Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2284 OF 2009

Surain Singh .... Appellant(s)

Versus

The State of Punjab .... Respondent(s)

J U D G M E N T

R.K. Agrawal, J.

1)This appeal has been filed against the judgment and

order dated 02.09.2008 passed by the High Court of Punjab &

Haryana at Chandigarh in Criminal Appeal No. 209-DB of

1998 whereby the Division Bench of the High Court confirmed

the order dated 26.03.1998 passed by the court of Additional

Sessions Judge, Faridkot in Sessions Case No. 33 of 1995

wherein the appellant herein was convicted under Sections

302, 307 and 324 of the Indian Penal Code, 1860 (in short ‘the

IPC’) and sentenced to imprisonment for life along with fine.

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Page 2 2)Brief facts:

(a)Prosecution story, in brief, is that there was dispute

between one Shri Amrik Singh-the complainant and his

relatives on one side and accused persons on the other side

regarding their turn of irrigating their fields. On account of

this, earlier also there had been incidents of assaulting each

other. In the circumstances, both the parties were facing

proceedings under Sections 107/151 of the Code of Criminal

Procedure, 1973 (in short ‘the Code’) before the Executive

Magistrate, Faridkot.

(b)On 17.02.1995, when both the parties had come to the

court of Executive Magistrate, Faridkot, the complainant

(PW-1) along with his family members, viz., Raj Singh (PW-3),

Harbans Singh (since deceased), Sukhchain Singh (PW-2),

Mander Singh, Santa Singh (since deceased), Gursewak Singh,

Banta Singh and others was present in the court premises

whereas from the side of accused Surain Singh (the

appellant-accused) along with Jhanda Singh, Jasmail Singh,

Darshan Singh, Pal Singh, Boota Singh had also come to the

court in order to attend the proceedings.

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Page 3 (c)At about 11:00 a.m., both the sides started quarrelling

and had a heated exchange of words as Surain Singh (the

appellant-accused) objected to the presence of Bhajan Singh,

who was relative of Amrik Singh and not a party to the

proceedings. Surain Singh-the appellant-accused, took out

his Kirpan and gave a blow to Bhajan Singh. When the

complainant party tried to stop the appellant-accused, he gave

a Kirpan blow to Mander Singh. He also assaulted Harbans

Singh (since deceased) with Kirpan. Darshan Singh also took

out his Kirpan and started giving blows to Santa Singh (since

deceased). The injured were taken to Guru Gobind Singh

Medical Hospital Faridkot, where Santa Singh and Harbans

Singh succumbed to their injuries.

(d)A First Information Report (FIR) being No. 14 dated

17.02.1995 was registered at Police Station, Faridkot by the

complainant under Sections 302, 307, 324, 326, 148, 149 of

the IPC and the case was committed to the Court of Sessions

as Sessions Case No. 33 of 1995.

(e)Learned Additional Sessions Judge, vide order dated

26.03.1998, convicted the appellant-accused under Sections

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Page 4 302, 307 and 324 of the IPC and sentenced him to undergo

rigorous imprisonment (RI) for life along with fine for the

murder of Harbans Singh and Santa Singh. The appellant

herein was further sentenced to rigorous imprisonment (RI) for

1 (one) year for the offence under Section 324 of the IPC with

the direction that all the sentences shall run concurrently.

Since we are not concerned with the conviction and sentence

passed against the other accused in the present case, we

refrain from referring to the same.

f)Being aggrieved by the order dated 26.03.1998, the

appellant herein preferred an appeal being Criminal Appeal

No. 209-DB of 1998 before the High Court. The Division

Bench of the High Court, vide order dated 02.09.2008, partly

allowed the appeal of the appellant-accused while maintaining

the conviction and sentence with regard to murder of Harbans

Singh under Section 302 of the IPC, infliction of injury to

Sukhchain Singh under Section 307 of the IPC and infliction

of injuries on the person of Bhajan Singh and Mander Singh

under Section 324 of the IPC and acquitted him of the charge

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Page 5 under Section 302 of the IPC for the commission of murder of

Santa Singh.

g) Aggrieved by the order dated 02.09.2008, the

appellant-accused has filed this appeal by way of special leave

before this Court.

3)Heard learned counsel for the parties and perused the

material on record.

4)The only point for consideration before this Court is

whether the appellant-accused has made out a case for

conviction under Section 304 Part II instead of Section 302 of

the IPC?

5) Since the point for consideration is very limited in the

instant case, there is no need to traverse all the factual details

rather those having a bearing on the present appeal.

6)Before proceeding further, it is relevant to produce

Section 300 which is as under:-

“300.Murder--.Except in the case hereinafter excepted,

culpable homicide is murder, if the act by which the death is

caused is done with the intention of causing death, or--

Secondly-- If it is done with the intention of causing such

bodily injury as the offender knows to be likely to cause the

death of the person to whom the harm is caused, or--

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Page 6 Thirdly-- If it is done with the intention of causing bodily

injury to any person and the bodily injury intended to be

inflicted is sufficient in the ordinary course of nature to

cause death, or—

Fourthly—If the person committing the act knows that it is

so imminently dangerous that it must, in all probability,

cause death or such bodily injury as is likely to cause death,

and commits such act without any excuse for incurring the

risk of causing death or such injury as aforesaid.

Exception 1.—When culpable homicide is not murder .—

Culpable homicide is not murder if the offender, whilst

deprived of the power of self-control by grave and sudden

provocation, causes the death of the person who gave the

provocation or causes the death of any other person by

mistake or accident.

……x…..xx…..xx….. x……….

……x…..xx…..xx….. x……….

……x…..xx…..xx….. x……….

Exception 4-- Culpable homicide is not murder if it is

committed without premeditation in a sudden fight in the

heat of passion upon a sudden quarrel and without the

offender having taken undue advantage or acted in a cruel or

unusual manner.

Explanation- It is immaterial in such cases which party

offers the provocation or commits the first assault.

……….”

7)Exception 4 to Section 300 of the IPC applies in the

absence of any premeditation. This is very clear from the

wordings of the Exception itself. The exception contemplates

that the sudden fight shall start upon the heat of passion on a

sudden quarrel. The fourth exception to Section 300 IPC

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Page 7 covers acts done in a sudden fight. The said Exception deals

with a case of 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 an 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

could in such cases the whole blame be placed on one side.

For if it were so, the Exception more appropriately applicable

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Page 8 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 offenders 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

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Page 9 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”.

8)In State of A.P. vs. Rayavarapu Punnayya and

Another (1976) 4 SCC 382, this Court while drawing a

distinction between Section 302 and Section 304 held as

under:-

“12. In the scheme of the Penal Code, “culpable homicide” is

genus and “murder” its specie. All “murder” is “culpable

homicide” but not vice-versa. Speaking generally, “culpable

homicide” sans “special characteristics of murder”, is “culpable

homicide not amounting to murder”. For the purpose of fixing

punishment, proportionate to the gravity of this generic offence,

the Code practically recognises three degrees of culpable

homicide. The first is, what may be called, “culpable homicide of

the first degree”. This is the greatest form of culpable homicide,

which is defined in Section 300 as “murder”. The second may be

termed as “culpable homicide of the second degree”. This is

punishable under the first part of Section 304. Then, there is

“culpable homicide of the third degree”. This is the lowest type

of culpable homicide and the punishment provided for it is,

also, the lowest among the punishments provided for the three

9

Page 10 grades. Culpable homicide of this degree is punishable under

the second part of Section 304.

21. From the above conspectus, it emerges that whenever a

court is confronted with the question whether the offence is

“murder” or “culpable homicide not amounting to murder”, on

the facts of a case, it will be convenient for it to approach the

problem in three stages. The question to be considered at the

first stage would be, whether the accused has done an act by

doing which he has caused the death of another. Proof of such

causal connection between the act of the accused and the

death, leads to the second stage for considering whether that

act of the accused amounts to “culpable homicide” as defined in

Section 299. If the answer to this question is prima facie found

in the affirmative, the stage for considering the operation of

Section 300 of the Penal Code, is reached. This is the stage at

which the court should determine whether the facts proved by

the prosecution bring the case within the ambit of any of the

four clauses of the definition of “murder” contained in Section

300. If the answer to this question is in the negative the offence

would be “culpable homicide not amounting to murder”,

punishable under the first or the second part of Section 304,

depending, respectively, on whether the second or the third

clause of Section 299 is applicable. If this question is found in

the positive, but the case comes within any of the exceptions

enumerated in Section 300, the offence would still be “culpable

homicide not amounting to murder”, punishable under the first

part of Section 304, of the Penal Code.”

9)In Budhi Singh vs. State of Himachal Pradesh (2012)

13 SCC 663 this Court has held as under:-

18. The doctrine of sudden and grave provocation is

incapable of rigid construction leading to or stating any

principle of universal application. This will always have to

depend on the facts of a given case. While applying this

principle, the primary obligation of the court is to examine

from the point of view of a person of reasonable prudence if

there was such grave and sudden provocation so as to

reasonably conclude that it was possible to commit the

offence of culpable homicide, and as per the facts, was not a

culpable homicide amounting to murder. An offence

10

Page 11 resulting from grave and sudden provocation would normally

mean that a person placed in such circumstances could lose

self-control but only temporarily and that too, in proximity to

the time of provocation. The provocation could be an act or

series of acts done by the deceased to the accused resulting

in inflicting of injury.

19. Another test that is applied more often than not is that

the behaviour of the assailant was that of a reasonable

person. A fine distinction has to be kept in mind between

sudden and grave provocation resulting in sudden and

temporary loss of self-control and the one which inspires an

actual intention to kill. Such act should have been done

during the continuation of the state of mind and the time for

such person to kill and reasons to regain the dominion over

the mind. Once there is premeditated act with the intention

to kill, it will obviously fall beyond the scope of culpable

homicide not amounting to murder…..”

10)In Kikar Singh vs. State of Rajasthan (1993) 4 SCC

238, this Court held as under:-

“8. The counsel attempted to bring the case within Exception 4.

For its application all the conditions enumerated therein must

be satisfied. The act must be committed without premeditation

in a sudden fight in the heat of passion; (2) upon a sudden

quarrel; (3) without the offender’s having taken undue

advantage; (4) and the accused had not acted in a cruel or

unusual manner. Therefore, there must be a mutual combat or

exchanging blows on each other. And however slight the first

blow, or provocation, every fresh blow becomes a fresh

provocation. The blood is already heated or warms up at every

subsequent stroke. The voice of reason is heard on neither side

in the heat of passion. Therefore, it is difficult to apportion

between them respective degrees of blame with reference to the

state of things at the commencement of the fray but it must

occur as a consequence of a sudden fight i.e. mutual combat

and not one side track. It matters not what the cause of the

quarrel is, whether real or imaginary, or who draws or strikes

first. The strike of the blow must be without any intention to kill

or seriously injure the other. If two men start fighting and one

of them is unarmed while the other uses a deadly weapon, the

one who uses such weapon must be held to have taken an

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Page 12 undue advantage denying him the entitlement to Exception 4.

True the number of wounds is not the criterion, but the position

of the accused and the deceased with regard to their arms used,

the manner of combat must be kept in mind when applying

Exception 4. When the deceased was not armed but the

accused was and caused injuries to the deceased with fatal

results, the Exception 4 engrafted to Section 300 is excepted

and the offences committed would be one of murder.

9. The occasion for sudden quarrel must not only be sudden

but the party assaulted must be on an equal footing in point of

defence, at least at the onset. This is specially so where the

attack is made with dangerous weapons. Where the deceased

was unarmed and did not cause any injury to the accused even

following a sudden quarrel if the accused has inflicted fatal

blows on the deceased, Exception 4 is not attracted and

commission must be one of murder punishable under Section

302. Equally for attracting Exception 4 it is necessary that

blows should be exchanged even if they do not all find their

target. Even if the fight is unpremeditated and sudden, yet if

the instrument or manner of retaliation be greatly

disproportionate to the offence given, and cruel and dangerous

in its nature, the accused cannot be protected under Exception

4….”

11)Now, we have to consider the facts of this case on the

touchstone of Section 300 Exception 4 in order to find out

whether the case falls under the same or not. During the

course of hearing, learned counsel for the appellant-accused

strenuously contended before this Court that the High Court

recorded a categorical finding that “an inescapable conclusion

that can be drawn is that it was a case of sudden fight where

the attack was without pre-meditation.” He further contended

that despite holding so, the High Court erroneously convicted

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Page 13 the appellant-accused under Section 302 of the IPC instead of

Section 304 Part II on the ground that the appellant-accused

had acted in cruel manner and had caused injuries to six

persons and a death.

12)The appellant-accused, at the relevant time, was wearing

Kirpan and he took out the same and gave 3 or 4 blows on the

left side of the chest of Bhajan Singh. When the other side

came to his rescue, the appellant-accused gave a blow on the

back side of the waist of Mander Singh. The

appellant-accused was further found to have given a blow on

the backside of the left shoulder of Amrik Singh-the

complainant and also two blows each using Kirpan on the

right flank of Sukhchain Singh and Harbans Singh.

13)In view of the above, it is relevant to quote the statement

of Dr. Sarabjit Singh Sandhu (PW-4), who conducted the

autopsy on the body of Harbans Singh, which is as under:-

“On the same day, at 4.50 p.m. I also conducted the post

mortem examination on the dead body of Harbans Singh S/o

Mandir Singh R/o Pakhi Khurd 27 years age, male brought by

ASI Sukhdev Singh and HC Parson Singh No. 1432 of P.S.

City Faridkot. Body was identified by Bohar Singh S/o Ajmer

Singh and Tej Singh S/o Kartar Singh. Length of the body

was 5’9”. It was dead body of moderately built and moderately

nourished young man wearing Sweater, Shirt, Jarsi, Paint,

13

Page 14 Kachha, Turban, Short Kirpan with black thread, White

metallic kara in right forearm. P.M. staining as present series

of marked patches at the back of trunk and lower limbs.

Rigor mortis was present in the neck muscles and upper

limbs. Absent in lower limbs (developing stage) clothes were

blood stained and corresponding holes were present with

clothes. I found the following injuries on his person:-

1.An onlique stab wound 3 x 0.5 cm was present on the

lateral side of right side of chest in mid Axiliary line 22

cm below the Axillary apax. C.B.P. it was bone deep.

2.A transverse stab wound 2.0 x 5 cm was presentation

the right side back of abdomen, 8 cms below and lateral

of injury no. 1 on exploring, it was going medially and in

words cutting subcutaneous tissue, muscles, right

kidney. Peritoneum and large intestine. Peritoneum

cavity contained above 1000 C.C. of fluid and clotted

blood. Stomach contained about 150 C.C. of semi

digested food. All other organs were healthy.

All the injuries were anti mortem in nature. The cause of

death in this case in my opinion was due to right kidney

(hemorrhage and shock) and large intestine, as a result of

injury no. 2 which was sufficient to cause death in ordinary

course of nature.”

14)In the instant case, it is evident from the materials on

record that there was bitter hostility between the warring

factions to which the accused and the deceased belonged.

Criminal litigation was going on between these factions. It is

also proved from the material on record that the attack was

not premeditated and preplanned. Both the parties were

present in the Court of Executive Magistrate, Faridkot at the

relevant time with regard to the proceedings under Section

14

Page 15 107/151 of the Code. When the appellant-accused objected

the presence of a member of the opposite side, the scuffle

started between the parties which resulted into death of two

persons. The conduct of the appellant-accused that he at

once took out his Kirpan and started giving blows to the

opposite party proves that the attack was not premeditated

and it was because of the spur of the moment and without any

intention to cause death. The occasion for sudden fight must

not only be sudden but the party assaulted must be on an

equal footing in point of defence, at least at the onset.

15)The weapon used in the fight between the parties is

‘Kirpan’ which is used by ‘Amritdhari Sikhs’ as a spiritual tool.

In the present case, the Kirpan used by the appellant-accused

was a small Kirpan. In order to find out whether the

instrument or manner of retaliation was cruel and dangerous

in its nature, it is clear from the deposition of the Doctor who

conducted autopsy on the body of the deceased that stab

wounds were present on the right side of the chest and of the

back of abdomen which implies that in the spur of the

moment, the appellant-accused inflicted injuries using Kirpan

15

Page 16 though not on the vital organs of the body of the deceased but

he stabbed the deceased which proved fatal. The injury

intended by the accused and actually inflicted by him is

sufficient in the ordinary course of nature to cause death or

not, must be determined in each case on the basis of the facts

and circumstances. In the instant case, the injuries caused

were the result of blow with a small Kirpan and it cannot be

presumed that the accused had intended to cause the inflicted

injuries. The number of wounds caused during the

occurrence is not a decisive factor but what is important is

that the occurrence must have been sudden and

unpremeditated and the offender must have acted in a fit of

anger. Of course, the offender must not have taken any

undue advantage or acted in a cruel manner. It is clear from

the materials on record that the incident was in a sudden fight

and we are of the opinion that the appellant-accused had not

taken any undue advantage or acted in a cruel manner.

Where, on a sudden quarrel, a person in the heat of the

moment picks up a weapon which is handy and causes

16

Page 17 injuries, one of which proves fatal, he would be entitled to the

benefit of this Exception provided he has not acted cruelly.

16)Thus, if there is intent and knowledge then the same

would be a case of Section 304 Part I and if it is only a case of

knowledge and not intention to cause murder and bodily

injury then the same would fall under Section 304 Part II. We

are inclined to the view that in the facts and circumstances of

the present case, it cannot be said that the appellant-accused

had any intention of causing the death of the deceased when

he committed the act in question. The incident took place out

of grave and sudden provocation and hence the accused is

entitled to the benefit of Section 300 Exception 4 of the IPC.

17)Thus, in entirety, considering the factual scenario of the

case on hand, the legal evidence on record and in the

background of legal principles laid down by this Court in the

cases referred to supra, the inevitable conclusion is that the

act of the appellant-accused was not a cruel act and the

accused did not take undue advantage of the deceased. The

scuffle took place in the heat of passion and all the

requirements under Section 300 Exception 4 of the IPC have

17

Page 18 been satisfied. Therefore, the benefit of Exception 4 under

Section 300 IPC is attracted to the fact situations and the

appellant-accused is entitled to this benefit.

18)Thus, considering the factual background and the legal

position set out above, the inevitable conclusion is that the

appropriate conviction of the appellant-accused would be

under Section 304 Part II IPC instead of Section 302 IPC.

Hence, the sentence of imprisonment for 10 years would meet

the ends of justice.

19)The appeal is disposed of in the abovesaid terms.

………… .………………………J.

(A.K. SIKRI)

………… .………………………J.

(R.K. AGRAWAL)

NEW DELHI;

APRIL 10, 2017.

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