Wrong case of converting conviction under S. 302 to 304 IPC by...

Wrong case of converting conviction under S. 302 to 304 IPC by Supreme Court

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Recently, the Supreme Court converted the conviction of an accused from offences under Sections 302 and 307 Indian Penal Code (IPC) to offences under Section 304 Part 1 and 307 IPC, and the sentence was reduced to the period already undergone from the sentence of life imprisonment. On a careful study of the said judgment, I am of the honest opinion that the said judgment is wrong and that the change of conviction from under Section 302 to under Section 304 was unwarranted in the facts of the case. Moreover, unfortunately, the reasons given by the Supreme Court do not justify such conversion of sections under which the accused was convicted. Let me analyse the reasons.

The case in issue is Gurpal Singh v. State of Punjab [Criminal Appeal No. 1145 Of 2016 (arising out of S.L.P (Criminal) No. 4877 of 2012)] which was decided on 2 December 2016 by a brief order (of 7 pages) by Justice Dipak Misra and Justice Amitava Roy.

In this case, the High Court of Punjab and Haryana at Chandigarh had concurred with the verdict of the Trial Court in convicting the appellant Gurpal Singh for the offence under Sections 302 and 307 IPC while acquitting the co-accused Harpartap Singh, his son. The appellant had been awarded sentence of life imprisonment and fine of Rs.5,000/- with default sentence under Section 302 IPC, and five years rigorous imprisonment and fine of Rs.2,000/- with default sentence under Section 307 IPC. Both the sentences were ordered to run concurrently. The High Court has concurred with the sentence as well.

Thus, there was a concurrent finding on conviction as well as sentence on the basis of facts and law. Usually, the Supreme Court does not interfere with the concurrent finding of facts by lower courts. Unfortunately, in the present case, even though the facts of the case clearly made out the offences for which he was convicted by the trial court and high court, the Supreme Court decided to interfere in the order of conviction as well as sentence, in my respectful opinion, without there being any justification in law or in facts for such interference.

Basic facts of the case are as under. It was alleged that over a lingering land dispute between the informant Gurdial Singh and the appellant, who are brothers, on 06.07.2002, while Jugraj, the son of the informant was in his fields, the appellant had hurled abuses to him. Jugraj having felt humiliated and anguished, on returning home, complained about the same to his father, the informant. The houses of the brothers were adjacent to each other. When the appellant returned home from his fields, the informant went to the terrace of the roof of his house and summoned the former to that of his. The appellant and his son Harpartap responded to the call whereafter informant enquired of the appellant as to why he had abused his son. This enraged the appellant and while arrogantly proclaiming that he was not only justified to do so but that he would continue to conduct himself as done, rushed downstairs of his house and brought his DBBL gun. His son Harpartap, the acquitted co-accused was also with him. It is alleged by the prosecution that on the exhortation of Harpartap, the appellant opened fire, which hit the informant on the side of his head. Meanwhile drawn by the commotion, Paramjit Kaur, the wife of the informant, Jatinder Singh and Lakhwinder Singh, friends of Jugraj rushed to the terrace. On seeing them, the appellant fired from his gun towards them, which hit Paramjit and Jatinder on their abdomen and Lakhwinder on his mouth and head. On hue and cry being raised, the appellant and the accused fled the scene. The injured were rushed to the Guru Nanak Dev Hospital, Amritsar where they were treated. However, Jatinder succumbed to the injuries sustained. After completing the investigation, charge-sheet was laid against both the accused persons under Sections 302 and 307 IPC. As mentioned above, while the son of the appellant, Harpartap was acquitted in the case, the appellant himself was convicted by the trial court and the conviction was upheld by the high court.

On appeal, the Supreme Court held that the eye-witnesses including the informant have offered a consistent, coherent and convincing narration thereof which does not admit of any doubt of their trustworthiness. The plea of their family relationship to discredit them does not commend for acceptance in the attendant facts and circumstances. Noticeably, in course of the investigation, amongst others, the 12 bore DBBL gun loaded with two live cartridges used for the offence had been recovered from the appellant. The site plan prepared by the investigating officer also pins the place of occurrence as deposed by the witnesses. Further four cartridge shells have also been recovered from the said spot.

The Supreme Court further held that the medical evidence reveals injuries on the deceased and the injured compatible with the weapon used. The charges levelled against the appellant thus have been proved beyond doubt. The Supreme Court further held that the acquittal of co-accused Harpartap, having regard to the state of evidence, has no bearing on the inculpatory involvement of the appellant so much so that conviction of the appellant is sustainable in isolation.

So, thus far, the Supreme Court fully concurred with the findings on facts by the trial court and the high court, and held that the conviction of the appellant is fully sustainable and also that “(t)he charges levelled against the appellant thus have been proved beyond doubt”. It is noteworthy that the charges levelled against the appellant were Section 302, 307 IPC.

However, in the subsequent paragraph, suddenly, the direction of the judgment takes a change. I am reproducing the next paragraph from the judgment of the Supreme Court:

“However, in the singular facts of the case and noticing in particular, the progression of events culminating in the tragic incident, we are inclined to reduce the sentence awarded to him. Incidentally, the occurrence is of the year 2004 and meanwhile twelve years have elapsed. Further, having regard to the root cause of the incident and the events that sequentially unfolded thereafter, we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger somuch so that he was deprived of his power of self-control and being drawn in a web of action reflexes, fired at the deceased and the injured, who were within his sight. The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof. Be that as it may, on an overall consideration of the fact situation and also the time lag in between, we are of the view that the conviction of the appellant ought to be moderated to one under Section 304 Part 1 IPC and 307 IPC. Further, considering the facts of the case in particular, according to us, it would meet the ends of justice, if the sentence for the offences is reduced to the period already undergone. We order accordingly.”

So, these are the only reasons given by the Supreme Court to convert the conviction of the appellant from one under Section 302 IPC to one under Section 304 Part 1 of IPC, even after first having concluded that the conviction of the appellant is fully sustainable (and that conviction was under Section 302, 307 IPC) and that the charges levelled against the appellant have been proved beyond doubt. Let us analyse these reasons given by the Supreme Court.

The Supreme Court has mentioned: “The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof.”

Now, the definition of “murder” under Section 300, which is punishable under Section 302 IPC, has 4 alternative situations and a culpable homicide would amount to murder even if any one of these 4 situations is satisfied:

  • if the act by which the death is caused is done with the intention of causing death, or
  • if the act is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or
  • if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
  • if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

In the light of the above, it is respectfully submitted that, firstly, it is wrong to conclude that the appellant did not have the intention of eliminating any one of those fired at. It is not clear from the judgment as to on what basis this conclusion has been drawn by the Supreme Court, except the words “(t)he facts do not commend to conclude”. However, no details are given and there is no detailed analysis of the facts to lead to this conclusion. On the other hand, in the previous paragraph of the judgment, the Supreme Court had itself concluded that the conviction of the appellant was sustainable.

Secondly, even if it be presumed that the conclusion of the Supreme Court that the appellant had no intention of killing any one of them is correct, the fact remains that in the very next line itself the Supreme Court itself has held that “though he had the knowledge of the likely fatal consequences thereof”. Now, the extracts of the ingredients of Section 302, which have been quoted above, clearly show that if an accused person has the “knowledge” that the consequence of his act would be “death”, he would still be guilty of “murder” even if he had no “intention” to kill. Thus, even from this angle, the appellant is guilty of “murder” punishable under Section 302 IPC, and NOT of “culpable homicide” which is punishable under Section 304 IPC, if as per what is mentioned by the Supreme Court the appellant “had the knowledge of the likely fatal consequences thereof”.

Further, the Supreme Court has also given another reason when it mentions: “we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger somuch so that he was deprived of his power of self-control and being drawn in a web of action reflexes, fired at the deceased and the injured, who were within his sight.”

Let us see whether what is mentioned above is covered under any of the 5 exceptions mentioned in Section 300 IPC as per which an act may not amount to murder even if one or more of above situations are satisfied, but it may amount only to culpable homicide.

These 5 exceptions mentioned in Section 300 IPC are as under:

Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:—

First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.

Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.”

Now, let us examine these exceptions. Exception 5 is not attracted, since here the death was not suffered in this case by the deceased with his own consent. Exception 3 is not attracted because the appellant in this case is not a public servant.

Exception 2 is not attracted because the appellant did not act in his right of private defence since the informant had merely enquired of the appellant as to why he had abused his son. The appellant or his son had not been attacked by the informant party. On the other hand, the appellant himself went back to house and brought his DBBL gun in an arrogant manner.

Exception 4 is not attracted, for the reason similar to the one mentioned above, because there was no sudden fight in this case and moreover, even if it was presumed that there was a sudden fight then also the opposite party had merely enquired with words, and thus, the appellant took “undue advantage or acted in a cruel or unusual manner” in as much he went and brought his DBBL gun on merely being enquired about as to why he had abused informant’s son. So, in any case, at least, the second condition in this Exception is not satisfied.

Now, let us examine Exception 1, since this is the only Exception which could probably have covered the present case. However, a detailed analysis shows that this Exception is also not covered. Let us see how. Though the Supreme Court has mentioned that the appellant was “overpowered by an uncontrollable fit of anger somuch so that he was deprived of his power of self-control”, however, the most important condition mentioned in Exception 1 is that such deprivation of the power of self-control must ONLY BE BY WAY OF “grave AND sudden provocation”. In the present case, there was no grave AND sudden provocation. Why? Firstly, because the provocation was not grave since the informant had merely enquired from the appellant as to why did he abuse his son. The informant did not attack or do something serious to make the provocation grave. Secondly, the provocation was not sudden, because it was the appellant himself who had initially insulted informant’s son in the fields and therefore, he would have expected that there may be some repercussions for the same, and it was only subsequently that when the informant’s son and the appellant had both returned from the fields to their houses (which are adjacent to each-other) that the informant asked the appellant as to why his son was abused. Therefore, the provocation was neither grave nor sudden, due to which Exception 1 cannot be attracted in this case. In fact, there is one more reason as to why Exception 1 would not be applicable in this case. First Proviso to Exception 1 (reproduced above) requires that even such (grave and sudden) “provocation is not sought or voluntarily provoked by the offender” as an excuse for killing or doing harm to any person. In the present case, the sequence of incidents mentioned in the judgment by the Supreme Court clearly show that it was the appellant himself who first hurled abuses to the son of the informant when he was in his fields. Therefore, if at all, there was a provocation, the same was voluntarily provoked first by the appellant himself. In view of these reasons, Exception 1 is not attracted.

Therefore, in view of the foregoing reasons, the act of the appellant was clearly covered within one or more of the alternative situations described in Section 300 of IPC which make such culpable homicide a murder. Moreover, none of the Exceptions in Section 300 IPC is attracted in the present case. Therefore, the act of the appellant was clearly covered under the offence of “murder” as defined in Section 300 IPC, which is punishable under Section 302 IPC. There are a large number of judgments of the Supreme Court interpreting various provisions of Section 300 IPC, including the Exceptions mentioned therein, however, I think there is no need to refer to those judgments since the above conclusion can be arrived at by first principles themselves.

In fact, as mentioned above, in the earlier paragraphs, the Supreme Court had itself come to the conclusion on the basis of the analysis of evidence that “the conviction of the appellant is fully sustainable”, and this was clearly mentioned with respect to his conviction under Section 302, 307 of IPC, as first ordered by the trial court and then confirmed by the high court. The Supreme Court had also mentioned that “(t)he charges levelled against the appellant thus have been proved beyond doubt”. At the cost of repetition, it is noteworthy that the charges levelled against the appellant were Section 302, 307 IPC.

Unfortunately, in the subsequent paragraphs, the Supreme Court partly reversed its own finding by giving reasons which are not convincing, in my humble submission. In my respectful submission, it appears from the language used by the Supreme Court that the court perhaps wanted to reduce his sentence to the period already undergone due to compassion and magnanimity, which was not possible with Section 302 IPC since the only two possible sentences under that section are death penalty and life imprisonment, and the appellant had already been given the lesser sentence of life imprisonment. Awarding a further lesser sentence than life imprisonment was not possible unless the conviction under Section 302 was converted to a lesser section, such as 304 IPC.

Be that as it may. The fact remains that above judgment of the Supreme Court is erroneous in law and in facts. This is what is my most respectful and humble submission.

Read full order of the court:

 

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  • Imlannister

    Very well analyzed sir.