Balbir Singh vs State (Delhi Administration)
1990 Latest Caselaw 306 Del

JUDGMENT

Malik, J.

(1) On the night intervening 30th and 31st July 1983 one Kewal Kishan was done to death by the appellant at about 1-30 A.M."while the deceased was sleeping on a col spread outside his house No. 2/21, Vijay Nagar, Delhi. At the same time the appellant had also caused injuries to his cousin sister Kumari Seema, daughter of Jagjit Singh. This, was done pursuant to an attempt to kill her. The weapon of offence , used is sword Ex. P-14, recovered pursuant to a disclosure statement made by the appellant before Shri Harnath Singh,Sub-lnspector,(P.W. 19).The F.I.R. was lodged by Ranjit Kumar, brother of the deceased, who claimed to have seen the appellant attacking. Kumari Seema with a sharp edged weapon and then running away from the scene. Simultaneously, be .also found his brother Kewal Kishan having been murdered. Jagjit Singh, father of Kumari Seema. and Ranjit Kumar, brother Of the deceased, tried to apprehend the appellant but did not succeed. Ranjit Kumar also informed the police that on that very night a quarrel had taken place between the appellant and the deceased on spreading of cot. At the time of the incident Kumari Seema along with her mother were sleeping on separate cots outside their house No. 3/23, Vijay Nagar, Delhi. The appellant was found guilty by the learned Additional Sessions Judge and sentenced to imprisonment for life under Section 302 Indian Penal Code He was also found guilty under Section 507 Indian Penal Code and was awarded five years' rigorous imprisonment on this count. The sentences, however, were directed to run concurrently.

(2) At trial the prosecution examined a number of witnesses. The testimonies of Public Witness I Ranjit Kumar and his brother-in law Sushil Kumar (P.W. 8) have not been relied upon by the learned Additional Sessions Judge. The learned Additional Sessions Judge has given proper and cogent reasons for refusing to place any reliance on their testimony and we find no scope for disturbing the same. Reliance by the learned Additional Sessions Judge has been placed on the testimony ofP.W.5 Kumari Seema and her father Jagjit Singh (P.W.6). The conclusion of guilty is also founded on the circumstantial evidence, i.e. a letter Ex.P-12 written by the appellant and found on his cot soon after the incident and also recovery of the sword Ex. P-14 made pursuant to a disclosure statement made by the accused. Dr. Bharat Singh (P.W. 7) after seeing the weapon of the offence has also opined that the injuries sustained are possible with this weapon. According to him, the injuries noticed on the person of the deceased were sufficient in the ordinary course of nature to cause death.

(3) The cause of death of the deceased .and the injuries sustained by the deceased and Kumari Seema are not in dispute. We-do not therefore, purpose to go into this - aspect. Mr. Sud. learned counsel for the appellant, submits that this case presents some special features inasmuch as even if the. prosecution story and evidence is .relied upon, its dissection would indicate that the offence was committed by the appellant while having lost control on himself and on a sudden and grave provocation.

(4) Kumari Seema (Public Witness . 5) has testified that .she could not get sleep on the night of the incident due to hot and hostile weather and she saw the appellant coming out of the house with a sword and inflicting blows on the deceased. According to her, the appellant thereafter came towards her but she raised an alarm which attracted her father Jagjit Singh (P.W. 6) Ranjit Kumar and Sushil Kumar. The appellant had meanwhile struck a blow with the sword on her neck and had escaped. She further slates that the appellant was chased by all the three aforesaid persons but they did not succeed in apprehending him. According to her, in the evening of 30th of July when the deceased wanted to spread his cot near the corner of her house, a quarrel had taken place between the appellant and the deceased as the appellant bad objected to the action of the deceased of spreading his cot near the corner of her house and had asked the deceased to spread his cot in front of his own house which the deceased did. She admits not to have raised any alarm when the appellant inflicted injuries on the deceased and says that she did so only when the appellant proceeded to attack her.

(5) Public Witness 6 Jagjit Singh father of Kumari Seema, has deposed that on being awakened by the alarm raised by his daughter he came out of his room and saw the appellant inflicting a blow on his daughter with a sword. He also saw the accused proceeding towards her from the place where the cot of the deceased was spread. The accused, according to him, was based by him, Ranjit Kumar (P.W. 1) and Sushil Kumar (P.W. 8) but the appellant succeeded in escaping. ' According to him, on the arrival of the police the sheath of the sword and a hand-written note by the appellant in Gurmukhi marked Ex. P-12 were found on the cot of the appellant. He also deposed that this note Ex. P-12 is in the hand-writing of the appellant and that the identifies his hand writing. In respect of the genesis of the quarrel that took place between the appellant and the deceased in the evening of 30th of July be has affirmed what his daughter Kumari Seema, has stated.

(6) Before proceeding further in the matter some more facts need to be noticed. Admitted case of the parties is that the appellant who is a nephew of Jagjit Singh (P.W. 6) bad come to reside with him from Punjab a few months back and on the night of the incident he together with Jagjit Singh and his sons were sleeping inside their rooms. Only Kumari Seema and her mother were sleeping outside in front of their house while the deceased had spread his cot and was sleeping outside his house. The sword used in the commission of the crime admittedly belongs to Public Witness 6 and according to him was hung in the room.

(7) At this stage we may also notice contents of the hand-written letter Ex. P-12, proved to be in the hand-writing of the appellant. The proof that it is in the hand writing of the appellant is furnished by Jagjit Singh (P.W.6) uncle of the appellant and by the report of Shri S.L.Mukhi, the expert in the Central Forensic Science Laboratory. The exact English transaction is asunder: "BIRA(Brother), Nobody should at all involve my uncle and aunt in the proceedings I myself have committed-this murder. I saw. some happening. Thereupon I could not tolerate it. For this reasons, I have committed this murder. sd/- . .. Murderer (Balbir Singh Dhira)'

(8) We are in complete agreement with the contention of Mr. Sud that the prosecution has to stand on its own legs. We are also in agreement with him that the accused need not in terms set up a defense of sudden and grave provocation and if such a view can reasonably and properly be founded on the prosecution evidence then the accused is entitled to the benefit thereof. Mr. Sud wants us to consider certain admitted facts to arrive at a conclusion that the crime was in fact committed on a sudden and grave provocation. The facts which he wants us to consider in this regard may be noticed which are- that the appellant on the evening of 30th July 1983 had objected to the deceased spreading his cot in the proximity of Kumari Seema. According to him. this could have happened only due to the appellant having seen some sort of affair between the deceased and Kumari Seema. It is also urged that the letter Ex. P-l2 written by the appellant does make mention of something which is unpalatable to the appellant and it shows that he had seen something happening between the deceased and Kumari Seema which he could not tolerate. Mr. Sud further urges that admittedly the appellant had no enmity with the deceased excepting what is reflected in the letter Ex. P-12 and this is the only reason for the appellant to take resort to this extremestep. His contention further is that it is for this reason that the appellant also attempted to kill his sister Mr. Sud further submits that in fact having seen some affair between his sister and the deceased the appellant went out of his mind and ie is this sense of shame which is haunting the appellant. He submits that there was no preparation for committing the crime and the weapon was available in toe house. He wants the court to consider as to why Seema pretends sleep though she claims that she was awake and also to consider as to why she was awake at that late hour of the night. According to Mr. Sud this does provide an indication that the appellant had seen something Alternatively, it if submitted that if she were awake she would have raised an alarm right at the moment the accused was in the process of killing the deceased.

(9) Before we advance our reasons for not being swayed by these submissions of Mr. Sud, we may notice the case law cited by Mr. Sud in support of his contention that this is a case where the appellant .is entitled to Exception I to Section 300I.P.C. as according to him the prosecution evidence itself makes out a case of sudden and grave provocation.

(10) In The State of Karnataka v. Kamalaksha,1978 Criminal Law Journal 290, it has been held that "the test for sudden and grave provocation is whether a reasonable man, not a hot-tempered or hyper-sensitive or unusually excitable and pugnacious person-belonging to the same class of society as the accused and placed in the situation in which the accused was placed, would be to provoked as to lose his self-control. No abstract standard of reasonableness can be laid". Relying on the aforesaid observations Mr.sud has appealed to us to judge the conduct of the appellant from his standard in life and spine if the appellant could reasonably be found to have been provoked after seeing something happening between his sister and the deceased, in our view. the facts of the aforesaid case are totally different in as much as in that incident it was proved that before the commission of crime the deceased was constantly hurling abuses on the accused for two and half hours.

(11) Reliance on Hanse Singh v. The State of Punjab , in our view, is also misplaced as in that case the accused had seen the deceased committing sodomy with his son as a result of which he lost self control Same is true in respect of the case re : Vadivel Padavachi. 1972 Criminal Law Journal 1641. In that case the accused knew about the illicit relations of his wife with the deceased but the sudden and grave provocation was provided when he found his wife almost naked with the deceased on the night of the incident in his room. Pacts of the case Akhtar v. State, 1964(1) Criminal Law Journal 617 (Vol. 68, C.N.190) are also different.

(12) We would therefore like to point out that in criminal cases there can he no precedent. Whether the appellant is entitled to the benefit of Exception I to Section 300 I.PC. will always have to be judged by reference to the facts and circumstances of each case It all depends on the investigation by the court based on the facts of the case, whether the offender reasonably or normally, or properly as an average person in the position and the circumstances of the offender may be expected to do until the point of time at which the offender is actually deprived of his power of self-control as observed in Criminal Law Journal 1964 page 617 (supra).

(13) In the present case no doubt the appellant is a semi-literate villager It is also borne out from the record that he has seen some affair going on between the deceased and his sister though there is no indication either in evidence or in his note Ex. P-12, that he had seen something on the night of the incident. It is also true that he had no previous enmity with the deceased and the only quarrel between him and the deceased took place on the evening of 30th of July 1983 when he objected to the spreading of cot by the deceased near the cot of Kumari Seema. It is also true that due to some sense of .shame he also attempted to kill Seema, his cousin sister. All these facts, however, individually or collectively, in our view, do not provide a foundation that the crime was committed by the appellant due to sudden and grave provocation. The accused has not pleaded this defense and, in our view, the facts, evidence and circumstances surrounding this case do not justify this conclusion.

(14) At the time of the commission of crime, due to something lurking in his mind the appellant was wide awake. He wrote the note Ex. P-12 saying like a normal person that his uncle and aunt should not be blamed for this crime. The deceased was sleeping on his cot in front of his own house Had the deceased been awake like Kumari Seema, he would either run away or offer resistance and raise an alarm. No such thing has happened leading to a reasonable belief that the deceased was done to death while he was asleep. The evidence further reveals that Kumari Seema was lying on her own cot She has explained that she was awake as it was a hot night and she could not get sleep We believe in it because it is she who has actually raised an alarm which attracted her father and others She has not been asked to explain as to why she failed to raise an alarm when she witnessed the deceased being attacked though she admits that she raised no such alarm at that stage. It may be that the appellant had seen something taking place between the deceased and his sister earlier and his belief was strengthened when the deceased on that night attempted to spread his cot near the cot of Seema. The very fact that he objected to it indicates that it was earlier to this day 'hat the appellant might have been something. On the night of the incident, according to the evidence, the appellant had seen nothing. It seems to us that due to the sense of shame which was lurking in his mind the appellant on that night decided to avenge and take the life of both the deceased as well as his sister Kumari Seema. That is the only possible' explanation for the appellant being awake in his room at that hour of the night and leaving his room with the sword and killing the deceased while he was in sleep and also attempting to kill Kumari Seema. In our view, the facts, evidence and circumstances of this case leave no scope for the conclusion that there was any sudden and grave provocation The expression "sudden and grave provocation" means that something grave must take place immediately before the incident leaving of time for the offender to deliberate as to how he should conduct himself. In such a situation here is no time for the offender to think. For these reasons, we do not find any material in this case which can mitigate the crime committed by the appellant. The appeal as such is dismissed and the convictions and sentences under appeal are confirmed. We may note that the learned Additional Sessions Judge has wrongly given benefit of Section 428 Criminal Procedure Code . to the appellant That of observation of the learned Additional Sessions Judge is not legal and we do not affirm that part of the judgment.