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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.   

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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  

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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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