Punjab-Haryana High Court
Kewal Krishan vs State Of Punjab And Others on 18 October, 2012
Author: Ritu Bahri
Bench: Ritu Bahri
Crl. Revn No. 3164 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Crl. Revn No. 3164 of 2010 (O&M)
Date of decision : 18.10.2012
Kewal Krishan ......Petitioner
versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. Vipan Mahajan, Advocate
for the petitioner.
Ms. Gagan Mohini, AAG, Punjab
****
RITU BAHRI , J.
Challenge in this revision petition is to order dated 01.11.2010 passed by the learned Additional Sessions Judge (Adhoc), Fast Track Court, Gurdaspur vide which the application filed by the petitioner/complainant under Section 216 Cr.P.C for framing of charge against accused, has been dismissed.
Brief facts of the case are that on the intervening night of 1/2 February, 2010, the accused persons entered the house of the deceased Prem Nath and committed murder of entire family and also looted the cash and jewellery. Kewal Krishan got recorded his statement before Inspector Puran Chand to the effect that he was working as Sub Inspector in the Wireless Department. He was married in the year 1975 with Usha Rani alias Crl. Revn No. 3164 of 2010 (O&M) -2- Rama, daughter of Prem Nath, resident of near Railway gage Dera Road, Batala. He has three brother-in-laws namely Jugal Kishore, Sunil Sagar and Rajesh. In the house of his in-laws, son of Sunil Sagar, his brother-in-law namely Paras was also residing with him. He was studying in 10+2 class. His father-in-law was running a karyana shop. His father in law gave some shops on rent. On 02.02.2010, he received telephonic call on his mobile phone from the STD booth shop that when the milkman came to supply the milk to his father-in-law, he saw that three dead bodies were lying in the bed room and the blood was scattered here and there. On receipt of this telephonic call, the reached at the spot and saw that dead body of his father-in-law was lying on the ground while the dead bodies of his mother-in-law Shama Rani andc Paras were lying on the bed. It was also found that some jewellery was also stolen. F.I.R was got recorded on the statement of the petitioner/complainant. After the supplementary statement given by petitioner-Kishan lal on 07.02.2010, the accused were arrested on 12.12.2010.
The trial Court, vide order dated 03.08.2010 framed charges against the accused persons u/s 460/404 and 34 IPC (P-2). The petitioner/complainant moved an application u/s 216 Cr.P.C for additional/alternation of the charge to Section 302 IPC (P-3), which was dismissed by the trial Court on the ground that the accused came with an intention of loot and not with an intention of murder and there was no previous enmity with the deceased, so ingredient of Section 302 IPC were Crl. Revn No. 3164 of 2010 (O&M) -3- not made out against the accused.
Mr. Vipan Mahajan, learned counsel for the petitioner has argued that If a person committing house-breaking by night also actually commits murder he must attract the penalty of offence under Section 302 IPC and it is almost impossible to hold that he can escape the punishment provided for murder merely because the murder was committed by him while he was committing the offence of house-breaking.
Reliance has been placed on a judgment of Hon'ble the Supreme Court rendered in a case of Abdul Aziz vs. State of Rajasthan, 2007(2) R.C.R (Criminal) 964 wherein while examining provision of Section 302 and 460 IPC, it has been held that if a person commits house-breaking by night and also commits murder, his act attracts Section 302 IPC.
On the other hand, learned State counsel has not been able to cite any law to the contrary.
Heard learned counsel for the parties.
In the case of Abdul Aziz (supra), Hon'ble the Supreme Court had an occasion to examine the appeal, which was directed against the judgment delivered by Rajasthan High Court, Jaipur Bench in D.B. Criminal No. 513/04 converting the conviction under Section 460 IPC imposed by Additional District and Sessions Judge, Jaipur in Sessions case No. 49/2001 to conviction under Section 302 IPC. In that case, no appeal was filed by the State for the enhancement of the sentence . Abdul Aziz was accused and was convicted under Section 460 IPC. The appellant was charged under Crl. Revn No. 3164 of 2010 (O&M) -4- Section 302/148/149 and 460 IPC but the trial Court had convicted him only under Section 460 IPC and was sentenced to ten years rigorous imprisonment. No appeal was filed by the State for enhancement or for conviction under Section 302 IPC and yet in the appeal filed by the appellant, the High Court has convicted him under Sections 302/149 IPC and was sentenced to life imprisonment. However, Hon'ble the Supreme Court had partly allowed the appeal filed by the appellant against the High Court judgment and has held that the sentence of the life imprisonment imposed by the High Court judgment shall stand substituted by the sentence of rigorous imprisonment for ten years and fine of ` 500/- as imposed by the trial Court vide its judgment dated 09.03.2004. The reason given by Hon'ble the Supreme Court was against the judgment of conviction by the trial Court, no appeal was filed by the State for enhancement of conviction under Section 302 IPC read with Section 149 IPC. No prior notice of enhancement was issued by the High Court. The High Court had observed that through inadvertence, the trial Court had failed to invoke Section 302/149 IPC.
Reference has been made to the judgment of Madras High Court, rendered in a case of 'Re Singaram and another, AIR 1954 Madras 152, the case was concerning murder and robbery. The accused were charged and tried for offences under Section 302/34 IPC. The trial court convicted them under Section 460 IPC and, therefore, the State filed an appeal questioning the correctness of acquittal under Section 302/34 IPC. It was held in that case that the trial court had wrongly convicted the accused Crl. Revn No. 3164 of 2010 (O&M) -5- under Section 460 IPC; that their acquittal by the trial court under Section 302/34 IPC was erroneous and accordingly each of the appellants was sentenced for life imprisonment. The sentence of seven years imposed by the trial court for offence under Section 460 IPC was set aside.
In that judgment, reference has further been made to the judgment of this Court passed in a case of 'Sohan Singh Kesar Singh vs. State of Punjab, AIR 1964 Punjab 130 wherein Sohan Singh was convicted under Sections 302, 380 and 457 IPC; he was sentenced to death under Section 302 IPC and to rigorous imprisonment for three years under each of the Sections 457 and 380 IPC. Sohan Singh preferred an appeal against his conviction and sentence. One of the arguments advanced on behalf of Sohan Singh was that the offence in question fell within the purview of Section 460 IPC and not under Section 302 IPC. It was argued that while committing the offence of house-breaking by night death of the child was caused and, therefore, the accused could be punished only under Section 460 IPC. It was in the context of this argument that the High Court held as follows:
"Section 460 merely provides for constructive liability of persons committing or concerned in, 'inter alia' house- breaking by night in the course of which death is caused by one of the offenders and it prescribes enhanced penalty for the joint offenders. To attract this section it matters little as to who actually causes the death, for, everyone jointly concerned in Crl. Revn No. 3164 of 2010 (O&M) -6- committing the house-breaking is liable to the enhanced penalty under this section if death is caused in the course of the offence, no matter who is really responsible for the death. It does not, as indeed it cannot, be considered to serve as an exception to Section 302, Indian Penal Code. If a person committing house-breaking by night also actually commits murder he must attract the penalty for this latter offence under Section 302 and I find it almost impossible to hold that he can escape the punishment provided for murder merely because the murder was committed by him while he was committing the offence of house-breaking, and that he can only be dealt with under Section 460. Neither the language of Section 460 nor the scheme of Indian Penal Code nor logic and common sense would seem to support this contention which I unhesitatingly repel."
Learned counsel for the petitioner has placed on record the Post Mortem report's (P-10 to 1-12).
The post mortem report of Prem Nath who was 80 years of age shows that he had suffered 4 injuries and the cause of death as per the opinion given by the Doctor was due to multiple injuries suffered on the body leading to haemorrhage and shock which is sufficient to cause death in the ordinary course of life. The injuries are anti mortem in nature (P-10).
Crl. Revn No. 3164 of 2010 (O&M) -7-
The post mortem report of Shama Rani who was 70 years of age shows that the cause of death as per the opinion given by the Doctor in her case was due to haemorrhage and shock because of multiple injury on the body which is anti mortem in nature and sufficient to cause death (P-11).
The post mortem report of Paras who was 18 years of age shows that he had suffered 3 multiple injuries on his vital parts of the body and the cause of death as per the opinion given by the Doctor was head injury and injury No. 2 on side of the neck leading to haemorrhage and shock which is sufficient to cause death in the ordinary course of life. The injuries are anti mortem in nature (P-12).
The cause of death was brutal injuries caused by the accused to the 3 deceased. Out of 3, two were senior citizens and one was 18 years old boy i.e Paras. The injuries suffered by Paras were on the vital parts of the body. The only inference which can be drawn by going through the PMR's (P-10 to P-12) as that while committing theft, the injuries inflicted were so harsh which lead to the cause of the death of 3 members of the family.
Three persons of the family were found dead on the intervening night of 1/2 February, 2010. All the accused have been arrested and were charged under Sections 460/404 and 34 IPC. The ratio of Hon'ble the Supreme Court judgment in the case of Abdul Aziz (supra) is Crl. Revn No. 3164 of 2010 (O&M) -8- applicable as the accused had entered the house with an intention to loot but in that process they had committed the murder of three persons. The State has filed an application under Section 216 Cr.P.C, which was dismissed, vide order dated 01.11.2010 on the ground that no ground to add the offence punishable under Section 302 IPC as the intention of the accused was not to kill. However, it would amount to travesty of justice if charge under Section 302 IPC was not framed against the accused on the ground that the offence of house trespassing, causing death in that process will not attract Section 302 IPC.
In view of the above, order dated 01.11.2010 passed by the learned Additional Sessions Judge (Adhoc), Fast Track Court, Gurdaspur is set aside and the matter is remanded back to the trail Court to consider the objections raised by the petitioner and pass a well speaking orders, after hearing the objections.
Accordingly, the present petition stands allowed.
(RITU BAHRI) 18.10.2012 JUDGE G.Arora