http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (crl.)  349 of 2005

PETITIONER: Lachman Singh

RESPONDENT: State of Haryana

DATE OF JUDGMENT: 28/07/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T [With Criminal Appeal Nos. 350 of 2005 and 351 of 2005]

ARIJIT PASAYAT, J.  

       These appeals have been filed by Lachman Singh, Dev  Singh and Randhir Singh (accused numbers 1, 2 and 3  respectively) who faced trial for alleged commission of offences  punishable under Sections 302 read with Section 34 of the  Indian Penal Code, 1860 (in short ’IPC’). Additionally, Dev  Singh was tried for alleged commission of offence punishable  under Section 307 IPC, while other two were charged for  alleged commission of offence punishable under Section 307  read with Section 34 IPC. While accused Lachman Singh was  convicted for offence punishable under Section 302 IPC and  was sentenced to imprisonment for life and to pay a fine of  Rs.2,000/- with default stipulation, Dev Singh and Randhir  Singh were convicted under Section 302 read with Section 34  IPC. Similarly, accused Dev Singh was found guilty for offence  punishable under Section 307 IPC while other accused  Lachman Singh and Randhir Singh were convicted for offence  punishable under Section 307 read with Section 34 IPC and  they were sentenced to undergo 5 years RI and to pay a fine of  Rs.500/- each with default stipulation, as was the case with  accused Dev Singh. The conviction as recorded and sentenced  as imposed were challenged in Crl. Appeal No.206-DB of 1996  before the Punjab and Haryana High Court. The Division  Bench of the High Court dismissed the appeal.   

       Flittering unnecessary details, the prosecution version as  unfolded during trial is as follows:

       On 3.3.1994 at 11.40 p.m. Jai Singh (PW-5) made  statement (Exhibit PA) before ASI Raj Kumar (PW-21) in Civil  Hospital, Shahabad to the effect that he was a resident of  village Charunni Jattan and was doing cultivation. Rain water  of the residential Chobara of accused Dev Singh flows to the  roof of the kitchen of Pritam Singh and they wanted to use the  water for bathing on the roof of the kitchen of Pritam Singh by  making a hole inside their Chobara. Pritam Singh did not  allow the flow of water through the roof of the kitchen. When  Pritam Singh and his family members tried to construct a  room on the roof of the kitchen, accused Dev Singh used to  restrain them from constructing a room on the roof of their  kitchen by obtaining stay order from the Civil Court against  Pritam Singh and others. Previously also there was an  altercation between Dev Singh and Pritam Singh on the issue  of flow of water, but the well-wishers got the matter settled. It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

was alleged that on the fateful day i.e. on 3.3.1994 at about  8.30 a.m. he (Jai Singh) had gone to the house of Surmukh  Singh, neighbour of Pritam Singh for some personal work.  When he was having a talk with the son of Surmukh Singh  while standing on the roof, he noticed that there was exchange  of abuses between accused Lachman Singh and Randhir  Singh, who were standing on the roof of their house on one  hand, and Naib Singh (hereinafter referred to as the  ’deceased’), Jaswant Singh, Angrez Singh and Vikram Singh,  who were standing on the roof of their kitchen on the other  hand, over the issue of flow of water.  It was alleged that  accused Dev Singh was challenging that they would pass the  flow of water from there in any case.  Accused Dev Singh got  infuriated and all of a sudden asked his son Lachman Singh to  bring revolver from inside as the other side members were  always harassing them. It was alleged that thereupon accused  Lachman Singh brought a revolver from inside and thereafter,  accused Dev Singh stated "shoot them", whereupon accused  Lachman Singh fired and the shot hit the deceased, and on  receipt of the said shot deceased fell down. Thereafter, accused  Dev Singh took revolver from accused Lachman Singh and  started firing shots, which, hit Jaswant Singh and Angrez  Singh who were injured. Accused Randhir Singh exhorted that  they had harassed them a lot and that nobody should be  allowed to go Scot free and thereupon he started pelting brick  bats after picking the same from the roof.  Vikram Singh (PW- 7), who had escaped from the shots by taking shelter of a wall,  jumped down from the roof out of fear. Jai Singh and Balbir  Singh gave a Lalkara as to why they were killing innocent  persons and they also reached the spot to rescue the injured  and on seeing them coming, all the three accused persons fled  away from the roof of their house together with the revolver.  After arranging a vehicle, he (Jai Singh) brought Jaswant  Singh, Naib Singh and Angrez Singh, who had received fire  arm injuries, to Civil Hospital, Shahabad for their treatment  and the Doctor referred Angrez Singh and Jaswant Singh to  PGI, Chandigarh, while Naib Singh was declared dead on  account of the fire arm injury received by him on his waist.  ASI Raj Kumar (PW-21), after recording statement (Exhibit PA)  made by Jai Singh (PW-5) before him, sent the same to the  Police Station with his endorsement (Exhibit PA/1) on the  basis of which formal FIR relating to alleged commission of  offences under Sections 302/307/34 IPC and Section 27 of  the Arms Act, 1959 (in short ’Arms Act’) was registered in  Police Station Shahabad at 11.50 p.m. on 3.3.1994 and the  special report was sent to the Judicial Magistrate at  Kurukshetra who received it at 3.45 p.m. on the same day i.e.  3.3.1994.

       ASI Raj Kumar (PW-21) had recorded the aforesaid  statement Exhibit PA of Jai Singh (PW-5). He had gone to Civil  Hospital, Shahabad on receipt of ruqa Exhibit PF from the  Civil Hospital at 10.20 a.m. regarding the arrival of two  seriously injured persons, namely, Jaswant Singh and Angrez  Singh, who were referred to PGI, Chandigarh, while Naib Singh  was brought dead.  On reaching the hospital, Jai Singh, Balbir  Singh and Wazir Singh met ASI Raj Kumar (PW-21) near the  dead body of Naib Singh and it was thereupon that ASI Raj  Kumar (PW-21) recorded the statement (Exhibit PA) of Jai  Singh (PW-5) and thereafter had sent the same to the Police  Station with his endorsement Exhibit PA/1 and afterward, as  noted above, the formal FIR was recorded in Police Station,  Shahabad.

       After completion of investigation charge-sheet was placed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

and accused persons faced trial. In order to further its case  prosecution examined several witnesses.  It examined Angrez  Singh (PW-6), Vikram Singh (PW-7) and informant Jai Singh  (PW-5) who were stated to be eye-witnesses. The accused  pleaded false implication due to political rivalry and pendency  of several litigations. Trial Court on consideration of materials  placed before it recorded conviction and imposed sentences as  aforenoted.  An appeal was filed challenging conviction and  sentences.   

Before the High Court it was urged that there was no  motive established and in any event the medical evidence runs  contrary to the version of the alleged eye-witnesses. The  bullets seized did not match with the seized gun and could not  have been fired from the revolver as is evident from the  materials on record. There is doubt about the time of incident  and the evidence of Jai Singh (PW-5) who claimed to be an  eye-witness is falsified by the fact that contrary to what he has  stated the so-called injured eye-witnesses stated that the  injured persons were taken to the hospital by one Kulwant  Singh and not by Jai Singh. In any event, it was submitted  that the occurrence took place in course of a sudden quarrel  and, therefore, Section 302 IPC has no application. The  ingredients of Section 307 IPC are also absent. So far accused  Randhir is concerned, it was submitted that it was casually  stated by the witnesses that he was pelting brickbats which  resulted injury on the PW-7.  But the doctor’s evidence clearly  shows that the injury on PW-7 was not possible by brickbats.

       The prosecution, however, took the stand that after the  detailed analysis, more particularly, of the eye-witnesses the  conviction has been recorded.  Merely because of some minor  discrepancies in the testimony, the evidence of injured eye- witnesses could not be discarded, and has been rightly relied  upon by the Trial Court.   

The High Court did not find substance in the plea of the  accused persons and dismissed the appeal.

       In the present appeal stands taken before the High Court  were reiterated by the learned counsel for the parties. We find  that the evidence of the witnesses, more particularly, injured  witnesses have been carefully analysed by the Trial Court and  the High Court. There is no discrepancy of any vital nature  which will affect credibility of the witnesses.  There is no doubt  that some minor discrepancies are noticed. But that does not  in any way dilute the otherwise cogent evidence of injured  witnesses about the role played by two of the accused persons  i.e. Lachhman Singh and Dev Singh.  So far as the bullets not  matching the seized gun is concerned, the trial Court and  High Court have dealt with this aspect in great details.  As  rightly submitted by learned counsel for respondent-State,  recovery of the gun was made on being pointed out by the  accused.  To draw a red herring he pointed out to a different  gun, so that the plea as presently urged can be taken. We,  however, find that the evidence is inadequate so far accused  Randhir Singh is concerned.  It was prosecution case that he  had thrown brickbats which caused injury on Vikram Singh  (PW-7).  But the same is clearly ruled out by the doctor’s  evidence to the effect that none of the injuries can be caused  by brickbats.  Additionally, his role of presence at the spot has  not been established by any cogent and credible evidence.  Therefore, conviction so far as he is concerned, cannot be  sustained in the appeal filed by him i.e. Criminal Appeal  No.350 of 2005 is allowed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

The residuary plea relates to the applicability of  Exception 4 of Section 300 IPC.          For bringing in its operation 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.

       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 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 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 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 no 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’.     

Section 307 IPC reads: "Attempt to murder - Whoever does any act  with such intention or knowledge, and under  such circumstances that, if he by that act

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

caused death, he would be guilty of murder,  shall be punished with imprisonment of either  description for a term which may extend to ten  years, and shall also be liable to fine; and if  hurt is caused to any person by such act, the  offender shall be liable either to imprisonment  for life, or to such punishment as is  hereinbefore mentioned."  

       It is sufficient to justify a conviction under Section 307 if  there is present an intent coupled with some overact in  execution thereof.  It is not essential that bodily injury capable  of causing death should have been inflicted.  Although the  nature of injury actually caused may often give considerable  assistance in coming to a finding as to the intention of the  accused, such intention may also be deduced from other  circumstances, and may even, in some cases, be ascertained  without any reference at all to actual wounds. The Sections  makes a distinction between the act of the accused and its  result, if any.  The Court has to see whether the act,  irrespective of its result, was done with the intention or  knowledge and under circumstances mentioned in the Section.   An attempt in order to be criminal need not be the penultimate  act. It is sufficient in law, if there is present an intent coupled  with some overt act in execution thereof.   

       In Sarju Prasad v. State of Bihar (AIR 1965 SC 843), it  was observed that the mere fact that the injury actually  inflicted by the accused did not cut any vital organ of the  victim is not itself sufficient to take the act out of the purview  of Section 307 IPC.        

The above position was highlighted in State of  Maharashtra v. Balram Bama Patil and Ors. (1983 (2) SCC  28), Girija Shankar v. State of U.P. (JT 2004 (2) SC 140),   Vasant Vithu Jadhav  v. State of Maharashtra  (2004 AIR SCW  1523), and State of M.P. v. Saleem (2005 (5) SCC 554).  

       Analysing the evidence in the background set out above  the inevitable conclusion is that conviction of Lachman Singh  has to be altered from Section 302 IPC to Section 304 Part I  IPC. Custodial sentence of 10 years with fine of Rs.1,000/-  with default condition of 3 months RI would meet the ends of  justice.  He is also to be convicted under Section 307 read with  Section 34 IPC.  Accused Dev Singh has to be convicted under  Section 304 Part I read with Section 34 IPC. Custodial  sentence would be 10 years RI with fine of Rs.2,000/- with  default stipulation of three months. He is also convicted under  Section 307 IPC for causing injury on Angrez Singh (PW-6).  The conviction of Dev Singh under Section 307 IPC and that of  Lachman Singh under Section 307 read with Section 34 IPC  has been rightly upheld by the High Court, with the  corresponding sentence as imposed.  We find no reason to  interfere with either the conviction or the sentence.  However,  the sentences shall run concurrently. Criminal Appeal No.349  of 2005 filed by Lachman Singh and Criminal Appeal No.351  of 2005 filed by Dev Singh are allowed to the extent indicated  above.