AJITSINGHversusSTATE OF PUNJAB

                      [2011] 12 S.C.R. 375


                          AJITSINGH                                   A
                                v.
                     STATE OF PUNJAB
             (Criminal Appeal No. 2094 of 2008)
                    SEPTEMBER, 01 2011
                                                                      B
 [HARJIT SINGH BEDI AND GYAN SUDHA MISRA, JJ.]

      Penal Code, 1860 - ss. 302, 304 Part I - Altercation
between parties - Victim hurled abuses at appellant -
Appellant asked his servant to get spade and thereafter               C
inflicted blows on the neck of the victim - Victim taken to the
hospital and after treatment for three days succumbed to her
injuries - Appellant convicted u1s: 302 and sentenced to
rigorous imprisonment for life whereas the servant, co-
accused convicted uls. 302134 - High Court upheld the                 D
conviction and sentence of the appellant however, acquitted
the co-accused - Appeal before Supreme Court - Held: Per
Harjit Singh Bedi, J: Appellant took undue a_gvantage and
acted in a cruel and unusual manner which exclude
applicability of Exception 4 to s. 300, thus, his case falls within   E
the ambit of s. 302 - Appellant's conviction u/s. 302 does not
call for interference - Per Gyan Sudha Misra, J: Incident
happened on the spur of the moment and was not a pre-
meditated assault on the deceased and the appellant was
deprived of the power of self-control on account of grave and         F
sudden provocation, thus, the case would fall u/s. 304 Part I
- Sentence of /ife imprisonment reduced to a period of ten
years uls. 304 Part I - In view of divergence of opinion
between the two Judges, matter referred to Larger Bench
- Reference to larger bench.
                                                                      G
     According to the prosecution, over a minor issue
appellant reprimanded 'LK' and her companion. As a
result there was altercation between the parties and due
to the same the appellant got provoked and asked his
                           375                                        H
   376      SUPREME COURT REPORTS            [2011] 12 S.C.R.

A servant 'AK' to bring spade. 'AK' brought the spade and
  the appellant inflicted two blows on 'LK'. PW 7 (son of
  'LK') was present at the place of the incident. He raised
  an alarm and the entire village reached at the place of
  incident. Thereafter, 'LK' was taken to the hospital and
B after three days of the treatment, she died. PW 6 who was .
  near the place of the incident lodged FIR. The trial court
  convicted the appellant u/s. 302 IPC and sentenced him
  to rigorous imprisonment for life; and 'AK' (co-accused)
  was convicted under Section 302/34 IPC. The High Court
C upheld the conviction and sentence of the appellant
  however, acquitted the co-accused. Therefore, the
  appellant filed the instant appeal.

         Referring the matter to the larger Bench, the Court

D PER: MISRA, J.

       HELD: 1.1 In so far as the genesis and manner of
  occurrence and the factum of death of 'LO' is concerned,
  the'findings recorded by the courts below that the
E deceased 'LO' died in the manner and at the place as
  alleged by the prosecution, is accepted [Para 7] [385-F-
   G]
        1.2 From the prosecution story itself it emerges that
  when the deceased was cutting the grass for fodder in
F the field of the appellant, the appellant was not armed
  with any weapon and it is only when the deceased hurled
  filthy abuses to the appellant, he directed his servant 'AK'
  to bring a Kassi and ordered him to catch hold of the
  deceased after which he gave two blows on the neck of
G the deceased as a result of which she died on the 4th day
  of the incident. Thus, on perusal of the evidence on
  record, it is clear that the incident happened on the spur
  of the moment and was not a premeditated assault on the
  deceased. Nevertheless, the appellant had inflicted
H grievous injury on the neck of the deceased but she did
         AJIT SINGH v. STATE OF PUNJAB               377


not die instantly and was taken to the hospital where A
treatment was given to her for three days and finally she
succumbed to the injury. Thus, it can be logically and
reasonably inferred that the accused-appellant although
inflicted grievous injury on the neck of the deceased and
gave two blows, the assault was not the result of pre- B
planning or pre-meditated assault and the same did not
result in instantaneous death of the deceased but she
was taken to the hospital for treatment where she
succumbed to the injury after four days of the incident.
[Paras 11 and 12] [487-D-G]                               c
     1.3 The appellant no doubt inflicted the injury on the
deceased with' the intention of causing such bodily injury
which could result in her death and in that view of the
facts and circumstance, knowledge will have to be
attributed to him that he inflicted injury on the deceased D
to cause death of the victim which was sufficient in the
ordinary course of nature to cause death. In that event,
he although will have to be held guilty of the offence of
murder in view of the ingredients of the offence given out
under Section 300 l.P.C., it cannot be ruled out that the E
case of the appellant in view of the genesis and manner
of occurrence would fall under exception 4 of Section 300
and thus, would be liable for conviction under Section
304 Part-I for the reason that it cannot be held with
certainty that he undoubtedly had the intention to kill and F
not merely to cause grievous hurt. [Para 13] [387-H; 388-
A-C]
    Patel Rasiklal Becharbhai Vs. State of Gujarat AIR 1992
SC 1150 - referred to.                                      G
     1.4 In order to hold whether an offence would fall
                                                            '   '
under Section 302, or 304 Part-I, l.P.C., the courts have
to be extremely cautious in examining whether the same
falls under Section 300 l.P.C. which states whether a
                                                            H
     378    SUPREME COURT REPORTS              [2011] 12 S.C.R.

A culpable homicide is a murder, or it would fall under its
  five exceptions which lays down when culpable homicide
  is not murder and in this category further lays down that
  culpable homicide Is not murder if the offender whilst
  deprived of the power of self-control by giving sudden
B provocation causes the death of the person who gave the
  provocation, or causes the death of any other person by
  mistake or accident. [Para 14] [388-E-G]

           1.5 While examining the case of the appellant in the
     light of the settled legal position that culpable homicide
C    would not amount to murder if the offender was deprived
     of the power of self-control on account of grave and
     sudden provocation, the appellant's case will have to be
     treated to be a case falling under the 4th exception of
     Section 300 and thus, would be a case under Section 304
D    Part I, l.P.C. for more than one reason deduced from the
     evidence on record. In the first place, the deceased had
     been cutting grass for fodder in the field of the appellant
     and when the appellant reprimanded the deceased and
     her companion not to spoil his crop, the deceased started
E    altercation with the appellant and abused him which
     provoked the appellant to order his companion 'AK'
     (since acquitted) to bring Kassi (spade) which instruction
     was carried out by 'AK' and thereafter, the appellant
     inflicted two blows on the deceased 'LD'. However, she
F    did not die instantly and was taken to the hospital where
     she underwent treatment for four days and finally
     succumbed to the injuries. From this it can be safely
     inferred that although the appellant had the intention and
     knowledge to cause grievous injury on the deceased
G    which could have resulted into the death of the deceased,
     yet it cannot. be inferred without doubt that the intention
     of the appellant was necessarily to cause death and not
     merely to cause grievous hurt as he did not Inflict
     repeated blows on the deceased and the deceased in fact
!H   had survived for four days after the assault It has also
          AJIT SINGH v. STATE OF PUNJAB                  379


come in evidence that PW-6/informant had chased the A
appellant but the appellant did not pursue by entering
into further scuffle with the prosecution party. Besides
this, the case of the prosecution regarding common
intention to commit murder already stands negatived by
the High Court as the plea of common intention to commit B
murder is no longer existing since the co-accused was
acquitted of the charge under Section 302/341.P.C. by the
High Court. Thus, the common intention to kill the
deceased will have to be treated as missing in the
prosecution case and only individual liability of the c
appellant giving fatal blows would determine whether the .
charge would be sustained under Section 302 l.P.C. or it
would fall under Section 304 Part-I l.P.C. [Para 15] [388-
G-H; 389-A-H]
       1.6 On an analysis of the case of the prosecution in     D
 the light of the evidence on record, the appellant's
 conviction and sentence under Section 302 l.P.C. cannot
,.be sustained but considering the inteosity and gravity of
 the assault which led finally to the death of the victim, he
 would certainly be held guilty under Section 304 Part-I,       E
 l.P.C. and thus, it is just and appropriate to set aside the
 conviction and sentence of the appellant under Section
 302 l.P .C. and the same is altered to under Section 304
 Part I, l.P.C. The sentence of life imprisonment shall be
 reduced to a period of ten years under Section 304 Part-       F
 I, l.P.C. [Para 16] [390-A-C]

PER: BEDI, J.

     1. Exception 4 s. 300 IPC presupposes several
conditions for its applicability; they being (i) that the       G
incident happened without premeditation, (ii) in a sudden
fight, (iii) in the heat of passion, (Iv) upon a sudden
quarrel and (v) without the offender having taken undue
advantage or acted in a cruel or unusual manner. [Para
2] [390•G-H; 391-A]                                             H
    380      SUPREME COURT REPORTS              [2011] 12 S.C.R.

A        2. The appellant took undue advantage and has
   acted in a cruel and unusual manner which excludes the
   applicability of Exception 4. The facts show that there had
   been a sudden quarrel between the appellant and the
   deceased (a woman and therefore, the weaker sex) and
B after she was immobilized he had caused as many as
   nine injuries on her person. All the injuries are on the face
   or neck of the deceased and that injury Nos. (i), (iii), (iv),
   (viii) and (ix) were very extensive leading to her death. It
   cannot be said that the case could be covered by
c  Exception 4 to ·Section 300 IPC in the facts brought out
 · in the course of the evidence. The case clearly falls within
   the ambit of Section 302 IPC and the appellant's
   conviction under Section 302 calls for no interference.
   [Paras 1, 2 and 3] [390-E-F; 391-A-B; 392-C-D]
D                        ·case Law Reference:

    Per: Misra, J.

          AIR 1992 SC 1150 ·      Referred to          Para 13

E       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 2094 of 2008.

      From the Judgment & Order dated 11.03.2008 of the High
  Court of Punjab & Haryana at Chandigarh in Crl. Appeal No.
F 300-DB of 1999.
       Amarendra Sharna, Vinay Kumar Garg, Sanchit Guru,
    Sumesh Chandra Jha for the Appellant.

     Kuldip Singh, R.K. Pandey, H.S. Sandhu, K.K. Pandey,
G Mohit Mudgil for the Respondent.

          The Judgment of the Court was delivered by

        GYAN SUDHA MISRA, J. 1. The Indian Penal Code was
    enacted in the year 1860 under which the offences within the
H
          AJIT SINGH v. STATE OF PUNJAB                      381
              [GYAN SUDHA MISRA, J.]
territory of India have been tried ever since it was enacted A
dealing with countless number of cases leac;ling either to
acquittal or conviction. Yet, the task of the decision making
authorities/courts whether an offence of culpable homicide is
murder or culpable homicide does not amount to murder in the
prevailing facts and circumstances of the case is a perennial s
question with w~ich the courts are often confronted. We are well
aware in view of Section 300 of the l.P.C. that all murders are
culpable homicide but all culpable homicide does not amount
to murder and this leads the courts quite frequently to consider
as to whether an accused charged of an offence of culpable c
homicide is guilty of murder or he has committed culpable
                                     I
homicide not amounting to murder. When the evidence
discloses a clear case of murder or makes out a· finding of
culpable homicide not amounting to murder, the task of the
courts to record conviction or acquittal is generally an easy one.
                                                                     0
But this task surely becomes an undaunted one when the
accused commits culpable homicide/murder but the
circumstances disclose many a times that it is done without
premeditation or p-re-planning, may be to cause grievous hurt,
yet it is so grave in nature that it results into death and the role
of the factum causing death without premeditation becomes a E
secondary consideration due to which the decision of the courts
in such cases often hinges on ·discretion while considering
whether the case would fall under Section 302 l.P.C. or it would
be under 304 Part I or even Part II, l.P.C.
                                                                    F
      2. On a plain reading of Sections 299, 300, 302 and 304
of the Indian Penal Code, it appears that a given case can be
conveniently classified into two categories viz. culpable
homicide amounting to murder which is 302 l.P.C. or culpable
homicide not amounting to murder which is 304 l.P .C. But when G
it comes to the actual application of these two sections in a
given case, the courts are often confronted with a dilemma as
to whether a case would fall under Section 302 l.P.C. or would
fall under Section 304 l.P.C. Many a times, this gives rise to
conflicting decisions of one court or the other giving rise to the H
    382    SUPREME COURT REPORTS                 [2011] 12 S.C.R.


A popular perception among litigants and members of the Bar that
  a particular court is an acquitting court or is a convicting one.
  This confusion or dilemma often emerges in a case when the
  question for consideration is whether a given case would fall
  under Section 302 l.P.C. or 304 1.P.C. when it is difficult to
B decipher from the evidence whether the intention was to cause
  merely bodily injury which would not make out an offence of
  murder or there was clear intention to kill the victim making out
  a clear case of an offence of murder.

       3. In the instant appeal by special leave, once again the
C aforesaid situation arises which has been preferred against the
  judgment and order dated 11.3.2008 passed by the Division
  Bench of the High Court of Punjab and Haryana in Criminal
  Appeal No.300-DB of 1999 whereby the High Court-had been
  pleased to dismiss the appeal and thus upheld the order of the
D Additional Sessions Judge, Hoshiarpur convicting the
  appellant-Ajit Singh for offence under Section 302, l.P.C.
  sentencing him to undergo rigorous imprisonment for life as
  also to pay a fine of Rs.2,000/- in default of which he.is to
  undergo further imprisonment for six months. However, the High
E Court while upholding the conviction and sentence of the
  appellant herein under Section 302 l.P.C., was pleased to
  acquit the co-accused-Anil Kumar of the charge and conviction
  under Section 302/34 1.P.C.

F      4. The prosecution case recorded in the First Information
  Report which led to the conviction of the appellant-Ajit Singh
  was lodged on 22.10.1996 on the basis of the complaint made
  by Jagdish Kumar, PW-6 who stated that he was running a
  private middle school in village Terkiana and on the date of the
G incident he was not feeling well due to stomach upset and
  hence had come home early at about 12.30 noon. He (PW-6)
  further stated that he had gone to attend the call of nature
  towards the field of the accusedappellant Ajit Singh who had
  planted Kinnu plants in his field. One Laxmi Devi (the deceased)
H and her son Rajiv @ Raju (PW- 7) along with Nirmal Kaur were
          AJIT SINGH v. STATE OF PUNJAB                      383
              [GYAN SUDHA MISRA, J.]

cutting fodder in the field of the appellant-Ajit Singh where Ajit   A
Singh and his servant Anil Kumar were also working. According
to the informant PW-6, the appellant was having an altercation
with the deceased Laxmi Devi as the appellant complained that
she had caused damage to his field which the PW-6 heard
while he was proceeding towards the field. Soon the appellant        B
and the deceased started abusing e~ch other due to which the
appellant got enraged and asked his servant Anil Kumar to
bring Kassi (spade) to finish them once for all. At this Anil
Kumar brought the Kassi (spade) with which he was digging
the plants. But the deceased Laxmi Devi continued hurling            C
abuses. The appellant-Ajit Singh is then alleged to have taken
the Kassi from Anil Kumar and asked him to catch hold of her
so that he may do away with her life. The deceased was given
a push due to which she fell down on the ground in a straight
posture and Anil Kumar caught her by her arms. Ajit Singh is         D
then alleged to have given two blows with the Kassi (spade)
on the neck of the deceased after which Nirmal Kaur and Rajiv
raised alarm. PW-6 thereafter claims to have run towards the
appellant but the appellant went towards his kothi situated in
the garden along with spade smeared with blood and Anil              E
Kumar too ran away from the spot. Further case of the
prosecution is that the body of the Laxmi Devi (deceased) was
smeared with blood and Rajiv- PW-7 ran towards government.
colony raising alarm as a consequence of which the entire
village collected at the place of incident and a conveyance was      F
arranged on which the deceased was taken to Civil Hospital,
Dasuya and PW-6 also went to the police station to lodge the
formal report. But S.I. Samsher Singh (PW-15) met him on the
way and recorded his statement on the basis of which a formal
First Information Report was lodged for offence under Section        G
307/34, 1.P.C. and PW-15 took up the investigation.
Subsequently, as Laxmi Devi died, the case was converted into
a case under Section 302/34, l.P.C.
     5. The doctor who conducted post-mortem found the
following injuries on the body of the deceased:                      H
    384          SUPREME COURT REPORTS               [2011] 12 S.C.R.


A         "(i)     6 cm long stitched wound bearing 13 black cotton
                   stitches on front left side of bearing part of neck
                   extending from the middle of left lower jaw up to
                   middle of neck, muscle deep and obliquely placed.

          (ii)     3 cm long stitched wound bearing 7 black cotton
B
                   stitches placed obliquely and 2 cm below injury no.1
                   on its lateral half and muscle deep.

          (iii)    7 cm long stitched wound bearing 9 black cotton
                   stitches on front and right side of neck, 4 cm below
c                  middle of lower jaw, obliquely placed and muscle
                   deep.
          (iv)     6 cm long stitched wound bearing 12 black cotton
                   stitches placed· horizontally on front of neck in the
D                  middle and lateral side extending across the middle
                   and 1 cm to the right on dissection, underlying
                   subcutaneous tissue and muscle are clear cut and
                   gapping was present. Underlying laryngopharynx
                   was repaired with the nylon stitches. On removal of
                   stitches the wound was 5 cm x 2 cm surrounding
E
                   muscle on the lateral side were also cut.
                   .
          (v)      3 cm long curved stitched wound on left side and 2
                   cm below injury No.4 wearing 4 black cotton stitches
                   and was skin deep.
F
          (vi)     Brownish scabbed linear superficial abrasion 6 cm
                   long on left side of neck and 1 cm below injury no.5.
          (vii) Brownish scabbed linear curved abrasion 6 cm long
                and 2 cm below injury No. 6.
G
          (viii) Incised wound 3 cm x 2 cm in the lower part of the
                 neck in the mid line. 6 cm above upper end of
                 sternum underlying muscle cut and there is hole 1.5
                 cm x 1.5 cm in the interior wall of trachea
H                (Tracheotomy wound).
             AJIT SINGH v. STATE OF PUNJAB                     385
                 [GYAN SUDHA MISRA, J.]

      (ix)    5 cm long stitched wound on the lateral half of right   A
              eyebrow wearing 5 stitches on dissection margins
              were clear cut and it was bone deep.•

     In the opinion of the doctor the cause of death was due to
throat cut injury, cerebral edema and nasal ganlia which were
                                                                      8
ante mortem and sufficient to cause the death in the ordinary
course of nature.

     6. After compliance of the due formalities of investigation,
submission of charge sheet and committal proceeding, the trial
of the two accused persons was conducted by the Additional            C
Sessions Judge, Hoshiarpur who was pleased to convict the
appellant and the co-accused Anil Kumar (since acquitted)
under Section 302/34 l.P.C. and sentenced them as already
indicated hereinafter. As already stated, the conviction and
sentence of the appellant Ajit Singh was maintained under             D
Section 302 l.P.C. but the co-accused Anil Kumar was
acquitted. Hence, this appeal has now been preferred by the
sole appel_l;mt Ajit Singh and this court is seiz~d with
consideration of the question whether the convicfion and
sentence of the accused-appellant Ajit Singh is fit to be             E
sustained or not.

     7. In so far as the genesis and manner of occurrence and
the factum of death of deceased Laxmi Devi is concerned, the·
counsel for the parties have been heard at some length and
the evidence have been scrutinized but I am unable to accept F
the contention that the incident did not take place in the manner
as alleged by the prosecution and I fully agree with the findings
recorded by the courts below that the deceased Laxmi Devi
died in the manner and at the place as alleged by the
prosecution.                                                      G

     8. The only ground which now needs to be considered in
this appeal is.whether on the existing facts and circumstances
emerging out of the genesis, manner and place of occurrence,
the conviction of the appellant is fit to be sustained under          H
    386      SUPREME COURT REPORTS                [2011) 12 S.C.R.


A Section 302, l.P.C. or it would be a case of conversion of
  conviction and sentence under Section 304 Part- I of the 1.P.C.
  Although, we are all aware of the ingredients of Section 300
  defining culpable homicide amounting to murder, it would be
  worthwhile to recollect the exceptions therein specially exception
B 4 to Section 300 l.P.C. which lays down when culpable
  homicide does not amount to murder and may be quoted for
  facility of reference:

          "Exception 4 to Section 300. -Culpable homicide is not
          murder if it is committed without premeditation in a sudden
c         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."
       9. It is undoubtedly true that application of exception 4
O depends upon the facts and evidence in a given case and
  although there are innumerable case laws and commentaries
  on the subject, the courts more often than not have to keep
  wondering into the wilderness of facts as to whether a given
  case would fall under Section 302, 1.P.C. or would fall under
E Section 304 Part-I or II of the l.P.C.
         10. The question under the facts of this case once again
  arises whether the conviction of the appellant-Ajit Singh is fit
  to be sustained under Section 302 of the l.P.C. or it would be
  a fit case of altering the conviction and sentence from 3021.P.C.
F to 304 Part-I. In this context, it is noticed that the deceased
  Laxmi Devi and her son Rajiv@ Raju PW-7 along with Nirmal
  Kaur were cutting fodder from the field of appellant-Ajit Singh
  when Ajit Singh and Laxmi Devi started quarrelling with each
  other as Ajit Singh complained that they have been illegally
G entering into his field for cutting fodder causing damage to his
  field and spoiling the Kinnu crops. Even as per the case of the
  prosecution, the deceased started to abuse Ajit Singh which
  provoked him to order his servant Anil Kumar to bring Kassi
  (spade) to finish them. The place of incident thus admittedly is
H of Ajit Singh wherein Ajit Singh ordered Anil Kumar to bring
          AJIT SINGH v. STATE OF PUNJAB                   387
              [GYAN SUDHA MISRA, J.]
Kassi and then asked him to catch hold of Laxmi Devi so that A
he may do away with her life. Ajit Singh after giving the
deceased a push, is alleged to have given two blows on the
neck of the deceased at which the informant PW-7 raised an
alarm shouting 11mar ditta mar dltta" . PW-6 thereafter chased
the appellant who is said to have run towards the accused- B
appellant but the appellant went towards his kothi situated in
the same garden along with the spade smeared with blood and
his servant Anil Kumar (since acquitted) also ran away from the
spot. The deceased thereafter was taken to the hospital and
after three days of treatment died on 25.10.1996 at about 4.35 c
p.m.

      11. Thus, from the prosecution story itself it emerges that
when the deceased was cutting the grass for fodder in the field
of Ajit Singh, Ajit Singh was not armed with any weapon and it
is only when the deceased hurled filthy abuses to the appellant, D
he directed his servant Anil Kumar to bring a Kassi and ordered
him to catch hold of the deceased after which he gave two blows
on the neck of the deceased.. as a result of which she died on
the 4th day of the incident.
                                                                E
       12. Thus on perusal of the evidence on record, it is clear
that the incident happened on the spur of the moment and was
not a premeditated assault on the deceased. Nevertheless, the
appellant had inflicted grievous injury on the neck of the
deceased but she did not die instantly and was taken to the F
hospital where treatment was given to her for three days and
finally she succumbed to the injury. Hence, it can be logically
and reasonably inferred that the accused-appellant although
inflicted grievous injury on the neck of the deceased and gave
two blows, the assault was not the result of pre-planning or pre-
meditated assault and the same did not result in instantious G
death of the deceased but she was taken to the hospital for
treatment where she succumbed to the inju_ry after four days of
the incident.
    13. Thus, the appellant no doubt inflicted the injury on the H
    388      SUPREME COURT REPORTS                    [2011] 12 S.C.R.


A   deceased with the intention of causing such bodily injury which
    could result in her death and in that view of the facts and
    circumstance, knowledge will have to be attributed to him that
    he inflicted injury on the deceased to cause death of the victim
    which was sufficient in the ordinary course of nature to cause
8   death. In that event, he although will have to be held guilty of
    the offence of murder in view of the ingredients of the offence
    given out under Section 300 of the 1.P.C., it cannot be ruled out
    that the case of the appellant in view of the genesis and manner
    of occurrence would fall under exception 4 of Section 300 and
c   hence would be liable for conviction under Section·304 Part-I
    for the reason that it cannot be held with certainty that he
    undoubtedly had the intention to kill and not merely to cause
    grievous hurt. In support of this view, it would be relevant to refer
    to the case of Patel Rasiklal Becharbhai Vs. State of Gujarat,
    AIR 1992 SC 1150, wherein this Court had been pleased to
0
    hold that inflictment of the injury on the vital part of the body with
    the agricultural instrument by the enraged accused in a sudden
    quarrel cannot be held to have been caused intentionally.

       14. In order to hold whether an offence would fall under
E Section 302, or 304 Part-I of the l.P.C., the courts have to be
  extremely cautious in examining whether the same falls under
  Section 300 of the l.P.C. which states whether a culpable
  homicide is a murder, or it would fall under its five exceptions
  which lays down when culpable homicide is not murder and in
F this category further lays down that culpable homicide is not
  murder if the offender whilst deprived of the power of self-control
  by giving sudden provocation causes the death of the person
  who gave the provocation, or causes the death of any other
  person by mistake or accident.
G
        15. While examining the case of the appellant in the light
  of the settled legal position that culpable homicide would not
  amount to murder if the offender was deprived of the power of
  self-control on account of grave and sudden provocation, I am
H of the view that the appellant's case will have to be treated to
            AJIT SINGH v. STATE OF PUNJAB                        389
                .[GYAN SUDHA MISRA, J.]
  be a case falling under the 4th exception of Section 300 and           A
  hence would be a case under Section 304 Part I of the Indian
  Penal Code for more than one reason deduced from the
 evidence on record. In the first place, the deceased Laxmi Devi
  had been cutting grass for fodder in the field of the appellant-
 Ajit Singh and when Ajit Singh reprimanded the deceased and             B
 her companion not to spoil his Kinnu crop, the deceased started
 altercation with the appellant and abused him which provoked
 the appellant-Ajit Singh to order his companion Anil Kumar
 (since acquitted) to bring Kassi (spade) which instruction was
 carried out by Anil Kumar and thereafter Ajit Singh inflicted two       c
 blows on the deceased Laxmi Devi. However, she did not die
 instantly and was taken to the hospital where she underwent
 treatment for four days and finally succumbed to the injuries.
 From this it can be safely inferred that although the appellant-
 Ajit Singh had the intention and knowledge to cause grievous            D
 injury on the deceased which could have resulted into the death
 of the deceased, yet it cannot be inferred without doubt that the
 intention of the appellant-Ajit Singh was necessarily to cause
.death and not merely to cause grievous hurt as he did not inflict
 repeated blows on the deceased and the deceased in fact had
 survived for four days after the assault. In addition to this, it has   E
 also come in evidence that PW-6/informant had chased the
 appellant but the appellant did not pursue by entering into
 further scuffle with the prosecution party. Besides this, the case
 of the prosecution regarding common intention to commit
 murder already stands negatived by the High Court vide the              F
 impugned judgment and order as the plea of common intention
 to commit murder is no longer existing since the co-accused
 Anil Kumar was acquitted of the charg~ under Section 302/34
 l.P.C. by the High Court. Thus, the common intention to kill the
 deceased will have to be treated as missing in the prosecution          G
 case and only individual liability of the appellant giving fatal
 blows will determine whether the charge would be sustained
 under Section 302 l.P.C. or it would fall under 304 Part-I of the
 l.P.C.
                                                                         H
    390      SUPREME COURT REPORTS                 (2011) 12 S.C.R.

A       16. On an analysis of the case of the prosecution in the
  light of the evidence on record, I am clearly of the view that the
  appellant's conviction and sentence under Section 302, l.P.C.
  cannot be sustained but considering the intensity and gravity
  of the assault which led finally to the death of the victim Laxmi
B Devi he would certainly be held guilty under Section 304 Part-
  1, l.P.C. and hence I deem it just and appropriate to set aside
  the conviction and sentence of the appellant under Section 302,
  l.P.C. and the same is altered to his conviction under Section
  304 Part I, l.P.C. Accordingly, the sentence of life imprisonment
c shall be reduced to a period of ten years under Section 304
  Part-I of the l.P.C. Thus, the appeal stands partly allowed to this
  extent.
          HARJIT SINGH BEDI, J.
D       1. I concur with the judgment of my learned sister to the
  extent that the appellant's conviction ought to be affirmed. I am,
  however, unable to accept that the case could be covered by
  Exception 4 to Section 300 in the facts which have been
  brought out in the course of the evidence. E:xception 4 reads
E thus:
          "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."
F
       2. It will be seen that this Exception presupposes several
  conditions for its applicability; they being (i) that the incident
  happened without premeditation, (ii) in a sudden fight, (iii) in
  the heat of passion, (iv) upon a sudden quarrel and (v) without
G the offender having taken undue advantage or acted in a cruel
  or unusual manner. l am of the opinion that the appellant herein
  has taken undue advantage and has acted in a cruel and
  unusual manner which excludes the applicability of Exception
  4. The facts show that there had been a sudden quarrel
H between the appellant and the deceased (a woman and
           AJIT SINGH v. STATE OF PUNJAB                      391
                [HARJIT SINGH BEDI, J.]
  therefore the weaker sex) and after she had been immobilized        A
  he had caused as many as nine injuries on her person. The
· injuries are re-produced herein below:

     "(i) 6 cm long stitched wound bearing 13 black cotton
     stitches on front left side of bearing part of neck extending
                                                                      8
     from the middle of left lower jaw up to middle of neck,
     muscle deep and obliquely placed.

     (ii) 3 cm long stitched wound bearing 7 black cotton
     stitches placed obliquely and 2 cm below injury no.1 on its
     lateral half and muscle deep.                                    C

     (iii) 7. cm long stitched wound bearing 9 black cotton
     stitches on front and right side of neck, 4 cm below middle
     of lower jaw, obliquely placed and muscle deep.

     (iv) 6 cm stitched wound bearing 12 black cotton stitches        D
     placed horizontally on front of neck in the middle and lateral
     side extending across the middle and 1 cm to the right on
     dissection, underlying subcutaneous tissue and muscle are
     clear cut and gapping was present. Underlying
     laryngopharynx was repaired with the nylon stitches. On          E
     removal of stitches the wound was 5 cm x 2 cm
     surrounding muscle on the lateral side were also cut.

     (v) 3 cm long curved stitched wound on left side and 2 cm
     below injury No.4 wearing 4 black cotton stitches and was        F
     skin deep.

     (vi) Brownish scabbed linear superficial abrasion 6 cm long
     on left side of neck and 1 cm below injury No.5.

     (vii) Brownish scabbed linear curved abrasion 6 cm long          G
     and 2 cm below injury No.6.

     (viii) Incised wound 3 cm x 2 cm in the lower part of the
     neck in the mid line. 6 cm above upper end of sternum
     underlying muscle cut and there is hole 1.5 cm x 1.5 cm in       H
    392       SUPREME COURT REPORTS                   [2011] 12 S.C.R.


A          the interior wall of trachea (Tracheotomy wound).
           (ix) 5 cm long stitched wound on the lateral half of right
           eyebrow wearing 5 stitches on dissection margins were
           clear cut and it was bone deep."
B       3. We see that all the injuries are on the face or neck of
  the deceased and that injury Nos. (i), (iii), (iv), (viii) and (ix) were
  very extensive leading to her death. To my mind, the case
  clearly falls within the ambit of Section 302 of the IPC and the
  appellant's conviction under this provision calls for no
C interference. The Criminal Appeal is dismissed.

                                   ORDER

       In view of the divergence in views, the Registry is directed
  to place the matter before the Hon'ble Chief Justice of India
0 for placing the matter before a larger Bench.

    N.J.                          Matter referred to Larger Bench.