Supreme Court of India
KALA SINGH @ GURNAM SINGH versus STATE OF PUNJAB on 21 September 2021
KALA SINGH @ GURNAM SINGH
v.
STATE OF PUNJAB
(Criminal Appeal Nos. 1040-1041 of 2021)
SEPTEMBER 21, 2021
[R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
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Penal Code, 1860 – s.304 Part II r/w s.34 and s.201 –Appellant-accused and deceased had a sudden fight – In the heatCof passion, the co-accused, who had rod with him, gave a blowwith the rod on the head of deceased resulting in his death –Thereafter appellant and co-accused hurled the dead body ofdeceased in the canal – Appellant and co-accused were convictedby the Sessions Court u/ss.302/34 and s.201 IPC – High CourtDmodified the conviction u/s.302 IPC to that u/s.304 Part-I IPC –On appeal, held: Sudden fight took place in the heat of passionupon a sudden quarrel – There was no pre-meditation – As therewas no intention on the part of the appellant and co-accused eitherto cause death or cause such bodily injury as is likely to causedeath, the High Court ought not to have convicted the appellantEu/s.304 Part-I IPC – Conviction of appellant u/s.304 Part-I / s.34IPC modified to that u/s.304 Part-II/s.34 IPC – His convictionu/s.201 IPC maintained.
Partly allowing the appeals, the Court
HELD:1. On the fateful day, the appellant, co-accused anddeceased went to the house of one Hardev Singh Arora and theytook one bottle of liquor with them. Thereafter they went tobridge of Doda Minor through Harike passage. There theyconsumed liquor where there was a quarrel between theappellant and deceased alleging that deceased had stolen thepigeon of appellant. The co-accused who had a rod with him, gavea rod blow on the head of deceased. Immediately thereafter hefell down and as there was no response even after half an hour,they have shifted the body to the minor canal. It is clear fromthe evidence and other material placed on record that there was
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Ano intention to kill the deceased. It is clear from the evidenceon record that the scuffle had taken place on the spur of themoment and a sudden fight had taken place in the heat of passionupon a sudden quarrel. It was not a pre-meditated one and asthere was no intention on the part of the appellant and co-Baccused either to cause death or cause such bodily injury as islikely to cause death, the High Court ought not to haveconvicted the appellant for the offence under Section 304 Part-I IPC. In absence of any intention on the part of the appellant,it is a clear case where the conviction of the appellant is to bemodified to one under Section 304 Part-II IPC by maintainingCthe conviction for the offence under Section 201 IPC. [Para 9][229-B-F]
2. The conviction of the appellant is modified from the oneunder Section 304 Part-I/34 IPC to the one under Section 304Part-II/34 IPC. The appellant is hereby sentenced to undergoDrigorous imprisonment for a period of seven years and the fineof Rs.10,000/- imposed by the High Court is maintained.Further, conviction of the appellant for the offence under Section201 IPC and sentence of three years’ rigorous imprisonment andthe fine of Rs.500/- are also maintained. [Para 11][231-E]
EUday Singh v. State of U.P. (2002) 7 SCC 79 ;Shahajan Ali & Ors. etc. v. State of Maharashtra &Ors. etc. (2017) 11 SC 807 – relied on.
Case Law Reference
(2002) 7 SCC 79relied onPara 7F(2017) 11 SC 807relied onPara 10CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos.1040-1041 of 2021.
From the Judgments and Orders dated 08.02.2019 and 01.03.2019Gof the High Court of Punjab and Haryana at Chandigarh in CriminalAppeal No.713 DB of 2003.
Bharat Sood, P. S. Sudheer, Advs. for the Appellant.
Ms. Jaspreet Gogia, Ms. Mandakini Singh, Karanvir Gogia,Ms. Shivangi Singhal, Ms. Ashima Mandla, Advs. for the Respondent.H
The Judgment of the Court was delivered by
R. SUBHASH REDDY, J.
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1. Leave granted.
2. These appeals are filed against the final judgment and ordersdated 08.02.2019 and 01.03.2019 passed by the High Court of Punjab& Haryana at Chandigarh in Criminal Appeal No.713 of 2003. HighCourt has modified the conviction from Section 302 IPC to Section 304Part-I r/w Section 34, IPC, and sentenced to 12 years’ rigorousimprisonment and a fine of Rs.10,000/-. The conviction under Section201 IPC was maintained.
3. It is alleged that, the appellant and the deceased had a suddenfight as the deceased had stolen the pigeon of the appellant and in theheat of passion upon a sudden quarrel, the co-accused (Kehar Singh)who had rod with him, gave a blow with the rod on the right side ofthe head of the deceased resulting in his death. It is further allegedthat, thereafter the appellant and co-accused have thrown the dead bodyof the deceased in the minor canal.
4. Before the trial court, the co-accused was charged for offenceunder Sections 302 and 201 IPC, whereas the appellant was chargedfor offence under Sections 302/34 and 201 IPC. They were convictedby the Sessions Court for the aforesaid offences and they weresentenced to rigorous imprisonment for life for the offence underSections 302/34 IPC and three years’ rigorous imprisonment for theoffence under Section 201 IPC, apart from the fine.
5. In the appeal filed before the High Court, High Court has foundthat as the deceased had stolen the pigeon of appellant-accused KalaSingh, scuffle took place between Shamber Singh (deceased) and theappellant Kala Singh. It is further held that the co-accused Kehar Singhgave blow with the rod on the head of the deceased Shamber Singh.As a result of such blow Shamber Singh fell down and died. The HighCourt has categorically found that scuffle had taken place on the spurof the moment and that sudden fight had taken place in the heat ofpassion, upon a sudden quarrel and it was not a pre-meditated act. Ithas also come on record that appellant, the co- accused and the deceasedhad consumed liquor and even in the chemical examiner report it wasfound that deceased had also consumed liquor. The High Court hasmodified the conviction from Section 302 IPC to 304 Part-I IPC and BC
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Aimposed the sentence, of 12 years’ rigorous imprisonment and to pay afine of Rs.10,000/-, on the appellant herein and co-accused for theoffence under Section 304 Part-I with a default clause that in the eventof non-payment of fine, they shall undergo rigorous imprisonment for afurther period of six months.B6. We have heard Sri Bharat Sood, learned counsel for theappellant and Ms. Jaspreet Gogia, learned counsel for the State ofPunjab.
7. The only submission made by learned counsel for the appellantSri Bharat Sood is that there was no intention at all on the part of theCappellant-accused to kill the deceased. It is submitted that the appellant,co-accused and deceased had consumed liquor and on the ground thatthe deceased had stolen pigeon of appellant Kala Singh, scuffle tookplace between deceased Shamber Singh and appellant Kala Singh. Itis submitted that at that point of time, the co-accused Kehar Singh gaveone rod blow on the head of the deceased Shamber Singh which resultedDinto his death. It is submitted that scuffle had taken place on the spurof the moment and that sudden fight had taken place in the heat ofpassion upon a sudden quarrel. It was not a pre-meditated act and therewas no intention at all to kill the deceased. It is submitted that havingregard to the reasoning assigned by the High Court itself High Courtought to have modified the conviction to Section 304 Part-II but notE304 Part-I, as ordered. To buttress his argument, learned counsel hasplaced reliance on a judgment of this Court in the case of Uday Singhv. State of U.P.[1]wherein this Court has modified the conviction to oneunder Section 304 Part-II IPC. Learned counsel by further submittingthat appellant has already served more than three years of sentence,Fmade a request to reduce the sentence by converting the conviction toone under Section 304 Part-II IPC.
8. On the other hand, Ms. Jaspreet Gogia, learned counsel forthe State of Punjab has contended that there are absolutely no groundsto interfere with the judgment of conviction and order of sentenceGpassed by the High Court. It is submitted that sufficient leniency isalready shown to the appellant-accused and there are no grounds tointerfere with the impugned judgment. It is further contended that thecase law which is relied on by the appellant is distinguishable on factsand cannot be applied to the facts of the case on hand.H1 (2002) 7 SCC 79
9. Having heard learned counsels on both sides, we haveperused the impugned judgment and other material placed on record.It is clear from the impugned judgment and other material placed onrecord that the incident happened one day prior to the date ofpanchayat elections. On the fateful day, the appellant, co-accused anddeceased went to the house of one Hardev Singh Arora and they tookone bottle of liquor with them. Thereafter they went to bridge of DodaMinor through Harike passage. There they consumed liquor where therewas a quarrel between the appellant and deceased Shamber Singhalleging that deceased Shamber Singh had stolen the pigeon of appellantherein. The co-accused Kehar Singh who had a rod with him, gave arod blow on the head of Shamber Singh. Immediately thereafter he felldown and as there was no response even after half an hour, they haveshifted the body to the minor canal. It is clear from the evidence andother material placed on record that there was no intention to kill thedeceased Shamber Singh. It is clear from the evidence on record thatthe scuffle had taken place on the spur of the moment and a suddenfight had taken place in the heat of passion upon a sudden quarrel. Itwas not a pre-meditated one and as there was no intention on the partof the appellant and co-accused either to cause death or cause suchbodily injury as is likely to cause death, the High Court ought not tohave convicted the appellant for the offence under Section 304 Part-IIPC. In absence of any intention on the part of the appellant, we areof the view that it is a clear case where the conviction of the appellantis to be modified to one under Section 304 Part-II IPC by maintainingthe conviction for the offence under Section 201 IPC. The case lawwhich is relied on by the learned counsel for the appellant also supportsthe case of the appellant for converting his conviction from the oneunder Section 304 Part-I IPC to the one under Section 304 Part-II IPC.
10. The judgment relied on by the counsel for the appellant, inthe case of Uday Singh v. State of U.P.[1]supports the case of theappellant. The relevant paragraphs 6 and 7 read as under :
“6. From the findings recorded by the trial court as well as theHigh Court, it is clear that the fight between the two partiesstarted all of a sudden as a result of obstruction caused in diggingof the foundation and there is no evidence to show that theaccused attacked the deceased with deadly or dangerous arms(or weapons). It was only in a fight, hand to fist, that both GaindaSingh and the appellant had held the neck of the deceased, AB
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AShishupal Singh with such force as to ultimately result instrangulation and his death. It is very difficult to conceive as tohow much pressure was applied either by Gainda Singh or theappellant on the deceased’s neck so as to cause death. It wouldbe reasonable to hold that the injuries were caused by theappellant on the deceased in a sudden fight where no arms (orBweapons) were used and that fight took place in the heat ofpassion and no common intention to kill the deceased could beinferred. We cannot definitely conclude who actually inflicted thefatal injury as the evidence on record discloses that Gainda Singhand the appellant both strangled the deceased, which action isCpart of the sudden unarmed fight nor can we conclude that theappellant had an intention to cause death or cause such bodilyinjury as is likely to cause death, though we attribute to himknowledge that such act is likely to cause death. Thus theappellant and Gainda Singh are guilty of culpable homicide notamounting to murder.
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7. In the circumstances, we set aside the conviction recordedby the trial court as affirmed by the High Court under Section302 read with Section 34 and instead convict him under Section304 Part II and reduce the sentence to imprisonment for a periodof seven years. The bail granted earlier shall stand cancelled andEthe appellant shall surrender before the trial court and becommitted to prison to serve out the remaining part of thesentence.”
So also, the judgment in the case of Shahajan Ali & Ors. etc.v. State of Maharashtra & Ors. etc.[2]supports the case of theFappellant. Paragraph 8 of the judgment, which is relevant, reads asunder :
“8. We have no doubt about the complicity of all the accused inthe homicide of Sarfraj. A-1 attacked the deceased with the knifeand caused injury on his neck which resulted in his death. TheGother accused assisted him in committing the crime by holdingthe hands of the deceased. However, the only question that fallsfor our consideration is whether the accused are liable to bepunished for an offence under Section 302 IPC. After considering the submissions made by the counsel for the appellants andscrutinising the material on record, we are of the opinion thatthe accused are not liable to be convicted under Section 302 IPC.We are convinced that there was neither prior concert norcommon intention to commit a murder. During the course of theirbusiness activity the accused reached the dhaba where thedeceased was present. An altercation took place during thediscussion they were having behind the dhaba. That led to asudden fight during which A-1 attacked the deceased with aknife. Exception 4 to Section 300 IPC is applicable to the factsof this case. As we are convinced that the accused areresponsible for the death of Sarfraj, we are of the opinion thatthey are liable for conviction under Section 304 Part II IPC. Weare informed that A-1 has undergone a sentence of seven yearsand that A-2 to A-4 have undergone four years of imprisonment.We modify the judgment of the High Court converting theconviction of the accused from Section 302 to Section 304 PartII IPC sentencing them to the period already undergone. Theyshall be released forthwith.”
11. In view of the aforesaid reasons, these appeals are allowedin part and conviction of the appellant is modified from the one underSection 304 Part-I/34 IPC to the one under Section 304 Part-II/34 IPC.
The appellant is hereby sentenced to undergo rigorous imprisonmentfor a period of seven years and the fine of Rs.10,000/- imposed by theHigh Court is maintained. Further, conviction of the appellant for theoffence under Section 201 IPC and sentence of three years’ rigorousimprisonment and the fine of Rs.500/- are also maintained.
Bibhuti Bhushan Bose
Appeals partly allowed.
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