Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.240506 OF 2014
MAJOR SINGH …APPELLANT(S)
VERSUS
STATE OF PUNJAB & ANR. …RESPONDENT(S)
O R D E R
1. The present set of appeals filed by accused
appellant, Major Singh (hereinafter referred to as
‘the appellant’) arises from the order dated
03.04.2014 passed by Punjab and Haryana High Court
in Criminal Appeal No. 421 of 2002 and Criminal
Revision No. 391 of 2002, whereby the appeal and
revision petition were allowed, the acquittal by
the Trial Court was set aside and the appellant
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was convicted under section 302 IPC and sentenced
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2022.07.11
16:12:53 IST
Reason:
to undergo imprisonment for life and pay fine of
1 IPC – Indian Penal Code, 1860
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Rs.5,000/.
FACTS:
2. Prosecution’s case arises from a twoday
incident and it unfolds as follows:
i. On 20.07.1998, a day preceding the unfortunate
incident, appellant had quarreled with his uncle
Makhan Singh (deceased) and had abused the uncle.
Due to this argument between them, Makhan Singh
had severely reprimanded the appellant.
ii. On the day of the incident, i.e. on 21.07.1998
at about 10:30/11:00 A.M., Makhan Singh, father of
Sukhraj Singh (complainant) was going towards bus
stand of their village. On his way over, Major
Singh came from the other side of the bus stand
holding a wooden ‘Bahi’ (wooden side of a cot
frame). He abused Makhan Singh for shouting and
insulting him on the previous day and threatened
to teach Makhan Singh a lesson. Thereafter, the
accused dealt a ‘Bahi’ blow to Makhan Singh on his
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head as a result of which Makhan Singh fell down.
Immediately after which Major Singh ran away from
the spot with the ‘Bahi’. After this both Sukhraj
Singh and Charanjit Singh, who were standing in
front of the shop of Dilbag Singh, took their
father, who was bleeding from the head to Civil
Hospital, Giddarbaha. As his condition was
serious, the doctor referred him to Dayanand
Medical College, Ludhiana. Makhan Singh succumbed
to the injuries on 22.07.1998, that is a day after
the incident.
3. Sukhraj Singh went to the Police Station,
where he met ASI Arnail Singh at Husnar Chowk,
Gidderbaha and his statement was recorded in
writing. The police, after making endorsement,
sent the same to police stationKotbhai for
registration of FIR. The police visited the spot
and prepared rough site plan and bloodstained
earth was lifted from the spot.
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4. On the day of the death of the incident,
police visited DMC, Ludhiana and prepared the
inquest report. The offence was enhanced to
section 302 IPC and the body of the deceased was
sent for post mortem. Postmortem report found
eight injuries and, according to the doctor, the
cause of death was due to shock and hemorrhage as
a result of head injury.
5. Appellant was arrested on 09.08.1998. As per
the prosecution, he confessed about the
concealment of ‘Bahi’ by him in the wheat chaff
room at his residence. In the presence of Head
Constable Gurdass Singh and Charanjit Singh, the
‘Bahi’ stained in blood was recovered from the
place disclosed by the appellant. The police sent
the bloodstained earth, plain earth along with
‘Bahi’ for chemical examination. In the report of
chemical examiner, it was found that the stain on
the ‘Bahi’ and the blood recovered from the spot
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were of the same person, i.e. the deceased.
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6. After compliance of section 207 CrPC , the case
was committed to the Sessions Court, vide order
dated 13.10.1998 and charge was framed against the
accused under section 302 IPC on 17.11.1998. The
accused pleaded not guilty and claimed to be
tried.
7. The prosecution examined eight witnesses as
PW1 to PW8 and also filed documentary evidence.
After the evidence by the prosecution was
recorded, the accused was examined under section
313 CrPC and the entire incriminating material was
put to him. He denied all the allegations against
him and reiterated his innocence. He claimed to be
falsely implicated in this case due to the
occurrence of the squabble between him and the
deceased, a day before the incident. He stated
that the deceased had received injuries due to a
2 CrPC – Criminal Procedure Code, 1973
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scooter accident. However, the accused did not
produce any evidence in defence.
TRIAL COURT JUDGMENT:
8. The learned Additional Sessions Judge, Muktsar
vide order 13.07.2001, acquitted the appellant on
the following findings:
(i) There was a delay of 4 ½ hours in recording
the FIR. Even the late arrest of the accused on
03.08.1998 shows that the prosecution was not
sure about the real story behind the incident.
(ii) The motive behind the occurrence of the
incident was neither serious nor proved beyond
reasonable doubt by the prosecution.
(iii) Sukhraj Singh (complainant) and ASI
Jarnail Singh, the Investigating Officer were
acquainted with each other.
(iv) The time of occurrence as claimed is not
established.
(v) Statements of eye witnesses, Sukhraj Singh
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and Charanjit Singh were not found to be
credible.
(vi) Further, the prosecution had not examined
Teja Singh, Manohar Singh and Darbara Singh who
had witnessed the incident.
(vii) Medical evidence is contradictory to the
ocular testimony. Even the case history
mentioned in the bed head ticket of DMC,
Ludhiana is contrary to the ocular version.
(viii) The scaled site plan does not tally with
the rough site plan.
9. Aggrieved by the acquittal, the State of
Punjab and the complainant filed an appeal and
revision respectively before the High Court.
HIGH COURT JUDGMENT:
10. The High Court, set aside the acquittal of
the accused and was of the opinion that the Trial
Court has misread the evidence. Following reasons
were recorded by the High Court while convicting
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the accused under section 302 IPC –
i. Prosecution’s case could not be thrown out
only on the ground of delay in registering FIR.
Makhan Singh was in a serious condition and the
first priority of the complainant was to save
his father, who was profusely bleeding from the
injury in his head.
ii. The fact as to whether ASI Jarnail Singh
was known to the complainant is immaterial.
Complainant had a right to inform the police.
There is nothing to show that ASI did any
favour to the complainant.
iii. The occurrence took place during day time
as recorded by the eye witnesses and the doctor
had sent the intimation to police at 11.15
a.m., which corroborates the time of the
incident. There is nothing to disbelieve the
time of occurrence.
iv. As per the post mortem report, the deceased
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had suffered eight injuries. Dr. Aman Kapoor
(PW 2) has stated that the main injury was on
the head and rest of the injuries were
apparently as a result of the fall. These
injuries were swelling and abrasions.
v. The Trial Court gave undue importance to the
history mentioned at the time of admission in
DMC, Ludhiana wherein it is stated that the
deceased sustained injuries while travelling on
scooter when he was hit by someone over the
head. There might be some error in recording
the history, as the son who brought his father
to DMC, Ludhiana was under a state of shock on
account of the serious condition of his father.
This does not affect the merit of the case.
vi. If some structure existing little away from
the place of occurrence, has not been shown in
the site plan, it does not mean that the site
plan prepared by the Investigating Officer is
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incorrect. Minor omissions in the site plan
does not mean that rough site plan prepared by
Investigation Officer is contradictory to the
scaled site plan.
vii. There is no reason to disbelief
prosecution’s story on the ground that the
arrest was made on 03.08.1998. It is quite
possible that the accused might have run away
apprehending his arrest.
viii. Parties are relatives. Because of mere
altercation, there was no reason for the
complainant to falsely implicate the appellant,
who is real nephew of the deceased. There is
only one accused and one injury was given by
the accused. Therefore, possibility of false
implication is ruled out. Even the ‘Bahi’ was
recovered on the pointing out of the appellant.
ix. None of the family members of the appellant
or any other independent resident of the
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village came forward to support the defence
version of the appellant apparently for the
reason that they might be convinced that
appellant was responsible for the death of the
deceased.
x. Ocular version is truthful and trust worthy
and is fully supported by the medical evidence.
xi. The appellant does not fall under exception
4 of section 300 IPC as the occurrence had not
taken place all of a sudden and without any
predetermination. The appellant came to the
spot having a grudge against the deceased due
to the quarrel that took place on the previous
day of the incident and also, the manner in
which the appellant gave a blow of wooden arm
of cot (‘Bahi’) with great force on the head of
an old and feeble man, which resulted into
fracture of his skull and death on the next
day.
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11. Aggrieved by the conviction of the High
Court, the appellant has preferred this appeal
before this Court.
ANALYSIS:
12. The prosecution has established that the
death of the deceased was homicidal. As per the
post mortem report, the deceased had suffered
eight injuries. Dr. Aman Kapoor (PW 2) states in
the report that the main injury was on the head
and both the eye witnesses Sukhraj Singh (PW 3)
and Charanjit Singh (PW4) have claimed the
appellant had hit their father on his head with a
‘Bahi’. The recovery of ‘Bahi’, i.e. the weapon
used to cause the fatal injury to the deceased was
recovered by police only after the appellant had
confessed about the place of hiding.
13. We are, thus, satisfied that the
prosecution has, beyond reasonable doubt,
established the occurrence in the manner as set
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up. The deceased died due to the injury caused by
accused. The only question which requires our
consideration is with regard to whether the case
falls within the ambit of culpable homicide
amounting to murder punishable under section 302
IPC as has been held by High Court or it was
culpable homicide not amounting to murder
punishable under section 304 IPC, as has been
pleaded by the counsel for the appellant in the
alternative.
14. Distinction between whether an offence is
culpable homicide amounting to murder or culpable
homicide not amounting to murder has been dealt by
this Court recently in the case of
Mohd. Rafiq vs.
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State of Madhya Pradesh after taking into
consideration earlier judgments on the point. The
Court held that even though it is difficult to
distinguish whether the punishment for offence
3 (2021) 10 SCC 706
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would fall under section 302 or section 304 of
IPC, there is a subtle distinction of degree of
intention and knowledge involved in both the
crimes. Relevant paragraphs of the judgment are
reproduced below:
“Para 11 The question of whether in a given
case, a homicide is murder, punishable under
Section 302 IPC, or culpable homicide, of
either description, punishable under Section
304 IPC has engaged the attention of courts in
this country for over one and a half century,
since the enactment of the IPC; a welter of
case law, on this aspect exists, including
perhaps several hundred rulings by this court.
The use of the term “likely” in several places
in respect of culpable homicide, highlights the
element of uncertainty that the act of the
accused may or may not have killed the person.
Section 300 IPC which defines murder, however
refrains from the use of the term likely, which
reveals absence of ambiguity left on behalf of
the accused. The accused is for sure that his
act will definitely cause death. It is often
difficult to distinguish between culpable
homicide and murder as both, involve death.
Yet, there is a subtle distinction of intention
and knowledge involved in both the crimes. This
difference lies in the degree of the act. There
is a very wide variance of degree of intention
and knowledge among both the crimes.
Para 12 The decision in State of Andhra
Pradesh v. Rayavarapu Punnayya & Anr. notes the
important distinction between the two
provisions, and their differing, but subtle
distinction. The court pertinently pointed out
that:
12. In the scheme of the Penal Code,
“culpable homicide” is genus and murder
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its specie. All murder is “culpable
homicide” but not vice versa. Speaking
generally, “culpable homicide” sans
“special characteristics of murder”, is
“culpable homicide not amounting to
murder”. For the purpose of fixing
punishment, proportionate to the gravity
of this generic offence, the Code
practically recognises three degrees of
culpable homicide. The first is, what may
be called, “culpable homicide of the first
degree”. This is the greatest form of
culpable homicide, which is defined in
Section 300 as “murder”. The second may be
termed as “culpable homicide of the second
degree”. This is punishable under the
first part of Section 304. Then, there is
“culpable homicide of the third degree”.
This is the lowest type of culpable
homicide and the punishment provided for
it is, also, the lowest among the
punishments provided for the three grades.
Culpable homicide of this degree is
punishable under the second part of
Section 304.
13. The academic distinction between “murder”
and “culpable homicide not amounting to murder”
has vexed the courts for more than a century.
The confusion is caused, if courts losing sight
of the true scope and meaning of the terms used
by the legislature in these sections, allow
themselves to be drawn into minute
abstractions. The safest way of approach to the
interpretation and application of these
provisions seems to be to keep in focus the
keywords used in the various clauses of
Sections 299 and 300;
Para 13 The considerations that should weigh
with courts, in discerning whether an act is
punishable as murder, or culpable homicide, not
amounting to murder, were outlined in
Pulicherla Nagaraju @ Nagaraja Reddy v State of
Andhra Pradesh. This court observed that:
“29. Therefore, the Court should proceed
to decide the pivotal question of
intention, with care and caution, as that
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will decide whether the case falls under
Section 302 or 304 Part I or 304 Part II.
Many petty or insignificant matters
plucking of a fruit, straying of cattle,
quarrel of children, utterance of a rude
word or even an objectionable glance, may
lead to altercations and group clashes
culminating in deaths. Usual motives like
revenge, greed, jealousy or suspicion may
be totally absent in such cases. There may
be no intention. There may be no
premeditation. In fact, there may not even
be criminality. At the other end of the
spectrum, there may be cases of murder
where the accused attempts to avoid the
penalty for murder by attempting to put
forth a case that there was no intention
to cause death. It is for the courts to
ensure that the cases of murder punishable
under Section 302, are not converted into
offences punishable under Section 304 Part
I/II, or cases of culpable homicide not
amounting to murder are treated as murder
punishable under Section 302. The
intention to cause death can be gathered
generally from a combination of a few or
several of the following, among other,
circumstances; (i) nature of the weapon
used; (ii) whether the weapon was carried
by the accused or was picked up from the
spot; (iii) whether the blow is aimed at a
vital part of the body; (iv) the amount of
force employed in causing injury; (v)
whether the act was in the course of
sudden quarrel or sudden fight or free for
all fight; (vi) whether the incident
occurs by chance or whether there was any
premeditation; (vii) whether there was any
prior enmity or whether the deceased was a
stranger; (viii) whether there was any
grave and sudden provocation, and if so,
the cause for such provocation; (ix)
whether it was in the heat of passion; (x)
whether the person inflicting the injury
has taken undue advantage or has acted in
a cruel and unusual manner; (xi) whether
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the accused dealt a single blow or several
blows. The above list of circumstances is,
of course, not exhaustive and there may be
several other special circumstances with
reference to individual cases which may
throw light on the question of intention.”
15. Intention plays a vital role in criminal
jurisprudence. An offence may not be said to be
committed if the prosecution fails to prove the
intention to commit that crime. Intention is
pivotal to decide whether the accused has
committed culpable homicide amounting to murder or
culpable homicide not amounting to murder. Along
with intention, knowledge and the degree of crime,
i.e. how the deceased was killed, plays an
important role in deciding.
16. In the present case, the appellant had no
intention to kill his uncle. Lack of intention can
easily be seen through the acts committed by the
appellant. He was furious about getting yelled by
his uncle a day before, which acted as a
provocation for the accused. The appellant was
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armed with a wooden leg of the cot in his hand
which cannot be termed as a dangerous weapon. He
had given a single blow to the deceased and
therefore it cannot be said that the appellant had
intention of killing the deceased who was his own
uncle. Maybe he wanted to punish his uncle for the
reprimand, he received the previous day. Further
it cannot be said that the appellant had the
knowledge that the deceased would die through a
single blow.
17. We are thus of the opinion that the
deceased is not liable to be convicted under
section 302 IPC but would be liable to be
convicted under section 304 PartII IPC.
18. The appellant was arrested on 09.08.1998
and was released on 13.07.2001 after the acquittal
by the Trial Court. He again surrendered after the
conviction by the High Court on 04.10.2014. He has
already undergone more than eight years of
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incarceration. His sentence shall be reduced from
life imprisonment to period already undergone. The
fine imposed by the High Court would remain as it
is.
19. Accordingly, the Appeals are partly allowed.
The judgment of the High Court is modified to the
following extent:
(i) The conviction and sentence of life
imprisonment under Section 302 IPC is set
aside.
(ii) The appellant is convicted under Section
304 PartII IPC.
(iii) The appellant is awarded sentence of
the period already undergone along with fine as
imposed by the High Court.
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(iv) The appellant may be released forthwith, if
he is not wanted in any other criminal case.
………………………..J.
(A.S. BOPANNA)
……………………….J.
(VIKRAM NATH)
NEW DELHI
JUNE 16, 2022
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ITEM NO.104 COURT NO.2 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal Nos.24052406/2014
MAJOR SINGH Appellant(s)
VERSUS
THE STATE OF PUNJAB & ANR. Respondent(s)
(FOR SUSPENSION OF SENTENCE ON IA No. 15298/2018, FOR [STAY OF
DIRECTION FOR PAYMENT OF FINE OF RS.5,000/] ON IA 15299/2018 AND
FOR EXEMPTION FROM FILING O.T. ON IA 15300/2018)
Date : 16062022 These matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE A.S. BOPANNA
HON'BLE MR. JUSTICE VIKRAM NATH
(VACATION BENCH)
For Appellant(s)
Mr. Gagan Gupta, AOR
For Respondent(s)
Mr. R.K. Rathore, Adv.
Ms. Jaspreet Gogia, AOR
UPON hearing the counsel the Court made the following
O R D E R
1. Application seeking exemption from filing official translation
of Annexures is allowed.
2. Application seeking stay of direction for payment of fine of
Rs.5,000/ is rejected.
3. The Appeals are partly allowed, in terms of the signed
Reportable Order.
4. The appellant may be released forthwith, if he is not wanted
in any other criminal case.
(VISHAL ANAND) (DIPTI KHURANA)
ASTT. REGISTRARcumPS ASSISTANT REGISTRAR
(Signed Reportable Order is placed on the file)