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2004 (2) Crimes 138
Sikkim High Court
R.K. Patra, CJ & N. Surjamani Singh, J.
Sukhwinder Singh—Appellant
versus
State of Sikkim-Respondent
Criminal Appeal No. 11 of 2003
Decided on 3-12-2003
Counsel for the parties:
For the Appellant :Shri N. Rai, Advocate.
For the Respondent: Shri N.B. Khatiwada, P.P. assisted by Shri J..B. Pradhan, A.P.P.
Important Point
Where accused a constable killed his senior by SLR after 20 minutes of his senior pointing to accused why he was absent from his place of duty, accused could not succeed in his plea that out of grave and sudden provocation he was deprived of self control and committed murder and that offence would fall u/s. 304 Part I, IPC.
Headnote:Indian Penal Code, 1860 — Section 302 — Appellant a constable in CISF posted on internal security duty at Raj Bhawan fired at Inspector by his SLR and victim died on spot — PW 1 was the eye witness of occurrence — Appeal against conviction — Clear & categorical evidence that appellant shot with his SLR at deceased who died on spot — Defence contention that appellant deprived of power of self control due to grave & sudden provocation committed crime and offence would fall U/s. 304 part I IPC — No evidence that deceased had abused appellant in filthy language when he found accused absent on his duty post — General testimony that deceased used to scold his subordinates in un-parlia-mentary and filthy language will not help accused — Appellant after being pointed out by deceased as to why he was not present on his place of duty had come to deceased after 20 minutes and fired at deceased — Conviction called for no interference. (Paras 6 and 9)
Result: Appeal dismissed.
JUDGMENT
R. K. Patra. C.J.— This appeal is directed against the judgment and order dated 23rd June, 2003 of the learned Sessions Judge (E & N) Sikkim at Gangtok in Criminal Case No. 15 of 2000 by which the appellant stands convicted under section 302 IPC for committing murder by causing the death of Gautam Banerjee and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- (Rupees five thousand) with defaulting clause of sentence.
2. Briefly stated, the prosecution case is as follows:
At the material time, the appellant, a constable belonging to C.I.S.F. was on internal security duty at the Raj Bhawan, Gangtok. He was detailed for duty at Ghumti No.2 of the Raj Bhawan complex on 20th March, 2000 between 5 p.m. to 9 p.m. The Inspector Gautam Banerjee (hereinafter referred to as the deceased) at about 5.10 p.m. found the appellant loitering near gate No.2 instead of being on duty at Ghumti No.2. The deceased accordingly sent for the G.D. register from constable D. N. Mishra (PW2) and made an entry in the register about the late reporting of duty by the appellant. Sometime thereafter the appellant left his post and proceeded towards the barracks with his S.L.R. (self loading revolver) and ammunitions on the plea that he wanted to use the toilet situated there. He however went towards the office of the Asstt. Commandant and after locating the deceased there, fired at him with the S.L.R. which he was carrying with him. The deceased on being shot by the bullet fell on the ground and died instantaneously. After committing the offence, the appellant threw his S.L.R. and ammunitions and ran away. He was apprehended on the next day while trying to cross the Rangpo river on foot.
3. Although the appellant took a general plea of denial, he stated in his statement recorded under section 313 Cr.P.C. that when he was proceeding towards the toilet the deceased scolded and abused him by slang language and the incident took place due to sudden provocation.
4. In order to bring home the charge against the appellant, the prosecution examined as many as 27 witnesses out of whom PW15 J. B. Panday and PW18 Ganesh Ram are the two eye-witnesses to the occurrence.
5. There is no dispute that the deceased died due to the injury caused by bullets. PW20 the doctor who conducted the post-mortem examination found the following injuries on the dead body of the deceased:-
“i) Firearm bullet entry wound on the inner cantus of the right eye about 1 cm. in diameter with abrasion and contusion collor on the medial side causing laceration and rupture with collapse of the right eye ball. The track moving backward and towards the left side causing irregular commuted fracture irregularly of the medial orbital wall and the spheroid bone passing through the sella, traveling through the mid brain and the left lobe of the cerebellum and causing irregular ......... of the occipital bone on the left side and the exit wound in the scalp in the left occipital region measuring 1.5 x 2 cms. irregular in shape.
ii) There was extravasation of blood in the right lower eye lid.”
He opined that the injury was ante-mortem and sufficient to cause death in the ordinary course of nature. The cause of death was on account of the penetrating injury of the brain produced by a firearm bullet.
6. PW 1 R.C. Barman was a constable who was posted on duty at gate No. 2 of the Raj Bhawan on the date of occurrence between 5 p.m. to 9 p.m. He stated in his evidence that the appellant was posted on duty at Ghumti No.2 at the Raj Bhawan compound between the same time, i.e., 5 p.m. to 9 p.m. The appellant was late by about 10 minutes for which the deceased pulled him up for reporting late for duty. Thereafter the appellant resumed his duty at Ghumti No. 2. At about 5.20 p.m. the appellant came down to gate No. 2 where he (PWl) was on duty. He was carrying with him his S.L.R. and rounds of ammunitions issued for duty. He questioned the appellant as to why he had come d
