Shambhoo Singh vs State Of Rajasthan

Shambhoo Singh ....Appellant

versus

State of Rajasthan ....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. The appellant questions legality of the judgment

rendered by a Division Bench of the High Court of Rajasthan

at Jodhpur Bench. The learned Additional Sessions Judge

No.2, Udaipur found the accused guilty of offence punishable

1 under Section 302 of the Indian Penal Code, 1860 (in short

the `IPC') and sentenced him to undergo RI for life and to pay

a fine with default stipulation. He was also convicted for

offence punishable under Section 447 IPC and sentenced to

undergo 15 days' RI. Additionally, he was convicted for offence

punishable under Section 307 IPC and sentenced to undergo

10 years RI and pay a fine of Rs.100/-. Similarly, in respect of

offence punishable under Section 324 IPC he was sentenced

to undergo RI for one year. In appeal, by the impugned

judgment, High Court confirmed the judgment of conviction

and sentence.

3. Prosecution version as unfolded during trial is as

follows:

On 3.8.1999, Vaje Singh (PW-1) lodged a First

Information Report at Police Station Pahara stating, inter-alia

that in the morning at about 9.00 a.m. his brother Jawan

Singh (hereinafter referred to as the `deceased') was ploughing

2 the field. He alongwith his father Gulab Singh and elder

brother Ram Singh was working in the field. At that time, his

neighbour appellant Shambhoo Singh, his father Som Singh

and mother Smt. Jeevi arrived there abusing them. Appellant

Shambhoo Singh was carrying knife in his hand. Som Singh

and Smt. Jeevi were carrying lathis. They challenged them

and questioned as to how they were ploughing the field of

their possession. There ensued a quarrel and exchange of hot

words. Appellant Shambhoo Singh stabbed the knife on the

chest of Jawan Singh. He caused another injury by knife on

the stomach. On intervention by his father, appellant

Shambhoo Singh caused injury by knife. He also caused

injuries to his mother Smt. Shanta and elder brother Ram

Singh. Appellant Shambhoo Singh also caused injuries to him.

Jawan Singh succumbed to the injuries on the spot. It was

stated that there was a land dispute between them, which led

to the unfortunate incident.

On this information, police registered a case and

proceeded with the investigation. The post-mortem of the

3 dead body was conduced by Dr. Mahendra (PW-17) on the

spot vide Ex.P-42. He noticed the following injuries on his

person:

1. An incised stab wound - 2.0 cm x 1.0 cm x perforating up to chest cavity placed in 6th intercostal space below left Nipple place obliquely.

On exploration - There is a wound of 1.55. cm x 1.0 cm x 2 cm deep left ventricle of the Heart. Cavity full of Blood.

2. An incised stab wound - 1.5 cm x 1.0 cm x thoracic cavity deep 5 cm lateral to injury No. l placed obliquely.

On exploration of wound - There is a wound of 1.0 cm x 2 cm lung tissue deep placed on the left lung. Thoracic cavity was full of blood.

3. An incised stab wound - 2.0 cm x 1.0 cm x abdominal cavity deep. On exploration of wound - There was no injury to any Abdominal Viscera. Intestinal loops are protruding through this wound.

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4. Abrasion- 2.5 cm x 1.0 cm placed on upper 1/3rd on medial side of right leg.

The cause of death was shock due to severe bleeding following stab wound to chest and abdomen. The injured persons namely PW-1 Vaje Singh, PW-10 Gulab Singh and PW-3 Smt. Shanta were sent to the hospital. Their injuries were examined by PW-1 l, Dr. B.P. Verma. He examined the injuries of PW-1 Vaje Singh vide Ex. P-12 and noticed the following injury on his person:

Incised wound 4 x 2 x 1 1/2 cm on left gluteus.

He also examined the injuries of PW-l0 Gulab Singh

vide Ex.P -11 and noticed the following injuries:

Stab wound transversely with bleeding on left intra mammary region 4x 1 x plural cavity deep surgical empug sema left side.

He also examined the injuries of PW-3 Smt Shanta vide

Ex. P-13 and noticed the following injuries:

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Incised wound 1 = x 1/2 x = cm on Right arm M/3rd Ant.

After usual investigation, the police laid charge sheet

against appellant Shambhoo Singh, his father Som Singh and

mother Smt. Jeevi for offence under Sections 302, 307, 326.

324, 447/34 IPC. The accused persons pleaded not guilty of

the charges levelled against them and claimed trial.

The trial Court placing reliance on the evidence of PWs 1,

2, 3 and 10 found the evidence to be credible and cogent. It

found the evidence of the injured witness to be without any

blemish. Accordingly, the trial Court recorded the conviction

and sentence as afore-noted.

In appeal before the High Court, the primary stand taken

was that the ocular evidence does not inspire corroboration. It

was submitted that in any event offence punishable under

Section 302 IPC is not made out as the occurrence occurred in

6 course of sudden quarrel. The High Court did not find any

substance and dismissed the appeal.

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

appellant submitted that the occurrence took place during the

course of sudden quarrel and, therefore, Section 302 IPC has

no application.

5. Learned counsel for the respondent-State supported the

judgments of the trial Court and the High Court.

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.

7. The Fourth Exception to Section 300 IPC covers acts

done in a sudden fight. The said Exception deals with a case

7 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

8 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

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 or 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

9 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

expression "undue advantage" as used in the provision means

"unfair advantage".

8. In the background facts as considered in the light of

evidence the inevitable conclusion is that the appropriate

conviction would be under Section 304 Part I, IPC. Custodial

sentence of 10 years would meet the ends of justice. The

conviction in respect of other offences and the sentences

imposed do not suffer from any infirmity to warrant

interference. The sentences shall run concurrently.

9. The appeal is allowed to the aforesaid extent.

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

..........................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, July 22, 2008

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