Criminal Appeal No.383-DB of 1998 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Appeal No.383-DB of 1998 Date of Decision: September 01, 2008 Banwari Lal ...........Appellant Versus State of Punjab ..........Respondent Coram: Hon'ble Mr.Justice Jasbir Singh Hon'ble Mrs. Justice Sabina Present: Mr.R.S.Cheema,Senior Advocate with Ms.Tanu Bedi, Advocate for the appellant. Mr.Rajesh Bhardwaj, Deputy Advocate General,Punjab * * * Sabina, J. This appeal is directed against judgment dated 17.7.1998 passed by the Sessions Judge,Ferozepur, whereby the appellant was convicted under Section 302 IPC and was sentenced to undergo imprisonment for life and fine of Rs.500/-. Prosecution story, in brief, is that on 18.10.1996, complainant, Jagdish Chander was going to his shop. Complainant was following his father on a scooter in the street after his father had left on foot from their house. Banwari Lal, uncle (father's sister's husband) of the complainant also had a house in the street. When Chiman Lal reached near the house of Manget Ram, Banwari Lal armed with .12 bore double barrel gun was standing outside his house and on being instigated by his sons- Raja Ram, Sham Lal and Satish Kumar, he fired a shot at Chiman Lal with his gun Criminal Appeal No.383-DB of 1998 2 which hit Chiman Lal on his chest. Complainant raised alarm. Seema Rani sister of the complainant who was standing on the roof also raised alarm. As a result of this, Banwari Lal and his sons went inside their house. Injured was rushed to the hospital where he succumbed to the injuries. The cause of occurrence was that Banwari Lal and his three sons demanded share of his aunt (father's sister) in the property, from his father but the same had already been partitioned by his grand father before his death. On the basis of the statement of the complainant, formal FIR No.99 dated 18.10.1996 was registered and investigation of this case was commenced by SI Veer Chand, who reached the Civil Hospital, Fazilka and prepared the inquest report of the dead body. He lifted blood stained earth from the spot. He also took in possession one empty cartridge. Dr.Devinder Kumar (PW4) conducted the post mortem examination on the dead body of Chiman Lal on 18.10.1996 at 4.55 p.m. and found the following injuries on his person:- “ Multiple lacerated punctured wounds with inverted margins about 50 to 60 in number, 0.25 cm x 0.25 cm in size present in an area of 20 cms x 20.5 cms on the left side of front of chest above the nipple, front of left shoulder, front of sternum, front of right side of chest above right nipple, front of neck and chin, Clotted blood was present.” He further observed that 3 lacerated wounds were present in the heart, which was empty and nine pallets were detected from the body which were as follows:- “1.Two from the heart; two from the right lung; two from the left Criminal Appeal No.383-DB of 1998 3 lung and three from the thorasic cavity. 2. Reddish abrasion 2 cms x 2 cms in size on the front of chest 10.5 cms below and medial to left nipple” In his opinion, cause of death was hemorrhage and shock due to injuries to vital organs i.e. heart,lungs, spleen, aorta due to fire arm injuries. All the injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. Time between the injury and death was immediate and between death and post mortem was 6 to 12 hours. Banwari Lal was arrested on 20.10.1996 and he produced licence of his gun before the Investigating Officer, which was taken in possession. On interrogation, Banwari Lal suffered a disclosure statement which led to recovery of gun along with cartridges from his house. Banwari Lal was sent up for trial and charge was framed against him under Section 302 IPC on 2.1.1997 and thereafter, on an application filed by the prosecution under Section 319 Cr.PC, Raja Ram, Sham Lal and Satish Kumar were also summoned to face the trial as an accused by the learned trial Judge vide order dated 27.2.1997. Charge against all the accused were framed under Section 302/34 IPC on 30.4.1997. Accused did not plead guilty and claimed trial. The material witnesses examined by the prosecution at the trial were PW1 Jagdish Chander, PW2 Seema Rani, PW4 Dr.Davinder Kumar, PW5 Amarjit Singh, PW 12, SI Veer Chand. After the close of the prosecution case, accused Sham Lal, Raja Ram and Satish Kumar when examined under Section 313 Cr.PC, prayed that they were innocent and were not present at the spot. Accused Banwari Lal pleaded as under:- Criminal Appeal No.383-DB of 1998 4 “ I am innocent. My daughter Anju Bala was married with Rajesh Kumar son of Subhash Chander resident of Muktsar in the year 1992 and due to maltreatment and demand of dowry she died and a case FIR No. 103 dated 6.12.1993 P.S.City Muktsar was registered against Rajesh Kumar, his father Subhash Chander and his mother Darshana Rani and others under S.304-B IPC at my instance. Chaman Lal deceased was very good friend of Dr. Manohar Lal. Sham Lal Babbar who is brother of wife of Chiman Lal deceased has a shop near Dr.Manohar Lal and they are also friends. Dr.Manohar Lal is relation of my son-in-law. Rajesh Kumar and Chiman Lal deceased on saying of Dr.Manohar Lal was trying to win over me for withdrawal of civil suit and for compromise in State case against Rajesh Kumar and others. That on the day of occurrence at about 10 a.m. Chiman Lal deceased came in front of my house and exchanged hot words with me on the above account and told me “Toon Kamina Banda Hai, Viah da saman wapas lai ke toon thuk ke chatten ga”. On that Chiman Lal being my wife's brother, I was suddenly provoked and fired at him. My sons were not present at the time of occurrence. They have been falsely implicated.” In their defence accused examined DW1 HC Joga Singh and DW2 Parveen Kumar Gandhi and Baldaj Mehta DW3. Learned trial Judge believed the prosecution version so far as accused Banwari Lal was concerned and held him guilty of offence under Section 302 IPC whereas the remaining accused were acquitted of the charge framed against them. Criminal Appeal No.383-DB of 1998 5 In appeal, it has been argued that it was a case of grave provocation and not murder. Appellant had taken the plea when examined under Section 313 Cr.PC before the trial Court that he had been suddenly provoked by the deceased and as a result, he had fired at him. According to the learned counsel, the motive put forth by the complainant stood demolished by the testimony of PW5 Amarjit Singh. Mutation with regard to property of Bhola Ram had already been sanctioned without any objection much before the occurrence and, as such, there was no occasion for the accused to ask for share of property belonging to Bhola Ram from the deceased. Relations between the parties were cordial and, as such, there could not have been any premeditation to commit the alleged offence. Learned State counsel, on the other hand, has submitted that the eye witnesses had given credible evidence. Both the complainant and his sister had witnessed the occurrence. The plea of provocation put forth by the appellant was an after thought. Parties were closely related to each other. Accused Chiman Lal had been done to death for not giving share in property to the accused belonging to complainant's grand father. Complainant and his sister Seema Rani have deposed as per the contents of the FIR. Admittedly, parties are closely related to each other. Bhola Ram, grand father of the complainant has executed a Will in the year 1986 in favour of Chiman Lal and his brother Subhash Chander in equal shares. Bhola Ram died in the year 1992 and the mutation was sanctioned in favour of Chiman Lal and Subhash Chander. The said facts are evident from the cross-examination of the complainant. PW5 Amarjit Singh, Revenue Patwari has deposed that inheritance of Bhola Ram was mutated in favour of his sons Subhash Chander and Chiman Criminal Appeal No.383-DB of 1998 6 Lal on the basis of Will dated 20.8.1986. Bhola Ram had not given any share of his property to his daughters. In his cross examination, he deposed that the Will was not challenged by any one. From the above said facts, it is evident that since the property of Bhola Ram had already been mutated in favour of his sons on the basis of Will, which had not been challenged by any one, there was no occasion for the accused party to demand share in the property from the deceased. When examined carefully, the motive set up by the complainant which induced the appellant to fire a shot at Chiman Lal cannot be relied upon. In the facts of the present case, the plea taken by the appellant when he was examined under Section 313 Cr.PC gains significance. The complainant has taken the plea that he had fired a shot at Chiman Lal but it was done so under grave provocation. Relations between the parties were cordial and they are closely related to each other. Houses of the parties are also situated nearby. Deceased was going to his shop. From the prosecution evidence, it cannot be said that it was a premeditated or a pre- planned fight. Had appellant planned to murder Chiman Lal, he would have done so in a lonely place and not in the middle of the street during day time and in the presence of his son. It appears that the appellant must have shot Chiman Lal on account of some grave and sudden provocation attracting exception 1 to Section 300 IPC. Since the appellant had fired a shot from his gun at the deceased, he had the intention of causing death of the deceased. Appellant in our opinion should have been convicted under Section 304 Part I instead of Section 302 IPC as it was a case of culpable homicide not amounting to murder. We,therefore, modify the conviction of the appellant from Criminal Appeal No.383-DB of 1998 7 Section 302 IPC to Section 304 Part I IPC and award for the said conviction, a sentence of ten years rigorous imprisonment and a fine of Rs.2500/-, and in default of which, he shall further undergo two months rigorous imprisonment. This appeal is disposed of accordingly. ( Sabina ) Judge (Jasbir Singh) Judge September 01,2008 arya