Rakesh Kumar vs State of Punjab

V.K. Bali, J.

Rakesh Kumar a student who was 17 years of age at the commission of crime has been held guilty of intentionally causing death of Paramvir Singh and vide order of conviction and sentence recorded by learned Sessions Judge, Hoshiarpur dated February 16, 1994 has been held guilty under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/ and in default of payment fine to further undergo sentence for a period of one year. It is against this order of conviction and sentence that the present appeal has been filed.

Mr. Jagdish Marwaha, the learned Counsel representing the appellant, perhaps convinced with impressive array of facts brought on record by the prosecution on which the appellant cannot earn clean acquittal has only argued with regard to nature of offence, it is the context of the limited contention of the learned Counsel that brief facts of the case need to be noticed.

Occurrence leading to the death of Paramvir Singh took place on 2nd of June, 1993 at 8.45 p.m. near the chowk of Naianwali Gali, Dasuya. The First Information Report with regard to the incident was recorded by ASI Jarnail Singh who was examined as PW8. It was recorded at Balaggan chowk on the statement made by Ravneet Singh PW4 and came to be recorded at 10.15 p.m. on 2nd of June, 1993. Formal FIR came to be recorded at the police station on the same day at 11.00 p.m. and the special report with regard to the incident reached the Magistrate at Dasuya on the same day at 11.25 p.m.

The prosecution with a view to substantiate its case examined Dr. Amrik Singh Basra, Medical Officer, Civil Hospital, Dasuya as PW1. He stated that on 3rd of June, 1993, he conducted postmortem on the dead body of Paramvir Singh and found following injury on his dead body :

"1. An incised stab wound on the back and left side of the chest 3 cm medial to the lower end of the left scapula of size 2.5 cm x 1 cm x lung deep. On dissection it was found going inward, forward and after passing through the intercostal muscle there was corresponding cut in the lung at the site on its posterior surface. Left lung was collapsed and left pleural cavity contained about 1.5 litre of blood."

In the opinion of the doctor cause of death was excessive haemorrhage and shock resulting from injury to the lung which was sufficient to cause death in the ordinary course of nature. The injuries were antemortem. Probable time that elapsed between injury and death was within one hour and between death and postmortem 12 to 18 hours. Dr. Jagdish Singh PW2 only stated that on 2nd of June, 1993, he had sent ruqa Ex.PB to the S.H.O. Police Station, Dasuya informing him that Paramvir Singh was brought to the Civil Hospital with injury in the chest at 9.00 p.m. on 2nd of June, 1993 and he expired at 9.30 p.m. on the same day. Surinder Kumar Draftsman PW3 only prepared the scaled site plan Ex.PC. Ravneet Singh first informant and eye witness of the occurrence appeared as PW4 and fully supported the prosecution version. PW5 Rajinder Pal another eyewitness of the occurrence likewise supported the prosecution case. Lakhvinder Singh PW6 stated that on 6th of June, 1993, when he was present at police station, Dasuya, ASI Jarnail Singh interrogated the appellant who made a disclosure statement that he had kept concealed a knife on the southwestern corner of his residential house and he could get the same recovered. Appellant then led the party to his residential house in Sheikhan Mohalla and took knife from the heap of empty gunny bags in the Baithak of his house. It may be mentioned here at this stage that knife Ex.P1 was not sent to the Chemical Examiner to opine as to whether the same was stained with blood. Jasbir Singh PW7 stated that on 31st of May, 1993 at about 6.30 p.m. he was present in the old Sabzi Mandi Chowk Dasuya and he saw Paramvir deceased quarrelling with Rakesh Kumarappellant. He and a tailormaster who was present there intervened and separated them and sent them to their respective houses. PW8 ASI Jarnail Singh detailed the steps that he had taken while investigating this case.

The appellant when examined under Section 313 of the Code of Criminal Procedure stated that he had gone to Chandigarh and returned on 3rd of June, 1993 and came to know on reaching the house that his father had been taken away by the police. He went to the police station and on account of suspicion he was arrested. He further stated that he has been falsely implicated in this case. The appellant led evidence in defence and examined Hari Dev DW1 and Gurmit Singh DW2.

Mr. Jagdish Marwaha, learned Counsel representing the appellant as mentioned above has, however, restricted his arguments to the nature of offence. He vehemently contends that it was a case of sudden fight, there was no premeditation and the act was done in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner. He, thus, contends the appellant in view of the facts and circumstances of this case cannot be pinned down under Section 302 of the Indian Penal Code and at the most he can be held guilty of an offence under Section 304 Part II of the said Code.

After hearing the learned Counsel representing the parties and going through the records of the case, we are of the considered view that even though the appellant may not be guilty of an offence under Section 302 of the Indian Penal Code, but in view of the nature of injury that he caused to Paramvir Singh, he has to be held guilty under Section 304 Part I of the said Code. At this stage the contents of the F.I.R. so far as the same are relevant may be noticed. The first informant while giving information to the police with regard to the earlier incident only stated that about 2/3 days earlier a minor altercation had taken place between his brother Paramvir Singh and Rakesh son of Parbhat. No details leading to altercation were at all spelled out by Ravneet Singh the first informant. When the first informant came to the witness box, while making a statement as PW4, he once again did not mention as to what was the real cause of the dispute that had taken place 23 days earlier. In this case PW7 Jasbir Singh has been examined only with a view to prove the earlier occurrence which had taken place on 31st of May, 1993 at about 6.30 p.m. All that he has stated was that he was present in the old sabzi mandi chowk Dasuya and he saw the deceased quarrelling with Rakesh Kumarappellant. It is, thus, not at all known as to who had initiated the quarrel and what was the cause thereof. On the day of occurrence i.e. 2nd of June, 1993 at about 8.45 p.m. the first informant and his brother Paramvir Singh were going to bazar for fetching cold drinks and when they reached near the chowk of Naianwali Gali that the appellant and his brother Sham Sunder came from the spot of Mohalla Sheikhan. The appellant in the very nature of things could not possibly anticipate that Paramvir Singh would be present in the bazar at 8.45 p.m. It was not a case where Paramvir Singh was confronted with the appellant at the place where he might have been usually going and that too for a particular purpose. That being the situation, the meeting of the appellant and the deceased has to be held to be by way of a chance. The earlier quarrel or the cause thereof being totally unknown, it is quite reasonable to presume that these two must have once again fought and presumably for the same issue for which they had quarrelled a few days ago. To invoke Exception 4 to Section 300, four requirements 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 Apex Court in Surinder Kumar v. Union Territory, Chandigarh, 1989(2) R.C.R. (Crl.) 140 : A.I.R. 1989 S.C. 1094 held "that the cause of 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 and acted in a cruel manner."

We are quite convinced that the appellant can well invoke Exception 4 to Section 300 in this case. It was a case of sudden fight and there was no premeditation on the part of the appellant. As mentioned above, it was a chance meeting of the appellant and Paramvir Singh and in the very nature of things, the quarrel was also sudden. The appellant did not take any undue advantage or acted in a cruel manner. He caused one injury and that too on the back of Paramvir Singh. Unfortunately, however, the said injury proved fatal and appears to be quite serious one. The appellant, in our view, can only be held guilty for having committed an offence under Section 304 Part I, Indian Penal Code. That being so, we partly allow this appeal and set aside the order of conviction recorded by Sessions Judge under Section 302 of the Indian Penal Code. We, however, hold the appellant guilty under Section 304 Part I of the Indian Penal Code. The appellant was a student of 17 years at the time of commission of crime. Considering the totality of the facts and circumstances of this case, we are of the opinion that a sentence of seven years would meet the ends of justice. Accordingly, we sentence the appellant to undergo R.I. for a period of 7 years. We, however, uphold the order of fine imposed by the Sessions Judge and the consequence thereof that in case the fine is not paid, the appellant would further undergo R.I. for a period as mentioned by the Sessions Judge.