LACHMAN SINGHversusSTATE OF HARYANA

                             LACHMAN SINGH                                         A
                                       v.
                           STATE OF HARYANA

                               JULY 28, 2006

      [ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.]                              B

      Indian Penal Code, 1860.

      Section 300 Exception 4-Culpable homicide is not murder-When
attracted-Held, when there is 'sudden fight' implying mutual provocation           C
and aggravation and there is absence of any premeditation-Injury is not the
direct consequence of that provocation-Both parties are equally to be blamed
and it is difficult to apportion share of blame which attaches to each jighter-
0.ffender should not have taken undue advantage or acted in a cruel or unusual
manner-Fight must be with the person killed-Jn the facts of the case               D
conviction altered from Section 302 to Section 304 Part I.

      Section 307-Attempt to murder-When attracted-Held, when there is
present an intent coupled with some overt act in execution thereof-Not essential
that bodily injury capable of causing death should have been inflicted-Section
makes distinction between act of the accused and its result, if any-Court has      E
to see whether the act, irrespective of its result, was done with the intention
of knowledge and under circumstances mentioned in the Section-In the facts,
conviction under Section 307 upheld.

      Prosecution alleged that there were disputes between D and P
regarding flow of water as P would not allow flow of water through the             F
roof of his kicthen and on the fateful day there was again disputes between
the families of D and P. Accused D got infuriated and asked his son, L, to
bring revolver from inside and asked L to shoot whereupon L fired and
the shot hit N. Thereafter, accused D took revolver from L and started
firing shots which hit J and A who were injured. Accused R exhorted D              G
and I that nobody should be spared as they had harassed them and started
pelting brickbats. V escaped and jumped down from the roof. Informant
and B who were standing on the roof of S, neighbour of P, challenged
accused persons and reached the spot and upon seeing them coming the
accused persons ran away with the revolver. N died from the fire arm
                                      157                                          H
    158                      SUPREME COURT REPORTS (20061 SUPP. 4 S.C.R.

A   injury. FIR was registered against D, Land R for commission of offences
    under Sections 302/307/34 of the Indian Penal Code, 1860 and Section 27
    of the Arms Act 1959. Prosecution examined A, V and informant who were
    stated to be eye witnesses. Trial Court recorded conviction and sentenced
    L under Section 302 IPC and D & R under Section 302 read with Section
    34 IPC. Trial Court also recorded conviction and sentenced D under
B   Section 307 IPC and L & R under Section 307 read with Section 34 IPC.
    Appeal preferred by accused persons was dismissd by the High Court.
    Hence these appeals by accused persons D, L & R.

          Appellants contended that there was no motive established and the
C   medical evidence runs contrary to this version of the alleged eye witnesses:
    that Section 302 IPC has no application as the occurrence took place in
    course of a sudden quarrd; that ingredients of Section 307 IPC are also
    absent; and that involvement of R is not established as R is alleged by
    witnesses to have pelted brickbats which resulted in injury on V but
    evidence of doctor clearly shows that the said injury was not possible by
D   brickbats.

          Allowing the appeal of R and partly allowing the appeals of D and
    L, the Court.

          HELD: 1.1. The evidence of the witnesses, more particularly, injured
E   witnesses have been carefully analysed by the Trial Court and the High
    Court. There is no discrepancy of any vital nature which will affect
    credibility of the witnesses. There is no doubt that some minor
    discrepancies are noticed. But that does not in any way dilute the otherwise
    cogent evidence of inj11red witnesses about the role played by two of the
F   accused persons i.e. Land D. (164-B-CI

          1.2. The evidence is inadequate so far accused R is concerned. It was
    prosecution case that he had thrown brickbats which caused injury on V.
    But the same is clearly ruled out by the doctor's evidence to the effect
    that none of the injuries can be caused by brickbats. Additionally, his role
G   of presence at the spot has not been established by any cogent and credible
    evidence. Therefore, conviction so far as he is concerned, cannot be
    sustained and the appeal filed by him is allowed. (164-D-E(

          2. The F1.rnrth Exception to Section 300 IPC of Indian Penal Code,
    1860 covers acts done in a sudden fight. The said exception deals with a
H   case of prosecution not covered by the first exception, after which its place
                 LACHMANSINGHv. STATEOFHARYANA                               159
 would have been more appropriate. The exception is founded upon the                A
 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
 reason 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        B
 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 originate, yet the subsequent conduct of both parties
 puts them in respect of guilt upon equal footing. A 'sidden flight' fimples
 mutual provocation and blows on each side. The homicide committed is               C
 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 blamed. It may be that one of them
starts it, but if the other had not aggravated it by his own conduct it would       D
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              E
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             F
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                G
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. [164-G-H; 165-A-GI

      3. It is sufficient to justify a· conviction under Section 307 IPC if there   H
    160                      SUPREME COURT REPORTS [20061 SUPP. 4 S.C.R.

A   is present an intent coupled with some overt act in execution thereof. It is
    not essential that bodily injury capable of causing death should have been
    innicted. Although the nature of injury actually caused may often give
    considerable assistance in coming to a finding as to the intention of the
    accused, such intention may also be deduced from other circumstances,
B   and may even, in some cases, .be ascertained without any reference at all
    to actual wounds. The Sections make a distinction between the act of the
    accused and its result, if any. The Court has to see whether the act,
    irrespective of its result, was done with the intention or knowledge and
    under circumstances mentioned in the Section. An attempt in order to be
    criminal need not be the penultimate act. It is sufficient in law, if there is
C   present an intent coupled with some overt act in execution thereof.
                                                                       (166-B-DI

          Sarju Prasad v. State of Bihar, AIR (1965) SC 843, State of
    Maharashtra v. Bairam Barna Patil and Ors., (19831 SCC 28; Girija Shankar
    v. State of UP., JT (2004) 2 SC 140; Vasant Vithu Jadhav v. State of
D   Maharashtra. (2004) AIR SCW 152 and State of MP. v. Saleem, (20051 5
    sec relied on.
          4. The inevitable conclusion is that conviction of L has to be altered
    from Section 302 IPC to Section 304 Part I IPC. Custodial sentence of JO
    years with fine of Rs. 1,000/- with default condition of 3 months RI would
E   meet the ends of justice. He is also to be convicted under Section 307 read
    with Section 34 IPC. Accused D has to be convicted under Section 304
    Part I read with Section 34 IPC. Custodial sentence would be 10 years RI
    with fine of Rs. 2,000/- with default stipulation of three months. He is also
    convicted under Section 307 IPC for causing injury on A (PW-6). The
F   conviction of D under Section 307 IPC has hen rightly upheld by the High
    Court, with the corresponding sentence as imposed. There is no reason to
    interfere with either the conviction or the sentence. 1166-F-G; 167-AI

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 349
    of 2005.
G
         From the Judgment and Order dated 21.8.2004 of the High Court of
    Punjab and Haryana at Chandigarh, in Criminal Appeal No. 206-DB of 1996.

                                        WITH

H         Criminal Appeal Nos. 350 of 2005 and 351 of 2005.
           LACHMANSINGHv. STATEOFHARYANA[PASAYAT,J.]                         161

     U.U. Lalit, Dayan Krishnan, Gautam Narayan and Nikhil Nayyar for               A
the Appellant.

      Rajeev Gaur Naseem and T.V. George for the Respondent.

      The Judgment of the Court was delivered by
                                                                                    B
       ARIJIT PASAYAT, J. These appeals have been filed by Lachman
Singh, Dev Singh and Randhir Singh (accused numbers 1, 2 and 3 respectively)
who faced trial for alleged commission of offences punishable under Sections
302 read with Section 34 of the Indian Penal Code, 1860 (in short '!PC').
Additionally, Dev Singh was tried for alleged commission of offence
punishable under Section 307 !PC, while other two were charged for alleged          C
commission of offence punishable under Section 307 read with Section 34
!PC. While accused Lachman Singh was convicted for offence punishable
under Section 302 !PC and was sentenced to imprisonment for life and to pay
a fine of Rs.2,000/- with default stipulation, Dev Singh and-Randhir Singh
were convicted under Section 302 read with Section 34 !PC. Similarly, accused       D
Dev Singh was found guilty for offence punishable under Section 307 !PC
while other accused Lachman Singh and Randhir Singh were convicted for
offence punishable under Section 307 read with Section 34 !PG and they
were sentenced to undergo 5 years RI and to pay a fine of Rs.500/- each with
default stipulation, as was the case with accused Dev Singh. The conviction
as recorded and sentenced as imposed were challenged in Crl. Appeal No.206-         E
DB of 1996 before the Punjab and Haryana High Court. The Division Bench
of the High Court dismissed the appeal.

       Flittering unnecessary details, the prosecution version as unfolded during
trial is as follows:
                                                                                    F
      On 3.3.1994 at 11.40 p.m. Jai Singh (PW-5) made statement (Exhibit
PA) before AS! Raj Kumar (PW-21) in Civil Hospital, Shahabad to the effect
that he was a resident of village Charunni Jattan and was doing cultivation.
Rain water of the residential Chobara of accused Dev Singh flows to the roof
of the kitchen of Pritam Singh and they wanted to use the water for bathing G
on the roof of the kitchen of Pritam Singh by making a hole inside their
Chobara. Pritam Singh did not allow the flow of water through the roof of
the kitchen. When Pritam Singh and his family members tried to construct a
room on the roof of the kitchen, accused Dev Singh used to restrain them
from constructing a room on the roof of their kitchen by obtaining stay order
from the Civil Court against Pritam Singh and others. Previously also there H
    162                      SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A was an altercation between Dev Singh and Pritam Singh on the issue of flow
  of water, but the well-wishers got the matter settled. It was alleged that on
  the fateful day i.e. on 3.3.1994 at about 8.30 a.m. he (Jai Singh) had gone
  to the house of Surmukh Singh, neighbour of Pritam Singh for some personal
  work. When he was having a talk with the son of Surmukh Singh while
  standing on the roof, he noticed that there was exchange of abuses between
B accused Lachman Singh and Randhir Singh, who were standing on the roof
  of their house on one hand, and Naib Singh (hereinafter referred to as the
  'deceased'), Jaswant Singh, Angrez Singh and Vikram Singh, who were
  standing on the roof of their kitchen on the other hand, over the issue of flow
  of water. It was alleged that accused Dev Singh was challenging that they
C would pass the flow of water from there in any case. Accused Dev Singh got
  infuriated and all of a sudden asked his son Lachman Singh to bring revolver
  from inside as the other side members were always harassing them. It was
  alleged that thereupon accused Lachman Singh brought a revolver from inside
  and thereafter, accused Dev Singh stated "shoot them", whereupon accused
  Lachman Singh fired and the shot hit the deceased, and on receipt of the said
D shot deceased fell down. Thereafter. accused Dev Singh took revolver from
  accused Lachman Singh and started firing shots, which, hit Jaswant Singh
  and Angrez Singh who were injured. Accused Randhir Singh exhorted that
  they had harassed them a lot and that nobody should be allowed to go Scot
  free and thereupon he started pelting brick bats after picking the same from
E the roof. Vikram Singh (PW-7), who had escaped from the shots by taking
  shelter of a wall, jumped down from the roof out of fear. Jai Singh and Balbir
  Singh gave a Lalkara as to why the)' were killing innocent persons and they
  also reached the spot to rescue the injured and on seeing them coming, all
  the three accused persons fled away from the roof of their house together
  with the revolver. After arranging a vehicle, he (Jai Singh) brought Jaswant
F Singh, Naib Singh and Angrez Singh, who had received fire arm injuries, to
  Civil Hospital. Shahabad for their treatment and the Doctor referred Angrez
  Singh and Jaswant Singh to PGI, Chandigarh, while Naib Singh was declared
  dead on account of the fire arm injury received by him on his waist. ASI Raj
  Kumar (PW-21 ), after recording statement (Exhibit PA) made by Jai Singh
G (PW-5) before him, sent the same to the Police Station with his endorsement
  (Exhibit PA/I) on the basis of which formal FIR relating to alleged commission
  of offences under Sections 302/307/34 IPC and Section 27 of the Arms Act,
   1959 (in short 'Arms Act') was registered in Police Station Shahabad at
   11.50 p.m. on 3.3.1994 and the special report was sent to the Judicial
  Magistrate at Kurukshetra who received it at 3.45 p.m. on the same day i.e.
H 3.3.1994.
          LACHMAN SINGH v. STATE OF HARYANA [PASAYAT, J.]                   163

      ASI Raj Kumar (PW-21) had recorded the aforesaid statement Exhibit           A
PA of Jai Singh (PW-5). He had gone to Civil Hospital, Shahabad on receipt
of ruqa Exhibit PF from the Civil Hospital at I 0.20 a.m. regarding the arrival
of two seriously injured persons, namely, Jaswant Singh and Angrez Singh,
who were referred to PGI, Chandigarh, while Naib Singh was brought dead.
On reaching the hospital, Jai Singh, Balbir Singh and Wazir Singh met ASI          B
Raj Kumar (PW-21) near the dead body ofNaib Singh and it was thereupon
that ASI Raj Kumar (PW-21) recorded the statement (Exhibit PA) of Jai
Singh (PW-5) and thereafter had sent the same to the Police Station with his
endorsement Exhibit PA/I and afterward, as noted above, the formal FIR was
recorded in Police Station, Shahabad.

       After completion of investigation charge-sheet was placed and accused
                                                                                   c
persons faced trial. In order to further its case prosecution examined several
witnesses. It examined Angrez Singh (PW-6), Vikram Singh (PW-7) and
informant Jai Singh (PW-5) who were stated to be eye-witnesses. The accused
pleaded false implication due to political rivalry and pendency of several
litigations. Trial Court on consideration of materials placed before it recorded   D
conviction and imposed sentences as aforenot::d. An appeal was filed
challenging conviction and sentences.

       Before the High Court it was urged that there was no motive established
and in any event the medical evidence runs contrary to the version of the
alleged eye-witnesses. The bullets seized did not match with the seized gun        E
and could not have been fired from the revolver as is evident from the
materials on record. There is doubt about the time of incident and the evidence
of Jai Singh (PW-5) who claimed to be an eye-witness is falsified by the fact
that·contrary to what he has stated the so-called injured eye-witnesses stated
that the injured persons were taken to the hospital by one Kulwant Singh and       F
not by Jai Singh. In any event, it was submitted that the occurrence took
place in course of a sudden quarrel and, therefore, Section 302 IPC has no
application. The ingredients of Section 307 IPC are also absent. So far accused
Randhir is concerned, it was submitted that it was casually stated by the
witnesses that he was pelting brickbats which resulted injury on the PW-7.
But the doctor's evidence clearly shows that the injury on PW-7 was not            G
possible by brickbats.

     The prosecution, however, took the stand that after the detailed analysis,
more particularly, of the eye-witnesses the conviction has been recorded.
Merely because of some minor discrepancies in the testimony, the evidence
                                                                                   H
    164                        SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A of injured eye-witnesses could not be discarded, and has been rightly relied
    upon by the Trial Court.

         The High Court did not find substance in the plea of the accused persons
    and dismissed the appeal.

B         In the present appeal stands taken before the High Court were reiterated
    by the learned counsel for the parties. We find that the evidence of the
    witnesses, more particularly, injured witnesses have been carefully analysed
    by the Trial Court and the High Court. There is no discrepancy of any vital
    nature which will affect credibility of the witnesses. There is no doubt that
C   some minor discrepancies are noticed. But that does not in any way dilute the
    otherwise cogent evidence of injured witnesses about the role played by two
    of the accused persons i.e. Lachhman Singh and Dev Singh. So far as the
    bullets not matching the seized gun is concerned, the trial Court and High
    Court have dealt with this aspect in great details. As rightly submitted by
    learned counsel for respondent-State, recovery of the gun was made on being
D   pointed out by the accused. To draw a red herring he pointed out to a different
    gun, so that the plea as presently urged can be taken. We, however, find that
    the evidence is inadequate so far accused Randhir Singh is concerned. It was
    prosecution case that he had thrown brickbats which caused injury on Vikram
    Singh (PW-7). But the same is clearly ruled out by the doctor's evidence to
    the effect that none of the injuries can be caused by brickbats. Additionally,
E   his role of presence at the spot has not been established by any cogent and
    credible evidence. Therefore, conviction so far as he is concerned, cannot be
    sustained in the appeal filed by him i.e. Criminal Appeal No.350 of 2005 is
    allowed.

F        The residuary plea relates to the applicability of Exception 4 of Section
    300 !PC.

         For bringing in its operation 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
G   and not having acted in a cruel or unusual manner.

           The Fourth Exception of Section 300 !PC 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
H   premeditation. But, while in the case of Exception I there is total deprivation
               LACHMANSINGHv. STATEOFHARYANA[PASAYAT,j.]                     165
      of self-control, in case of Exception 4, there is only that heat of passion A
      which clouds men's sober reason 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 B
      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 mulual 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 I. There is no previous C
      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 ifthe 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 D
      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 !PC is not defined in the !PC. Ii: E
     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 no 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 F
     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 G
     'unfair advantage'.

          Section 307 IPC reads:

            "Attempt to murder - Whoever does any act with such intention or
            knowledge, and under such circumstances that, if he by that act caused H
    166                        SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A           death, he would be guilty of murder, shall be punished with
            imprisonment of either description for a term which may extend to
            ten years, and shall also be liable to fine; and if hurt is caused to any
            person by such act, the offender shall be liable either to imprisonment
            for life, or to such punishment as is hereinbefore mentioned."

B          It is sufficient to justify a conviction under Section 307 if there is
    present an intent coupled with some overact in execution thereof. It is not
    essential that bCldily injury capable of causing death should have been inflicted.
    Although the nature of injury actually caused may often give considerable
    assistance in coming to a finding as to the intention of the accused, such
C   intention may also be deduced from other circumstances, and may even, in
    some cases, be ascertained without any reference at all to actual wounds. The
    Sections makes a distinction between the act of the accused and its result, if
    any. The Court has to see whether the act, irrespective of its result, was done
    with the intention or knowledge and under circumstances mentioned in the
    Section. An attempt in order to be criminal need not be the penultimate act.
D   It is sufficient in law, if there is present an intent coupled with some overt
    act in execution thereof.

           In Sarju Prasad v. State of Bihar, AIR (I 965) SC 843, it was observed
    that the mere fact that the injury actually inflicted by the accused did not cut
    any vital organ of the victim is not itself sufficient to take the act out of the
E   purview of Section 307 IPC.

         The above position was highlighted in State of Maharashtra v. Bairam
    Barna Patil and Ors., [ 1983] 2 SCC 28, Girija Shankar v. State of U.P., JT
    (2004) 2 SC 140, Vasant Vithu Jadhav v. State of Maharashtra, (2004) AIR
F   sew 1523 and State of MP. v. Saleem, (2005] 5 sec 554.
         Analysing the evidence in the background set out above the inevitable
  conclusion is that conviction of Lachman Singh has to be altered from Section
  302 !PC to Section 304 Part I IPC. Custodial sentence of I0 years with fine
  of Rs.1,000/- with default condition of 3 months RI would meet the ends of
G justice. He is also to be convicted under Section 307 read with Section 34
   IPC. Accused Dev Singh has to be convicted under Section 304 Part I read
  with Section 34 IPC. Custodial sentence would be I0 years RI with fine of
   Rs.2,000/- with default stipulation of three months. He is also convicted
  under Section 307 IPC for causing injury on Angrez Singh (PW-6). The
   conviction of Dev Singh under Section 307 !PC and that of Lachman Singh
H under Section 307 read with Section 34 lPC has been rightly upheld by the
               LACHMAN SINGH v. STATE OF HARYANA [PASAYAT, J.]               167

      High Court, with the corresponding sentence as imposed. We find no reason A
      to interfere with either the conviction or the sentence. However, the sentences
      shall run concurrently. Criminal Appeal No.349 of 2005 filed by Lachman
      Singh and Criminal Appeal No.351 of 2005 filed by Dev Singh are allowed
      to the extent indicated above.
      A.K.T.                       Criminal Appeal Nos. 349 and 351 of 2004        B
                 partly allowed and Criminal Appeal No. 350 of 2005 allowed.




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