IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No. 423-SB of 1995 Date of Decision: 10.12.2009 Surjit Singh. ....... Appellant through Shri Pawan Girdhar, Advocate. Versus State of Punjab. ....... Respondent through Shri K.D.Sachdeva, Addl.Advocate General. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This appeal is directed against judgment of conviction and order of sentence dated 7.6.1995 passed by the Sessions Judge, Amritsar (hereinafter referred to as `the trial Court') vide which the appellant has been convicted under Section 304, Part-I of the Indian Penal Code,1860 (for short, `the I.P.C.') and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1000/-and in default of payment, he has been further directed to suffer rigorous imprisonment for four months. Brief facts of the prosecution case are that on 14.6.1992, Crl.Appeal No.1423-SB of 1995 -2- .... A.S.I.Harbhajan Singh, who was posted in Police Station, Goindwal Sahib, was standing outside the Commando Shed along with Head Constable Sawinder Singh when at about 12.45 P.M., Constable Rajiv Kumar (since deceased) and Constable Des Raj, who were posted as Gunmen with the Deputy Superintendent of Police, First Commando Unit, Goindwal Sahib, came there. The appellant-Surjit Singh, who was also a Constable, abused the deceased and enquired from him as to from where he had come. Thereupon, the deceased told that they had come from Gurdwara Goindwal Sahib and questioned the authority of the appellant to ask him in this regard. An exchange of hot words and abuses followed and thereafter, both of them went to the room of Head Constable Paramjit Singh. A.S.I.Harbhajan Singh, H.C. Sawinder Singh and Constable Des Raj also followed them. All of them asked the appellant and the deceased not to quarrel, upon which the appellant lifted a knife and gave a blow to the deceased in the chest from the left side. While H.C.Sawinder Singh and others were busy in looking after the deceased, the appellant ran away along with the knife. The deceased was taken to hospital at Tarn Taran where he died. A.S.I. Harbhajan Singh,in the meantime, lodged a report with the Police Station, Goindwal Sahib. After completion of investigation, the appellant was challaned for having committed an offence punishable under Section 302 of the I.P.C. The trial Court charged him accordingly to which he pleaded not guilty and claimed trial. The prosecution, in order establish its case against the appellant, examined a number of witnesses including eye witnesses, who Crl.Appeal No.1423-SB of 1995 -3- .... were present at the spot. In his statement recorded under Section 313 of the Cr.P.C., the appellant pleaded innocence. After appraisal of the entire evidence on record, the trial Court held the appellant guilty of the alleged offence and convicted & sentenced him in the manner noticed hereinabove. Aggrieved by the findings of the trial Court, the appellant has come up in appeal. Learned counsel for the appellant has assailed the conviction and sentence awarded to the appellant primarily on the ground that the appellant, who acted in self-defence, was not liable to any punishment. Alternatively, he argued that even if the case of the prosecution case is accepted to be correct, the appellant could be convicted and sentenced under Section 304, Part-II and not under Section 304, Part-I of the I.P.C. Learned counsel for the appellant, in order to substantiate the contentions raised by him, referred to the testimony of PW6-Harbhajan Singh, the then A.S.I., and PW8-H.C. Sawinder Singh. He pointed out that PW8, in his cross-examination, stated that when he reached the room,he found that Des Raj, Rajiv and the appellant were grappling with one another and while doing so, they had fallen on the bed; that when they fell down on the cot, Des Raj and the deceased were on top of the appellant and both of them were trying to press him down; that the appellant was trying to escape from their clutches; that both Des Raj and the deceased were physically fit and while lying on the cot, the appellant caught hold of the knife and gave a Crl.Appeal No.1423-SB of 1995 -4- .... blow to the deceased. He, thus, contended that the appellant had no escape from the situation where he was in and in order to save his own life, he had inflicted injury upon the deceased. Learned counsel for the appellant argued that in case the Court comes to the conclusion that it was not a case of self-defence, then the conviction under Section 304, Part-II of the I.P.C. could have been recorded as the appellant had no intention to kill and, therefore, he was not liable to be punished under Part-I of Section 304 of the I.P.C. On the other hand, learned counsel for the respondent-State contended that there is no ambiguity in the impugned judgment and since the offence has been committed by the appellant in full view of other witnesses,who have been examined by the prosecution, there is no escape from the conclusion which has been arrived at by the trial Court and the conviction & sentence awarded to the appellant are perfectly in order. I have thoughtfully considered the rival contentions and have perused the impugned judgment, as also the record. The prosecution case, if pieced together, shows that the offence was committed by the appellant when there were a number of other persons present. The plea of self-defence as raised by the learned counsel for the appellant cannot be accepted. Even if the testimony of PW8 is to be accepted that Des Raj and the deceased were on the top of the appellant while grappling with him, it was expected of the appellant to remain conscious of the fact that there were other people to help in the eventuality Crl.Appeal No.1423-SB of 1995 -5- .... of any life threatening attack upon him. Rather,he chose to pick up a knife and inflicted one blow upon the deceased. Even if he had to save himself from the clutches of the deceased and Des Raj, being a Constable and also being an armed-guard, he was expected to know that a retaliation of the lesser degree would have easily saved him from the clutches of two persons. But, he chose to inflict a blow on the vital part of the body of the deceased with a knife, which resulted in the death of the latter. The plea of self- defence is, therefore, outrightly rejected. In so far as the plea of the appellant that he did not have any intention to kill the deceased and, therefore, his case ought to have been considered under Section 304, Part-II of the I.P.C., I am of the opinion that it merits closer scrutiny. Section 304, Part-I and Part-II of the I.P.C. are extracted below for proper appreciation of the plea of the appellant:- “304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is Crl.Appeal No.1423-SB of 1995 -6- .... done with the knowledge that it is likely to cause death,but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” The aforesaid provisions of law clearly show that for inviting conviction under Part-I of Section 304 of the I.P.C., it is essential that the perpetrator of the crime has the intention to cause death or such bodily injury as is likely to cause death of the victim, while under Part-II of Section 304, mere knowledge is sufficient. If the facts of the instant case are to be seen, the fight had erupted between the appellant and the deceased on a trivial matter and thereafter when it broke into a scuffle, the appellant picked up a knife lying nearby and inflicted a blow on the chest of the deceased resulting in his death. The manner and sequence of events do not show any premeditated intent on the part of the appellant to cause the death of the deceased. Therefore, it cannot be conclusively said that the appellant had any intention to kill the deceased and at best, when he had inflicted blow, he essentially had the knowledge that such an act could result in the death of the deceased. Therefore, I am of the opinion that the conviction ought to have been recorded under Part-II of Section 304 and not under Part-I thereof. Accordingly, the conviction of the appellant is converted from that under Section 304, Part-I to that under Section 304, Part-II of the I.P.C. Learned counsel for the appellant then contended that in view Crl.Appeal No.1423-SB of 1995 -7- .... of the fact that in the event of the Court coming to the conclusion that the appellant is guilty of having committed an offence under Section 304, Part- II, he can be burdened with a sentence which may extend to ten years or fine or with both and since the appellant has been awarded sentence of seven years and he has already undergone more than half thereof, his sentence deserves to be reduced to that of already undergone with enhancement of amount of fine which may be paid as compensation to the family of the deceased. I have considered this aspect of the matter. Although the appellant, who has caused death of the deceased,does not deserve any leniency on the question of sentence, but considering the fact that under the provisions of Section 304, Part-II of the I.P.C., the Court has been vested with the power to award a sentence which may be justiciable in the given set of circumstances even if that be of fine alone, I am of the opinion that the sentence awarded to the appellant deserves to be reduced suitably as he was 23 years of age at the time of commission of offence in the year 1992 and by now, he would be about 40 years old and for the last seventeen years he has been facing criminal prosecution and has also lost his job in the process. Consequently, the sentence awarded to the appellant is reduced to that of already undergone, but the fine is enhanced to Rs.1,50,000/- (Rs.one lac and fifty thousand). The amount of fine shall be deposited by the appellant before the trial Court within a period of six months from today and if he does so, the same shall be disbursed to the family of the deceased Crl.Appeal No.1423-SB of 1995 -8- .... as compensation after due verification. In case of failure of the appellant to deposit the aforesaid amount of fine, the sentence of imprisonment as awarded by the trial Court shall stand revived and he shall be required to serve the remaining portion thereof. With the aforesaid modification in the impugned judgment, the appeal is disposed of. December 10,2009 ( Mahesh Grover ) “SCM” Judge