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Monday, April 10, 2017

The scuffle took place in the heat of passion and all the requirements under Section 300 Exception 4 of the IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300 IPC is attracted to the fact situations and the appellant-accused is entitled to this benefit.

                                      REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 2284 OF 2009



Surain Singh                                       .... Appellant(s)

            Versus

The State of Punjab                               .... Respondent(s)







                         J U D G M E N T


R.K. Agrawal, J.
1)    This appeal has been  filed  against  the  judgment  and  order  dated
02.09.2008 passed by the High Court of Punjab &  Haryana  at  Chandigarh  in
Criminal Appeal No. 209-DB of 1998 whereby the Division Bench  of  the  High
Court  confirmed  the  order  dated  26.03.1998  passed  by  the  court   of
Additional Sessions Judge, Faridkot in Sessions Case No. 33 of 1995  wherein
the appellant herein was convicted under Sections 302, 307 and  324  of  the
Indian Penal Code, 1860 (in short ‘the IPC’) and sentenced  to  imprisonment
for life along with fine.

2)    Brief facts:
(a)   Prosecution story, in brief, is that there  was  dispute  between  one
Shri Amrik Singh-the complainant and his relatives on one side  and  accused
persons on the other side regarding their turn of irrigating  their  fields.
On account of this, earlier also there  had  been  incidents  of  assaulting
each other.  In the circumstances, both the parties were facing  proceedings
under Sections 107/151 of the Code of Criminal  Procedure,  1973  (in  short
‘the Code’) before the Executive Magistrate, Faridkot.
(b)   On 17.02.1995, when  both  the  parties  had  come  to  the  court  of
Executive Magistrate,  Faridkot,  the  complainant  (PW-1)  along  with  his
family members, viz., Raj Singh  (PW-3),  Harbans  Singh  (since  deceased),
Sukhchain  Singh  (PW-2),  Mander  Singh,  Santa  Singh  (since   deceased),
Gursewak Singh, Banta Singh and others was present  in  the  court  premises
whereas from the side of accused Surain Singh (the appellant-accused)  along
with Jhanda Singh, Jasmail Singh, Darshan Singh, Pal Singh, Boota Singh  had
also come to the court in order to attend the proceedings.
(c)   At about 11:00 a.m., both the sides  started  quarrelling  and  had  a
heated exchange of words as Surain Singh  (the  appellant-accused)  objected
to the presence of Bhajan Singh, who was relative of Amrik Singh and  not  a
party to the proceedings.  Surain Singh-the appellant-accused, took out  his
Kirpan and gave a blow to Bhajan Singh.  When the  complainant  party  tried
to stop the appellant-accused, he gave a Kirpan blow to  Mander  Singh.   He
also assaulted Harbans Singh (since deceased) with  Kirpan.   Darshan  Singh
also took out his Kirpan and started giving  blows  to  Santa  Singh  (since
deceased).  The injured were taken to Guru  Gobind  Singh  Medical  Hospital
Faridkot, where Santa Singh and Harbans Singh succumbed to their injuries.
(d)   A First Information Report (FIR) being No.  14  dated  17.02.1995  was
registered at Police Station, Faridkot by  the  complainant  under  Sections
302, 307, 324, 326, 148, 149 of the IPC and the case was  committed  to  the
Court of Sessions as Sessions Case No. 33 of 1995.
(e)   Learned  Additional  Sessions  Judge,  vide  order  dated  26.03.1998,
convicted the appellant-accused under Sections 302, 307 and 324 of  the  IPC
and sentenced him to undergo rigorous imprisonment (RI) for life along  with
fine for the murder of Harbans Singh and Santa Singh.  The appellant  herein
was further sentenced to rigorous imprisonment (RI) for  1  (one)  year  for
the offence under Section 324 of the IPC with the  direction  that  all  the
sentences shall run concurrently.  Since  we  are  not  concerned  with  the
conviction and sentence passed against the  other  accused  in  the  present
case, we refrain from referring to the same.
f)    Being aggrieved by the order dated 26.03.1998,  the  appellant  herein
preferred an appeal being Criminal Appeal No.  209-DB  of  1998  before  the
High Court.  The  Division  Bench  of  the  High  Court,  vide  order  dated
02.09.2008,  partly  allowed  the  appeal  of  the  appellant-accused  while
maintaining the conviction and sentence with regard  to  murder  of  Harbans
Singh under Section 302 of the IPC, infliction of injury to Sukhchain  Singh
under Section 307 of the IPC and infliction of injuries  on  the  person  of
Bhajan Singh and Mander Singh under Section 324 of  the  IPC  and  acquitted
him of the charge under Section 302 of the IPC for the commission of  murder
of Santa Singh.
g)    Aggrieved by the order dated  02.09.2008,  the  appellant-accused  has
filed this appeal by way of special leave before this Court.
3)    Heard learned counsel for the parties  and  perused  the  material  on
record.
4)    The only point for consideration before  this  Court  is  whether  the
appellant-accused has made out a case for conviction under Section 304  Part
II instead of Section 302 of the IPC?
5)     Since the point for consideration is  very  limited  in  the  instant
case, there is no need to traverse all  the  factual  details  rather  those
having a bearing on the present appeal.
6)    Before proceeding further, it  is  relevant  to  produce  Section  300
which is as under:-
      “300.Murder--.Except  in  the  case  hereinafter  excepted,   culpable
      homicide is murder, if the act by which the death is  caused  is  done
      with the intention of causing death, or--


      Secondly-- If it is done with the intention  of  causing  such  bodily
      injury as the offender knows to be likely to cause the  death  of  the
      person to whom the harm is caused, or--


      Thirdly-- If it is done with the intention of causing bodily injury to
      any  person  and  the  bodily  injury  intended  to  be  inflicted  is
      sufficient in the ordinary course of nature to cause death, or—


      Fourthly—If the  person  committing  the  act  knows  that  it  is  so
      imminently dangerous that it must, in all probability, cause death  or
      such bodily injury as is likely to cause death, and commits  such  act
      without any excuse for incurring the risk of  causing  death  or  such
      injury as aforesaid.


      Exception 1.—When culpable homicide is not  murder.—Culpable  homicide
      is not murder if the offender, whilst deprived of the power  of  self-
      control by grave and sudden  provocation,  causes  the  death  of  the
      person who gave the provocation or  causes  the  death  of  any  other
      person by mistake or accident.


      ……x…..xx…..xx….. x……….
      ……x…..xx…..xx….. x……….
      ……x…..xx…..xx….. x……….


      Exception 4-- Culpable homicide is  not  murder  if  it  is  committed
      without premeditation in a sudden fight in the heat of passion upon  a
      sudden quarrel and without the offender having taken  undue  advantage
      or acted in a cruel or unusual manner.


      Explanation- It is immaterial in such cases  which  party  offers  the
      provocation or commits the first assault.
      ……….”

7)    Exception 4 to Section 300 of the IPC applies in the  absence  of  any
premeditation. This is  very  clear  from  the  wordings  of  the  Exception
itself. The exception contemplates that the sudden fight  shall  start  upon
the heat of passion on a sudden quarrel.  The fourth  exception  to  Section
300 IPC covers acts done in a sudden fight. The said Exception deals with  a
case of provocation not covered by the  first  exception,  after  which  its
place would have been more appropriate. The Exception is  founded  upon  the
same principle, for in both there is absence of  premeditation.  But,  while
in the case of Exception 1 there is total deprivation  of  self-control,  in
case of Exception 4, there is only that heat of passion which  clouds  men’s
sober reason and urges them to deeds which  they  would  not  otherwise  do.
There is provocation in Exception 4 as in Exception 1, but the  injury  done
is not the direct consequence of that  provocation.  In  fact,  Exception  4
deals with cases in which notwithstanding that a blow may have been  struck,
or some provocation given in the origin of the dispute or  in  whatever  way
the quarrel may have originated, yet the subsequent conduct of both  parties
puts them in respect of guilt  upon  an  equal  footing.  A  “sudden  fight”
implies mutual provocation and blows on each side.  The  homicide  committed
is then clearly not traceable to unilateral provocation, nor could  in  such
cases the whole blame be placed  on  one  side.  For  if  it  were  so,  the
Exception more appropriately applicable would be Exception 1.  There  is  no
previous deliberation or determination to  fight.  A  fight  suddenly  takes
place, for which both parties are more or less to be blamed. It may be  that
one of them starts it, but if the other had not aggravated  it  by  his  own
conduct it would not have taken the serious  turn  it  did.  There  is  then
mutual provocation and aggravation, and it is  difficult  to  apportion  the
share of blame which attaches to each fighter. The help of Exception  4  can
be invoked if death is caused (a) without premeditation,  (b)  in  a  sudden
fight, (c) without the offenders having taken undue advantage or acted in  a
cruel or unusual manner, and (d) the fight must have been  with  the  person
killed. To bring a case within Exception 4 all the ingredients mentioned  in
it must be found. It is to be noted that the “fight” occurring in  Exception
4 to Section 300 IPC is not defined in IPC. It takes two to  make  a  fight.
Heat of passion requires that there must be no  time  for  the  passions  to
cool down and in this case, the parties had worked themselves  into  a  fury
on account of the verbal altercation in the beginning. A fight is  a  combat
between two and more persons whether with or  without  weapons.  It  is  not
possible to enunciate any general rule as to what shall be deemed  to  be  a
sudden quarrel. It is a question of fact and whether a quarrel is sudden  or
not must necessarily depend upon the proved facts  of  each  case.  For  the
application of Exception 4, it is not sufficient to show that  there  was  a
sudden quarrel and there was no premeditation.  It  must  further  be  shown
that the offender has not taken undue advantage  or  acted  in  a  cruel  or
unusual manner. The expression “undue advantage” as used  in  the  provision
means “unfair advantage”.
8)    In State of A.P. vs. Rayavarapu Punnayya  and  Another  (1976)  4  SCC
382, this Court while drawing a distinction between Section 302 and  Section
304 held as under:-
   “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  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 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 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.


   21. From the above conspectus,  it  emerges  that  whenever  a  court  is
   confronted with the question whether the offence is “murder” or “culpable
   homicide not amounting to murder”, on the facts of a  case,  it  will  be
   convenient for it to approach the problem in three stages.  The  question
   to be considered at the first stage would be,  whether  the  accused  has
   done an act by doing which he has caused the death of another.  Proof  of
   such causal connection between the act of  the  accused  and  the  death,
   leads to the second stage for considering whether that act of the accused
   amounts to “culpable homicide” as defined in Section 299. If  the  answer
   to this question is prima facie found in the affirmative, the  stage  for
   considering the operation of Section 300 of the Penal Code,  is  reached.
   This is the stage at which the court should determine whether  the  facts
   proved by the prosecution bring the case within the ambit of any  of  the
   four clauses of the definition of “murder” contained in Section  300.  If
   the answer to this question is in  the  negative  the  offence  would  be
   “culpable homicide not amounting to murder”, punishable under  the  first
   or the second part of Section 304, depending,  respectively,  on  whether
   the second or the third clause of Section  299  is  applicable.  If  this
   question is found in the positive, but the case comes within any  of  the
   exceptions  enumerated  in  Section  300,  the  offence  would  still  be
   “culpable homicide not amounting to murder”, punishable under  the  first
   part of Section 304, of the Penal Code.”


9)    In Budhi Singh vs. State of Himachal Pradesh (2012) 13  SCC  663  this
Court has held as under:-

      18. The doctrine of sudden and grave provocation is incapable of rigid
      construction  leading  to  or  stating  any  principle  of   universal
      application. This will always have to depend on the facts of  a  given
      case. While applying this principle, the  primary  obligation  of  the
      court is to examine from the point of view of a person  of  reasonable
      prudence if there was such grave  and  sudden  provocation  so  as  to
      reasonably conclude that it was possible  to  commit  the  offence  of
      culpable homicide, and as per the facts, was not a  culpable  homicide
      amounting to murder.  An  offence  resulting  from  grave  and  sudden
      provocation  would  normally  mean  that  a  person  placed  in   such
      circumstances could lose self-control but only  temporarily  and  that
      too, in proximity to the time of provocation. The provocation could be
      an act or series of acts done by the deceased to the accused resulting
      in inflicting of injury.
      19. Another test that is applied more  often  than  not  is  that  the
      behaviour of the assailant was that of a  reasonable  person.  A  fine
      distinction  has  to  be  kept  in  mind  between  sudden  and   grave
      provocation resulting in sudden and temporary loss of self-control and
      the one which inspires an actual intention to kill.  Such  act  should
      have been done during the continuation of the state of  mind  and  the
      time for such person to kill and reasons to regain the  dominion  over
      the mind. Once there is premeditated act with the intention  to  kill,
      it will obviously fall beyond  the  scope  of  culpable  homicide  not
      amounting to murder…..”

10)   In Kikar Singh vs. State of Rajasthan (1993) 4  SCC  238,  this  Court
held as under:-

   “8. The counsel attempted to bring the case within Exception 4.  For  its
   application all the conditions enumerated therein must be satisfied.  The
   act must be committed without premeditation in a sudden fight in the heat
   of passion; (2) upon a sudden quarrel; (3) without the offender’s  having
   taken undue advantage; (4) and the accused had not acted in  a  cruel  or
   unusual manner. Therefore, there must be a mutual  combat  or  exchanging
   blows on each other. And however slight the first blow,  or  provocation,
   every fresh blow becomes a fresh provocation. The blood is already heated
   or warms up at every subsequent stroke. The voice of reason is  heard  on
   neither side in the heat  of  passion.  Therefore,  it  is  difficult  to
   apportion between them respective degrees of blame with reference to  the
   state of things at the commencement of the fray but it must  occur  as  a
   consequence of a sudden fight i.e. mutual combat and not one side  track.
   It matters not what  the  cause  of  the  quarrel  is,  whether  real  or
   imaginary, or who draws or strikes first. The strike of the blow must  be
   without any intention to kill or seriously injure the other. If  two  men
   start fighting and one of them is unarmed while the other uses  a  deadly
   weapon, the one who uses such weapon must be held to have taken an  undue
   advantage denying him the entitlement to Exception 4. True the number  of
   wounds is not the criterion, but the position  of  the  accused  and  the
   deceased with regard to their arms used, the manner  of  combat  must  be
   kept in mind when applying Exception 4. When the deceased was  not  armed
   but the accused was and  caused  injuries  to  the  deceased  with  fatal
   results, the Exception 4 engrafted to Section 300  is  excepted  and  the
   offences committed would be one of murder.
   9. The occasion for sudden quarrel must not only be sudden but the  party
   assaulted must be on an equal footing in point of defence,  at  least  at
   the onset. This is specially so where the attack is made  with  dangerous
   weapons. Where the deceased was unarmed and did not cause any  injury  to
   the accused even following a sudden quarrel if the accused has  inflicted
   fatal blows on the deceased, Exception 4 is not attracted and  commission
   must  be  one  of  murder  punishable  under  Section  302.  Equally  for
   attracting Exception 4 it is necessary that  blows  should  be  exchanged
   even if they do  not  all  find  their  target.  Even  if  the  fight  is
   unpremeditated and sudden, yet if the instrument or manner of retaliation
   be greatly disproportionate to the offence given, and cruel and dangerous
   in its nature, the accused cannot be protected under Exception 4….”

11)   Now, we have to consider the facts of this case on the  touchstone  of
Section 300 Exception 4 in order to find out whether the  case  falls  under
the same or not.  During the course of  hearing,  learned  counsel  for  the
appellant-accused strenuously contended before  this  Court  that  the  High
Court recorded a categorical finding that “an  inescapable  conclusion  that
can be drawn is that it was a case of sudden  fight  where  the  attack  was
without pre-meditation.” He further contended that despite holding  so,  the
High Court erroneously convicted the appellant-accused under Section 302  of
the IPC instead of Section 304 Part II on the  ground  that  the  appellant-
accused had acted in cruel manner and had caused  injuries  to  six  persons
and a death.
12)   The appellant-accused, at the relevant time, was  wearing  Kirpan  and
he took out the same and gave 3 or 4 blows on the left side of the chest  of
Bhajan Singh.  When the other  side  came  to  his  rescue,  the  appellant-
accused gave a blow on the back side of the  waist  of  Mander  Singh.   The
appellant-accused was further found to have given a blow on the backside  of
the left shoulder of Amrik Singh-the complainant and  also  two  blows  each
using Kirpan on the right flank of Sukhchain Singh and Harbans Singh.
13)   In view of the above, it is relevant to quote  the  statement  of  Dr.
Sarabjit Singh Sandhu (PW-4), who conducted  the  autopsy  on  the  body  of
Harbans Singh, which is as under:-
    “On the same day, at  4.50  p.m.  I  also  conducted  the  post  mortem
    examination on the dead body of Harbans  Singh  S/o  Mandir  Singh  R/o
    Pakhi Khurd 27 years age, male brought by  ASI  Sukhdev  Singh  and  HC
    Parson Singh No. 1432 of P.S. City Faridkot.  Body  was  identified  by
    Bohar Singh S/o Ajmer Singh and Tej Singh S/o Kartar Singh.  Length  of
    the body was 5’9”.  It was dead body of moderately built and moderately
    nourished young man  wearing  Sweater,  Shirt,  Jarsi,  Paint,  Kachha,
    Turban, Short Kirpan with black thread, White metallic  kara  in  right
    forearm. P.M. staining as present series of marked patches at the  back
    of trunk and lower limbs.  Rigor mortis was present in the neck muscles
    and upper limbs.  Absent in lower limbs (developing stage) clothes were
    blood stained and corresponding holes were  present  with  clothes.   I
    found the following injuries on his person:-


       1. An onlique stab wound 3 x 0.5 cm was present on the  lateral  side
          of right side of chest in  mid  Axiliary  line  22  cm  below  the
          Axillary apax. C.B.P. it was bone deep.




       2. A transverse stab wound 2.0 x 5 cm was presentation the right side
          back of abdomen, 8 cms below  and  lateral  of  injury  no.  1  on
          exploring, it was going medially and in words cutting subcutaneous
          tissue, muscles, right kidney.  Peritoneum  and  large  intestine.
          Peritoneum cavity contained above 1000 C.C. of fluid  and  clotted
          blood.  Stomach contained about 150 C.C. of  semi  digested  food.
          All other organs were healthy.

    All the injuries were anti mortem in nature.  The  cause  of  death  in
    this case in my opinion was due to right kidney (hemorrhage and  shock)
    and large intestine, as a result of injury no. 2 which  was  sufficient
    to cause death in ordinary course of nature.”

14)   In the instant case, it is evident from the materials on  record  that
there was bitter  hostility  between  the  warring  factions  to  which  the
accused and  the  deceased  belonged.   Criminal  litigation  was  going  on
between these factions.  It is also proved from the material on record  that
the attack was not premeditated  and  preplanned.   Both  the  parties  were
present in the Court of Executive Magistrate, Faridkot at the relevant  time
with regard to the proceedings under Section 107/151 of the Code.  When  the
appellant-accused objected the presence of a member of  the  opposite  side,
the scuffle started between the parties which resulted  into  death  of  two
persons.  The conduct of the appellant-accused that he at once took out  his
Kirpan and started giving blows  to  the  opposite  party  proves  that  the
attack was not premeditated and it was because of the  spur  of  the  moment
and without any intention to cause death.  The  occasion  for  sudden  fight
must not only be sudden but the party assaulted must be on an equal  footing
in point of defence, at least at the onset.
15)   The weapon used in the fight between the parties is ‘Kirpan’ which  is
used by ‘Amritdhari Sikhs’ as a spiritual tool.  In the  present  case,  the
Kirpan used by the appellant-accused was a small Kirpan.  In order  to  find
out whether the instrument or manner of retaliation was cruel and  dangerous
in its nature, it is clear from the deposition of the Doctor  who  conducted
autopsy on the body of the deceased that stab wounds  were  present  on  the
right side of the chest and of the back of abdomen  which  implies  that  in
the spur of the  moment,  the  appellant-accused  inflicted  injuries  using
Kirpan though not on the vital organs of the body of  the  deceased  but  he
stabbed the deceased  which  proved  fatal.   The  injury  intended  by  the
accused and actually inflicted by him is sufficient in the  ordinary  course
of nature to cause death or not, must be determined  in  each  case  on  the
basis of the facts and circumstances.  In the  instant  case,  the  injuries
caused were the result of  blow  with  a  small  Kirpan  and  it  cannot  be
presumed that the accused had intended  to  cause  the  inflicted  injuries.
The number of wounds caused during the occurrence is not a  decisive  factor
but what is important is that the  occurrence  must  have  been  sudden  and
unpremeditated and the offender must have acted  in  a  fit  of  anger.   Of
course, the offender must not have taken any undue advantage or acted  in  a
cruel manner.  It is clear from the materials on record  that  the  incident
was in a sudden fight and we are of the opinion that  the  appellant-accused
had not taken any undue advantage or acted in a cruel manner.  Where,  on  a
sudden quarrel, a person in the heat of the moment picks up a  weapon  which
is handy and causes injuries,  one  of  which  proves  fatal,  he  would  be
entitled to the  benefit  of  this  Exception  provided  he  has  not  acted
cruelly.
16)   Thus, if there is intent and knowledge then the same would be  a  case
of Section 304 Part I and if  it  is  only  a  case  of  knowledge  and  not
intention to cause murder and bodily injury then the same would  fall  under
Section 304 Part II. We are inclined to the  view  that  in  the  facts  and
circumstances of the present case, it cannot be  said  that  the  appellant-
accused had any intention of causing the  death  of  the  deceased  when  he
committed the act in question. The incident took  place  out  of  grave  and
sudden provocation and hence the accused  is  entitled  to  the  benefit  of
Section 300 Exception 4 of the IPC.
17)   Thus, in entirety, considering the factual scenario  of  the  case  on
hand,  the  legal  evidence  on  record  and  in  the  background  of  legal
principles laid down by this Court in  the  cases  referred  to  supra,  the
inevitable conclusion is that the act of the  appellant-accused  was  not  a
cruel act and the accused did not take undue advantage of the deceased.  The
scuffle took place in the heat of passion and  all  the  requirements  under
Section 300 Exception 4 of the  IPC  have  been  satisfied.  Therefore,  the
benefit of Exception 4 under Section  300  IPC  is  attracted  to  the  fact
situations and the appellant-accused is entitled to this benefit.
18)   Thus, considering the factual background and the  legal  position  set
out above, the inevitable conclusion is that the appropriate  conviction  of
the appellant-accused would be under Section 304  Part  II  IPC  instead  of
Section 302 IPC. Hence, the sentence of  imprisonment  for  10  years  would
meet the ends of justice.
19)   The appeal is disposed of in the abovesaid terms.







                            ………….………………………J.


                                 (A.K. SIKRI)








                            ………….………………………J.


                              (R.K. AGRAWAL)


NEW DELHI;
APRIL 10, 2017.

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