REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   1609          OF 2009 [Arising out of SLP (Crl.) No.7898 of 2008]

Gurmukh Singh .. Appellant

Versus

State of Haryana .. Respondent  

J U D G M E N T

Dalveer Bhandari, J.

1. Leave granted.

2. This  appeal  is  directed  against  the  judgment  of  the  

Punjab  &  Haryana  High  Court  dated  4.4.2008  delivered  in  

Criminal Appeal No. 163-DB of 1999.

3. Brief facts which are necessary to dispose of the appeal  

are in nutshell as under:-

The  appellant  Gurmukh  Singh  in  this  appeal  has  

challenged  his  conviction  and  sentence  for  the  murder  of  

Hazoor Singh.   

4. According to the prosecution version, on 8.1.1997 in the  

morning, deceased Hazoor Singh had borrowed the tractor of  

Lal Singh and tiller of Gurbachan Singh.  Gurmej Singh P.W.5,  

son of Hazoor Singh (deceased) was going along with Lal Singh  

to return the tractor at the Dera of Gurbachan Singh.  On the  

way,  accused  Gurmukh  Singh,  son  of  Dayal  Singh,  

accompanied  by  the  co-accused  Niranjan  Singh,  Harbhajan  

Singh and Manjit  Singh armed with lathis,  whose Dera was  

nearby came and stopped the tractor.  The appellant raised a  

lalkara that Hazoor Singh and his son should not be allowed  

to  pass  through the  passage  of  which there  was  a  dispute  

between the parties.   Hazoor Singh was following the tractor.  

He advised the appellant to desist from stopping the tractor on  

which  the  appellant  gave  a  lathi  blow  on  the  head  of  the  

deceased Hazoor  Singh rendering him unconscious, resulting  

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in his fall on the ground.  Jagtar Singh, P.W.4 brother of the  

deceased,  witnessed  the  incident  and  reached  the  spot.  

Gurdip  Singh and Puran Singh also  reached there.   Jagtar  

Singh had caught  Gurmukh Singh.  In the  process,  Gurmej  

Singh  P.W.5  was  also  given  lathi  blow  by  Niranjan  Singh.  

Gurmej  Singh also caused injuries  to Harbhajan Singh and  

Niranjan Singh.  The deceased was taken to the hospital and  

on receiving the message, the Assistant Sub-Inspector of Police  

Jagdish Chander reached there and recorded the statement of  

Jagtar Singh at 7.15 p.m., leading to the registration of the  

First Information Report.  He went to the place of occurrence,  

prepared rough site plan and took other steps of investigation.  

Injured  Hazoor  Singh  was  removed  to  PGI  Hospital  at  

Chandigarh, where he died on 14.1.1997 after three days on  

account of the head injury sustained by him.  

5. The  prosecution  examined  Dr.  Rajinder  Kumar  P.W.1  

who examined Hazoor  Singh at  4.55 p.m.  on 8.1.1997 and  

referred him to the Civil  Hospital,  Karnal,   Dr.  R. M. Singh  

P.W.2  who  conducted  the  post-mortem  examination  on  

15.1.1997, Balkar Singh Patwari P.W.3 who prepared the site  

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plan, Jagtar Singh, P.W.4 author of the FIR and eye witness,  

Gurmej  Singh,  P.W.5  another  eye  witness  and  ASI  Jarnail  

Singh P.W.6 who proved the investigation.    

6. Dr. Rajinder Kumar P.W.1 who examined the deceased  

found the following head injury:

“Depression of skull bone at both parietal region at  top,  swelling  both  parietal  region  whole.   No  abrasion, no bruise visible.  Advise X-ray skull A.P.  lateral and obliquely.”

7. According  to  the  Doctor,  the  cause  of  death  of  the  

deceased was the head injury sustained by him, which was  

sufficient to cause death in the ordinary course of nature.    

8. It may be pertinent to mention here that the appellant  

Gurmukh  Singh  was  accompanied  by  co-accused  Niranjan  

Singh,  Harbhajan  Singh  and  Manjit  Singh.   Except  the  

appellant Gurmukh Singh, all other accused were acquitted by  

the  trial  court,  whereas  the  appellant  Gurmukh Singh was  

convicted  under  section  302  of  the  Indian  Penal  Code  and  

sentenced to imprisonment for life and a fine of Rs.1,000/-, in  

default  of  payment  of  which,  to  further  under  rigorous  

imprisonment for six months.   

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9. The High Court in the impugned judgment has upheld  

the judgment of the trial court and maintained the conviction  

and sentence awarded to the appellant Gurmukh Singh.    

10. The  appellant  aggrieved  by  the  judgment  of  the  High  

Court  preferred this  appeal.  We have  carefully  perused  the  

judgments of the trial court and the High Court as also the  

evidence of witnesses.   It is fully established from the evidence  

on  record  that  the  appellant  had  caused  the  injury  to  the  

deceased Hazoor Singh which proved fatal.   

11. The short question which falls for consideration of this  

court is whether,  on consideration of the peculiar facts and  

circumstances  of  the  case,  the  conviction  of  the  appellant  

under section 302 IPC should be upheld or the conviction be  

converted to one under section 304 Part II IPC?  Appropriate  

sentencing is a very vital function and obligation of the court.

12. There  are  significant  features  of  the  case  which  are  

required  to  be  taken  into  consideration  in  awarding  the  

appropriate sentence to the accused:   

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(1) Admittedly,  the  incident  happened  at  the  spur  of  the  

moment;    

(2)  It is clear from the evidence on record that the appellant  

was not using that path everyday.     

(3) The appellant gave a single lathi blow on the head of the  

deceased which proved fatal;   

(4)  The other accused did not indulge in overt act therefore,  

except  the  appellant,  the  other  co-accused  namely  

Niranjan Singh, Harbhajan Singh and Manjit Singh have  

been acquitted by the trial court;   

(5) The incident took place on 8.1.1997 and the deceased  

remained hospitalized and ultimately died on 14.1.1997;  

(6) The  trial  court  observed  that  there  was  no  previous  

enmity between the parties.   

Therefore,  it  is  abundantly  clear  that  there  was  no  pre-

arranged  plan  or  that  the  incident  had  taken  place  in  

furtherance of the common intention of the accused persons.  

When  all  these  facts  and  circumstances  are  taken  into  

consideration in proper perspective, then it becomes difficult  

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to maintain the conviction of the appellant under section 302  

IPC.  

  13. Section 304 IPC reads as under:

“304.  Punishment  for  culpable  homicide  not  amounting to murder.- Whoever commits culpable  homicide  not  amounting  to  murder  shall  be  punished  with  imprisonment  for  life,  or  imprisonment of either description for a term which  may extend to ten years, and shall also be liable to  fine, if the act by which the death is caused is done  with the intention of causing death, or of causing  such bodily injury as is likely to cause death,

or with imprisonment of either description for  a term which may extend to ten years, or with fine,  or with both, if the act is done with the knowledge  that  it  is  likely  to  cause  death,  but  without  any  intention to cause death, or to cause such bodily  injury as is likely to cause death.”

14. This Court had an occasion to deal with cases of similar  

nature.  In Jagrup Singh v. State of Haryana (1981) 3 SCC  

616,  the  accused had inflicted a single  blow in the  heat  of  

moment in a sudden fight with blunt side of Gandhala on the  

head  of  the  deceased  causing  his  death.   According  to  the  

opinion of the doctor this particular injury was sufficient in  

the ordinary course of nature to cause death.   But, according  

to this Court, the intention to cause such an injury was likely  

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to cause death had not been made out.   This Court altered  

the conviction of the accused from section 302 IPC to section  

304 Part II IPC and the accused was directed to suffer rigorous  

imprisonment for a period of seven years.

 15. In Gurmail Singh & Others v. State of Punjab (1982) 3  

SCC 185, the accused had no enmity with the deceased.  The  

accused  gave  one  blow with  the  spear  on  the  chest  of  the  

deceased  causing  his  death.   The  injury  was  an  incised  

wound.   The  Sessions  Judge  convicted  the  accused  under  

section 302 IPC and sentenced him to rigorous imprisonment  

for life.  The High Court affirmed the same.  This Court, while  

taking  into  consideration  the  age  of  the  accused  and other  

circumstances, converted the conviction from section 302 IPC  

to one under section 304 Part  II  IPC and sentenced him to  

suffer  rigorous  imprisonment  for  five  years  and  a  fine  of  

Rs.500/-,  in default  to  suffer  rigorous imprisonment for  six  

months.    

16. In  Kulwant Rai v. State of Punjab (1981) 4 SCC 245,  

the accused, without any prior enmity or pre-meditation, on a  

short  quarrel  gave  a  single  blow with  a  dagger  which later  

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proved to be fatal.  This Court observed that since there was  

no pre-meditation, Part 3 of section 300 of the Indian Penal  

Code could not be attracted because it cannot be said that the  

accused intended to inflict  that particular  injury which was  

ultimately  found  to  have  been  inflicted.   In  the  facts  and  

circumstances of that case, the conviction of the accused was  

altered from section 302 to that under section 304 Part II IPC  

and  the  accused  was  sentenced  to  suffer  rigorous  

imprisonment for five years.  

17. In Jagtar Singh v. State of Punjab (1983) 2 SCC 342,  

the accused in the spur of the moment inflicted a knife blow in  

the chest of the deceased.   The injury proved to be fatal.  The  

doctor  opined that the injury was sufficient  in the ordinary  

course of nature to cause death.  This Court observed that the  

quarrel  was  of  a  trivial  nature  and  even  in  such  a  trivial  

quarrel the appellant wielded a weapon like a knife and landed  

a blow in the chest.  In these circumstances, it is a permissible  

inference that the appellant at least could be imputed with a  

knowledge that he was likely to cause an injury which was  

likely to cause death.   This Court altered the conviction of the  

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appellant from section 302 IPC to section 304 Part II IPC and  

sentenced the accused to suffer rigorous imprisonment for five  

years.

18. In  Hem  Raj  v.  State  (Delhi  Administration) (1990)  

Supp.  SCC  291,  the  accused  inflicted  single  stab  injury  

landing  on  the  chest  of  the  deceased.   The  occurrence  

admittedly had taken place in the spur of the moment and in  

heat  of  passion  upon  a  sudden  quarrel.   According  to  the  

doctor  the  injury  was  sufficient  in  the  ordinary  course  of  

nature to cause death.  This Court observed as under:

“14. The question is whether the appellant could be  said to have caused that particular injury with the  intention of causing death of the deceased. As the  totality of the established facts and circumstances  do show that  the  occurrence  had happened most  unexpectedly in a sudden quarrel and without pre- meditation during the course of which the appellant  caused a solitary injury, he could not be imputed  with the intention to cause death of the deceased or  with  the  intention  to  cause  that  particular  fatal  injury; but he could be imputed with the knowledge  that  he  was  likely  to  cause  an  injury  which  was  likely to cause death. Because in the absence of any  positive proof that the appellant caused the death of  the deceased with the intention of causing death or  intentionally inflicted that particular injury which in  the  ordinary  course  of  nature  was  sufficient  to  

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cause  death,  neither  Clause  I  nor  Clause  III  of  Section 300 IPC will be attracted……”

This  Court  while  setting  aside  the  conviction  under  

section 302 convicted the accused under section 304 Part  

II and sentenced him to undergo rigorous imprisonment  

for seven years.   

19. In  Abani  K.Debnath  &  Another  v.  State  of  

Tripura (2005)  13 SCC 422,  this  Court,  in  somewhat  

similar  circumstances,   while  converting  the  sentence  

from section 302 IPC to one under section 304 Part II IPC  

observed as under:

“This leads us to consider as to under what  Section of law A-1 Abani K. Debnath is liable to be  convicted  in  a  given  facts  of  the  case.  The  prosecution evidence clearly discloses that the dao  blow dealt by A-1 is preceded by a mutual quarrel.  We have already noted that there was no common  intention  to  kill  Ranjit  Das.  From  the  nature  of  injuries it is disclosed that A-1 dealt only one dao  blow perhaps in the spur of moment. The incident  had  taken  place  on  10.8.1990  and  the  deceased  succumbed to injury on 15.8.1990 after a lapse of 7  days. Taking the prosecution evidence and medical  evidence cumulatively  we are of the view that the  conviction of A-1 also cannot fall under Section 34  IPC but at the most under Section 304 Part II. We  accordingly  convert  the  sentence  of  A-1  Abani  K.  Debnath under Section 34 IPC to that one under  

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Section 304 Part II IPC and sentence him to suffer  R.I. for five years. The fine amount imposed by the  trial  court  and  Page  2091  affirmed  by  the  High  Court is maintained. It is stated at the Bar that A-1  has undergone about 18 months' imprisonment, if  that is so, he will  be entitled to get the benefit of  Section 428 Cr.P.C.”

20. In another case  Pappu v. State of M.P. (2006) 7 SCC  

391, this Court observed as under:

“……The help of Exception 4 can be invoked if death  is caused (a) without premeditation, (b) in a sudden  fight; (c) without the offender's 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 the 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  have  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 cruel or unusual manner. The expression  'undue advantage' as used in the provision means  'unfair advantage'.

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It cannot be laid down as a rule of universal  application that whenever one blow is given, Section  302  IPC is  ruled  out.  It  would  depend  upon  the  weapon used, the size of it in some cases, force with  which the blow was given, part of the body it was  given and several such relevant factors.

Considering  the  factual  background  in  the  case at  hand it  will  be  appropriate  to convict  the  appellant under Section 304 Part II IPC, instead of  Section 302 IPC as has been done by the trial court  and affirmed by the High Court. Custodial sentence  of eight years would meet the ends of justice. The  appeal is allowed to the aforesaid extent.”

21. In the instant case, the occurrence had taken place at  

the spur of the moment.  Only the appellant Gurmukh Singh  

inflicted  a  single  lathi  blow.   The  other  accused  have  not  

indulged in  any overt  act.   There  was no intention  or  pre-

meditation in the mind of the appellant to inflict such injuries  

to the deceased as were likely to cause death in the ordinary  

course of nature.

22. On  consideration  of  the  entire  evidence  including  the  

medical evidence, we are clearly of the view that the conviction  

of the appellant cannot be sustained under section 302 IPC,  

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but the appropriate section under which the appellant ought  

to be convicted is section 304 Part II IPC.

23. Before  we part  with the  case,  we would like  to clearly  

observe that we are not laying down that in no case of single  

blow or injury, the accused cannot be convicted under section  

302 IPC. In cases of single injury, the facts and circumstances  

of each case has to be taken into consideration before arriving  

at the conclusion whether the accused should be appropriately  

convicted under section 302 IPC or under section 304 Part II  

IPC.    

24. These are some factors which are required to be taken  

into consideration before awarding appropriate sentence to the  

accused.  These factors are only illustrative in character and  

not exhaustive.   Each case has to be seen from its special  

perspective.   The relevant factors are as under:

a) Motive or previous enmity;

b) Whether the incident had taken place on the  

spur of the moment;

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c) The intention/knowledge of the accused while  

inflicting the blow or injury;

d) Whether the death ensued instantaneously or  

the victim died after several days;

e) The gravity, dimension and nature of injury;

f) The  age  and general  health  condition  of  the  

accused;

g) Whether  the  injury  was caused without  pre-

meditation in a sudden fight;

h) The  nature  and  size  of  weapon  used  for  

inflicting the injury and the force with which  

the blow was inflicted;

i) The criminal background and adverse history  

of the accused;

j) Whether the injury inflicted was not sufficient  

in the ordinary course of nature to cause death  

but the death was because of shock;

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k) Number  of  other  criminal  cases  pending  

against the accused;

l) Incident occurred within the family members  

or close relations;

m) The  conduct  and  behaviour  of  the  accused  

after the incident.  Whether the accused had  

taken the injured/the deceased to the hospital  

immediately to ensure that he/she gets proper  

medical treatment?

These  are  some  of  the  factors  which  can  be  taken  into  

consideration while  granting an appropriate  sentence to the  

accused.  The list of circumstances enumerated above is only  

illustrative and not exhaustive.  In our considered view, proper  

and  appropriate  sentence  to  the  accused  is  the  bounded  

obligation and duty of the court.  The endeavour of the court  

must  be  to  ensure  that  the  accused  receives  appropriate  

sentence, in other words, sentence should be according to the  

gravity of the offence.   These are some of the relevant factors  

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which are  required to be kept  in view while  convicting and  

sentencing the accused.

25. When we  apply  the  settled  principle  of  law which has  

been enumerated in the aforementioned cases, the conviction  

of the appellant under section 302 I.P.C. cannot be sustained.  

In our considered view, the accused appellant ought to have  

been  convicted  under  section  304  Part  II  I.P.C.  instead  of  

under section 302 I.P.C.

26. We accordingly  convert  the  conviction  and sentence  of  

the  appellant  Gurmukh Singh from section 302 IPC to  one  

under  section  304  Part  II  IPC  and  sentence  him  to  suffer  

rigorous imprisonment for seven years.  The fine as imposed  

by  the  trial  court  and  as  upheld  by  the  High  Court  is  

maintained.  The appellant would be entitled to get benefit of  

section 428 of the Code of Criminal Procedure.    

27. The appeal is partly allowed in the aforementioned terms  

and disposed of.

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

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                     (Dalveer Bhandari)

…...….....……........................J.                                    (Dr. Mukundakam Sharma)

New Delhi; August 25, 2009.

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