MANJEET SINGHversusSTATE OF HIMACHAL PRADESH

                        [2014] 5 S.C.R. 796


A                        MANJEET SINGH
                                  v.
                STATE OF HIMACHAL PRADESH
               (Criminal Appeal No. 1695 of 2005)

                          APRIL 25, 2014
B
            [A.K. PATNAIK AND SUDHANSU JYOTI
                    MUKHOPADHAYA, JJ.]

        Penal Code, 1860:
c      ss. 96 to' 106 - Things done in private defence.-:: Held.:
  ,Under s. 96, nothing is an offence, which is done in the
  exercise of the right of private defence ~ the extent' and
  limitations of the right of private defence is presc~ibed uls 96
  to 106, /PC. Such a right can be exercised only to defend the
D unlawful action and not to retaliate - Neither the accused nor
  his two companions in the statements recorded uls 313
  Cr.P. C., have stated that the deceased and his companions
  were the aggressors and that the accused was acting in
  exercise of the right of private defence - There is nothing on
E the record to suggest that the accused or his companions
  received injuries at the hands of the d.eceased or the
  deceased tried to snatch the carbine, of the accused ..;. On the
  contrary, evidence of PWs supports prosecution case that it
  was the accused who was the aggressor and that he had not
F acted in private defence - Non-explanation of the injuries on
  the person of the accused and his two companions, which were
  found simple in nature, cannot be held to be fatal to the
  prosecution case.

G        ss.304 and 324 /PC rlw s.27 of Arms Act - Culpable
    homicide not af(lounting to murder - Death of victim caused
    by fire arms - Injuries to witnesses - Conviction .bY courts
    below u/s 302 - Held: Evidence produced against accused
    does not show that he had any motive to cause death of
H                                796
     MANJEET SINGH v. STATE OF HIMACHAL                    797
                 PRADESH
deceased or had intended to cause such bodily injuries which      A
were sufficient in the ordinary course of nature to cause death
of deceased - Evidence on record also does not establish
that injuries caused on the body of deceased must in all
probability cause his death or like{y to cause his death - On
th~ spur of moment, during the heat of exchange of words,         B
accused caused injuries on the body of deceased which
caused his death - Therefore, 7ngredients of murder as
t;fefined in s.300, IP"C, have not been established against
accused - He was guilty of culpable homicide not amounting
to murder L. Aacordingly, accused-appellant convicted uls         c
304 /PC and sentenced to 7 years imprisonment with fine -
His conviction 1::1/s 302 set aside - Conviction aod sentence
u/s ~24 /PC and 27 of Arms Act, maintained.

      The appellant and two others were 'prosecuted for
(<ommitting murder of one of the companions of the PWs            D
  .                  '
and causing gunshot injuries to them. The trial court
convicted the appellant u/s 302 and 324 IPC as also 27   s.
of the Arms Act and sentenced him to various terms of
 imprisonment including life imprisonment u/s 302 IPC.
The other two accused were acquitted by the trial court           E
·of all the charges. The High Court affirmed the conviction
 of the appellant and sentences imposed upon him by the
trial court.

    In the instant appeal it was contended for the                F
appellant that he acted in exercise of the right of private
defence.

    Disposing of the appeal, the Court

     HELD: 1.1. Under s.96 IPC, nothing is an offence             G
which is done in the exercise of the right of private
defence. The extent and limitations of the right of private
defence is prescribed u/s 96 to 106, IPC. Such a right can
be exercised only to defend the unlawful action and not
to retaliate. [para 19] [807-C, 808-A]                            H
    798    SUPREME COURT REPORTS               [2014] 5 S.C.R.

A       George Dominic Varkey v. The State of Kera/a, (1971)
    3 SCC 275; Moti Singh v. State of Maharashtra, (2002) 9
    sec 494 - referred to.
       1.2. In the instant case, neither the accused nor his
  two companions in the statements recorded u/s 313
8
  Cr.P.C., have stated that the deceased and his
  companions were the aggressors and that the accused
  was acting in exercise of the right of private defence. In
  fact, their case is that of total denial. There is nothing on
  the record to suggest that the accused or his companions
C received injuries at the hands of the deceased or the
  deceased tried to snatch the carbine of the accused. No
  evidence has been brought on record that the deceased
  and his companions entered the Hall of the Hotel with_
  arms. During the course of cross-examination of the
D prosecution witnesses, especially PW.5, PW.6, PW.7,
  PW.9 ~nd PW.12, an attempt has been made on behalf of
  the accused to set up the case of private defence.
  Evidence of eye-witnesses, especially of the injured,
  namely, PW.5, PW.6 and PW.7, which are trustworthy,
E when read together, non-explanation of the injuries on
  the person of the accused and ,his two companions,
  which were found simple in nab,1re, cannot be held to be
  fatal to the prosecution case.       PW.9, an independent
  witness, who was also staying and sleeping in the Hall
F where the occurrence took place, though was declared
  hostile, has admitted the correctness of the prosecution
  story. His statement lends support to the prosecution
  story to show that it was the accused who was the
  aggressor and that the accused had not acted in private
G defence. [para 18, 22, 24 and 25] (806-H; 807-A-B; 808-H;
  809-A,E-G; 810-C-D]
         Rajender singh and Ors. vs. State of Bihar 2000
    (2) SCR. 1073 = 2000 (4) SCC 298 - referred to.
      2. However, the evidence produced against the
H accused does not show that he had any motive to cause
      MANJEET SINGH v. STATE OF HIMACHAL               799
                  PRADESH

 death of the deceased or had intended to cause such           A
 bodily injuries which were sufficient in the ordinary
 course of nature to cause the death of the deceased.
 Evidence on record also does not establish that the
 injuries caused on the body of the deceased must in all
 probability cause his death or likely to cause his death.     B
 On the spur of the moment, during the heat of exchange
·of words, the accused caused injuries on the body of the
 deceased which caused his death. Therefore, the
 ingredients of murder as defined in s.300, IPC, have not
 been established against the accused. The accused was         c
 guilty of culpable homicide not amounting to murder u/s
 304, IPC. His conviction u/s 302, IPC is set aside. The
 accused-appellant is convicted u/s 304, IPC and
 considering the fact that he had no intention to either
 cause the death of the deceased or cause such bodily
 injury as is likely to cause' death of the deceased, he is    D
 sentenced to seven years rigorous imprisonment and a
 fine of RS.5,000/-. The conviction and sentences for the
 offences punishable u/s 324, IPC and s. 27 of the Arms
 Act as awarded by the trial court are affirmed. [para 26-     E
 27] [810-D-G; 811-A-C]
                    Case Law Reference:
     (1971) 3 sec 215        referred to         para 19
     (2002) 9 sec 494        referred to         para 21       F
     2000 (2) SCR 1073       referred to         para 22
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1695 of 2005.
                                                               G
    From the Judgment & Order dated 18.10.2004 of the High ·
Cpurt of Judicature at Shimla in Criminal Appeal No. 259 of
2002.

     Pramod Swarup, Sanjeev, Gopal Datt, Akshay Verma,
 Prashant Chaudhary for the Appellant.                         H
    800      SUPREME COURT REPORTS                [2014] 5 S.C.R.

A         Pragati Neekhra, Parth Tiwari for the Respondent.

          The Judgment of the Court was delive~ed by

          SUDHANSU JYOTI MUKHOPADHAY~, J. 1. The
    appellant has assailed the judgment dated 18th October, 2004
B   passed by the High Court of Himachal Pradesh, Shimla in
    Criminal Appeal No.259 of 2002. By the impugned judgment
    the High Court dismissed the appeal and affirmed the judgment
    passed by the Trial Court dated 27th March, 2002 in Sessions
    Trial No.17-S/7 of 2001 wherein the Trial Court convicted the
C   appellant and sentenced him to imprisonment for life and also
    to pay fine of Rs.5,000/- for the offence under Section 302 IPC
    and in default, further imprisonment for one year. The appellant
    was also sentenced by the Trial Court for the offence under
    Section 324 IPC to undergo imprisonment for six months and ··
D   to pay fine of Rs.500/-, in default, further simple imprisonment
    for one month. The appellant was also sentenced for the offence
    under Section 27 of Arms Act to undergo imprisonment for
    three months and to pay fine of Rs.1000/-, in default, further
    simple imprisonment for one month. The Trial Court ordered that
E   all the aforesaid sentences shall run concurrently.

       2. The facts of the prosecution case as stated by Jai Pal
  (PW.5) are that he was carrying business of taxi in Shimla. On
  31st December, 2000 at about 9 p.m. he had gone to Hotel
  Apsara at Cart Road, Shimla to inquire from Budhi Singh
F (PW.8), Manager of the Hotel Apsara regarding the booking
  of his taxi by some passenger staying in the Hotel. Budhi Singh
  (PW.8) asked Jai Pal (PW.5) to come after some time. Both
  of them then went together to Hotel Basant for celebrating New
  Year. They took wine and dinner together and remained in the
G said Hotel till 12 o'clock. Thereafter, Budhi Singh(PW.8)
  returned to Hotel Apsara while Jai Pal (PW.5) came towards
  Cart Road where he met Romi Kapoor (PW.6), Pawan Kumar
  (PW.7), Deep Chand and Rajnish alias Rintu who inquired
  about the booking of a room in the Hotel as earlier agreed
H upon. Jai Pal (PW.5) went to the Hotel Apsara where he did
                                                                    ----
   MANJEET SINGH v. STATE OF HIMACHAL     801
PRADESH [SUDHANSU JYOTI MUKHOPADHAYA, J.]
not find Budhi Singh (PW.8), Therefore, he went upstairs in the      A
Hall of the Hotel where he found accused Manjeet Singh along
1with Balraj and Surender Kumar were taking liquor. Jai Pal
(PW.5) inquired from the appellant-accused, Manjeet Singh
about the Manager of the Hotel to which the accused was
alleged to have retorted that he was not the Chowkidar of the        B
Hotel so as to know and tell about the Manager. Accused-
Manjeet Singh was further alleged to have started abusing Jai
Pal (PW.5) by proclaiming that he was serving in Punjab Police.
The accused was further alleged to have started beating Jai
Pal (PW.5) by giving him a fist blow on his mouth. Jai Pal (PW.5)    c
ran outside. He met the above-named Romi Kapoor (PW.6),
Deep Chand, Pawan Kumar (PW.7) and Rajnish. He narrated
the incident to them. Romi Kapoor (PW.6), Rajnish alias Rintu
and Pawan Kumar (PW. 7) went inside the Hall while Jai Pal
(PW.5) and one Roshan remained standing at the entrance of           D
the Hotel. Rajnish alias Rintu inquired from the accused-Manjeet
Singh as to the cause of his having given beatings to Jai Pal
(PW.5). The accused was alleged to have told his companions,
Balraj and Surender Kumar to tell Rajnish and his friends about
the cause of the beatings to Jai Pal (PW.5). Balraj and              E
Surender Kumar were then alleged to have abetted and
instigated the accused by saying "Carbine Ka Kamal Dekhao".
Whereupon accused was alleged to have fired shots from his
Carbine which hit Rajnish alias Rintu, Romi Kapoor (PW.6), Jai
Pal (PW.5) and Pawan Kumar (PW.7). Rajnish alias Rintu
sustained two shots on his chest and he fell down on the             F
ground. The accused and Balraj were alleged to have run away
after the gun shots. Jai Pal (PW.5) lifted Rajnish alias Rintu and
carried him to l.G.M.C. Hospital, Shimla, where he was
declared dead.
                                                                     G
     3. On the telephonic message of one Pradeep Kumar,
Jagdish Ram (PW.25), Station House Officer, Police Station
Sadar reached the spot. Surender Kumar, a companion of the
accused, was apprehended from the toilet of the Hotel. Since,
the injured persons had already been taken to the Hospital,          H
    802          SUPREME COURT REPORTS                [2014) 5 S.C.R.


A Jagdish Ram (PW.25) went to the Hospital and recorded the
  statement of Jai Pal (PW.5), on the basis of which a case for
  the offences under Section 302, 307 and 323 read with Section
  34 IPC came to be formally registered vide F.l.R. No.1/2001.
          4. Post-mortem examination was conducted by Dr. V.K.
8
    Mishra (PW.24) who found the following two ante-mortem bullet
    injuries on the person of the deceased Rajnish alias Rintu:

          "(i)    A circular wound of entry one centimeter in
                  diameter, 1. 5 cm medial to right nipple, 18 cm
C                 below right shoulder joint. Dry clotted blood was
                  present around the wound. There was no
                  blackening, tattooing, singeing, burning etc;

          (ii)    A circular wound of entry 1 cm x 12 cm between
D                 the base of 1st and 2nd metatarsal bone of left
                  foot, dorsum with dry'clotted blood present around
                  the wound. No blackening, tattooing, singeing,
                  burning etc. noticed over the skin."

       In the opinion of Dr. V.K. Mishra (PW.24), the death was
E due to haemorrhagic shock as a result of laceration of lung due
  to gun shot injury.
      5. On Medical Examination of Romi Kappor (PW.6), Dr.
  M.P. Singh(PW.1) found the following injuries on the person of
F Romi Kapoor:

          "l~ocal Examination

          1.      A CLW 1 cm X 0.5 cm X 1 cm in size placed
                  horizontally on little side of left upper arm on lower
G                 part of deltoid muscle, red in colour with dark
                  edges· due to soot with irregular margins which
                  were depressed.

          2.      A. CLW 1 cm 0.5 cm 1 cm in size placed
H                 horizontally approximately 2.5 cm lateral to first
   MANJEET SINGH v. STATE OF HIMACHAL     803
PRADESH [SUDHANSU JYOTI MUKHOPADHAYA, J.]
           would on lateral inside of left upper arm on lower     A
           part of deltoid muscle with irregular margins
           elevated and margins deliberated red in colour.
           Same marks were present over sweater and shirt
           worn.".
                                                                  B
     As per the opinion of the doctor, injuries Nos.1 & 2 were
bullet injuries and the same were dangerous to the life as per
rule of gun shot injuries. The Doctor has also issued MLC Ext.
PW-2/B in respect of the said injuries.

   · 6. On the same day, Dr. M.P. Singh (PW.1) has also           C
examined injured Pawan Kumar and observed as under:

     "Local injuries:

      1.   A CLW over right foot approximately 5 cm about
           tip of right big toe placed horizontally 1 cm 0.5 cm   D
           1 cm in size with irregular margins red in colour.

     2.    A bruise bluish in colour present 1 cm X 0.5 cm
           in size placed obliquely over fifth metatars o-
           phalangel joint running lately on right foot.          E

           On the basis of x-ray report, the injury Nos. 1 and
           2 were declared dangerous to the life and were
           fresh in duration and were caused by a blunt
           weapon. The Doctor has issued MLC Ext.PW-11            F
           C."

    On the same day, Dr. M.P. Singh (PW.1) has also
examined injured Jai Pal (PW.5) and found as under:

     "Local Injuries                                              G
      1.   A CLW 1.5 cm in size placed in the middle of
           inner side of upper lip placed obliquely upwards
           and lately on left side, reddish scabbing over lip
           present with clotted blood.
                                                                  H
                                                                •.
    804     · SUPREME COURT REPORTS                 [2014] 5 S.C.R.

A          2.     A bruise present over upper lip in the centre
                  reddish blue in colour 1 cm X 0. 5 cm in size
                  placed vertically. No other injury was present.
                  Teeth were normal. Injuries No. 1and 2 were
                  simple and the duration of injuries was within 24
s                 hours and were caused by blunt weapon."

          After his examination Doctor has issued MLC Ext.PW-1/
    D.
       7. The accused-Manjeet Singh too was subjected to
C medical examination, which was carried out by Dr. Dinesh
  Rana (PW.2) on 1st January, 2001 at about 5.55 p.m. The
  accused at the time of such medical examination complained
  of pain in the fifth knuckle region of the left hand. X-ray was
  advised. However, local examination revealed the presence of
D a red colour contusion and swelling on such knuckle region. The
  accused also complained of breaking of upper incisor tooth.
  He was referred to Dental Surgeon. On the basis of dental
  opinion, such injury was opined to be of a simple nature having
  been caused within the probable duration of 24 hours.
E
        8. Balraj, a companion of the accused, was also medically
    examined by Dr. Dinesh Rana (PW.2). Following injuries were
    found on his person:

          "(i)    4 cm 1 cm. abrasion over the dorsum of right fore-
F                 arm;

          (ii)    1.5 cm x 1.5 cm round abrasion red in colour,
                  above the writ joint;

          (iii)   3.5 cm x 2 cm abrasion, read in colour with linear
G                 scratch in the mid. 3 cm outer aspect of the left
                  knee joint;

          (iv)    Multiple irregular abrasions on the entire lateral
                  aspect of the left lower leg. Red in colour, and
H
   MANJEET SINGH v. STATE OF HIMACHAL     805
PRADESH [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     (v)   Small irregular abrasion on the left side of the        A
           forehead. Red in colour."

     All the injuries were opined to be of simple nature having
been caused with a blunt weapon within the probable duration
of 24 hours.                                                       B
      9. The other companion of the accused, namely, Surender
Kumar was medically examined by Dr. Rajneesh Sharma
(PW.4) on 1st January, 2001 at about 4.35 a.m. One injury, that
is, laceration over the fore-head 1.5 cm x 1 cm x 0.5 cm was
found. He was smelling of liquor and there was slurring of         C
speech: The injury was simple in nature having been caused
with a blunt weapon with the probable duration of 6 hours.

     10. On having been produced by the accused, Carbine-
Ex.P4 with empty magazine vide memo Ex.PW5/C were taken            D
into possession by Gulam Mohammad(PW.26), Additional
Station House Officer of Police Station Sadar, who had partially
investigated the case. Six live cartridges Ex.P1 to P6 were also
produced by the accused, which were taken into possession
vide memo Ex.PW5/D by Gulam Mohammad(PW.26). Six                   E
empty cartridges were taken into possession from the spot by
Gulam Mohammad(PW.26) vide memo Ex.PW5/E. Service belt
of the accused, which was lying on the bed in the Hall of the
Hotel was also taken into possession vide memo Ex.PW5/F.

    11. The Ballistic Expert to whom the carbine, live and F
empty cartridges were sent for examination, vide report ·
Ex.PW25/E has opined that the empty cartridges were fired
from the carbine Ex.P4.
     12. On completion of the investigation the accused along      G
with his two companions Balraj and Surinder Kumar were sent
up for trial.

    The accused was charged for the substantive offences
under Section 302 and 307 IPC, and under Section 27 of the
Arms Act, 1959. His two companions, Balraj and Surinder            H
      806      SUPREME COURT REPORTS                    [2014] 5 S.C.R.


A     Kumar, were charged for the offence under Section 114 read
      with Sections 302 and 307 IPC, for having abetted and
      instigated the commission of the offences under Section 302
      and 307 IPC by the accused.

             13. The accused and his two companions pleaded not
8
    · gililty to the charge and claimed trial. The prosecution in support
      of its case examined as many as 26 witnesses,

        14. The learned Additional Sessions Judge, on
    consideration of the evidence coming on the record, by the
C . impugned judgment, convicted and sentenced the accused-
    Manjeet Singh as mentioned above.

           15. The accused was acquitted of the offence under
      Section 307 IPC. The two companions of the accused, Balraj
0     and Surinder Kumar were acquitted of all the charges framed
      against them.

          16. By the· impugned judgment the High Court noticed the
      submission made on behalf of the appellant and on
      appreciation of the evidence on record dismissed the appeal
E     and affirmed the conviction and sentences imposed by the Trial
      Court.

        17. Learned counsel for the accused has assailed the
  conviction and sentence on the ground that the accused had
F acted in exercise of the right of private defence. It was submitted
  that the genesis of the occurrence was different from what the
  prosecution has suggested and highlighted. In fact, the
  occurrence had taken place in the manner suggested by the
  accused in his defence. The deceased and his companions
G had made a forcible entry into the Hall of the Hotel and started
  beating the accused and his two friends and in such course they
  had tried to snatch the carbine, which got fired during the scuffle.
       18. From the record, we find that neither the accused nor
  his two companions in the statements recorded under Section
H 313 Cr.P.C., has stated that the deceased and his companions
   MANJEET SINGH v. STATE OF HIMACHAL     807
PRADESH [SUDHANSU JYOTI MUKHOPADHAYA, J.]
were the aggressors and that the accused was acting in                  A
exercise of the right of private defence. In fact, their case is that
of total denial. There is nothing on the record to suggest that
the accused or his companions received injuries at the hands
of the deceased or the deceased tried to snatch the carbine
of the accused. No evidence has been brought on record that             B
the deceased and his companions entered the Hall of the Hotel
with arms.

     19. Under Section 96, IPC, "Nothing is an offence which
is done in the exercise of the right of private defence". Right of      C
private defence of the body and of property has been
enumerated under Section 97, IPC, subject to the restrictions
contained in Section 99, IPC. As per the said section every
person has a right to defend-

      "First. - His own body, and the body of any other person,         D
             against any offence affecting the human body;

      Secondly - The property, whether movable or
          immovable, of himself or of any other person,
          against any act which is an offence falling under             E
          the definition of theft, robbery, mischief or criminal
          trespass, or which is an attempt to commit theft,
          robbery, mischief or criminal trespass."

      Section 102, IPC, deals with commencement and
continuance of the right of private defence of the body as              F
follows:

     "Section 102. Commencement and continuance of the
     right of private defence of the body.- The right of private
     defence of the body commences as soon as a                         G
     reasonable apprehension of danger to the body arises
     from an attempt or threat to commit the offence though
     the offence may not have been committed; and it
     continues as long as such apprehension of danger to the
     body continues."
                                                                        H
    808       SUPREME CbU-RT REPORTS                 [2014] 5 S.C.R.


A         The extent and limitations of the right of private defence
    is prescribed under Section 96 to 106, IPC. Such a right can
    be exercised only to defend the unlawful action and not to
    retaliate.

        20. This Court in George Dominic Varkey v. The State of
8
    Kera/a, (1971) 3 SCC 275, has held:

          "6... ... Broadly stated, the right of private defence rests
          on three ideas: first, that there must be no f}1ore harm
          inflicted than is necessary for the purpose of defence;
C         secondly, that there must be reasonable apprehension
          of danger to the body from the attempt or threat to commit
          some offence; and, thirdly, the right does not commence
          until there is a reasonable apprehension. It is entirely a
          question of fact in the circumstances of a case as· to
D         whether there has been excess of private defenc,e within
          the meaning of the 4th clause of Section 99 of the Indian
          Penal Code, namely, that no more harm is inflicted than
          is necessary for the purpose of defence. No one can be
          expected to find any pattern of conduct to meet a
E         particular case. Circumstances must show that the court
          can find that there was apprehension to life or property
          or of grievous hurt. If it is found that there was
          apprehension to life or property or of grievous hurt the
          right of private defence is in operation. The person
F         exercising right of private defence is entitled to stay and
          overcome the threat."

       21. In Moti Singh v. State of Maharashtra, (2002) 9 SCC
  494, this Court held that dimension of the injuries may not be
  serious, it is the situs of the injuries that would indicate whether
G the accused could reasonably entertain the apprehension that
  at least grievous injuries/hurt would be caused to him by the
  assaulters unless aggression is thwarted.

     22. In the present case during the course of cross-
H examination of the prosecution witnesses, especially Jai
   MANJEET SINGH v. STATE OF HIMACHAL     809
PRADESH [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Pal(PW.5}, Romi Kapoor (PW.6), Pawan Kumar (PW.7),                 A
Satish Kumar (PW.9) and Charanjeet Singh (PW.12) an
attempt has been made on behalf of the accused to set up the
case of private defence.

     23. In Rajenqer Singh and others v. State of Bihar, (2000)    8
4 SCC 298, dealing with the similar proposition this Court held
as follows:

    "Non-explanation of the injuries on the person of the
    accused, ipso facto, cannot be held to be fatal to the
    prosecution case. Ordinarily, the prosecution is not           C
    obliged to explain each and every injury on the person
    of the deceased even though such injuries might have
    been caused during the course of the occurrence and
    they are minor in nature. But where the injuries are
    grievous, non-explanation of such injuries would attract       D
    the Court to look at the prosecution case with little
    suspicion on the ground that the prosecution has
    suppressed the true version of the incident."

     24. Evidence of eye-witnesses, especially of the injured,     E
namely, Jai Pal (PW.5), Romi Kapoor (PW.6) and Pawan
Kumar (PW.7}, which are trustworthy, when read together, we
find that non-explanation of the injuries on the person of the
accused and his two companions cannot be held to be fatal to
the prosecution case.
                                                                   F
     25. Satish Kumar (PW.9), an independent witness, who
was also staying and sleeping in the Hall where the occurrence
had taken place, though he was declared hostile, has admitted
the correctness of the prosecution story in the following terms:
                                                                   G
     "It is correct that when I woke up on hearing the noise, I
    saw a boy coming in the hall and inquiring about the
    Manager from the accused Manjit. It is correct that one
    of the associates of accused Manjit, i.e., one driver stated
    that we are not Chowkidar, so you tell the Manager. It is      H
    810       SUPREME COURT REPORTS                 [2014] 5 S.C.R.


A         correct that upon this accused persons started beating
          that boy and thereafter other associates of that boy also
          came in the hall of that hotel after about 5-7 minutes."

          In answer to Court question, PW.9 has staect:
B         "The driver who was with accused Manjit was heavily
          drunk and was also abusing the other party and Manjit
          accused tried to prevail upon him and thereafter said
          driver attempted to assault those 4-5 persons present in
          the hall and thereafter free fighting between the parties."
c
          The above statement of Satish Kumar (PW.9) lends
    support to the prosecution story to show that it was the accused
    who was the aggressor and that the accused had not acted in
    private defence.
                                                                        '•
D      26. The question now requires to determine is as to what
  is the nature of offence that the accused has committed. The
  evidence produced against the accused does not show that the
  accused had any motive to cause death of the deceased or
  have intended to cause such bodily injuries which were
E sufficient in the ordinary course of nature to cause the death of
  the deceased. Evidence on record also does not establish that
  the injuries caused on the body of the deceased must in all
  probability cause his death or likely to cause his death. On the
  spur of the moment, during the heat of exchange of words
F accused caused injuries on the body of the deceased which
  caused his death. Therefore, the ingredients of the murder as
  defined in Section 300, IPC, have not been established against
  the accused. In our opinion, the accused was guilty of culpable
  homicide not amounting to murder under Section 304, IPC, and
G considering    the fact that the accused had no intention to either
  cause the death of the deceased or cause such bodily injury
  as is likely to cause death of the deceased, it would be
  sufficient to impose on accused a sentence of seven years
  rigorous imprisonment and to impose on him a fine of Rs.5,000/
H
   MANJEET SINGH v. STATE OF HIMACHAL     811
PRADESH [SUDHANSU JYOTI MUKHOPADHAYA, J.]
- and in default of payment of fine, a further imprisonment of     A
six months.

     27. We, accordingly, set aside the conviction of the
accused under Section 302, IPC but hold him guilty of the
offence under Section 304, IPC and sentence him to seven
                                                                   8
years rigorous imprisonment and fine of Rs.5,000/-, in default
of payment of fine a further imprisonment of six months. The
conviction and sentences for the offence under Section 324,
IPC and Section 27 of the Arms Act passed by the_ Trial Court
are affirmed. All the sentences shall run concurrently. If the     C
accused-Manjeet Singh has not yet undergone the sentence
imposed and affirmed by us, and is not in custody, he be taken
into custody to serve the remainder.

    28. The appeal stands disposed of with the above
observations and directions.                                       D

Rajendra Prasad                              Appeal disposed of.