GURWINDER SINGH @ SONU ETC. versus STATE OF PUNJAB AND ANR. on 8 May 2018

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SUPREME COURT REPORTS

[2018] 4 S.C.R.

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GURWINDER SINGH @ SONU ETC.

v.

STATE OF PUNJAB AND ANR.

(Criminal Appeal Nos. 2301-2302 of 2014)

BMAY 08, 2018

[RANJAN GOGOI AND R. BANUMATHI, JJ.]

Penal Code, 1860 – ss. 304 Part I, 300 Exception 4, 302 r/w 34– Murder – Parties assembled to settle land dispute – Exchange ofwords resulting in scuffle between the parties – Appellant G broughtCaxe from the room – Appellant S held the victim from arms and Ginflicted axe blow to victim on his head – Appellants also sustainedinjuries – Complaint lodged after five days – Victim succumbed tohis injuries a month later – Conviction of accused G u/s. 302 andaccused S u/s. 302 r/w s. 34 and sentenced accordingly – UpheldDby the High Court – On appeal, held: Since both the accusedsustained injuries in the incident, non-explanation of injuriessustained by the accused assumes significance – There was noprovocation from either side – Exchange of words resulted in scuffle– Evidence of the doctor that the victim was drunk at the time of theincident – It was in this circumstance, appellant G went inside theEroom and brought an axe and hit on the head of the victim – Noclear evidence as to who started the attack – Both the parties wereunarmed – Though accused G used the axe but victim survived forabout one month – Appellants thus, did not take undue advantageof the same – There was also a delay of five days in lodging the FIRF– Act of the accused would fall under “exception 4” to s. 300 –Weapon used in the manner in which the injury was inflicted clearlyestablish that the appellants intended to cause the injury whichwas sufficient in the ordinary course of nature to cause death – Inview thereof, the conviction of the appellants u/s. 302 read with s.34 modified to one u/s. 304 Part-I and sentenced to imprisonmentGfor seven years.

Partly allowing the appeals, the Court

HELD: 1.1 When there was exchange of words, there wasa scuffle between both the parties. In the same transaction where H

‘H’ was attacked, the accused party also sustained injuries. Apartfrom the stray, the statement made by the complainant in theFIR, the prosecution has not offered any explanation for theinjuries sustained by the accused. Since both the accusedsustained injuries in the incident, non-explanation of injuriessustained by the accused assumes significance. Having regardto the injuries sustained by the accused, the trial court and theHigh Court ought to have made an effort in searching out genesisof the occurrence. [Para 12][368-H; 369-A-B]

Takhaji Hiraji v. Thakore Kubersing Chamansing andOthers (2001) 6 SCC 145 – referred to.

1.2 From the evidence, it is clear that both families haveassembled and they were talking near the tubewell to resolvethe land dispute. There was no provocation from either side. Inhis evidence, PW-6 has clearly stated that there was exchange ofwords which resulted in scuffle between both the parties. It hascome from the evidence of the doctor that ‘H’ was drunk at thetime of the incident. It is in this circumstance, appellant ‘GS’ hadgone inside the room adjacent to the tubewell and brought anaxe and hit on the head of deceased ‘H’. Accused also sustainedinjuries in the same incident. [Para 13][369-C-D]

1.3 There is no clear evidence as to who started the attack.Both the parties were unarmed. When there was exchange ofwords between both the parties, accused ‘GS’ went inside theroom and brought an axe and caused head injuries to ‘H’. Fromthe post-mortem certificate, it is seen that deceased ‘H’ sustainedhead injuries with multiple fractures, right fronto temporal andtemporo parietal region in the right fronto temporo parietal regionof the brain, haemorrhagic contusions in bilateral temporal regionand right parietal region. However, deceased ‘H’ survived forabout one month and he succumbed to injuries on 01.12.2007.Though accused ‘GS’ used the axe which is a formidable weapon,but ‘H’ survived for about one month. The appellants thereforecannot be said to have taken undue advantage of the same. Therewas also a delay of five days in lodging the FIR; the reason being,talks were still going on for settling the matter. Considering thetotality of the circumstances, the act of the accused would fallunder “Exception 4” to Section 300 IPC. [Para 14][369-E-H]

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[2018] 4 S.C.R.

ABhuyan v. State of Orissa (2004) 11 SCC 395 :[2004] 3 Suppl. SCR 395 – referred to.

1.4 The third clause of Section 300 IPC consists of twoparts. Under the first part, it must be proved that there was anintention to inflict the injury that is present and under the secondBpart, it must be proved that the injury was sufficient in the ordinarycourse of nature to cause death. The deceased sustained headinjuries with multiple fractures, right fronto temporal and temporoparietal region infarct in the right fronto temporo parietal regionof the brain, hemorrhagic contusions in bilateral temporal regionand right parietal region. The weapon used in the manner in whichCthe injury was inflicted clearly establishes that the appellantsintended to cause the injury which is sufficient in the ordinarycourse of nature to cause death. Having regard to the facts andcircumstances of the case, the conviction of the appellants underSection 302 IPC read with Section 34 IPC is modified as convictionDunder Section 304 Part-I IPC and the appellants are sentencedto undergo imprisonment for seven years. [Paras 17-19][371-D-E; 372-B-C, D]

Nankaunoo v. State of Uttar Pradesh (2016) 3 SCC317 : [2016] 4 SCR 627 – referred to.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 2301-2302 of 2014.

From the Judgment and Order dated 17.12.2012 of the High CourtGof Punjab and Haryana at Chandigarh in CRA No. 1176 DB of 2010 and1222 DB of 2010.

Ahmed Faraz Khan, Deepak Goel, Advs for the Appellants.

Ms. Uttara Babbar, Ms. Akanksha Choudhary, Ms. ShraddhaBhargava, Mohit D. Ram, Advs for the Respondents.H

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. These appeals arise out of the judgmentdated 17.12.2012 passed by the High Court of Punjab and Haryana atChandigarh in CRA No.1176 DB of 2010 and CRA No.1222 DB of2010 in and by which the High Court affirmed the conviction of theappellants under Section 302 IPC read with Section 34 IPC and sentencepassed by the trial Court.

2. Case of the prosecution is that Sukhwinder Singh (PW-6) is theson of deceased Harbhajan Singh. Satnam Singh who is the youngerbrother of deceased Harbhajan Singh is residing separately in the villageand other two younger brothers of Harbhajan Singh have gone to Italy.The land falling to other brothers’ share is being cultivated by SatnamSingh; but they desired that their land should be cultivated by HarbhajanSingh. For amicable settlement, the matter went to the Panchayat severaltimes; but could not be solved. Few days prior to the occurrence, dog ofSatnam Singh went missing, who blamed the family of Harbhajan Singhfor missing of the said dog. On 02.11.2007 at about 04.00 p.m., bothfamilies gathered to discuss the issue regarding the land and missing ofdog. Complainant-Sukhwinder Singh, deceased Harbhajan Singh, his uncleSatnam Singh, Gurwinder Singh alias Sonu son of Satnam Singh andother villagers namely Sandeep Singh, Makhan Singh also participatedin the said gathering, which took place on the tubewell situated nearvillage Dasupur. During discussion for settlement, there was exchangeof hot words and the appellants Satnam Singh and Gurwinder Singhgave fist and kick blows to them. Satnam Singh also raised ‘Lalkara’ tocatch hold Harbhajan Singh to teach him a lesson for partitioning theland. In the meanwhile, appellant Gurwinder Singh brought an axe fromthe room near the tubewell and Satnam Singh held Harbhajan Singhfrom the arms. Gurwinder Singh gave axe blow to Harbhajan Singhwhich hit him on his head and Harbhajan Singh became soiled with blood.

3. The complainant-Sukhwinder Singh took his father to CivilHospital, Kartarpur. After the first aid, Harbhajan Singh was referredto Joshi Hospital, Jalandhar where he was admitted for further treatment.Even after the incident, since the talk for compromise was going on, nocomplaint was lodged about the incident. Since the matter could not besettled, Sukhwinder Singh lodged the complaint on 07.11.2007, based onwhich FIR No.178 of 2007 was registered under Section 307 IPC read A

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Awith Section 34 IPC. Initial investigation was taken up by the investigatingofficer. Harbhajan Singh succumbed to injuries on 01.12.2007 and thecase was altered into Section 302 IPC read with Section 34 IPC.Dr. M.B. Bali, Medical Officer (PW-1) conducted the autopsy on thedead body of Harbhajan Singh. Further investigation was completed andcharge sheet was filed against the appellants/accused persons underBSection 302 IPC read with Section 34 IPC.

4. To bring home the guilt of the accused, prosecution has examinedSukhwinder Singh (PW-6), Sandeep Singh (PW-7), Dr. M.B. Bali,Medical Officer (PW-1) and other witnesses. The appellants/accusedwere questioned under Section 313 Cr.P.C. about the incriminatingCevidence and circumstances and the accused denied all of them. On theside of the accused, defence witnesses Dr. Mohinderjit Singh (DW-1)and Kuldeep Kaur (DW-2) were also examined.

5. Upon consideration of evidence, the trial court held that by theevidence of Sukhwinder Singh (PW-6) and Sandeep Singh (PW-7), theDprosecution has established the guilt of the accused beyond reasonabledoubt. The trial court rejected the defence version that Mithu, servant ofthe accused, caused injuries to deceased Harbhajan Singh as unbelievable.On such findings, the trial court convicted the appellants/accusedGurwinder Singh under Section 302 IPC and Satnam Singh under SectionE302 IPC read with Section 34 IPC and sentenced them to undergo lifeimprisonment and also to pay a fine of Rs.10,000/- each. Being aggrieved,the appellants preferred appeal before the High Court and the HighCourt confirmed the conviction and the sentence imposed upon theappellants by the trial court. Hence, this appeal.

F6. Assailing the verdict of the conviction, learned counsel for theappellants submitted that since there was a delay of five days in lodgingthe First Information Report, serious doubts arise as to the prosecutioncase. It was contended that the appellants/accused also sustained injuriesfor which the prosecution has offered no explanation and that theprosecution has suppressed the genesis of the occurrence. LearnedGcounsel for the appellants inter alia contended that even if theaccusations of the prosecution are accepted in toto, offence under Section302 IPC is not made out in view of the circumstances emerging fromthe evidence as the attack was in a sudden quarrel when parties haveassembled for settling the land dispute.

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7. In reply, learned counsel for the State submitted that consideringthe evidence adduced by the prosecution and the nature of head injuriesinflicted on the deceased, the trial court was justified in recording theconviction under Section 302 IPC and the High Court has rightly dismissedthe appeal.

8. Evidence of eye witnesses Sukhwinder Singh (PW-6) andSandeep Singh (PW-7) were corroborated by the medical evidence.Prosecution has established that accused were responsible for causingdeath of Harbhajan Singh. In the same incident, appellant Satnam Singhalso sustained injuries. On the same day i.e. 02.11.2007 at 04.45 p.m.,Dr. Mohinderjit Singh (DW-1), Medical Officer examined accusedSatnam Singh and noted the following injuries on the person of SatnamSingh:-

1. An incised wound 6.0 cm × 0.5 cm on the frontal region;

2. An incised wound 5.5 cm × 0.5 cm on the left frontal region.The patient was discharged after treatment.

On the same day, Dr. Mohinderjit Singh (DW-1) also examinedaccused Gurwinder Singh and noted the following injuries on the personof Gurwinder Singh:-

1. An incised wound 3.0 cm × 0.5 cm right temporal parietal region;

2. Abrasion right side frontal region 0.5 cm × 0.5 cm;

3. Lacerated wound forearm 3.0 cm × 0.5 cm.

9. Contention of the appellants is that prosecution has not explained the injuries on the person of the accused and only the complainant partyattacked the accused and the complainant party are the aggressors. Inhis statement, Sukhwinder Singh has stated that he attacked on the headof Satnam Singh and caused injury to him. Arguments advanced onbehalf of the appellants is that the complainant party were the aggressorsand that the prosecution failed to explain the injuries on the persons ofthe accused and therefore, the case of prosecution should be disbelieved.

10. It cannot be held as an invariable proposition that as soon asthe accused received the injuries in the same transaction, the complainantparty were the aggressors - it cannot be held as a rule that the prosecutionis obliged to explain the injuries and on failure of the same, the prosecution A

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Acase should be disbelieved. It is well settled that before placing theburden on the prosecution to explain the injuries on the person of theaccused, two conditions are to be satisfied:- (i) the injuries were sustainedby the accused in the same transaction; and (ii) the injuries sustained bythe accused are serious in nature.

B11. This Court considered the effect of non-explanation of injuriessustained by the accused person in Takhaji Hiraji v. ThakoreKubersing Chamansing and others (2001) 6 SCC 145 and held asunder:- “17. The first question which arises for consideration is what isCthe effect of non-explanation of injuries sustained by the accusedpersons. In Rajender Singh v. State of Bihar (2000) 4 SCC 298,Ram Sunder Yadav v. State of Bihar (1998) 7 SCC 365 andVijayee Singh v. State of U.P. (1990) 3 SCC 190, all three-JudgeBench decisions, the view taken consistently is that it cannot beheld as a matter of law or invariably a rule that whenever theDaccused sustained an injury in the same occurrence, theprosecution is obliged to explain the injury and on the failure ofthe prosecution to do so the prosecution case should be disbelieved.Before non-explanation of the injuries on the persons of theaccused persons by the prosecution witnesses may affect theEprosecution case, the court has to be satisfied of the existence oftwo conditions: (i) that the injury on the person of the accusedwas of a serious nature; and (ii) that such injuries must have been-caused at the time of the occurrence in question. Nonexplanationof injuries assumes greater significance when the evidence consistsof interested or partisan witnesses or where the defence gives aFversion which competes in probability with that of the prosecution.Where the evidence is clear, cogent and creditworthy and wherethe court can distinguish the truth from falsehood the mere factthat the injuries on the side of the accused persons are notexplained by the prosecution cannot by itself be a sole basis toGreject the testimony of the prosecution witnesses and consequentlythe whole of the prosecution case.” (underlining added)

12. In the present case, the incident had taken place near thetubewell where both the parties assembled to settle the land dispute.When there was exchange of words, there was a scuffle between bothHthe parties. In the same transaction where Harbhajan Singh was attacked, the accused party also sustained injuries. Apart from the stray, thestatement made by the complainant-Sukhwinder Singh in the FIR, theprosecution has not offered any explanation for the injuries sustained bythe accused. Since both the accused sustained injuries in the incident,non-explanation of injuries sustained by the accused assumessignificance. Having regard to the injuries sustained by the accused, thetrial court and the High Court ought to have made an effort in searchingout genesis of the occurrence.

13. From the evidence, it is clear that both families have assembledand they were talking near the tubewell to resolve the land dispute.There was no provocation from either side. In his evidence, SukhwinderSingh (PW-6) has clearly stated that there was exchange of words whichresulted in scuffle between both the parties. It has come from theevidence of Dr. Mohinderjit Singh (DW-1) that Harbhajan Singh wasdrunk at the time of the incident. While examining Harbhajan Singh atthe time of his admission in the hospital, Dr. Moninderjit Singh (DW-1)observed that “there was alcoholic smell present in the breath of thepatient”. It is in this circumstance, appellant Gurwinder Singh had goneinside the room adjacent to the tubewell and brought an axe and hit onthe head of deceased Harbhajan Singh. As pointed out earlier, accusedalso sustained injuries in the same incident.

14. There is no clear evidence as to who started the attack. Boththe parties were unarmed. When there was exchange of words betweenboth the parties, accused Gurwinder Singh went inside the room andbrought an axe and caused head injuries to Harbhajan Singh. From thepost-mortem certificate (Ex.PA), it is seen that deceased HarbhajanSingh sustained head injuries with multiple fractures, right fronto temporaland temporo parietal region in the right fronto temporo parietal region ofthe brain, haemorrhagic contusions in bilateral temporal region and rightparietal region. However, deceased Harbhajan Singh survived for aboutone month and he succumbed to injuries on 01.12.2007. Though accusedGurwinder Singh used the axe which is a formidable weapon, butHarbhajan Singh survived for about one month. The appellants thereforecannot be said to have taken undue advantage of the same. There wasalso a delay of five days in lodging the FIR; the reason being, talks werestill going on for settling the matter. Considering the totality of thecircumstances, in our view, the act of the accused would fall under“Exception 4” to Section 300 IPC.

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15. For bringing in operation of “Exception 4” to Section 300IPC, it has to be established that the act was committed withoutpremeditation, in a sudden fight in the heat of passion upon a suddenquarrel without the offender having taken undue advantage and not havingacted in a cruel or unusual manner.

16. Considering the scope of “Exception 4” to Section 300 IPC,in Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395, it was heldas under:-

“8. The fourth exception of Section 300 IPC covers acts done ina sudden fight. The said exception deals with a case of prosecutionnot covered by the first exception, after which its place wouldhave been more appropriate. The exception is founded upon thesame 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 passionwhich clouds men’s sober reason and urges them to deeds whichthey would not otherwise do. There is provocation in Exception 4as in Exception 1; but the injury done is not the direct consequenceof that provocation. In fact Exception 4 deals with cases in whichnotwithstanding that a blow may have been struck, or someprovocation given in the origin of the dispute or in whatever waythe quarrel may have originated, yet the subsequent conduct ofboth 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 unilateralprovocation, nor in such cases could the whole blame be placedon one side. For if it were so, the exception more appropriatelyapplicable would be Exception 1. There is no previous deliberationor determination to fight. A fight suddenly takes place, for whichboth parties are more or less to be blamed. It may be that one ofthem starts it, but if the other had not aggravated it by his ownconduct it would not have taken the serious turn it did. There isthen mutual provocation and aggravation, and it is difficult toapportion the share of blame which attaches to each fighter. Thehelp of Exception 4 can be invoked if death is caused: (a) withoutpremeditation; (b) in a sudden fight; (c) without the offender’shaving taken undue advantage or acted in a cruel or unusualmanner; and (d) the fight must have been with the person killed.

To bring a case within Exception 4 all the ingredients mentionedin it must be found. It is to be noted that the “fight” occurring inException 4 to Section 300 IPC is not defined in IPC. It takes twoto make a fight. Heat of passion requires that there must be notime for the passions to cool down and in this case, the partieshave worked themselves into a fury on account of the verbalaltercation in the beginning. A fight is a combat between two andmore persons whether with or without weapons. It is not possibleto enunciate any general rule as to what shall be deemed to be asudden quarrel. It is a question of fact and whether a quarrel issudden or not must necessarily depend upon the proved facts ofeach case. For the application of Exception 4, it is not sufficient toshow that there was a sudden quarrel and there was nopremeditation. It must further be shown that the offender has nottaken undue advantage or acted in a cruel or unusual manner.The expression “undue advantage” as used in the provision means“””unfair advantage.(underlining added)

17. The question falling for consideration is the nature of theoffence whether it would fall under Section 304 Part-I IPC or Part-IIIPC. The third clause of Section 300 IPC consists of two parts. Underthe first part, it must be proved that there was an intention to inflict theinjury that is present and under the second part, it must be proved thatthe injury was sufficient in the ordinary course of nature to cause death.As discussed earlier, deceased Harbhajan Singh was attacked with axeon the head and he sustained multiple fractures, right fronto temporaland temporo parietal region infarct in the right fronto temporo parietalregion of the brain, haemorrhagic contusions in bilateral temporal regionand right parietal region. The head injury caused to Harbhajan Singhwas sufficient in the ordinary course of the nature to cause death. Theaccused intended to inflict that injury on Harbhajan Singh which issufficient in the ordinary course of nature to cause death. In Nankaunoov. State of Uttar Pradesh(2016) 3 SCC 317, it was held as under:- “12. The emphasis in clause three of Section 300 IPC is on thesufficiency of the injury in the ordinary course of nature to causedeath. The sufficiency is the high probability of death in the ordinarycourse of nature. When the sufficiency exists and death follows,causing of such injury is intended and causing of such offence ismurder. For ascertaining the sufficiency of the injury, sometimes A

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372SUPREME COURT REPORTS

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Athe nature of the weapon used, sometimes the part of the body onwhich the injury is caused and sometimes both are relevant.Depending on the nature of weapon used and situs of the injury, insome cases, the sufficiency of injury to cause death in the ordinarycourse of nature must be proved and cannot be inferred from thefact that death has, in fact, taken place.”B

18. Keeping in view the above principle, when we examine thefacts of the present case, the deceased sustained head injuries withmultiple fractures, right fronto temporal and temporo parietal region infarctin the right fronto temporo parietal region of the brain, haemorrhagiccontusions in bilateral temporal region and right parietal region. TheCweapon used in the manner in which the injury was inflicted clearlyestablish that the appellants intended to cause the injury which is sufficientin the ordinary course of nature to cause death. Having regard to thefacts and circumstances of the case, we are of the view that the convictionof the appellants under Section 302 IPC to be modified as convictionDunder Section 304 Part-I IPC.

19. In the result, the conviction of the appellants under Section302 IPC read with Section 34 IPC is modified as conviction under Section304 Part-I IPC and the appellants are sentenced to undergo imprisonmentfor seven years and the appeals are partly allowed. Appellant GurwinderESingh is said to have undergone imprisonment for more than ten years,he is ordered to be released forthwith unless his presence is required inany other case. Appellant Satnam Singh is directed to surrender toserve the remaining period of sentence, failing which, he shall be takeninto custody.

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Nidhi Jain

Appeals partly allowed.

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