Hawa Singh & Anr vs State Of Haryana

Hawa Singh and Anr. ..Appellants

Versus

State of Haryana ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Punjab and Haryana High Court upholding the conviction of the appellants

for offences punishable under Section 302 read with Section 34 and Section

452 of the Indian Penal Code, 1860 (in short the `IPC'). Though they were

charged of several other offences they were acquitted of those charges. In

the appeal filed by the appellants before the High Court there were several co-accused i.e. Jagdish, Devinder, Balwan and Murti Devi. Accused Jagdish

and Devinder who were convicted under Section 323 read with Section 34

and Section 452 IPC. The other two accused persons i.e. Balwan and Murti

were acquitted of all charges.

3. Prosecution version in a nutshell is as follows:

On March 20, 2000 at 4.00 p.m. Man Singh was sitting near the gate

of his house, while members of his family were present inside the house.

Hawa Singh, Parkash and Jagdish armed with swords, Balwan and

Devender @ Raju armed with lathis, their sister Murti armed with rapri and

their mother Gindori armed with pharsa came there. They entered the house

and upon exhortation that a lesson be taught to Man Singh for getting them

convicted, Hawa Singh opened the attack with a sword with which he hit

Man Singh on the head. This was followed by Parkash giving a blow with

his sword which hit Man Singh in the middle of his head. Jagdish also gave

a sword blow which hit Man Singh on the back of the head. When alarm

was raised Balwan hit Sajjan (PW-7) with a lathi on his forehead above left

eye. Devender @ Raju hit Sajjan (PW-7) with a lathi on his left leg. Murti

and Gindori also inflicted injuries on Sajjan. They also caused grievous

2 injuries to Anju and Sarti. Sajjan's younger brother Krishan and his uncle

Azad Singh reached the spot to rescue them from the assailants. During the

course of rescuing the injured, Azad Singh also sustained injuries. Some

injuries were also inflicted by complainant party on the accused in self

defence before the accused retreated from the spot with their respective

weapons. After the occurrence was over, the injured were taken to Civil

Hospital, Bhiwani. On reaching the hospital Man Singh succumbed to his

injuries whereas the injured were medico legally examined. Anju and Sajjan

were medico legally examined by Dr. Arjun Chander Yadav (PW-1) at 6.35

p.m. and 8.15 respectively. Anju was found to have various injuries on her

right hand.

The case was registered at Police Station Sadar, Bhiwani on the basis

of the statement of Sajjan (PW-7) recorded by ASI Suraj Bhan at 10.50 p.m.

on the same evening at General Hospital, Bhiwani. FIR was recorded in

respect of offences punishable under Sections 302, 148, 149, 452 and 323

IPC. Special report was delivered at 3.50 a.m. on March 21, 2000.

Thereafter, the Investigating Officer took up the investigation by first

preparing the inquest report on the dead body of deceased Man Singh. After

the inquest proceedings, post mortem was conducted by Dr. Ramesh Kumar

3 (PW-4). The Medical Officer found several injuries on the body of Man

Singh. In the opinion of the Medical Officer the death was caused due to

hamorrhage and shock and injury to the brain. The accused were arrested on

March 30, 2000 by Inspector Darshan Lal (PW-11). On the basis of their

respective disclosure statements, certain weapons were recovered from

possession of the accused i.e. axes from Parkash and Hawa Singh, rapris

from Jagdish and Devender @ Raju and a lathi from Balwan.

After completion of the investigation all the accused barring Murti

were sent up for trial. Murti was placed in column 2 of the report under

Section 173 of the Code of Criminal Procedure, 1973 (in short the `Code').

She was subsequently summoned to stand trial under Section 319 of the

Code. Charge was first framed against the accused on July 19, 2000 under

Section 302 read with Section 149 IPC and other related offences. Charges

were reframed on January 25, 2001. By this time Murti Devi had been

summoned as accused. Finally charge was reframed on April 15, 2004. All

the accused persons were found guilty and convicted.

Before the High Court the specific stand was that Section 302 had no

application because there was free fight and the occurrence took place in

4 course of sudden quarrel. The High Court accepted that there was a sudden

quarrel and there were injuries on both sides. But it took the view that the

appellants were apparently the aggressors and, therefore, the conviction

under Section 302 IPC was in order.

4. In support of the appeal, learned counsel for the appellants submitted

that after having recording a finding that there was free and open fight, the

question as to who was the aggressor was really irrelevant and the fact that

the persons belonging to the complainant party received more injuries was

also really of no consequence.

5. Learned counsel for the respondent-State supported the judgment.

6. 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.

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7. 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 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 reasons 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

6 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 the 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 cruel or unusual manner. The

7 expression `undue advantage' as used in the provision means `unfair

advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai

Nayak v. State of Gujrat (2003 (5) Supreme 223], Parkash Chand v. State

of H.P. (2004 (11) SCC 381) and Byvarapu Raju v. State of A.P. and Anr.

(2007 (11) SCC 218)

8. From the facts of the case, it appears that the accused persons armed

with deadly weapons like swords, balwan, lathis, pharsa came to the house

of the Man Singh on 20th March, 2000, at 4 p.m., to teach Man Singh a

lesson for getting the accused persons convicted. After coming to the house

of Man Singh, Hawa Singh opened the attack with the sword, with which he

hit Man Singh on the head and ultimately Man Singh succumbed to his

injuries.

9. Exception 4 to Section 300 IPC applies in the absence of any

premeditation. This is very clear from the wording of the exception itself.

The exception contemplates that the sudden fight shall start upon the heat of

passion on a sudden quarrel but here, the accused party, being deadly

armed, came with the intention of teaching Man Singh a lesson and in

furtherance of that, one of them, Hawa Singh, hit Man Singh on the head

8 with a sword, an attack with a deadly weapon on the vital part of the body

and that proved to be a fatal blow.

10. Therefore, Exception 4 to Section 300 has no application to the facts

of the present case.

11. The appellants have been rightly convicted in terms of Section 302

IPC.

12. The appeal is accordingly dismissed.

....................................J. (Dr. ARIJIT PASAYAT)

....................................J. (ASOK KUAMR GANGULY) New Delhi, January 15, 2009

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