MAJOR SINGHversusSTATE OF PUNJAB & ANR.

800                      [2022]REPORTS
               SUPREME COURT    6 S.C.R. 800              [2022] 6 S.C.R.


A                               MAJOR SINGH
                                       v.
                         STATE OF PUNJAB & ANR.
                    (Criminal Appeal Nos. 2405-06 of 2014)
B
                                JUNE 16, 2022
               [A. S. BOPANNA AND VIKRAM NATH, JJ.]
             Penal Code, 1860 – s.304 Part II – Distinction between
      culpable homicide amounting to murder and culpable homicide not
C     amounting to murder – Held: There is a subtle distinction of degree
      of intention and knowledge involved in both the crimes – Intention
      is pivotal to decide whether the accused has committed culpable
      homicide amounting to murder or culpable homicide not amounting
      to murder – Along with intention, knowledge and the degree of crime,
D     i.e. how the deceased was killed, plays an important role in deciding
      – In the present case, the accused-appellant had no intention to kill
      his uncle – Lack of intention can easily be seen through the acts
      committed by the appellant – He was furious about getting yelled
      by his uncle a day before, which acted as a provocation for the
      accused – The appellant was armed with a wooden leg of the cot in
E
      his hand which cannot be termed as a dangerous weapon – He had
      given a single blow to the deceased and therefore it cannot be said
      that the appellant had intention of killing the deceased who was his
      own uncle – Maybe he wanted to punish his uncle for the reprimand,
      he received the previous day – Further it cannot be said that the
F     appellant had the knowledge that the deceased would die through
      a single blow – Thus, the deceased is not liable to be convicted
      u/s.302 IPC but would be liable to be convicted under s.304 Part-II
      IPC.
            Mohd. Rafiq v. State of Madhya Pradesh, (2021) 10
G           SCC 706 – referred to.
                             Case Law Reference
      (2021) 10 SCC 706              referred to             Para 14

H
                                      800
             MAJOR SINGH v. STATE OF PUNJAB & ANR.                           801


      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                       A
Nos. 2405-06 of 2014.
      From the Judgment and Order dated 03.04.2014 of the High Court
of Punjab and Haryana at Chandigarh in Criminal Appeal No.D-421-
DBA of 2002 and Criminal Revision No.391 of 2002.
                                                                             B
         Gagan Gupta, Adv. for the Appellant.
         R. K. Rathore, Ms. Jaspreet Gogia, Advs. for the Respondents.
         The following Order of the Court was passed:
                                    ORDER
                                                                             C
      1. The present set of appeals filed by accused-appellant, Major
Singh (hereinafter referred to as ‘the appellant’) arises from the order
dated 03.04.2014 passed by Punjab and Haryana High Court in Criminal
Appeal No. 421 of 2002 and Criminal Revision No. 391 of 2002, whereby
the appeal and revision petition were allowed, the acquittal by the Trial    D
Court was set aside and the appellant was convicted under section 302
IPC1 and sentenced to undergo imprisonment for life and pay fine of
Rs.5,000/-.
         FACTS:
       2. Prosecution’s case arises from a two-day incident and it unfolds   E
as follows:
      i. On 20.07.1998, a day preceding the unfortunate incident,
appellant had quarreled with his uncle Makhan Singh (deceased) and
had abused the uncle. Due to this argument between them, Makhan
Singh had severely reprimanded the appellant.                                F

      ii. On the day of the incident, i.e. on 21.07.1998 at about
10:30/11:00 A.M., Makhan Singh, father of Sukhraj Singh (complainant)
was going towards bus stand of their village. On his way over, Major
Singh came from the other side of the bus stand holding a wooden ‘Bahi’
                                                                             G
(wooden side of a cot frame). He abused Makhan Singh for shouting
and insulting him on the previous day and threatened to teach Makhan
Singh a lesson. Thereafter, the accused dealt a ‘Bahi’ blow to Makhan
Singh on his head as a result of which Makhan Singh fell down.

1
    IPC – Indian Penal Code, 1860                                            H
802                SUPREME COURT REPORTS                      [2022] 6 S.C.R.


A     Immediately after which Major Singh ran away from the spot with the
      ‘Bahi’. After this both Sukhraj Singh and Charanjit Singh, who were
      standing in front of the shop of Dilbag Singh, took their father, who was
      bleeding from the head to Civil Hospital, Giddarbaha. As his condition
      was serious, the doctor referred him to Dayanand Medical College,
B     Ludhiana. Makhan Singh succumbed to the injuries on 22.07.1998, that
      is a day after the incident.
             3. Sukhraj Singh went to the Police Station, where he met ASI
      Arnail Singh at Husnar Chowk, Gidderbaha and his statement was
      recorded in writing. The police, after making endorsement, sent the same
C     to police station-Kotbhai for registration of FIR. The police visited the
      spot and prepared rough site plan and blood-stained earth was lifted
      from the spot.
            4. On the day of the death of the incident, police visited DMC,
      Ludhiana and prepared the inquest report. The offence was enhanced
D     to section 302 IPC and the body of the deceased was sent for post
      mortem. Post-mortem report found eight injuries and, according to the
      doctor, the cause of death was due to shock and hemorrhage as a result
      of head injury.
             5. Appellant was arrested on 09.08.1998. As per the prosecution,
E     he confessed about the concealment of ‘Bahi’ by him in the wheat chaff
      room at his residence. In the presence of Head Constable Gurdass Singh
      and Charanjit Singh, the ‘Bahi’ stained in blood was recovered from the
      place disclosed by the appellant. The police sent the blood-stained earth,
      plain earth along with ‘Bahi’ for chemical examination. In the report of
F     chemical examiner, it was found that the stain on the ‘Bahi’ and the
      blood recovered from the spot were of the same person, i.e. the deceased.
            6. After compliance of section 207 CrPC2, the case was committed
      to the Sessions Court, vide order dated 13.10.1998 and charge was
      framed against the accused under section 302 IPC on 17.11.1998. The
G     accused pleaded not guilty and claimed to be tried.
           7. The prosecution examined eight witnesses as PW1 to PW-8
      and also filed documentary evidence. After the evidence by the


      2
H         CrPC – Criminal Procedure Code, 1973
          MAJOR SINGH v. STATE OF PUNJAB & ANR.                               803


prosecution was recorded, the accused was examined under section              A
313 CrPC and the entire incriminating material was put to him. He denied
all the allegations against him and reiterated his innocence. He claimed
to be falsely implicated in this case due to the occurrence of the squabble
between him and the deceased, a day before the incident. He stated that
the deceased had received injuries due to a scooter accident. However,        B
the accused did not produce any evidence in defence.
      TRIAL COURT JUDGMENT:
      8. The learned Additional Sessions Judge, Muktsar vide order
13.07.2001, acquitted the appellant on the following findings:
                                                                              C
      (i) There was a delay of 4½ hours in recording the FIR. Even the
      late arrest of the accused on 03.08.1998 shows that the prosecution
      was not sure about the real story behind the incident.
      (ii) The motive behind the occurrence of the incident was neither
      serious nor proved beyond reasonable doubt by the prosecution.          D
      (iii) Sukhraj Singh (complainant) and ASI Jarnail Singh, the
      Investigating Officer were acquainted with each other.
      (iv) The time of occurrence as claimed is not established.
      (v) Statements of eye witnesses, Sukhraj Singh and Charanjit Singh      E
      were not found to be credible.
      (vi) Further, the prosecution had not examined Teja Singh, Manohar
      Singh and Darbara Singh who had witnessed the incident.
      (vii) Medical evidence is contradictory to the ocular testimony.
      Even the case history mentioned in the bed head ticket of DMC,          F
      Ludhiana is contrary to the ocular version.
      (viii) The scaled site plan does not tally with the rough site plan.
       9. Aggrieved by the acquittal, the State of Punjab and the
complainant filed an appeal and revision respectively before the High         G
Court.
      HIGH COURT JUDGMENT:
       10. The High Court, set aside the acquittal of the accused and
was of the opinion that the Trial Court has misread the evidence. Following
                                                                              H
804            SUPREME COURT REPORTS                            [2022] 6 S.C.R.


A     reasons were recorded by the High Court while convicting the accused
      under section 302 IPC –
            i. Prosecution’s case could not be thrown out only on the ground
            of delay in registering FIR. Makhan Singh was in a serious condition
            and the first priority of the complainant was to save his father,
B           who was profusely bleeding from the injury in his head.
            ii. The fact as to whether ASI Jarnail Singh was known to the
            complainant is immaterial. Complainant had a right to inform the
            police. There is nothing to show that ASI did any favour to the
            complainant.
C
            iii. The occurrence took place during day time as recorded by the
            eye witnesses and the doctor had sent the intimation to police at
            11.15 a.m., which corroborates the time of the incident. There is
            nothing to disbelieve the time of occurrence.
D           iv. As per the post mortem report, the deceased had suffered
            eight injuries. Dr. Aman Kapoor (PW 2) has stated that the main
            injury was on the head and rest of the injuries were apparently as
            a result of the fall. These injuries were swelling and abrasions.
            v. The Trial Court gave undue importance to the history mentioned
E           at the time of admission in DMC, Ludhiana wherein it is stated
            that the deceased sustained injuries while travelling on scooter
            when he was hit by someone over the head. There might be some
            error in recording the history, as the son who brought his father to
            DMC, Ludhiana was under a state of shock on account of the
F           serious condition of his father. This does not affect the merit of
            the case.
            vi. If some structure existing little away from the place of
            occurrence, has not been shown in the site plan, it does not mean
            that the site plan prepared by the Investigating Officer is incorrect.
G           Minor omissions in the site plan does not mean that rough site
            plan prepared by Investigation Officer is contradictory to the scaled
            site plan.
            vii. There is no reason to disbelief prosecution’s story on the ground
            that the arrest was made on 03.08.1998. It is quite possible that
H           the accused might have run away apprehending his arrest.
         MAJOR SINGH v. STATE OF PUNJAB & ANR.                                805


      viii. Parties are relatives. Because of mere altercation, there was     A
      no reason for the complainant to falsely implicate the appellant,
      who is real nephew of the deceased. There is only one accused
      and one injury was given by the accused. Therefore, possibility of
      false implication is ruled out. Even the ‘Bahi’ was recovered on
      the pointing out of the appellant.                                      B
      ix. None of the family members of the appellant or any other
      independent resident of the village came forward to support the
      defence version of the appellant apparently for the reason that
      they might be convinced that appellant was responsible for the
      death of the deceased.                                                  C
      x. Ocular version is truthful and trust worthy and is fully supported
      by the medical evidence.
      xi. The appellant does not fall under exception 4 of section 300
      IPC as the occurrence had not taken place all of a sudden and
                                                                              D
      without any predetermination. The appellant came to the spot
      having a grudge against the deceased due to the quarrel that took
      place on the previous day of the incident and also, the manner in
      which the appellant gave a blow of wooden arm of cot (‘Bahi’)
      with great force on the head of an old and feeble man, which
      resulted into fracture of his skull and death on the next day.          E
      11. Aggrieved by the conviction of the High Court, the appellant
has preferred this appeal before this Court.
      ANALYSIS:
       12. The prosecution has established that the death of the deceased     F
was homicidal. As per the post mortem report, the deceased had suffered
eight injuries. Dr. Aman Kapoor (PW 2) states in the report that the
main injury was on the head and both the eye witnesses Sukhraj Singh
(PW 3) and Charanjit Singh (PW4) have claimed the appellant had hit
their father on his head with a ‘Bahi’. The recovery of ‘Bahi’, i.e. the      G
weapon used to cause the fatal injury to the deceased was recovered by
police only after the appellant had confessed about the place of hiding.
      13. We are, thus, satisfied that the prosecution has, beyond
reasonable doubt, established the occurrence in the manner as set up.
The deceased died due to the injury caused by accused. The only question      H
806               SUPREME COURT REPORTS                           [2022] 6 S.C.R.


A     which requires our consideration is with regard to whether the case falls
      within the ambit of culpable homicide amounting to murder punishable
      under section 302 IPC as has been held by High Court or it was culpable
      homicide not amounting to murder punishable under section 304 IPC, as
      has been pleaded by the counsel for the appellant in the alternative.
B            14. Distinction between whether an offence is culpable homicide
      amounting to murder or culpable homicide not amounting to murder has
      been dealt by this Court recently in the case of Mohd. Rafiq vs. State
      of Madhya Pradesh3 after taking into consideration earlier judgments
      on the point. The Court held that even though it is difficult to distinguish
C     whether the punishment for offence would fall under section 302 or
      section 304 of IPC, there is a subtle distinction of degree of intention and
      knowledge involved in both the crimes. Relevant paragraphs of the
      judgment are reproduced below:
               “Para 11 - The question of whether in a given case, a homicide is
D              murder, punishable under Section 302 IPC, or culpable homicide,
               of either description, punishable under Section 304 IPC has
               engaged the attention of courts in this country for over one and a
               half century, since the enactment of the IPC; a welter of case
               law, on this aspect exists, including perhaps several hundred rulings
E              by this court. The use of the term “likely” in several places in
               respect of culpable homicide, highlights the element of uncertainty
               that the act of the accused may or may not have killed the person.
               Section 300 IPC which defines murder, however refrains from
               the use of the term likely, which reveals absence of ambiguity left
               on behalf of the accused. The accused is for sure that his act will
F
               definitely cause death. It is often difficult to distinguish between
               culpable homicide and murder as both, involve death. Yet, there is
               a subtle distinction of intention and knowledge involved in both
               the crimes. This difference lies in the degree of the act. There is
               a very wide variance of degree of intention and knowledge among
G              both the crimes.
               Para 12 - The decision in State of Andhra Pradesh v. Rayavarapu
               Punnayya & Anr. notes the important distinction between the two

      3
H         (2021) 10 SCC 706
   MAJOR SINGH v. STATE OF PUNJAB & ANR.                               807


provisions, and their differing, but subtle distinction. The court     A
pertinently pointed out that:
   12. In the scheme of the Penal Code, “culpable homicide” is
   genus and murder its specie. All murder is “culpable homicide”
   but not vice- versa. Speaking generally, “culpable homicide”
   sans “special characteristics of murder”, is “culpable homicide     B
   not amounting to murder”. For the purpose of fixing punishment,
   proportionate to the gravity of this generic offence, the Code
   practically recognises three degrees of culpable homicide. The
   first is, what may be called, “culpable homicide of the first
   degree”. This is the greatest form of culpable homicide, which      C
   is defined in Section 300 as “murder”. The second may be
   termed as “culpable homicide of the second degree”. This is
   punishable under the first part of Section 304. Then, there is
   “culpable homicide of the third degree”. This is the lowest
   type of culpable homicide and the punishment provided for it        D
   is, also, the lowest among the punishments provided for the
   three grades. Culpable homicide of this degree is punishable
   under the second part of Section 304.
13. The academic distinction between “murder” and “culpable
homicide not amounting to murder” has vexed the courts for more        E
than a century. The confusion is caused, if courts losing sight of
the true scope and meaning of the terms used by the legislature in
these sections, allow themselves to be drawn into minute
abstractions. The safest way of approach to the interpretation
and application of these provisions seems to be to keep in focus
                                                                       F
the keywords used in the various clauses of Sections 299 and
300;
Para 13 - The considerations that should weigh with courts, in
discerning whether an act is punishable as murder, or culpable
homicide, not amounting to murder, were outlined in Pulicherla         G
Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh. This
court observed that:
   “29. Therefore, the Court should proceed to decide the pivotal
   question of intention, with care and caution, as that will decide
   whether the case falls under Section 302 or 304 Part I or 304       H
808             SUPREME COURT REPORTS                            [2022] 6 S.C.R.


A               Part II. Many petty or insignificant matters -plucking of a fruit,
                straying of cattle, quarrel of children, utterance of a rude word
                or even an objectionable glance, may lead to altercations and
                group clashes culminating in deaths. Usual motives like revenge,
                greed, jealousy or suspicion may be totally absent in such cases.
B               There may be no intention. There may be no premeditation. In
                fact, there may not even be criminality. At the other end of the
                spectrum, there may be cases of murder where the accused
                attempts to avoid the penalty for murder by attempting to put
                forth a case that there was no intention to cause death. It is for
                the courts to ensure that the cases of murder punishable under
C
                Section 302, are not converted into offences punishable under
                Section 304 Part I/II, or cases of culpable homicide not
                amounting to murder are treated as murder punishable under
                Section 302. The intention to cause death can be gathered
                generally from a combination of a few or several of the
D               following, among other, circumstances; (i) nature of the weapon
                used; (ii) whether the weapon was carried by the accused or
                was picked up from the spot; (iii) whether the blow is aimed at
                a vital part of the body; (iv) the amount of force employed in
                causing injury; (v) whether the act was in the course of sudden
E               quarrel or sudden fight or free for all fight; (vi) whether the
                incident occurs by chance or whether there was any
                premeditation; (vii) whether there was any prior enmity or
                whether the deceased was a stranger; (viii) whether there was
                any grave and sudden provocation, and if so, the cause for
F               such provocation; (ix) whether it was in the heat of passion;
                (x) whether the person inflicting the injury has taken undue
                advantage or has acted in a cruel and unusual manner; (xi)
                whether the accused dealt a single blow or several blows. The
                above list of circumstances is, of course, not exhaustive and
                there may be several other special circumstances with
G
                reference to individual cases which may throw light on the
                question of intention.”
             15. Intention plays a vital role in criminal jurisprudence. An offence
      may not be said to be committed if the prosecution fails to prove the
      intention to commit that crime. Intention is pivotal to decide whether the
H
           MAJOR SINGH v. STATE OF PUNJAB & ANR.                                809


accused has committed culpable homicide amounting to murder or                  A
culpable homicide not amounting to murder. Along with intention,
knowledge and the degree of crime, i.e. how the deceased was killed,
plays an important role in deciding.
       16. In the present case, the appellant had no intention to kill his
uncle. Lack of intention can easily be seen through the acts committed          B
by the appellant. He was furious about getting yelled by his uncle a day
before, which acted as a provocation for the accused. The appellant
was armed with a wooden leg of the cot in his hand which cannot be
termed as a dangerous weapon. He had given a single blow to the
deceased and therefore it cannot be said that the appellant had intention       C
of killing the deceased who was his own uncle. Maybe he wanted to
punish his uncle for the reprimand, he received the previous day. Further
it cannot be said that the appellant had the knowledge that the deceased
would die through a single blow.
      17. We are thus of the opinion that the deceased is not liable to be      D
convicted under section 302 IPC but would be liable to be convicted
under section 304 Part-II IPC.
       18. The appellant was arrested on 09.08.1998 and was released
on 13.07.2001 after the acquittal by the Trial Court. He again surrendered
after the conviction by the High Court on 04.10.2014. He has already
                                                                                E
undergone more than eight years of incarceration. His sentence shall be
reduced from life imprisonment to period already undergone. The fine
imposed by the High Court would remain as it is.
       19. Accordingly, the Appeals are partly allowed. The judgment of
the High Court is modified to the following extent:
                                                                                F
       (i) The conviction and sentence of life imprisonment under Section
       302 IPC is set-aside.
       (ii) The appellant is convicted under Section 304 Part-II IPC.
       (iii) The appellant is awarded sentence of the period already
       undergone along with fine as imposed by the High Court.                  G
       (iv) The appellant may be released forthwith, if he is not wanted
       in any other criminal case.


Bibhuti Bhushan Bose                                  Appeals partly allowed.
                                                                                H