[2008] 11 S.C.R. 85

SHAMBHOO SINGH

II.

STATE OF RAJASTHAN (Criminal Appeal No. 1134 of 2008)

JULY 22, 2008

..J

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

Penal Code, 1860:

ss. 304 (Part I) 447, 307 and 324 - Death and injuries C caused - Land dispute between the accused and complainant parties - Occurrence took place during quarrel and exchange of hot words- Conviction by Courts below u/s 302, 447, 307 and 324 - On appeal, held: In view of the fact that the occurrence took place during course of sudden quarrel, con- D viction uls 302 altered to one uls. 304 (Part I) - Conviction under other provisions not interfered with - Sentence of life imprisonment altered to custodial sentence of 10 years.

s. 300 Exception 4 - Applicability of - Discussed.

s. 300 - Exception 1 and Exception 4 - Distinction between - Discussed.

Words and Phrases - 'Sudden quarrel' - Meaning of - In the context of s. 300 /PC. ·

F Appellant-accused was prosecuted for having caused death of a person and causing injuries to eyewitnesses. As per prosecution, when the deceased was ploughing his field and other eye-witnesses, brothers, father and mother of the deceased were working in the G field, appellant-accused alongwith his mother and father came and objected to their ploughing the field. A quarrel ensued and there were exchange of hot words. Appellant, then stabbed the deceased. He also assaulted the

85 H

A eye-witnesses causing injuries to them. Trial Court plac-

;; ol.

ing reliance on the evidence of the injured eye-witnesses convicted the appellant-accused u/ss. 302, 447, 307 and 324 IPC. For the offence u/s 302 he was sentenced to life imprisonment. High Court confirmed the conviction and B sentence.

In appeal to this court appellant contended that his ).. conviction u/s 302 IPC was not called for as the occurrence took place during the course of sudden quarrel. c Partly allowing the appeal, the Court

HELD: 1. In the background facts, the appropriate conviction would be under Section 304 Part I, IPC. Custodial sentence of 10 years would meet the ends of jus-

D tice. The conviction in respect of other offences and the sentences imposed do not suffer from any infirmity to warrant interference. [Para~ 8] [92-D & E]

2.1 For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was com-

E milted 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. For the application of Exception 4, it is not sufficient to show that there was a sudden

F 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 "un-· fair advantage". [PMas 6 and 7] [90-G, H;91-A; 92-B & C]

G 2.2 The Fourth 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 y is absence of premeditation. But, while in the case of Ex-

H ception 1 there is total deprivation of self-control, in case

of Exception 4, there is only that heat of passion which A 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 B 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. [Paras 7] [91-A, B, C & D] c

2.3 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 D would be Exception 1. There is no previous deliberation or determination to fight. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. Heat of passion requires that there must be no time for the pas- E sions 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 or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what F shall be deemed to be a sudden quarrel. [Paras 7] [91-

D, E, F; 92-A & B]

CRIMINALAPPELLATE JURISDICTION : Criminal Appeal No. 1134 of 2008

From the Judgment and final Order dated 3.1.2007 of the G High Court of Judicature for Rajasthan at Jodhpur in D.B. Crl.

Appeal No. 531n003

Shiv Kumar Suri for the Appellant.

Ansar Ahmad Chaudhary for the Respondent.

A The Judgment of the Court was delivered by

Dr. ARIJIT PASAYAT, J. 1. Leave granted.

2. The appellant questions legality of the judgment rendered by a Division Bench of the High Court of Rajasthan at B Jodhpur Bench. The learned Additional Sessions Judge No.2,

Udaipur found the accused guilty of offence punishable under Section 302 ofthe Indian Penal Code, 1860 (in short the 'IPC') and sentenced him to undergo RI for life and to pay a fine with default stipulation. He was also convicted for offence punish- C able under.Section 447 IPC and sentenced to undergo 15 days'

RI. Additionally, he was convicted for offence punishable under Section 307 IPC and sentenced to undergo 1 O years RI and pay a fine of Rs.100/-. Similarly, in respect of offence punishable under Section 324 IPC he was sentenced to undergo RI D for one year. In appeal, by the impugned judgment, High Court confirmed the judgment of conviction and sentence.

3. Prosecution version as unfolded during trial is as follows:

E On 3.8.1999, Vaje Singh (PW-1) lodged a First Information Report at Police Station Pahara stating, inter-alia that in the morning at about 9.00 a.m. his brother Jawan Singh (hereinafter referred to as the 'deceased') was ploughing the field.

He alongwith his father Guiab Singh and elder brother Ram F Singh was working in the field. At that time, his neighbour appellant Shambhoo Singh, his father Som Singh and mother Smt.

Jeevi arrived there abusing them. Appellant Shambhoo Singh was carrying knife in his hand. Som Singh and Smt. Jeevi were carrying lathis. They challenged them and questioned as to how they were ploughing the field of their possession. There ensued G a quarrel and exchange of hot words. Appellant Shambhoo Singh stabbed the knife on the chest of Jawan Singh. He caused another injury by knife on the stomach. On intervention by his father, appellant Shambhoo Singh caused injury by knife. He also caused injuries to his mother Smt. Shanta and elder brother H Ram Singh. Appellant Shambhoo Singh also caused injuries to

SHAMBHOO SINGH v. STATE OF RAJASTHAN 89

[DR. ARIJIT PASAYAT, J.]

>.;

him. Jawan Singh succumbed to the injuries on the spot. It was A

stated that there was a land dispute between them, which led to the unfortunate incident.

On this information, police registered a case and proceeded with the investigation. The post-mortem of the dead B body was conduced by Dr. Mahendra (PW-17) on the spot vide Ex.P-42. He noticed the following injuries on his person:

An intised stab wound - 2.0 cm x 1.0 cm x perforating up to chest cavity placed in 6th intercostal space below left Nipple place obliquely. c

On exploration - There is a wound of 1.55. cm x 1.0 cm x 2 cm deep left ventricle of the Heart. Cavity full of Blood.

An incised stab wound - 1.5 cm x 1.0 cm x thoracic D cavity deep 5 cm lateral to injury No. I placed obliquely.

On exploration of wound - There is a wound of 1.0 cm x 2 cm lung tissue deep placed on the left lung.

Thoracic cavity was full of blood.

E 3.

An incised stab wound - 2.0 cm x 1.0 cm x abdominal cavity deep. On exploration of wound - There was no injury to any Abdominal Viscera. Intestinal loops are protruding through this wound.

Abrasion- 2.5 cm x 1.0 cm placed on upper 1 /3rd on F medial side of right leg.

The cause of death was shock due to severe bleeding following stab wound to chest and abdomen. The injured persons namely PW-1 Vaje Singh, PW-10 Guiab Singh G and PW-3 Smt. Shanta were sent to the hospital. Their injuries were examined by PW-1 I, Dr. B.P. Verma. He examined the injuries of PW-1 Vaje Singh vide Ex. P-12 and noticed the following injury on his person:

Incised wound 4 x 2 x 1 1/2 cm on left gluteus.

.He also examined the i.njuries of PW-10 Gui.ab Singh vide

Ex.P -11 and noticedthe following injuries:

Stab wound transversely with bleeding on left intra mammary region 4x 1. x plural cavity deep surgical em pug sema left side.

He also examined the injuries of PW=-3 Smt Shanta vide )o.- Ex. P'.'"13 and noticed the following injuries:

Incised wound 1 Yz x 1/2 x Yz cm on-Right-arm M/3rd Ant.

After usual investigation, thE? police .laid charge sheet against appellant Shambhoo Singh, his father Som Singh and mother Smt. Jeevi for offence under Sections 302, 307, 326. 324, 447/34 IPC. The accused pers6hs pleaded not guilty of the charges levelled against them and claimed trial.

The trial Court placing relince on the evidence' of PWs 1 , 2, 3 iand 10 found the evidence to be credible and cogent. It founc; I the evidence of the injured witness to .be ithout any blemish. Accordingly, the trial Court recorded the convic;; tion and sentence as afore-noted.

In appeal before the High Court, the primary stand taken. was that the ocular evidence does not inspire corro.boration. It was submitted that in any event offence punish.able under Section 302 IPC is not made out as the occurrence occurred in F course of sudden quarrel. The High Court did not find any substance and dismissed the appeal.

4. In support of the appeal, learned counsel for the appellant submitted that the occurrence took place during the course of sudden quarrel and, therefore, Section 302 IPC has ilo ap- G plication.

5. Learned counsel for the respondent-State supported the judgments of the trial Court and tha High Court.

6. For bringing in operation of Exception 4 to Section 300 H IPC, it has to be established that the act war:: committed without

[DR ARIJIT PASAYAT, J.] 91

. premeditation, in a sudden fight in the heat of passion upon a A sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

7. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of 8 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 C 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 di_rect 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 D originof 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 mutu-al provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor E 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 fig ht. A fig ht suddenly takes place, for which both parties are more or less to be blamed. It may be that one of F them starts it, but if the other had not aggravated it by his ovvn 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) c; without premeditation; (b) in a sudden fight; (c) without the offender 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" H

A 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 have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a corns bat between two or 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 c 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".

8. In the background facts as considered in the light of evidence the inevitable conclusion is that the appropriate conviction would be under Section 304 Part 1, IPC. Custodial sentence of 10 years would meet the ends of justice. The conviction in respect of other offences and the sentences imposed do E not suffer from any infirmity to warrant interference. The sentences shall run concurrently.

9. The appeal is allowed to the aforesaid extent.

K.K.T.

Appeal partly allowed.

; r , I