HAWA SINGH AND ANR.versusSTATE OF HARYANA

                        [2009] 1 S.C.R. 324


A                     HAWA SINGH AND ANR.                                "'       ·~

                                 v.
                       STATE OF HARYANA
                  (Criminal Appeal No.84 of 2009)
                        JANUARY 16, 2009
B                                                                                 .__
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]
                                                                         ... '

c
        PENAL CODE, 1860:

         Section 302 rlw 34 and s.452 - Murder - Conviction -
                                                                    l.
                                                                     ~
    On appeal, Held: Exception to s.300 has no application to the
    facts of the case - Appellants rightly convicted under s.302.

        Exception 4 to s.300 - Applicability of - Discussed.
D                                                                         .....
        In this appeal against High Court's judgment, the
    question before the Court was whether in the facts of the
    case, Exception 4 to Section 300 IPC is applicable or not.

E       Dismissing the appeal, the Court

       HELD: 1.1. 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
F heat of passion on a sudden quarrel but here, the
  accused party, being deadly armed, came with the
  intention of teaching the deceased a lesson and in
  furtherance of that, one of them, hit the deceased on the
  head with a sword, an attack with a deadly weapon on
G the vital part of the body and that proved to be a fatal
  blow. Therefore, Exception 4 to Section 300 has no                     .,,
  application to the facts of the present case. [Paras 9 and
  10) [330-A-C]

H                               324
         HAWA SINGH AND ANR. v. STATE OF HARYANA                 325


        1.2. The appellants have been rightly convicted in              A
    terms of Section 302 IPC. [Para 11) [330-C-D]

         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) sec 218; relied On.

                          Case Law Reference:
                                                          I
                                                                        B .




         (2003 (5) Supreme 223 relied on                  Para 7

         2004 (11) sec 381          relied on             Para 7        c
         2001 (11) sec 218          relied on             Para 7

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    Nos. 84 of 2009.
                                                                        D
         From the Judgment dated 24.10.2006 of the High Court
    of Judicature of Punjab and Haryana at Chandigarh in Criminal
    Appeal No. 143-DB/2005.

         Javed Mahmud Rao for the Appellant.                            E
         TV.George for the Respondent.

         The Judgment of the Court was delivered by

         DR. ARIJIT PASAYAT, J. 1. Leave granted.                       F
         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             G
    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 react with Section 34 and          H
    326         SUPREME COURT REPORTS                [2009] 1 S.C.R.

A 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
B near the gate of his house, while members ot 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
c 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
D 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
E 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          )(



F 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
G
  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
H Hospital, Bhiwani. FIR was recorded in respect of offences
                 HAWA SINGH AND ANR. v. STATE OF HARYANA                  327
                          [DR. ARIJIT PASAYAT, J.]
.
~      >    punishable under Sections 302, 148, 149, 452 and 323 IPC. A
            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 B
            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 respedtive disclosure statements, certain weapons
            were recovered from possession of the accused i.e. axes from
                                                                               c
            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    D
            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        E
            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 p~rsons were found guilty
       )I   and convicted.                       '
                       _,
                                                                             F
                  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 G
            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        H
    328       SUPREME COURT REPORTS                 [2009] 1 S.C.R.


A 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.
8
       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
C 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
0
    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, iil 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.
E   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
F   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
G   placed on one side. For if it were so, the Exception more
    appropriately applicable would be Exception 1. There is no           y
    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
H   not aggravated it by his own conduct it would not have taken
                 HAWA SINGH AND ANR. v. STATE OF HARYANA                  329
                          [DR. ARIJIT PASAYAT, J.)
... >
             the serious turn it did. There is then mutujll provocation and       A
             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         B
             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         c
             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           D
             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 appliGcition of
             Exception 4, it is not sufficient to show that there was a sudden
             quarrel and there was no premeditation. It must f1.,1rther be        E
             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             F
             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, G
          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.                                     H
                                                                                    •
    330         SUPREME COURT REPORTS              [2009] 1 S.C.R.


A         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
B   the intention of teaching Man Singh a lesson and in furtherance
    of that, one of them, Hawa Singh, hit Man Singh on the head
    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
c   application to the facts of the present case.

         11. The appellants have been rightly convicted in terms of
    Section 302 IPC.

D          12. The appeal is accordingly dismissed.
                                                                           "
    G.N.                                       Appeal dismissed.




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