Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 789 (UTT)

Suraj Singh v. State of Uttarakhand

2013-12-10

SERVESH KUMAR GUPTA, SUDHANSHU DHULIA

body2013
Judgment Sudhanshu Dhulia, J. 1. This is a jail appeal arising out of judgment and order dated 30.04.2011 passed by learned Additional Sessions Judge, Rishikesh, Dehradun in Session Trial No. 115 of 2010, State Vs Suraj Singh Kshetri whereby the accused/appellant has been convicted under Section 302 of I.P.C. and sentenced for life imprisonment. 2. Brief facts of the case are that a First Information Report was lodged at police Station Raiwala, Dehradun on 01.03.2010 at about 11:45 p.m. by the complainant Ramjeet Rai S/o Late Shivpujan Ram, a Forest Ranger at Kansro Range, Rajaji National Park, Dehradun, stating that Thakur Singh Saini (deceased), a Forest Guard along with a daily wager forest employee Shri Suraj, and one Shri Gyan Singh Thapa a Chokidar in the Forest Department were on duty at Kansro Forest Range premises on 01.03.2010. A scuffle took place which escalated in a fight between Thakur Singh Saini (deceased) and Suraj Singh Kshetri (accused/appellant). In that fight Suraj Singh Kshetri, in a fit of anger, fired at Thakur Singh Saini with the official gun belonging to the deceased. This incident resulted in the death of the deceased at about 07:00 p.m. Gyan Singh Thapa – Chokidar is the only eyewitness to the incident. With these basic facts, First Information Report was lodged at the aforementioned Police Station. 3. The accused was arrested on 05.03.2010 from a nearby place called “Nepali Farm”. Thereafter investigation was completed and charge sheet was submitted on 29.04.2010 against the accused under Section 302 of I.P.C. The matter was committed to Sessions and the learned Additional Sessions Judge on 12.07.2010 framed charges against the accused/appellant under Section 302 of I.P.C. 4. The prosecution in order to establish its case examined as many as seven witnesses. On the other hand, the accused examined himself as D.W.2 and Dr. Vimlesh Joshi was also produced as D.W.1. D.W.1 is the Doctor, who had examined the injuries of the accused, when he was arrested. 5. Ramjeet Rai (P.W.1) is the complainant, who is the Forest Officer, Kansoro Range, Rajaji National Park, Dehradun at the relevant time and on information given to him by the sole eyewitness i.e. Gyan Singh Thapa (P.W.2) he had lodged the First Information Report. D.W.1 is the Doctor, who had examined the injuries of the accused, when he was arrested. 5. Ramjeet Rai (P.W.1) is the complainant, who is the Forest Officer, Kansoro Range, Rajaji National Park, Dehradun at the relevant time and on information given to him by the sole eyewitness i.e. Gyan Singh Thapa (P.W.2) he had lodged the First Information Report. According to this witness on his visit on 01.03.2010 as a Ranger of the said range he was informed by P.W.2 (performing his duties as Chokidar) that there was a fight between Suraj Singh Kshetri (appellant) and Thakur Singh Saini (deceased) and in the said fight, Suraj Singh shot dead Thakur Singh Saini, after snatching the official 12 bore gun of the deceased who died at the spot. He further states that he was informed by this eyewitness who was present at the place of occurrence. He was also informed by the sole eyewitness that he saw the entire incident as it happened. He further states that Suraj Singh Kshetri after committing the crime ran away from the place of occurrence, dropping the weapon on the spot. This particular witness identified the accused, who was present in the court, as well as lodged the First Information Report. In the cross examination nothing material could be elicited, which may suggest substantial incongruity in the case. 6. The prosecution then examined Gyan Singh Thapa as P.W.2, who is an important eyewitness, in fact the only ocular witness of the incident. According to him, he is 40 years of age and works as Chokidar in the Kansoro Range, Rajaji National Park, Dehradun. He has stated further that both, the accused and the deceased came to the Kansora Range in the afternoon on a motorcycle, which was being driven by the accused Suraj Singh Kshetri and the deceased was riding on the pillion. They came and sat in a room and thereafter started chatting as usual. After sometimes their voices became louder as they started having an altercation. Later on this particular witness testifies that altercation became louder between the deceased and the appellant. A conjecture here is then drawn by this particular witness that this may have happened as “Pappu” may have telephoned Thakur Singh Saini that his mobile phone has been stolen and the suspicion was on the accused. Later on this particular witness testifies that altercation became louder between the deceased and the appellant. A conjecture here is then drawn by this particular witness that this may have happened as “Pappu” may have telephoned Thakur Singh Saini that his mobile phone has been stolen and the suspicion was on the accused. It was for this reason that altercation took place between the two persons, as Thakur Singh Saini was asking the accused appellant to return the mobile phone, which belonged to “Pappu”. At the time of the alleged incident, Thakur Singh Saini was carrying his official gun and the accused was trying to snatch this gun from him. In the scuffle, a gunshot was fired, which killed the deceased. Thereafter, the accused ran away from the place of occurrence. 7. P.W.3 – Gurdeep Singh @ Pappu whose mobile is alleged to have been stolen by the appellant and which actually became the cause for scuffle and fight between the appellant and the deceased resulting in the death of Thakur Singh Saini. According to this witness on 01.03.2010 both the deceased as well as the appellant had come to his house. Since it was a festival day they had consumed some liquor and thereafter at about 04:00p.m. they went away by the motorcycle. When he could not locate his mobile phone he tried to contact Thakur Singh Saini next morning, but he was told that Shri Thakur Singh Saini was dead. In his cross examination he says that he was in very good terms with Thakur Singh Saini (deceased). 8. P.W.4 is Dr. Richa Raturi who had examined the accused when he was arrested on 05.03.2010. According to her the accused has sustained injuries on his right hand middle and index finger. According to P.W.4, these injuries could have been inflicted by blunt object and the same were not the firearm injuries. On the contrary D.W.1 – Dr. Vimlesh Joshi, who was a Government doctor in the jail had examined the injuries of the accused. According to his statement in his examination-in-chief, the injuries, which the accused had sustained on his right hand middle and index fingers, could be a gunshot wound of a 12 bore gun. So there is an obvious contradiction between the kinds of injuries which the accused had sustained, and the cause of the injury. According to his statement in his examination-in-chief, the injuries, which the accused had sustained on his right hand middle and index fingers, could be a gunshot wound of a 12 bore gun. So there is an obvious contradiction between the kinds of injuries which the accused had sustained, and the cause of the injury. There is a contradictory report of two medical experts as to the nature of injuries the accused had sustained on his right hand fingers. 9. Rest of the witnesses are formal ones. 10. Ms. Meena Bohra, learned counsel for the appellant, an Amicus Curiae in the case has tired to demonstrate that on the weight of the evidence available on the record the trial court could not have reached at the conclusion making out the case of murder attracting the punishment under Section 302 I.P.C. 11. In spite of small contradiction in the statement of P.W.2, his version appears to be bona fide and true. There is no reason as not to believe this witness, but even on the testimony of this particular witness as well as other witnesses of the prosecution besides the defence, it is clearly established that what happened on that night at Kansro Forest Range, was not on account of a premeditated plan. It happened on the spur of the moment and that was not prearranged on the part of the accused, to kill the deceased. 12. 4th exception to Section 300 of the Indian Penal Code has now to be examined in the light of the facts of the present case and the evidence of the prosecution. Fourth exception to Section 300 of Indian Penal Code reads as under:- “300. Murder…… Exception 1 …… Exception 2 …… Exception 3 …… Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” 13. Murder…… Exception 1 …… Exception 2 …… Exception 3 …… Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” 13. So, absolutely there is no doubt in the mind of this Court that what happened on the fateful night of 01.03.2010 was not a premeditated murder, in fact it was a culpable homicide not amounting to murder as there was no prearranged plan in the case, but it was a result of a sudden fight in the heat of passion on a sudden quarrel without the offender having taken any undue advantage or acted in a cruel or unusual manner. As such all the ingredients which are contained in exception four to Section 300 of I.P.C. are present in the instant case. 14. In view thereof, this Court converts the finding of murder to that of culpable homicide not amounting to murder and thereby convicts the accused not under Section 302 of I.P.C. but under Section 304 Part II of I.P.C. and sentence him for 4 years rigorous imprisonment. 15. With the aforesaid modification in the conviction and sentence, the appeal is partly allowed. Let a copy of this judgment be sent to the Superintendent of Jail concerned where the accused/appellant is lodged so that the jail authorities release the accused/appellant on his undergoing four year rigorous imprisonment. The registry is directed to send back the lower court records.