has been recovered from the accused and the Forensic Science Laboratory report certifies that the cartridge cases marked C/1 and C/2 contained in parcel A had been fired from 7.65 mm 10F pistol No.RP-125576, the licensed pistol of the accused. The motive has also been proved by the prosecution. Ld. State Counsel also contended that the accused cannot get the benefit of Exception 1 of Section 300. He has argued that the accused has intentionally caused the death of Jaspal Singh. Accused had sufficient time to cool and compose himself, and considering that he shot the deceased not in his house but went to the latter's shop and shot him there.
We have heard the Ld. Counsel for the parties and gone through the record.
We do not agree with the contentions of the Ld. Counsel for the appellant that the PW-1 and PW-2 are in any Crl. Appeal No.D-1220-DB of 2011
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manner deposing falsely and that they have not witnessed the incident or that their version is contradicted by the Investigating Officer and consequently their presence at the spot is doubtful. PW-1 and PW-2 have stated that the deceased was shot at in the shop and died on the spot. The Investigating Officer SI Jarnail Singh in his cross examination stated that the dead body was lying near the road in front of the furniture shop. Similarly Yash Pal (Retired Sub Inspector) PW9 who was in the police party with SI Jarnail Singh in his cross examination stated that the dead body was lying outside the shop. While they have stated that the body was lying outside the shop they have not stated that the body was lying on the opposite end of the road in front of the shop. As per PW-1 and PW-2, the deceased was shot at in the shop, so whether the body was found lying in the shop or outside the shop when the police arrived is not such a material contradiction as would fatally affect the prosecution case.
The next contention of the Ld. Counsel is that the medical evidence which shows blackening of the margins of the wound, falsifies the version of PW-1 and PW-2 who stated that the shots were fired from a distance of about 8/9 ft. Regarding this contention what needs to be noticed is that PW1 and PW2 have specifically stated that the shots were fired by the accused on reaching the shop of the deceased. The accused came to Crl. Appeal No.D-1220-DB of 2011
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the shop, shot at the deceased and ran away. They certainly would be in shock at witnessing the murder of their brother and father respectively in front of their eyes. There is every possibility that the PW1 and PW2 may have misjudged the distance from which the shots were fired upon the deceased. Moreover they were deposing about two and half year after the incident. So merely because the medical evidence points to the injury being caused from the shots being fired from a much closer range than that stated by PW1 and PW 2 is again no ground to disbelieve their version.
The fact that they could not state the specific reason as to why they were present in the shop on the day of the incident is again no ground to doubt their presence there. PW-1 and PW-2 are the brother and son of the deceased. No particular reason is needed for them to have visited the deceased. So this argument of the Ld. Counsel for the appellant cannot be accepted.
The argument of the Ld. Counsel for the appellant regarding delay in sending of the Special report is also without merit. The occurrence is at 3.30 P.M. The recording of the statement of the complainant by SI Jarnail Singh was completed at about 4.45 P.M. Thereafter, SI Jarnail Singh along with police party reached the spot at about 4.50 P.M. The FIR was Crl. Appeal No.D-1220-DB of 2011
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registered promptly at 5.05 P.M., The body was sent for post- mortem examination at about 6.30-6.45 p.m. The Special Report reached the Ilaqa Magistrate Gurdaspur at 8.15 P.M. This does not indicate any delay.
Thus, the incident is proved. It has been proved that the death has been caused by the shots fired by the accused from his licensed pistol. The motive has also been duly proved.
But there appears to be merit in the contention of the Ld. Counsel for the appellant that the case is covered under Exception 1 of Section 300 of the Penal Code.
PW-1 and PW-2 have specifically mentioned about the motive of the accused to have shot at the deceased . The accused had a suspicion that the deceased had illicit relations with his wife.
The accused in his statement under Section 313 CrPC has explained in detail that both he and his wife belonged to a religious family. Though, he had come to know that the family of his wife had a genetic mental problem and she and her brothers were not fully mentally developed, yet he went ahead and married her to honour his father's promise. He explained that the deceased who was a vagabond, but influential and much feared person, took advantage of the mental condition of his wife Sukhdip Kaur and sexually exploited her and threatened her Crl. Appeal No.D-1220-DB of 2011
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against disclosing anything. The accused stated that he had warned the deceased not to enter his house, but the latter did not mend his ways and in fact used to taunt him by using double meaning lascivious words with apparent reference to his wife. On the day of the occurrence, his wife was alone in the house and when he returned from his school, he saw Jaspal Singh in his bed room with his wife and on seeing him, he (Jaspal Singh) ran away by giving push to him. He thereafter chased him when he was running towards his shop. He got angry and lost self control on sudden provocation. The accused does not proceed to explain what happened thereafter. He has stopped short of admitting that he followed the deceased to his shop and shot at him.
As per this version, when the accused returned home from school he found the deceased in the bed room with his wife. The deceased gave him a push and ran away and the accused chased him. This sequence receives support from the prosecution evidence as well. Though, PW-1 has denied the suggestion that the accused had returned to his house just before the occurrence, but PW-2 in his cross examination admitted that the accused had arrived at his house just before the occurrence. PW-6 the Investigating Officer had also in his cross examination stated that it has come in investigation that Crl. Appeal No.D-1220-DB of 2011
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prior to the occurrence on that day deceased Jaspal Singh had gone to the house of the accused to meet his wife in his absence. The accused suddenly came to the house and on seeing Jaspal Singh in his house got angry. The defence version is further lent support from the evidence of PW-1 and PW-2, who stated that the accused came out of his house with pistol in hand and started giving abuses to the deceased that he was having illicit relations with his wife and despite being warned many a times about it, he had not desisted and that today he would give him a taste of it. This behaviour of the accused hurling abuses at the deceased while coming out of his house and rushing to the shop of the deceased is consistent with his version that he had seen the deceased in the bedroom with his wife, and the latter on seeing him had run away after pushing him away and the deceased was chasing him in anger and rage. If there was no immediate provocation causing him to lose his self control as stated in the defence version, there was no occasion for the accused to come out of his house hurling loud abuses at the deceased which could be heard by other shopkeepers and passers by and would forewarn the deceased and cause him to hide or escape.
Thus, we are inclined to believe the version of the accused that on the fateful day when he returned home from Crl. Appeal No.D-1220-DB of 2011
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school he found the deceased in the bed room with his wife. On seeing the accused, the deceased Jaspal Singh gave him a push and managed to escape. Thereafter, the accused must have immediately picked up his pistol, chased the deceased to his shop and shot at him resulting in his death. The only question that remains to be considered is, whether the case of the appellant would qualify to be covered by Exception 1 to Section 300 IPC.
There is no universally applicable principle to determine whether an act has been done under grave and sudden provocation. It depends on the facts of a given case. The Hon'ble Supreme Court in Budhi Singh v. State of H.P., (2012) 13 SCC 663, explained the circumstances of applicability of the defence of grave and sudden provocation as under:-
"The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally Crl. Appeal No.D-1220-DB of 2011
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mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury."
Certain illustrative cases would be instructive in this regard.
In Bonda Devesu v. State of A.P., (1996) 7 SCC 115, the prosecution case was that the deceased used to tell the wife of the appellant that he will carry her away and marry her. On 4-6-1989, at about 8 in the morning, the wife of the appellant had gone to fetch water from a water kundi. While the wife of the appellant was taking water, the deceased caught hold of her hand and asked her to come with him. Somehow, she got herself released and ran away to her house and informed the appellant about the incident. The appellant went to the deceased and gave an axe blow to the deceased which proved fatal. In these circumstances, Hon'ble Supreme Court held as under:-
"5. The prosecution had alleged participation by other persons also but they have been acquitted by the trial court. We are informed that the appellant is a tribal. The behaviour of the tribals, in situation in which the occurrence has taken place is well known. When prosecution case itself is that the deceased used to misbehave with the wife of the appellant and on the date of occurrence he was actually taking her away by catching hold of her hand, in the normal course it Crl. Appeal No.D-1220-DB of 2011
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was bound to cause grave provocation to the appellant, because of which the offence was committed. In this background, the appellant cannot be convicted for an offence under Section 302. His case is covered under Exception I to Section 300 of the Penal Code. Accordingly, we set aside the conviction and sentence under Section 302 of the Penal Code and convict him under Section 304 Part I. So far as the sentence is concerned, we direct imprisonment for a period of seven years. The appeal is accordingly allowed to the extent indicated above."
In Devku Bhikha v. State of Gujarat (1996) 11 SCC 641 the deceased, Head Master of a school, had asked the accused to make his wife available for immoral purposes in return to give job to the accused in the school as well as charged him of impotency and the accused killed the Head Master by inflicting repeated knife injuries. The Hon'ble Supreme Court accepted it as an offence punishable under Section 304 Part I, holding as under:
"3. 1 Thus, from this analysis it becomes abundantly clear that the appellant was driven to the crime which was not premeditated and the occasion had sprung up at the moment, gradually leading to the point when the appellant lost his self-control, and due to grave and sudden provocation, inflicted the injuries on the deceased, successively within seconds. We think, therefore, that the offence made out against the appellant is under Section 304 Part I IPC. Crl. Appeal No.D-1220-DB of 2011
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Accordingly, the offence is scaled down from one punishable under Section 302 IPC to one under Section 304 Part I IPC for which we impose sentence of seven years' RI on the appellant."
In State of Punjab v. Jagtar Singh, (2011) 14 SCC 678, the accused persons had killed Gurnam Singh and their sister Paramjit Kaur by strangulation because Paramjit Kaur had sexual relations with Gurnam Singh. The High Court came to the conclusion that it was deceased Gurnam Singh who himself sneaked into the house of the accused persons and must have had sexual intercourse with Paramjit Kaur and on seeing them in a compromising position, the accused persons must have killed them. On this basis, the High Court came to the conclusion that even if this was proved, it was a case of grave and sudden provocation and as such it could not be a case of murder and would come under Section 304 Part I read with Section 34 IPC on the basis of the First Exception to Section 300 IPC. Therefore, the High Court converted the sentence of the accused from imprisonment for life to rigorous imprisonment for five years with a fine of Rs.1000/- each. The Hon'ble Supreme Court dismissed the special leave petition of the State of Punjab holding that the case was covered under Exception 1 of Section 300 IPC.
In State of U.P. v. Shyam Veer, (2005) 10 SCC 611, the accused had come to the place of occurrence on hearing Crl. Appeal No.D-1220-DB of 2011
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about their brother's death. They had thereafter picked up the body of the deceased brother and kept it under a Neem tree. Then they set fire to the house of the deceased. It was not disputed that the second occurrence took place within 15 minutes of the first occurrence. The High Court had sentenced the accused to 10 years' rigorous imprisonment under Section 304 Part I IPC. The Hon'ble Supreme Court said that in the facts and circumstances it could not be said that the view taken by the High Court was not reasonable The Court observed:
"The incident seriously infuriated the family members of the deceased and resulted in deprivation of power of self-control. The time gap of only 15 minutes between the two incidents supports the case of the respondents that what they did was under
grave provocation whilst deprived of their power of self-control on account of the murder of their brother by Indal. According to her the time gap of 15 minutes was not sufficient for the members of the family of Rajvir Singh to gain their self-control particularly, when they saw the dead body of their brother who was murdered by Indal. It must have taken some time for them to reach the house of Ghamandi Lal, and within no time thereafter the second occurrence took place.
6. Having regard to the facts and circumstances of the case, we are not in a position to say that the view taken by the High Court is not a possible reasonable view of the evidence on record. Respondents 1 to 5 Crl. Appeal No.D-1220-DB of 2011
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have been sentenced to 10 years' rigorous imprisonment under Section 304 Part I IPC and also to 7 years' rigorous imprisonment under Section 436 IPC apart from the sentence of two years under Section 147 IPC. The occurrence took place 16 years ago. We are, therefore, not inclined to interfere with the order of the High Court."
In Hansa Singh v. State of Punjab, (1976) 4 SCC 255, the occurrence took place while the deceased was committing sodomy on Haria and that gave such a sudden and grave provocation and annoyance to the appellant which impelled him to assault the deceased. The Hon'ble Supreme Court held that the case of the appellant falls clearly within the purview of Section 304 Part II of the Indian Penal Code. The appellant on seeing the deceased committing the act of sodomy on his son, lost his power and self-control and it was undoubtedly a grave and sudden provocation for him which led him to commit the murderous assault on the deceased.
In Ajit Singh v. State of Punjab, 1989 Supp (2) SCC 147, the appellant's plea before the Sessions Judge was that he had left the house on that morning to visit his sister but after going to some distance, he realised that he had not brought his money purse and hence he came back to the house. On reaching home, he found Gurbux Singh and his wife in a compromising Crl. Appeal No.D-1220-DB of 2011
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position and acting under grave and sudden provocation he had fired the shots at his wife and Gurbux Singh. Though the Sessions Judge refused to give credence to the defence version, the High Court gave credence to it as the events pertaining to the occurrence gave a high degree of probability to the version. The Supreme Court held that the High Court was justified in holding that the appellant had acted only under grave and sudden provocation, when he fired the shots at Swarno and Gurbux Singh.
In the present case, the deceased taking undue advantage of the mental condition of the wife of the accused had developed illicit sexual relations with him. He used to visit the house of the accused in his absence. The accused was in the know of this and had repeatedly warned him to desist from his activities, but without success. On the fateful day when the accused returned from school he found the deceased in the bed room with his wife. The deceased succeeded in running away by pushing away the accused. This caused extreme provocation to the accused, who immediately picked up his pistol, followed the deceased to his shop which was right opposite to his house and shot at him and ran away. Though, the accused had been forbearing earlier and had only limited himself to warning the deceased to desist from his evil ways, but having caught him in Crl. Appeal No.D-1220-DB of 2011
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such a position, the accused must have lost his self control and shot at the deceased. All this happened before the accused had regained his composure and self control. Thus, we are of the view that the Ld. Court below was not correct in holding that the case of the accused was not covered under Exception 1 to Section 300 IPC.
Accordingly, we partially accept this appeal. The conviction of the appellant under Section 302 IPC is set aside. Instead, the appellant is convicted of offence under Section 304 Part I IPC and sentenced to undergo imprisonment for eight years and to pay fine of Rupees Ten Thousand. In case of default of payment of fine, the appellant shall undergo further rigourous imprisonment for six months.
The conviction and sentence of the appellant under Section 27 of the Arms Act is however maintained. Both sentences to run concurrently.
(ASHUTOSH MOHUNTA) (HARINDER SINGH SIDHU)
ACTING CHIEF JUSTICE JUDGE
September 24, 2014
gian
GIANENDER KUMAR
2014.09.25 13:46
I attest to the accuracy and
integrity of this document