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)

J U D G M E N T

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

1

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.  

2

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

3

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

4

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

5

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.

6

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

7

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.

8

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

9

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

10

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)

11

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

12

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

13

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

14