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GURCHARAN SINGH versus THE STATE OF PUNJAB.

High Court of Punjab and Haryana, Chandigarh

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Gurcharan Singh v. The State of Punjab. - CRA-D-617-DB-1997 [2007] RD-P&H 867 (25 January 2007)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Criminal Appeal No.617-DB of 1997

Date of decision: 29.01.2007

Gurcharan Singh

-----Appellant.

Vs.

The State of Punjab.

-----Respondent.

CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MR JUSTICE H.S. BHALLA

Present: Mr. Vipin Ghai, Advocate

for the appellant.

Mr. M.S. Sidhu, Sr. Deputy A.G., Punjab.

-----

Adarsh Kumar Goel, J.

The appellant is aggrieved by his conviction under Section 302 IPC and Section 27 of the Arms Act. He stands sentenced to undergo life imprisonment and to pay a fine of Rs.2000/- or in default to further undergo RI for 6 months. He further stands sentenced to undergo RI for two years under Section 27 of the Arms Act and to pay a fine of Rs.500/- and in default to further undergo RI for three months. The substantive sentence has been ordered to run concurrently.

Dhanjit Kaur, PW-2 made a statement, leading to registration of FIR Exh.PD/1, to the effect that she was married to the deceased Gurbachan Singh, brother of the accused Gurcharan Singh. Sisters of her husband Labh Kaur and Amarjit Kaur were both married. Both the brothers had separated and their house had been partitioned. Father of the deceased and the accused was living with the accused. The deceased had two sons. Both the brothers (i.e. the deceased and the accused) were given one killa of land each while their father retained three Criminal Appeal No.617-DB of 1997

killas of land. Electric moter was in the name of the accused. The land was given on lease to one Harnek Singh. On 21.5.1995 at about 8.30 A.M., the deceased was going to take bullock, after taking the bullock cart outside the door. The accused was quarrelling with his father Gurdial Singh for his having allowed the deceased to irrigate his fields from the accused's tubewell. The deceased asked them why they were quarrelling, on which, the accused fired from his DBL gun hitting the deceased on his chest resulting in instant death. The incident was witnessed by the complainant Dhanjit Kaur and her two sons, PW-3 Gurpreet Singh and Gurtej Singh as well as father of the deceased Gurdial Singh, DW-1.

The above statement was recorded by S.I. Darshan Singh, PW-13, who went to the place of occurrence. The FIR was registered at 11.25 A.M., a copy of which was received by the Illaqa Magistrate at 2.25 P.M. through Constable Gurdev Singh. Inquest report, Exh. PC was prepared by SI Darshan Singh, PW-13. He sent the dead body for post-mortem examination vide Exh.PB.

He arrested the accused on 26.05.1995 and recovered a gun, Exh.P-21 and cartridges Exhs.P-22 and P-23. He completed investigation and filed challan.

Charge was framed, which the accused denied.

PW-1 Dr. Romesh Kumar Garg, who conducted the post-mortem examination on the dead body of the deceased and found following injuries:- "1. Lacerated wound oval in shape measuring 3.2 cm x 2.5 cm with black irregular and inverted margins. (It was a wound of entry present on the left side of chest medial to left nipple 14 cm medial to anterior axillary line and 2 cm medial to the left nipple. A corresponding rent was present on the shirt. On dissection the wound was going obliquely downward and laterally. On the Posterior lateral chest walls there was a diffused swelling 5 cm x 3 cm containing dari clotted blood. 12 matellic pieces, one plastic like pieces and cardboard like pieces and cardboard like piece were collected from thoracic cavity left side just above chest wall. The intervening structure, anterior chest wall, 4th and 5th

ribs on anterior

side pericardial, heard, left lung were badly damaged. Thoracic cavity was full of dark clotted blood."

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In his opinion, the probable cause of death in this case, was hemorrhage and shock and injury on vital organs i.e. heart and lung, which was sufficient to cause death in the ordinary course of nature. The Injury was ante- mortem. In his opinion, the injury was a gun shot injury.

PW-2 Dhanjit Kaur fully supported the version given in the FIR.

Gurpreet Singh, PW-3 corroborated the version given by Dhanjit Kaur. PW-4 Dev Raj, Draftsman was examined to prove the site plan. PW-5 Dharam Pal was examined to prove the electric connection of the tubewell. Evidence of PW-6 to PW-8 is of formal nature. PW-9 Harnek Singh was examined to prove lease- deeds, on the basis of which, he was cultivating the land. PW-10 Teja Singh was examined to prove extra-judicial confession made before him. PW-11, Jatinder Pal, ASI was examined to prove recoveries effected. PW-12 Chet Ram was a witness to the recoveries effected.

The accused in his statement under Section 313 Cr.P.C. set up the plea of alibi and stated that he had gone to ease himself in the fields and unknown persons killed his brother. DW-1 Gurdial Singh, father of the deceased and the accused, stated that the deceased was killed by unknown persons in his absence.

DW-2 Constable Sher Singh was examined to prove Roznamcha entry.

The trial Court after considering the evidence on record, held the case of the prosecution to have been fully proved from the evidence of Dhanjit Kaur and Gurpreet Singh, who are eyewitnesses and whose version was fully reliable. Their version was further corroborated by extra-judicial confession made before Teja Singh, PW-10. The occurrence took place during the day time and there was no doubt about the identity of the accused.

Though learned counsel for the appellant challenges the conviction of the appellant, but he could not pursue his arguments in view of direct testimony of PW-2 Dhanjit Kaur and Pw-3 Gurpreet Singh, on the basis of which, case of the prosecution stands fully proved. They are natural eye-witnesses. The occurrence Pag

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took place in the day-light and there is absolutely no reason to reject their testimony, which is forthright, reliable, consistent and without any material discrepancy. There is no delay in lodging the FIR and there is no motive for false implication. Conviction of the appellant is, thus, affirmed.

Learned counsel for the appellant argued that the appellant had no intention to cause death and the offence was not pre-meditated, but was as a result of sudden provocation. Alternatively, it was a case of `sudden fight'.

We do not find any substance whatsoever in the submissions made.

The accused having fired gun-shot in the chest of the deceased, resulting in instant death, it cannot be said that he had no intention to cause death. Intention is a matter of inference from the circumstances. Having regard to the nature of weapon and the seat of injury, intention to cause death is patent. Moreover, intention to cause injury, which is sufficient in the ordinary course of nature to cause death, is by itself enough to prove the ingredient of offence of murder. It cannot be argued that the accused had no intention to cause injury, which has been found sufficient in the ordinary course of nature to cause death. Burden to prove that the case falls in one of the exceptions to Section 300, is on the accused, even though the accused may discharge it, without leading any evidence, from the circumstances already brought on record and the nature of proof need not be qualitatively the same as is required from the prosecution i.e.

beyond reasonable doubt. No aggression and provocation has been proved on the part of the victim. Plea of sudden fight cannot be accepted. Sudden fight does not require mere absence of pre-meditation. It cannot be equated to sudden occurrence. The deceased was empty-handed and had not in any manner assaulted the accused. There was, thus, no fight from the side of the deceased.

The accused having taken the plea of not being on the spot, is an additional point to reject his plea of provocation or sudden fight. The law on the point is clear.

In State of A.P. v. Rayavarapu Punnayya AIR 1977 SC 45, Hon'ble Supreme Court observed:-

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"21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of murder contained in Section 300. If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable.

If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304, of the Penal Code." In the present case, the case clearly falls in Section 299 as well as 300 IPC and is not covered by any of the exceptions.

In Virsa Singh v. State of Punjab AIR 1958 SC 465, it was observed:-

"12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly"; First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

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Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

The question, when a case of grave and sudden provocation is made out, was gone into in K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605, wherein the Hon'ble Supreme Court considered the following passages from the earlier decisions:-

81. ........"In Mancini v. Director of Public Prosecutions, 1942 AC 1 at p.9. Viscount Simon, L.C., states the scope of the doctrine of provocation thus:

"It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self- control, as the result of which he commits the unlawful act which causes death....... The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex v. Lesbini, 1914-3 KB 1116 so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance to (a) consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter." Pag

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xx xx xx xx xx x

Goddard, C.J., in R. v. Duffy, 1949-I All ER 932n defines provocation thus:

"Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. ...... What matters is whether this girl (the accused) had the time to say: Whatever I have suffered, whatever I have endured, I know that Thou shall not kill. That is what matters. Similarly, ... circumstances which induce a desire for revenge, or a sudden passion of anger, are not enough.

Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person has had time to think, to reflect, and that would negative a sudden temporary loss of self- control which is of the essence of provocation. Provocation being ...

as I have defined it, there are two things, in considering it, to which the law attaches great importance. The first of them is, whether there was what is sometimes called time for cooling, that is, for passion to cool and for reason to regain dominion over the mind ...

Secondly, in considering whether provocation has or has not been made out, you must consider the retaliation in provocation that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given."

After discussion of the earlier case law, Hon'ble Supreme Court concluded:-

"85. The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave Pag

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and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.

(4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."

The question, when a case can be said to be of sudden fight, has been gone into, inter-alia, in Sachchey Lal Tiwari v. State of Uttar Pradesh 2004 SC 5039, wherein it was observed as under:- "9. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds mens sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation.

In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The Pag

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help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found.

It is to be noted that the fight occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation...."

In view of above, plea raised by the appellant about the nature of offence being culpable homicide not amounting to murder, cannot be accepted.

We do not find any ground to interfere with the conviction and sentence of the appellant.

The appeal is dismissed.

( ADARSH KUMAR GOEL )

JUDGE

January 29, 2007 ( H.S. BHALLA )

ashwani JUDGE

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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