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CASE NO.: Appeal (crl.)  101 of 2002

PETITIONER: Sukhdev

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 21/06/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of a Division  Bench of the Punjab and Haryana High Court dismissing the  appeal filed by the appellant and upholding the conviction as  recorded by learned Sessions Judge, Patiala. Accused was  found guilty of offences punishable under Sections 302, 326  and 324 of the Indian Penal Code, 1860 (in short the ’IPC’) and  sentences of life imprisonment and two years and 1 year  respectively for the aforesaid offences with default stipulations  were imposed. 2.      Background facts in a nutshell are as follows:

Paramjit Singh, (P.W.3), President of village Sarala Kalan,  was working at a petrol pump at Ghanaur. At about 9.30 P.M.  on November 3, 1994, he heard a Raula that the heap of chaff  of Amar Nath of Village Sarala Kalan had caught fire.  Hearing  this, he, his brother Kishan Singh (hereinafter referred to as  the ’deceased’), Satpal (P.W. 4) and accused Sukhdev too  reached the spot to help in extinguishing the flames.  Immediately after reaching there, Sukhdev made an allegation  that this heap had been set on fire by the deceased Kishan  Singh. He denied the allegation on which there was a quarrel  between the two. Sukhdev then ran inside his house situated  closeby and brought a knife and caused blows with it to  Kishan Singh. Satpal (P.W.4) moved forward to help Kishan  Singh but Sukhdev also gave him a knife blow. Savitri Devi  (DW.1) wife of accused Sukhdev, then came forward to  separate the parties. Sukhdev, however, aimed another blow  towards Satpal, but the same hit Savitri Devi instead. Paramjit  Singh tried to lift Kishan Singh, who was lying in the pool of  blood but Sukhdev also gave him a knife below on his back  and then ran away from the spot. The injured were there after  removed to Rajendra Hospital, Patiala but shortly before they  reached there, Kishan Singh succumbed to his injuries. Satpal  and Paramjit Singh were, however, admitted to the hospital for  treatment.  A message was sent from the hospital to the police  station at about 1.20 A.M. on November 4, 1994, on which SI  Gobinder Singh (P.W.6) reached the hospital and on inquiry  was told by the doctor that Satpal was not fit to make a  statement whereas Paramjit Singh was fit to do so. Paramjit  Singh’s statement, (Ex.P.K.) was accordingly recorded at about  5 A.M. and on its basis, the formal F.I.R. was registered at  Police Station, Ghanaur at 6.30 A.M. The special report was  delivered to the Illaqa Magistrate at Rajapura at 5.45 P.M. the  same day, the police officer also visited the place of occurrence

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and made the necessary inquiries and also dispatched the  dead body for its post-mortem examination. The post mortem  was conducted at 12.15 P.M. on November 4, 1994 after the  police papers had been received by the doctor 15 minutes  earlier. On November 5, 1994 SI Gobinder Singh also went to  Civil Hospital, Rajpura on coming to know that Savitri Devi,  wife of accused Sukhdev, was lying admitted there but found  her unfit to make a statement. Her statement was ultimately  recorded on November 7, 1994. Likewise, Satpal’s statement  was recorded on November 8, 1994 after he had been declared  fit to give it. Sukhdev accused was arrested on November 12,  1994 and on his disclosure statement, a blood stained knife,   the alleged murder weapon was recovered. On the completion  of the investigation, the accused was charged for an offence  punishable under Section 302 IPC for committing the murder  of Kishan Singh and under Section 326 IPC for causing  grievous injury to Satpal and further under Section 324 IPC  for causing simple injuries to Paramjit Singh and Savitri Devi  and as he claimed to be innocent, was brought to trial.

3.      Placing reliance on the evidence of the eye witnesses  Paramjit Singh (PW-3) and Satpal (PW-4) the trial court found  the accused guilty of offences, convicted and sentenced him as  aforenoted.  4.      Appeal before the High Court was dismissed as noted  above.

5.      In support of the appeal, learned counsel for the  appellant submitted that the trial court and the High Court  should not have placed reliance on the interested version of  PWs. 3 & 4.  The evidence of Sharda Devi (DW-1) was clear  and cogent and completely ruled out acceptability of  prosecution version.  Even accepting the prosecution version,  the injuries were inflicted in course of sudden quarrel and,  therefore, Section 302 has no application.

6.      Learned counsel for the respondent-State on the other  hand supported the judgment of the Courts below.

7.      Coming to the acceptability of the prosecution version it  is to be noted that the trial court and the High Court found  the evidence of the injured eye witnesses to be credible.  The  testimony of an injured witness has significant relevance.   Though they were examined at length nothing brittle in their  testimony could be noticed.  The evidence of DW 1 is highly  improbable as was rightly held by the trial court and the High  Court. If she had been injured in the incident, it was not  explained as to why she did not report the matter to the police  immediately and the medical examination was done after  about two days. This conduct of DW 1 who happened to be the  wife of the accused has been rightly taken note of by the trial  court and the High Court. Therefore, there is no substance in  the plea of learned counsel for the appellant that the  prosecution version is not accepted.   

8.      Coming to the alternative plea the same needs careful  examination.

9.      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. 10.     The Fourth Exception of Section 300, IPC covers acts

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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 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  expression ’undue advantage’ as used in the provision means  ’unfair advantage’.     11.     The aforesaid aspects have been highlighted in Sridhar  Bhuyan v. State of Orissa (JT 2004 (6) SC 299), Prakash  Chand v. State of H.P. (JT 2004 (6) SC 302), Sachchey Lal  Tiwari v. State of Uttar Pradesh (JT 2004 (8) SC 534), Sandhya  Jadhav v. State of Maharashtra [2006(4) SCC 653] and  Lachman Singh v. State of Haryana [2006 (10) SCC 524].

12.     When the background facts are considered in the  touchstone of the legal principles elaborated above, the  inevitable conclusion is that Exception 4 to Section 300 has no  application. Appellant has been rightly convicted under  Section 302 IPC.

13.     The appeal is sans merit and is dismissed.  The accused  shall surrender to custody to serve remainder of sentence.