KALA SINGH @ GURNAM SINGHversusSTATE OF PUNJAB

                         [2021] 6 S.C.R. 225                          225


               KALA SINGH @ GURNAM SINGH                              A
                                v.
                       STATE OF PUNJAB
             (Criminal Appeal Nos. 1040-1041 of 2021)
                                                                      B
                      SEPTEMBER 21, 2021
    [R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
      Penal Code, 1860 – s.304 Part II r/w s.34 and s.201 –
Appellant-accused and deceased had a sudden fight – In the heat       C
of passion, the co-accused, who had rod with him, gave a blow
with the rod on the head of deceased resulting in his death –
Thereafter appellant and co-accused hurled the dead body of
deceased in the canal – Appellant and co-accused were convicted
by the Sessions Court u/ss.302/34 and s.201 IPC – High Court
                                                                      D
modified the conviction u/s.302 IPC to that u/s.304 Part-I IPC –
On appeal, held: Sudden fight took place in the heat of passion
upon a sudden quarrel – There was no pre-meditation – As there
was no intention on the part of the appellant and co-accused either
to cause death or cause such bodily injury as is likely to cause
death, the High Court ought not to have convicted the appellant       E
u/s.304 Part-I IPC – Conviction of appellant u/s.304 Part-I / s.34
IPC modified to that u/s.304 Part-II/s.34 IPC – His conviction
u/s.201 IPC maintained.

      Partly allowing the appeals, the Court
                                                                      F
       HELD:1. On the fateful day, the appellant, co-accused and
deceased went to the house of one Hardev Singh Arora and they
took one bottle of liquor with them. Thereafter they went to
bridge of Doda Minor through Harike passage. There they
consumed liquor where there was a quarrel between the
                                                                      G
appellant and deceased alleging that deceased had stolen the
pigeon of appellant. The co-accused who had a rod with him, gave
a rod blow on the head of deceased. Immediately thereafter he
fell down and as there was no response even after half an hour,
they have shifted the body to the minor canal. It is clear from
the evidence and other material placed on record that there was       H
                               225
226            SUPREME COURT REPORTS                      [2021] 6 S.C.R.


A     no intention to kill the deceased. It is clear from the evidence
      on record that the scuffle had taken place on the spur of the
      moment and a sudden fight had taken place in the heat of passion
      upon a sudden quarrel. It was not a pre-meditated one and as
      there was no intention on the part of the appellant and co-
B     accused either to cause death or cause such bodily injury as is
      likely to cause death, the High Court ought not to have
      convicted the appellant for the offence under Section 304 Part-
      I IPC. In absence of any intention on the part of the appellant,
      it is a clear case where the conviction of the appellant is to be
      modified to one under Section 304 Part-II IPC by maintaining
C     the conviction for the offence under Section 201 IPC. [Para 9]
      [229-B-F]
            2. The conviction of the appellant is modified from the one
      under Section 304 Part-I/34 IPC to the one under Section 304
      Part-II/34 IPC. The appellant is hereby sentenced to undergo
D     rigorous imprisonment for a period of seven years and the fine
      of Rs.10,000/- imposed by the High Court is maintained.
      Further, conviction of the appellant for the offence under Section
      201 IPC and sentence of three years’ rigorous imprisonment and
      the fine of Rs.500/- are also maintained. [Para 11][231-E]
E           Uday Singh v. State of U.P. (2002) 7 SCC 79 ;
            Shahajan Ali & Ors. etc. v. State of Maharashtra &
            Ors. etc. (2017) 11 SC 807 – relied on.
                            Case Law Reference
      (2002) 7 SCC 79                   relied on            Para 7
F
      (2017) 11 SC 807                  relied on            Para 10
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      Nos.1040-1041 of 2021.
             From the Judgments and Orders dated 08.02.2019 and 01.03.2019
G     of the High Court of Punjab and Haryana at Chandigarh in Criminal
      Appeal No.713 DB of 2003.
            Bharat Sood, P. S. Sudheer, Advs. for the Appellant.
           Ms. Jaspreet Gogia, Ms. Mandakini Singh, Karanvir Gogia,
      Ms. Shivangi Singhal, Ms. Ashima Mandla, Advs. for the Respondent.
H
   KALA SINGH @ GURNAM SINGH v. STATE OF PUNJAB                              227


      The Judgment of the Court was delivered by                             A
      R. SUBHASH REDDY, J.
      1. Leave granted.
      2. These appeals are filed against the final judgment and orders
dated 08.02.2019 and 01.03.2019 passed by the High Court of Punjab           B
& Haryana at Chandigarh in Criminal Appeal No.713 of 2003. High
Court has modified the conviction from Section 302 IPC to Section 304
Part-I r/w Section 34, IPC, and sentenced to 12 years’ rigorous
imprisonment and a fine of Rs.10,000/-. The conviction under Section
201 IPC was maintained.
                                                                             C
        3. It is alleged that, the appellant and the deceased had a sudden
fight as the deceased had stolen the pigeon of the appellant and in the
heat of passion upon a sudden quarrel, the co-accused (Kehar Singh)
who had rod with him, gave a blow with the rod on the right side of
the head of the deceased resulting in his death. It is further alleged
that, thereafter the appellant and co-accused have thrown the dead body      D
of the deceased in the minor canal.
       4. Before the trial court, the co-accused was charged for offence
under Sections 302 and 201 IPC, whereas the appellant was charged
for offence under Sections 302/34 and 201 IPC. They were convicted
by the Sessions Court for the aforesaid offences and they were               E
sentenced to rigorous imprisonment for life for the offence under
Sections 302/34 IPC and three years’ rigorous imprisonment for the
offence under Section 201 IPC, apart from the fine.
       5. In the appeal filed before the High Court, High Court has found
that as the deceased had stolen the pigeon of appellant-accused Kala         F
Singh, scuffle took place between Shamber Singh (deceased) and the
appellant Kala Singh. It is further held that the co-accused Kehar Singh
gave blow with the rod on the head of the deceased Shamber Singh.
As a result of such blow Shamber Singh fell down and died. The High
Court has categorically found that scuffle had taken place on the spur
                                                                             G
of the moment and that sudden fight had taken place in the heat of
passion, upon a sudden quarrel and it was not a pre-meditated act. It
has also come on record that appellant, the co- accused and the deceased
had consumed liquor and even in the chemical examiner report it was
found that deceased had also consumed liquor. The High Court has
modified the conviction from Section 302 IPC to 304 Part-I IPC and           H
228               SUPREME COURT REPORTS                        [2021] 6 S.C.R.


A     imposed the sentence, of 12 years’ rigorous imprisonment and to pay a
      fine of Rs.10,000/-, on the appellant herein and co-accused for the
      offence under Section 304 Part-I with a default clause that in the event
      of non-payment of fine, they shall undergo rigorous imprisonment for a
      further period of six months.
B           6. We have heard Sri Bharat Sood, learned counsel for the
      appellant and Ms. Jaspreet Gogia, learned counsel for the State of
      Punjab.
             7. The only submission made by learned counsel for the appellant
      Sri Bharat Sood is that there was no intention at all on the part of the
C     appellant-accused to kill the deceased. It is submitted that the appellant,
      co-accused and deceased had consumed liquor and on the ground that
      the deceased had stolen pigeon of appellant Kala Singh, scuffle took
      place between deceased Shamber Singh and appellant Kala Singh. It
      is submitted that at that point of time, the co-accused Kehar Singh gave
      one rod blow on the head of the deceased Shamber Singh which resulted
D     into his death. It is submitted that scuffle had taken place on the spur
      of the moment and that sudden fight had taken place in the heat of
      passion upon a sudden quarrel. It was not a pre-meditated act and there
      was no intention at all to kill the deceased. It is submitted that having
      regard to the reasoning assigned by the High Court itself High Court
      ought to have modified the conviction to Section 304 Part-II but not
E
      304 Part-I, as ordered. To buttress his argument, learned counsel has
      placed reliance on a judgment of this Court in the case of Uday Singh
      v. State of U.P.1 wherein this Court has modified the conviction to one
      under Section 304 Part-II IPC. Learned counsel by further submitting
      that appellant has already served more than three years of sentence,
F     made a request to reduce the sentence by converting the conviction to
      one under Section 304 Part-II IPC.
             8. On the other hand, Ms. Jaspreet Gogia, learned counsel for
      the State of Punjab has contended that there are absolutely no grounds
      to interfere with the judgment of conviction and order of sentence
G     passed by the High Court. It is submitted that sufficient leniency is
      already shown to the appellant-accused and there are no grounds to
      interfere with the impugned judgment. It is further contended that the
      case law which is relied on by the appellant is distinguishable on facts
      and cannot be applied to the facts of the case on hand.
      1
H         (2002) 7 SCC 79
   KALA SINGH @ GURNAM SINGH v. STATE OF PUNJAB                              229
               [R. SUBHASH REDDY, J.]

        9. Having heard learned counsels on both sides, we have              A
perused the impugned judgment and other material placed on record.
It is clear from the impugned judgment and other material placed on
record that the incident happened one day prior to the date of
panchayat elections. On the fateful day, the appellant, co-accused and
deceased went to the house of one Hardev Singh Arora and they took
one bottle of liquor with them. Thereafter they went to bridge of Doda       B
Minor through Harike passage. There they consumed liquor where there
was a quarrel between the appellant and deceased Shamber Singh
alleging that deceased Shamber Singh had stolen the pigeon of appellant
herein. The co-accused Kehar Singh who had a rod with him, gave a
rod blow on the head of Shamber Singh. Immediately thereafter he fell        C
down and as there was no response even after half an hour, they have
shifted the body to the minor canal. It is clear from the evidence and
other material placed on record that there was no intention to kill the
deceased Shamber Singh. It is clear from the evidence on record that
the scuffle had taken place on the spur of the moment and a sudden
fight had taken place in the heat of passion upon a sudden quarrel. It       D
was not a pre-meditated one and as there was no intention on the part
of the appellant and co-accused either to cause death or cause such
bodily injury as is likely to cause death, the High Court ought not to
have convicted the appellant for the offence under Section 304 Part-I
IPC. In absence of any intention on the part of the appellant, we are        E
of the view that it is a clear case where the conviction of the appellant
is to be modified to one under Section 304 Part-II IPC by maintaining
the conviction for the offence under Section 201 IPC. The case law
which is relied on by the learned counsel for the appellant also supports
the case of the appellant for converting his conviction from the one
under Section 304 Part-I IPC to the one under Section 304 Part-II IPC.       F
      10. The judgment relied on by the counsel for the appellant, in
the case of Uday Singh v. State of U.P.1 supports the case of the
appellant. The relevant paragraphs 6 and 7 read as under :
      “6. From the findings recorded by the trial court as well as the
      High Court, it is clear that the fight between the two parties         G
      started all of a sudden as a result of obstruction caused in digging
      of the foundation and there is no evidence to show that the
      accused attacked the deceased with deadly or dangerous arms
      (or weapons). It was only in a fight, hand to fist, that both Gainda
      Singh and the appellant had held the neck of the deceased,             H
230               SUPREME COURT REPORTS                         [2021] 6 S.C.R.


A              Shishupal Singh with such force as to ultimately result in
               strangulation and his death. It is very difficult to conceive as to
               how much pressure was applied either by Gainda Singh or the
               appellant on the deceased’s neck so as to cause death. It would
               be reasonable to hold that the injuries were caused by the
               appellant on the deceased in a sudden fight where no arms (or
B
               weapons) were used and that fight took place in the heat of
               passion and no common intention to kill the deceased could be
               inferred. We cannot definitely conclude who actually inflicted the
               fatal injury as the evidence on record discloses that Gainda Singh
               and the appellant both strangled the deceased, which action is
C              part of the sudden unarmed fight nor can we conclude that the
               appellant had an intention to cause death or cause such bodily
               injury as is likely to cause death, though we attribute to him
               knowledge that such act is likely to cause death. Thus the
               appellant and Gainda Singh are guilty of culpable homicide not
               amounting to murder.
D
               7. In the circumstances, we set aside the conviction recorded
               by the trial court as affirmed by the High Court under Section
               302 read with Section 34 and instead convict him under Section
               304 Part II and reduce the sentence to imprisonment for a period
               of seven years. The bail granted earlier shall stand cancelled and
E              the appellant shall surrender before the trial court and be
               committed to prison to serve out the remaining part of the
               sentence.”
            So also, the judgment in the case of Shahajan Ali & Ors. etc.
      v. State of Maharashtra & Ors. etc. 2 supports the case of the
F     appellant. Paragraph 8 of the judgment, which is relevant, reads as
      under :
               “8. We have no doubt about the complicity of all the accused in
               the homicide of Sarfraj. A-1 attacked the deceased with the knife
               and caused injury on his neck which resulted in his death. The
G              other accused assisted him in committing the crime by holding
               the hands of the deceased. However, the only question that falls
               for our consideration is whether the accused are liable to be
               punished for an offence under Section 302 IPC. After considering

      2
H         (2017) 11 SC 807
   KALA SINGH @ GURNAM SINGH v. STATE OF PUNJAB                                231
               [R. SUBHASH REDDY, J.]

       the submissions made by the counsel for the appellants and              A
       scrutinising the material on record, we are of the opinion that
       the accused are not liable to be convicted under Section 302 IPC.
       We are convinced that there was neither prior concert nor
       common intention to commit a murder. During the course of their
       business activity the accused reached the dhaba where the
                                                                               B
       deceased was present. An altercation took place during the
       discussion they were having behind the dhaba. That led to a
       sudden fight during which A-1 attacked the deceased with a
       knife. Exception 4 to Section 300 IPC is applicable to the facts
       of this case. As we are convinced that the accused are
       responsible for the death of Sarfraj, we are of the opinion that        C
       they are liable for conviction under Section 304 Part II IPC. We
       are informed that A-1 has undergone a sentence of seven years
       and that A-2 to A-4 have undergone four years of imprisonment.
       We modify the judgment of the High Court converting the
       conviction of the accused from Section 302 to Section 304 Part
                                                                               D
       II IPC sentencing them to the period already undergone. They
       shall be released forthwith.”
       11. In view of the aforesaid reasons, these appeals are allowed
in part and conviction of the appellant is modified from the one under
Section 304 Part-I/34 IPC to the one under Section 304 Part-II/34 IPC.
The appellant is hereby sentenced to undergo rigorous imprisonment             E
for a period of seven years and the fine of Rs.10,000/- imposed by the
High Court is maintained. Further, conviction of the appellant for the
offence under Section 201 IPC and sentence of three years’ rigorous
imprisonment and the fine of Rs.500/- are also maintained.
                                                                               F
Bibhuti Bhushan Bose                                 Appeals partly allowed.




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