REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 2301-2302 OF 2014

GURWINDER SINGH @ SONU ETC. …Appellant(s)

Versus

STATE OF PUNJAB AND ANR. ...Respondent(s)

JUDGMENT

R. BANUMATHI, J.

These appeals arise out of the judgment dated 17.12.2012

passed by the High Court of Punjab and Haryana at Chandigarh in

CRA No.1176 DB of 2010 and CRA No.1222 DB of 2010 in and by

which the High Court affirmed the conviction of the appellants under

Section 302 IPC read with Section 34 IPC and sentence passed by the

trial Court.

2. Case of the prosecution is that Sukhwinder Singh (PW-6) is the

son of deceased Harbhajan Singh. Satnam Singh who is the younger

brother of deceased Harbhajan Singh is residing separately in the

village and other two younger brothers of Harbhajan Singh have gone

to Italy. The land falling to other brothers’ share is being cultivated by

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Satnam Singh; but they desired that their land should be cultivated by

Harbhajan Singh. For amicable settlement, the matter went to the

Panchayat several times; but could not be solved. Few days prior to

the occurrence, dog of Satnam Singh went missing, who blamed the

family of Harbhajan Singh for missing of the said dog. On 02.11.2007

at about 04.00 p.m., both families gathered to discuss the issue

regarding the land and missing of dog. Complainant-Sukhwinder

Singh, deceased Harbhajan Singh, his uncle Satnam Singh,

Gurwinder Singh alias Sonu son of Satnam Singh and other villagers

namely Sandeep Singh, Makhan Singh also participated in the said

gathering, which took place on the tubewell situated near village

Dasupur. During discussion for settlement, there was exchange of hot

words and the appellants Satnam Singh and Gurwinder Singh gave fist

and kick blows to them. Satnam Singh also raised ‘Lalkara’ to catch

hold Harbhajan Singh to teach him a lesson for partitioning the land. In

the meanwhile, appellant Gurwinder Singh brought an axe from the

room near the tubewell and Satnam Singh held Harbhajan Singh from

the arms. Gurwinder Singh gave axe blow to Harbhajan Singh which

hit him on his head and Harbhajan Singh became soiled with blood.

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3. The complainant-Sukhwinder Singh took his father to Civil

Hospital, Kartarpur. After the first aid, Harbhajan Singh was referred to

Joshi Hospital, Jalandhar where he was admitted for further treatment.

Even after the incident, since the talk for compromise was going on, no

complaint was lodged about the incident. Since the matter could not be

settled, Sukhwinder Singh lodged the complaint on 07.11.2007, based

on which FIR No.178 of 2007 was registered under Section 307 IPC

read with Section 34 IPC. Initial investigation was taken up by the

investigating officer. Harbhajan Singh succumbed to injuries on

01.12.2007 and the case was altered into Section 302 IPC read with

Section 34 IPC. Dr. M.B. Bali, Medical Officer (PW-1) conducted the

autopsy on the dead body of Harbhajan Singh. Further investigation

was completed and charge sheet was filed against the

appellants/accused persons under Section 302 IPC read with Section

34 IPC.

4. To bring home the guilt of the accused, prosecution has

examined Sukhwinder Singh (PW-6), Sandeep Singh (PW-7),

Dr. M.B. Bali, Medical Officer (PW-1) and other witnesses. The

appellants/accused were questioned under Section 313 Cr.P.C. about

the incriminating evidence and circumstances and the accused denied

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all of them. On the side 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 the

evidence of Sukhwinder Singh (PW-6) and Sandeep Singh (PW-7), the

prosecution has established the guilt of the accused beyond

reasonable doubt. The trial court rejected the defence version that

Mithu, servant of the accused, caused injuries to deceased Harbhajan

Singh as unbelievable. On such findings, the trial court convicted the

appellants/accused Gurwinder Singh under Section 302 IPC and

Satnam Singh under Section 302 IPC read with Section 34 IPC and

sentenced them to undergo life imprisonment and also to pay a fine of

Rs.10,000/- each. Being aggrieved, the appellants preferred appeal

before the High Court and the High Court confirmed the conviction and

the sentence imposed upon the appellants by the trial court. Hence,

this appeal.

6. Assailing the verdict of the conviction, learned counsel for the

appellants submitted that since there was a delay of five days in

lodging the First Information Report, serious doubts arise as to the

prosecution case. It was contended that the appellants/accused also

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sustained injuries for which the prosecution has offered no explanation

and that the prosecution has suppressed the genesis of the

occurrence. Learned counsel for the appellants inter alia contended

that even if the accusations of the prosecution are accepted in toto,

offence under Section 302 IPC is not made out in view of the

circumstances emerging from the evidence as the attack was in a

sudden quarrel when parties have assembled for settling the land

dispute.

7. In reply, learned counsel for the State submitted that considering

the evidence adduced by the prosecution and the nature of head

injuries inflicted on the deceased, the trial court was justified in

recording the conviction under Section 302 IPC and the High Court

has rightly dismissed the appeal.

8. Evidence of eye witnesses Sukhwinder Singh (PW-6) and

Sandeep Singh (PW-7) were corroborated by the medical evidence.

Prosecution has established that accused were responsible for

causing death of Harbhajan Singh. In the same incident, appellant

Satnam Singh also sustained injuries. On the same day i.e.

02.11.2007 at 04.45 p.m., Dr. Mohinderjit Singh (DW-1), Medical

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Officer examined accused Satnam Singh and noted the following

injuries on the person of Satnam Singh:-

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 examined

accused Gurwinder Singh and noted the following injuries on the

person of 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 party attacked the accused and the complainant party are

the aggressors. In his statement, Sukhwinder Singh has stated that he

attacked on the head of Satnam Singh and caused injury to him.

Arguments advanced on behalf of the appellants is that the

complainant party were the aggressors and that the prosecution failed

to explain the injuries on the persons of the accused and therefore, the

case of prosecution should be disbelieved.

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10. It cannot be held as an invariable proposition that as soon as the

accused received the injuries in the same transaction, the complainant

party were the aggressors - it cannot be held as a rule that the

prosecution is obliged to explain the injuries and on failure of the

same, the prosecution case should be disbelieved. It is well settled

that before placing the burden on the prosecution to explain the

injuries on the person of the accused, two conditions are to be

satisfied:- (i) the injuries were sustained by the accused in the same

transaction; and (ii) the injuries sustained by the accused are serious

in nature.

11. This Court considered the effect of non-explanation of injuries

sustained by the accused person in Takhaji Hiraji v. Thakore

Kubersing Chamansing and others (2001) 6 SCC 145 and held as

under:-

“17. The first question which arises for consideration is what is the
effect of non-explanation of injuries sustained by the accused
persons. In Rajender Singh v. State of Bihar (2000) 4 SCC 298,
Ram Sunder Yadav v. State of Bihar (1998) 7 SCC 365 and Vijayee
Singh v. State of U.P. (1990) 3 SCC 190, all three-Judge Bench
decisions, the view taken consistently is that it cannot be held as a
matter of law or invariably a rule that whenever the accused
sustained an injury in the same occurrence, the prosecution is
obliged to explain the injury and on the failure of the prosecution to
do so the prosecution case should be disbelieved. Before non-
explanation of the injuries on the persons of the accused persons
by the prosecution witnesses may affect the prosecution case, the
court has to be satisfied of the existence of two conditions: ( i) that

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 the injury on the person of the accused was of a serious nature;
and (ii) that such injuries must have been caused at the time of the
occurrence in question. Non-explanation of injuries assumes
greater significance when the evidence consists of interested or
partisan witnesses or where the defence gives a version which
competes in probability with that of the prosecution. Where the
evidence is clear, cogent and creditworthy and where the court can
distinguish the truth from falsehood the mere fact that the injuries
on the side of the accused persons are not explained by the
prosecution cannot by itself be a sole basis to reject the testimony
of the prosecution witnesses and consequently the whole of the
prosecution case.” (underlining added)

12. In the present case, the incident had taken place near the

tubewell where both the parties assembled to settle the land dispute.

When there was exchange of words, there was a scuffle between both

the parties. In the same transaction where Harbhajan Singh was

attacked, the accused party also sustained injuries. Apart from the

stray, the statement made by the complainant-Sukhwinder Singh in the

FIR, the prosecution has not offered any explanation for the injuries

sustained by the accused. Since both the accused sustained injuries

in the incident, non-explanation of injuries sustained by the accused

assumes significance. Having regard to the injuries sustained by the

accused, the trial court and the High Court ought to have made an

effort in searching out genesis of the occurrence.

13. From the evidence, it is clear that both families have assembled

and they were talking near the tubewell to resolve the land dispute.

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There was no provocation from either side. In his evidence,

Sukhwinder Singh (PW-6) has clearly stated that there was exchange

of words which resulted in scuffle between both the parties. It has

come from the evidence of Dr. Mohinderjit Singh (DW-1) that

Harbhajan Singh was drunk at the time of the incident. While

examining Harbhajan Singh at the time of his admission in the

hospital, Dr. Moninderjit Singh (DW-1) observed that “there was

alcoholic smell present in the breath of the patient”. It is in this

circumstance, appellant Gurwinder Singh had gone inside the room

adjacent to the tubewell and brought an axe and hit on the head of

deceased Harbhajan Singh. As pointed out earlier, accused also

sustained injuries in the same incident.

14. There is no clear evidence as to who started the attack. Both the

parties were unarmed. When there was exchange of words between

both the parties, accused Gurwinder Singh went inside the room and

brought an axe and caused head injuries to Harbhajan Singh. From

the post-mortem certificate (Ex.PA), it is seen that deceased

Harbhajan Singh sustained head injuries with multiple fractures, right

fronto temporal and temporo parietal region in the right fronto temporo

parietal region of the brain, haemorrhagic contusions in bilateral

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temporal region and right parietal region. However, deceased

Harbhajan Singh survived for about one month and he succumbed to

injuries on 01.12.2007. Though accused Gurwinder Singh used the

axe which is a formidable weapon, but Harbhajan Singh survived for

about one month. The appellants therefore cannot be said to have

taken undue advantage of the same. There was also a delay of five

days in lodging the FIR; the reason being, talks were still going on for

settling the matter. Considering the totality of the circumstances, in

our view, the act of the accused would fall under “Exception 4” to

Section 300 IPC.

15. 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.

16. Considering the scope of “Exception 4” to Section 300 IPC, in

Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395, it was held

as under:-

“8. 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

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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 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 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 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
a cruel or unusual manner. The expression “undue advantage” as
used in the provision means “unfair advantage”.” (underlining
added)

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17. The question falling for consideration is the nature of the offence

whether it would fall under Section 304 Part-I IPC or Part-II IPC. The

third clause of Section 300 IPC consists of two parts. Under the first

part, it must be proved that there was an intention to inflict the injury

that is present and under the second part, it must be proved that the

injury was sufficient in the ordinary course of nature to cause death.

As discussed earlier, deceased Harbhajan Singh was attacked with

axe on the head and he sustained multiple fractures, right fronto

temporal and temporo parietal region infarct in the right fronto temporo

parietal region of the brain, haemorrhagic contusions in bilateral

temporal region and right parietal region. The head injury caused to

Harbhajan Singh was sufficient in the ordinary course of the nature to

cause death. The accused intended to inflict that injury on Harbhajan

Singh which is sufficient in the ordinary course of nature to cause

death. In Nankaunoo v. 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 the

sufficiency of the injury in the ordinary course of nature to cause
death. The sufficiency is the high probability of death in the ordinary
course of nature. When the sufficiency exists and death follows,
causing of such injury is intended and causing of such offence is
murder. For ascertaining the sufficiency of the injury, sometimes the
nature of the weapon used, sometimes the part of the body on
which the injury is caused and sometimes both are relevant.
Depending on the nature of weapon used and situs of the injury, in

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 some cases, the sufficiency of injury to cause death in the ordinary
course of nature must be proved and cannot be inferred from the
fact that death has, in fact, taken place.”

18. Keeping in view the above principle, when we examine the facts

of the present case, the deceased sustained head injuries with multiple

fractures, right fronto temporal and temporo parietal region infarct in

the right fronto temporo parietal region of the brain, haemorrhagic

contusions in bilateral temporal region and right parietal region. The

weapon used in the manner in which the injury was inflicted clearly

establish that the appellants intended to cause the injury which is

sufficient in the ordinary course of nature to cause death. Having

regard to the facts and circumstances of the case, we are of the view

that the conviction of the appellants under Section 302 IPC to be

modified as conviction under Section 304 Part-I IPC.

19. In the result, the conviction of the appellants under Section 302

IPC read with Section 34 IPC is modified as conviction under Section

304 Part-I IPC and the appellants are sentenced to undergo

imprisonment for seven years and the appeals are partly allowed.

Appellant Gurwinder Singh is said to have undergone imprisonment for

more than ten years, he is ordered to be released forthwith unless his

presence is required in any other case. Appellant Satnam Singh is

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directed to surrender to serve the remaining period of sentence, failing

which, he shall be taken into custody.

.…….…………...………J.
[RANJAN GOGOI]

…………….……………J.
[R. BANUMATHI]
New Delhi;
May 08, 2018

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