IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal not D-711-DB of 2007 Date of decision :
10. 01.2013 Prem Kumar ...Appellant VERSUS State of Punjab ...Respondent CORAM : HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE INDERJIT SINGH *** Present : Mr.P.P.S.Duggal, Advocate, for the appellant.
Mr.B.S.Bhalla, Addl.
Advocate General, Punjab, for the respondent-State.
*** INDERJIT SINGH, J The instant appeal is directed against the judgment and order of sentence dated 05.06.2007, passed by the Sessions Judge, Faridkot, vide which appellant Prem Kumar has been held guilty and convicted for the offence punishable under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/- and in default of payment of fine to further undergo rigorous imprisonment for two yeaRs.Brief facts of the prosecution case are that FIR in the present case was registered on the statement of Laxmi Devi, complainant, widow of deceased Shashi Pal.
She mainly stated in her statement that she, her husband Shashi Pal and their three children reside in the chobara of their house whereas Prem Kumar, younger brother of her husband and her mother-in-law Ram Ratti reside on the ground floor.
She stated that on 08.03.2006, her Criminal Appeal not D-711-DB of 2007 [2].brother namely Vicky had come from Bathinda.
At about 7:00 p.m., complainant, her husband Shashi Pal and her brother Vicky were sitting on a Co.in verandah of the chobara.
Prem Kumar and Ram Ratti were sitting in the courtyard at the ground floor.
Complainant, her husband and her brother came down stairs in the courtyard from the verandah of the chobara.
Shashi Pal asked his brother Prem Kumar, who was sitting in the courtyard, as to why he had sold the cooler stand.
Prem Kumar replied that he will sell the entire household.
At this Prem Kumar grappled with her husband Shashi Pal and caused scratches on the right side of his nose.
She further stated that they separated them.
Prem Kumar went inside the kitchen and brought a knife (karad) and stated that he will sell the entire household and who he was to stop him.
Immediately after saying so, he gave two blows with the knife (karad) in the abdomen of her husband Shashi Pal, which hit him on the left side, a little below the nipple and on the left rib.
Vicky and Ram Ratti raised alarm 'killed-killed'.
Then Prem Kumar fled away from the spot alongwith the knife.
On hearing the noise, Babu Ram, Parkash Chand, Lal Chand and Gian Chand came in the house and after arranging the conveyance, they took her husband Shashi Pal to Civil Hospital, Kotkapura.
Complainant and her brother Vicky went after them in the hospital where she came to knot that her husband has died.
When she alongwith her brother Vicky was going to police station for lodging the report, police officials met her near the gate of Criminal Appeal not D-711-DB of 2007 [3].hospital at Kotkapura and her statement was got recorded by Sub Inspector Jaswinder Pal, SHO, Police Station City Kotkapura at 11:30 p.m.on 08.03.2006.
Special report was received by the Ilaqa/Duty Magistrate at 1:30 a.m.on 09.03.2006.
Ruqa was sent to the police station on the basis of which FIR Ex.P14 was registered.
The Investigating Officer prepared the inquest report Ex.P15.
Postmortem on the dead body of Shashi Pal was got conducted.
Investigating Officer inspected the spot and prepared rough site plan Ex.P16.
Blood stained earth etc.was lifted and the same was taken into police possession vide memo Ex.P17 after preparing separate sealed parcels.
Statements of witnesses were recorded.
After necessary investigation, challan against the accused was presented before the Court.
On presentation of challan, copies of challan and other documents were supplied to accused under Section 207 Cr.P.C.Finding a prima facie case against the accused, he was charge- sheeted for the offence under Section 302 IPC to which he pleaded not guilty and claimed trial.
The prosecution, in support of its case, examined PW1 Dr.Kuldeep Kumar, who conducted the postmortem examination on the dead body of Shashi Pal on 09.03.2006 and found the following injuries:- 1.
Reddish brown abrasion 1.1 cms x 0.3 cms was present on the right lateral wall of Nos.vertically Criminal Appeal not D-711-DB of 2007 [4].placed.”
2. Reddish brown abrasion 1.2 x 0.4 cms horizontally placed on the right side of the face, 1 cm lateral to the nose.”
3. Reddish brown abrasion 1.3 x 0.3 cms was present on the right cheek 3 cms lateral to angle of mouth and it was obliquely placed.”
4. Incised stab wound 2.3 x 1.5 cms obliquely placed on the left side of the chest, 3.5 cms below the left nipple at 7 O'clock position, elliptical in shape, clotted blood was present.”
5. Incised stab wound 2.5 x 1.8 cms vertically placed, 7 cms below the nipple of left side of chest on its lower part at 5 O'clock position.
On dissection of chest plural cavity contains about 300 CC of blood and left lung was showing penetrating stab injury in its lower lobe.
About 150 CC blood was also present in the pericardial cavity.
Penetrating stab injury was present on the left side of the heart in its lower part which was entering in the left ventricle of the heart and fluid blood was coming out of the injury side.
In the opinion of the doctor, the cause of death in this case was haemorrhage and shock as a result of injury to heart and left lung (vital organs) as a result of injuries No.4 and 5 which were Criminal Appeal not D-711-DB of 2007 [5].sufficient to cause death in the ordinary couRs.of nature.
PW2 Laxmi Devi, complainant, mainly deposed as per prosecution version.
PW3 Dr.Jasvir Singh mainly deposed regarding informing the SHO, Police Station City Kotkapura regarding receiving the dead body at about 9:00 p.m.on 08.03.2006 in the hospital.
PW4 Constable Duli Chand mainly deposed regarding delivery of special report to Ilaqa Magistrate.
PW5 Dharam Singh, Draftsman, deposed regarding the scaled site plan Ex.P8.
PW6 C-II Pal Singh is a formal witness, who tendered into evidence his affidavit Ex.P9.
PW7 Head Constable Harbans Lal, who was with the police party on 11.03.2006, deposed regarding arrest of accused Prem Kumar and also regarding disclosure statement made by the accused and then recovery of Karad (knife) in pursuance of his disclosure statement which was taken into police possession after preparing the sealed parcel.
PW8 MHC Sukhdarshan Kumar is a formal witness, who tendered into evidence his affidavit Ex.P13.
PW9 Vicky, who is eye witness to the occurrence, also deposed as per prosecution version.
PW10 Sub Inspector Jaswinder Pal is the Investigating Officer, who mainly deposed regarding the investigation of the case.
PW11 Constable Joginder Singh is a formal witness, who tendered into evidence his affidavit Ex.P22.
PW12 ASI Jagdish Lal, who joined the police party headed by Jaswinder Pal, SHO, Police Station City Kotkapura, also deposed regarding the investigation and further regarding the disclosure statement suffered by the accused and regarding recovery Criminal Appeal not D-711-DB of 2007 [6].of Karad (knife) in pursuance of his (accused) disclosure statement.
The Public Prosecutor, after tendering into evidence Forensic Science Laboratory reports Ex.P29 and Ex.P30, closed the prosecution evidence.
At the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C.and confronted with the evidence of prosecution.
The accused denied the correctness of the evidence and pleaded himself as innocent.
He also pleaded that he has not committed the murder of his brother.
He has been falsely implicated in this case at the instance of complainant Laxmi Devi and her parents as her younger sister is married to him and his relations have become stained with his wife but still he want to rehabilitate her but the complainant and her other family members wanted to contract her second marriage with someone else and have been pressurizing him to give divorce to her to which he did not agree.
Neither he has committed the murder of his brother Shashi Pal not he has got recovered any Karad in pursuance to the disclosure statement as alleged by the prosecution.
The entire story has been concocted by Laxmi Devi, wife of his brother Shashi Pal, to take revenge from him.
In defence, the accused examined DW1 Lal Chand, who mainly deposed that on 08.03.2006 at about 7:00/8:00 p.m., after hearing the cries, he reached on the spot and found Shashi Pal lying in the street with his face downwards.
He took him to Civil Hospital, Criminal Appeal not D-711-DB of 2007 [7].Kotkapura.
Parkash Chand was also on his motorcycle whereas Babu Ram and Gian Chand came to the hospital after their arrival in the hospital.
He also deposed that no family member of deceased Shashi Pal accompanied to them in the hospital.
DW2 Basant Lal admitted his signatures on documents Ex.P10 to Ex.P12 and Ex.P23 to Ex.P27 and deposed that police officials obtained his signatures on blank papers when they came to the street.
The accused was never arrested by the police in his presence.
DW3 Ram Ratti also deposed that Shashi Pal's wife Laxmi Devi and Prem Kumar's wife Kaki are the real sisteRs.Kaki was not sent to their house after marriage and she did not reside at Kotkapura with the accused Prem Kumar.
Her parents were not allowed her to live with accused Prem Kumar.
Shashi Pal also not agreed that her sister-in-law should live as a wife with Prem Kumar and he wanted that Prem Kumar accused should give divorce.
She deposed that she (DW3) and Prem Kumar took Panchayats but parents of Kaki did not agree to send Kaki in the matrimonial home.
On the day of occurrence, she alongwith Prem Kumar, Seetu, her younger son and Laxmi Devi, wife of Shashi Pal (deceased) was present at home.
Lal Chand, husband of Kanta Devi, M.C., came to their house at 9:00/9:30 p.m.and told her to arrive at the hospital immediately as her son Shashi Pal was admitted in the hospital.
Accordingly, she reached the hospital at 10:00 p.m.where she found her son Shashi Pal lying dead.
No altercation between the accused and the deceased took place in the Criminal Appeal not D-711-DB of 2007 [8].house in her presence.
Accused has been falsely implicated in the present case.
DW4 Babu Ram also deposed the same facts as deposed by Lal Chand (DW1).The trial Court, after appreciation of evidence, convicted and sentenced the accused as stated above.
At the time of arguments, learned counsel for the appellant-accused contended that the appellant has been falsely implicated in the present case.
No such occurrence took place in the house in the presence of Laxmi Devi etc.The defence version is more probable and a reasonable doubt exists in the prosecution case.
Learned counsel for the appellant next contended that otherwise also from the evidence on record, the case falls under Section 304 Part-I IPC and not under Section 302 IPC.
Therefore, learned counsel for the appellant contended that appellant should be acquitted accordingly.
On the other hand, learned Addl.
Advocate General, Punjab contended that it is a case of direct evidence.
Eye witnesses Laxmi Devi (PW2) and Vicky (PW9).who were present on the spot, deposed consistently regarding the occurrence.
Their oral statements are supported by medical evidence.
The FIR is prompt one.
There was quarrel between the brothers and the occurrence took place in the house and not in the street.
Blood stained earth was taken from the house.
The defence version cannot be believed.
Learned Addl.
Advocate General, Punjab, contended that there is no Criminal Appeal not D-711-DB of 2007 [9].merit in the contentions of learned counsel for the appellant and the appeal should be dismissed.
We have heard learned counsel for the appellant and learned Addl.
Advocate General, Punjab and with their assistance, we have gone through the evidence on record minutely and carefully.
From the record, we find that fiRs.of all it is a case of direct evidence.
The occurrence took place at about 7:00 p.m.on 08.03.2006, statement of Laxmi Devi (PW2) was completed at 11:30 p.m., FIR was registered at 11:40 p.m.and the special report was received by the Ilaqa Magistrate/Duty Magistrate at 1:30 a.m.(night) on 09.03.2006.
Therefore, there is no unnecessary delay in reporting the matter to the police in the present case.
Otherwise also, it is a case of single accused and there is no reason or ground why the accused is falsely implicated in the present case and the actual culprit left out.
Presence of PW2 Laxmi Devi, complainant, widow of deceased Shashi Pal, at 7:00 p.m.in the house is natural and cannot be doubted.
Even Ram Ratti, mother-in-law of complainant, admitted the presence of complainant in the house at 7:00/8:00 p.m.We have perused the statement of PW2 Laxmi Devi.
There are no material contradictions or improvements in her statement which may go to the root of the case.
There is nothing in the cross-examination which may make her statement unreliable.
She is truthful, reliable and trustworthy witness.
Similarly, it is in the evidence that PW9 Vicky, brother-in-law of deceased Shashi Pal and real brother of the Criminal Appeal not D-711-DB of 2007 [10].complainant, was also present in the house and has seen the occurrence.
PW9 Vicky has also consistently deposed regarding the prosecution version.
The perusal of his cross-examination also shows that there is nothing to doubt his presence in the house not there is anything which may make his statement unreliable.
Therefore, PW2 Laxmi Devi and PW9 Vicky have consistently deposed as per prosecution version.
Their statements are duly supported and corroborated by medical evidence.
PW2 Laxmi Devi has stated in the FIR that Prem Kumar accused grappled with the deceased Shashi Pal and gave injuries on the Nos.etc.which fact has been duly supported and corroborated by medical evidence.
Further, the recovery of blood stained karad (knife) from the accused also supports and corroborates the prosecution version.
The Forensic Science Laboratory report Ex.P30 shows that the karad (knife) was stained with human blood.
So from the evidence on record, we find no merit in the contentions of learned counsel for the appellant.
As regarding the contention that the case falls under Section 304 Part-I IPC and not under Section 302 IPC, from the evidence on record, we find that it is duly proved from the evidence that sudden fight took place on a petty matter between Prem Kumar accused and Shashi Pal deceased.
At that time, Prem Kumar was not armed with any weapon.
In the heat of passion upon a sudden quarrel, he brought out a knife, used for cutting vegetables, and gave Criminal Appeal not D-711-DB of 2007 [11].two blows to Shashi Pal (deceased).Learned counsel for the appellants placed reliance on the judgment of Hon'ble Supreme Court delivered in case Sridhar Bhuyan versus State of Orissa 2004(3) R.C.R.(Criminal) 909.
We have gone through the aforesaid judgment.
The facts of aforesaid judgment are similar to the facts of the present case.
In the aforesaid judgment, the Hon'ble Supreme Court has held as under:- “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 fiRs.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 premediation.
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 men's sober reasons 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 Criminal Appeal not D-711-DB of 2007 [12].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, not 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 help of Exception 4 can be invoked if death is caused (a) without premediation; (b) in a sudden fight; (c) without the offender's 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 the 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 Criminal Appeal not D-711-DB of 2007 [13].fury on account of the verbal altercation in the beginning.
A fight is a combat between two and 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 premediation.
It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner.
The expression 'undue advantage' as used in the provision means 'unfair advantage'.”
From the perusal of aforesaid judgment, we find that in the present case also, the occurrence took place without pre- mediation, in a sudden fight without the offender having taken undue advantage and not having acted in a cruel or unusual manner and the occurrence took place in the heat of passion.
Therefore, Exception 4 to Section 300 IPC will apply in the present case.
We find merit in this contention.
Therefore, from the above discussion, we hold Prem Kumar guilty of the charge under Section 304, Part-I IPC and he is convicted thereunder instead of under Section 302 IPC and his sentence is modified and is ordered to undergo rigorous Criminal Appeal not D-711-DB of 2007 [14].imprisonment for ten years and to pay a fine of 5,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months for the offence under Section 304, Part I IPC.
With the above modification in conviction and sentence, the appeal is partly allowed.
(JASBIR SINGH) (INDERJIT SINGH) JUDGE JUDGE 10 01.2013 mamta