Hawa Singh & ANR.
Vs. State of Haryana [2009] INSC 77 (16 January 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 (Arising
out of SLP (Crl.) No. 1515 of 2008) Hawa Singh and Anr. ..Appellants Versus
State of Haryana ..Respondent
Dr. ARIJIT PASAYAT,
J.
1. Leave granted.
2. Challenge in this
appeal is to the judgment of a Division Bench of the Punjab and Haryana High
Court upholding the conviction of the appellants for offences punishable under
Section 302 read with Section 34 and Section 452 of the Indian Penal Code, 1860
(in short the `IPC'). Though they were charged of several other offences they
were acquitted of those charges. In the appeal filed by the appellants before
the High Court there were several co-accused i.e. Jagdish, Devinder, Balwan and
Murti Devi. Accused Jagdish and Devinder who were convicted under Section 323
read with Section 34 and Section 452 IPC. The other two accused persons i.e.
Balwan and Murti were acquitted of all charges.
3. Prosecution
version in a nutshell is as follows:
On March 20, 2000 at
4.00 p.m. Man Singh was sitting near the gate of his house, while members of
his family were present inside the house.
Hawa Singh, Parkash
and Jagdish armed with swords, Balwan and Devender @ Raju armed with lathis,
their sister Murti armed with rapri and their mother Gindori armed with pharsa
came there. They entered the house and upon exhortation that a lesson be taught
to Man Singh for getting them convicted, Hawa Singh opened the attack with a
sword with which he hit Man Singh on the head. This was followed by Parkash
giving a blow with his sword which hit Man Singh in the middle of his head.
Jagdish also gave a sword blow which hit Man Singh on the back of the head.
When alarm was raised Balwan hit Sajjan (PW-7) with a lathi on his forehead
above left eye. Devender @ Raju hit Sajjan (PW-7) with a lathi on his left leg.
Murti and Gindori also inflicted injuries on Sajjan. They also caused grievous injuries
to Anju and Sarti. Sajjan's younger brother Krishan and his uncle Azad Singh
reached the spot to rescue them from the assailants. During the course of
rescuing the injured, Azad Singh also sustained injuries. Some injuries were
also inflicted by complainant party on the accused in self defence before the
accused retreated from the spot with their respective weapons. After the
occurrence was over, the injured were taken to Civil Hospital, Bhiwani. On
reaching the hospital Man Singh succumbed to his injuries whereas the injured
were medico legally examined. Anju and Sajjan were medico legally examined by Dr.
Arjun Chander Yadav (PW-1) at 6.35 p.m. and 8.15 respectively. Anju was found
to have various injuries on her right hand.
The case was
registered at Police Station Sadar, Bhiwani on the basis of the statement of
Sajjan (PW-7) recorded by ASI Suraj Bhan at 10.50 p.m.
on the same evening
at General Hospital, Bhiwani. FIR was recorded in respect of offences
punishable under Sections 302, 148, 149, 452 and 323 IPC. Special report was
delivered at 3.50 a.m. on March 21, 2000.
Thereafter, the
Investigating Officer took up the investigation by first preparing the inquest
report on the dead body of deceased Man Singh. After the inquest proceedings,
post mortem was conducted by Dr. Ramesh Kumar (PW-4). The Medical Officer found
several injuries on the body of Man Singh. In the opinion of the Medical
Officer the death was caused due to hamorrhage and shock and injury to the
brain. The accused were arrested on March 30, 2000 by Inspector Darshan Lal
(PW-11). On the basis of their respective disclosure statements, certain
weapons were recovered from possession of the accused i.e. axes from Parkash
and Hawa Singh, rapris from Jagdish and Devender @ Raju and a lathi from
Balwan.
After completion of
the investigation all the accused barring Murti were sent up for trial. Murti
was placed in column 2 of the report under Section 173 of the Code of Criminal
Procedure, 1973 (in short the `Code').
She was subsequently
summoned to stand trial under Section 319 of the Code. Charge was first framed
against the accused on July 19, 2000 under Section 302 read with Section 149
IPC and other related offences. Charges were reframed on January 25, 2001. By
this time Murti Devi had been summoned as accused. Finally charge was reframed
on April 15, 2004. All the accused persons were found guilty and convicted.
Before the High Court
the specific stand was that Section 302 had no application because there was
free fight and the occurrence took place in course of sudden quarrel. The High
Court accepted that there was a sudden quarrel and there were injuries on both
sides. But it took the view that the appellants were apparently the aggressors
and, therefore, the conviction under Section 302 IPC was in order.
4. In support of the
appeal, learned counsel for the appellants submitted that after having
recording a finding that there was free and open fight, the question as to who
was the aggressor was really irrelevant and the fact that the persons belonging
to the complainant party received more injuries was also really of no consequence.
5. Learned counsel
for the respondent-State supported the judgment.
6. For bringing in
operation of Exception 4 to Section 300 IPC it has to be established that the
act was committed 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.
7. The Fourth
Exception of Section 300, IPC covers acts done in a sudden fight. The said
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 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 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 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. 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 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 offender's 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 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 `unfair
advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak
v. State of Gujrat (2003 (5) Supreme 223], Parkash Chand v. State of H.P. (2004
(11) SCC 381) and Byvarapu Raju v. State of A.P. and Anr. (2007 (11) SCC 218)
8. From the facts of
the case, it appears that the accused persons armed with deadly weapons like
swords, balwan, lathis, pharsa came to the house of the Man Singh on 20th
March, 2000, at 4 p.m., to teach Man Singh a lesson for getting the accused
persons convicted. After coming to the house of Man Singh, Hawa Singh opened
the attack with the sword, with which he hit Man Singh on the head and
ultimately Man Singh succumbed to his injuries.
9. Exception 4 to
Section 300 IPC applies in the absence of any premeditation. This is very clear
from the wording of the exception itself.
The exception
contemplates that the sudden fight shall start upon the heat of passion on a
sudden quarrel but here, the accused party, being deadly armed, came with the
intention of teaching Man Singh a lesson and in furtherance of that, one of
them, Hawa Singh, hit Man Singh on the head 8 with a sword, an attack with a
deadly weapon on the vital part of the body and that proved to be a fatal blow.
10. Therefore,
Exception 4 to Section 300 has no application to the facts of the present case.
11. The appellants
have been rightly convicted in terms of Section 302 IPC.
12. The appeal is
accordingly dismissed.
....................................J.
(Dr. ARIJIT PASAYAT)
....................................J.
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