1

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.210 OF 2008

NAFE SINGH                                Appellant (s)

                     VERSUS

STATE OF HARYANA                           Respondent(s)

J U D G M E N T

Dr. Arijit Pasayat, J.

1. Challenge in this appeal is to the judgment of a Division of the Punjab  

and Haryana High Court dismissing the appeal filed by the appellant.   

2. Three  accused  persons  faced  trial  for  alleged  commission  of  offences  

punishable under Section 302, 323 and 324 read with Section 34 of the Indian Penal  

Code,  1860  (in  short  "IPC")  for  allegedly  intentionally  causing  the  death  of  

Bhanwar Singh (hereinafter referred to as "the deceased") in furtherance of their  

common intention and causing injuries to Mukesh (PW.8) and his brother Vinod.  

The trial court found the accused persons guilty and convicted them for the offences  

punishable under Sections 302, 323 and 324 read with Section 34 IPC.  The appeal  

was filed by all the three convicted accused persons.  Criminal Revision No.474/2005  

was filed by the complainant.   

3. The prosecution version in a nutshell is as follows:

4. On 30.5.2002, Kanwar Singh (PW.4) complainant along with his brother,  

namely, deceased Bhanwar Singh was working in the fields known by the name of  

Yamuna belt.  Ram Phal son of Sugna, resident of Goela Khurd, was also ploughing

2

his fields.  Besides, the sons of the complainant, namely, Vinod and Mukesh, were  

also working in the field.  At about 12 noon,  appellant  Nafe Singh armed with a  

Ballam, Dheeraj armed with a Gandasi and Angrej Singh armed with a lathi, came  

to  their  fields  and  raised  a  lalkara  that  Bhanwar  Singh  be  taught  a  lesson  for  

ploughing the fields, whereafter Nafe Singh gave a Ballam blow to Bhanwar Singh  

on the right side of  his  chest on its  lateral  side lower part,  while Deeraj gave a  

Gandasi  blow on his  left  knee and Angrej  gave a lathi  blow to him. Upon this,  

Bhanwar Singh cried "Mar Diya Mar Diya" and on hearing his noise, Vinod and  

Mukesh went to  rescue their  uncle  Bhanwar  Singh;  but they were also inflicted  

injuries by the above three accused with their respective weapons.  When Kanwar  

Singh - complainant along with Ram Phal intervened, the accused along with their  

respective weapons fled away from the spot.  Accused Nafe Singh while leaving told  

them that  his  brothers  Sahab Singh and Iqbal  Singh  has  lot  of  money and can  

manage the affairs.  Kanwar Singh, complainant along with Ram Phal went to the  

spot and found his brother Bhanwar Singh lying dead.  Thereafter, Hari Singh son  

of Phula Singh and his wife Kiran Sarpanch who were coming from the fields along  

with Jhota - Buggi took the injured to village and subsequently, to Civil Hospital,  

Panipat.   Complainant  Kanwar  Singh  made  statement  exhibits  PB  before  ASI  

Randhir Singh in regard to the occurrence which led to registration of formal FIR  

exhibit  PB/1  after  making  an  endorsement  Ex.PB/2.   After  commencement  of  

investigation,  both  the  injured,  Mukesh  and  Vinod,  were  got  medico-legally  

examined and their medical reports exhibits PE and PF were obtained.  The police  

then  moved  an  application  Ex.  PG  for  recording  their  statements  and  vide  

endorsement Ex. PG/1 the injured were declared fit to make statement.  The police

3

also moved an application Ex. PH/3 for conducting post-mortem on the body of  

Bhanwar Singh deceased and post-mortem report Ex. PH, was given.  Thereafter, a  

rough site plan, Ex. PH of the place of occurrence was prepared.  The dead body of  

Bhanwar Singh was got photographed and photographs Ex. P3 to Ex. P6 along with  

their negatives Ex. P7 to Ex.P10 were collected.  A scaled site plan of the place of  

occurrence Ex. PC was got prepared.  Blood soaked earth was also collected from  

the  place  of  occurrence  and  taken  into  possession  vide  seizure  memo Ex.  PD.  

Thereafter, proceedings under Section 174 Cr.P.C. were conducted.  All the three  

accused,  named above,  were  arrested  out  of  whom accused  Nafe  Singh  made a  

disclosure statement Exhibit  PQ on the basis  of  which he got recovered Ballam,  

Exhibit P/2, which was taken into possession vide recovery memo Ex. PQ/2 after  

preparing its rough Khaka Ex. PQ/1.  Further, the rough site plan of the place of  

recovery of the said weapon of offence Exhibit PQ/3 was prepared.  Later the other  

two accused namely, Dheeraj and Angrej Singh produced weapons of offence i.e.  

Gandasi Ex.P1 and Lathi taken into possession vide recovery memos Ex. PS and Ex.  

PW/1 after preparing their rough khakas Ex. PR and Ex. PR/1 respectively.  The  

police  then  moved an application  Ex.  PH/1  for  getting  opinion  from the  doctor  

about the nature of injuries caused to deceased Bhanwar Singh with Ballam and  

obtained report Ex. PH/2.  

5. On  completion  of  investigation,  the  accused-appellants  were  charge-

sheeted  under  Sections  302/324/323  read  with  Section  34  IPC.   As  the  accused  

pleaded  innocence,  trial  was  held.   In  order  to  substantiate  the  accusations,  15  

witnesses were examined.  The accused persons in their statement recorded under  

Section 313 of the Code of Criminal Procedure, 1973 (in short "the Code") took the

4

plea of innocence and false implication as well as the plea of self-defence.  The trial  

court placed reliance on the evidence of the witnesses and directed conviction.  It  

did not find any substance in the plea that this being a case of free fight, Section 302  

will have no application.  

6. Questioning  the  correctness  of  the  judgment of  their  conviction,  three  

convicted accused preferred appeal before the High Court which was numbered as  

Appeal No. 87DB of 2005.  By the impugned judgment, the High Court altered the  

conviction of the two accused persons to Section 324 and 323 IPC and considering  

the period of sentence already served, they were directed to be set at liberty unless  

required in any other case.  The appeal of the present appellant was dismissed.  

7. Learned counsel for the appellant submitted that in a case of free fight  

which has been established  by the evidence on record, Section 302 will  have no  

application.  

8. In support of his contention, learned counsel has drawn our attention to  

the law laid down in the case of Ramkishan v. State of Maharashtra (2007) 3 SCC  

89.  Paragraph 10 of the said judgment reads as under:

"10. "17. The Fourth Exception of Section 300 IPC covers acts done in  a sudden fight.  The said exception deals with a case of prosecution  (sic 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 equal footing.  A 'sudden

5

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.    18. 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 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'.     

19. Where the offender takes undue advantage or has acted in a  cruel or unusual manner, the benefit of Exception 4 cannot be given to  him.  If the weapon used or the manner of attack by the assailant is  out  of  all  proportion,  that  circumstance  must  be  taken  into  consideration to decide whether undue advantage has been taken.  In  Kikar Singh v. State of Rajasthan  (AIR 1993 SC 2426) it was held  that if the accused used deadly weapons against the unarmed man and  struck a blow on the head it must be held that by using the blows with  the  knowledge  that  they  were  likely  to  cause  death  he  had  taken  undue advantage."      

Learned counsel for the respondent, on the other hand, supported the judgment of  

the High Court.  

9. It is to be noted that in some cases conviction is made in terms of Section  

304 Part-I IPC and in some cases conviction is made in terms of Section 304 Part-II  

IPC.

6

10. Considering  the  facts  of  this  case,  according  to  us,  the  appropriate  

conviction  will be under Section 304 Part-II IPC instead of Section 302 IPC.  Ends  

of justice would be met if the conviction is altered from Section 302 IPC to Section  

304 Part II IPC and the custodial  sentence is reduced to 7 years R.I.  We order  

accordingly.  

11. The appeal is allowed to the aforesaid extent.  

.....................J. (Dr. Arijit Pasayat)

.....................J. (Asok Kumar Ganguly)

New Delhi; April 23, 2009.