RAJINDER SINGH Vs STATE OF HARYANA
Bench: FAKKIR MOHAMED IBRAHIM KALIFULLA,ABHAY MANOHAR SAPRE
Case number: Crl.A. No.-001039-001039 / 2014
Diary number: 30462 / 2013
Advocates: BALAJI SRINIVASAN Vs
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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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