MAJOR SINGH versus STATE OF PUNJAB & ANR. on 16 June 2022

O R D E R

1. The present set of appeals filed by accused-appellant, MajorSingh (hereinafter referred to as ‘the appellant’) arises from the orderdated 03.04.2014 passed by Punjab and Haryana High Court in CriminalAppeal No. 421 of 2002 and Criminal Revision No. 391 of 2002, wherebythe appeal and revision petition were allowed, the acquittal by the TrialCourt was set aside and the appellant was convicted under section 302IPC[1] and sentenced to undergo imprisonment for life and pay fine ofRs.5,000/-.

FACTS:

2. Prosecution’s case arises from a two-day incident and it unfoldsas follows:

i. On 20.07.1998, a day preceding the unfortunate incident,appellant had quarreled with his uncle Makhan Singh (deceased) andhad abused the uncle. Due to this argument between them, MakhanSingh had severely reprimanded the appellant.

ii. On the day of the incident, i.e. on 21.07.1998 at about10:30/11:00 A.M., Makhan Singh, father of Sukhraj Singh (complainant)was going towards bus stand of their village. On his way over, MajorSingh came from the other side of the bus stand holding a wooden ‘Bahi’(wooden side of a cot frame). He abused Makhan Singh for shoutingand insulting him on the previous day and threatened to teach MakhanSingh a lesson. Thereafter, the accused dealt a ‘Bahi’ blow to MakhanSingh on his head as a result of which Makhan Singh fell down.

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AImmediately after which Major Singh ran away from the spot with the‘Bahi’. After this both Sukhraj Singh and Charanjit Singh, who werestanding in front of the shop of Dilbag Singh, took their father, who wasbleeding from the head to Civil Hospital, Giddarbaha. As his conditionwas serious, the doctor referred him to Dayanand Medical College,BLudhiana. Makhan Singh succumbed to the injuries on 22.07.1998, thatis a day after the incident.

3. Sukhraj Singh went to the Police Station, where he met ASIArnail Singh at Husnar Chowk, Gidderbaha and his statement wasrecorded in writing. The police, after making endorsement, sent the sameCto police station-Kotbhai for registration of FIR. The police visited thespot and prepared rough site plan and blood-stained earth was liftedfrom the spot.

4. On the day of the death of the incident, police visited DMC,Ludhiana and prepared the inquest report. The offence was enhancedDto section 302 IPC and the body of the deceased was sent for postmortem. Post-mortem report found eight injuries and, according to thedoctor, the cause of death was due to shock and hemorrhage as a resultof head injury.

5. Appellant was arrested on 09.08.1998. As per the prosecution,Ehe confessed about the concealment of ‘Bahi’ by him in the wheat chaffroom at his residence. In the presence of Head Constable Gurdass Singhand Charanjit Singh, the ‘Bahi’ stained in blood was recovered from theplace disclosed by the appellant. The police sent the blood-stained earth,plain earth along with ‘Bahi’ for chemical examination. In the report ofFchemical examiner, it was found that the stain on the ‘Bahi’ and theblood recovered from the spot were of the same person, i.e. the deceased.

6. After compliance of section 207 CrPC[2], the case was committedto the Sessions Court, vide order dated 13.10.1998 and charge wasframed against the accused under section 302 IPC on 17.11.1998. TheGaccused pleaded not guilty and claimed to be tried.

7. The prosecution examined eight witnesses as PW1 to PW-8and also filed documentary evidence. After the evidence by the H2 CrPC – Criminal Procedure Code, 1973

prosecution was recorded, the accused was examined under section313 CrPC and the entire incriminating material was put to him. He deniedall the allegations against him and reiterated his innocence. He claimedto be falsely implicated in this case due to the occurrence of the squabblebetween him and the deceased, a day before the incident. He stated thatthe deceased had received injuries due to a scooter accident. However,the accused did not produce any evidence in defence.

TRIAL COURT JUDGMENT:

8. The learned Additional Sessions Judge, Muktsar vide order13.07.2001, acquitted the appellant on the following findings:

(i) There was a delay of 4½ hours in recording the FIR. Even thelate arrest of the accused on 03.08.1998 shows that the prosecutionwas not sure about the real story behind the incident.

(ii) The motive behind the occurrence of the incident was neitherserious nor proved beyond reasonable doubt by the prosecution.

(iii) Sukhraj Singh (complainant) and ASI Jarnail Singh, theInvestigating Officer were acquainted with each other.

(iv) The time of occurrence as claimed is not established.

(v) Statements of eye witnesses, Sukhraj Singh and Charanjit Singhwere not found to be credible.

(vi) Further, the prosecution had not examined Teja Singh, ManoharSingh and Darbara Singh who had witnessed the incident.

(vii) Medical evidence is contradictory to the ocular testimony.Even the case history mentioned in the bed head ticket of DMC,Ludhiana is contrary to the ocular version.

(viii) The scaled site plan does not tally with the rough site plan.

9. Aggrieved by the acquittal, the State of Punjab and thecomplainant filed an appeal and revision respectively before the HighCourt.

HIGH COURT JUDGMENT:

10. The High Court, set aside the acquittal of the accused andwas of the opinion that the Trial Court has misread the evidence. Following A

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Areasons were recorded by the High Court while convicting the accusedunder section 302 IPC –

i. Prosecution’s case could not be thrown out only on the groundof delay in registering FIR. Makhan Singh was in a serious conditionand the first priority of the complainant was to save his father,who was profusely bleeding from the injury in his head.

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ii. The fact as to whether ASI Jarnail Singh was known to thecomplainant is immaterial. Complainant had a right to inform thepolice. There is nothing to show that ASI did any favour to thecomplainant.

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iii. The occurrence took place during day time as recorded by theeye witnesses and the doctor had sent the intimation to police at11.15 a.m., which corroborates the time of the incident. There isnothing to disbelieve the time of occurrence.

iv. As per the post mortem report, the deceased had sufferedeight injuries. Dr. Aman Kapoor (PW 2) has stated that the maininjury was on the head and rest of the injuries were apparently asa result of the fall. These injuries were swelling and abrasions.

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v. The Trial Court gave undue importance to the history mentionedat the time of admission in DMC, Ludhiana wherein it is statedthat the deceased sustained injuries while travelling on scooterwhen he was hit by someone over the head. There might be someerror in recording the history, as the son who brought his father toDMC, Ludhiana was under a state of shock on account of theserious condition of his father. This does not affect the merit ofthe case.

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vi. If some structure existing little away from the place ofoccurrence, has not been shown in the site plan, it does not meanthat the site plan prepared by the Investigating Officer is incorrect.Minor omissions in the site plan does not mean that rough siteplan prepared by Investigation Officer is contradictory to the scaledsite plan.

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vii. There is no reason to disbelief prosecution’s story on the groundthat the arrest was made on 03.08.1998. It is quite possible thatthe accused might have run away apprehending his arrest.

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viii. Parties are relatives. Because of mere altercation, there wasno reason for the complainant to falsely implicate the appellant,who is real nephew of the deceased. There is only one accusedand one injury was given by the accused. Therefore, possibility offalse implication is ruled out. Even the ‘Bahi’ was recovered onthe pointing out of the appellant.

ix. None of the family members of the appellant or any otherindependent resident of the village came forward to support thedefence version of the appellant apparently for the reason thatthey might be convinced that appellant was responsible for thedeath of the deceased.

x. Ocular version is truthful and trust worthy and is fully supportedby the medical evidence.

xi. The appellant does not fall under exception 4 of section 300IPC as the occurrence had not taken place all of a sudden andwithout any predetermination. The appellant came to the spothaving a grudge against the deceased due to the quarrel that tookplace on the previous day of the incident and also, the manner inwhich the appellant gave a blow of wooden arm of cot (‘Bahi’)with great force on the head of an old and feeble man, whichresulted into fracture of his skull and death on the next day.

11. Aggrieved by the conviction of the High Court, the appellanthas preferred this appeal before this Court.

ANALYSIS:

12. The prosecution has established that the death of the deceasedwas homicidal. As per the post mortem report, the deceased had sufferedeight injuries. Dr. Aman Kapoor (PW 2) states in the report that themain injury was on the head and both the eye witnesses Sukhraj Singh(PW 3) and Charanjit Singh (PW4) have claimed the appellant had hittheir father on his head with a ‘Bahi’. The recovery of ‘Bahi’, i.e. theweapon used to cause the fatal injury to the deceased was recovered bypolice only after the appellant had confessed about the place of hiding.

13. We are, thus, satisfied that the prosecution has, beyondreasonable doubt, established the occurrence in the manner as set up.The deceased died due to the injury caused by accused. The only question A

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Awhich requires our consideration is with regard to whether the case fallswithin the ambit of culpable homicide amounting to murder punishableunder section 302 IPC as has been held by High Court or it was culpablehomicide not amounting to murder punishable under section 304 IPC, ashas been pleaded by the counsel for the appellant in the alternative.B

14. Distinction between whether an offence is culpable homicideamounting to murder or culpable homicide not amounting to murder hasbeen dealt by this Court recently in the case of Mohd. Rafiq vs. Stateof Madhya Pradesh[3]after taking into consideration earlier judgmentson the point. The Court held that even though it is difficult to distinguishCwhether the punishment for offence would fall under section 302 orsection 304 of IPC, there is a subtle distinction of degree of intention andknowledge involved in both the crimes. Relevant paragraphs of thejudgment are reproduced below:

“Para 11 - The question of whether in a given case, a homicide isDmurder, punishable under Section 302 IPC, or culpable homicide,of either description, punishable under Section 304 IPC hasengaged the attention of courts in this country for over one and ahalf century, since the enactment of the IPC; a welter of caselaw, on this aspect exists, including perhaps several hundred rulingsEby this court. The use of the term “likely” in several places inrespect of culpable homicide, highlights the element of uncertaintythat the act of the accused may or may not have killed the person.Section 300 IPC which defines murder, however refrains fromthe use of the term likely, which reveals absence of ambiguity lefton behalf of the accused. The accused is for sure that his act willFdefinitely cause death. It is often difficult to distinguish betweenculpable homicide and murder as both, involve death. Yet, there isa subtle distinction of intention and knowledge involved in boththe crimes. This difference lies in the degree of the act. There isa very wide variance of degree of intention and knowledge amongGboth the crimes.

Para 12 - The decision in State of Andhra Pradesh v. RayavarapuPunnayya & Anr. notes the important distinction between the two provisions, and their differing, but subtle distinction. The courtpertinently pointed out that:

Statutes

12. In the scheme of the Penal Code, “culpable homicide” isgenus and murder its specie. All murder is “culpable homicide”but not vice- versa. Speaking generally, “culpable homicide”sans “special characteristics of murder”, is “culpable homicidenot amounting to murder”. For the purpose of fixing punishment,proportionate to the gravity of this generic offence, the Codepractically recognises three degrees of culpable homicide. Thefirst is, what may be called, “culpable homicide of the firstdegree”. This is the greatest form of culpable homicide, whichis defined in Section 300 as “murder”. The second may betermed as “culpable homicide of the second degree”. This ispunishable under the first part of Section 304. Then, there is“culpable homicide of the third degree”. This is the lowesttype of culpable homicide and the punishment provided for itis, also, the lowest among the punishments provided for thethree grades. Culpable homicide of this degree is punishableunder the second part of Section 304.

13. The academic distinction between “murder” and “culpablehomicide not amounting to murder” has vexed the courts for morethan a century. The confusion is caused, if courts losing sight ofthe true scope and meaning of the terms used by the legislature inthese sections, allow themselves to be drawn into minuteabstractions. The safest way of approach to the interpretationand application of these provisions seems to be to keep in focusthe keywords used in the various clauses of Sections 299 and300; Para 13 - The considerations that should weigh with courts, indiscerning whether an act is punishable as murder, or culpablehomicide, not amounting to murder, were outlined in PulicherlaNagaraju @ Nagaraja Reddy v State of Andhra Pradesh. Thiscourt observed that:

“29. Therefore, the Court should proceed to decide the pivotalquestion of intention, with care and caution, as that will decidewhether the case falls under Section 302 or 304 Part I or 304

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Part II. Many petty or insignificant matters -plucking of a fruit,straying of cattle, quarrel of children, utterance of a rude wordor even an objectionable glance, may lead to altercations andgroup clashes culminating in deaths. Usual motives like revenge,greed, jealousy or suspicion may be totally absent in such cases.There may be no intention. There may be no premeditation. Infact, there may not even be criminality. At the other end of thespectrum, there may be cases of murder where the accusedattempts to avoid the penalty for murder by attempting to putforth a case that there was no intention to cause death. It is forthe courts to ensure that the cases of murder punishable underSection 302, are not converted into offences punishable underSection 304 Part I/II, or cases of culpable homicide notamounting to murder are treated as murder punishable underSection 302. The intention to cause death can be gatheredgenerally from a combination of a few or several of thefollowing, among other, circumstances; (i) nature of the weaponused; (ii) whether the weapon was carried by the accused orwas picked up from the spot; (iii) whether the blow is aimed ata vital part of the body; (iv) the amount of force employed incausing injury; (v) whether the act was in the course of suddenquarrel or sudden fight or free for all fight; (vi) whether theincident occurs by chance or whether there was anypremeditation; (vii) whether there was any prior enmity orwhether the deceased was a stranger; (viii) whether there wasany grave and sudden provocation, and if so, the cause forsuch provocation; (ix) whether it was in the heat of passion;(x) whether the person inflicting the injury has taken undueadvantage or has acted in a cruel and unusual manner; (xi)whether the accused dealt a single blow or several blows. Theabove list of circumstances is, of course, not exhaustive andthere may be several other special circumstances withreference to individual cases which may throw light on thequestion of intention.”

15. Intention plays a vital role in criminal jurisprudence. An offencemay not be said to be committed if the prosecution fails to prove theintention to commit that crime. Intention is pivotal to decide whether the accused has committed culpable homicide amounting to murder orculpable homicide not amounting to murder. Along with intention,knowledge and the degree of crime, i.e. how the deceased was killed,plays an important role in deciding.

16. In the present case, the appellant had no intention to kill hisuncle. Lack of intention can easily be seen through the acts committedby the appellant. He was furious about getting yelled by his uncle a daybefore, which acted as a provocation for the accused. The appellantwas armed with a wooden leg of the cot in his hand which cannot betermed as a dangerous weapon. He had given a single blow to thedeceased and therefore it cannot be said that the appellant had intentionof killing the deceased who was his own uncle. Maybe he wanted topunish his uncle for the reprimand, he received the previous day. Furtherit cannot be said that the appellant had the knowledge that the deceasedwould die through a single blow.

17. We are thus of the opinion that the deceased is not liable to beconvicted under section 302 IPC but would be liable to be convictedunder section 304 Part-II IPC.

18. The appellant was arrested on 09.08.1998 and was releasedon 13.07.2001 after the acquittal by the Trial Court. He again surrenderedafter the conviction by the High Court on 04.10.2014. He has alreadyundergone more than eight years of incarceration. His sentence shall bereduced from life imprisonment to period already undergone. The fineimposed by the High Court would remain as it is.

19. Accordingly, the Appeals are partly allowed. The judgment ofthe High Court is modified to the following extent:

(i) The conviction and sentence of life imprisonment under Section302 IPC is set-aside.

(ii) The appellant is convicted under Section 304 Part-II IPC.

(iii) The appellant is awarded sentence of the period alreadyundergone along with fine as imposed by the High Court.

(iv) The appellant may be released forthwith, if he is not wantedin any other criminal case.

Bibhuti Bhushan Bose

Appeals partly allowed.

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