Gurdeep Singh vs State of Haryana

S. K. Jain J

Gurdip Singh son of Kartar Singh Taneja, aged 38 years, Regd. Medical Practitioner, resident of Housing Board Colony, Sirsa Road, Hissar, appellant was found guilty of the murder of Kulwinder Singh aged 26/27 years by Additional Sessions Judge, Hissar and was sentenced to rigorous imprisonment for life and to pay a fine of Rs. 5000/ and in default of payment for fine to further undergo rigorous imprisonment for three years under Section 302, Indian Penal Code and two years rigorous imprisonment under Section 27 of Arms Act. Feeling aggrieved against his conviction and sentence, he has come up in appeal

In brief, the facts of the prosecution case are that on the night intervening 13/14 October, 1989 PW 8 Krishan Kumar was sleeping in his house. At about 1. 30 a.m. during that night, his sleep was disturbed on account of the commotion in the street in front of his house. He came out and saw that Smt. Jaspal Kaur wife of Dr. Gurdip Singh Taneja who was residing and running clinic in house No. 550 situated on one side of the street, was raising an alarm from the stairs of her house. There was light inside and outside the house. Dr. Gurdip Singh was grappling with Kulwinder Singh, deceased of this case, outside his house, Grudip Singh accused was abusing Kulwinder Singh and was saying that why he had come to his house. Thereafter Gurdip Singh accused left Kulwinder Singh and went inside his house and came out with his licensed rifle. Kulwinder Singh was going in the street when Gurdip Singh accused loudly abused him and asked as to where he was going. Thereupon Kulwinder Singh turned back. Gurdip Singh fired a shot with his rifle thereby hitting Kulwinder Singh in his chest. He started running and fell down on the crossing of the street at a distance of about 15/20 paces.

The. doctor opined that the death was due to shock and haemorrhage as a result of injury No. I which was antemortem in nature and sufficient to cause death in ordinary course of nature; that the time that elapsed between injury and death was instantaneous and between death and postmortem was within 24 hours; that all the injuries were possible with a single firm arm shot if the arm was in close contact with the chest wall. However the size of entry of the chest wound and the size of entry of the arm wound were different; and that the fire arm injuries were possible from a distance of 9/10 feet. He removed Baniyan Ex. P I Pant Ex. P2, Kuldip Ex. P 13 and Kara Ex. P 14 from the dead body and delivered to the police.

The evidence of Dr. S. K. Goyal and description of injuries given by him in the post mortem report Ex. PO tend to show that the assailant of Kulwinder Singh had fired a shot while standing on a higher level. Injuries No. 1, 2 and 3 were caused by a bullet and that is clear not only from the description of the injuries but from what Dr. Goel has stated in his evidence. He says: "All the fire arm injuries described by me above are possible with a single firearm shot if the arm is in close contact with the chest wall. However, the size of entry of chest wound and the size of entry of the arm wound are different. The fire arm injuries described by me above are possible from a distance of 9/10 feet."

From the above medical evidence possibility cannot be ruled out that on the fateful night Kulwinder Singh had gone to the house of the accused and was sitting on folding cot under the stair case. Gurdeep Singh accused who was sleeping upstairs seems to have woken up on account of being disturbed by some sort of noise and having not found his wife by his side came upto the staircase and saw Kulwinder Singh and his wife together. This must have suddenly provoked him gravely. He must have gone back to bring his rifle. His wife and the deceased having noticed him, she ascended the stairs raising alarm but in the meanwhile the accused brought his rifle and fired a shot at Kulwinder Singh, who had by that time stood up and on receipt of the fire arm injury, he ran out but fell at the turn of the street.

In the above view of the matter, part of the evidence of Krishan Kumar PW that he had seen the occurrence in front of his house and that he had separated them is not believable. It seems that being disturbed by the alarm raised by the wife of the accused at that hour of night he got up from the sleep, came out of his house and went to the house of the accused and had seen the occurrence Dr. S.C, Mehta, PW 16, had medicolegally examined Gurdeep Singh accused on 17101989 at 130 p.m. vide his report Exhibit PCC, be found the following injuries on his person :1) Contused abrasion violet blue in colour on left chest 4 cm below clavicle and 13 cm lateral to midline on front and size was 6 x 1.5 cm. Brown scab was present.

2) Contused abrasion obliquely placed 5 cm lateral to injury No. I and brown scab was present. Size was 5 x .5 cm.

3) Contused abrasion on right chest on back 8 cm below shoulder line. Size was 8 x 6 cm. Brown scab was present. Tenderness was also present. The injury was present 4 cm above posterior axillary fold.

4) Healing incised vound I x 5 x .5 cm an right hand on thinner region on the base of thumb;

All the injuries were simple in nature and the probable duration was three to four days.

The injuries of the accused have not been explained. It shows that PW Krishan Kumar either deliberately suppressed the genesis of the occurrence or had arrived at the scene of the crime just before the firing of the rifle shot. Thus, his version that the deceased and the accused were present in the lane at the time of firing is not acceptable.

Under these circumstances, there is no escape but to conclude that it is a clear case of sudden and grave provocation. Thus, the provisions of Exception 4 to section 300, Indian Penal Code, are well attracted to the case in hand. Accused Gurdeep Singh would be liable for culpable homicide not amounting to murder. The question then arises whether the liability of Gurdeep Singh accused would be covered under Part I or Part 11 of section 304, Indian Penal Code. In this regard, it is noteworthy that there is nothing on the record to show that the accused had made the said provocation an excuse for killing the deceased.

Consequently, there is no escape but to conclude that the accused having seen his wife in the company of the deceased at that hour of night was deprived of the power of self control by grave and sudden provocation and under that state of mind he fired a shot with his licensed rifle thereby causing the death of Kulwinder Singh whose conduct had provoked him. Dr. Goyal had observed that the injury was sufficient to cause death in the ordinary course of nature. Therefore, Gurdeep Singh appellant stands acquitted of the charge under section 302, Indian Penal Code, and his conviction and sentence recorded under that section are set aside, but he now stands convicted for an offence under section 304, Part 1, Indian Penal Code, and sentenced to undergo the period of sentence already undergone by him. Since the appellant had used his licensed rifle for illegal purpose that is firing a shot at Kulwinder Singh thereby killing him, his conviction under section 27 of the Arms Act is upheld.

The appeal stands partially accepted.