Supreme Court of India
NO.15138812Y L/NK GURSEWAK SINGH versus UNION OF INDIA & ANR. on 27 July 2023
[2023] 10 S.C.R. 1139 : 2023 INSC 648
NO.15138812Y L/NK GURSEWAK SINGH
v.
UNION OF INDIA & ANR.
(Criminal Appeal No. 1791 of 2023)
JULY 27, 2023
[ABHAY S. OKA AND SANJAY KAROL, JJ.]
Penal Code, 1860: s. 304 Part I, s 300 exception 4 –Punishment for culpable homicide not amounting to murder –Appellant and the victim, both Lance Naik in the Indian Army –Altercation between them on the issue of seniority, after consumingliquor – Appellant snatched the rifle from the hands of the victimand fired one bullet at him, resulting in the death of the victim –Appellant convicted by the court martial for the offence punishableu/s. 302 rw s. 69 of the Army Act and sentenced to imprisonment forlife – Order of conviction and sentence upheld by the courts below– On appeal, held: There was no premeditation on the part of theappellant – There was a sudden fight between the appellant andthe deceased over the issue of seniority – Every possibility that thesaid issue resulted in the appellant snatching the rifle held by thedeceased and firing only one bullet in a heat of passion –Furthermore, the appellant did not run away and helped others totake the deceased to a hospital – Hence, there was no intention onhis part to kill the deceased – Appellant cannot be said to haveacted in such a cruel manner which would deprive him of the benefitof exception 4 to s. 300 – Term ‘cruel’ manner is a relative term, ifthe meaning used in common parlance is assigned, in no caseexception 4 can be applied – Thus, exception 4 to s. 300 applicable,and appellant guilty of culpable homicide not amounting to murder– Conviction of the appellant altered to the one under Part 1 of s.304 – In view of the good conduct of the appellant, he is sentencedto undergo imprisonment for the term which he has alreadyundergone – Army Act, 1950 – s. 69.
Partly allowing the appeal, the Court
HELD: 1.1 The facts brought on record show that therewas no premeditation on the part of the appellant. Both theappellant and the deceased had consumed liquor. There was a
A
B
C
DEFG
H
Citations and Judicial Treatment
Cited by
1
Decisions in the index citing it
Cites
2
Decisions referred to
In this index
0
Of the decisions it cites
Overruled / Questioned
0
No negative treatment found
Loading the citing and cited decisions…
This judgment in the centre: on the left the decisions it cites, on the right the decisions citing it. Colour is the treatment; choose a decision to open it.
Conclusion
Afight between him and the deceased over the issue of seniority.In fact, when the appellant told the deceased to bring water forhim, the deceased refused to do so on the ground that he wassenior to the appellant. In a disciplined force like Army, theseniority has all the importance. Therefore, there is everypossibility that the dispute over seniority resulted in the appellantBdoing the act in a heat of passion. It appears that in the heat ofpassion, the appellant snatched a rifle held by the deceased andfired only one bullet. If there was any premeditation on the partof the appellant or if he had any intention to kill the deceased, hewould have fired more bullets at the deceased. Hence, there wasCno intention on his part to kill the deceased. Whether theappellant had done a cruel act or not, has to be appreciated afterconsidering three facts. Firstly, the appellant was a soldier onguard duty, secondly, the appellant and the deceased had a fightover the seniority and thirdly, though there were 20 rounds inthe rifle of the deceased, he fired only one round. The appellantDcannot be said to have acted in such a cruel manner which woulddeprive him of the benefit of exception 4 to Section 300 IPC.The term cruel manner is a relative term. Exception 4 applieswhen a man kills another. By ordinary standards, this itself is acruel act. The appellant fired only one bullet which proved to beEfatal. He did not fire more bullets though available. He did notrun away and he helped others to take the deceased to a hospital.If a meaning is assigned to the word ‘cruel’ used in exception 4which is used in common parlance, in no case exception 4 can beapplied. Therefore, exception 4 to Section 300 was applicable inthis case. Therefore, the appellant is guilty of culpable homicideFnot amounting to murder. The appellant snatched the rifle fromthe hands of the deceased and fired one bullet at the deceased.This act was done with the intention of causing such bodily injuryto the deceased as was likely to cause death. Therefore, the firstpart of Section 304 IPC would apply. Under the first part of SectionG304 IPC, an accused can be punished with imprisonment for lifeor with imprisonment for a term which may extend to 10 years.[Para 11][1145-C-H; 1146-A-D]
1.2 PW-5 and PW-10 admitted that the accused had a ‘nicereputation’. The conduct of the appellant would be a mitigatingH
NO.15138812Y L/NK GURSEWAK SINGH v. UNION OF INDIA
factor for determining the sentence. It is not in dispute that theappellant has undergone incarceration for a period of 9 years andapproximately 3 months. Taking an overall view of the evidenceon record, the sentence already undergone by the appellant wouldbe an appropriate sentence in the facts of the case. The convictionof the appellant for the offence punishable u/s. 302 IPC is alteredto the one under Part 1 of Section 304 IPC. The appellant issentenced to undergo imprisonment for the term which he hasalready undergone. [Paras 12 and 13][1146-D-G]
Prakash Chand v. State of H.P. (2004) 11 SCC 381 :[2004] 3 Suppl. SCR 389; Sukhdev Singh v. Delhi State(Govt. of NCT of Delhi) (2003) 7 SCC 441 : [2003] 3
Suppl. SCR 224 – referred to.
Case Law Reference
[2004] 3 Suppl. SCR 389referred toPara 6[2003] 3 Suppl. SCR 224referred toPara 6
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1791 of 2023.
From the Judgment and Order dated 09.09.2013 of the ArmedForce Tribunal Regional Bench at Chandimandir in TA No. 395 of 2010.
Ms. Eliza Barr, Sidhhant Saroha, Tushar Bathija, Praveer Singh,Abhimanyu Tewari, Advs. for the Appellant.
R Bala, Sr. Adv., A K Kaul, Ms. Rukhmini Bobde, Shiv MangalSharma, Ms. Priyanka Das, Rajan Kumar Chourasia, Ms. Sweksha,Arvind Kumar Sharma, Advs. for the Respondents.
The Judgment of the Court was delivered by
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The appellant who was at the relevant time Lance Naik in theIndian Army was convicted by the Court Martial for the offencepunishable under Section 302 of the IPC (for short, ‘IPC’) read withSection 69 of the Army Act, 1950 (for short, ‘the Army Act’). The CourtMartial sentenced the appellant to suffer imprisonment for life. The CourtMartial also dismissed the appellant from service. Thereafter, the A
B
C
D
E
F
G
H
Aappellant filed pre-confirmation and additional pre-confirmation petitionswhich were rejected by the Major General Officer Commanding by hisorder dated 28[th] September 2005. Thereafter, the appellant filed a petitionto the Chief of the Army Staff who rejected the same by his order dated12[th] June 2006. Thereafter, the appellant filed a Petition under Article226 read with Article 227 of the Constitution of India and Section 482 ofBthe Code of Criminal Procedure, 1973 (for short ‘CrPC’) before theHon’ble High Court of Punjab and Haryana. The High Court transferredthe matter to the Armed Forces Tribunal, Chandigarh. By the impugnedjudgment, the Armed Forces Tribunal, Chandigarh dismissed the Petitionand confirmed the conviction and sentence of the appellant. Against theCimpugned order of the Tribunal, the Appellant again filed a Writ Petitionbefore the Hon’ble High Court of Punjab and Haryana and by orderdated 10.10.2018, the High Court while dismissing the Writ Petitiongranted liberty to the appellant to avail remedy under Section 30 of theArmed Forces Tribunal Act, 2007.
D2. On 4[th] December 2004, the appellant and deceased (LanceNaik Kala Singh) were posted for duty with the 13 Field Regiment atFerozepur Cantonment. On the date of the incident, the appellant andthe deceased were a part of the guard headed by Guard CommanderNaik Amrik Singh (PW-13). Gunner Gurtej Singh (PW-14) was a sentrywho was also a part of the guard.E
3. It is alleged that on the night of 4[th] December 2004, the deceasedbrought a bottle of country liquor. The appellant, the deceased and theGuard Commander Naik Amrik Singh consumed liquor. Thereafter, therewas an altercation between the appellant and the deceased on the issueof inter-se seniority. At that time, the Guard commander intervened.FThe deceased replaced gunner Gurtej Singh (PW-14) for guard dutyoutside the guard room. Thereafter, the appellant went out when therewere heated arguments between the appellant and the deceased againon the issue of seniority. At that time, the appellant snatched the riflefrom the hands of the deceased and fired one bullet at the deceased.GThe appellant accompanied others for taking the deceased to a hospitalwhere he was declared dead. The appellant was arrested on the sameday.
SUBMISSIONS
4. The learned counsel for the appellant has taken us through theHnotes of evidence and findings recorded by the Court Martial as well as
by the Armed Forces Tribunal (for short, ‘the Tribunal’). His basiccontention is that the case will be governed by exception 4 to Section300 of IPC. He submitted that the incident was an outcome of a suddenfight and the appellant acted in a heat of passion. He submitted that onlyone bullet was fired by the appellant though there were more bullets inthe rifle at that time. His submission is that the appellant has not takenany undue advantage and has not acted in a cruel manner. The learnedcounsel has taken us through the evidence of the material prosecutionwitnesses and in particular the evidence of PW-13 Naik Amrik Singhand PW-14 Gunner Gurtej Singh. He would, therefore, submit that thiswas a case of an offence punishable under Section 304 (Part II) of IPC.He pointed out that the appellant had undergone incarceration for a periodof about 9 years and 3 months.
A
B
C
5. Learned senior counsel appearing for the respondent pointedout that exception 4 to Section 300 will not apply in this case, as it cannotbe said that there was a sudden fight. He submitted that the appellanthas acted in a cruel manner. He submitted that the conduct of the appellanthas to be judged in the light of the fact that he was on duty as a guardand was a member of a disciplined force. He would submit that noindulgence can be shown to the appellant.
D
6. The learned counsel appearing for the appellant relied upondecisions of this Court in the case of Prakash Chand v. State of H.P.[1]and Sukhdev Singh v. Delhi State (Govt. of NCT of Delhi)[2].
E
OUR VIEW
7. Hawaldar Malkiat Singh is PW-3 who stated that the appellantwas not possessing any weapon. PW-8 Naib Subedar Chandrika Prasaddeposed that after receiving a call from the operator he rushed to theFplace of the incident as he was informed that a sentry has been shot. Heinstructed the nursing assistant to move quickly and he, along with thenursing assistant, reached the spot in an ambulance. He questioned theappellant. At that time, the appellant told him that an altercation hadtaken place and he had fired one round. The witness stated in the cross-Gexamination that while replying to him, the accused may have used theword “galti” meaning thereby that he fired a bullet by mistake.
1 (2004) 11 SCC 381
2 (2003) 7 SCC 441
H
1 (2004) 11 SCC 381
2 (2003) 7 SCC 441
H
A8. PW-13 Naik Amrik Singh was posted as a guard commanderalong with the appellant and deceased. He stated that as the appellantwas the senior most, he treated him as second guard commander. Hesubmitted that he, along with PW-14 Gunner Gurtej Singh and theappellant, were having dinner. At that time, the deceased stood on dutyoutside the guard room with a weapon and ammunition. He describedBthat there was an altercation between the appellant and the deceased onthe issue of seniority. According to his version, when he was sitting inthe guard room, he heard a sound of a gunshot. When he looked outside,the appellant was holding a rifle. According to him, the appellant informedhim that he had shot the deceased. PW-13 sought help. He tried to giveCa ring to headquarters but the telephone was engaged. He told PW-14 toshout for help from nearby posts. PW-13 further stated that he alongwith the appellant, lifted the deceased and after reaching the roadside,they laid the deceased on the ground. By that time ambulance reachedthe place. He stated that Naib Subedar Chandrika Prasad (PW-8), anursing assistant and the appellant put the deceased into an ambulanceDand all of them took the deceased to hospital. We may note here that thelearned prosecution counsel sought permission to declare PW-13 as ahostile witness. However, the Court Martial rejected the request of theprosecution counsel. PW-13 stated that the rifle used by the appellantwas lying in the snake pit. There was an empty magazine and a filledEmagazine. There were 19 rounds in the filled magazine. The witnessadmitted that he, along with the deceased and the appellant, consumedliquor. But he claimed that it was one and half hours before the incident.In the cross-examination, the witness admitted that it was the deceasedwho brought the liquor bottle without consulting him. He admitted thatthe appellant and the deceased were friends before the incident. HeFstated that the appellant told him that he had committed a mistake andhe had fired a bullet at the deceased. While answering the court question,the witness stated that he had not seen the appellant firing from the rifle.He saw the appellant immediately after hearing the sound of firing.
9. PW-14 Gunner Gurtej Singh stated that he was having dinnerGon 4[th] December 2004 at about 2015 hrs with PW 13 in the guard room.After hearing the sound of a gunshot, he got up and saw the appellantholding a rifle and standing near the entrance of the guard room. Hestated that the appellant took out the magazine from the rifle and threwit on a side. Thereafter, he made the rifle safe by cocking the rifle. HeHthrew the rifle into a snake pit. He stated that when the appellant was questioned by him, he responded by stating that he had committed amistake. He stated that earlier he had heard the appellant asking thedeceased to bring water for him. The deceased refused to get water bysaying that he was senior to the appellant.
10. What emerges from the evidence is that the appellant, thedeceased and PW-13 Naik Amrik Singh had consumed liquor at the timeof dinner. There was a heated exchange of words between the appellantand the deceased on the issue of seniority. In fact, PW-13 stated in hisexamination-in-chief that the appellant was senior most after him andtherefore, the appellant was designated as second guard commander.He stated that he treated the appellantto besenior.
11. The appellant did not have a weapon at that time and he usedthe weapon of the deceased. Out of 20 rounds in the magazine of therifle, he fired only one bullet. Moreover, after the incident, the appellantdid not run away and he along with PW -13 lifted the deceased and laidhim by the side of the road. He frankly disclosed his version of theincident to PWs 13 and 14. The appellant along with two other armymen, lifted the deceased for putting him in the ambulance and heaccompanied the deceased to the hospital. These facts brought on recordshow that there was no pre-meditation on the part of the appellant. Boththe appellant and the deceased had consumed liquor. There was a fightbetween him and the deceased over the issue of seniority. In fact, whenthe appellant told the deceased to bring water for him, the deceasedrefused to do so on the ground that he was senior to the appellant. In adisciplined force like Army, the seniority has all the importance.Therefore, there is every possibility that the dispute over seniority resultedin the appellant doing the act in a heat of passion. It appears that in theheat of passion, the appellant snatched a rifle held by the deceased andfired only one bullet. If there was any pre-meditation on the part of theappellant or if he had any intention to kill the deceased, he would havefired more bullets at the deceased. Hence, there was no intention on hispart to kill the deceased. Whether the appellant had done a cruel act ornot, has to be appreciated after considering three facts. Firstly, theappellant was a soldier on guard duty, secondly, the appellant and thedeceased had a fight over the seniority and thirdly, though there were 20rounds in the rifle of the deceased, he fired only one round. There was asudden fight over seniority when the appellant and the deceased hadconsumed liquor. There was no premeditation. The appellant, in the facts A
B
C
D
E
F
G
H
Aof the case, cannot be said to have acted in such a cruel manner whichwill deprive him of the benefit of exception 4 to Section 300 of IPC. Theterm cruel manner is a relative term. Exception 4 applies when a mankills another. By ordinary standards, this itself is a cruel act. The appellantfired only one bullet which proved to be fatal. He did not fire morebullets though available. He did not run away and he helped others toBtake the deceased to a hospital. If we assign a meaning to the word‘cruel’ used in exception 4 which is used in common parlance, in no caseexception 4 can be applied. Therefore, in our view, exception 4 to Section300 was applicable in this case. Therefore, the appellant is guilty ofculpable homicide not amounting to murder. The appellant snatched theCrifle from the hands of the deceased and fired one bullet at the deceased.This act was done with the intention of causing such bodily injury to thedeceased as was likely to cause death. Therefore, the first part of Section304 of IPC will apply in this case. Under the first part of Section 304 ofIPC, an accused can be punished with imprisonment for life or withimprisonment for a term which may extend to 10 years.D
12. Prosecution examined PW-5 Naik Parwinder Singh. In thecross-examination, he stated that he knew the appellant since June 2003and was good in terms of discipline. He stated that the appellant did notmisbehave with the deceased earlier. PW-10 Lt.Col Purty admitted thatthe accused had a ‘nice reputation’. The conduct of the appellant will beEa mitigating factor for determining the sentence. It is not in dispute thatthe appellant has undergone incarceration for a period of 9 years andapproximately 3 months. Taking an overall view of the evidence on record,the sentence already undergone by the appellant will be an appropriatesentence in the facts of the case.F
13. Therefore, the appeal is partly allowed. The conviction of theappellant for the offence punishable under Section 302 of IPC is alteredto the one under Part 1 of Section 304 of IPC. The appellant is sentencedto undergo imprisonment for the term which he has already undergone.The appellant was enlarged on bail by this Court on 8[th] April 2020. TheGbail bonds of the appellant shall stand cancelled.
Nidhi Jain(Assisted by : Tamana, LCRA)
Appeal partly allowed.
H