Baban Singh vs State of Punjab

V.K. Bali, J.

Baban Singh appellant herein vide order of conviction and sentence recorded by Additional Sessions Judge, Kapurthala dated 9th of February, 1995 has been held guilty under Section 302 of the Indian Penal Code for having intentionally caused the death of Ajudhiya Singh son of Ram Avtar Singh and thus sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/ and in default thereof to further undergo R.I. for a period of one month. It is against this order of conviction and sentence that the present appeal has been filed.

Mr. P.S. Mann, learned Senior Advocate representing the appellant presumably impressed with the array of facts and circumstances brought on record by the prosecution connecting the appellant with the commission of crime has confined his argument only with regard to nature of offence. He contends that if the prosecution version is believed the appellant cannot be pinned down under Section 302 of Indian Penal Code and at the most he can be convicted for an offence under Section 304 Part II of the said Code.

In the context of the limited challenge to the order of conviction and sentence recorded by the learned Sessions Judge, there is no need to give in detail the entire prosecution evidence and the defence sought to be projected by the appellant. Suffice it, however, to say that the occurrence leading to the death of Ajudhiya Singh took place on November 28, 1993 at 10.00 p.m. at Bhathawala Gage close to J.C.T. Mills, Phagwara stated to be at a distance of only 1 Kms from the police station. The FIR was recorded by ASI Nirmaljit Singh on the statement made by Amar Singh AW an eyewitness. The special report reached the Magistrate concerned on November 29, 1993 at 8.00 A.M. at Phagwara itself.

With a view to substantiate its case the prosecution examined PW1 Dr. S.P. Suman who had conducted the postmortem examination on the dead body of Ajudhiya Singh and found following four injuries on his dead body :

Incised wound with clean cut margins on back of left shoulder 3 cm x .5 cm bone deep, 11 cm on back of tip of acromion process on left side.

Incised wound with clean cut margin towards lateral surface of left upper arm of the size of 3 cm x 0.5 cm x bone deep. It was 8 cm above the elbow joint and was obliquely placed.

Penetrating incised wound over posterior lateral aspect of chest on left side, 13 cm from the left nipple. The size of the wound was 5 cm x 1 cm. It was lying horizontally. The margins of the wound were clean cut and inverted. On dissection of the wound it leads to the chest cavity. The lower lobe of left lung was showing incised wound. The pleurae of left lung was also incised. The thoracic cavity was full of blood.

Incised wound with clear cut margins, over the left side of chest anterior of the site of 8 cm x 2 cm x 0.5 cm below the nipple and was obliquely placed.

The cause of death in the opinion of the doctor was due to injury No. 3 leading to massive haemorrhage, shock and death. All the inquires were ante mortem in nature and sufficient to cause death. Probable time that elapsed between injuries and death was immediate and between death and postmortem was about 12 hours. PW2 and PW3 Amar Singh and Sanjay Singh respectively gave eyewitness account of the event and fully supported the prosecution version. PW4 Tulsi Ram Draftsman only proved that he had prepared scaled site plan Ex.PF on 15th of January, 1994. PW5 Sanjiv Kumar had only taken dead body of Ajudhiya Singh to the Civil Hospital for postmortem. PW6 ASI Nirmaljit Singh had partly investigated the case. PW7 Onkar Singh Constable had taken special report to the Magistrate. Chain Singh Inspector who was examined as PW8 detailed the steps he has taken while making investigation.

When examined under Section 313 of the Code of Criminal Procedure, the appellant claimed false implication. He, however, led no evidence in defence.

Mr. Mann as mentioned above has only argued with regard to nature of offence. We have heard the learned Counsel for the parties and with their assistance gone through the records of the case. We are, however, of the view that the contention of the learned Counsel needs to be accepted but only half way through. In other words, appellant even though not guilty of having committed an offence under Section 302 of the Indian Penal Code is certainly guilty of an offence under Section 304 Part I of the said Code. It may be recalled that while lodging the FIR Amar Singh stated that on the eventful day, Sanjay Singh son of Jagar Nath Ghumiar, Ajudhiya Singh, who was his first cousin and he after taking liquor at his quarter had gone to the Khokha of Baban appellant for taking betel and cigarettes. They took betel at about 10.00 P.M. but a quarrel took place between Ajudhiya Singh and the appellant over the excess payment charged by the latter. At this stage Baban at once took out a knife from the counter of his khokha and within their sight he gave 34 blows to Ajudhiya Singh which hit him on left side rib, left flank and left biceps. It is clearly made out from the reading of the FIR that Ajudhiya Singh had gone to the shop of the appellant after consuming liquor and that the fight was sudden on account of overcharging by the appellant. The knife was lying on the counter of the shop of the appellant which was taken by him and 34 blows were given to Ajudhiya Singh which hit on the various parts of his body. When examined, PW2 Amar Singh reiterated that all of them had taken liquor when they went to the shop of the appellant. The liquor was taken by them at their house. Quarrel lasted 23 minutes. The deceased and the appellant had grappled with each other. From the statement of PW2 it is, thus, clearly made out that the deceased had not only taken liquor but on account of overcharging the price of betel, there was first grappling and then the appellant had caused knife blows to Ajudhiya Singh. There was no premeditation and act was done in a heat of passion. The appellant had not take any undue advantage or acted in a cruel manner. It may be reiterated that the deceased was drunk and it is natural to presume that it is he who must have started quarrel for the added reason that the appellant was charging more price. That being the over all scenario, we are quite convinced that explanation 4 to Section 300 can well be invoked in this case. The Apex Court in Surinder Kumar v. Union Territory, Chandigarh, 1989(2) RCR (Crl.) 140 : AIR 1989 SC 1094 held :

"To invoke Exception 4 to Section 300 four requirement must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. Thus, where in case of quarrel between the deceased and the accused regarding possession of premises, it was reasonable to infer from the facts that the deceased must have intervened on the side of his brother and in the course of the scuffle he received injuries, one of which proved fatal, the accused would be entitled to the benefit of the Exception 4 to Section 300. Merely because three injuries were caused to the deceased during the scuffle it could not be said that he had acted in a cruel and unusual manner. Under such circumstances, the accused could be convicted under Section 304, Part I."

In view of the discussion made above, we thus, partly allow this appeal. The order of conviction and sentence recorded by the Additional Sessions Judge under Section 302 of the Indian Penal Code is set aside. The appellant instead is held guilty under Section 304 Part I. A sentence of seven years R.I. in our view would meet the ends of justice. We, therefore, sentence the appellant to undergo R.I. for seven years. The order with regard to payment of fine as passed by the trial Court is upheld and so also the consequences of not paying the same.