Punjab-Haryana High Court
Karnail Singh vs State Of Punjab on 4 March, 1982
JUDGMENT S.S. Dewan, J.
1. Karnaii Singh alias Faqir Singh, now appellant, aged 40 years and his co-accused Major Singh, aged 32 years, residents of village Dholewal and Harjinder Singh, aged 16 years and Davinder Singh, aged 19 years, residents of village Dhaul Majra, District Ludhiana, were tried for committing the murder of Smt Gurdev Kaur. Harjinder Singh, Devinder Singh and Major Singh were acquitted of the charge Under Sections 302/34, Penal Code. Karnaii Singh was found guilty for the offence Under Section 302 read with Section 303, Penal Code and was awarded the extreme penalty of death, Karnaii Singh's appeal against his conviction and sentence and the sentence of death awarded to him is otherwise before us for confirmation Under Section 366 of the Criminal P. C.
2. The prosecution case, in brief, is that on 18-4-1981 Gurmel Singh, brother of Gurdev Kaur (deseased) came to Dholewal for taking his relations to Dhaul Majra in connection with his betrothal ceremony and took his sister Smt. Gurdev Kaur, her husband Karnaii Singh appellant and their daughter Paramjit Kaur and Amar Kaur wife of Major Singh accused in a truck brought bv him. There at Dhaul Majra in the evening, Karnaii Singh appellant and other relations including accused Harjinder Singh and Devinder Singh, collaterals of Gurmel Singh took liquor together on the roof of the house. Gurdev Kaur (deceased) was also present there. It is said that while taking liquor Karnaii Singh abused his wife Gurdev Kaur and also threatened to kill her. On 19-4-1981 after the betrothal ceremony, Karnaii Singh appellant. Gurdev Kaur (deceased, Paramjit Kaur, P.W. and Amar Kaur left for Dholewal accompanied by the P. Ws. Mohinder Singh and Avtar Singh, brothers of the deceased in a truck. Harjinder Singh and Devinder Singh accused also managed to get into that truck and came with them to Dholewal where they all reached at 8 p. m. Major Singh accused and his mother Harnam Kaur, P.W., were present in the house at that time. After their arrival, they all took tea prepared by Gurdev Kaur whereas Paramjit Kaur, P, W., sat on a cot outside the kitchen where electric light was on and started studying. Amar Kaur, who was then pregnant, went into the hall and lay on a cot. Mohinder Singh and Avtar Singh sat in the baithak while all the four accused sat on a cot in the courtyard outside the baithak, opposite to the hand-pump and started taking liquor.
3. The prosecution story goes that after serving tea to her brothers, Gurdev Kaur went inside the hall to do some odd jobs of the house and in the meantime, Karnail Singh appellant called Gurdev Kaur ad asked her to supply water to them. Gurdev Kaur came to the hand-pump and started drawing water in a garvi in order to supply the same to the accused, who were taking liquor together. While she was drawing water from the hand-pump, the accused Har-jinder Singh, Devinder Singh and Major Singh raised a lalkara addressing Karnail Singh that what he was looking to and (sic) he should strike. On their instigation, Karnail Singh picked up his licensed gun from the cot and fired a shot which hit in the left-flank of Gurdev Kaur as a result of which she slumped on the ground. The lalkara raised by the accused attracted Mohinder Singh and Avtar Singh to the spot and they witnessed the occurrence. This occurrence was also witnessed by Param-jit Kaur, who was then sitting on a cot nearby and Harnam Kaur, who came outside the hall. Mohinder Singh, Avtar Singh and ParamjU Kaur rushed towards Gurdev Kaur and in the meantime, Karnail Singh reloaded his gun with two live cartridges after ejecting the fired cartridge case. Thereafter, all the accused bolted away with the gun while hurling threats to the witnesses. The witnesses tried to pour water into the mouth of Gurdev Kaur but she had already expired. The dead-body of Gurdev Kaur was placed on a cot and thereafter Harnam Kaur left for the police station while Mohinder Singh and Avtar Singh left for Dhaul Majra to inform their relations about this incident.
4. Harnam Kaur, P.W., lodged the First Information Report, Exhibit P. O., at Police Station Division No. 6, Ludhiana. at io p. m. After the registration of the case, Sub-Inspector Manohar Lai went to the house of Karnail Singh and found the dead-body of Gurdev Kaur lying on a cot and Faramjit Kaur, Avtar Singh and Babu Singh present near the dead-body. The Sub-Inspector held inquest, Exhibit P. E. and recorded the statements of the aforesaid witnesses. The accused were searched but they were not traceable. On the following day, Sub-inspector Manohar Lai inspected the spot and prepared its visual plan, s Exhibit P. E. He lifted blood-stained earth from the courtyard of the house from near the hand-pump and recovered certain broken pieces of glass including broken tumblers and bottle from there. He also recovered one fired cartridge case, Exhibit P. 4, from the same place in the presence of Kesar Singh and Bhan Singh, P. Ws. The dead-body was sent to the mortuary for autopsy under the escort of Lath Singh and Sukhminder Singh, Constables.
5. Dr. Surjit Singh, P.W. 2. conducted autopsy on the dead-body of Gurdev Kaur on 20-4-1981 at 5-00 p. m. and found the following injuries:
1. A lacerated gun shot wound of 4 cm x 4 cm depth not probed on left lateral aspect of the abdomen in the upper part just behind the mid axillary line. The margins were inverted. The blackening was present at the margins. Lacerated tissues and blood were present in the wound. A corresponding hole was present in the shirt.
2. Three small lacerated wounds each measuring approximately 3/4 cm x 3/4 cm placed in a curved line and of io cm in the lower half of right lateral aspect of chest approximately just in front of the right axillary line in middle. Margins were averted and clotted blood was present in the wounds. The wounds were surrounded by an area of ecchymosis measuring approximately 12 cm x 8 cm. There were three small protruding swellings hard, below the skin.
3. A lacerated wound of 3/4 cm x 3/4 cm in the antero medial aspect of uppermost part of right forearm. The margins were inverted. There was protruding hard little swelling on the back of right forearm in the inner half of the junction of lower 2/3rd with upper l/3rd. On prob- ing from the entry wound, it went to the swelling deep to the skin.
Death was opined to be due to shock and haemorrhage as a result of injury No. 1, which was sufficient to cause death in the ordinary course of nature. The time that elapsed between injuries and death was stated to be immediate and between death and post-mortem within 24 hours. Karnail Singh and Harjinder Singh accused were arrested by the Sub-Inspector on 22-4-1981 while the other two accused were arrested on May 6 and May 7, 1981. At the time of arrest, Karnail Singh accused produced his double barrel gun, Exhibit P. 1, 3 live cartridges and the licence, Exhibit P. 2. These articles were taken into possession vide memo Exhibit P. M. The gun and the fired cartridge case were sent to the forensic Expert for examination, who opined that the fired cartridge case, Exhibit P. 4 was fired from the left barrel gun, Exhibit P. 1 and not through any other gun. After necessary investigation, the accused were challaned and committed.
6. The ocular account is that of Paramjit Kaur P.W. 4, Mohinder Singh, P.W. 5 and Avtar Singh, P.W. 6. Har-nam Kaur P- W. 3, who is stated to have lodged the first information report refused to support the prosecution case. In a long and rambling cross-examination of the aforesaid three eye-witnesses, nothing worth the name seems to have been elicited to belie their forthright and consistent testimony. Nachhattar' Singh, P.W. 7, prepared the site plan, Exhibit P. G. of the place of occurrence. Gurcharan Singh, P.W. 8, Assistant Supdt, Central Jail, Ferozepur, deposed regarding the previous conviction of Karnail Singh accused. Bhan Singh, P.W. 12, deposed regarding the recovery of incriminating articles from the spot. Sub-Inspector Manohar Lai, P. W 15 is the main investigating Officer in the case.
7. In their statements Under Section 313, Criminal P. C, the accused denied the prosecution allegations and pleaded false complicity in the case. Besides tendering into evidence certain documents, KarnaU Singh accused examined Jagjit Rai Pra-bhakar and Jai Singh in defence.
8. The learned Sessions Judge, Ludhiana, on an appraisement of evidence found that the charge was fully brought home to Karnail Singh appellant beyond reasonable doubt and as such he convicted and sentenced him as indicated above.
9. The facts that on 18-4-1981 Karnail Singh accused, his wife Gurdev Kaur deceased, his daughter Faramjit Kaur and Amar Kaur wife of Major Singh accused had gone to Dhaul Majra with Gurmel Singh on the latter's betrothal ceremony and on the following evening, they along with Mohinder Singh, P.W., returned to village Dhole-wal from Dhaul Majra, that Karnail Singh was sentenced to death in a previous murder case and his death sentence was commuted to life imprison-sonment by the President of India; that being a life convict, he was bailed out on 23-5-1980 under the orders of the Supreme Court, and that the present occurrence look place on 19-4-1981, are not disputed by the defence.
10. The prosecution case was attacked on the grounds that the prosecution witnesses were interested in the deceased; that the disinterested neighbours were not examined and that the occurrence did not lake place as stated by the prosecution witnesses. The learned Counsel for the appellant reiterated those very contentions before us and our answer is no different from the one given by the trial Court and we endorse the findings of the trial Court and the reasoning therefor in this regard.
11. Suffice it to add that the testimony of the interested witnesses is a sure guarantee against substitution of an innocent person for the real culprit. The occurrence took place at about 8 p- m. when the electric light was on in the bai-thak and also in the courtyard of the house of the appellant and thus there could be no doubt about his (appellant's) identity. It stands established from the testimony of Sub-Inspector Manohar Lai, P.W. 15, who in categorical terms stated that he picked up blood-stained earth from the courtyard from near the hand-pump where the deceased was allegedly drawing water for the appellant and his associates, who were then taking liquor. He recovered the fired cartridge case, Exhibit P. 4, and other incriminating articles from the same courtyard. This evidence of the Investigating Officer fixes the place of occurrence. The eye-witnesses, namely Paramjit Kaur, daughter of the appellant, Mohinder Singh and Avtar Singh have given a very consistent, straightforward and cogent account of the occurrence. They have singularly refrained from indulging in embellishments. The defence has not succeeded in surfacing any material discrepancy or deviation during the course of their cross-examination. Their testimony, thus being free from any material infirmity carries an in- trinsic ring of truth about it. The presence of the aforesaid eye-witnesses at the time of occurrence was very natural. The circumstance of the lodging of the first information report by Harnam Kaur with promptitude and the mentioning therein of the names of the appellant and his associates; the eye-witnesses and the rest of the incriminating circumstances that have been deposed to at the trial by the witnesses lends guarantee to the truthfulness Of the version deposed to by these witnesses. The medical evi-dencft also lends assurance t0 the conclusion that it was the appellant, who perpetrated the crime.
12. The version given by the eye-witnesses receives further corroboration from the report of the Forensic Expert, (Exhibit P. T., who opined that the crime cartridge, Mark C. l (Exhibit P. 4, had been fired through the left barrel of the D. B. B. L. gun, Mark 'A' (Exhibit P. 1) and from none else.
13. N6w we come to the point pertaining to the non-appearance of any person of the locality in which the oc-currance took place. It is borne out from the record that excepting the inmates of the house of the appellant, none else had witnessed the occurrence. No question was asked from either of the aforesaid eye-witnesses as to whether any other person was attracted to the scene of occurrence. The defence has not cared to elicit information from either of the eyewitnesses as to whether any particular person or persons other than these eyewitnesses, were attracted to the place of occurrence at the time it look place. The learned defence counsel then urged that the crime cartridge was recovered from near the place of occurrence, appears to be false as in the first information report there is no mention of any crime cartridge having been recovered from near the place of occurrence. This contention is too devoid of force. Obviously : there is no mention of this fact in the first information report and the crime cartridge case was recovered by the Investigating Officer during the investigation after he had recorded the first information report. We have no doubt in our mind that the crime cartridge case must have been thrown there by the assailant of the deceased as that would be the natural conduct of a person armed with a gun, after having fired shot therefrom. It is in the evidence of the eye- witnesses that after firing the shot at Gurdev Kaur, the appellant reloaded his gun after ejecting the empty cartridge from the barrel of the gun. In the circumstances, the appellant had no time to pick up the ejected cartridge. In view of these facts it is not surprising that he left behind the ejected cartridge case to be later picked up by the Investigating Officer. The motive in this case is very strong and tends strongly to corroborate the prosecution version and to connect the appellant with the crime.
14. Mr. Mulla has urged with Htile persistence that the offence committed by the appellant would not in any event amount to murder and that it should be reduced to culpable homicide not amounting to murder. The learned Counsel argued that as the intention referred to in Clauses Firstly and Thirdly to Section 300, I. P. C, is an essential ingredient of an offence denned in Section 300, Indian Penal Code and as such intent could not be ascribed under the provisions of Section 85, Indian Penal Code, to the appellant, who as the evidence discloses, was under the influence of liquor, the charge Under Section 302, Indian Penal Code, was unsustainable and the conviction could be only for a lesser offence. We find no merit in this submission. There is not a little of evidence on the record that the appellant was so drunk that he could not have found the intent necessary to constitute an offence falling within Clauses secondly and thirdly of Section 300, Indian Penal Code. On the other hand, the material on the record is sufficient in our opinion to warrant an inference that the appellant had formulated a deliberate attempt to commit an offence as defined in Section 300, Indian Penal Code. That evening he was shouting, abusing and also threatening the deceased, Gurdev Kaur deceased was drawing water from the hand pump, when the appellant fired at her resulting in her death instantaneously. These circumstances are consistent only with the theory that the appellant had formed at least an intention to cause a body injury mentioned either in Clause secondly or clause thirdly of Section 300, Indian Penal Code. We think they are not explicable on any other hypothesis.' It follows that the offence committed by the appellant is one of murder and his voluntary drunkenness does not avail him to reduce the offence to one of culpable homicide not amounting to murder,
15. The learned defence counsel then argued that Section 303, Penal Code, was not attracted to the facts of the present case as the appellant had already got the remission of sentence Under Section 432, Criminal P.. C. To buttress this contention, the learned Counsel relied on a decision in Shaikh Abdul Azeez v. State of Kar-nataka . The facts of the above decision of their Lordships of the Supreme Court relied on by the learned Counsel are different and the raiio arrived at on the basis thereof is clearly distinguishable. In Shaikh Abdul Azeez's case, (supra, the appellant though sentenced to imprisonment for life for murder, had been released by the State Government by conditional remission of the sentence Under Section 401 of the Criminal P. C, 1898, at the time he was sought to be convicted and sentenced Under Section 303, Penal Code for the second murder. In such a situation, it was held as under (para 20):
To revert, at the end, to the only question with which we started. Was the appellant under sentence of imprisonment for life during the unexpired period of his imprisonment conditionally remitted Under Section 401, Code of Criminal Procedure? We are clearly of the opinion that an accused cannot be under a sentence of imprisonment for life at the time of commission of the second murder unless he is actually undergoing such a sentence or there ia legally extant a judicially final sentence which he is bound to serve without the requirement of a separate order to breathe life into the sentence which was otherwise dead on account of remission Under Section 401, Code of Criminal Procedure. Section 303, Indian Penal Code, is applicable only to an accused, who, on the date of commission of the second offence of murder, had earlier committed a murder for which his conviction and sentence of imprisonment for life were beyond judicial controversy and were operative.
16. The learned Counsel laid stress on the following observations in paragraph 21 of the judgment:
A person must be actually and irrevocably a lifer beyond the pale of judicial controversy at the time of the commission of the second offence of murder to be visited with the penalty of death, Under Section 303, Indian Penal Code.
17. However, this conclusion can be appreciated properly only if it is read in the context of the subsequent observations wherein it is held:
If the sentence of a convict had already been remitted at the time of commission of the second murder, he would cease to be an actual lifer to come within the lethal clamp of Section 303, Indian Penal Code.
18. Take Ihe present case, the appel lant was sentenced to death in the previ ous murder case First Information Re porl No. 396 of 1969). but his death sentence was later on commuted to life imprisonment by the President of India It is manifest from the statement of Gurcharan Singh, Assistant Superintendent, Central Jail, Ferozepur, P.W. 8, that the appellant was released from the jail on 23-5-1980 on bail under the orders of the Supreme Court and at thai time, according to the jail record, the balance of his sentence was 2 years, month and 23 days, which he was yet to undergo, and that thereafter till 25-4-1081 when Karnail Singh was admitted in jail as under-trial in the present case, he was not readmitted as convict in the previous case and that even allowing further remission given by the Government in the meantime, the balance of his sentence on 25-4-1981 worked out 1 year, 9 months and 12 days. According to this witness, on 19-4-1981, the sentence of the appellant, in case F. I. R. No. 396 of 1969, had not yet expired, when he committed the second murder. In this view of the matter, the appellant being a lifer at the time of the commission of the second offence of murder, was rightly visited with the penalty of death Under Section 303, Penal Code.
19. Finally it ig contended that Section 303, Indian Penal Code, is ultra vires of Article 14 of the Constitution of India. We are, however, of the view that where a person is undergoing life imprisonment on a charge of murder (he) forms a distinct class and the legislature can provide a more deterrent sentence in such cases,
20. As a last resort, it was contended that if the motive alleged by the prosecution is accepted then the sentence imposed would appear to be excessive. In the present case, there was no provocation at all from the side of Gurdev Kaur deceased. It was a clear case of murder falling under clause thirdlyof Section 300, Indian Penal Code, where the act was done with the intention of causing bodily injury to the deceased and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. The manner in which the shot was fired at the deceased shows that the offence committed was deliberate, diabolical, callous and wanton act, We find no extenuating circumst-stances which might justify the award of the lesser sentence provided Under Section 302, Indian Penal Code. Under the circumstances, such as these, the sentence of death was the proper sentence Under Sections 302/303, Penal Code.
21. For the reasons staled above, we dismiss this appeal, accept the Murder Reference and maintain the conviction of the appellant Under Sections 302/303, Penal Code and confirm the sentence of death passed against him, which should be carried out in accordance with law.