What emerges from the evidence is that the appellant, the deceased and PW13 Naik Amrik Singh had consumed liquor at the time of dinner. There was a heated exchange of words between the appellant and the deceased on the issue of seniority. In fact, PW13 stated in his examinationin chief that the appellant was senior most after him and therefore, the appellant was designated as second guard commander. He stated that he treated the appellant to be senior. (Para 10)
The appellant did not have a weapon at that time and he used the weapon of the deceased. Out of 20 rounds in the magazine of the rifle, he fired only one bullet. Moreover, after the incident, the appellant did not run away and he along with PW 13 lifted the deceased and laid him by the side of the road. He frankly disclosed his version of the incident to PWs 13 and 14. The appellant along with two other army men, lifted the deceased for putting him in the ambulance and he accompanied the deceased to the hospital. These facts brought on record show that there was no premeditation on the part of the appellant. Both the appellant and the deceased had consumed liquor. There was a fight between him and the deceased over the issue of seniority. In fact, when the appellant told the deceased to bring water for him, the deceased refused to do so on the ground that he was senior to the appellant. In a disciplined force like Army, the seniority has all the importance. Therefore, there is every possibility that the dispute over seniority resulted in the appellant doing the act in a heat of passion. It appears that in the heat of passion, the appellant snatched a rifle held by the deceased and fired only one bullet. If there was any premeditation on the part of the appellant or if he had any intention to kill the deceased, he would have fired more bullets at the deceased. Hence, there was no intention on his part to kill the deceased. Whether the appellant had done a cruel act or not, has to be appreciated after considering three facts. Firstly, the appellant was a soldier on guard duty, secondly, the appellant and the deceased had a fight over the seniority and thirdly, though there were 20 rounds in the rifle of the deceased, he fired only one round. There was a sudden fight over seniority when the appellant and the deceased had consumed liquor. There was no premeditation. The appellant, in the facts of the case, cannot be said to have acted in such a cruel manner which will deprive him of the benefit of exception 4 to Section 300 of IPC. The term cruel manner is a relative term. Exception 4 applies when a man kills another. By ordinary standards, this itself is a cruel act. The appellant fired only one bullet which proved to be fatal. He did not fire more bullets though available. He did not run away and he helped others to take the deceased to a hospital. If we assign a meaning to the word ‘cruel’ used in exception 4 which is used in common parlance, in no case exception 4 can be applied. Therefore, in our view, exception 4 to Section 300 was applicable in this case. Therefore, the appellant is guilty of culpable homicide not amounting to murder. The appellant snatched the rifle from the hands of the deceased and fired one bullet at the deceased. This act was done with the intention of causing such bodily injury to the deceased as was likely to cause death. Therefore, the first part of Section 304 of IPC will apply in this case. Under the first part of Section 304 of IPC, an accused can be punished with imprisonment for life or with imprisonment for a term which may extend to 10 years. (Para 11)
Prosecution examined PW5 Naik Parwinder Singh. In the cross-examination, he stated that he knew the appellant since June 2003 and was good in terms of discipline. He stated that the appellant did not misbehave with the deceased earlier. PW10 Lt.Col Purty admitted that the accused had a ‘nice reputation’. The conduct of the appellant will be a mitigating factor for determining the sentence. It is not in dispute that the appellant has undergone incarceration for a period of 9 years and approximately 3 months. Taking an overall view of the evidence on record, the sentence already undergone by the appellant will be an appropriate sentence in the facts of the case. (Para 12)
SUPREME COURT JUDGMENT
Citation: 2023 STPL(Web) 89 SC
NO.15138812Y L/NK GURSEWAK SINGH Vs. UNION OF INDIA & ANR.
Criminal Appeal No. 1791 of 2023-Decided on 27-07-2023
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