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                                            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