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2007 DIGILAW 378 (PNJ)

Surinder Singh v. State Of Punjab

2007-03-08

RANJIT SINGH

body2007
Judgment Ranjit Singh, J. 1. Appellant Surinder Singh alongwith his brother Balwinder Singh was charged for an offence under Section 302 IPC for having caused death of their brother Harjinder Singh. After trial, Balwinder Singh was acquitted, whereas Surinder Singh is held guilty for an offence of culpable homicide not amounting to murder under Section 304 Part-I IPC. He has been sentenced to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- with direction to undergo rigorous imprisonment for six months in case of default of payment of fine. Sentence of fine of Rs. 1000/- was also awarded for his conviction under Section 323 IPC with similar amount of sentence in case he defaulted in paying the fine. Fine was to be paid to Harvinder Kaur widow of the deceased. Surinder Singh is now in appeal before this, court. 2. As per the prosecution story, appellant Surinder Singh and his two other brothers were residing in different rooms of a house having common court-yard in village Gandhran. Deceased Harjinder Singh was working as a Mason at Nakodar. On 18.8.1992, while deceased was away to his work, his brothers Surinder Singh (appellant) and Balwinder Singh abused his wife Harvinder Kaur. When Harjinder Singh returned to his house on 21.8.1992, his wife informed him about she having been abused by his brothers. He accordingly questioned his brothers in this regard and this led to a fight between them. It is alleged that Balwinder Singh had thrown his brother Harjinder Singh on the ground, whereas Surinder Singh gave a blow on his fore-head with the iron pipe lying in the house. Deceased Harjinder Singh started reeling in pain. His wife Harvinder Kaur stepped forward to rescue him when appellant Surinder Singh gave her two blows with the iron pipe. The wife and daughter Parvinder Kaur aged 12/13 years, raised alarm when Surinder Singh and Balwinder Singh ran away carrying the iron pipe with them. Kabal Singh Namberdar of the village came to the place hearing the alarm and arranged conveyance and carried injured Harjinder Singh and his wife to Civil Hospital, Nakodar. Harjinder Singh died in the hospital. On the statement made by injured Harvinder Kaur, after being declared fit to do so, FIR against appellant Surinder Singh and Balwinder Singh was registered. Kabal Singh Namberdar of the village came to the place hearing the alarm and arranged conveyance and carried injured Harjinder Singh and his wife to Civil Hospital, Nakodar. Harjinder Singh died in the hospital. On the statement made by injured Harvinder Kaur, after being declared fit to do so, FIR against appellant Surinder Singh and Balwinder Singh was registered. Investigation followed and after completion thereof, Surinder Singh and Balwinder Singh were put to trial for an offence under Section 302 IPC. During the course of investigation, appellant Surinder Singh suffered a disclosure statement leading to recovery of an iron pipe, which was hidden in Sarkandas near the railway line in the area of village Gandhran. Appellant was also charged for an offence under Section 323 IPC for causing injuries to Harvinder Kaur. Balwinder Singh was charged for the said offences with the aid of Section 34 IPC. 3. Both the accused raised plea of denial. Appellant Surinder Singh, while pleading innocence, stated that he got up from sleep on hearing cries of Mar Ditta, Mar Ditta and found his late brother Harjinder Singh lying in an injured condition. As per him, Harvinder Kaur was not seen to have suffered any injury. Balwinder Singh accused, however, did not raise any specific plea. The trial court having considered prosecution evidence, specially that of the wife of deceased, who was injured and her daughter Parvinder Kaur believed the core of the prosecution story, as alleged, and disbelieved the defence. The court, however, held that the offence proved was under Section 304 Part-I IPC and not that of murder under Section 302 IPC, as alleged. While so holding, the trial court observed that the occurrence was a result of silly quarrel over a trivial matter. There was no premeditation and whatever happened was on the spur of moment where appellant had given only one blow to his elder brother with iron pipe, which proved fatal. Balwinder Singh, however, was acquitted of the charge saying that the incident took place on spur of moment without any premeditation or prior planning and hence Section 34 IPC would not be attracted. This finding of the trial court is not under challenge and has acquired finality. 4. Learned counsel appearing for the appellant has raised only a legal argument and has not otherwise challenged the findings on merits. This finding of the trial court is not under challenge and has acquired finality. 4. Learned counsel appearing for the appellant has raised only a legal argument and has not otherwise challenged the findings on merits. He would say that this is a case, which would not reveal any intention on the part of the appellant either to cause the death or to cause any Injury, which was likely to cause death. As per the counsel, appellant could only be attributed knowledge that his act was likely to cause death without there being any intention on his part and accordingly the offence proved would be covered under Section 304 Part-II IPC. To appreciate the submissions made by the counsel for the appellant, the distinction between Part-I and Part-II of Section 304 is required to be understood. This distinction is rather a fine one. Part-I applies where there is guilty intention and Part-II where there is no such intention, but there is guilty knowledge. The difference between the two parts of the section is that under the 1st part, the offence of murder is first established and the accused is given the benefit of the exceptions under Section 300 while under the second part, the offence of murder is not established at all. The right approach to a case of culpable homicide is first to find out if the offence falls under any of the four Clauses of Section 300. If it is so found, then the court is to see if the case is covered by any of the exceptions to the section. The offence, if covered by any of the exceptions to this section, would be punishable under Section 304 Part-I and if not, it would be a murder punishable under Section 302 IPC. On the other hand, if it is found that the requirements of Section 300 are not fulfilled and the offence also does not fall under one of the four Clauses, then court is required to see if it was with one of the intentions mentioned in Part-I or only with the knowledge as described in Part-II. In short, if there is only a knowledge of likelihood to cause death, but no intention to do so, then the offence committed would be under Section 304 Part-II. In short, if there is only a knowledge of likelihood to cause death, but no intention to do so, then the offence committed would be under Section 304 Part-II. Though in some cases, an act of inflicting a solitary blow on the person of the deceased on spur of moment, was held to fall in the first part of Section 304, yet a question whether the offender had any intention to cause death is always a question of fact depending upon the circumstances of a particular case. Such intention or knowledge can basically be inferred from the expression used by the offender; weapon used; number and nature of injuries inflicted and deliberation gone into by the offender at the time of committing the act. 5. From the facts proved in this case, when tested in the background of the law, as afore-mentioned, it can reasonably be said that the appellant had no intention either to cause the death of his brother or any intention to cause such bodily injury as was likely to cause death. There was no preparation on his part. He is also not alleged to have used any expression indicating that he was intending to cause death or such injury, which was with the intention to cause death. The weapon used was the pipe which was lying in the house and cannot be termed as such a weapon, which normally could be used as a weapon to cause death. He only gave one blow, which was also without any deliberation on his part. It would be reasonable to say that the appellant had no intention to cause death or any intention to cause such bodily injury as was likely to cause death. However, he could certainly be attributed knowledge that his act was such which may cause death or a knowledge of causing such bodily injury as was likely to cause death. Accordingly, the case would not reveal an offence of culpable homicide not amounting to murder under Part-I of Section 304, but would more appropriately reveal an offence of culpable homicide not a mounting to murder under Part-II of section 304. 6. Accordingly, the case would not reveal an offence of culpable homicide not amounting to murder under Part-I of Section 304, but would more appropriately reveal an offence of culpable homicide not a mounting to murder under Part-II of section 304. 6. The judgment under appeal is accordingly modified and it is held that the appellant is guilty of an offence under Section 304 Part-II, and not under Section 304 Part-I. However, the conviction of the appellant under Section 323 IPC for causing simple injuries to Harvinder Kaur is maintained. As noticed, the appellant was sentenced to suffer ten years rigorous imprisonment and fine. Since his conviction under Section 304 Part-I for culpable homicide not amounting to murder is not being maintained, the sentence awarded to him would also call for interference. This is a case where a fight over trivial matter has taken place between the brothers. The appellant had sufficiently suffered since 1994. As per the record, appellant has already undergone a period of two years out of the sentence awarded to him when he was allowed the concession of bail by this court. There is no allegation of misuse of concession of bail. Taking all these facts into consideration, the sentence awarded to the appellant shall stand reduced to four years while maintaining the sentence of fine and so also the sentence awarded in default of payment of fines. With the above modifications, the appeal is dismissed.