Holding

The offence amounted to culpable homicide not amounting to murder under s.304 Part‑I r/w s.34 IPC, and the High Court’s conviction and sentence are affirmed.

Summary

The State of Punjab appealed against the Punjab & Haryana High Court’s order reducing the conviction of four accused from murder (s.302 r/w s.34 IPC) to culpable homicide not amounting to murder (s.304 Part‑I r/w s.34) and cutting their sentence to five years rigorous imprisonment. The trial court had relied on the testimony of Santa Singh (PW5) that the accused had taken Gurnam Singh away and later found the bodies of Gurnam and his sister Paramjit Kaur in the accused’s courtyard; the High Court found PW5’s evidence unreliable and, based on a post‑mortem report showing semen in Paramjit’s vaginal swab, concluded that Gurnam had entered the house, had sexual intercourse with Paramjit, and was killed in a fit of rage, constituting grave and sudden provocation. The Supreme Court examined the credibility of PW5’s testimony, the relevance of the semen finding, and the applicability of the first exception to s.300 IPC, and held that the High Court was correct in its assessment that the offence fell under s.304 Part‑I with s.34. It further observed that, given the 18‑year lapse since the incident and the fact that the accused had already served the five‑year term, there was no ground to alter the quantum of sentence. Consequently, the appeal was dismissed, leaving the reduced conviction and sentence intact.

Issues considered

Whether the testimony of Santa Singh (PW5) is reliable and can be used to establish the accused’s participation in the murders.
Whether the facts constitute murder under s.302 IPC or culpable homicide not amounting to murder under s.304 Part‑I read with s.34, based on the first exception to s.300 (grave and sudden provocation).
Whether the post‑mortem finding of semen in the victim’s vaginal swab alters the nature of the offence.
Whether the sentence of five years rigorous imprisonment is appropriate in view of the elapsed time and the age of the accused at the time of the offence.

Legislation cited

Indian Penal Code, 1860s. 300, s. 302, s. 304 Part-I, s. 34

Subjects

murderculpable homicide not amounting to murdergrave and sudden provocationevidence reliabilityIPC s.304s.34post‑mortem evidencesentencing

Judgment

[2011] 9 S.C.R. 494

A STATE OF PUNJAB
v.
JAGTAR SINGH AND ORS.
(Criminal Appeal No. 78 of 2003)

B
JULY 26, 2011 . ...
[V.S. SIRPURKAR AND T.S. THAKUR, JJ.]

Penal Code, 1860- s.304 Part-I r/w s.34 IPC and s.300,
First exception -Culpable homicide not amounting to murder
c - Case of grave and sudden provocation - Four accused -
Accused-respondents allegedly killed their sister 'P' and her
lover 'G' - Bodies of the two deceased found in the courtyard
of the house of the accused - PW5 claimed that he had last
seen 'G' when he was being taken away by the respondents
D on the pretext of serving him liquor - Trial court accepted the
evidence of PW5 and convicted the respondents uls.302 r/w
s.34 and sentenced them to life imprisonment - High Court,
however, found the evidence of PW5 to be unreliable and on
~
the basis of the post-mortem report that semen was found in
E the vaginal swabs of 'P', came to the conclusion that on the
date of incident 'G' himself must have sneaked into the house
of the accused persons and must have had sexual
intercourse with 'P' and on seeing them in a compromising
position, the accused persons must have killed them, and that
F thus it was a case of grave and sudden provocation and
accordingly altered the conviction to uls. 304 Part I r/w s. 34 and
-
,

converted the sentence to rigorous imprisonment for five
years - On appeal, held: There was no error in the approach
of the High court in disbelieving the evidence of PW5 - Also,
no reason to differ with the conclusion arrived at by the High
G '
Court that the offence was committed due to grave and
sudden provocation and would fall under first explanation to
s.300 and would amount to culpable homicide not amounting
to murder- Thus, the offence would be covered under s.304
H 494
STATE OF PUNJAB v. JAGTAR SINGH AND ORS. 495
, .
Part-I rlw s. 34 - However, the incident in question took place A
18 years back - Further, considering the fact that the accused
persons had not even crossed the age of 25 years at the time
of the incident and the fact that they have already undergone
~ -~
rigorous imprisonment for five years and have come out of
jail, quantum of sentence not interfered with by Supreme B
Court.

According to the prosecution, the four accused
persons killed their sister - 'P' and the brother of PW4 -
'G' by strangulation because 'P' had sexual relations with
'G'. The dead bodies of 'G' and 'P' were found in the c
~ courtyard of the house of the accused. PW5 stated that
prior to the incident, when he was sleeping in the
-; threshing floor of his wheat field for guarding the wheat,
he saw the accused persons coming there in a drunken
condition and taking away 'G' with them on the pretext D
of serving him liquor. Accused 'N' pleaded that on the
night of the incident he heard some muffled sound from
the court yard and that when he went there, he saw 'G'
strangulating 'P' and in order to save 'P' from the clutches
of 'G', he picked up a rope lying nearby, put it around the E
neck of 'G' and strangulated him; however in the
meanwhile, 'G' had already strangulated 'P'. The trial court
negated the plea of the defence and accepted the
• evidence of PW5 and accordingly convicted the accused
under Section 302/34 IPC and sentenced each of them to F
undergo imprisonment for life.

In appeal, the High Court found the evidence of PW5
to be unreliable and rejected the same. However, the High
~
Court, on the basis of the post-mortem report that semen
G
was found in the vaginal swabs of deceased 'P', came to
the conclusion that it was deceased 'G' who himself
sneaked into the house of the accused persons and
must have had sexual intercourse with 'P' and on seeing
them in a compromising position, the accused persons
must have killed them. On this basis, the High Court H

1¥
496 SUPREME COURT REPORTS [2011] 9 S.C.R
..
A came to the conclusion that even if this was proved, it
was a case of grave and sudden provocation and as such
it could not be a case of murder and would come under
Section 304 Part-I read with Section 34 IPC on the basis
of first exception to Section 300 IPC. Therefore, the High
B Court converted the sentence of the accused to rigorous
..
imprisonment for five years each. The State filed the
instant appeal against the order of the High Court.

Dismissing the appeal, the Court

C HELD:1. The contention raised by the State that the
version of PWS was natural, as on the date of
occurrence, he was guarding his threshed wheat crop in
his threshing floor which was situated near the threshing
floor of 'G' and he had all the opportunity of watching the
D happenings in the field of deceased 'G', cannot be
accepted. Had that been the case there was no question
of semen being found in the vaginal swabs of deceased
'P'. Secondly, considering the distance between the field
of deceased 'G' and the house of the accused there was
E no necessity to take him upto their house. He could have
been done away with in the way only. It was obvious that
there was a sexual intercourse with deceased 'P' which
was not possible if the accused had taken deceased 'G'
with them. [Para 7) [501-A-D]
F
2. The evidence of PWS cannot be accepted. PWS in
his evidence did not even mention that when he had
accompanied PW4 to the house of accused 'N' on the
next morning, he saw the two bodies in the courtyard of
the house of accused persons. PW4 in his evidence
G stated that on reaching the house of accused 'N', he
came to know that both 'P' and 'G' were murdered by the
accused persons. However, he also did not state as to
from where he came to know that they were murdered. It
is not a case of either PWS or PW4 that they, in any way,
H entered the house of the accused persons or talked to
STATE OF PUNJAB v. JAGTAR SINGH AND ORS. 497
~. 1

anybody. Again, this Court is not satisfied with the A
explanation offered by the prosecution for delay in
sending the copy of FIR to the Magistrate on 16.. 5.1993
at 10.30 p.m. when the same was registered in the
morning at 9.15 a.m. [Para 8) [501-F-Gf
~ -t
B
3. There is no error in the approach of the High court
in disbelieving the evidence of PW5. That would only give
further credence to the theory that 'G' must have sneaked
on the night of 15.5.1993 in the house of accused
persons and he must have had sexual intercourse with
'P' which might have been seen by the accused persons
c
and in a fit of rage, they killed both of them on the spot.
.
There is· no reason
'
to differ with the conclusion arrived
) , at by the High Court that the offence was committed due
to grave and sudden provocation and would fall under
first explanation to Section 300 IPC and would amount to D
culpable homicide not amounting to murder. Thus, the
offence would be covered under Section 304 Part-I read
with Section 34 IP.C. [P~ra 9] [501-H; 502-A-C]
4. However, the incident in question took place in the E
year 1993 and thus 18 years have passed. Further,
considering the fact that the accused persons had not
even crossed the age of 25 years at the time when the
,. i
.. incident took place and further considering the fact that
· they have already undergone rigorous imprisonment for F
five years and have come out of jail, this Court is not
inclined to interfere with the quantum of sentence. [Para
1O] [502-D-F]

r CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G
1
No. 78 of 2003.
From the Judgment & Order dated 17.10.1997 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 319 DB of 1995.
H
498 SUPREME COURT REPORTS [2011] 9 S.C.R.

A Kuldip Singh, Harinder Singh for the Appellant.
. '

O.P. Khullar, R.C. Kohli for the Respondents.

The Judgment of the Court was delivered by
. ..
B SIRPURKAR, J. 1. This appeal is filed by the State of
Punjab challenging the judgment dated 17.10.1997 in Criminal
Appeal No. 319 of 1995 whereby the High Court, while partly
allowing the appeal, altered the conviction and sentence of the
appellants-accused from Section 302/34 IPC to Section 304
c Part-I read with Section 34 IPC and sentenced them to undergo
rigorous imprisonment for five years each and to pay a fine of
Rs. 1,000/- each, in default of payment of fine to further undergo
rigorous imprisonment for one year.
r
2. The prosecution case, in short, is as under:-
D
Desa Singh, Jessa Singh and Gurnam Singh were three
brothers. On the night of 15.5.1993, Gurnam Singh, resident of
village Pakan, Police Station Sada' Fazlika, District Ferozpur
was sleeping in the threshing floor of his wheat field for guarding
·E the wheat. According to the prosecution, the accused persons
came there at about 10 p.m.in a drunken condition and took
Gurnam Singh with them on the pretext of serving him liquor.
This was allegedly seen by Santa Singh (PW5). Next day i.e.
on 16.5.1993, in the morning at 6 a.m., Desa Singh (PW4), I <(

F brother of deceased Gurnam Singh reached in the field to serve
him tea. He did not find Gurnam Singh there. On enquiry, he
was told by Santa Singh (PW5) of the adjoining field that last
night at about 10 p.m., the accused persons had taken him
away. The prosecution further alleges that on being told by
G Santa Singh (PW5) that the accused persons had taken him J
away, Desa Singh along with Santa Singh went to the
residence of accused Nishan Singh where they came to know
that the accused persons had killed Gurnam Singh and their
sister Paramjit Kaur by strangulation because Paramjit Kaur
H had sexual relations with Gurnam Singh. Thereafter, Desa
STATE OF PUNJAB v. JAGTAR SINGH AND ORS. 499
[V.S. SIRPURKAR, J.]
Singh along with Santa Singh went for lodging the report of A
murder of Gurnam Singh and Parmajit Kaur. SI Talwinderjit
Singh met them on bus stand to whom they reported the matter.
That is how the FIR came to be recorded on 16.3.1993 at about
9.15 a.m. It is significant to note that a copy of this FIR reached
~ ~ the area Magistrate only on 16.3.1993 at 10.30 p.m. B
3. Upon lodging of FIR, SI Talwinderjit Singh (PW7) went
to the house of accused at "Dhani Gowarewali" in village Pakkan
and found the dead bodies of Gurnam Singh and Paramjit Kaur
lying in the courtyard of house of accused. It is on that basis
that the investigation started. During investigation, the c
prosecution claims to have found an eye-witness Mohan Singh
(PW6) who, on the night of 15.5.1993 is alleged to have seen
the murder of Gurnam Singh and Paramjit Kaur by strangulation
' -( . by putting a rope around their neck by all the accused persons
but had never bothered to report the matter to any of the family D
members of the deceased Gurnam Singh though admittedly he
himself was the first cousin of the deceased Gurnam Singh. He
ultimately became available for recording the statement only on
the third day. He has been disbelieved by both the courts below.
E
4. Trial court accepted the evidence of Santa Singh (PW5)
to the effect that he had last seen the deceased Gurnam Singh
with all the four accused when Gurnam Singh was taken away
by them on the pretext of serving him liquor. The trial court also
• ) accepted the fact that thereafter the dead bodies of Gurnam F
Singh and Paramjit Kaur were found in the courtyard of house
of accused. It did not accept the defence suggestion that
accused Nishan Singh was living separately from his other
three brothers. The trial court also believed the Chemical
, Analysers report showing semen was found on the private parts
of Paramjit Kaur.
G

5. The defence at the trial was novel. In his statement under
Section 313 Cr.P.C., accused Nishan Singh stated that on the
night of 15.5.1993, he heard some muffled sound from the court
H
500 SUPREME COURT REPORTS [2011] 9 S.C.R.

A yard when he was sleeping on the roof of his house. He then
corrected himself and said that the sound was coming from the
room. When he went there, he saw Gurnam Singh strangulating
his sister Paramjit Kaur and in order to save Paramjit Kaur from
the clutches of Gurnam Singh, he picked up a rope lying
B nearby, put it around the neck of Gurnam Singh and . ..
strangulated him. In the meanwhile, Gurnam Singh had already
strangulated his sister Paramjit Kaur. The trial court did not
accept the defence of the accused persons and proceeded to
convict them for the offence under Section 302/34 IPC and
c sentenced each of them to undergo imprisonment for life and
to pay a fine of Rs. 1000/- each, in default to further undergo
rigorous imprisonment for one year.

6. In appeal, the High Court has discussed the evidence
r
of the all the witnesses threadbare. The High Court found the
D evidence of Santa Singh (PW5) unreliable and rejected the
same. However, the High Court, on the basis of the post-mortem
report that semen was found in the vaginal swabs of deceased
Paramjit Kaur which were sent for chemical examination, came
to the conclusion that it was deceased Gurnam Singh who
E himself sneaked into the house of the accused persons and
must have had sexual intercourse with Paramjit Kaur and on
seeing them in a compromising position, the accused persons
must have killed them. On this basis, the High Court came to
the conclusion that even if this was proved, it was a case of
F grave and sudden provocation and as such it could not be a
case of murder and would come under Section 304 Part-I read
with Section 34 IPC on the basis of first exception to Section
300 IPC. Therefore, the High Court converted the sentence of
the accused from imprisonment for life to rigorous imprisonment
G for five years with fine of Rs. 1000/- each. Hence, this appeal
by special leave by the State of Punjab.

7. Mr. Kuldip Singh, learned counsel appearing for the
State very strenuously argued that this was a clear case of
H murder as there was no explanation offered by the accused
STATE OF PUNJAB v. JAGTAR SINGH AND ORS. 501 ·
[V.S. SIRPURKAR, J.]
persons having found two bodies in the courtyard of their house. A
Mr. Kuldip Singh further pointed out that the High Court has
erred in disbelieving the version of Santa Singh (PW5).
According to him, it was natural version of Santa Singh (PW5},
as on the date of occurrence, he was guarding his threshed
wheat crop in his threashing floor which was situated near the B
threashing floor of Gurnam Singh. He had all the opportunity of
watching the happenings in the field of deceased Gurnam
Singh. The argument is incorrect. Had that been the case there
was no question of semen being found in the vaginal swabs of
deceased Paramjit Kaur. Secondly, considering the distance c
between the field of deceased Gurnam Singh and the house
of the accused there was no necessity to take him uptb their
house. He could have been done away with in the way only. It
) , was obvious that there was a sexual intercourse wi,th deceased
Paramjit Kaur which was not possible if the accused had taken
0
deceased Gurnam Singti with them.

8. We have carefully seen the evidence of Santa Singh
(PW5). However, we are not in a position to accept the
evidence of Santa Singh (PW5). In our view, Santa Singh (PW5)
in his evidence did not even mention that when he accompanied E
Desa Singh (PW4) to the t.ouse of Nishan Singh on the next
morning, he saw the two bodies in the courtyard of the house
of accused persons. Desa Singh (PW4) in his evidence stated
that on reaching the house of accused Nishan Singh, he came
to know that both Parmajit Kaur and Gurnam were murdered F
by the accused persons. However, he also did not state as to
from where he came to know that they were murdered. It is not
a case of either Santa Singh (PW5) or Desa Singh (PW4) t~at
they, in any way, entered the house of the accused persons or
.> talked to anybody. Again, we are not satisfied with the G
explanation offered by the prosecution for delay in sending the
copy of FIR to the Magistrate on 16 .. 5.1993 at 10.30 p.m.
whereas the same was registered in the morning at 9.15 a.m.

9. Be that as it may, we do not find any error in the H
502 SUPREME COURT REPORTS [2011] 9 S.C.R.

A approach of the High court in disbelieving the evidence of Santa ..
Singh (PWS). That would only give further credence to the theory
that Gurnam Singh must have sneaked on the night of
15.5.1993 in the house of accused persons and he must have ,.
had sexual intercourse with Paramjit Kaur which might have
B been seen by the accused persons and in the fit of rage, they • •
killed both of them on the spot. We do not find any reason to
differ with the conclusion arrived at by the High Court that the
offence was committed due to grave and sudden provocation
and would fall under first explanation to Section 300 IPC and
c would amount to culpable homicide not amounting to murder.
Thus, the offence would be covered under Section 304 Part-I
read with Section 34 IPC.

10. Mr. Kuldip Singh, then strenuously urged that the
accused persons have been awarded only five years of rigorous r
D imprisonment and it is ridiculously less. He pointed out that
even according to the High Court, this would amount to honour
killing which cannot be taken lightly. The argument is
undoubtedly correct. However, considering that the incident in
question took place in the year 1993 and thus 18 years have
E passed. Further, considering the fact that the accused persons
had not even crossed the age of 25 years at the time when the
incident took place and further considering the fact that they
have already undergone rigorous imprisonment for five years
and have come out of jail, we are not inclined to interfere with
F the quantum of sentence and would choose to dismiss this
appeal. We order accordingly.
-
B.B.B. Appeal dismissed.

...