State Of Punjab vs Jagtar Singh & Ors

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 78 OF 2003

STATE OF PUNJAB ... Appellant(s)

Versus

JAGTAR SINGH & ORS. ... Respondent(s)

J U D G M E N T

SIRPURKAR, J.

1. This appeal is filed by the State of Punjab

challenging the judgment dated 17.10.1997 in Criminal Appeal

No. 319 of 1995 whereby the High Court, while partly

allowing the appeal, altered the conviction and sentence of

the appellants-accused from Section 302/34 IPC to Section

304 Part-I read with Section 34 IPC and sentenced them to

undergo rigorous imprisonment for five years each and to pay

a fine of Rs. 1,000/- each, in default of payment of fine

to further undergo rigorous imprisonment for one year.

2. The prosecution case, in short, is as under:-

Desa Singh, Jessa Singh and Gurnam Singh were

three brothers. On the night of 15.5.1993, Gurnam Singh,

resident of village Pakan, Police Station Sadar Fazlika,

District Ferozpur was sleeping in the threshing floor of his

wheat field for guarding the wheat. According to the

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prosecution, the accused persons came there at about 10 p.m.

in a drunken condition and took Gurnam Singh with them on

the pretext of serving him liquor. This was allegedly seen

by Santa Singh (PW5). Next day i.e. on 16.5.1993, in the

morning at 6 a.m., Desa Singh (PW4), brother of deceased

Gurnam Singh reached in the field to serve him tea. He did

not find Gurnam Singh there. On enquiry, he was told by

Santa Singh (PW5) of the adjoining field that last night at

about 10 p.m., the accused persons had taken him away. The

prosecution further alleges that on being told by Santa

Singh (PW5) that the accused persons had taken him away,

Desa Singh along with Santa Singh went to the residence of

accused Nishan Singh where they came to know that the

accused persons had killed Gurnam Singh and their sister

Paramjit Kaur by strangulation because Paramjit Kaur had

sexual relations with Gurnam Singh. Thereafter, Desa Singh

along with Santa Singh went for lodging the report of

murder of Gurnam Singh and Parmajit Kaur. SI Talwinderjit

Singh met them on bus stand to whom they reported the

matter. That is how the FIR came to be recorded on

16.3.1993 at about 9.15 a.m. It is significant to note

that a copy of this FIR reached the area Magistrate only

on 16.3.1993 at 10.30 p.m.

3. Upon lodging of FIR, SI Talwinderjit Singh

(PW7) went to the house of accused at "Dhani Gowarewali" in

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village Pakkan and found the dead bodies of Gurnam Singh

and Paramjit Kaur lying in the courtyard of house of

accused. It is on that basis that the investigation

started. During investigation, the prosecution claims to

have found an eye-witness Mohan Singh (PW6) who, on the

night of 15.5.1993 is alleged to have seen the murder of

Gurnam Singh and Paramjit Kaur by strangulation by putting

a rope around their neck by all the accused persons but had

never bothered to report the matter to any of the family

members of the deceased Gurnam Singh though admittedly he

himself was the first cousin of the deceased Gurnam Singh.

He ultimately became available for recording the statement

only on the third day. He has been disbelieved by both the

courts below.

4. Trial court accepted the evidence of Santa

Singh (PW5) to the effect that he had last seen the

deceased Gurnam Singh with all the four accused when Gurnam

Singh was taken away by them on the pretext of serving him

liquor. The trial court also accepted the fact that

thereafter the dead bodies of Gurnam Singh and Paramjit Kaur

were found in the courtyard of house of accused. It did

not accept the defence suggestion that accused Nishan Singh

was living separately from his other three brothers. The

trial court also believed the Chemical Analyser's report

showing semen was found on the private parts of Paramjit

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Kaur.

5. The defence at the trial was novel. In his

statement under Section 313 Cr.P.C., accused Nishan Singh

stated that on the night of 15.5.1993, he heard some

muffled sound from the court yard when he was sleeping on

the roof of his house. He then corrected himself and said

that the sound was coming from the room. When he went there,

he saw Gurnam Singh strangulating his sister Paramjit Kaur

and in order to save Paramjit Kaur from the clutches of

Gurnam Singh, he picked up a rope lying nearby, put it

around the neck of Gurnam Singh and strangulated him. In the

meanwhile, Gurnam Singh had already strangulated his sister

Paramjit Kaur. The trial court did not accept the defence

of the accused persons and proceeded to convict them for the

offence under Section 302/34 IPC and sentenced each of them

to undergo imprisonment for life and to pay a fine of Rs.

1000/- each, in default to further undergo rigorous

imprisonment for one year.

6. In appeal, the High Court has discussed the

evidence of the all the witnesses threadbare. The High

Court found the evidence of Santa Singh (PW5) unreliable and

rejected the same. However, the High Court, on the basis

of the post-mortem report that semen was found in the

vaginal swabs of deceased Paramjit Kaur which were sent for

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chemical examination, came to the conclusion that it was

deceased Gurnam Singh who himself sneaked into the house of

the accused persons and must have had sexual intercourse

with Paramjit Kaur and on seeing them in a compromising

position, the accused persons must have killed them. On

this basis, the High Court came to the conclusion that even

if this was proved, it was a case of grave and sudden

provocation and as such it could not be a case of murder and

would come under Section 304 Part-I read with Section 34

IPC on the basis of first exception to Section 300 IPC.

Therefore, the High Court converted the sentence of the

accused from imprisonment for life to rigorous imprisonment

for five years with fine of Rs. 1000/- each. Hence, this

appeal by special leave by the State of Punjab.

7. Mr. Kuldip Singh, learned counsel appearing

for the State very strenuously argued that this was a clear

case of murder as there was no explanation offered by the

accused persons having found two bodies in the courtyard

of their house. Mr. Kuldip Singh further pointed out that

the High Court has erred in disbelieving the version of

Santa Singh (PW5). According to him, it was natural version

of Santa Singh (PW5), as on the date of occurrence, he was

guarding his threshed wheat crop in his threashing floor

which was situated near the threashing floor of Gurnam

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Singh. He had all the opportunity of watching the

happenings in the field of deceased Gurnam Singh. The

argument is incorrect. Had that been the case there was no

question of semen being found in the vaginal swabs of

deceased Paramjit Kaur. Secondly, considering the distance

between the field of deceased Gurnam Singh and the house of

the accused there was no necessity to take him upto their

house. He could have been done away with in the way only.

It was obvious that there was a sexual intercourse with

deceased Paramjit Kaur

which was not possible if the accused had taken deceased

Gurnam Singh with them.

8. We have carefully seen the evidence of Santa

Singh (PW5). However, we are not in a position to accept

the evidence of Santa Singh (PW5). In our view, Santa

Singh (PW5) in his evidence did not even mention that when

he accompanied Desa Singh (PW4) to the house of Nishan

Singh on the next morning, he saw the two bodies in the

courtyard

of the house of accused persons. Desa Singh (PW4) in his

evidence stated that on reaching the house of accused Nishan

Singh, he came to know that both Parmajit Kaur and Gurnam

were murdered by the accused persons. However, he also did

not state as to from where he came to know that they were

murdered. It is not a case of either Santa Singh (PW5) or

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Desa Singh (PW4) that they, in any way, entered the house

of the accused persons or talked to anybody. Again, we are

not satisfied with the explanation offered by the

prosecution for delay in sending the copy of FIR to the

Magistrate on 16..5.1993 at 10.30 p.m. whereas the same was

registered in the morning at 9.15 a.m.

9. Be that as it may, we do not find any error

in the approach of the High court in disbelieving the

evidence of Santa Singh (PW5). That would only give further

credence to the theory that Gurnam Singh must have sneaked

on the night of 15.5.1993 in the house of accused persons

and he must have had sexual intercourse with Paramjit Kaur

which might have been seen by the accused persons and in

the fit of

rage, they killed both of them on the spot. We do not find

any reason to differ with the conclusion arrived at by the

High Court that the offence was committed due to grave and

sudden provocation and would fall under first explanation to

Section 300 IPC and would amount to culpable homicide not

amounting to murder. Thus, the offence would be covered

under Section 304 Part-I read with Section 34 IPC.

10. Mr. Kuldip Singh, then strenuously urged that the

accused persons have been awarded only five years of

rigorous imprisonment and it is ridiculously less. He

pointed out that even according to the High Court, this

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would amount to honour killing which cannot be taken

lightly. The argument is undoubtedly correct. However,

considering that the incident in question took place in the

year 1993 and thus 18 years have passed. Further,

considering the fact that the accused persons had not even

crossed the age of 25 years at the time when the incident

took place and further considering the fact that they have

already undergone rigorous imprisonment for five years and

have come out of jail, we are not inclined to interfere

with the quantum of sentence and would choose to dismiss

this appeal. We order accordingly.

.....................J. (V.S.SIRPURKAR)

....................J. ( T.S. THAKUR ]

New Delhi, July 26, 2011