Billu alias Harinder Singh vs State of Punjab

V.K. Bali, J.

Appellant Billu @ Harinder Singh has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/, in default whereof, he has been ordered to further undergo RI for four months. He has also been convicted under Section 323 IPC and sentenced to undergo RI for six months as also under Section 27 of the Arms Act to undergo RI for six months and to pay a fine of Rs. 500/ and in default thereof to further undergo RI for two months, vide order dated September 9, 1993 recorded by Shri A.S. Sodhi, learned Addl. Sessions Judge, Ludhiana. He was charged under Section 302 IPC for having caused death of Gurmit Singh. The facts leading to the death of Gurmit Singh need a necessary mention.

Jasbir Kaur widow of deceased Gurmit Singh got her statement recorded to Parkash Singh, SI Police Station Focal Point, Ludhiana in which she stated that she was married with Gurmit Singh about ten years back. Her husband had two brothers, namely, Kuldip Singh and Balbir Singh. Kuldeep Singh had expired. Her husband used to cultivate the land in village. Her husband''s younger brother (Dewar) was running the business of property dealer in the city. They all were residing together. Balbir Singh had gone outside in relations on the day of occurrence. About four months back, Billu son of Karnail Singh, the appellant herein, who was their relation, started residing with them at their house. He used to assist her Dewar in the business of property dealer. On the night of occurrence at about 10.30 PM, her husband and Billu, after taking their meals, were about to go to bed when her husband and Billu, while talking in the room of her Dewar, shouted at each other. After hearing the noise, she and Davinder, son of the elder brother of her husband (Jeth) entered the room. Within their sight, Billu lifted the liensed double barrel gun of her Dewar Balbir Singh lying in a corner of the room and fired a shot which hit on the left side of chest of her husband. Consequently, on sustaining the injury, her husband fell down on the ground and expired at the spot. Billu after throwing the gun at the spot, ran away by pushing her aside. She, after leaving her husband''s elder brother''s wife (Jethani) to guard the dead body of her husband and taking her neighbour Rajpal Singh, was going to the police station for lodging the report but SI Parkash Singh met her at Octroi post of village Jugiana, to whom she made her statement there. As per statement of Jasbir Kaur, the occurrence leading to death of Gurmit Singh had taken place on June 18, 1992 at 10.30 P.M., the report whereof, as mentioned above, was lodged by her at 1 AM at night on June 19, 1992. As per the records, the special report with regard to incident reached the Magistrate concerned at Ludhiana at 7 AM on June 19, 1992.

With a view to substantiate its case, the prosecution examined Dr. Kulwant Singh as PW1, Dr. G.S. Randhawa as PW2, Jasbir Kaur as PW3, Davinder Singh PW4, Harminder Kaur as PW5, Krishan Kumar, Draftsman as PW6, Parkash Singh SI as PW7, HC Kartar Singh as PW8, Balbir Singh as PW9 and Constable Dheru Ram as PW10. Dr. Kulwant Singh had conducted medicolegal examination of Harminder Kaur at 10.30 A.M. on June 19, 1992 and found a scabbed lacerated wound 2 1/4x1/4x bone deep on the right side of her forehead starting from right eyebrow upwards. Clotted blood at the sides was found present. Injury was subjected to xray and on receipt of xray report, injury was declared simple in nature. It was caused with blunt weapon. The duration of injury, the doctor stated, was about 12 hours. Dr. G.S. Randhawa conducted post mortem on the dead body of Gurmit Singh on June 19, 1992 at 9.15 AM and found following injury:

"1. Lacerated wound 4 cm x 21/2cm x bone deep on the lower part of left chest at the level of subcostal region, 5 cm left from the midsternal line. Margins of the wound were irregular, bruised, blackened and inverted, 11/2 cm skin around the wound was found charred and blackened. Omentum and portion of the intestines were protruding out from the wound."

On exploration of the wound, the same was found entering into the abdominal cavity after rupturing diaphragm and 8th and 9th ribs on the chest were found fractured. On further exploration pellets, eight in number, two plastic wads and one card board were found in the abdominal cavity at the site of lumber vertebrae. Spleen, stomach, both large and small intestines, liver, major vessels of the abdomen and masanteric vessels were found lacerated and ruptured. Left side of the pleural cavity and abdominal cavity were full of blood. Corresponding wounds were present on the shirt and banian. Peritenum was found ruptured and full of blood. Mouth, Larynx and oesophagus were found healthy. Stomach was found lacerated. Both small and large intestines were found lacerated at places. Liver, spleen were found lacerated. The cause of death in the opinion of the doctor was due to multiple injuries to the vital organs caused by pellets fired from a firearm which was sufficient to cause death in the ordinary course of nature. Injury was antemortem in nature. The probable time that elapsed between injury and death was immediate and between death and postmortem about 12 hours. The doctor further opined that since there was blackening and charring around the wound, the firing could have been done from distance of three to four feet. PW3 Jasbir Kaur deposed in tune with the FIR lodged by her, reference whereof has been made above. She, however, also added that her motherinlaw was also present in the courtyard of her house and that when her husband slumped dead and when the accused/appellant was standing at the place, he fired the shot, she raised an alarm which attracted her motherinlaw. Appellant gave her a push and hit on the forehead of her motherinlaw with the butt of the gun and after throwing the gun there, appellant ran away through the backdoor of the house. With regard to the addition made by her in the statement, she was duly confronted with the statement made by her before the police under Section 161 Cr.P.C. She otherwise fully supported the prosecution version. Davinder Singh also deposed in tune with his statement recorded by the Police under Section 161 Cr.P.C. and corroborated the statement made by PW3 Jasbir Kaur. Harminder Kaur, motherinlaw of PW3 has also fully supported the prosecution version. Krishan Kumar, Draftsman, had prepared site plan, Ex. PH. SI Parkash Singh, HC Kartar Singh and Constable Dheru Ram apprised the Court the way and manner in which the investigation had progressed in the case. Balbir Singh, brother of the deceased deposed with regard to appellant being kept in the house being a relation, who was also supporting him in his business as a helper.

When examined under Section 310 of the Code of Criminal Procedure, appellant stated that at about 7 PM on June 18, 1992 he was viewing the Television installed in the room of Balbir Singh while sitting on the bed. Being tired and exhausted after day''s work, he knocked off to sleep which was resented to by Gurmit Singh deceased. There was an altercation between both of them and the deceased got infuriated and he took the loaded gun to shoot at him. Feeling apprehensive, and finding no other way out, he pounced upon the deceased in order to snatch the gun from him. Harminder Kaur PW reached there in the meantime and she tried to separate them and she was hit on the fore head during her rescue operation by the butt portion of the gun. During the process of snatching, the gun went off. Jasbir Kaur and Davinder Singh were not present there.

In view of the fact that the prosecution version is supported by three witnesses, one of whom happens to be an injured, as also in view of the fact that the appellant has admitted his presence in the house and also the occurrence but in a different manner, the learned defence counsel, realising perhaps, it to be a case where the prosecution has been able to bring home the offence against the appellant beyond shadow of reasonable doubt, confined his argument only with regard to nature of offence and the quantum of punishment. In support of the appeal, therefore, the only contention of the learned defence counsel is that even if the prosecution version is believed in its entirety, no case under Section 302 IPC shall be made out against the appellant and at the most he can be held guilty of having committed an offence punishable under Section 304 Part II of the Indian Penal Code.

After hearing learned counsel for the parties and going through the records of the case with their assistance, we are, however, of the view that the contention of the learned defence counsel is correct only half way through. Whereas, from the prosecution version itself a case under Section 302 IPC is not made out, we are of the considered view that the prosecution has been able to establish the complicity of the appellant in committing an offence punishable under Section 304 PartI of the IPC. It may be recalled that even as per the prosecution version, the appellant was residing in the house of the deceased at the instance of this brother PW9 Balbir Singh. He was a distant relation of the deceased and his brother PW9 Balbir Singh and had been permitted to stay in the house with a view to assist PW9 Balbir Singh in his business as a helper. Concededly, there was no previous enmity nor they were varying on any contentious issue. As per the prosecution case itself, it was a sudden affair. After taking meals, it is the case of the first informant as also other eye witnesses, referred to above, that earlier the appellant and deceased were slow in their discussion which heated up later on. PW3 Jasbir Kaur stated in her statement that TV was switched off at 9.30 PM and after the TV was switched off, Gurmit Singh, her husband, and the appellant, were talking with each other in low tone. Thereafter they both started shouting at each other. Appellant picked up the DBBL gun lying in a corner of the room and fired at Gurmit Singh which hit him on the left side of his chest. On an alarm being raised, the appellant took to his heels and fled away from the spot. The manner in which the fight ensued between the appellant and the deceased has also been narrated by other eye witnesses. It is, thus, proved from the records of the case and from the prosecution version itself that there was no enmity between the appellant and the deceased and the appellant fired a shot by picking up the gun which was incidently lying in the room where wordy duel between them took place. It is true that it is not known nor it can possibly be known from the facts of this case, as to who was at fault but that, in our view, is wholly immaterial for bringing the case of the appellant under Section 304 IPC. Culpable homicide is not murder, as per exception (4) appended to Section 300 of the Indian Penal Code if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender''s having taken undue advantage or acting in a cruel or unusual manner. As per explanation to exception (4) it is immaterial in such cases which party offers the provocation or commits the first assault. There was no premeditation on the part of the appellant and it was certainly a case of sudden fight in the heat of passion upon a sudden quarrel. In the facts and circumstances of this case, it can also not be said that the appellant had taken undue advantage or acted in a cruel or unusual manner. As mentioned above, the gun belonging to the brother of deceased was incidently lying in the room and the appellant had fired once and not repeated the shot. Further in view of the nature of injury sustained by the deceased, it cannot be a case that might fall under Section 304 PartII of the Indian Penal Code. By his act, the death has been caused and he did this act with the intention of causing death or caused such bodily injury as was likely to cause death. His intention is well made out of injure of injury caused by him. As per the statement of PW2 Dr. G.S. Randhava, the injury found on the dead body of Gurmit Singh was a lacerated wound 4 cm x 21/2 cm x bone deep on the lower part of left chest at the level of subcostal region, 5 cm left from the midsternal line. Margins of the wound were irregular, bruised, blankened and inverted, 11/2 cm skin around the wound was found charred and blackened. On exploration, the wound was found entering into the abdominal cavity after rupturing the diaphgram and 8th and 9th ribs on the left side of the chest were found fractured. On further exploration, pellets, eight in number, two plastic wads and one cardboard were found in the abdominal cavity at the site of lumber vertebrae. Spleen, stomach, both large and small intestines, liver, major vessels of the abdomen and masanteric vessels were found lacerated and ruptured, The case, considered from any angle, would, thus, fall under Section 304 Part I of the Indian Penal Code.

In view of the discussion made above, this appeal partly succeeds. The order of conviction and sentence recorded against the appellant under Section 302 IPC is set aside. Instead, the appellant is held guilty under section 304 Part I of the Indian Penal Code. In view of the fact that he is a young man and was 27 years of age at the time of commission of crime, we think that the ends of justice would be adequately met if he is sentenced to undergo RI for a period of ten years and to pay a fine as imposed by the learned Additional Sessions Judge or in default thereof to further undergo RI for a period of four months. The order of conviction and sentence recorded by the learned Additional Sessions Judge under Section 323 IPC and 27 of the Arms Act is also upheld. The sentences against the appellant on various counts, as mentioned above, shall, however, run concurrently.