Crl. A./11/2003 of Sukhwinder Singh Vs State Of Sikkim on 3 December 2003

JUDGMENT

R. K. PATRA. C.J.

This appeal is directed against the judgment andorder dated 23rd LJune, 2003 of the learned Sessions Judgeu] & N) Sikkim at Gangtok in Criminal Case No. 15 of 2000 bywhich the appellant stands convicted under section 302 IPC forcommitting murder by causing the death of Gautam Banerjee and sentenced to undergo imprisonment for life and to pay a fine of• Rs.5,000/- (Rupees five thousand) with defaulting clause ofsentence.

2. Briefly stated, the prosecution case is as follows :

At the material time, the appellant, a constable belonging toC.I.S.F. was on internal security duty at the Raj Bhawan,Gangtok. He was detailed for duty at Ghumti no.2 of the RajBhawan complex on 20th March, 2000 between 5 p.in. to 9 p.in.The Inspector Gautam Baneljee (hereinafter referred to as thedeceased) at about 5.10 p.in. found the appellant loitering neargate no.2 instead of being on duty at Ghumti no.2. The deceasedaccordingly sent for the G.D. register from constable D. N. Mishra(PW2) and made an entry in the register about the late reportingof duty by the appellant. Sometime thereafter the appellant lefthis post and proceeded towards the barracks with his S.L.R. (self-loading revolver) and ammunitions on the plea that he wanted touse the toilet situated there. He however went towards the officeof the Asstt. Commandant and after locating the deceased there,fired at him with the S.L.R. which he was carrying with him. Thedeceased on being shot by the bullet fell on the ground and diedinstantaneously. After committing the offence, the appellantthrew his S.L.R. and ammunitions and ran away. He wasapprehended on the next day while trying to cross the Rangporiver on foot.

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3. Although the appellant took a general plea of denial,the stated in his statement recorded under section 313 Cr. P. C.that when he was proceeding towards the toilet the deceasedscolded and abused him by slang language and the incident tookplace due to sudden provocation.

4. In order to bring home the charge against theappellant, the prosecution examined a.s many as 27 witnesses outof whom PW15 J. 8. Panday and PW18 Ganesh Ram are the twoeye-witnesses to the occurrence.

5. There is no dispute that the deceased died due to theinjury caused by bullets. PW20, the doctor who conducted thepost-mortem examination found the following injuries on thedead body of the deceased:- "i) Firearm bullet entry wound on the innercantus of the right eye about 1 cm. in diameter withabrasion and contusion collor on the medial sidecausing laceration and rupture with collapse of theright eye ball. The track moving backward andtowards the left side causing irregular commutedfracture irregularly of the medial orbital wall and thespheroid bone passing through the sella, travelingthrough the mid brain and the left lobe of thecerebellum and causing irregular ....... of the occipitalbone on the left side and the exit wound in the scalpin the left occipital region measuring 1.5 x 2 cms.irregular in shape.

ii) There was extravasation of blood in theright lower eye lid."

He opined that the injury was ante-mortem and sufricient tocause death in the ordinary course of nature. The cause of deathwas on account of the penetrating injury of the brain produced bya firegrm bullet.

6. PWI R.C. Barman was a constable who was posted ' on duty at gate no.2 of the Raj Bhawan on the date of occurrencebetween 5 p.in. to 9 p.in. He stated in his evidence that theappellant was posted on duty at Ghumti no.2 at the Raj Bhawancompound between the same time, i.e., 5 p.in. to 9 p.in. Theappellant was late by about 10 minutes for which the deceasedpulled him up for reporting late for duty. Thereafter theappellant resumed his duty at Ghumti no. 2. At about 5.20 p.in.,the appellant came down to gate no.2 where he (PW1) was onduty. He was carrying with him his S.L.R. and rounds ofammunitions issued for duty. He questioned the appellant as towhy he had come down to which the latter replied that he wouldgo to the toilet situated little below gate No.2 in the barracks.Pwl further stated that since the appellant told him that he hadsought the permission of shift in-charge to go to the toilet, heallowed him to proceed towards the toilet. After a short while, heheard sound of firing. When he looked around he found theappellant standing outside the window of the office of the Asstt.Commandant by pointing his S.L.R. towards the window in afiring position. Thereafter he proceeded towards the office andsaw the deceased lying on the ground. PW2 D. N. Mishra was ahead-constable at the Raj Bhawan and was on duty in the controlroom between 5 p.in. to 9 p.in. on the date of occurrence. Hestated that although the appellant was detailed for duty atGhumti no.2 between 5 p.in. to 9 p.in. he had not reported forduty at 5 p.in. Instead he saw the appellant at gate no.2 talkingto two other Jawans there. At that time he received a walkie-

talkie message from PWI R. M. Barman to the effect that the' deceased wanted him (PW2) at gate no.2 along with the G.D.register. On receiving the message, PW2 reached gate no.2 withthe G.D. register in which the deceased made some entryregarding the appellant. He (PW2) further deposed that while hewas proceeding to the control room with the G.D. register hefound the appellant leaving his post and approaching him. Theappellant told him that he was going to the toilet situated nearthe barracks. At that moment, he was carrying his S.L.R. alongwith ammunitions. He advised the appellant to go to the left sidetoilet of the Raj Bhawan but he insisted that he would use thetoilet near the baITacks. After about 10 minutes, on hearing thesound of firing he enquired over the walkie-talkie from PWI R.M.Bamian as to what happened. Pwl informed him that he hadseen the appellant firing his rifle at the window outside the officeof the Asstt. Commandant and the deceased was lying in front ofthe said office. PW3 Officer In-Charge Rangpo P.S., PW4 WriterConstable of Rangpo P.S., PW5 Constable of Rangpo P.S., PW6Constable of Rangpo P.S., PW7 Constable of Rangpo P.S., PW8Constable of Rangpo P.S. stated as to how the appellant wasapprehended near the river bank of Rangpo on the following dayof the incident.

At this stage, let us consider the ocular evidence of PW15 andPW18. PW15 D. 8. Panday was the Sub-Inspector and wasposted at the Raj Bhawan on the relevant day. He deposed thatat about 5.20 p.in. in response to the blow of whistle for roll-call, he along with the deceased proceeded towards the barracks being'led by PW18 Sub-Inspector Ganensh Ram. At that time, theappellant came down the stairs from the Asstt. Commandant'sofrice. He was carrying the self-loading rifle issued to him forofficial duty. On seeing the appellant the deceased asked him ina loud voice as to why did he leave the duty post (Turn duty postchorkay kisliye idhar aa ra hao? Isko G.D. karo). On hearingthis, the appellant fired at the deceased with his S.L.R. The shothit the deceased as a result of which he fell on the ground.Thereafter the appellant pointed his weapon towards him (PW15)and he to save himself entered into the office of the Asstt.Commandant. After about 10 minutes he (PW15) came out andfound the deceased dead. PW18 Ganesh Ram was anotherC.I.S.F`. personnel who was on duty in the Raj Bhawan complex atthe relevant time. He corroborated PW15 by saying that when theappellant came down carrying his S.L.R. the deceased asked himas to why he had come leaving his duty post and asked "Isko G.D.karo". On hearing this the appellant picked up his rifle, took aimand fired at the deceased. On receiving the bullet shot, thedeceased fell down. Both PW15 and PW18 were cross-examinedat length but nothing was brought out in their evidence to dis-credit their testimony. There is no reason as to why they wouldfalsely implicate the appellant in the commission of the offence.Their evidence is consistent, cogent and reliable and does notsuffer from any infirmity. Their clear and categorical evidence isthat it was the appellant who shot with his S.L.R. at the deceasedwho on receiving the bullet shot died. In view of the above clinching evidence, we have no hesitation to hold that it was the'appellant who shot the deceased with his S.L.R. causing hisdeath. Shri Rai, learned counsel for the appellant rightly did notassail the finding recorded by the leamed Sessions Judge that itwas the appellant who fired at the deceased from his S.L.R.causing his death.

7. Shri Rai however submitted that the present casecomes within exception 1 to section 300 IPC and as such, theappellant can at the worst be convicted under section 304 part IIPC. According to the learned counsel, the appellant wasdeprived of the power of self-control due to the grave and suddenprovocation given by the deceased. Ireamed counsel submittedthat the deceased was in the habit of scolding his subordinatesusing un-parliamentary and filthy language in the name of theirsisters and mothers and on account of this the appellant lost hisself-control and fired at the deceased. In this connection, hereferred to the evidence of D. N. Mishra (PW2), R. K. Mondal(PW12) and Gurmit Singh (PW13). D. N. Mishra PW2 stated thatthe deceased used to often scold his junior staff using un-parliamentary and filthy language and it was unbecoming of anInspector to use such abusive language while pulling up hissubordinates. R. K. Mondal PW12 in his cross-examinationstated that the deceased often used to give "gandha gali" to hissubordinates. Gurmit Singh PW13 in his cross-examinationstated that the deceased used to scold the Jawans using filthyexpressions in the name of their mothers and sisters, which no pr Jawan could tolerate. It may be noted here that out of these' three witnesses, PW2 and PW13 were placed under suspensionon account of the concerned incident and were under suspensionby the time they deposed in Court (see the first sentence of thelast paragraph of deposition of PW2).

8. Exception 1 to section 300 IPC lays down thatculpable homicide is not murder if the offender, whilst deprived ofthe power of self-control by grave and sudden provoca.tion, causesthe death of the person who gave the provocation. In K. M.Nanavati Vs. State of Maharastra AIR 1962 SC 605 the SupremeCourt summarised the meaning of the expression "grave andsudden provocation" as follows :- The Indian law, relevant to the presentenquiry, may be stated thus; (1) The test of "graveand sudden" provocation is whether a reasonableman, belonging to the same class of society as theaccused, placed in the situation in which the accusedwas placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also,under certain circumstances, cause grave andsudden provocation to an accused so as to bring hisact within the first exception to Section 300 of theIndian Penal Code. (3) The mental backgroundcreated by the previous act of the victim may betaken into consideration in ascertaining whether thesubsequent act caused grave and sudden provocationfor committing the offence. (4) The fatal blow shouldbe clearly traced to the influence of passion arisingfrom that provocation and not after the passion hadcooled down by lapse of time, or to otherwise givingroom and scope for premeditation and calculation."

Law is now fairly settled that the accused need not specificallyplead that his case comes under any of the exceptions to section300 IPC. Even if he had not taken any such plea in his defence if pr there is material available on record to bring the offence underany of the exceptions to section 300 IPC the Court can record anappropriate finding on that score.

9. The question as to whether the provocation given tothe accused is grave and sudden or not is one of fact and has tobe decided on the circumstances of each case. Keeping theaforesaid legal position in view, we have carefully examined theentire evidence on record to find out if the appellant's case wouldcome within the exception 1 to section 300 IPC. On closescrutiny we have not been able to find an iota of evidence toindicate that the deceased abused the appellant in filthy languagewhen he found the latter absent on his duty post at the relevanttime. There is also no evidence that any time before the incidentthe deceased hurled abusive language to the deceased. Thegeneral testimony of PWs 2, 12 and 13 that the deceased used toscold his subordinates in un-parliamentary and filthy language isof no help to the appellant. What is necessary is the relevantevidence that because of slang language uttered by the deceasedwhich gave rise to grave and sudden provocation on account ofwhich the appellant was deprived of the power of self-control andfired the faLtal shot. We may at the cost of repetition state that theevidence on that count is miserably wanting. On the contraryPWs 1 and 2 simply stated that the deceased pulled up theappel]ant as to why he did not reach his post for duty a.t theappointed hour and made entry in the G.D. register. Theevidence of PWs 15 and 18, as already noted, is to the effect that pr when the deceased found the appellant near the ofrice of theI Asstt. Commandant he shouted at him as to why he left the postand came over there for which he should be proceeded against.None of the above witnesses (PWs 1, 2,15 and 18) stated that thedeceased uttered any humiliating or slang words to the deceasedwhich could have constituted grave and sudden provocation. Asthe evidence shows, the deceased made some entry in the G.D.register regarding the appellant when he was not at his duty postat the appointed hour. The appellant had obviously scope forpre-meditation and planning and after 20 minutes came to theoffice of the Asstt. Commandant with his S.L.R. and ammunitionson the plea that he would go to the toilet situated in the barracksand after locating the deceased shot at him with his S.L.R.causing his instantaneous death. In the circumstances, we are ofthe considered opinion that the appellant is not entitled to thebenefit of exception I to section 300 IPC. Unless the case fallswithin any of the exceptions to section 300 IPC, it shall be murderand the Court cannot convert the offence of murder into that ofculpable homicide not amounting to murder.

]0. Learned counsel for the appellant further submittedthat the appellant had no intention to cause the death and,therefore, the conviction under section 302 IPC is not proper. Wedo not find any merit in the above submission. As noticed above,the appellant with a calculated mind left the place of his duty andcame over to the ofrice of the Asstt. Commandant with a view totake revenge on the deceased because he made entry against him pr

in the G.D. register. After locating the deceased the appellant' fired shot from a close range which could not have had other thanthe fatal effect and it is indicative of the intention of the appellantto commit murder. We may also state that even if there is nointention to kill it can also be murder if the accused knew thatthe injury inflicted would be likely to cause death or that it wouldbe sufricient in the ordinary course of nature to cause death orthat the accused knew that the act must in all probability causedeath. When the appellant fired from his S.L.R. on the deceased,it cannot be said that he had no intention to cause such bodilyinjury, as it would be likely to cause the death. The doctor whoconducted the post-mortem examination also opined that theinjury sustained by the deceased was sufficient in the ordinarycourse of nature to cause death. Therefore, in the circumstances,it is a clear case of an offence of commission of murder.

I I. The following cases were cited by the learned counselfor the appellant in support of his contention that the offencecommitted by the appellant would not be a case of murder :-

(i) State of Gujarat vs. Bhand Jasub Mamad,1982 CRI.L. LJ. 1691. It was a case in which the trial Judge convicted theaccused for the offence punishable under section 304 part I IPCagainst which the State filed appeal. The Gujarat High Courtheld that abuses hurled at the mother and sister might constitutegrave and sudden provocation considering the class of society towhich the accused belonged and accordingly the Court held thatthe case comes under exception 1 to section 300 IPC and did not pr find fault with the conviction recorded against the accused under' section 304 part I IPC. The facts of this case are quite differentfrom the facts of the present case.

/!fy Babrubahan Jal vs. State of Assam,1991 CRI. L. J.278. It was a case in which the accused entered the kitchen ofone Sumitra and threatened her to outrage her modesty anddragged her out from the kitchen. When Kusha, the youngerbrother-in-law of Sumitra resisted, the accused inflicted knifeinjury on his abdomen and fled away. Kusha succumbed to hisinjury after two days. Considering the facts and circumstances,the Gauhati High Court held that the accused entered the kitchento take revenge on the son and younger brother-in-law of Sumitraand he had no intention to kill Kusha. The incident took place atthe spur of the moment. The Court accordingly held the accusedguilty of an offence punishable under section 304 part 11 IPC. Thefact-situation of that case is quite different from the facts andcircumstances of the present case.

/{!]/ Nalleti Eswara Rao vs. State of Andhra pradesh, 2002CRI. L. J. 1649. It was a case in which the accused gave onesingle blow on the head of the deceased without any intention tocause the death. A learned Single Judge of Andhra Pradesh HighCourt held that it was a case of sudden provocation. In thecircumstances, the conviction of the accused under section 304part 11 IPC was held to be proper. The facts of this case are alsoquite different from the facts of the case at hand.

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iv| Desa singh vs. State of punjab, 2003 CRI. L. J. 2986.It was also a case where the convict was found to have nointention to commit murder of the deceased and the occurrencetook place at the spur of the moment. In the circumstances, theconviction under section 304 part I IPC was held to beappropriate. The facts and circumstances of that case are quitedistinguishable and the ratio of that case is not available to beextended to the present case.

]2. In view of what has been stated above, there is nomerit in this appeal which is accordingly dismissed.

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( R. K.Chiof €toe03.12.2008