Supreme Court of India
MOHINDER PAL AND OTHERSversusSTATE OF J & K
- Citation
- 2023 INSC 26
- Decided
- 12 January 2023
- Disposal
- Case Partly allowed
Holding
The prosecution failed to prove murder under Section 302 RPC, and the convictions were reduced to culpable homicide not amounting to murder under Part‑I of Section 304 RPC.
Summary
The case involves the death of two young men, J and M, who were allegedly detained and assaulted in the house of accused Lal Chand and his sons. The trial court convicted five of the accused under sections 302, 148 and 149 of the Ranbir Penal Code, while acquitting two; the High Court upheld these convictions. On appeal, the Supreme Court noted contradictions in the dying declaration and witness testimonies, and highlighted the prosecution’s failure to explain injuries sustained by the deceased accused Lal Chand. The Court held that the accused could have acted under grave and sudden provocation, invoking Exception I to Section 300, and therefore the prosecution did not prove murder beyond reasonable doubt. Consequently, the convictions under Section 302 were reduced to culpable homicide not amounting to murder under Part‑I of Section 304, and the appeal was partly allowed.
Issues considered
- Whether the prosecution proved the offence of murder under Section 302 RPC beyond reasonable doubt.
- Whether the accused are entitled to the benefit of Exception I to Section 300 RPC on the ground of grave and sudden provocation.
- Whether the contradictions in the dying declaration and witness statements create reasonable doubt.
- Whether the conviction under Section 302 should be reduced to culpable homicide under Section 304 Part‑I.
Legislation cited
- Ranbir Penal Codes. 148, s. 149, s. 300 Exception I, s. 302, s. 304 Part I, s. 307, s. 342, s. 382
Subjects
murderculpable homicidegrave and sudden provocationexception to murderprivate defencebenefit of doubtdying declarationRanbir Penal CodeSection 300 Exception ISection 302Section 304
Judgment
[2023] 1 S.C.R. 375 375
MOHINDER PAL AND OTHERS A
v.
STATE OF J & K
(Criminal Appeal No.1863 of 2010)
JANUARY 12, 2023 B
[B. R. GAVAI AND M. M. SUNDRESH, JJ.]
Ranbir Penal Code – s.300 Exception I, s.302 and Part I of
s.304 – Grave and sudden provocation – Death of two persons, ‘J’
and ‘M’ – Seven accused – Allegation that accused No.1 and his
C
sons forcibly detained ‘J’ and ‘M’ in their house and assaulted them
which led to their death due to injuries – Sessions Judge acquitted
accused nos.5 and 6 but convicted accused nos.1 to 4 and 7 u/s
302, 148 and 149 of RPC – High Court upheld the conviction –
Accused no.1 died during pendency of appeal while accused no.2
went absconding – On appeal by accused nos.3, 4 and 7, held: D
From the materials placed on record, it appears that the prosecution
has not come with clean hands and has attempted to suppress the
genesis of the incident – Contradictions in dying declaration of ‘J’
as well as in the evidence of P.W.1 and P.W.2 as to in what
circumstances the two deceased went to the house of the accused
E
persons – Further, accused No.1 also received injuries in the incident
– Prosecution failed to explain the injury sustained by accused No.1
– It was the specific case of the accused No.1 that two persons had
come to his house and they assaulted him with a lathi – The
possibility that the accused persons enraged by the assault on
accused No.1 whilst deprived of the power of self control, by grave F
and sudden provocation, attacked ‘J’ and ‘M’ resulting in their death
cannot be ruled out – Appellants (accused nos. 3, 4 and 7) entitled
to benefit of doubt in view of Exception I of s.300 RPC – Prosecution
failed to prove the case u/s.302 RPC beyond reasonable doubt –
Conviction and sentence imposed upon appellants u/s.302 RPC
G
converted to the one under Part-I of s.304 RPC.
Partly allowing the appeal, the Court
HELD:1. From the materials placed on record, particularly,
the Post-Mortem Report, it cannot be disputed that the death of
the deceased was homicidal. [Para 10][380-H] H
375
376 SUPREME COURT REPORTS [2023] 1 S.C.R.
A 2. The place of occurrence is the house of accused persons.
The versions as to why the deceased ‘J’and ‘M’ as well as P.W.1
went to the house of the accused persons are varying. As per the
version of P.W.1, he had gone there in search of labourers and
thereafter he was caught by the accused persons since there was
a dispute with regard to loan amount of Rs.50/. As per the dying
B
declaration of deceased ‘J’, deceased ‘J’ and ‘M’ had gone there
to collect grass (fodder). Whereas as per the evidence of P.W.2,
when he was going to Jagatpur to buy bidis he met P.W.1 and
both of them went to the Gali of the accused persons. The I.O.
has admitted that he did not make investigation as to how accused
C No.1 (since deceased) had received injuries. It is the specific
defence taken by accused No.1 (since deceased) that while he
was lying on the bed in his room, two persons entered his room
and one of them gave a lathi blow on his head as a result of which
he started bleeding and became unconscious because of the
fracture.[Paras 16 and 17][382-D-G; 383-A-B]
D
3. From the materials placed on record, it appears that the
prosecution has not come with clean hands and has attempted to
suppress the genesis of the incident. There are contradictions in
the dying declaration as well as in the evidence of P.W.1 and P.W.2
as to in what circumstances the deceased ‘J’ and ‘M’ went to the
E house of the accused persons. The prosecution has failed to
explain the injury sustained by accused No.1 (since deceased). It
is the specific case of the accused No.1 (since deceased) that two
persons had come to his house and they assaulted him with a
lathi. The possibility that the accused persons enraged by the
F assault on accused No.1 (since deceased) whilst deprived of the
power of self control, by grave and sudden provocation, attacked
the deceased-‘J’ and ‘M’ resulting in their death cannot be ruled
out. The appellants are entitled to benefit of doubt in view of
Exception I of Section 300 of the RPC. As such, the prosecution
has failed to prove the case under Section 302 of the RPC beyond
G reasonable doubt. The conviction and sentence imposed upon
the appellants under Section 302 RPC is converted to the one
under Part-I of Section 304 of the RPC. [Paras 18, 20 and 21][383-
B-C; 383-G-H; 384-A-B]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
H No.1863 of 2010.
MOHINDER PAL AND OTHERS v. STATE OF J & K 377
From the Judgment and Order dated 05.06.2009 of the High Court A
of Jammu & Kashmir at Jammu in Crl. A. No.9 of 1991.
Tripurari Ray, B. S. Billowria, Dinesh Kumar Garg, Dhananjay
Garg, Abhishek Garg, Gurmeet Singh, Advs. for the Appellants.
Shailesh Madiyal, Vaibhav Sabharwal, Akshay Kumar, Advs. for
the Respondent. B
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. Present appeal challenges the judgment and order dated 5th C
June, 2009, passed by the Division Bench of the High Court of Jammu
and Kashmir at Jammu (‘High Court’ for short) in Criminal Appeal No.
09 of 1991, thereby dismissing the appeal filed by Appellants-accused
and confirming the order of conviction and sentence awarded on 23rd
March, 1991 by learned Sessions Judge, Kathua (‘Sessions Judge’ for
D
short) in Trial Case No. 89/1990.
2. The facts leading to present appeal are as under:
i. On 16th May, 1990, Police Station, Kathua (‘Police Station’
for short) at about 12 noon received reliable information
E
that accused No.1-Lal Chand (since deceased) and his sons
were assaulting two young persons, who were forcibly
detained by them in their house situated in Jagatpur, Tehsil
Kathua. An entry was made regarding the same in Daily
Diary Register. On receipt of said information, Head
Constable-Raj Mal accompanied by constable Chaman Lal F
and Tirath Singh reached the house of the accused-
appellants, they found that Manjit Kumar and Jaswinder
were seriously injured and were found lying unconscious in
one of the rooms. They were moved to District Hospital,
Kathua for providing them immediate medical aid. Sub- G
Inspector Basant Singh reached the hospital and recorded
the statement (Exh.PW-BS) of Jaswinder in presence of
Dr Renu Jamwal, who declared him fit to give the statement.
On the basis of statement of Jaswinder (EX.PW-BS) First
Information Report (‘FIR’ for short) No. 213/90 was H
378 SUPREME COURT REPORTS [2023] 1 S.C.R.
A registered under section 307/382/342/148/149 of the Jammu
and Kashmir State Ranbir Penal Code (‘RPC’ for short) at
the Police Station. Later, Manjit Kumar and Jaswinder both
succumbed to their injuries. Thereafter, Section 302 of RPC
was added.
B
ii. In the statement (EX.PW-BS) of deceased Jaswinder it is
stated that, he and Manjit Kumar had gone to village
Jagatpur to get fodder. When they were walking in the
street abutting the house of the accused party, accused Lal
Chand, Bias, Sant Kumar, Roshan, Madan Lal along with
C other sons of accused No.1-Lal Chand (since deceased)
dragged them inside the house and assaulted them with
iron rods (Sariya), sickle (drat) and sticks. They were
provided water which was undrinkable/tasteless. Further,
accused-Sant Kumar stole Rs 300 from the deceased’s
D pocket.
iii. The prosecution’s case, in a nutshell, is that accused No.2-
Bias Raj had borrowed a sum of Rs 50 from the brother of
the deceased-Jaswinder i.e. P.W.1-Praveen Kumar and
P.W.1-Praveen Kumar had demanded the sum 3-4 days
E
prior to occurrence of the incident. On the day of the incident
P.W.1-Praveen Kumar had gone to village to get labourers.
When he was close to the house of the Appellants, he was
dragged inside and assaulted. Thereafter, they confined him
to fodder room and assaulted Manjit Kumar and Jaswinder.
F P.W.1-Praveen Kumar managed to escape the place of
occurrence. P.W.1-Praveen Kumar was also accompanied
by P.W.2-Hardev Singh and the occurrence of the above
incident was narrated to P.W.3-Chajju Ram and Krishan
Chand Lambardar.
G
iv. The Investigating Officer (‘IO’ for short) submitted final
report wherein it is stated that the above-mentioned incident
was preceded by assault and wrongful confinement of
P.W.1-Praveen Kumar by the Appellants when he had
come in search of labourers.
H
MOHINDER PAL AND OTHERS v. STATE OF J & K 379
[B. R. GAVAI, J.]
v. Accused No.1-Lal Chand (since deceased), Accused No.2- A
Bias Raj, Accused No.3-Mohinder Pal alias Roshan,
Accused No.4-Basant Kumar, Accused No.5-Om Prakash
alias Doctor, Accused No.6-Kishan Chand and Accused
No.7-Madan Lal were tried. Accused Nos. 2 to 6 are sons
of Accused No.1-Lal Chand (since deceased). On 16th B
August 1990, charges came to be framed by the Sessions
Judge for offences punishable under section 302, 148 and
149 of the RPC.
vi. The Appellants pleaded not guilty and claimed to be tried.
The prosecution examined as many as 19 witnesses to bring C
home the guilt of accused-appellants. Their defence was
that the Appellants exercised the right of private defence
as Accused No.1- Lal Chand (since deceased) was
assaulted by both the deceased who were hired as there
was litigation pending between the parties. At the conclusion D
of the trial, the Sessions Judge acquitted Accused No.5-
Om Prakash and Accused No.6-Kishan Chand and
convicted Accused Nos. 1 to 4 and 7 under section 302,
148 and 149 of the RPC and sentenced them to life
imprisonment with a fine of Rs. 500 each and three months
E
simple imprisonment in case of default in payment of fine.
vii. Being aggrieved thereby, Appellants-accused filed an appeal
before the High Court. Accused No.1- Lal Chand died
during the pendency of the appeal. Accused No.2-Bias Raj
was absconding and his presence could not be secured even F
after issuing Non-Bailable Warrant. On 5th June, 2009, High
Court vide impugned judgment, dismissed the appeal filed
by the Appellants and upheld their conviction and confirmed
the sentence awarded to them by the Sessions Judge.
3. Being aggrieved thereby the present Appeal was filed by G
Accused No.3-Mohinder Pal, Accused No.7-Madan Lal and Accused
No.4-Basant Kumar.
4. We have heard Mr. Tripurari Ray, learned counsel appearing
for the Appellants-Accused and Mr. Shailesh Madiyal, learned counsel
appearing on behalf of respondent-State of Jammu and Kashmir. H
380 SUPREME COURT REPORTS [2023] 1 S.C.R.
A 5. Mr. Tripurari Ray submits that the High Court and the Sessions
Judge have grossly erred in convicting the appellants-accused. Mr. Ray
submits that it was the deceased-Manjeet Kumar and Jaswinder who
trespassed into the house of the Appellants and assaulted Accused No.1-
Lal Chand (since deceased). Thereafter, the appellants exercised their
B right of private defence and assaulted the deceased. Further, most of
the injuries that were caused to the deceased were on their legs and not
with an intention to cause severe harm.
6. Mr. Ray further submits that on a perusal of the dying declaration
i.e. statement of deceased Jaswinder it would reveal that Dr. Renu
C Jamwal stated that the patient was not in a condition to sign the statement
due to swelling. The said statement does not state any details regarding
the mental/physical state of the patient whether he is of sound mind and
consciousness. Further, Dr. Renu Jamwal admitted that the patient was
‘minimum conscious and not fully oriented to place’.
D
7. Mr. Ray urged that the evidence of P.W.1-Praveen Kumar and
P.W.3-Chhajju Ram contradict the dying declaration on several points.
The dying declaration does not state that P.W.1-Praveen Kumar was
assaulted and confined in the house of the Appellants which is why both
the deceased went to the house of the Appellants instead it just states
E
that they were finishing their work and were assaulted by the Appellants.
8. Mr. Shailesh Madiyal appearing on behalf of the respondent-
state submits that the Sessions Judge and High Court have concurrently
held that dying declaration is a substantive piece of evidence. The same
F is attested by PW-SI Basant Singh and Dr. Renu Jamwal. It is also
corroborated by the evidence of the P.W.1-Praveen Kumar and P.W.2-
Hardev Singh. Thus, it cannot be simply brushed aside.
9. Mr. Madiyal further submitted that the right of private defence
should be exercised in reasonable manner. The nature of injuries would
G reveal multiple fractures and the weapons used would indicate that the
Appellants assaulted the deceased with intention to kill them.
10. We have perused the materials placed on record. From the
materials placed on record, particularly, the Post-Mortem Report, it cannot
H be disputed that the death of the deceased was homicidal.
MOHINDER PAL AND OTHERS v. STATE OF J & K 381
[B. R. GAVAI, J.]
11. Insofar as the incident is concerned, the prosecution mainly A
relies on the dying declaration of deceased-Jaswinder as well as the oral
testimony of P.W.1- Praveen Kumar, the brother of deceased-Jaswinder
and P.W.2-Hardev Singh. The dying declaration of deceased-Jaswinder
implicates accused No.1-Lal Chand (since deceased) as well as the
accused-appellants. It is to be noted that though in the dying declaration B
it is stated that there was no previous enmity between deceased-
Jaswinder and the accused appellants, from the evidence of P.W.1-
Praveen Kumar, it would reveal that an amount of Rs.50/- was taken by
accused Bias from P.W.1-Praveen Kumar and the dispute was with
regard to non-payment of the same. C
12. Though P.W.1-Praveen Kumar states that he went to village
Jagatpur to fetch labourers and the accused appellants caught him and
started beating him and thereafter tied him and confined him in a verandah,
there is no mention with regard to the same in the dying declaration of
deceased-Jaswinder. P.W.1-Praveen Kumar states in his evidence that D
after some time, when his brothers Manjit and Jaswinder were going in
the lane abutting the house of accused persons, the accused persons
assaulted them with Drat and Iron rod. According to him, when they, on
account of injuries, became unconscious, the accused persons dragged
them into the house. He states that he untied the rope and managed to E
escape. He further states that when he reached Teli More, he revealed
the occurrence of the incident to Kewal Krishna and thereafter they
went to Police chowki to lodge a report.
13. P.W.2- Hardev Singh in his evidence states that on the day of
the incident he was working on thresher, which was set near Jagatpur F
and when he was going to buy bidis, he met P.W.1-Praveen Kumar on
the way. He states that when they reached in Gali near the house of
accused persons, accused Omprakash, Mahendra, Madi, Bias, Sant,
Kashi and Gar caught P.W.1-Praveen Kumar and took him into the house
by giving him beatings. It is however to be noted that in the evidence of G
P.W.1-Praveen Kumar, there is no mention with regard to the presence
of P.W.2-Hardev Singh.
14. P.W.2-Hardev Singh submitted that thereafter he went back
and when he reached near Jagatpur canal, he met Manjit alias Babi and
H
382 SUPREME COURT REPORTS [2023] 1 S.C.R.
A Jaswinder and he informed them about the incident of P.W.1-Praveen
Kumar meeting him and being assaulted. He stated that thereafter he
along with both Manjit and Jaswinder went to the place of occurrence.
He stated that he was at a short distance from them. He stated that
when they reached in the Gali of house of the accused persons, the
B accused persons caught both the deceased as well and started giving
beatings. From there, he went to Lakhanpur and made a telephone call
to Parshotam Lal that deceased persons have been detained in the house
by accused persons. He states that when they reached the house of
accused persons, Police had already reached there.
C 15. P.W.3-Chhajju Ram, who resides near the house of accused
persons has turned hostile.
16. It is to be noted that the place of occurrence is the house of
accused persons. The versions as to why the deceased-Jaswinder and
D Manjit as well as P.W.1-Praveen Kumar went to the house of the accused
persons are varying. As per the version of P.W.1-Praveen Kumar, he
had gone there in search of labourers and thereafter he was caught by
the accused persons since there was a dispute with regard to loan amount
of Rs.50/.
E 17. As per the dying declaration of deceased Jaswinder, deceased
Jaswinder and Manjit had gone there to collect grass (fodder). Whereas
as per the evidence of P.W.2-Hardev Singh, when he was going to
Jagatpur to buy bidis he met P.W.1-Praveen Kumar and both of them
went to the Gali of the accused persons. He admitted that bidi shop
F was not in the same Gali. According to him, after P.W.1-Praveen was
assaulted by the accused persons, he went from there and on the way
deceased Jaswinder and Manjit met him and he informed them about
the incident of P.W.1-Praveen Kumar being assaulted and tied. After
that, all three of them went to the Gali where the house of the accused
G persons was situated. There the accused persons assaulted Jaswinder
and Manjit and he went away from there. It is further to be noted that
accused No.1-Lal Chand (since deceased) had also received injuries in
the said incident. The prosecution has failed to explain the same. The
I.O. has admitted that he did not make investigation as to how accused
No.1-Lal Chand (since deceased) had received injuries. It is the specific
H
MOHINDER PAL AND OTHERS v. STATE OF J & K 383
[B. R. GAVAI, J.]
defence taken by accused No.1-Lal Chand (since deceased) that while A
he was lying on the bed in his room, two persons entered his room and
one of them gave a lathi blow on his head as a result of which he started
bleeding and became unconscious because of the fracture.
18. From the materials placed on record, it appears that the
prosecution has not come with clean hands and has attempted to suppress B
the genesis of the incident. There are contradictions in the dying declaration
as well as in the evidence of P.W.1-Praveen Kumar and P.W.2-Hardev
Singh as to in what circumstances the deceased Jaswinder and Manjit
went to the house of the accused persons. The prosecution has failed to
explain the injury sustained by accused No.1-Lal Chand (since deceased). C
A suggestion was also given by the accused persons that the accused
were having enmity with Mohan Lal and Kewal Krishna and deceased
as well as P.W. 1-Praveen Kumar and P.W.2-Hardev Singh were sent
by them to assault accused No.1-Lal Chand (since deceased). No doubt
that this is denied. D
19. The defence of the accused appears to be that the deceased-
Jaswinder and Manjit as well as P.W.1-Praveen Kumar and P.W.2-Hardev
Singh were engaged by Mohan Lal and Kewal Krishna to take revenge
on account of previous enmity.
E
20. As already discussed herein above, the place of occurrence is
the house of accused No.1-Lal Chand (since deceased). Out of six
remaining accused, 5 are his sons. There are material contradictions as
to how and in what circumstances the deceased Jaswinder and Manjit
went to the house of the appellants. The version given in the dying
F
declaration as well as in the evidence of P.W.1-Praveen Kumar and
P.W.2-Hardev Singh are totally different. The prosecution has failed to
prove the injuries sustained by the accused No.1-Lal Chand (since
deceased). It is the specific case of the accused No.1-Lal Chand (since
deceased) that two persons had come to his house and they assaulted
him with a lathi. The possibility that the accused persons enraged by the G
assault on accused No.1-Lal Chand (since deceased) whilst deprived of
the power of self-control, by grave and sudden provocation, attacked
the deceased-Jaswinder and Manjit resulting in their death cannot be
ruled out. We find that the appellants are entitled to benefit of doubt in
H
384 SUPREME COURT REPORTS [2023] 1 S.C.R.
A view of Exception I of Section 300 of the RPC. As such, we are of the
considered view that the prosecution has failed to prove the case under
Section 302 of the RPC beyond reasonable doubt.
21. The conviction and sentence imposed upon the appellants under
Section 302 RPC is converted to the one under Part-I of Section 304 of
B the RPC. The appellants have already served a sentence of about ten
years, we, therefore, find that the sentence already undergone would
serve the purpose. The bail bonds of the appellants shall stand discharged.
22. The appeal is partly allowed in the above terms.
C
Bibhuti Bhushan Bose Appeal partly allowed.
(Assisted by : Shubhanshu Das, LCRA)
D
E
F
G
H
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