IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 542-DB of 2004 DATE OF DECISION : 08.09.2010 Kuljit Singh .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Akshay Kumar Goel, Advocate (amicus curiae), for the appellant. Mrs. Manjari Nehru Kaul, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. Appellant Kuljit Singh was tried by the court of Sessions Judge, Ludhiana, for the offences under Sections 302 and 324 IPC for committing the murder of his father Mangal Singh and brother Baljit Singh and for causing injury to his mother Nasib Kaur. The court of Additional Sessions Judge, Ludhiana, vide its judgment and order dated 17.5.2004, convicted and sentenced the appellant to undergo rigorous imprisonment for life and to pay a fine of ` 1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for a period of one year, under Section 302 IPC for committing the murder of Mangal Singh; to undergo rigorous imprisonment for life and to pay a fine of ` 1,000/-, in default of payment of Crl. A. No. 542-DB of 2004 -2- fine, to further undergo rigorous imprisonment for a period of one year, under Section 302 IPC for committing the murder of Baljit Singh; and to undergo rigorous imprisonment for one year under Section 324 IPC for causing injury to Nasib Kaur. All the substantive sentences were ordered to run concurrently. 2. In the present case, Mangal Singh (deceased) was a poor cobbler. He was having two sons, namely Kuljit Singh (appellant) and Baljit Singh (deceased). Both of his sons were married, but their wives were not living with them, because of their strained relations, and they used to live in their parents house. Mangal Singh, Baljit Singh and the appellant were residing in a house situated in Mohalla Gandhi Nagar, Jagraon. Baljit Singh was living with his parents, whereas the appellant was living separately in one room of the same house and he used to prepare food separately and was doing labour work. As per the prosecution version, relations between the appellant and his father Mangal Singh were strained, because the appellant used to demand money from his father. On the day of occurrence i.e. on 15.11.1998, complainant Maghar Singh (PW.1), the real uncle (younger brother of deceased Mangal Singh) of the appellant, who was living in village Kaunke Kalan, Police Station Jagraon, who had come to the house of his elder brother Mangal Singh previous day to meet him, was present in the court-yard of the house, where all the family members were sitting and talking about the family affairs. At about 9.30 AM, appellant Kuljit Singh came to the court-yard from his room and started quarreling with his father Mangal Singh on the pretext that he used to give all the money to Baljit Crl. A. No. 542-DB of 2004 -3- Singh, whereas he (Mangal Singh) should have also given money to him (appellant). Mangal Singh replied the appellant that he was living separately and he should earn his livelihood himself, and why he should give money to him. On that, the appellant stated that he knows how to get money. He further said that he will teach a lesson to Mangal Singh for refusing to give money to him. Saying so, the appellant went inside his room, brought a naked kirpan and gave a kirpan blow from its sharp side thrust-wise, to Mangal Singh on the left side of the abdomen near the testicles, which went through and through his left thigh. Thereupon, Mangal Singh fell down. When Baljit Singh tried to intervene, the appellant gave a kirpan blow to him also and stabbed the kirpan directly into his left flank. When the complainant Maghar Singh and Nasib Kaur (mother of the appellant) tried to intervene and raised noise, the appellant gave a kirpan blow on the palm of left hand of his mother Nasib Kaur. Thereafter, the appellant along with the kirpan ran away from the spot. Mangal Singh died at the spot, whereas Surjit Singh, a resident of the same Mohalla, came at the spot and took Baljit Singh injured to Civil Hospital, Jagraon. Complainant Maghar Singh went to inform the police by leaving Nasib Kaur at the spot and in the way, at Kamal Chowk, the police party headed by SI Kashmira Singh (PW.15) met him and recorded his statement (Ex.PA) at 10.45 AM, on the basis of which the formal FIR (Ex.PA/1) was recorded. Thereafter, the police party along with the complainant reached the place of occurrence, inspected the spot, lifted the blood stained earth and after converting it into sealed parcel, SI Kashmira Singh took into possession vide recovery memo Ex.PB. He Crl. A. No. 542-DB of 2004 -4- also prepared inquest report (Ex.PE) and sent the dead body of Mangal Singh to Civil Hospital, Jagraon, for post-mortem examination. 3. On 15.11.1998 at about 5.00 PM, Dr. Jatinder Syal (PW.6) conducted post mortem examination on the body of deceased Mangal Singh and found two injuries on his body. The probable time between injuries and death was immediate and between death and post mortem examination, the time was within 5 to 15 hours. The injuries were opined to be sufficient to cause death in the ordinary course of nature. The post mortem report of deceased Mangal Singh is Ex.PL. 4. On 15.11.1998 itself at about 4 PM, Dr. Harinder Sharma, medico legally examined injured Nasib Kaur and found one injury on her body. Her MLR is Ex.PW9/B, which was opined to be caused by sharp edged weapon. 5. On the day of occurrence i.e. on 15.11.1998, Baljit Singh was referred to Civil Hospital, Ludhiana and at about 5.30 PM, he was got admitted in Civil Hospital, Ludhiana. However, on 19.11.1998 at about 8.30 PM, he left the Hospital, against the medical advise and thereafter, he expired on 20.11.1998. 6. On 20.11.1998 at about 1.00 PM, Dr. Jatinder Syal (PW.6) conducted post mortem examination on the body of deceased Baljit Singh and found one injury on his body, which led to cardiac respiratory arrest leading to his death. The injury was ante-mortem and sufficient to cause death in the ordinary course of nature. The post mortem report of deceased Baljit Singh is Ex.PM. His inquest report is Ex.PC. Crl. A. No. 542-DB of 2004 -5- 7. On 24.11.1998, SI Kashmira Singh arrested the appellant and in pursuance of his disclosure statement (Ex.PW.15/C), the appellant got recovered the kirpan, which was taken into possession by the police vide recovery memo Ex.PW.12/A. 8. After completion of investigation, the challan was filed against the appellant and he was charge sheeted for the offences under Section 302 and 324 IPC, to which he did not plead guilty and claimed trial. 9. In support of its case, the prosecution examined 16 witnesses, out of whom PW.1 Maghar Singh complainant, PW.6 Dr. Jatinder Syal, PW.9 Dr. Harinder Sharma, PW.11 Nasib Kaur injured, PW.15 Inspector Kashmira Singh and PW.16 Dr. Anil Verma are the material witnesses. 10. PW.1 Maghar Singh and PW.11 Nasib Kaur, the eye witnesses in the case, have narrated the entire occurrence and they have fully supported the case of the prosecution, on each and every aspect of the occurrence. 11. PW.6 Dr. Jatinder Syal, who conducted post mortem examination on the dead body of deceased Maghar Singh and Baljit Singh, has proved the Post Mortem Reports of both the deceased persons as Ex.PL and Ex.PM, respectively. 12. PW.9 Dr. Harinder Sharma, who medico legally examined injured Nasib Kaur, has proved her MLR as Ex.PW9/B. He also proved the opinion (Ex.PW9/D) given by him on the police request (Ex.PW9/C), whereby he opined that injury on the left hand of injured Nasib Kaur was caused by sharp edged weapon. Crl. A. No. 542-DB of 2004 -6- 13. PW.16 Dr. Anil Verma, Medical Officer, stated that on 15.11.1998 at about 5.30 PM, Baljit Singh was brought in Civil Hospital, Ludhiana, and on medical examination, he found one injury on the person of the injured, which was caused by sharp edged weapon. He proved the injury report as Ex.PW.16/A. He also stated that on 19.11.1998 at about 8.30 PM, Baljit Singh left the Hospital against medical advise. 14. PW.15 Inspector Kashmira Singh, who conducted investigation in this case, recorded the statements of the witnesses and arrested the appellant, has proved all the material documents prepared by him i.e. the statement of the complainant (Ex.PA), endorsement (Ex.PW15/A) below it, inquest report (Ex.PE), disclosure statement of the appellant (Ex.PW.15/C), recovery memo of the kirpan (Ex.PW.12/A), sketch of the kirpan (Ex.PW.12/B) and the rough site plan of the place of recovery (Ex.PW.15/D). 15. In his statement under Section 313 Cr.P.C., the appellant denied all the allegations appearing against him in the prosecution evidence. He pleaded innocence. He stated that the case was planted upon him with the connivance of his mother and brother, who were not having good relations with him. However, he did not lead any evidence in defence. 16. The trial court, while relying upon the medical evidence and the statements of the eye witnesses, convicted and sentenced the appellant, as indicated above. 17. We have heard the arguments of learned counsel for the parties and have gone through the trial court record. Crl. A. No. 542-DB of 2004 -7- 18. Learned counsel for the appellant argued that the appellant has been falsely implicated in this case. He further argued that complainant Maghar Singh is a created witness, as he was not present at the spot, and the prosecution has failed to prove its case against the appellant beyond shadow of a reasonable doubt. In the last, learned counsel argued that the alleged occurrence had taken place suddenly without any premeditation or without any common intention of the appellant to cause death of his father and brother. In these circumstances, conviction of the appellant for the offence under Section 302 is not sustainable at all and the appellant, at the most, can be convicted for the offence under Section 304 IPC. 19. On the other hand, learned Additional Advocate General, Punjab, supported the judgment of conviction and the order of sentence, passed by the trial court and submitted that the prosecution has fully established its case against the appellant and he has been rightly convicted and sentenced for the offence under Section 302 IPC. 20. From the medical evidence, led by the prosecution, it has been proved on record that Maghar Singh and Baljit Singh have died due to the kirpan injuries received by them, which were ante-mortem in nature. It has been further proved that the appellant also caused an injury with kirpan on the person of his mother Nasib Kaur. The presence of complainant Maghar Singh at the spot is most probable and natural. He is the real uncle of the appellant and brother of deceased Mangal Singh. He has stated that one day prior to the occurrence, he had come to the house of his brother to meet him, and at the time of the occurrence, he along with his brother Mangal Singh, Crl. A. No. 542-DB of 2004 -8- Baljit Singh and Nasib Kaur was present in the court-yard of the house, where all the family members were sitting and talking about the family affairs. This version of the complainant has been fully supported by Nasib Kaur. In the cross-examination, no suggestion was put to complainant Maghar Singh or injured witness Nasib Kaur, to the effect that at the time of the occurrence, the complainant was not present. Thus, it cannot be said that complainant Maghar Singh is a created witness. It is also not a case of false implication, because Maghar Singh and injured Nasib Kaur, who are the real uncle and mother, respectively, of the appellant, have fully supported the case of the prosecution and there is no reason or motive for them to falsely implicate the appellant. Thus, from the testimonies of PW.1 Maghar Singh and PW.11 Nasib Kaur, it has been fully established beyond reasonable doubt that the appellant had caused injuries to his father Mangal Singh, brother Baljit Singh and mother Nasib Kaur, with a kirpan, which resulted into death of Mangal Singh and Baljit Singh. 21. Now, the question arising for consideration, as raised by learned counsel for the appellant, is as to whether in the facts and circumstances of the present case, the appellant is to be punished under Section 304 IPC or he has been rightly punished by the trial court under Section 302 IPC. If the culpable homicide committed by an accused does not amount to murder, he can be punished under Section 304 IPC. Learned counsel for the appellant argued that since in the present case, there was no intention on the part of the appellant to cause death of his father and brother or to cause such bodily injury to them, as is likely to cause their death, Crl. A. No. 542-DB of 2004 -9- therefore, he can be punished under Section 304 IPC. According to the learned counsel, case of the appellant falls under Exception 4 of Section 300 IPC, because according to him, without any premeditation in the heat of passion upon a sudden quarrel, the appellant caused injuries to his father and brother, without any intention to cause their death. 22. After hearing learned counsel for the parties on the aforesaid issue, we do not agree with the contention raised by learned counsel for the appellant. In our opinion, the instant case is not a case of culpable homicide not amounting to murder. From no stretch of imagination, case of the appellant falls under Exception 4 of Section 300 IPC. In Bhangaru Venkata Rao v. State of Andhra Pradesh, 2009 (1) RCR (Criminal) 452, the Hon'ble Supreme Court has held that in order to bring a case within Exception 4 of Section 300 IPC, two ingredients, i.e. (i) the culpable homicide was committed without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel; and (ii) the accused had not taken any advantage of the situation, must be found. In the present case, both these ingredients are completely missing. 23. Firstly, in the facts and circumstances of the case, it cannot be said at all that the appellant caused injuries to his father and brother without any premeditation in a sudden fight. In the present case, after quarreling with his father on the issue of demand of money, the appellant categorically asserted that he knows how to get money and further threatened his father that he will teach him a lesson for refusing to give money to him. Thereafter, he went inside his room, brought a naked kirpan and gave a Crl. A. No. 542-DB of 2004 -10- kirpan blow thrust-wise from its sharp side, to his father near the testicles, which went through and through his left thigh. Due to that injury, his father fell down and when Baljit Singh tried to intervene, the appellant gave a kirpan blow to him also and stabbed the kirpan directly into his left flank. Due to those injuries, Mangal Singh, father of the appellant, died at the spot and five days after the occurrence, Baljit Singh, real brother of the appellant, also died. The appellant not only caused fatal injuries to his father and brother, but he had also caused injury to his mother, when she tried to intervene and raised noise. All these facts clearly indicate that the appellant had caused injuries to his father and brother with full knowledge and determination, without there being any heat of passion upon a sudden quarrel. 24. Secondly, the injuries caused by the appellant to his father and brother with kirpan and the manner, in which those injuries were caused, clearly indicate and establish that the appellant had not only taken the undue advantage of the situation, but had acted in a cruel and unusual manner. His father, who was an old man, and his brother, were empty handed. They were sitting in the court yard and were discussing the family affairs. After having altercation with his father on the issue of money, the appellant went inside his room, while threatening his father to teach him a lesson, came back with a naked kirpan, gave a blow from its sharp side thrust-wise, to his father near the testicles, going through and through his left thigh, which ultimately resulted into his death at the spot. Thereafter, when brother of the appellant tried to intervene, the appellant stabbed the kirpan directly into his left Crl. A. No. 542-DB of 2004 -11- flank, which proved to be a fatal blow, leading to his death after five days of the occurrence. This conduct and the manner of causing injuries by the appellant clearly establish that he had not only acted in a cruel manner, but had taken undue advantage. In Ramkishan v. The State of Maharashtra, 2007 (1) RCR (Crl.) 614, it was held by the Supreme Court that if the accused used deadly weapons against an unarmed man and struck a blow on the head, it must be held that using the blow with the knowledge that it is likely to cause death, he had taken undue advantage. 25. In view of the above, case of the appellant does not fall within the ambit of Exception 4 of Section 300 IPC. Thus, we are of the opinion that the trial court has rightly convicted and sentenced the appellant for the offences under Sections 302 and 324 IPC. Accordingly, the impugned judgment of conviction as well as the order of sentence is upheld and the appeal is, accordingly, dismissed. ( SATISH KUMAR MITTAL ) JUDGE September 08, 2010 ( GURDEV SINGH ) ndj JUDGE