Singh Vs. State of Haryana  INSC 1485 (25 August 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1609
OF 2009 [Arising out of SLP (Crl.) No.7898 of 2008] Gurmukh Singh .. Appellant
Versus State of Haryana .. Respondent
This appeal is directed against the judgment of the Punjab &
Haryana High Court dated 4.4.2008 delivered in Criminal Appeal No. 163-DB of
Brief facts which are necessary to dispose of the appeal are in
nutshell as under:- The appellant Gurmukh Singh in this appeal has challenged
his conviction and sentence for the murder of Hazoor Singh.
According to the prosecution version, on 8.1.1997 in the morning,
deceased Hazoor Singh had borrowed the tractor of Lal Singh and tiller of
Gurbachan Singh. Gurmej Singh P.W.5, son of Hazoor Singh (deceased) was going
along with Lal Singh to return the tractor at the Dera of Gurbachan Singh. On
the way, accused Gurmukh Singh, son of Dayal Singh, accompanied by the
co-accused Niranjan Singh, Harbhajan Singh and Manjit Singh armed with lathis,
whose Dera was nearby came and stopped the tractor. The appellant raised a
lalkara that Hazoor Singh and his son should not be allowed to pass through the
passage of which there was a dispute between the parties. Hazoor Singh was
following the tractor.
advised the appellant to desist from stopping the tractor on which the
appellant gave a lathi blow on the head of the deceased Hazoor Singh rendering
him unconscious, resulting 3 in his fall on the ground. Jagtar Singh, P.W.4 brother
of the deceased, witnessed the incident and reached the spot.
Singh and Puran Singh also reached there. Jagtar Singh had caught Gurmukh
Singh. In the process, Gurmej Singh P.W.5 was also given lathi blow by Niranjan
Singh also caused injuries to Harbhajan Singh and Niranjan Singh. The deceased
was taken to the hospital and on receiving the message, the Assistant
Sub-Inspector of Police Jagdish Chander reached there and recorded the
statement of Jagtar Singh at 7.15 p.m., leading to the registration of the
First Information Report. He went to the place of occurrence, prepared rough
site plan and took other steps of investigation.
Hazoor Singh was removed to PGI Hospital at Chandigarh, where he died on
14.1.1997 after three days on account of the head injury sustained by him.
The prosecution examined Dr. Rajinder Kumar P.W.1 who examined
Hazoor Singh at 4.55 p.m. on 8.1.1997 and referred him to the Civil Hospital,
Karnal, Dr. R. M. Singh P.W.2 who conducted the post-mortem examination on
15.1.1997, Balkar Singh Patwari P.W.3 who prepared the site 4 plan, Jagtar
Singh, P.W.4 author of the FIR and eye witness, Gurmej Singh, P.W.5 another eye
witness and ASI Jarnail Singh P.W.6 who proved the investigation.
Dr. Rajinder Kumar P.W.1 who examined the deceased found the
following head injury:
of skull bone at both parietal region at top, swelling both parietal region
whole. No abrasion, no bruise visible. Advise X-ray skull A.P. lateral and
According to the Doctor, the cause of death of the deceased was
the head injury sustained by him, which was sufficient to cause death in the
ordinary course of nature.
It may be pertinent to mention here that the appellant Gurmukh
Singh was accompanied by co-accused Niranjan Singh, Harbhajan Singh and Manjit
Singh. Except the appellant Gurmukh Singh, all other accused were acquitted by
the trial court, whereas the appellant Gurmukh Singh was convicted under
section 302 of the Indian Penal Code and sentenced to imprisonment for life and
a fine of Rs.1,000/-, in default of payment of which, to further under rigorous
imprisonment for six months.
The High Court in the impugned judgment has upheld the judgment of
the trial court and maintained the conviction and sentence awarded to the
appellant Gurmukh Singh.
The appellant aggrieved by the judgment of the High Court
preferred this appeal. We have carefully perused the judgments of the trial
court and the High Court as also the evidence of witnesses. It is fully
established from the evidence on record that the appellant had caused the
injury to the deceased Hazoor Singh which proved fatal.
The short question which falls for consideration of this court is
whether, on consideration of the peculiar facts and circumstances of the case,
the conviction of the appellant under section 302 IPC should be upheld or the
conviction be converted to one under section 304 Part II IPC? Appropriate
sentencing is a very vital function and obligation of the court.
There are significant features of the case which are required to
be taken into consideration in awarding the appropriate sentence to the
Admittedly, the incident happened at the spur of the moment;
(2) It is
clear from the evidence on record that the appellant was not using that path every
appellant gave a single lathi blow on the head of the deceased which proved
other accused did not indulge in overt act therefore, except the appellant, the
other co-accused namely Niranjan Singh, Harbhajan Singh and Manjit Singh have
been acquitted by the trial court;
incident took place on 8.1.1997 and the deceased remained hospitalized and
ultimately died on 14.1.1997;
trial court observed that there was no previous enmity between the parties.
it is abundantly clear that there was no pre- arranged plan or that the
incident had taken place in furtherance of the common intention of the accused
these facts and circumstances are taken into consideration in proper
perspective, then it becomes difficult 7 to maintain the conviction of the
appellant under section 302 IPC.
Section 304 IPC reads as under:
Punishment for culpable homicide not amounting to murder.- Whoever commits
culpable homicide not amounting to murder shall be punished with imprisonment
for life, or imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine, if the act by which the death is
caused is done with the intention of causing death, or of causing such bodily
injury as is likely to cause death, or with imprisonment of either description
for a term which may extend to ten years, or with fine, or with both, if the
act is done with the knowledge that it is likely to cause death, but without
any intention to cause death, or to cause such bodily injury as is likely to
This Court had an occasion to deal with cases of similar nature.
In Jagrup Singh v. State of Haryana (1981) 3 SCC 616, the accused had inflicted
a single blow in the heat of moment in a sudden fight with blunt side of
Gandhala on the head of the deceased causing his death. According to the
opinion of the doctor this particular injury was sufficient in the ordinary
course of nature to cause death. But, according to this Court, the intention to
cause such an injury was likely 8 to cause death had not been made out. This
Court altered the conviction of the accused from section 302 IPC to section 304
Part II IPC and the accused was directed to suffer rigorous imprisonment for a
period of seven years.
In Gurmail Singh & Others v. State of Punjab (1982) 3 SCC 185,
the accused had no enmity with the deceased. The accused gave one blow with the
spear on the chest of the deceased causing his death. The injury was an incised
wound. The Sessions Judge convicted the accused under section 302 IPC and
sentenced him to rigorous imprisonment for life. The High Court affirmed the
same. This Court, while taking into consideration the age of the accused and
other circumstances, converted the conviction from section 302 IPC to one under
section 304 Part II IPC and sentenced him to suffer rigorous imprisonment for
five years and a fine of Rs.500/-, in default to suffer rigorous imprisonment
for six months.
In Kulwant Rai v. State of Punjab (1981) 4 SCC 245, the accused,
without any prior enmity or pre-meditation, on a short quarrel gave a single
blow with a dagger which later 9 proved to be fatal. This Court observed that
since there was no pre-meditation, Part 3 of section 300 of the Indian Penal
Code could not be attracted because it cannot be said that the accused intended
to inflict that particular injury which was ultimately found to have been inflicted.
In the facts and circumstances of that case, the conviction of the accused was
altered from section 302 to that under section 304 Part II IPC and the accused
was sentenced to suffer rigorous imprisonment for five years.
In Jagtar Singh v. State of Punjab (1983) 2 SCC 342, the accused
in the spur of the moment inflicted a knife blow in the chest of the deceased.
The injury proved to be fatal. The doctor opined that the injury was sufficient
in the ordinary course of nature to cause death. This Court observed that the
quarrel was of a trivial nature and even in such a trivial quarrel the
appellant wielded a weapon like a knife and landed a blow in the chest. In
these circumstances, it is a permissible inference that the appellant at least
could be imputed with a knowledge that he was likely to cause an injury which
was likely to cause death. This Court altered the conviction of the 10
appellant from section 302 IPC to section 304 Part II IPC and sentenced the
accused to suffer rigorous imprisonment for five years.
In Hem Raj v. State (Delhi Administration) (1990) Supp. SCC 291,
the accused inflicted single stab injury landing on the chest of the deceased.
The occurrence admittedly had taken place in the spur of the moment and in heat
of passion upon a sudden quarrel. According to the doctor the injury was
sufficient in the ordinary course of nature to cause death. This Court observed
The question is whether the appellant could be said to have caused that
particular injury with the intention of causing death of the deceased. As the
totality of the established facts and circumstances do show that the occurrence
had happened most unexpectedly in a sudden quarrel and without pre- meditation
during the course of which the appellant caused a solitary injury, he could not
be imputed with the intention to cause death of the deceased or with the
intention to cause that particular fatal injury; but he could be imputed with
the knowledge that he was likely to cause an injury which was likely to cause
death. Because in the absence of any positive proof that the appellant caused
the death of the deceased with the intention of causing death or intentionally
inflicted that particular injury which in the ordinary course of nature was
sufficient to 11 cause death, neither Clause I nor Clause III of Section 300
IPC will be attracted......"
Court while setting aside the conviction under section 302 convicted the
accused under section 304 Part II and sentenced him to undergo rigorous
imprisonment for seven years.
In Abani K.Debnath & Another v. State of Tripura (2005) 13 SCC
422, this Court, in somewhat similar circumstances, while converting the
sentence from section 302 IPC to one under section 304 Part II IPC observed as
leads us to consider as to under what Section of law A-1 Abani K. Debnath is
liable to be convicted in a given facts of the case. The prosecution evidence
clearly discloses that the dao blow dealt by A-1 is preceded by a mutual
already noted that there was no common intention to kill Ranjit Das. From the
nature of injuries it is disclosed that A-1 dealt only one dao blow perhaps in
the spur of moment. The incident had taken place on 10.8.1990 and the deceased
succumbed to injury on 15.8.1990 after a lapse of 7 days. Taking the
prosecution evidence and medical evidence cumulatively we are of the view that
the conviction of A-1 also cannot fall under Section 34 IPC but at the most
under Section 304 Part II. We accordingly convert the sentence of A-1 Abani K. Debnath
under Section 34 IPC to that one under 12 Section 304 Part II IPC and sentence
him to suffer R.I. for five years. The fine amount imposed by the trial court
and Page 2091 affirmed by the High Court is maintained. It is stated at the Bar
that A-1 has undergone about 18 months' imprisonment, if that is so, he will be
entitled to get the benefit of Section 428 Cr.P.C."
In another case Pappu v. State of M.P. (2006) 7 SCC 391, this
Court observed as under:
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;
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
cannot be laid down as a rule of universal application that whenever one blow
is given, Section 302 IPC is ruled out. It would depend upon the weapon used,
the size of it in some cases, force with which the blow was given, part of the
body it was given and several such relevant factors.
the factual background in the case at hand it will be appropriate to convict
the appellant under Section 304 Part II IPC, instead of Section 302 IPC as has
been done by the trial court and affirmed by the High Court. Custodial sentence
of eight years would meet the ends of justice. The appeal is allowed to the
In the instant case, the occurrence had taken place at the spur of
the moment. Only the appellant Gurmukh Singh inflicted a single lathi blow. The
other accused have not indulged in any overt act. There was no intention or
pre- meditation in the mind of the appellant to inflict such injuries to the
deceased as were likely to cause death in the ordinary course of nature.
On consideration of the entire evidence including the medical
evidence, we are clearly of the view that the conviction of the appellant
cannot be sustained under section 302 IPC, 14 but the appropriate section under
which the appellant ought to be convicted is section 304 Part II IPC.
Before we part with the case, we would like to clearly observe
that we are not laying down that in no case of single blow or injury, the
accused cannot be convicted under section 302 IPC. In cases of single injury,
the facts and circumstances of each case has to be taken into consideration
before arriving at the conclusion whether the accused should be appropriately
convicted under section 302 IPC or under section 304 Part II IPC.
These are some factors which are required to be taken into
consideration before awarding appropriate sentence to the accused. These
factors are only illustrative in character and not exhaustive. Each case has to
be seen from its special perspective. The relevant factors are as under:
or previous enmity;
Whether the incident had taken place on the spur of the moment;
intention/knowledge of the accused while inflicting the blow or injury;
Whether the death ensued instantaneously or the victim died after several days;
gravity, dimension and nature of injury;
age and general health condition of the accused;
Whether the injury was caused without pre- meditation in a sudden fight;
nature and size of weapon used for inflicting the injury and the force with
which the blow was inflicted;
criminal background and adverse history of the accused;
Whether the injury inflicted was not sufficient in the ordinary course of
nature to cause death but the death was because of shock;
of other criminal cases pending against the accused;
Incident occurred within the family members or close relations;
conduct and behaviour of the accused after the incident. Whether the accused
had taken the injured/the deceased to the hospital immediately to ensure that
he/she gets proper medical treatment? These are some of the factors which can
be taken into consideration while granting an appropriate sentence to the
accused. The list of circumstances enumerated above is only illustrative and
not exhaustive. In our considered view, proper and appropriate sentence to the
accused is the bounded obligation and duty of the court. The endeavour of the
court must be to ensure that the accused receives appropriate sentence, in
other words, sentence should be according to the gravity of the offence. These
are some of the relevant factors 17 which are required to be kept in view while
convicting and sentencing the accused.
When we apply the settled principle of law which has been
enumerated in the aforementioned cases, the conviction of the appellant under
section 302 I.P.C. cannot be sustained.
considered view, the accused appellant ought to have been convicted under
section 304 Part II I.P.C. instead of under section 302 I.P.C.
We accordingly convert the conviction and sentence of the
appellant Gurmukh Singh from section 302 IPC to one under section 304 Part II
IPC and sentence him to suffer rigorous imprisonment for seven years. The fine
as imposed by the trial court and as upheld by the High Court is maintained.
The appellant would be entitled to get benefit of section 428 of the Code of
The appeal is partly allowed in the aforementioned terms and
............................................J. 18 (Dalveer
............................................J. (Dr. Mukundakam
August 25, 2009.