IMPORTANT POINT
In the facts and circumstances of the case the appellant could only be found guilty of an offence punishable under Section 304 Part II IPC and not for an offence under Section 302 IPC.

Headnote:Indian Penal Code, 1860-Sections 302 or 304 Part II-Nature of offence-Murder or culpable homicide not amounting to murder-No enemity between two police men-Sudden interruption in their liquor drinking session by nephew of deceased-Appellant firing shots from service revolver-Killing his opposite drinking head constable-Courts below convicting under Section 302 IPC-Whether be converted to under Section 304 Part II IPC? (Yes)-Appeal allowed to that extent.
Held : From these circumstances, it can be very clearly held that the incident in question took place in a sudden fight in the heat of passion. The next question, therefore, for our consideration, is whether the appellant did take an undue advantage of the said fight or acted in a cruel or unusual manner. Keeping the fact that both the appellant and the deceased had consumed considerable amount of alcohol which is established from the evidence of the doctor and the service revolver being next to the place where the fight took place and was not kept there by a planned act by the appellant it cannot be altogether ruled out that the shots were fired not with an intention of taking any undue advantage by the appellant. It is probable that in an inebriated condition the appellant used the service revolver because of the physical fight between the two. We do not think the two courts below have properly appreciated this aspect of the prosecution case when it found the appellant guilty of murder and punished him under Section 302 IPC. Having considered the material on record, we are of the opinion that the appellant could only be found guilty of an offence punishable under Section 304 Part II. Therefore, we allow this appeal to that extent and set aside the judgment and conviction imposed by the courts below on the appellant under Section 302 IPC and alter the same to one under Section 304 Part II IPC and award a sentence of 5 years RI. We maintain the fine of Rs. 2000/- imposed on the appellant by the trial court, as also the conviction and sentence awarded on the appellant for an offence punishable under Section 27 of the Arms Act. The sentence of imprisonment under both the counts shall run concurrently. The appellant shall be entitled to remission of the period of sentence already undergone. The appeal stands allowed to the extent mentioned above. (Paras 6 & 7)

JUDGMENT

Santosh Hegde, J.-The incident which gives rise to this appeal took place on 17th of November, 1993 at the residential part of the appellant s quarters in Sangatpura where the appellant was In-charge of the Police Post. At about 9.30 p.m. on that day, the appellant came back from his duty at that time it is stated that Suraj Mal the deceased who was a Head Constable in the Sangatpura Police Outpost was standing near the quarters of appellant in the company of his nephew PW-5. On seeing them the appellant invited the deceased for a drink in his room. Therefore, the deceased went with the appellant to his room leaving PW-5 outside. It is an admitted case that while appellant and Suraj Mal were drinking in his room at about 9.45 p.m., PW-5 Raj Pal went into the room and asked Suraj Mal to get up so that they could have their dinner. Suraj Mal acceded to this request, because of which the appellant got annoyed and abused the deceased in filthy language to which the deceased objected, which further annoyed the appellant and he picking his service revolver fired two shots at Suraj Mal, hitting him on the right side of the neck and left side of his thigh. The prosecution case further proceeds by stating that the two of them grappled with each other and came outside the room. On hearing the sound of gun shots, PW-6 Satbir Singh, PW-9 Constable Hari Ram and Ram Kumar, came rushing out and over-powered the accused and snatched the weapon. Soon after Suraj Mal succumbed to the injuries suffered by him. It is further stated that on receiving a wireless message at Police Station, Kaithal, PW-10 Inspector Sube Singh accompanied by a police party reached Police Post at Sangatpura and recorded the statement of PW-5 (Raj Pal) at 11.50 p.m., and registered the FIR at 12.15 a.m., on November 18, 1993 for an offence punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. The accused was arrested and after completion of the investigation was charged for the above said offences before the Additional Sessions Judge, Kaithal who after trial came to the conclusion that the prosecution has established its charge against the appellant, hence, convicted him for an offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2000/-, in default of payment of fine, to suffer further RI for two months. He further sentenced the appellant for an offence punishable under Section 27 of the Arms Act and to pay a fine of Rs. 1000/-, in default of payment of fine to suffer further RI for one month and directed the substantive sentences to run concurrently.

2. In appeal, the High Court of Punjab and Haryana has confirmed the said judgment of the Additional Sessions Judge by dismissing the appeal.

3. It is consequent to the said judgment of the High Court, the appellant is before us in this criminal appeal.

4. The only point urged on behalf of the appellant in this case is that even if the prosecution case is to be accepted as presented, the appellant can only be held guilty of an offence punishable under Section 304 Part II of the IPC and the courts below have erred in not accepting this argument addressed on behalf of the appellant before them. In this regard, learned counsel for the appellant contended that the appellant had absolutely no motive whatsoever to commit the murder of the deceased and as a matter of fact he had invited deceased to his room for a friendly drink and it is at that time because of the intervention of PW-5 who was younger to the appellant and the deceased and lower in rank, the appellant got enraged, because of which a fight started and in that fight the incident in question took place without premeditation in the heat of passion in which fight the deceased suffered fatal injuries. Learned counsel submitted that both the appellant and the deceased were inebriated, therefore, there is every possibility of their actions being beyond their control. In suc

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2003 Supreme(SC) 449

IMPORTANT POINTIn the facts and circumstances of the case the appellant could only be found guilty of an offence punishable under Section 304 Part II IPC and not for an offence under Section 302 IPC.

IMPORTANT POINT
In the facts and circumstances of the case the appellant could only be found guilty of an offence punishable under Section 304 Part II IPC and not for an offence under Section 302 IPC.