Guru Dev Singh vs State Of M.P

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.

4 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.

7 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.

9 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.

11 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.

14 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. ..........................."

16 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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