RAJINDER SINGHversusSTATE OF HARYANA

                         [2014] 12 S.C.R. 564


A                          RAJINDER SINGH
                                    v.
                        STATE OF HARYANA
                ·(Criminal Appeal No. 1039 of 2014)
                        DECEMBER 17, 2014
B
         [FAKKIR MOHAMED IBRAHIM · KALIFULLA AND
                ABHAY MANOHAR SAPRE, JJ.]

         Penal Code, 1860 - s. 300 exception 4, s. 304 Part-I/ -
C On facts, in continuation of the earlier quarrel, fire broke out
     in which the fire shots Were exchanged between both the
     parties resulting in the death of two on the complainant side
     and one on the appellant side- Conviction and sentence of
     the appellant uls. 302 for causing murder of two by the courts
D    below - Interference with - Held: Except a very sketchy
     unsupported FSL Report, no other acceptable evidence to
     show that the appellant was in any way responsible for killing
     of his own brother with the aid of his double barrel gun - On
     basis of the sketch drawn, FSL Report, evidence of the wife
E    of the appellant's brother, death of two on the complainant's
     side occurred due to the firing resorted to as part of self
     defence by the appellant - It would amount to culpable
     homicide not amounting to murder, which was committed
     without any pre-meditation in a sudden fight in the heat of
F.   passion upon a sudden quarrel and that the offender did not
     take un.due advantage or acted in a cruel or unusual manner,
     which WDUld normally fall under Exception 4 of Section 300
     - Thus, conviction modified to one u/s. 304 Part-II with the
     punishment of ten years - Since the sentence already
G    suffered by the appellant is more than sufficient, the appellant
     to be released if not required in any other offence - Arms Act
     - s.27.
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
   No. 1039 of 2014.
H·                        564
      RAJINDER SINGH v. STATE OF HARYANA                       565


    From the Judgment & Order dated 26.04.2013 of the High             A
Court of Punjab and Haryana at Chandigarh in Criminal Appeal
No. D-953-DB of 2008.

     Balaji Srinivasan, Vaishali Dixit, Mayank Kshirsagar,
Srishti for the Appellant.
                                                                       B
   . Vikas Sharma, Dr. Monika Gusain for the Respondent.

    The following Order of the Court was delivered

                           ORDER
                                                                       c
     1. 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            D
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          E
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           F
of the Arms Ac.t 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 him. However, other co-accused
Neeraj, was also implicated in the crime along with the                G
appellant and being a juvenile was dealt with by the Juvenile
Justice Board independently.

    2. 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   H
    566      SUPREME COURT REPORTS                (2014] 12 S.C.R.


A   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
8   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.

C        3. 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
D   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
E   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 firing along with his brother and other
    family members. One Bhupender stated to have lifted Su raj Mal
    and Shri Ram. The deceased got treatment at PGIMS, Rohtak
F   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
G   to be registered on 19.3.2002.

         4. 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 th.at
    as it may, according to the appellant on the fateful day i.e. on
H
      RAJINDER SINGH v. STATE OF HARYANA                  567


19.3.2003 in the evening his nephew Neeraj, the juvenile son A
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 B
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 c
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- 0
defence opened fire 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. E
 The appellant also claimed that after the occurrence, he went.
 to Police Station Sadar Rohtak narrated the whole irJcident 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 F
 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 G
 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 tiy the
 concerned Court.
                                                                 H
     568     SUPREME COURT REPORTS               (2014] 12 S.C.R.


 A        5. 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
   B 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 appellant in the Court of Judicial
     Magistrate, First Class, Rohtak, the FSL Report (Exhibit P.63),
•.·C 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.

         6. As against the above submissions, Mr. Vikas Sharma,
 D 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
 E 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
    Ne~raj having perpetrated the crime by fighting with Sandeep
    (PW.10) who was supported by appellant along with the
 F 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 offenc~ found
    proved against him does not call for interference.       '

 G      7. 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
 H in self-defence, the appellant was forced to use his double
      RAJINDER SINGH v. STATE OF HARYANA                         569


barrel licensed gun, and therefore, the conviction for the offence       A
under Section 302 or for the offence under Section 27 of the
Arms Act cannot be sustained. The appellant can 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.                                                                     B

      8. 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             C
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               D
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          E
and Krishari 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.
                                                                         F
     9. 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,              G
namely, PWs.9 & 10, Suraj Mal and Shri Ram, both deceased,
as well as PW.10 followed juvenile Neeraj to settle their 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
                                                                         H
    570       SUPREME COURT REPORTS            [2014] 12 S.C.R.


A 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
B
          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
c         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;
D         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-
E         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
F         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
G         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
H         type C/1 to C/6."
      RAJINDER SINGH v. STATE OF HARYANA                     571


      10. By relying upon the said Report contained Exhibit P.63,    A
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-Su raj Mal and Shri Ram as well as Krishan. It       B
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       c
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.
     11. One other relevant material evidence which is to be         D
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           E
resulted in the death of Suraj Mal, Shri Ram and Krishan
occurred.

      12. 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
                                                                     F
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       G
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       H
    572          SUPREME COURT REPORTS           (2014] 12 S.C.R.


A 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
B 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
C 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.

       13. Consequently, we are convinced that since the death
0 of  Suraj  Mal and Shri Ram had occurred due to the firing
  resorted to as part of his self-defence, the same would amount
  to culpable homicide not amounting to murder, which was
  committed without any pre-meditation jn a sudden fight in the
  heat of passion upon a sudden quarrel and that the offender
E 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
F 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,
G 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.

H   Nidhi Jain                                   Appeal Partly allowed.