GURU DEV SINGHversusSTATE OF M.P.

                    [2011] 6 S.C.R. 941


                    GURU DEV SINGH                             A
                             v.
                      STATE OF M.P.
            (Criminal Appeal No. 1125 of 2011)

                       MAY 10, 2011
                                                               B
           [DR. MUKUNDAKAM SHARMA AND
                  ANIL R. DAVE, JJ.]

    Penal Code, 1860:
                                                               c
      ss. 302134 and 323134 - Three accused attacking the
victims with deadly weapons - One of the victims found dead
in the following morning - One of the accused died pending
trial - Conviction of two by trial cowt u/ss 302134 and 307134
- High Court maintaining conviction u/s 302134, but setting
                                                                0
aside conviction u/s 307134 and instead convicting the
accused uls 323134 - Appeal by one accused - HELD: There
is categorical evidence of the injured eye-witness that the
accused persons caused serious injuries on the head and
other parts of body of the deceased with 'kirpan', 'lohangi and E
lathi' - The other eye-witness stated that the accused after
causing injuries to the deceased threw him in the 'nala' -
Medical evidence, the statement of eye-witnesses, the
statement of accused leading to recovery of crime weapons,
clearly establish that the deceased received serious injuries
from the weapons used by the accused, due to which he died F
- Appellant is guilty of offences punishable u/ss 302134 and
323134 /PC and the order of conviction and sentence passed
by High Court against him is upheld.

     s.300- Exceptions I to IV- Three accused attacking two G
victims with deadly weapons resulting in death of one of the
victims - Plea of accused that there was provocation from the
side of the victims and the incident happened due to sudden
fight - HELD: The defence is not corroborated by evidence
                            ~1                                 H


                                            ...
    942         SUPREME COURT REPORTS            [2011] 6 S.C.R.


A on record - From the evidence it is found that provocation
  came from the side of accused and not from the victims - It
  was also not a sudden fight as it has been proved that
  accused were armed with deadly weapons like 'kirpan: 'lohangi'
  and lathi and they surrounded the victims and gave blows to
B vital parts of deceased with intention to kill him - Thus, none
  of Exceptions to s.300 is attracted.

          FIR

       Delay in lodging the FIR - Victim attacked at about 8
C P.M. in the night and found dead on the following morning
  and FIR recorded thereafter - HELD: There is proper and
  reasonable explanation that as the victim was not found at the
  place of incident, he was searched throughout the night and
  only after tracing him in the 'nala' on the following morning
o and finding him dead, FIR was lodged immediately thereafter.
         The appellant-accused No.2 (A-2) along with A-1 and
    'B' was prosecuted for the murder of one 'BS', the brother
    of the complainant (PW-3). The prosecution case was
E   that on 17.11.1986, 'BS' along with one 'SS' had gone to
    purchase seeds of 'chana' and at about 8.00 p.m. when
    they reached near the place of incident, A-1 armed with
    'Kirpan' (sword) accused 'B' armed with lathi and A-2
    armed with 'Lohangi' met them; that accused 'B' had
    enmity with 'BS' as the latter wanted the sister of 'B' to
F   marry one 'LS' but 'B' was opposed to it. All the three
    accused with their respective weapons attacked 'BS' and
    PW-1. 'BS' fell down due to serious injuries; PW-1
    managed to run away and told the incident to PW-3.
    Thereupon, PW-3 along with PW-1 and others reached
G   the place of incident but they could not find 'BS' there.
    On the following morning the dead body of 'BS' was
    found in the 'nala' and the FIR was lodged. Accused 'B'
    died pending trial. The trial court convicted A-1 and A-2
    u/ss.302/34 and 307/34 IPC and sentenced them to
H   imprisonment for life and RI for 7 years, respectively, for
               GURU DEV SINGH v. STATE OF M.P.                         943
. $1:.·
  .     (_., ~_J' [It
        .,        I   '   \




 the ,!ylo counts. On appeal, the High Court maintained the A
l~6nviCfiO'rf1~n(Fsentence u/s 302/34 IPC but set aside the
 conviction and sentence u/s. 307/34 IPC and instead
lJc:~fl~J9t~~ ~~~~ 1 ~cs~sed u/s 323/34 IPC.
bt.~uir.-'the'iii~ta'nt ~~peal filed by A-2 it was ·contended for 8
'ttie 1appeli'~Wt'thaf ·fffere were vital discrepancies in the
1
 evi'denct!· agjciiiegeH 6y ~he eye-witnesses namely, PW-1
1a'nd 1f>wl2)i'f1 1d;1,'tt1erefore; their evidence could not be
1
 rJ1focl'tlt>6n 1and'turth1etPw-1 was an interested witness
'.las1'th'e'.re;wasria 1 mutu~ffigJl'fiietween the parties in which
 :pw!f ~!s 8a 1 p'a~; that th'~ ~b1cused also received injuries c
1
 arrcf th'e~')lr~ecuU~n~fifrrlisile'a"n'o explanation therefor;
 tffaf'the're'waS'·cf~iaf'frFlodgibg'tlf~i· FIR; and that, in any
 1
  ca\re:'ti\~·ra'pp'e1l'an't('*as' p·ro~e~teW Under Exceptions to
 ~~300::1j:>"c f6;! til'(it1 ·w~s prbvdcationt.flotn the complainant
 ~i~~ ~.~d),.~~,!nB!g~~! 8~~~,r;rE?g iR~;~i~-~~r~udden fight D
 ,~em~~.~ m.~,,,IJ~,i;t·s~~ \J b•1hoq1..1i::<: oidr:; nh.
~no ~Di§missW1g.:ttie. appe~1: 1 iti~t'¢.&:'t.ftt: '~W(i !o • _
'l.,>£1 -.V:.i J    or:i!:.i"' i~J:.>Jl I ',;v ~ .f..) 'f.1 t ~! "111 \'11J\,
                              1 !!<

ih "' HElr.D:. 1t1 :1PW:;~ .Js<ail,iftjured:witness~·andlther.etore,            E
ari, eye-witness· to) the -occurreni:ei He'·tias· giv1efii ViVid
description·;ast,to""hovi th'e litrcid'enti 'has~·tal<-Em !~place) fie
has; clearly lsta1ed~ tnatthe.re"lwas inc> provoclitiorF'on':.:th'e
part :of comp1ailiant: p'arty; 1and''tth1tilth'e1'provocation1 !it\
fact] c~ri'I e, from.rth e. side~ of. :th·e ·~ccused·0·~etsonsV'Flie re   1



i$~a1calegoricar:Statement of' PW•t:;fhat«the;app~lla'nt ana E
other accused persons caused serious inj4ries ,Of! the
ttea~ k~et ti~dY' <>ft~e 'de~iH1s"~· 1 ily ·i1cfh~'fi.gr;· iifJJp~!l·,!1'1.d
tathi::;f'Wlf: cils,d~sra~ed iti~t:1 ~~~ ~-Pll.e~iant.:~n~~~l\»tHe~
ae~used '.Qave him !{PW-tl 'latiii-1brrlWsnan<t 1 re~1i:t1h9 tn~t
th~ 'accii~ed: woulci ki'ti ttirri:' he~il$n aw~y"1i-0W1 £fi'~)'Mi=i~'i!        ?)
ot 6ccuVren€~ anif reported· ffi~lffiattiiW'to:'i1is':liiiier'WH8
c.1Hte 1 a1on~;with ;Him· ari(j bttieFJ;'etsir;~ l8 1 tnEPa1~ffes81
occurrence but they coutdl~(ji'fiWci th~ a"dW~a~'ef:r aWt!·~
~~~_r~hi~~,t~r~~.~hPH~ !h.r.,n!~J~J·:iT.~~~;R<tH!~r~n~;\t~~ p_ody H
Qt,t~~ ~<te,c~~~~~, o.r?l)', .Rr:i !~e irner,q!!1~, Pi~, 1sr~11~ 1~~~; !fk~· H
    944    SUPREME COURT REPORTS              [2011] 6 S.C.R.


A   'nala' whereupon the report was lodged. [para 13-14)
    [950-E-H; 951-A·E]

       1.2. PW-2, who is also an eye-witness to the
  occurrence, has clearly stated that all the three accused
  persons hit the deceased on his head, hands and legs
8
  and also hit PW-1 when he tried to rescue the deceased
  whereupon PW-1 ran away from the spot. He also stated
  that the accused lifted the deceased and took him
  towards the na/a. This eye-witness has further stated that
C he followed them stealthily by remaining 8-1 O steps
  behind them. The accused persons threw the deceased
  in the nala and went away. Thereafter PW-2 returned back
  to his village and on the following day went and narrated
  the facts to the complainant. [para 15) [951-F-H; 952-A-B]

D      1.3. The statement of the two eye-witnesses, viz., PWs
  1 and 2, are also supported by the proved medical
  evidence of PW-7 who conducted the post mortem of the
  dead body on 18.11.1986. PW-7 has stated in his evidence
  that he found 21 injuries on the body of the deceased and
E that in his opinion 8 injuries were on the head of the
  deceased. 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. The injuries were caused by sharp cutting, hard
F and blunt weapons. [para 16, 19-20) [952-C-E; 953-B-C]

      1.4. PW-4, who is a witness to the recovery of lathi,
  /ohangi and kirpan has clearly stated that on the basis of
  the statements made by the accused persons the
  weapons were recovered from the places shown by
G them. Therefore, his evidence also proves the allegation
  made against the accused persons including the
  appellant. [para 21] [953-D-E]

      1.5. When the medical evidence of PW-7 is read along
H with post mortem report and the statements of PWs 1 and
        GURU DEV SINGH v. STATE OF M.P.                 945


2 as also the statements of the accused persons leading         A
to the discovery, 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 he died. [para 18] [952-G-H; 953-
A]                                                              B
      2. The defence of accused that his case is covered
 under one of Exceptions I to IV to s. 300 IPC is not
 corroborated by the evidence on record. On going
 through the evidence on record it is found that the
 provocation came from the side of the accused and not C
 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 D
 started giving blows of 'sword', lathi and 'lohangi' on the
 vital parts of the body with the intention of killing the
 deceased. Therefore, it cannot be said that any of the
·Exceptions I to IV to s. 300 IPC is attracted in the instant
 case. [para 27] [956-G-H; 957-A-B]                           E

    Kulesh Monda/ v. The State of West Bengal 2007 (9)
          =
SCR 799 (2007) 8 SCC 578 K. M. Nanavati v. State of
                                       =
Maharashtra 1962 Suppl. SCR 567 AIR 1962 SC 605,
and Babula/ Bhagwan Khandare & Anr. v. State of                 F
                                           =
Maharashtra 2004 (6) Suppl. SCR 633 (2005) 10 SCC
404 referred to.
      3. So far the submission with regard to delay in filing
 the first information report is concerned, there is proper
 explanation given by the informant that as the deceased        G
 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 immediately
                                                                H
     946         SUPREME COURT REPORTS                              [2011] 6 S.C.R.


A thereafter. The explanation appeals to be reasonable.
  [para 28] [957 -B-C]

       4. Considering the entire evidence on record, it is
  held that the appellant is guilty of the offences punishable
B u/s. 302/34 IPC as also u/s. 323 /34 IPC and, therefore, the
  order of conviction and sentence passed by the High
  Court against him is upheld. [para 29] [957-D-E]

                                      Case Law Reference:

           1962 Suppl. SCR 567                      referred to.          Para 24
c
           2007 (9) SCR 799                         referred to.          para 25

           2004 (6) Suppl. SCR 633 referred to                            para 26

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
D No. 1125 of 2011.

         From the Judgment & Order dated 3.8.2007 of the High
     Court of Madhya Pradesh, Jabalpur Bench at Gwalior in
     Criminal Appeal No. 426 of 1999.
E
           Shankar Divate (SCLSC) for the Appellant.

         S.K. Dubey, Vikas Bansal, Kusumanjali Sharma and C.D.
     Singh for the Respondent.

F          The Judgment of the Court was delivered by

           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
G the appellant herein under Section 302 read with Section 34
  df thelndla.n PenarCode [for short "IPC"] as also under Section
  323 l'~ad'tvi\h Se8ti6n ',~4. of IPC sentencing the appellant to
  Jn·a~e~p''rrkpfl~9,hrl1~~~ :tsJr. f!te JWder Section 302/34 for
  commfttittS, mUrdijr Witti ~ firJ~,pr RS: ~.9001- and in default of
H.   11hil:.. 10_11 ....   1.1;";.,1"'1   o.u. ..   -    .· · ...
         GURU DEV SINGH v. STATE OF M.P.                      947
          [DR. MUKUNDAKAM SHARMA, J.]

payment of fine further to undergo one year additional rigorous      A
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 · B
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 C
of Dilip Singh, armed with kirpan [sworC:]; 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 D
same and because of thatthe 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 fact to Hardev E
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 F
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. 19.3/ G
 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.                                                H
    948     SUPREME COURT REPORTS                (2011] 6 S.C.R.


A      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
B 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
C 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
D 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,ClOO/- and in default of
  payment of fine, to further undergo one year additional rigorous
E 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.
F       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
G 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
H them. The High Court, r"wever, set aside the conviction under
         GURU DEV SINGH v. STATE OF M.P.                    949
          ·[DR. MUKUNDAKAM SHARMA, J.]
Section 307/34 IPC a.nd instead the accused persons were            A
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
                                                                    8
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
High Court under Section 302/34 of the IPC as against the           C
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            o
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 niaarpit/fight between the parties in which
even the accused persons received injuries for which no             E
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
                                                                    F
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   G
who contended inter alia that the injuries received by the
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   H
     950     SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A 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 blqws by fleeing away from
    the place of occurrence.

        11. There was also a contention on behalf of the appellant
B 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
C 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.
D
         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,
E   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
F   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
G   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
H   were opposing the proposed engagement and so they asked
                                                                        1
        GURU DEV SINGH v. STATE OF M.P.                     951
         [DR. MUKUNDAKAM SHARMA, J.]

Bhola Singh alias Kamal to cancel the marriage which Bhola         A
Singh refused, 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.
                                                                   B
     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 C
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 an 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 0
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 E
back to Janakpur and lodged the report.

      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 F
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- G
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 H
    952      SUPREME COURT REPORTS                  [2011] 6 S.C.R.

A   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
B   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 report of the dead body was conducted by Dr. B.D.
C   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
D   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
E   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
F   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.

G        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
H   deceased received serious injuries on account of the blows of
         GURU DEV SINGH v. STATE OF M.P.                    953
          [DR. MUKUNDAKAM SHARMA, J.]

the sword, lathi and lohangi used by the accused persons due        A
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
                                                                    B
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           c
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   D
of the statements made by the accused persons the aforesaid
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.
                                                                    E
     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         F
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         G
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 m.urder if the offender, whilst        H
    .954       SUPREME COURT REPORTS                   [2011] 6 S.C.R.


A          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
8
           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."

C       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
D 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
E 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 Monda/ v. The State of West
F 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.
G
           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."
H
        GURU DEV SINGH v. STATE OF M.P.                     955
         [DR. MUKUNDAKAM SHARMA, J.]
     26. In the case of Babula/ Bhagwan Khandare & Anr. v. A
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
                                                                    8
    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.       C
    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    D
    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         E
    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       F
    appropriately applicable would be Exception 1.

    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 G
    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 H
    956       SUPREME COURT REPORTS                    [2011] 6 S.C.R.


A         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
B         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
c         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".
D         19. Where the offender takes undue advantage or has
          acted in a cruel or unusual i 11anner, 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
E         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
F         had taken undue advantage ............................ "

       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
G 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
H
         GURU DEV SINGH v. STATE OF M.P.                       957
          [DR. MUKUNDAKAM SHARMA, J.]
giving blows of sword, lathi and lohangi on the vital parts of the    A
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.
                                                                      B
       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        C
deceased throughout the night and only after tracing him out in
the nala and being sure of his death filed the information
immediately thereafter. The aforesaid explanation appeals to
us as reasonable.

      29. Considering the entire evidence on record, we. are          D
satisfie.d that the appellant is guilty of the offence committed
under Section 302/34 of the IPC as also under Section 323 I
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    E
appeal which is dismissed.

R.P.                                          Appeal dismissed.