RAJINDER SINGH Vs. STATE OF HARYANA
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1039 of 2014, Judgment Date: Dec 17, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1039 OF 2014
RAJINDER SINGH Appellant(s)
VERSUS
STATE OF HARYANA Respondent(s)
O R D E R
This appeal by way of special leave, at the instance of the
sole accused, is directed against the judgment of the Division Bench of the
High Court of Punjab and Haryana at Chandigarh dated 26.4.2013 in Criminal
Appeal No.D-953-DB of 2006 in and by which the conviction and sentence
imposed on the appellant by the Trial Court dated 27.10.2006/30.10.2006 in
Sessions Case No.33 of 6.6.2003/11.5.2006 came to be confirmed. The
appellant was convicted for offence punishable under Section 302 for
causing murder of Shri Ram and Suraj Mal. He was also found guilty and
convicted for the offence punishable under Section 27 of the Arms Act for
misusing his licensed gun. He was sentenced to undergo imprisonment for
life, apart from payment of fine of Rs.20,000/- with the default clause to
undergo further rigorous imprisonment for two years. For the offence under
Section 27 of the Arms Act imprisonment of two years' rigorous imprisonment
was imposed. The sentences were directed to run concurrently. The co-
accused/Jai Bhagwan was acquitted of the charges framed against him.
However, other co-accused Neeraj, was also implicated in the crime along
with the appellant and being a juvenile was dealt with by the Juvenile
Justice Board independently.
The case of the prosecution was, on 19.3.2003 at about 6-7 P.M.
Sandeep (PW.10) and the juvenile accused-Neeraj were quarreling after
celebrating Holi in the street in front of the house of Suraj Mal, the
deceased, is the father of the complainant-Mukesh. Mukesh was examined as
PW.9, who attempted to separate Neeraj and Sandeep but Neeraj kept on
abusing consistently. In the meantime, on hearing the noise in the street
Krishan, another deceased and the father of juvenile Neeraj and Jai Bhagwan
son of Krishan also reached there and also started quarreling with Mukesh
(PW.9) alleging that he threatened Neeraj, son of Krishan. The
complainant's father Suraj Mal and his uncle Shri Ram also stated to have
joined the place of occurrence.
The deceased Krishan called his brother Rajinder Singh, the
appellant herein and asked him to bring his gun as otherwise it would have
no use. The appellant brought his double barrel gun and fired a shot from
the corner of the street, which hit Suraj Mal in the chest and the second
fire shot hit on the left eye of his uncle Shri Ram. The juvenile Neeraj
alleged to have beat the complainant-Mukesh (PW.9) with a brick on his
head. By receiving the assault the complainant stated to have fell down on
the ground while Ravinder son of Shri Ram and Guru Dutt son of Narain Dutt
arrived at the spot and by the time the whole occurrence have come to an
end. It was further alleged by the Complainant (PW.9) that the appellant
went to his house but kept on firing along with his brother and other
family members. One Bhupender stated to have lifted Suraj Mal and Shri
Ram. The deceased got treatment at PGIMS, Rohtak while the complainant
(PW.9) went to the Civil Hospital where the doctor referred him to go to
PGIMS, Rohtak. After reaching PGIMS, Rohtak, Complainant (PW.9) learnt
that his father and uncle, namely, Suraj Mal and Shri Ram died of firearm
injuries. It was based on the above narration of events, the FIR came to
be registered on 19.3.2002.
On the side of the prosecution PWs.9 and 10 were examined as
eye witnesses to the occurrence. The sketch was drawn by the Investigating
Officer-PW.7 (Exhibit P15). Be that as it may, according to the appellant
on the fateful day i.e. on 19.3.2003 in the evening his nephew Neeraj, the
juvenile son of Krishan and Sandeep (PW.10) after celebrating Holi scuffled
with each other and thereafter when Complainant (PW.9) intervened, juvenile
Neeraj gave a hit on the head of Complainant (PW.9) with a brick and ran to
the house of the appellant, where other deceased Krishan was also present.
It was further alleged that after some time Complainant (PW.9) came to the
house of the appellant armed with pistol accompanied by Sandeep, Vijay,
Davinder, Ram Dia, Suraj Mal and Shri Ram with the country made pistol-
guns, jaili etc. shouting that they will not spare Neeraj. When Krishan
tried to stop them PW.9-Complainant and PW.10 started firing with their
weapon, namely, country made pistol. A bullet hit Krishan, simultaneously,
the deceased Shri Ram and Suraj Mal also started firing from their pistols
upon which Krishan fell down. It was at that time finding no other go the
appellant in his self-defence opened fire from his licensed gun towards the
accused persons, thereupon all of them ran away from the spot. It was
specifically contended that DW.1- Santosh Kumari wife of Krishan and Smt.
Chameli wife of late Ram Krishan were also present at the spot and
witnessed the above-said occurrence. The appellant also claimed that after
the occurrence, he went to Police Station Sadar Rohtak narrated the whole
incident to the Station House Officer and also deposited his licensed gun
in the police station. He further stated that while he was sitting in the
police station PW.10 was also present there and that he also learnt that
Suraj Mal and Shri Ram died due to bullet injuries. With the above
allegations, the appellant preferred the complaint before the Judicial
Magistrate, First Class, Rohtak in Criminal Complaint No.682/03/04 on
26.5.2003/6.4.2004. In the said complaint the appellant stated that his
statement to the Police Station Sadar Rohtak was not recorded and that the
police only registered FIR No.62 dated 19.3.2003 against the appellant and
other co-accused. The complaint preferred by the appellant stated to have
been ultimately rejected by the concerned Court.
In the above-stated background Mr. Balaji Srinivasan, learned
counsel appearing for the appellant, contended that there were very many
incongruities in the evidence of the prosecution, both, oral as well as
documentary in order to hold that the appellant was the aggressor and not
the complainant party. In his endevour to support such a stand, learned
counsel took us through the complaint lodged by Complainant (PW.9), the
sketch drawn by PW.7, the Criminal Complaint No.682/03/04 preferred by the
appellant in the Court of Judicial Magistrate, First Class, Rohtak, the FSL
Report (Exhibit P.63), the evidence of PW.10, who was eyewitness to the
occurrence as well as that of DW.1-Santosh read along with the conclusion
made by the Trial Court in the judgment impugned as regards the death of
the deceased, Krishan.
As against the above submissions, Mr. Vikas Sharma, learned
counsel appearing for the respondent-State, in his submission contended
that going by the FSL Report itself it was crystal clear that the bullet
found in the body of the deceased Suraj Mal and Shri Ram as well as Krishan
could have been fired only from the double barrel gun which was admittedly
possessed by the appellant who fired the shots on the date of the
occurrence, at least towards the deceased Suraj Mal and Shri Ram. Learned
counsel further contended that the juvenile Neeraj having perpetrated the
crime by fighting with Sandeep (PW.10) who was supported by appellant along
with the deceased Krishan and the other accused Jai Bhagwan and in that
process, at the instance of the deceased-Krishan, appellant used his
firearm which killed two persons, the offence found proved against him does
not call for interference.
Having heard learned counsel for the appellant as well as the
learned counsel for the respondent and having perused the various materials
placed before us, we find force in the submission of the learned counsel
for the appellant in contending that the case pleaded by the appellant that
it was in self-defence, the appellant was forced to use his double barrel
licensed gun, and therefore, the conviction for the offence under Section
302 or for the offence under Section 27 of the Arms Act cannot be
sustained. The appellant can at best could have been dealt with under
Exception 4 of Section 300 IPC, for which the punishment would fall under
Part-II of Section 304 IPC.
When we consider the submission of learned counsel for the
appellant, we find substantial support in the stand of the appellant from
the evidence on record. The occurrence had taken place near the residence
of the appellant and not near the place of the residence of the Complainant
(PW.9). When we examined the stand in the Complaint (Exhibit P.10) the
complainant himself, while narrating the starting point of the incident has
stated that at 6 O'Clock in the evening in the street i.e. in front of
their house he found PW.10 and juvenile Neeraj quarreling with each other
after celebrating Holi. When we perused the evidence of PW.10, in
particular, in cross-examination, he had stated in uncontroverted terms
that after causing the brickbat injury to Complainant (PW.9), juvenile-
Neeraj went to the house of his uncle Rajinder Singh i.e. the appellant.
Thereafter fight took place between Rajinder, Neeraj and Krishan and others
on the one side and Suraj Mal (deceased) and Shri Ram (deceased), Mukesh
(PW.9) and himself (PW.10) on the other side. Fist blows were also
exchanged during the occurrence.
Therefore, it is quite apparent that after the initial quarrel
as between the juvenile Neeraj and Sandeep (PW.10) in front of the house of
Complainant (PW.9), Neeraj stated to have hit Complainant (PW.9) on his
head with the brick and rushed back to the house of the appellant, where
the complainant party, namely, PWs.9 & 10, Suraj Mal and Shri Ram, both
deceased, as well as PW.10 followed juvenile Neeraj to settle their score,
where in continuation of the earlier quarrel, fight broke out in which the
fire shots have been exchanged between both the parties which resulted in
the death of deceased Suraj Mal and Shri Ram on the side of the complainant
party and that of Krishan on the side of the appellant.
The above-said conclusion is well supported, when we perused
the sketch marked before the Trial Court in Exhibit P.15 which clearly sets
out the exact place where the occurrence had taken place, which has also
been marked. It discloses that the occurrence had taken place close to the
residence of the appellant and not that of the complainant (PW.9). Apart
from noting the above relevant feature as to the place of occurrence where
the exchange of shooting had taken place between both the parties, as
alleged by the appellant, when we perused the FSL Report (Exhibit P.63) it
discloses that there were two sets of cartridges recovered, namely, C/1 to
C/6, which were recovered from the body of the deceased Suraj Mal and Shri
Ram as well as one sent for FSL Report under Parcel No.XII, which was
recovered from the body of deceased-Krishan. The one found in the parcel,
which was related to the deceased-Krishan was size No.9, while C/1 to C/6
were of size No.1. It is significant to note that the only weapon which
was recovered was that of the appellant's, namely, double barrel gun (W1).
No other weapon was recovered either from the appellant or from any of the
other accused or from the complainant party. It is also necessary to note
that no expert was examined to speak about Exhibit P.63. The only
incriminating factor which was relied upon by the prosecution was that para
No.3 in the result column of Exhibit P.63 which stated as under:-
"Pellets contained in Parcel No.VIII and X were found to be size 1
and pellets contained in Parcel No.XII were found to be of size 9 and are
normally loaded in shot gun cartridge including 12 bore cartridge of type
C/1 to C/6."
By relying upon the said Report contained Exhibit P.63, it was
sought to be contended that the appellant having admitted the use of his
double barrel gun, the Report having stated that with that very gun even a
bullet of size No.9 could have been shot, the appellant alone can be held
responsible for the killing of the deceased-Suraj Mal and Shri Ram as well
as Krishan. It must be stated that except a very sketchy unsupported
material in the form of FSL Report, there was no other legally supporting
acceptable evidence to show that the appellant was in any way responsible
for killing of his own brother Krishan with the aid of his double barrel
gun, in which the bullets of size No.1 is recovered under C/1 to C/6 were
used apart from one another unused bullet, which was found and recovered
from the cartridge case of the said weapon, namely, double barrel licensed
gun of the appellant.
One other relevant material evidence which is to be borne in
mind is that of the evidence of DW.1, namely, Santosh, wife of the deceased
Krishan, the reading of which sufficiently discloses that the manner in
which the case pleaded by the appellant was true and that it was at the
instance of the complainant party, the latter part of the occurrence which
resulted in the death of Suraj Mal, Shri Ram and Krishan occurred.
In order to find out as to what was the evidence laid before
the Trial Court to ascertain as to the manner in which the death of Krishan
had taken place, we find a very nebulous observation made by the Trial
Court in paragraph 27 of its judgment, wherein it is stated to the effect
that the case pleaded by the defence that the injury on the person of
Krishan could not have been caused if accused Rajinder was firing in the
air indiscriminately. The said injury was intentional and that was caused
by Rajinder-accused. It was further stated that the reason for causing
such injury could have been due to the fact that having murdered two
persons on the asking of Krishan and in fit of anger he might have killed
the Krishan. It was further stated that when two persons were killed by
him, he apparently wanted to manufacture the story of self-defence and with
that view he killed his own brother Krishan. It must be stated that such a
conclusion is highly speculative and we fail to understand how the Trial
Court could have imagined such a theory without there being any sort of
evidence to support the said conclusion. On the one hand, going by the
evidence of DW1 as well as Exhibit P.63 the spot at which the occurrence
had taken place as noted in Exhibit P.15 and the evidence of PW.10 himself,
we find that the case pleaded by the appellant could have been the manner
in which alone the whole occurrence had taken place and none else. If the
said conclusion is inevitable then the plea of self-defence pleaded by the
appellant has to be necessarily accepted.
Consequently, we are convinced that since the death of Suraj
Mal and Shri Ram had occurred due to the firing resorted to as part of his
self-defence, the same would amount to culpable homicide not amounting to
murder, which was committed without any pre-meditation in a sudden fight in
the heat of passion upon a sudden quarrel and that the offender did not
take undue advantage or acted in a cruel or unusual manner, which would
normally fall under Exception 4 of Section 300 IPC. Consequently, at best,
conviction of the appellant can only be under Part-II of Section 304 IPC
for which he could have been inflicted with a punishment of ten years. For
the very same reason, the conviction imposed under Section 27 of the Arms
Act cannot also be sustained. It is stated that the appellant is suffering
the sentence in jail and has so far suffered eleven years. The conviction
is modified into one under Section 304 Part-II and the sentence already
suffered by the appellant is held to be more than sufficient. Having
regard to the said factors, holding that the sentence already suffered by
the appellant is sufficient enough for the modified conviction now imposed.
The appeal stands partly allowed, the appellant shall be set at liberty
forthwith, if his detention is not required in any other offence.
................................J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
................................J.
[ABHAY MANOHAR SAPRE]
NEW DELHI;
DECEMBER 17, 2014.
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