Ajit Singh vs State Of Punjab

Ajit Singh ....Appellant

Vs.

State of Punjab .....

Respondent

J U D G M E N T

HARJIT SINGH BEDI,J.

I concur with the judgment of my learned sister

to the extent that the appellant's conviction ought to be

affirmed. I am, however, unable to accept that the case

could be covered by Exception 4 to Section 300 in the

facts which have been brought out in the course of the

evidence. Exception 4 reads thus:

"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."

2

It will be seen that this Exception

presupposes several conditions for its applicability; they

being (i) that the incident happened without

premeditation, (ii) in a sudden fight, (iii) in the heat of

passion, (iv) upon a sudden quarrel and (v) without the

offender having taken undue advantage or acted in a cruel

or unusual manner. I am of the opinion that the appellant

herein has taken undue advantage and has acted in a cruel

and unusual manner which excludes the applicability of

Exception 4. The facts show that there had been a sudden

quarrel between the appellant and the deceased (a woman

and therefore the weaker sex) and after she had been

immobilized he had caused as many as nine injuries on

her person. The injuries are re-produced herein below:

"(i) 6 cm long stitched wound bearing 13 black

cotton stitches on front left side of bearing part

of neck extending from the middle of left lower

jaw up to middle of neck, muscle deep and

obliquely placed.

(ii) 3 cm long stitched wound bearing 7 black

cotton stitches placed obliquely and 2 cm below

injury no.1 on its lateral half and muscle deep.

(iii) 7 cm long stitched wound bearing 9 black

cotton stitches on front and right side of neck, 4

3

cm below middle of lower jaw, obliquely placed

and muscle deep.

(iv) 6 cm stitched wound bearing 12 black cotton

stitches placed horizontally on front of neck in

the middle and lateral side extending across the

middle and 1 cm to the right on dissection,

underlying subcutaneous tissue and muscle are

clear cut and gapping was present. Underlying

laryngopharynx was repaired with the nylon

stitches. On removal of stitches the wound was 5

cm x 2 cm surrounding muscle on the lateral

side were also cut.

(v) 3 cm long curved stitched wound on left side

and 2 cm below injury No.4 wearing 4 black

cotton stitches and was skin deep.

(vi) Brownish scabbed linear superficial abrasion 6

cm long on left side of neck and 1 cm below

injury No.5.

(vii) Brownish scabbed linear curved abrasion 6

cm long and 2 cm below injury No.6.

(viii) Incised wound 3 cm x 2 cm in the lower

part of the neck in the mid line. 6 cm above

upper end of sternum underlying muscle cut and

there is hole 1.5 cm x 1.5 cm in the interior wall

of trachea (Tracheotomy wound).

(ix) 5 cm long stitched wound on the lateral half

of right eyebrow wearing 5 stitches on dissection

margins were clear cut and it was bone deep."

We see that all the injuries are on the face or neck of

the deceased and that injury Nos. (i), (iii), (iv), (viii) and (ix)

were very extensive leading to her death. To my mind,

the case clearly falls within the ambit of Section 302 of

4

the IPC and the appellant's conviction under this

provision calls for no interference. The Criminal Appeal is

dismissed.

...................................J.

(HARJIT SINGH BEDI)

1st September, 2011

New Delhi.

5

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 2094 OF 2008

AJIT SINGH ..

Appellant

Versus

STATE OF PUNJAB

..Respondent

J U D G M E N T

GYAN SUDHA MISRA, J.

1. The Indian Penal Code was enacted in the year

1860 under which the offences within the territory of India

have been tried ever since it was enacted dealing with

countless number of cases leading either to acquittal or

conviction. Yet, the task of the decision making

authorities/courts whether an offence of culpable homicide is

murder or culpable homicide does not amount to murder in

the prevailing facts and circumstances of the case is a

perennial question with which the courts are often confronted.

6 We are well aware in view of Section 300 of the I.P.C. that all

murders are culpable homicide but all culpable homicide

does not amount to murder and this leads the courts quite

frequently to consider as to whether an accused charged of an

offence of culpable homicide is guilty of murder or he has

committed culpable homicide not amounting to murder.

When the evidence discloses a clear case of murder or makes

out a finding of culpable homicide not amounting to murder,

the task of the courts to record conviction or acquittal is

generally an easy one. But this task surely becomes an

undaunted one when the accused commits culpable

homicide/murder but the circumstances disclose many a

times that it is done without premeditation or pre-planning,

may be to cause grievous hurt, yet it is so grave in nature

that it results into death and the role of the factum causing

death without premeditation becomes a secondary

consideration due to which the decision of the courts in such

cases often hinges on discretion while considering whether

the case would fall under Section 302 I.P.C. or it would be

under 304 Part I or even Part II, I.P.C.

7 2. On a plain reading of Sections 299, 300, 302

and 304 of the Indian Penal Code, it appears that a given case

can be conveniently classified into two categories viz. culpable

homicide amounting to murder which is 302 I.P.C. or culpable

homicide not amounting to murder which is 304 I.P.C. But

when it comes to the actual application of these two sections

in a given case, the courts are often confronted with a dilemma

as to whether a case would fall under Section 302 I.P.C. or

would fall under Section 304 I.P.C. Many a times, this gives

rise to conflicting decisions of one court or the other giving rise

to the popular perception among litigants and members of the

Bar that a particular court is an acquitting court or is a

convicting one. This confusion or dilemma often emerges in

a case when the question for consideration is whether a given

case would fall under Section 302 I.P.C. or 304 I.P.C. when it

is difficult to decipher from the evidence whether the

intention was to cause merely bodily injury which would not

make out an offence of murder or there was clear intention to

kill the victim making out a clear case of an offence of

murder.

8 3. In the instant appeal by special leave, once again the

aforesaid situation arises which has been preferred against the

judgment and order dated 11.3.2008 passed by the Division

Bench of the High Court of Punjab and Haryana in Criminal

Appeal No.300-DB of 1999 whereby the High Court had been

pleased to dismiss the appeal and thus upheld the order of

the Additional Sessions Judge, Hoshiarpur convicting the

appellant-Ajit Singh for offence under Section 302, I.P.C.

sentencing him to undergo rigorous imprisonment for life as

also to pay a fine of Rs.2,000/- in default of which he is to

undergo further imprisonment for six months. However, the

High Court while upholding the conviction and sentence of the

appellant herein under Section 302 I.P.C., was pleased to

acquit the co-accused-Anil Kumar of the charge and conviction

under Section 302/34 I.P.C.

4. The prosecution case recorded in the First

Information Report which led to the conviction of the

appellant-Ajit Singh was lodged on 22.10.1996 on the basis of

the complaint made by Jagdish Kumar, PW-6 who stated that

he was running a private middle school in village Terkiana

9

and on the date of the incident he was not feeling well due to

stomach upset and hence had come home early at about

12.30 noon. He (PW-6) further stated that he had gone to

attend the call of nature towards the field of the accused-

appellant Ajit Singh who had planted Kinnu plants in his field.

One Laxmi Devi (the deceased) and her son Rajiv @ Raju (PW-

7) along with Nirmal Kaur were cutting fodder in the field of

the appellant-Ajit Singh where Ajit Singh and his servant Anil

Kumar were also working. According to the informant PW-6,

the appellant was having an altercation with the deceased

Laxmi Devi as the appellant complained that she had caused

damage to his field which the PW-6 heard while he was

proceeding towards the field. Soon the appellant and the

deceased started abusing each other due to which the

appellant got enraged and asked his servant Anil Kumar to

bring Kassi (spade) to finish them once for all. At this Anil

Kumar brought the Kassi (spade) with which he was digging

the plants. But the deceased Laxmi Devi continued hurling

abuses. The appellant-Ajit Singh is then alleged to have

taken the Kassi from Anil Kumar and asked him to catch

1

hold of her so that he may do away with her life. The

deceased was given a push due to which she fell down on the

ground in a straight posture and Anil Kumar caught her by

her arms. Ajit Singh is then alleged to have given two blows

with the Kassi (spade) on the neck of the deceased after

which Nirmal Kaur and Rajiv raised alarm. PW-6 thereafter

claims to have run towards the appellant but the appellant

went towards his kothi situated in the garden along with

spade smeared with blood and Anil Kumar too ran away from

the spot. Further case of the prosecution is that the body of

the Laxmi Devi (deceased) was smeared with blood and Rajiv-

PW-7 ran towards government colony raising alarm as a

consequence of which the entire village collected at the place

of incident and a conveyance was arranged on which the

deceased was taken to Civil Hospital, Dasuya and PW-6 also

went to the police station to lodge the formal report. But S.I.

Samsher Singh (PW-15) met him on the way and recorded his

statement on the basis of which a formal First Information

Report was lodged for offence under Section 307/34, I.P.C.

and PW-15 took up the investigation. Subsequently, as

1

Laxmi Devi died, the case was converted into a case under

Section 302/34, I.P.C.

5. The doctor who conducted post-mortem found

the following injuries on the body of the deceased:

"(i) 6 cm long stitched wound bearing 13 black cotton

stitches on front left side of bearing part of neck

extending from the middle of left lower jaw up to middle

of neck, muscle deep and obliquely placed.

(ii) 3 cm long stitched wound bearing 7 black cotton stitches

placed obliquely and 2 cm below injury no.1 on its

lateral half and muscle deep.

(iii) 7 cm long stitched wound bearing 9 black cotton stitches

on front and right side of neck, 4 cm below middle of

lower jaw, obliquely placed and muscle deep.

(iv) 6 cm long stitched wound bearing 12 black cotton

stitches placed horizontally on front of neck in the middle

and lateral side extending across the middle and 1 cm to

the right on dissection, underlying subcutaneous tissue

and muscle are clear cut and gapping was present.

Underlying laryngopharynx was repaired with the nylon

stitches. On removal of stitches the wound was 5 cm x 2

cm surrounding muscle on the lateral side were also cut.

(v) 3 cm long curved stitched wound on left side and 2 cm

below injury No.4 wearing 4 black cotton stitches and

was skin deep.

(vi) Brownish scabbed linear superficial abrasion 6 cm long

on left side of neck and 1 cm below injury no.5.

(vii) Brownish scabbed linear curved abrasion 6 cm long and

2 cm below injury No. 6.

1 (viii) Incised wound 3 cm x 2 cm in the lower part of the neck

in the mid line. 6 cm above upper end of sternum

underlying muscle cut and there is hole 1.5 cm x 1.5 cm

in the interior wall of trachea (Tracheotomy wound).

(ix) 5 cm long stitched wound on the lateral half of right

eyebrow wearing 5 stitches on dissection margins were

clear cut and it was bone deep."

In the opinion of the doctor the cause of death was

due to throat cut injury, cerebral edema and nasal ganlia

which were ante mortem and sufficient to cause the death

in the ordinary course of nature.

6. After compliance of the due formalities of

investigation, submission of charge sheet and committal

proceeding, the trial of the two accused persons was

conducted by the Additional Sessions Judge, Hoshiarpur who

was pleased to convict the appellant and the co-accused Anil

Kumar (since acquitted) under Section 302/34 I.P.C. and

sentenced them as already indicated hereinafter. As already

stated, the conviction and sentence of the appellant Ajit Singh

was maintained under Section 302 I.P.C. but the co-accused

Anil Kumar was acquitted. Hence, this appeal has now been

1

preferred by the sole appellant Ajit Singh and this court is

seized with consideration of the question whether the

conviction and sentence of the accused-appellant Ajit Singh is

fit to be sustained or not.

7. In so far as the genesis and manner of

occurrence and the factum of death of deceased Laxmi Devi

is concerned, the counsel for the parties have been heard at

some length and the evidence have been scrutinized but I am

unable to accept the contention that the incident did not take

place in the manner as alleged by the prosecution and I fully

agree with the findings recorded by the courts below that the

deceased Laxmi Devi died in the manner and at the place as

alleged by the prosecution.

8. The only ground which now needs to be

considered in this appeal is whether on the existing facts and

circumstances emerging out of the genesis, manner and place

of occurrence, the conviction of the appellant is fit to be

sustained under Section 302, I.P.C. or it would be a case of

conversion of conviction and sentence under Section 304 Part-

I of the I.P.C. Although, we are all aware of the ingredients of

1 Section 300 defining culpable homicide amounting to murder,

it would be worthwhile to recollect the exceptions therein

specially exception 4 to Section 300 I.P.C. which lays down

when culpable homicide does not amount to murder and may

be quoted for facility of reference:

"Exception 4 to Section 300. -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."

9. It is undoubtedly true that application of

exception 4 depends upon the facts and evidence in a given

case and although there are innumerable case laws and

commentaries on the subject, the courts more often than not

have to keep wondering into the wilderness of facts as to

whether a given case would fall under Section 302, I.P.C. or

would fall under Section 304 Part-I or II of the I.P.C.

10. The question under the facts of this case once

again arises whether the conviction of the appellant-Ajit Singh

is fit to be sustained under Section 302 of the I.P.C. or it

would be a fit case of altering the conviction and sentence

1

from 302 I.P.C. to 304 Part-I. In this context, it is noticed that

the deceased Laxmi Devi and her son Rajiv @ Raju PW-7

along with Nirmal Kaur were cutting fodder from the field of

appellant-Ajit Singh when Ajit Singh and Laxmi Devi started

quarrelling with each other as Ajit Singh complained that they

have been illegally entering into his field for cutting fodder

causing damage to his field and spoiling the Kinnu crops.

Even as per the case of the prosecution, the deceased started

to abuse Ajit Singh which provoked him to order his servant

Anil Kumar to bring Kassi (spade) to finish them. The place

of incident thus admittedly is of Ajit Singh wherein Ajit Singh

ordered Anil Kumar to bring Kassi and then asked him to

catch hold of Laxmi Devi so that he may do away with her life.

Ajit Singh after giving the deceased a push, is alleged to have

given two blows on the neck of the deceased at which the

informant PW-7 raised an alarm shouting "mar ditta mar

ditta" . PW-6 thereafter chased the appellant who is said to

have run towards the accused-appellant but the appellant

went towards his kothi situated in the same garden along

with the spade smeared with blood and his servant Anil

1

Kumar (since acquitted) also ran away from the spot. The

deceased thereafter was taken to the hospital and after three

days of treatment died on 25.10.1996 at about 4.35 p.m.

11. Thus, from the prosecution story itself it

emerges that when the deceased was cutting the grass for

fodder in the field of Ajit Singh, Ajit Singh was not armed

with any weapon and it is only when the deceased hurled

filthy abuses to the appellant, he directed his servant Anil

Kumar to bring a Kassi and ordered him to catch hold of the

deceased after which he gave two blows on the neck of the

deceased as a result of which she died on the 4th day of the

incident.

12. Thus on perusal of the evidence on record, it

is clear that the incident happened on the spur of the

moment and was not a premeditated assault on the deceased.

Nevertheless, the appellant had inflicted grievous injury on

the neck of the deceased but she did not die instantly and was

taken to the hospital where treatment was given to her for

three days and finally she succumbed to the injury. Hence, it

can be logically and reasonably inferred that the accused-

1 appellant although inflicted grievous injury on the neck of the

deceased and gave two blows, the assault was not the result of

pre-planning or pre-meditated assault and the same did not

result in instantious death of the deceased but she was taken

to the hospital for treatment where she succumbed to the

injury after four days of the incident.

13. Thus, the appellant no doubt inflicted the

injury on the deceased with the intention of causing such

bodily injury which could result in her death and in that view

of the facts and circumstance, knowledge will have to be

attributed to him that he inflicted injury on the deceased to

cause death of the victim which was sufficient in the

ordinary course of nature to cause death. In that event, he

although will have to be held guilty of the offence of murder in

view of the ingredients of the offence given out under Section

300 of the I.P.C., it cannot be ruled out that the case of the

appellant in view of the genesis and manner of occurrence

would fall under exception 4 of Section 300 and hence

would be liable for conviction under Section 304 Part-I for the

reason that it cannot be held with certainty that he

1

undoubtedly had the intention to kill and not merely to cause

grievous hurt. In support of this view, it would be relevant to

refer to the case of Patel Rasiklal Becharbhai Vs. State of

Gujarat, AIR 1992 SC 1150, wherein this Court had been

pleased to hold that inflictment of the injury on the vital part

of the body with the agricultural instrument by the enraged

accused in a sudden quarrel cannot be held to have been

caused intentionally.

14. In order to hold whether an offence would fall

under Section 302, or 304 Part-I of the I.P.C., the courts have

to be extremely cautious in examining whether the same

falls under Section 300 of the I.P.C. which states whether a

culpable homicide is a murder, or it would fall under its five

exceptions which lays down when culpable homicide is not

murder and in this category further lays down that culpable

homicide is not murder if the offender whilst deprived of the

power of self-control by giving sudden provocation causes

the death of the person who gave the provocation, or causes

the death of any other person by mistake or accident.

1 15. While examining the case of the appellant in

the light of the settled legal position that culpable homicide

would not amount to murder if the offender was deprived of

the power of self-control on account of grave and sudden

provocation, I am of the view that the appellant's case will

have to be treated to be a case falling under the 4th exception

of Section 300 and hence would be a case under Section 304

Part I of the Indian Penal Code for more than one reason

deduced from the evidence on record. In the first place, the

deceased Laxmi Devi had been cutting grass for fodder in the

field of the appellant-Ajit Singh and when Ajit Singh

reprimanded the deceased and her companion not to spoil his

Kinnu crop, the deceased started altercation with the

appellant and abused him which provoked the appellant-Ajit

Singh to order his companion Anil Kumar (since acquitted) to

bring Kassi (spade) which instruction was carried out by Anil

Kumar and thereafter Ajit Singh inflicted two blows on the

deceased Laxmi Devi. However, she did not die instantly and

was taken to the hospital where she underwent treatment for

four days and finally succumbed to the injuries. From this it

2

can be safely inferred that although the appellant-Ajit Singh

had the intention and knowledge to cause grievous injury on

the deceased which could have resulted into the death of the

deceased, yet it cannot be inferred without doubt that the

intention of the appellant-Ajit Singh was necessarily to cause

death and not merely to cause grievous hurt as he did not

inflict repeated blows on the deceased and the deceased in

fact had survived for four days after the assault. In addition

to this, it has also come in evidence that PW-6/informant had

chased the appellant but the appellant did not pursue by

entering into further scuffle with the prosecution party.

Besides this, the case of the prosecution regarding common

intention to commit murder already stands negatived by the

High Court vide the impugned judgment and order as the plea

of common intention to commit murder is no longer existing

since the co-accused Anil Kumar was acquitted of the charge

under Section 302/34 I.P.C. by the High Court. Thus, the

common intention to kill the deceased will have to be treated

as missing in the prosecution case and only individual liability

of the appellant giving fatal blows will determine whether the

2

charge would be sustained under Section 302 I.P.C. or it

would fall under 304 Part-I of the I.P.C.

16. On an analysis of the case of the prosecution

in the light of the evidence on record, I am clearly of the view

that the appellant's conviction and sentence under Section

302, I.P.C. cannot be sustained but considering the intensity

and gravity of the assault which led finally to the death of the

victim Laxmi Devi he would certainly be held guilty under

Section 304 Part-I, I.P.C. and hence I deem it just and

appropriate to set aside the conviction and sentence of the

appellant under Section 302, I.P.C. and the same is altered to

his conviction under Section 304 Part I, I.P.C. Accordingly,

the sentence of life imprisonment shall be reduced to a period

of ten years under Section 304 Part-I of the I.P.C. Thus, the

appeal stands partly allowed to this extent.

............................J

(Gyan Sudha Misra)

New Delhi

September 1, 2011

2

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2094 OF 2008

AJIT SINGH .. APPELLANT(S)

vs.

STATE OF PUNJAB .. RESPONDENT(S)

O R D E R

In view of the divergence in views,

the Registry is directed to place the matter

before the Hon'ble Chief Justice of India for

placing the matter before a larger Bench.

.................J. (HARJIT SINGH BEDI)

....................J. (GYAN SUDHA MISRA)

New Delhi, September 1, 2011.