Allahabad High Court
Bahal Singh vs The State on 29 January, 1969
JUDGMENT K.C. Puri, J.
1. Bahal Singh who has been convicted of offence Under Section 302, Penal Code and sentenced to undergo imprisonment for life by the order dated 29th of January, 1969 passed by the Sessions Judge, Kheri, has preferred this appeal. The appellant was tried of the charge for offences Under Section 302, tenal Code for having committed the murder of Ranjit Singh on the 14th March, 1968 at about 11 p, m., at the hutment of Nirmal Singh near village Sanda, police station fhoolbehar, district; lakhimpur Kheri.
2. Ranjit Singh, Nirmal Singh (P.W. 1) and Bhajan Ssrigh i,P.W. 2) were real brothers. They had got their farm naar village Sanda and for their abode they had constructed hutments on that farm. The appellant is the huaband of the sister of Nirmal Singh and the other two brothers. The appellant's sister is in turn married to Nirmal Singh. It; is thus that the appellant is doubly connected with the family of Nirmal Singh. The appellant Bahal Singh lived in Balamau. He had come to the house of Nirmal Singh a day preceding the night of the occurrence. Inder Singh, the father of Nirmal Singh, Bhajan Singh and Ranjit Singh deceased also had a separate hutment on the said farm. On the night between like 14th and 15th of Maicb, 1968 Bahal Singb, the appellant, had dined at the place of Inder Singh and after taking dinner he along with. Bhajan Singh (P. W 2), had come to the room of Nirmal Singh (P.W. 1). A little thereafter when Nirmal Singh, Bhajan Singh and the appellant were there in the said room, iianjit Singh, who was the younger brother of Nirinal Singh, arrived there. In the said room there was electric light. When Ranjit Singh arrived there then exchange of greetings took place between him and the appellant. Thereafter, the appellant told Ranjit Singh that Ranjit Singh had come to Balamau a few days back and yet he had not come to meet the appellant to which Ranjit Singh replied That appellant had not come to dine at his place despite his having requested him to do so. This talk inter se the appellant and Ranjit Singh developed into quarrel and there was exchange of abuses. The appellant then slapped Ranjit Singh and the latter retaliaed by giving a slap to the appellant. A Kirpan was hanging on tfce wall in that room. The appellant removed the Kirpan therefrom and gave a blow therewith in the chest of Ranjib Singiwho fell down and expired instantaneously. The appellant then ran away therefrom carrying with him tbs said Kirpan, but he left his shoes and turban at that place.
3. Nirmal Singh then rushed to the police station Phoolbehar situated at a distance of three miles from the place of occurrence and lodged the first information report, Ext. 1, there at 1.00 a. m., on the night between the 14th and 15th of March, l6d. On the basi3 of the said report a case was registered against the appellant for the aforesaid offence. P. "W. 5 Krishna Dayal Khare was station officer at the said police station at that time. Be commenced the investigation forthwith. He went to the spot on the very night and found the dead body of Banjit Singh in the room belonging to Nirreal Singh. He prepared inquest report and despatched the dead body for post mortem examination. He found the aforesaid pair of shoes and a turban belonging to the appellant lying there. He took the same into possession. He also took into possession the cover of the aforesaid Kirpan. After inter, rogating the witnesses, he prepared site plan, Ext. Ka. 14. He searched for the appellant, but could not trace him out. Later, he had gone to Balamau to trace out the appellant, but there too he could not succeed in apprehending him. It was on the 27th of March,1968 that the appellant surrendered himself in Court.
4. The post mortem examination on the body of the deceased was conducted by Dr. V. K. Nigam, Medical Officer, Jail and Police Hospital, Kheri on the loth of March, 1968 at J0.45 a. m. The probable age o the deceased in the opinion of the doctor was about 27 years and the probable time since death and the post mortem examination was about 12 horns. The doctor found a penetrating wound 1" x 3/10" x chest (Pericardial cavity J cavity deep on the lower part of the sternum in the mid line slightly more on the left situated obliquely 5 1/2" above tie umbilicus. Margins were clean cut and the, angle was sharp. On dissection, the wound was found to have gone into pericardium and the heart which was perforated. The diaphragm on the left side near the xiphisternum was also perforated. The weapon which in the opinion of the doctor, caused the said injury was a sharped one. On internal examination the doctor found perforated pericardium in continuation of the injury No. 1. The pericardium cavity contained fluid and clotted blood about 1 oz. The heart was perforated through and through in continuation of the injury No. 1. The death in the opinion of the doctor was due to shock and haemorrhage.
5. The appellant pleaded not guilty to the charge and be advanced a version of his own concerning the occurrence. He admitted the date, time and the place of tee occurrence. He, however, added that on the paid night after the dinner was over, quarrel developed between him and Ranjit Singh who was younger to him in age and by way of joke the appellant inflicted a, slap to Ranjit Singh whereupon the later got enraged and took out a Kirpan and intended to assault the appellant therewith when the appellant caught hold of his hand and in this scuffle somehow Ranjit Singh sustained injury in his chest with the said Kirpan and fell down there. Ha denied having stabbed Ranjit Singh with the Kirpan. He claimed that his relations with Ranjit Singh were cordial and added that it was a Holi day and along with the dinner he bad taken some drink while Ranjit Singh had taken drink in heavy quantity. The appellant did not produce any evidence in support of his version.
6. On behalf of the prosecution P.W. 1 Nirmsl Singh and P.W. 2 Bhajan Singh deposed to the occurrence in question. Both of them, as mentioned above, are brothers inter se and their sister is married to the appellant and the appellant's sister is married to Nirmal Singh. The said witnesses are the brothers of the deceased Ranjit Singh. Thus these witnesses could have had no reason to perjure themselves to falsely implicate the appellant, more particularly when their sister is married to the appellant and the appellant's sister is married to Nirmal Singh. Both these witnesses deposed to the prosecution version of the occurrence mentioned heretofore. They refuted the correctness of the suggestion advanced by the defence that the deceased had picked up the Kirpan and intended to assault the appellant therewith and it was then that the appellant caught hold of the hand of the deceased and the Kirpan accidentally struck into the chest of the deceased. From the evidence of the said witnesses it transpires that the Kirpan was there on the wall in the said room and the appellant after the exchange of elaps, as mentioned aboe, picked up the Kirpan therefrom and stabbed Banjit Singh therewith in the chest. Mohan Singh (P.W. 3) who was at that night lying down at a short distance from the said room bad been attracted by the cries and had gone towards the said room when in the light of the moon he eaw the appellant running away from the side of the room holding something like a Kin an in his hand. He also saw that the appellant, bad no shoes on hia feet nor was he having any turban on his head. Immediately thereafter the said witness went into the said room where he found Ranjit Singh with injury in his chest and Nirmal Singh and Bhajan Singh present there. Nirmal Singh and Bhajan Singh apprised the said witness about the manner in which tbe appellant had stabbed the deceased. Inder Singh (P.W. 4) who is the father of Nirmal Singh also deposed that on hearing the cries he went into the (room of Nirmal Singh and was told by his sons Nirmal Singh and Bhajan Singh that the appellant after stabbing Ranjit Singh had run away therefrom. P.W. 5 Krishna Dayal Khare, as mentioned above, investigated this caee. The occurrence both aocotdiitg to the prosecution and the defence took place in the room of Nirmal Singh on that night at about II p. m, When the occurrence took place inside the said room the inmates of that room could only be the ocular witnesses and, therefore, .Nirmal Singh and Bhajan Singh were probable and natural witnesses to the occurrence. They are deeply connected with the appellant while being related to tits deceased as well. The report had been lodged without the least delay containing the prosecution version of the occurrence. The evidence of the said witnesses is farther corroborated by the evidence of the investigating officer, who found the turban and the shoes, referred to above, lying in the said room and the Kirpan having been removed away thereform. If the Kirpan had accidentally hit the deceased,there was no reason for the appellant to carry it away with him while escaping therefrom. The appellant's version was rightly rejected by the learned trial Judge as the game was vague and could not carry conviction.
7. The learned Counsel for the appellant presently does not adopt that version nor does he challenge the prosecution version of the ease. The only contention advanced by the learned Counsel for the appellant is to the effect that the offence committed by the appellant would not fall within the ambit of Section 302, I, P.C. but would instead fall within the purview of Section 304,1. P.C. It is contended by the learned Counsel for the appellant that the relations between the deceased and the appellant were cordial and there was no animosity between them, the deceased was related to the appellant and the appellant had come as a guest to the village of the deceased (?) in connection with the Holi festival and it was all of a sudden that owing to the appellant asking the deceased as to why had ho not visited his place when he had come to his village and the latter replying that the appellant had not acceded to his request to dine with him that quarrel ensued and thereafter exchange of abuses took place between the appellant and the deceased and then the appellant slapped the deceased and the latter did likewise and in this heat of passion the appellant who was older in age than the deceased lost control over him and picked-up the Kirpan and stabbed the deceased therewith and, therefore, this act which had been done without premeditation, would make the appellant guilty of culpable homicide not amounting to murder. The learned Counsel urged that the case would be covered by Exception 4 to Section 300, IPC For bringing an offence within the said exception it is essential to establish that the culpable homicide has been committed without premeditation in a sudden fight in the heat of (passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. It is [true that the appellant stabbed the victim without premeditation and the quarrel too was sudden, but we rind that the deceased had no weapon with him and the appellant bad yet picked up the Kirpan and bad stabbed the victim in the meal; vital part of his body therewith. Thus obviously he tock undue advantage of the situation. It is again a case whore initially it was the appellant who had given the first slap to the deceased who had in turn given a slap to the appellant. In this back ground the appellant had no justification to pick up the deadly weapon like the Kirpan to inflict an injury therewith on the most vital part of the body described heretofore.
8. The learned Counsel for the appellant relied upon the ease reported in A.I.R. 1959 Mad 3iS8, Public Prosecutor v. Somasundaram, wherein it was held :
Where from words, the parties come to blows and if after exchange of blows on equal terms, one of the parties without any such intention at the commencement of the affray snatches a deadly weapon and kills the other party with it. such a killing will be only 'manslaughter.' But if a party under colour of lighting upon equal terms, uses from the beginning of the contest a deadly weapon without the knowledge of the other party and kills the other party with such a weapon or if, at the beginning of the contest he prepares a deadly weapon so as to have the power of using it at some part of the contest and uses it accordingly in the course of the combat, and kills the other party with the weapon, the killing in both these cases will be murder. Thus when two men engage suddenly in a fight the death of one of them is not the most natural or inevitable result, nor can it be said that either of them desires the end of the other. In such a case the Court is not concerned with the origin of the fight and the guilt or innocence of the accused is not dependent upon the result of an inquiry as to his conduct. The temper may rise with each exchange of blows and it is not unlikely that the less blameworthy individual may conduct himself in a more blameworthy manner. As long as the fight is unpremeditated and sudden, the accused, irrespective of his conduct before the fight, earns the mitigation provided for in the exception 4 to Section 300 subject to the condition that be did not in take course of the fight take undue advantage or act in a cruel Or unusual manner.
The facts of the instant case are distinguish, able from the facts of the case referred to above. In the present case, as mentioned above, it was the appellant who had inflicted slap on the deceased to start with and again it was all unawares that he picked up the Kirpan and stabbed the deceased therewith. He, there, fore, obviously took undue advantage of the situation and cannot avail of the benefit of the said exception.
9. The learned Counsel for the appellant is the alternative sought to avail of the exception 1 to Section 300 and urged that the appellant had been deprived of the power of self-control as a result of the abuses which the deceased had showered upon him, more particularly when the deceased was the gala of the appellant arid was younger to him and when any obnoxions thing emanating from him would have gravely provoked the appellant so as to lose self-control and pursuant to the grave and sudden provocation if be caused the death of the person offering the said provocation, then the offence committed by him would be culpable homicide not amounting to murder. It is Bought to be presumed that it was the deceased who initiated the abuses. There is nothing on the record to confirm the said contention. On the other hand, the evidence reveals that it was the appellant who had given the first slap. There was, therefore, nothing done by the deceased which could have provoked, much less gravely provoked, the appellant to pick up the Kirpan and to stab therewith the deceased and that too on the most vital part of the body. Therefore, the appellant cannot avail of the said exception.
10. The trial Judge consequently rightly convicted and sentenced the appellant.
11. The appeal is consequently dismissed and the conviction of the appellant and the sentence awarded to him are upheld. The appellant is reported to be on bail. He shall surrender thereto forthwith. The A. D. M. (J), Kheri, shall issue non-bailable warrant of arrest against the appellant and after he is apprehended shall remand him to jail custody to suffer the said sentence.