Santa Singh vs The State
1986 Latest Caselaw 94 Del

JUDGMENT

Malik Sharief-ud-din, J.

(1) Appellant, Santa Singh, now aged about more than 80 years, was charged by Miss Usha Mehra, the then Additional Sessions Judge, Delhi, for having committed the murder of his daughter, Surinder Kaur, on the night intervening 2nd and 3rd September, 1982, at 2 a.m. at Gurudwara Singh Sabha, Nai Basti, Narela. He was convicted under section 302 Indian Penal Code . and sentenced to undergo imprisonment for life.

(2) The facts are that on the date of incident the appellant along with his son Rajinder Singh, Public Witness 1, and his daughter, deceased Surinder Kaur, was residing in the aforementioned gurudwara. About two to three months prior to the date of the incident, his second wife, Smt. Harbans Kaur, deserted him and was living in adultery with one Subhash of Mongolpuri. She had also taken the deceased, her daughter, and Rajinder Singh Pw 1, her son, with her and they too had started living in the house of the paramour of their mother. About five to six days prior to the date of the incident, the appellant had brought back the deceased and Public Witness I and had lodged them in the gurudwara.

(3) The prosecution case further is that the appellant had an evil eye on his deceased daughter and had allegedly made overtures to her. This was being allegedly resented by the deceased who had threatened that she will disclose it to her mother. Appellant is alleged to have asked her not to do so, but the deceased had expressed her determination to inform her mother. On the night of the incident while the family was retiring for the night, the deceased is again stated to have told her father, the appellant, that she would disclose it to her mother. This is alleged to be the reason for the appellant for having done her to death by chopping her throat with a sword. On hearing cries Rajinder Singh, Public Witness I, was awakened. He found his father, the appellant, standing with a blood-stained sword in his hand besides the cot on which the deceased was sleeping. Fearing he might also be attacked, Rajinder Singh, Public Witness I, is alleged to have left gurudwara and rushed to the police station. On his way to the police station he met police personnel and returned to the scene of the incident where his statement Ex. P W1/A was recorded, which statement in fact forms the basis for F.I.R. recorded at 3-15 a.m. on the same night. The appellant was brought to the scene of incident by PWs 9, 10, 11 and 12 and was handed over to the police.

(4) Mr. Kakkar representing the appellant has frankly and fairly admitted that in view of the state of evidence both direct And circumstantial, there is hardly any scope- for assailing the conclusion that the appellant is connected with the commission of this crime. In his view, however, considering the peculiar circumstances of this case, the conviction and sentence should have been under section 304 and not under section 302 Indian Penal Code . We take up this contention for consideration, but before doing so it is necessary to know some more facts and circumstances.

(5) The cause of death, the injuries found on the person of the deceased, the weapon of offence used etc. is not in controversy. The appellant in his statement under section 313, Code of Criminal Procedure, has denied his involvement in the commission of this crime. We have, however, before us clinching evidence that the appellant did commit this crime. The support to this belief is provided by Rajinder Singh, Public Witness 1, appellant's son. He has in clear and unequivocal terms deposed that he saw the appellant with blood-stained sword immediately after he was awakened due to the cries of the deceased, and found that the throat of her sister had been cut. Since we are not inclined to believe in the motive for commission of this crime as put forward by this witness, we will discuss that part of his testimony separately.

(6) Corroboration to the evidence of Rajinder Singh, Public Witness 1, that the appellant committed this crime is provided by Babu Singh Public Witness 9, Sardar Gian Singh Public Witness 10, Sadhu Singh Public Witness 11, and Ranjit Singh Public Witness 12. All of them have gone on record deposing that soon after the commission of this crime, the appellant approached them for protection and also confessed before them that he has killed his daughter. The appellant is further supposed to have told them that he murdered his daughter as she was determined to live a life of scandal. A further corroboration to this part of the prosecution case is provided by the fact that blood-stained on the kurta of the appellant were found to be of group B - a blood group similar to that of the. deceased and also by the conduct of the appellant in running away from the gurudwara even though his daughter had died. There is indeed, no doubt, that he was brought back to gurudwara by PWs 9 to 12 and was handed over to police. There is as such very little scope for doubting the fact that the appellant is involved in the commission of this crime and we hold accordingly.

(7) That, however, is not an end of the matter. We are facing a very peculiar and, if we may say so, a unique situation in this appeal. When this appeal came up for hearing, we found that the age of appellant recorded during the trial was shown to be 80 years. In view of the nature of motive for the commission of this crime as put forth by Public Witness 1, we naturally, considering the age of the accused, entertained serious doubts about peculiar background in which this offence came to be committed. Out of that curiosity, we directed production of the appellant. When the appellant was brought before us, our doubts proved to be real. We noticed that the appellant is a fairly old man, his back is bent almost at 90 degree, he is a frail man and can hardly walk with the aid of a stick, his steps are shaky, his hands were trembling and his tongue is stammering. It may be that his. incarceration in jail for the last more than three and half years has also aggravated his present physical state, but the fact remains, that it is absolutely incorrect that a man so weak and so advanced in age could have an evil eye on his own daughter. His wife had deserted him only to live in adultery. He had rescued his children from her and from her paramour with the singular object of saving them from their evil influence and this he did despite the fact that both his children were opposed to it as they, for reasons best known to them, wanted to live with their mother in her lover's house. The appellant in fact brought them to avoid any further indignity and humiliation. The fact that children were opposed to leave their mother is again testified to by Public Witness 1, Rajinder Singh, appellant's son.

(8) Admittedly, appellant's age on the date of the incident was about 80 years. His greatest misfortune was that he had contracted second marriage with Smt. Harbans Kaur, whose age is not known-a marriage which dashed all his hopes and disrupted his family and peaceful life. However, considering the fact that his second wife Harbans Kaur was carrying on with her paramour, one Subhash, it is reasonable to conclude that she is perhaps far younger than the appellant, otherwise a lady who had given birth to five children would not normally disrupt her family and go to live in indignity. That the appellant had been deserted by his wife about three months prior to the incident admits of no doubt. This is also testified to by Public Witness 1 Rajinder Singh, who had also admitted that he and the deceased were rescued by the appellant from their mother and her lover despite their protests and that the appellant had expressed apprehensions that they might get spoiled. His testimony would also show that neither he nor the deceased had reconciled to this paternal move of the appellant. They wanted to live with their mother in the house of her lover. In all probability, this they were doing under the influence of their mother. In view of all these facts, it is difficult to believe the prosecution version that the appellant had an evil eye on his daughter and that the determination of the deceased to tell her mother about it had provoked the appellant to commit her brutal murder.

(9) This version to our mind that the motive for murder was one as alleged by the prosecution is the result of a thorough deliberations. The Fir in this case was registered on 3rd Sep., 1982 at 3.15 a.m. We, however, notice from the endorsement recorded on it that the Metropolitan Magistrate received it at 3 p.m. on 3rd Sep., 1982. That is almost after 12 hours. This delay is unexplained. The fact about the desertion of the appellant by his wife and the fact that he was apprehensive about the future of his children were attempted to be suppressed from the Court. There is in fact no investigation made into the fact as to why the appellant committed this crime. This coupled with the fact that there is undue and unexplained delay in sending the Fir to the Metropolitan Magistrate strengthens our belief that the motive part of the prosecution case was fabricated. In doing so, it appears that the prosecution found a very convenient tool in Public Witness 1 Rajinder Singh, who was playing in the hands of his mother, a mother whose interest was that the real background to the commission of crime should not surface, so as to make it difficult for the court to discover the state of mind of the appellant at the time of commission of this crime. The fact that the deceased was suspected to be of loose character by the appellant is even evidenced by PWs 9 to 12. In their statements under section 161. Code of Criminal Procedure, Pw Babu Singh, Public Witness 10 Gian Singh and Sadhu Singh Public Witness 11 had clearly stated that the appellant had told them that, even after he had brought the deceased back, one or two persons had started visiting her in gurudwara.

(10) We are not making use of these statements as that is not permitted. We are only making a reference to these to indicate that there was a feature to this crime which was not investigated. This, to our view, is unfair to the appellant. It is not that the investigating officer was not aware of it. There was positive evidence before him in that regard but still no attempt is made to find out the truth about it. If the cases are to be decided justly and fairly then all the material likely to affect the destiny of a person facing trial must be put up before the Court. For instance, if this had been done in this case, perhaps it would help the court in finding out as to what exactly was the real background in which this crime came to be committed. After all if a father who is interested in the welfare of his child, kills the child, there must be some very strong reason for him to adopt such an extreme and a drastic course. It is not as if the actors in respect of this background like Harbans Kaur and Subhash were not available, but despite that the investigating officer in his superior wisdom felt unconcerned about it. That appears to us to be very unfair and that has denied the Court of an opportunity to find out the real state of mind of the appellant at the time of commission of this crime. What is worst is that a far fetched and most improbable motive to commit this crime was fabricated deliberately and wantonly.

(11) That goes to strengthen our belief that even though the appellant committed this crime, the motive was something different than the one fabricated by the prosecution. The appellant admittedly had rescued the deceased and his son from the clutches of their mother and her paramour and this was done by him only to ensure that they are not spoiled and their future is secured. It was probably also done to spare himself of humiliation and indignity in the eyes of the society. It, therefore, appears to us that the deceased had become immoral due to the evil influence of her mother to the knowledge of the appellant and, in all probability, something happened on the night of the incident which provoked the unfortunate father, a victim of the circumstances, to take recourse to this extreme and unjustified course, and commit the cold blooded murder of his own daughter. We, therefore, believe that this murder was committed due to the intransigent attitude of the deceased who probably was determined to live an infamous life and that, in all probability, provoked the appellant to take this extreme step. The appellant definitely must have been passing through a mental turmoil or else there was no earthly reason for him to perpetrate this crime. All this we say despite the fact that the appellant has not taken this stand. If the cases are to be decided justly and fairly, then a duty is cast upon the Court to find out the truth on the basis of available material.

(12) In cases of homicides falling under any of the exceptions to section 300 Indian Penal Code ., the quantum of punishment must vary with the quantum of mitigation. For instance, the courts have exceptionally treated with compassionate consideration the intentional causing of death of a man committing adultery with the wife of the accused. One must inflict a sentence commensurate with the nature of offence and as the facts would justify. It will not be just to apply to ordinary standpoint view of reason, to the conduct of a man simmering and deprived of power of self- control. In the present case, the appellant must have felt humiliated as his wife was living in adultery and the deceased was also determined to go the same way. That is not to suggest that there is any justification in law for the brutal act committed to the appellant. Whatever we have said is only meant to point out the state of mind in which the appellant seems to have committed this crime. It seems to us that this offence was committed by the appellant in extreme anger while he was deprived of his normal mental faculties and power of self control due to the indignities to which he was subjected by the conduct of his wife and daughter. He must probably be overwhelmed by his internal mental turmoil. The mental background created by the previous acts of the victim can as well be taken into consideration, while judging whether the subsequent act could result in the loss of power of self control. That, however, is not to suggest that the present case falls under any one of the exceptions though there are circumstances justifying the belief that it was not a murder regarding which there was any premeditation.

(13) In our view, therefore, the offence seems to have been committed by the appellant in that state of mind. The injury inflicted on the person of the victim was intended and the knowledge that it is likely to result in death can surely be attributed to the appellant.

(14) Considering all the circumstances of the case we are of the view that the appellant is to be convicted though not under section 302 Indian Penal Code . but under section 304 Part I, Indian Penal Code . We accordingly set aside his conviction and sentence under section 302 Indian Penal Code and convict him under section 304 Part I, Indian Penal Code . and sentence him to undergo imprisonment for seven years. The appeal is dismissed with the aforesaid modification of conviction and sentence.