(Fakkir Mohamed Ibrahim Kalifulla and Uday Umesh Lalit, JJ.)
Raj Kumar ______________ Appellant
v.
State of Punjab ____________ Respondent
Criminal Appeal No. 1283 of 2008, decided on October 9, 2015
The Order of the court was delivered by
Order
1. This appeal by special leave is directed against the judgment and order dated 30th April, 2008 passed by the High Court of Punjab and Haryana in Criminal Appeal Nos. 433-SB/1993 and 363-DB/1994 and in Criminal Revision No. 565 of 1994.
2. The instant matter arises out of FIR NO. 121 dated 5th October, 1991 registered with PS I/SPP Bus Stand, Jalandhar, pursuant to reporting made by P.W.2 Anil Chhabra. It was reported that on that day at about 7:30p.m. in the Conference Hall at King’s Hotel, Jalandhar, about 15 to 16 members had joined a kitty party. After the party was over, some of the members went out having finished their meals. At about 10:40p.m. about 5 to 6 persons were still left in the CRIMINAL APPEAL NO. 1283 OF 2008 Hall. It was further stated that P.W.2, Anil Chhabra, Raj Kumar @ Raju, Inderbir Singh Sachdeva and Subhash Malhotra were sitting at a table. While they were chatting, the said Inderbir Singh statedly abused Raj Kumar @ Raju i.e. the present appellant in the name of his sister, as a result whereof the appellant got enraged and took out his licensed revolver of .32 bore and started firing at Inderbir Singh. According to the reporting, first two shots hit him in the chest on the right side. In the meanwhile, said Inderbir Singh had taken a turn towards his left and at that time, the appellant had fired two more shots. It was further reported that after having fired the shots, the appellant ran away and Inderbir Singh succumbed to his injuries at the spot itself. It was further stated that P.W.2, Anil Chhabra and Subhash Malhotra had witnessed occurrence and thereafter telephoned the Police.
3. After registration of crime, investigation was undertaken by the Police. At the site in question, the Police recovered two lead pieces. As part of the inquest proceedings, the statements of P.W. 2, Anil Chhabra as well as one Gurbachan Singh later examined as P.W.3 were recorded. The body of the deceased was sent for post mortem which was conducted by P.W. 1, Dr. Manjit Singh Saini, who found the following injuries on the person of the deceased:-
“1. 1cm circular wound with inverted margins. Going through and through about 4cms. Above the umbilicus in the midline with the exit through wound with everted margins about 1cms at the back of the right side of trunk about 10 cms. Lateral to the midline below scapula. On probing the two wounds were communicating.
2. 1 cm. Rounded wound with inverted margins on the back of the trunk on the right side about 7 to 8 cms lateral to the midline above iliac crest going through and through with the exit wound about 1½ cm with everted margins on the medial border of exill a on the right side. On probing the wound were communicating. On dissection: Lever lacerated, stomach and intestines perforated. Right lung was ruptured. Abdominal cavity was full of blood. Peritoneal cavity full of blood. Stomach contained about 100 cc of semi solid food mixed with blood. Small intestines contained gases with liquid contents mixed with blood. Rest all other organs were normal.”
4. According to the doctor, the death was due to the aforesaid injuries leading to profused haemorrhage and shock and that the injuries were sufficient to cause death in ordinary course of nature.
5. The licensed fire arm allegedly used by the appellant was recovered during the course of investigation and it was found that in the chamber of the fire arm there were four empties. After concluding the investigation, charge sheet was filed against the appellant for having committed the offence punishable under Section 302 of the Indian Penal Code. During the trial, the prosecution examined P.W. 2, Anil Chhabra who testified as under:-
“On 5.10.1991 we had assembled in Kings Hotel in connection with our Kitty party at about 7:30P.M.
In that party 15 to 16 persons had gathered. At about 10:30 or 10:35 P.M. during that kitty party some altercation took place in between accused present in court and Indervir Singh. Thereafter accused took out his revolver and fired at the deceased hitting him on the front and back. We raised an alarm, accused ran away from that place along with his revolver/pistol, as I cannot distinguish between pistol and revolver. Subhash Malhotra, Gurbachan Singh, Gurdip Singh, myself and accused and the deceased were close to each other when this occurrence except we six people above mentioned were present in the Conference hall whereas the other members had left the place after taking dinner. We then tried to removed the injured to the hospital to save him but in the gate of Conference hall he succumbed to the injuries.
I then rang up the police station of Bus Stand from the Receptionist of that Hotel and then I tried to contact the members of the family of the deceased at his residence but the number was not available. I sent Gurbachan Singh and Gurdip Singh to go to the house of the deceased and to inform the members of the family of the deceased. Police reached spot within 15 to 20 minutes. My statement Ex. P8 was recorded by the police. It was read over to me ad after admitting the same to be correct I signed it as Ex. P8/1.”
6. The prosecution also examined P.W. 3, Gurbachan Singh, who supported the version of P.W. 2, Anil Chhabra. The trial Court after considering the material on record and the rival submissions, convicted the appellant under Section 304 Part I IPC and sentenced him to suffer imprisonment for ten years and to pay fine of Rs. 2,000/- (Rupees two thousand), in default whereof, to undergo further rigorous imprisonment for a period of one year. He was also convicted and sentenced under Section 27 of the Arms Act to suffer rigorous imprisonment for three years and to pay fine of Rs. 1,000/- (Rupees One thousand), in default whereof to undergo further rigorous imprisonment for six months. It was observed by the trial Court that going by the version of the prosecution witnesses, there was some altercation which had taken place between the appellant and the deceased, whereupon the appellant had taken out his revolver and fired at the deceased. Further, going by the statements of the witnesses recorded during investigation, there were abuses which were exchanged. According to the trial Court, reading between the lines of the statements of the witnesses recorded in the Court and their earlier versions before the Police, there was no doubt that the deceased had given abuses to the appellant and the appellant must have been provoked and enraged which then resulted in the death of the deceased. Concluding that there was sudden and grave provocation, the trial Court held that the case would not come under Section 302 IPC but under Section 304 Part I of the IPC.
7. The appellant being aggrieved by this conviction and sentence preferred Criminal Appeal No. 433-SB/93 in the High Court. The State also preferred Criminal Appeal No. 363-DB/94 challenging the view taken by the trial Court that the offence under Section 302 IPC was not made out. Criminal Revision No. 565 of 1994 came to be filed by the complainant questioning the view so taken by the trial Court. All these matters were taken up together and disposed of by the High Court by its judgment in appeal. After having considered the material on record, the High Court concluded that the prosecution was successful in establishing that the deceased died as a result of shots fired by the appellant. While considering whether the instant matter came within the purview of “sudden and grave provocation”, the High Court found that there was nothing on record to indicate in what circumstances and what was the cause for the deceased to have abused the appellant. It was further observed that if the appellant wanted to derive benefit or advantage under the first Exception to Section 300 of the I.P.C., then the onus squarely rested on his shoulder, which onus was not discharged by the appellant at all. The High Court further observed that given the eye witness account, four shots were fired by the appellant which could again be inconsistent with the theory of any instantaneous reaction to any sudden and grave provocation. Allowing the appeal preferred by the State, the High Court thus convicted and sentenced the appellant for the offence punishable under Section 302 I.P.C.
8. In this appeal by special leave, challenging the correctness of the decision of the High Court, we have heard learned counsel for both the parties. It was submitted on behalf of the appellant that though no positive evidence was led by the appellant in support of his plea of sudden and grave provocation, the material on record itself indicated that there were abuses hurled at him as a result of which he was provoked to fire upon the deceased. He thus submitted that the view taken by the trial Court was a correct view which ought not to have been set aside by the High Court.
9. We have considered the rival submissions. It is worthwhile to note that in his statement under Section 313 of the Code of Criminal Procedure, the accused has come out with complete denial including the denial of his presence at the place of occurrence itself. He has chosen not to lead any positive evidence from his side. It is true that the plea of sudden and grave provocation can still be proved by him provided there is material on record. In that view of the matter, if we analyse the material both the eye witnesses namely, P.W. 2, Anil Chhabra and P.W. 3, Gurbachan Singh are quite cogent and consistent that there was an altercation and that soon thereafter the appellant took out his licensed weapon fired upon the deceased. Even if we were to accept that any abuses were hurled by the deceased, questions such as who was responsible for such verbal altercation, who had initiated such verbal altercation, what was the extent of such abuse, whether such abuses would, in normal circumstances, have provoked a reasonable minded person still remain unanswered. These are issues which ought to have been proved by way of positive evidence or inferences clearly discernible from the record. We do not find any material even suggesting such inferences. In our view, the High Court was completely right and justified in negating the plea of “sudden and grave provocation. We, therefore, affirm the view taken by the High Court and dismiss the present appeal.
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