Page 1

        REPORTABLE  IN THE SUPREME COURT OF INDIA

               CRIMINAL APPELLATE JURISDICTION                  CRIMINAL APPEAL NO. 2284 OF 2009

Surain Singh .... Appellant(s)

Versus

The State of Punjab      .... Respondent(s)

                      J U D G M E N T

R.K. Agrawal, J.

1) This  appeal  has  been  filed  against  the  judgment  and

order dated 02.09.2008 passed by the High Court of Punjab &

Haryana  at  Chandigarh  in  Criminal  Appeal  No.  209-DB  of

1998 whereby the Division Bench of the High Court confirmed

the order dated 26.03.1998 passed by the court of Additional

Sessions  Judge,  Faridkot  in  Sessions  Case  No.  33  of  1995

wherein  the  appellant  herein  was  convicted  under  Sections

302, 307 and 324 of the Indian Penal Code, 1860 (in short ‘the

IPC’) and sentenced to imprisonment for life along with fine.

1

Page 2

2) Brief facts:

(a) Prosecution  story,  in  brief,  is  that  there  was  dispute

between  one  Shri  Amrik  Singh-the  complainant  and  his

relatives on one side and accused persons on the other side

regarding their turn of irrigating their fields.  On account of

this, earlier also there had been incidents of assaulting each

other.   In  the  circumstances,  both  the  parties  were  facing

proceedings under Sections 107/151 of the Code of Criminal

Procedure,  1973  (in  short  ‘the  Code’)  before  the  Executive

Magistrate, Faridkot.   

(b) On 17.02.1995, when both the parties had come to the

court  of  Executive  Magistrate,  Faridkot,  the  complainant

(PW-1) along with his family members, viz., Raj Singh (PW-3),

Harbans  Singh  (since  deceased),  Sukhchain  Singh  (PW-2),

Mander Singh, Santa Singh (since deceased), Gursewak Singh,

Banta Singh and others was present  in  the  court  premises

whereas  from  the  side  of  accused  Surain  Singh  (the

appellant-accused) along with Jhanda Singh, Jasmail Singh,

Darshan Singh, Pal Singh, Boota Singh had also come to the

court in order to attend the proceedings.   

2

Page 3

(c) At about 11:00 a.m., both the sides started quarrelling

and had a  heated  exchange of  words  as  Surain Singh (the

appellant-accused) objected to the presence of Bhajan Singh,

who  was  relative  of  Amrik  Singh  and  not  a  party  to  the

proceedings.   Surain  Singh-the  appellant-accused,  took  out

his  Kirpan  and  gave  a  blow  to  Bhajan  Singh.   When  the

complainant party tried to stop the appellant-accused, he gave

a Kirpan blow to Mander Singh.  He also assaulted Harbans

Singh (since deceased) with Kirpan.  Darshan Singh also took

out his Kirpan and started giving blows to Santa Singh (since

deceased).   The  injured  were  taken  to  Guru  Gobind  Singh

Medical  Hospital  Faridkot,  where Santa Singh and Harbans

Singh succumbed to their injuries.

(d) A  First  Information  Report  (FIR)  being  No.  14  dated

17.02.1995 was registered at Police Station, Faridkot by the

complainant under Sections 302, 307, 324, 326, 148, 149 of

the IPC and the case was committed to the Court of Sessions

as Sessions Case No. 33 of 1995.  

(e) Learned  Additional  Sessions  Judge,  vide  order  dated

26.03.1998,  convicted the appellant-accused under  Sections

3

Page 4

302, 307 and 324 of the IPC and sentenced him to undergo

rigorous  imprisonment  (RI)  for  life  along  with  fine  for  the

murder  of  Harbans Singh and Santa Singh.   The appellant

herein was further sentenced to rigorous imprisonment (RI) for

1 (one) year for the offence under Section 324 of the IPC with

the  direction  that  all  the  sentences  shall  run concurrently.

Since we are not concerned with the conviction and sentence

passed  against  the  other  accused  in  the  present  case,  we

refrain from referring to the same.

f) Being  aggrieved  by  the  order  dated  26.03.1998,  the

appellant  herein preferred an appeal  being  Criminal  Appeal

No.  209-DB  of  1998  before  the  High  Court.   The  Division

Bench of the High Court, vide order dated 02.09.2008, partly

allowed the appeal of the appellant-accused while maintaining

the conviction and sentence with regard to murder of Harbans

Singh  under  Section  302  of  the  IPC,  infliction  of  injury  to

Sukhchain Singh under Section 307 of the IPC and infliction

of injuries on the person of Bhajan Singh and Mander Singh

under Section 324 of the IPC and acquitted him of the charge

4

Page 5

under Section 302 of the IPC for the commission of murder of

Santa Singh.

g) Aggrieved  by  the  order  dated  02.09.2008,  the

appellant-accused has filed this appeal by way of special leave

before this Court.

3) Heard learned counsel  for  the parties and perused the

material on record.

4) The  only  point  for  consideration  before  this  Court  is

whether  the  appellant-accused  has  made  out  a  case  for

conviction under Section 304 Part II instead of Section 302 of

the IPC?

5)  Since the point for consideration is very limited in the

instant case, there is no need to traverse all the factual details

rather those having a bearing on the present appeal.

6) Before  proceeding  further,  it  is  relevant  to  produce

Section 300 which is as under:-

“300.Murder--.Except  in  the  case  hereinafter  excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--  

Secondly-- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--  

5

Page 6

Thirdly--  If  it  is  done with the intention of  causing bodily injury to any person and the bodily  injury intended to be inflicted  is  sufficient  in  the  ordinary  course  of  nature  to cause death, or—

Fourthly—If the person committing the act knows that it is so  imminently  dangerous  that  it  must,  in  all  probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

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.

……x…..xx…..xx….. x………. ……x…..xx…..xx….. x………. ……x…..xx…..xx….. x……….

Exception  4--  Culpable  homicide  is  not  murder  if  it  is committed  without premeditation in a  sudden fight  in the heat  of  passion upon  a  sudden  quarrel and  without  the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation- It  is  immaterial  in  such  cases  which  party offers the provocation or commits the first assault. ……….”

7) Exception  4  to  Section  300  of  the  IPC  applies  in  the

absence  of  any  premeditation.  This  is  very  clear  from  the

wordings of the Exception itself. The exception contemplates

that the sudden fight shall start upon the heat of passion on a

sudden  quarrel.   The  fourth  exception  to  Section  300  IPC

6

Page 7

covers acts done in a sudden fight. The said Exception deals

with a case of 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 an 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

could in such cases the whole blame be placed on one side.

For if it were so, the Exception more appropriately applicable

7

Page 8

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 offenders 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

8

Page 9

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”.

8) In  State  of  A.P. vs.  Rayavarapu  Punnayya  and

Another (1976)  4  SCC  382,  this  Court  while  drawing  a

distinction  between  Section  302  and  Section  304  held  as

under:-

“12. In the scheme of the Penal Code, “culpable homicide” is genus  and  “murder”  its  specie.  All  “murder”  is  “culpable homicide”  but  not  vice-versa.  Speaking  generally,  “culpable homicide” sans “special characteristics of murder”, is “culpable homicide not amounting to murder”. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the  Code  practically  recognises  three  degrees  of  culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the greatest form of culpable homicide, which is defined in Section 300 as “murder”. The second may be termed as  “culpable  homicide  of  the  second  degree”.  This  is punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree”. This is the lowest type of  culpable  homicide  and the  punishment  provided  for  it  is, also, the lowest among the punishments provided for the three

9

Page 10

grades. Culpable homicide of this degree is punishable under the second part of Section 304.

21. From the  above  conspectus,  it  emerges  that  whenever  a court  is  confronted  with the  question whether  the  offence  is “murder” or “culpable homicide not amounting to murder”, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal  connection  between  the  act  of  the  accused  and  the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299. If the answer to this question is prima facie found in  the  affirmative,  the  stage  for  considering  the  operation  of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of “murder” contained in Section 300. If the answer to this question is in the negative the offence would  be  “culpable  homicide  not  amounting  to  murder”, punishable under the  first or the  second part of Section 304, depending,  respectively,  on  whether  the  second  or  the  third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be “culpable homicide not amounting to murder”, punishable under the first part of Section 304, of the Penal Code.”

9) In Budhi Singh vs. State of Himachal Pradesh (2012)

13 SCC 663 this Court has held as under:-

18. The  doctrine  of  sudden  and  grave  provocation  is incapable  of  rigid  construction  leading  to  or  stating  any principle of universal application. This will  always have to depend  on  the  facts  of  a  given  case.  While  applying  this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there  was  such  grave  and  sudden  provocation  so  as  to reasonably  conclude  that  it  was  possible  to  commit  the offence of culpable homicide, and as per the facts, was not a culpable  homicide  amounting  to  murder.  An  offence

10

Page 11

resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury. 19. Another test that is applied more often than not is that the  behaviour  of  the  assailant  was  that  of  a  reasonable person. A fine distinction has to be kept in mind between sudden  and  grave  provocation  resulting  in  sudden  and temporary loss of self-control and the one which inspires an actual  intention  to  kill.  Such  act  should  have  been  done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to  kill,  it  will  obviously  fall  beyond the  scope  of  culpable homicide not amounting to murder…..”  

10) In  Kikar Singh vs.  State of Rajasthan (1993) 4 SCC

238, this Court held as under:-

“8. The counsel attempted to bring the case within Exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of  passion;  (2)  upon a sudden quarrel;  (3)  without  the  offender’s  having  taken  undue advantage;  (4)  and  the  accused  had not  acted  in  a  cruel  or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. And however slight the first blow,  or  provocation,  every  fresh  blow  becomes  a  fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in  the  heat  of  passion.  Therefore,  it  is  difficult  to  apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it  must occur as a consequence of a sudden fight i.e. mutual combat and not one side track. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one  who uses  such weapon must  be  held  to  have  taken  an

11

Page 12

undue advantage denying him the entitlement to Exception 4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner  of  combat must be kept  in mind when applying Exception  4.  When  the  deceased  was  not  armed  but  the accused  was  and caused  injuries  to  the  deceased  with  fatal results, the Exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder. 9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence,  at  least  at the onset.  This is specially  so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following  a  sudden  quarrel  if  the  accused  has  inflicted  fatal blows  on  the  deceased,  Exception  4  is  not  attracted  and commission must be one of murder punishable under Section 302.  Equally  for  attracting  Exception  4  it  is  necessary  that blows should be exchanged even if  they do not all  find their target. Even if the fight is unpremeditated and sudden, yet if the  instrument  or  manner  of  retaliation  be  greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4….”

11) Now, we have to consider the facts of this case on the

touchstone of  Section 300 Exception 4 in order to find out

whether  the case falls  under  the same or  not.   During the

course of hearing, learned counsel for the appellant-accused

strenuously contended before this Court that the High Court

recorded a categorical finding that “an inescapable conclusion

that can be drawn is that it was a case of sudden fight where

the attack was without pre-meditation.” He further contended

that despite holding so, the High Court erroneously convicted

12

Page 13

the appellant-accused under Section 302 of the IPC instead of

Section 304 Part II on the ground that the appellant-accused

had  acted  in  cruel  manner  and had caused  injuries  to  six

persons and a death.   

12) The appellant-accused, at the relevant time, was wearing

Kirpan and he took out the same and gave 3 or 4 blows on the

left side of the chest of Bhajan Singh.  When the other side

came to his rescue, the appellant-accused gave a blow on the

back  side  of  the  waist  of  Mander  Singh.   The

appellant-accused was further found to have given a blow on

the  backside  of  the  left  shoulder  of  Amrik  Singh-the

complainant  and also  two  blows  each using  Kirpan  on  the

right flank of Sukhchain Singh and Harbans Singh.  

13) In view of the above, it is relevant to quote the statement

of  Dr.  Sarabjit  Singh  Sandhu  (PW-4),  who  conducted  the

autopsy on the body of Harbans Singh, which is as under:-

“On the  same day,  at  4.50  p.m.  I  also conducted the post mortem examination on the dead body of Harbans Singh S/o Mandir Singh R/o Pakhi Khurd 27 years age, male brought by ASI Sukhdev Singh and HC Parson Singh No. 1432 of  P.S. City Faridkot.  Body was identified by Bohar Singh S/o Ajmer Singh and Tej Singh S/o Kartar Singh.  Length of the body was 5’9”.  It was dead body of moderately built and moderately nourished  young  man wearing  Sweater,  Shirt,  Jarsi,  Paint,

13

Page 14

Kachha,  Turban,  Short  Kirpan  with  black  thread,  White metallic kara in right forearm. P.M. staining as present series of  marked  patches  at  the  back  of  trunk  and  lower  limbs. Rigor  mortis  was  present  in  the  neck  muscles  and  upper limbs.  Absent in lower limbs (developing stage) clothes were blood  stained  and  corresponding  holes  were  present  with clothes.  I found the following injuries on his person:-

1. An onlique stab wound 3 x 0.5 cm was present on the lateral side of right side of chest in mid Axiliary line 22 cm below the Axillary apax. C.B.P. it was bone deep.  

2. A transverse stab wound 2.0 x 5 cm was presentation the right side back of abdomen, 8 cms below and lateral of injury no. 1 on exploring, it was going medially and in words  cutting  subcutaneous  tissue,  muscles,  right kidney.   Peritoneum and large  intestine.   Peritoneum cavity contained above 1000 C.C.  of  fluid and clotted blood.   Stomach  contained  about  150  C.C.  of  semi digested food.  All other organs were healthy.  

All  the injuries were anti  mortem in nature.   The cause of death  in  this  case  in  my  opinion  was  due  to  right  kidney (hemorrhage  and shock)  and large  intestine,  as  a  result  of injury no. 2 which was sufficient to cause death in ordinary course of nature.”

14) In the instant case, it is evident from the materials on

record  that  there  was  bitter  hostility  between  the  warring

factions  to  which  the  accused  and  the  deceased  belonged.

Criminal litigation was going on between these factions.  It is

also proved from the material on record that the attack was

not  premeditated  and  preplanned.   Both  the  parties  were

present in the Court of Executive Magistrate, Faridkot at the

relevant  time with  regard  to  the  proceedings  under  Section

14

Page 15

107/151 of  the  Code.  When the  appellant-accused objected

the  presence  of  a  member  of  the  opposite  side,  the  scuffle

started between the parties which resulted into death of two

persons.   The  conduct  of  the  appellant-accused  that  he  at

once  took  out  his  Kirpan  and  started  giving  blows  to  the

opposite  party  proves that  the attack was not  premeditated

and it was because of the spur of the moment and without any

intention to cause death. The occasion for sudden fight must

not only be sudden but the party assaulted must be on an

equal footing in point of defence, at least at the onset.   

15) The  weapon  used  in  the  fight  between  the  parties  is

‘Kirpan’ which is used by ‘Amritdhari Sikhs’ as a spiritual tool.

In the present case, the Kirpan used by the appellant-accused

was  a  small  Kirpan.   In  order  to  find  out  whether  the

instrument or manner of retaliation was cruel and dangerous

in its nature, it is clear from the deposition of the Doctor who

conducted  autopsy  on  the  body  of  the  deceased  that  stab

wounds were present on the right side of the chest and of the

back  of  abdomen  which  implies  that  in  the  spur  of  the

moment, the appellant-accused inflicted injuries using Kirpan

15

Page 16

though not on the vital organs of the body of the deceased but

he  stabbed  the  deceased  which  proved  fatal.   The  injury

intended  by  the  accused  and  actually  inflicted  by  him  is

sufficient in the ordinary course of nature to cause death or

not, must be determined in each case on the basis of the facts

and circumstances.  In the instant case, the injuries caused

were the result of blow with a small Kirpan and it cannot be

presumed that the accused had intended to cause the inflicted

injuries.   The  number  of  wounds  caused  during  the

occurrence is not a decisive factor but what is important is

that  the  occurrence  must  have  been  sudden  and

unpremeditated and the offender must have acted in a fit of

anger.   Of  course,  the  offender  must  not  have  taken  any

undue advantage or acted in a cruel manner.  It is clear from

the materials on record that the incident was in a sudden fight

and we are of the opinion that the appellant-accused had not

taken  any  undue  advantage  or  acted  in  a  cruel  manner.

Where,  on  a  sudden  quarrel,  a  person  in  the  heat  of  the

moment  picks  up  a  weapon  which  is  handy  and  causes

16

Page 17

injuries, one of which proves fatal, he would be entitled to the

benefit of this Exception provided he has not acted cruelly.    

16) Thus,  if  there  is  intent  and knowledge  then the  same

would be a case of Section 304 Part I and if it is only a case of

knowledge  and  not  intention  to  cause  murder  and  bodily

injury then the same would fall under Section 304 Part II. We

are inclined to the view that in the facts and circumstances of

the present case, it cannot be said that the appellant-accused

had any intention of causing the death of the deceased when

he committed the act in question. The incident took place out

of  grave and sudden provocation and hence  the accused is

entitled to the benefit of Section 300 Exception 4 of the IPC.

17) Thus, in entirety, considering the factual scenario of the

case  on  hand,  the  legal  evidence  on  record  and  in  the

background of legal principles laid down by this Court in the

cases referred to  supra, the inevitable conclusion is that the

act  of  the  appellant-accused  was  not  a  cruel  act  and  the

accused did not take undue advantage of the deceased. The

scuffle  took  place  in  the  heat  of  passion  and  all  the

requirements under Section 300 Exception 4 of the IPC have

17

Page 18

been  satisfied.  Therefore,  the  benefit  of  Exception  4  under

Section  300 IPC is  attracted to  the  fact  situations  and the

appellant-accused is entitled to this benefit.

18) Thus, considering the factual background and the legal

position set out above,  the inevitable conclusion is  that the

appropriate  conviction  of  the  appellant-accused  would  be

under  Section  304  Part  II  IPC  instead  of  Section  302  IPC.

Hence, the sentence of imprisonment for 10 years would meet

the ends of justice.

19) The appeal is disposed of in the abovesaid terms.

………….………………………J.               (A.K. SIKRI)                                  

………….………………………J.       (R.K. AGRAWAL)                           

NEW DELHI; APRIL 10, 2017.  

18