REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.            OF 2009 (Arising out of SLP (Crl.) No. 1515 of 2008)

Hawa Singh and Anr.  ..Appellants

Versus

State of Haryana ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

2. Challenge in this appeal is to the judgment of a Division Bench of the

Punjab and Haryana High Court  upholding the conviction of the appellants

for offences punishable under Section 302 read with Section 34 and Section

452 of the Indian  Penal Code, 1860 (in short the ‘IPC’). Though they were

charged of several other offences they were acquitted of those charges.  In

the appeal filed by the appellants before the High Court there were several

co-accused i.e. Jagdish, Devinder, Balwan and Murti Devi. Accused Jagdish

and Devinder who were convicted under Section 323 read with Section 34

and Section 452 IPC. The other two accused persons i.e. Balwan and Murti

were acquitted of all charges.  

3. Prosecution version in a nutshell is as follows:

On March 20, 2000 at 4.00 p.m. Man Singh was sitting near the gate

of his house, while members of his family were present inside the house.

Hawa  Singh,  Parkash  and  Jagdish  armed  with  swords,  Balwan  and

Devender @ Raju armed with lathis, their sister Murti armed with rapri and

their mother Gindori armed with pharsa came there. They entered the house

and upon exhortation that a lesson be taught to Man Singh for getting them

convicted, Hawa Singh opened the attack with a sword with which he hit

Man Singh on the head. This was followed by Parkash giving a blow with

his sword which hit Man Singh in the middle of his head. Jagdish also gave

a sword blow which hit Man Singh on the back of the head. When alarm

was raised Balwan hit Sajjan (PW-7) with a lathi on his forehead above left

eye. Devender @ Raju hit Sajjan (PW-7) with a lathi on his left leg. Murti

and Gindori  also  inflicted  injuries  on  Sajjan.  They also  caused grievous

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injuries to Anju and Sarti. Sajjan’s younger brother Krishan and his uncle

Azad Singh reached the spot to rescue them from the assailants. During the

course of  rescuing the  injured,  Azad Singh also  sustained injuries.  Some

injuries  were  also  inflicted  by  complainant  party  on  the  accused  in  self

defence  before  the  accused  retreated  from the  spot  with  their  respective

weapons.  After  the occurrence was over,  the injured were taken to  Civil

Hospital, Bhiwani. On reaching the hospital Man Singh succumbed to his

injuries whereas the injured were medico legally examined. Anju and Sajjan

were medico legally examined by Dr. Arjun Chander Yadav (PW-1) at 6.35

p.m. and 8.15 respectively. Anju was found to have various injuries on her

right hand.   

The case was registered  at Police Station Sadar, Bhiwani on the basis

of the statement of Sajjan (PW-7) recorded by ASI Suraj Bhan at 10.50 p.m.

on the same evening  at  General  Hospital,  Bhiwani.  FIR was recorded in

respect of offences punishable under Sections 302, 148, 149, 452 and 323

IPC.  Special  report  was  delivered  at  3.50  a.m.  on  March  21,  2000.

Thereafter,  the  Investigating  Officer  took  up  the  investigation  by  first

preparing the inquest report on the dead body of deceased Man Singh. After

the inquest proceedings, post mortem was conducted by Dr.  Ramesh Kumar

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(PW-4).  The Medical  Officer  found several  injuries  on the body of Man

Singh.  In the opinion of the Medical Officer the death was caused due to

hamorrhage and shock and injury to the brain. The accused were arrested on

March 30, 2000 by Inspector Darshan Lal (PW-11). On the basis of their

respective  disclosure  statements,  certain  weapons  were  recovered  from

possession of the accused i.e.  axes from Parkash and Hawa Singh, rapris

from Jagdish and Devender @ Raju and a lathi from Balwan.  

After  completion of the investigation all  the accused barring Murti

were sent up for trial. Murti  was placed in column 2 of the report under

Section 173 of the Code of Criminal Procedure, 1973 (in short the ‘Code’).

She was subsequently summoned to  stand trial  under Section 319 of  the

Code. Charge was first framed against the accused on July 19, 2000 under

Section 302 read with Section 149 IPC and other related offences. Charges

were  reframed on  January  25,  2001.  By this  time Murti  Devi  had  been

summoned as accused. Finally charge was reframed on April 15, 2004.  All

the accused persons were found guilty and convicted.

Before the High Court the specific stand was that Section 302 had no

application because there was free fight and the occurrence took place in

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course of sudden quarrel. The High Court accepted that there was a sudden

quarrel and there were injuries on both sides.  But it took the view that the

appellants  were  apparently  the  aggressors  and,  therefore,  the  conviction

under Section 302 IPC was in order.   

4. In support of the appeal, learned counsel for the appellants submitted

that after having recording a finding that there was free and open fight, the

question as to who was the aggressor was really irrelevant and the fact that

the persons belonging to the complainant party received more injuries was

also really of  no consequence.  

5. Learned counsel for the respondent-State supported the judgment.  

6. For bringing in operation of Exception 4 to Section 300 IPC it has to

be  established  that  the  act  was  committed  without  premeditation,  in  a

sudden  fight  in  the  heat  of  passion  upon  a  sudden  quarrel  without  the

offender having taken undue advantage and not having acted in a cruel or

unusual manner.

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7. The  Fourth  Exception  of  Section  300,  IPC  covers  acts  done  in  a

sudden  fight.   The  said  exception  deals  with  a  case  of  prosecution  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 reasons 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 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 in such cases could 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

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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

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

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expression  ‘undue  advantage’  as  used  in  the  provision  means  ‘unfair

advantage’. These aspects have been highlighted in Dhirajbhai Gorakhbhai

Nayak      v. State  of Gujrat   (2003 (5) Supreme 223], Parkash Chand v. State

of H.P.  (2004 (11) SCC 381) and Byvarapu Raju v. State of A.P. and Anr.

(2007 (11) SCC 218)   

8. From the facts of the case, it appears that the accused persons armed

with deadly weapons like swords, balwan, lathis, pharsa came to the house

of the Man Singh on 20th March,  2000,  at  4 p.m., to teach Man Singh a

lesson for getting the accused persons convicted.  After coming to the house

of Man Singh, Hawa Singh opened the attack with the sword, with which he

hit  Man Singh on the  head and  ultimately Man Singh succumbed to  his

injuries.

9. Exception  4  to  Section  300  IPC  applies  in  the  absence  of  any

premeditation. This is very clear from the wording of the exception itself.

The exception contemplates that the sudden fight shall start upon the heat of

passion  on  a  sudden  quarrel  but  here,  the  accused  party,  being  deadly

armed,  came with  the  intention  of  teaching  Man  Singh  a  lesson  and  in

furtherance of that, one of them, Hawa Singh, hit Man Singh on the head

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with a sword, an attack with a deadly weapon on the vital part of the body

and that proved to be a fatal blow.

10. Therefore, Exception 4 to Section 300 has no application to the facts

of the present case.

11. The appellants have been rightly convicted in terms of Section 302

IPC.

12. The appeal is accordingly dismissed.

………………………………J. (Dr. ARIJIT PASAYAT)

……………………….……..J. (ASOK KUAMR GANGULY)

New Delhi, January 15, 2009   

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