REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1125  OF 2011 [Arising out of SLP (Crl.) No. 7194 of 2008]

Guru Dev Singh              …. Appellant

Versus

State of M.P.               ...Respondent

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1.Leave granted.

2.The  present  appeal  is  directed  against  the  judgment  and  

order passed by the Madhya Pradesh High Court convicting the  

appellant herein under Section 302 read with Section 34 of the  

Indian Penal Code [for short “IPC”] as also under Section 323  

read with Section 34 of IPC sentencing the appellant to undergo  

imprisonment  for  life  under  Section  302/34  for  committing  

murder with a fine of Rs. 5,000/- and in default of payment of  

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fine  further  to  undergo  one  year  additional  rigorous  

imprisonment.  

3.Brief facts leading to the filing of First Information Report and  

the  present  case/appeal  are  that  on  18.11.1986  the  

complainant-Hardev  Singh lodged  a  written  complaint  which  

was exhibited in the trial as Exhibit P.1 in the Police Station-

Pichhore  contending  inter  alia that  his  brother  Bhola  Singh  

alias Kamal who was residing in Village Sarnagat had gone to  

Janakpur via  Village  Badera  to  purchase  seeds of  chana on  

17.11.1986 along with Sukhdev Singh and that at about 8.00  

p.m. when they reached near the  tapra of Dilip Singh, Raju,  

son of Dilip Singh, armed with  kirpan [sword]; Baldev armed  

with lathi and Chhidda alias Gurudev armed with lohangi  met  

them. It was also stated therein that accused Baldev and Bhola  

Singh had enmity towards each other as Bhola Singh wanted  

the sister of Baldev to marry Lakkha Singh but Baldev did not  

want  the  same  and  because  of  that  the  accused  persons  

attacked  Bhola  Singh  and  Suveg  Singh  whereupon  both  of  

them were injured. It was alleged that Bhola Singh fell down  

due to the serious injuries sustained by him whereas Suveg  

Singh after being injured ran away to save himself and told this  

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fact to Hardev Singh. Thereupon Hardev Singh alongwith his  

brother  Billa,  Bhiru  and  Suveg  Singh  returned  back  to  the  

place of occurrence to save Bhola Singh alias Kamal but they  

could not find him at the place of occurrence and that only in  

the morning they could find the dead body of Bhola Singh in  

the  nala near the  tapra of Dilip Singh. The dead body of the  

decease was then taken out whereupon it was found that the  

deceased  was  injured  by  sharp  edged  and  hard  and  blunt  

objects. Consequently, the First Information Report was lodged  

by Hardev Singh on the basis of  which a criminal  case was  

registered  being  Crime  No.  193/1986.  The  police  after  

investigation  filed  challan  against  the  accused  persons,  viz.,  

Baldev Singh, Chhidda alias Gurudev Singh and Raju for the  

commission of offence under Section 302 read with Section 34  

and under Section 307 read with Section 34 of the IPC.  

4.It transpires from the records that the accused persons also  

lodged  a  complaint  with  the  police  regarding  the  incident  

contending  inter  alia that  Bhola  Singh  and  Suveg  Singh  

attacked the accused persons and injured them. However, the  

medical  report  submitted  in  support  of  the  said  contention  

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indicates that the injuries suffered by the accused persons in  

the present case were simple in nature.

5.On the basis of the charge sheet filed as against the appellant  

and also two other accused persons the case was committed to  

the Sessions Court.  Evidence was adduced by the prosecution,  

on completion of which, the statement of the accused under  

Section 313 Cr.P.C. was also recorded.  

6.The learned Sessions Judge after perusing the evidence on  

record passed an order of conviction against the accused for  

commission  of  offence  under  Section  302/34  and  Section  

307/34 of the IPC and passed an order of sentence to undergo  

life imprisonment for the offence under Section 302/34 IPC and  

also imposed fine of Rs. 5,000/- and in default of payment of  

fine,  to  further  undergo  one  year  additional  rigorous  

imprisonment.  The  Sessions  Court  also  passed  an  order  of  

sentence under Section 307/34 of the IPC ordering the accused  

to  undergo  rigorous  imprisonment  for  seven  years  and  also  

imposed fine of Rs. 2,000/- and in default in payment of fine,  

to  further  undergo  six  months’  additional  rigorous  

imprisonment.   

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7.Being  aggrieved  by  the  aforesaid  judgment  and  order  of  

conviction passed by the Sessions Judge, Raju and the present  

appellant  filed  appeals  before  the  High  Court  of  Madhya  

Pradesh. We are informed that one of the accused, viz., Baldev  

Singh had died in the meantime. The High Court took up the  

appeals  filed  by  Raju  and  the  present  appellant  for  

consideration and by a judgment and order dated 03.08.2007  

maintained  the  order  of  conviction  of  the  accused  persons,  

including the appellant herein, under Section 302/34 IPC and  

also maintained the sentence of imprisonment passed against  

them. The High Court, however, set aside the conviction under  

Section  307/34  IPC  and  instead  the  accused  persons  were  

convicted under  Section 323/34 IPC, for  which,  no separate  

sentence  was passed  as  they  were  already  convicted  for  life  

under Section 302/34 IPC.

8.As  against  the  aforesaid  judgment  and  order  the  present  

appeal is filed only by Gurudev Singh.  We are informed at the  

Bar that accused Raju has not filed any appeal as against his  

order  of  conviction  and  sentence.  Therefore,  in  the  present  

appeal we are concerned only with the order of conviction and  

sentence passed by the Sessions Judge and confirmed by the  

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High Court  under  Section  302/34 of  the IPC as against  the  

present appellant, Sri Guru Dev Singh.

9.Counsel  appearing  for  the  appellant  submitted  that  the  

evidence/statements of Suveg Singh [PW-1] and Lakkha Singh  

[PW-2],  who  were  stated  to  be  eye-witnesses  to  the  said  

incident, cannot be relied upon as there are vital discrepancies  

in  their  evidence.  It  was  also  submitted  that  PW-1  is  an  

interested witness for he was also a party to the fight wherein  

there was a mutual maarpit/fight between the parties in which  

even  the  accused  persons  received  injuries  for  which  no  

explanation  has  been  submitted  by  the  prosecution  and,  

therefore, the order of conviction and sentence passed against  

the appellant is liable to be set aside. He also submitted that  

even  if  the  evidence  adduced  by  the  prosecution  is  to  be  

believed, the accused is protected under Exceptions provided  

under Section 300 IPC for there was provocation from the side  

of the complainant party and that due to such provocation, the  

incident occurred due to sudden fight between the parties.

10.The aforesaid contentions of the counsel appearing for the  

appellant were refuted by the counsel appearing for the State  

who  contended  inter  alia that  the  injuries  received  by  the  

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accused  were  very  simple  in  nature  whereas  the  injuries  

inflicted on the deceased were very serious in nature and were  

inflicted on the vital  parts  of  the  body of  the deceased and,  

therefore, there was a clear intention on the part of the accused  

persons  to  kill  and murder  the  deceased and that  even the  

injuries received by PW-1 were also serious in nature but he  

could save himself from the vital blows by fleeing away from the  

place of occurrence.  

11.There  was  also  a  contention  on  behalf  of  the  appellant  

regarding the delay in filing the First Information Report. The  

said contention was also refuted by the counsel appearing for  

the respondent contending inter alia that the deceased was not  

traceable  and,  therefore,  the  complainant  and  his  relations  

were busy throughout the night trying to locate Bhola Singh  

alias Kamal and that the First Information Report was lodged  

only  after  the  dead  body  of  the  deceased  was  found in  the  

morning of 18.11.1986 from the  nala near the  tapra of Dilip  

Singh.  Therefore,  it  was  submitted  that  there  was  sufficient  

explanation  for  the  delay  in  filing  the  aforesaid  First  

Information Report.

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12.We have considered the aforesaid submissions put forward  

by  the  counsel  appearing  for  the  parties  in  the  light  of  the  

documents placed on records.  

13.Suveg Singh [PW-1] is an injured witness and, therefore, an  

eye-witness to the occurrence. He has given vivid description as  

to how the incident has taken place. He has clearly stated that  

there was no provocation on the part of complainant party, and  

that the provocation in fact came from the side of the accused  

persons. He clearly stated that when he along with Bhola Singh  

alias Kamal was returning back from the shop where they had  

gone to purchase seed of  chana and when they reached near  

the  tapara  of  Dilip  Singh  at  about  8.00  p.m.  they  found  

accused Baldev Singh armed with lathi, Chhidda alias Gurudev  

armed with  lohangi and Raju armed with  kirpan.  It  was also  

stated by him that all the three accused persons surrounded  

him and Bhola Singh alias Kamal and Baldev Singh told that  

his sister was engaged in Village-Salaiya and Bhola Singh was  

mediator  in  the  said engagement.  He has also  stated  in  his  

evidence  that  all  the  accused  persons  were  opposing  the  

proposed  engagement  and  so  they  asked  Bhola  Singh  alias  

Kamal  to  cancel  the  marriage  which  Bhola  Singh  refused,  

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whereupon  Chhidda  alias  Gurudev,  Raju  and  Baldev  Singh  

attacked both Bhola Singh and him and caused vital injuries  

on different parts of the body of the deceased as also on his  

body.  

14.There is a categorical statement of PW-1, the eye-witness,  

that the present appellant-Chhidda alias Gurudev Singh and  

other accused persons caused serious injuries on the head and  

body  of  the  deceased  by  inflicting  injuries  by  weapons  like  

lohangi, kirpan and lathi which they were carrying with them. It  

was also stated by him that Chhidda alias Gurudev Singh, the  

present appellant, gave PW 1 a blow of lathi on his hand while  

Baldev gave him a blow of lathi on his waist/back and the third  

blow was given by Chidda on his back, after being so hit and on  

the realizing that the accused persons would kill  him he ran  

away from the place of occurrence and reported the matter to  

his  father  Pyarasingh  who  came  along  with  him  and  other  

persons  to  the  place  of  occurrence  but  they  could  not  find  

Bhola Singh after searching throughout the night. They could  

find  the  dead  body  of  Bhola  Singh  only  on  the  morning  of  

18.11.1986 in a nala near the tapra of Dilip Singh whereupon  

they returned back to Janakpur and lodged the report.

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15.Lakkha Singh [PW-2], who is also an eye-witness to the said  

occurrence,  has  clearly  stated  that  all  the  three  accused  

persons hit Bhola on his head, hands and legs and also hit  

Suveg  Singh  [PW-1]  when  he  tried  to  rescue  Bhola  Singh  

whereupon Suveg Singh ran away from the spot. He also stated  

that Baldev Singh, Gurdev Singh and Raju lifted Bhola Singh  

and took him towards the  nala. This eye-witness has further  

stated that he further followed them stealthily by remaining 8-

10  steps  behind  them and then  the  accused  persons  threw  

Bhola Singh in the nala and at that time also Bhola Singh was  

crying and pleading with the accused persons but Baldev Singh  

again beat Bhola Singh there with  lathis and accused Chidda  

alias Gurdip Singh beat Bhola Singh with  lohangi. Thereafter  

accused Raju said that Bhola Singh is dead now and thereupon  

all the accused persons left the body of Bhola Singh there and  

went away towards their tapras. Thereafter he [PW-2] returned  

back to his Village-Sarnagat and on the next day he went to the  

Village-Janakpur and narrated the facts to Hardev Singh.  

16.The aforesaid statement of the two eye-witnesses, viz., PWs  

1 & 2, are also supported by the proved medical evidence of Dr.  

B.D.  Sharma  [PW-7]  in  the  present  case.  The  post  mortem  

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report of the dead body was conducted by Dr. B.D. Sharma on  

18.11.1986  which  indicates  that  there  were  as  many  as  21  

injuries on the deceased which are in the nature of lacerated  

wounds as well as contusion on the skull and other parts of the  

body. The injuries caused on the skull which are in the nature  

of lacerated wound and also contusion over skull are all very  

deep.  Other  injuries  were  also  found  to  be  very  serious  in  

nature  and  were  caused  by  sharp  cutting  hard  and  blunt  

weapon. It is thus established from the aforesaid post mortem  

report  that  the  deceased  would  have  received  injuries  from  

sword as also from lathi and lohangi. The nature of the injuries  

caused  to  the  deceased  would  prove  and  establish  that  the  

aforesaid injuries were caused with the intention of killing the  

deceased.  

17.It was also established from the records that the sword as  

also  the  lohangi and  lathi, the  weapons  used  during  the  

incident, have been recovered at the instance of the accused  

persons  and  on  the  basis  of  the  statements  made  by  the  

accused persons leading to  their  discovery which are  cogent  

and admissible evidence in the present case.

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18.When the aforesaid medical evidence of PW-7 is read along  

with post mortem report and the statements of PWs 1 & 2, who  

were stated to be eye-witnesses, as also the statements of the  

accused persons leading to the discovery, which are admissible  

in evidence, it is clearly established that the deceased received  

serious injuries on account of the blows of the sword, lathi and  

lohangi used by the accused persons due to which Bhola Singh  

died.  

19.Dr. B.D. Sharma [PW-7] has stated in his evidence that he  

found 21 injuries on the body of the deceased and that in his  

opinion 8 injuries  were  on the head  of  the  deceased,  which  

resulted in Subdurel Hemotoma and Coma. He clearly stated in  

his evidence that the deceased died due to the head injuries  

and that  the  said  injuries  were  sufficient  to  cause  death  in  

normal course of nature.  

20.So,  all  the  aforesaid  injuries  proved  through the  medical  

evidence are also supported by the oral testimony of two eye-

witnesses, viz., PWs 1 & 2.

21.Gurmej Singh [PW-4], who is a witness to the recovery of  

lathi, lohangi and kirpan has clearly stated that on the basis of  

the  statements  made  by  the  accused  persons  the  aforesaid  

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weapons were recovered from the places shown by the accused  

persons.  Therefore,  the  aforesaid  evidence  also  proves  the  

allegation  made  against  the  accused  persons  including  the  

present appellant.

22.The defence that was also raised by the counsel appearing  

for  the  appellant  was  that  the  aforesaid  incident  had taken  

place as a result of provocation on the part of deceased and  

PW-1 because of which a sudden fight had developed and thus  

the appellant is protected under one of the exceptions provided  

under Section 300 of the IPC.

23.With  regard  to  this  plea  of  the  accused  it  seems  that  

Exceptions I and IV to Section 300 of the IPC are sought to be  

taken advantage of  by the accused in this case.  For dealing  

with such plea raised on behalf of the accused person we may  

extract the said exceptions to Section 300 IPC, which are as  

under: -

“Exception 1: When culpable homicide is not murder.  Culpable  homicide  is  not  murder  if  the  offender,  whilst deprived of the power of self-control by grave   and  sudden  provocation,  causes  the  death  of  the   person who gave the provocation or causes the death   of any other person by mistake or accident.

Exception 4: Culpable homicide is not murder if it is   committed without premeditation in a sudden fight in   

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the  heat  of  passion  upon  a  sudden  quarrel  and  without the offender having taken undue advantage   or acted in a cruel or unusual manner.”

24.With regard to law dealing with Exception I to Section 300  

we  may  refer  to  the  case  of  K.  M.  Nanavati  v.  State  of  

Maharashtra  reported  in AIR  1962  SC  605  in  which this  

Court held that following conditions must be complied with for  

the application of Exception I to Section 300 of the IPC: - (1) the  

deceased must have given provocation to the accused, (2) the  

provocation must be grave, (3) the provocation must be sudden,  

(4) the offender, by reason of the said provocation, shall have  

been deprived of his power of self-control, (5) he should have  

killed the deceased during the continuance of the deprivation of  

the power of self-control and (6) the offender must have caused  

the death of the person who gave the provocation or that of any  

other person by mistake or accident.

25.With regard to Exception IV to Section 300 we may refer to  

the  case  of  Kulesh  Mondal  v.  The  State  of  West  Bengal  

reported in (2007) 8 SCC 578 in which this Court  

“12. The residuary plea relates to the applicability of   Exception 4 of  Section 300 IPC,  as  it  is  contended  that  the  incident  took place  in  course of  a sudden  quarrel.

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13.  For  bringing  it  in  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 and not having acted   in a cruel or unusual manner.”

26.In the case of Babulal Bhagwan Khandare & Anr. v. State  

of  Maharashtra reported in  (2005)  10 SCC 404 this  Court  

detailed the law relating to Exception I and IV to Section 300  

IPC in following terms: -

“17. The fourth exception of Section 300 IPC covers  acts done in a sudden fight. The said exception deals   with  a  case  of  prosecution  (sic  provocation)  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 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.

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18. 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 had 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”.

19.  Where  the  offender takes  undue advantage  or  has acted in a cruel or unusual manner, the benefit  of Exception 4 cannot be given to him. If the weapon   used or the manner of attack by the assailant is out  of  all  proportion,  that  circumstance  must  be  taken  into  consideration  to  decide  whether  undue  advantage has been taken. In Kikar Singh v. State of  Rajasthan it  was  held  that  if  the  accused  used  deadly  weapons  against  the  unarmed  man  and  struck a blow on the head it must be held that by  using the blows with the knowledge that they were   likely  to  cause  death  he  had  taken  undue  advantage. ...........................”

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27.The defence of accused that his case is covered under one of  

the above Exceptions to Section 300 is not corroborated by the  

evidence on record. On going through the evidence on record  

we find that the provocation came from the side of the accused  

and not from the deceased or PW-1. It was also not a sudden  

attack as it was proved that the accused persons were armed  

with deadly  weapons like,  lohangi and  kirpan at  the  time of  

occurrence and in fact they surrounded the deceased and the  

injured eye-witness, PW-1, and started giving blows of sword,  

lathi and  lohangi on  the  vital  parts  of  the  body  with  the  

intention of killing Bhola Singh. Therefore, the argument that  

one  of  the  above  Exceptions  to  Section  300  of  the  IPC  is  

attracted in the instant case cannot be accepted on the face of  

the evidence on record.

28.So far the submission with regard to delay in filing the first  

information report is concerned, we are satisfied that there is  

proper explanation given by the informant for the delay in filing  

such report.  As the deceased was not found at the place of  

occurrence, the informant with PW1 was trying to locate the  

deceased throughout the night and only after tracing him out  

in the nala and being sure of his death filed the information  

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immediately thereafter.  The aforesaid explanation appeals to  

us as reasonable.

29.Considering the entire evidence on record, we are satisfied  

that  the  appellant  is  guilty  of  the  offence  committed  under  

Section 302/34 of the IPC as also under Section 323 /34 of the  

IPC and, therefore, the order of conviction and sentence passed  

by the High Court of Madhya Pradesh against him is found to  

be justified. We, therefore, find no merit in this appeal which is  

dismissed.

.............................................J            [Dr.  Mukundakam  

Sharma]

          .............................................J                              [Anil R. Dave]

New Delhi, May 10, 2011.

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