NAFE SINGHversusSTATE OF HARYANA

                        [2009] 6 S.C.R. 873


                            NAFE SINGH                                A
                                  V.
                        STATE OF HARYANA
                 (Criminal Appeal No. 210 of 2008)
                           APRIL 23, 2009
                                                                      B
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]

        PENAL CODE, 1860:
                               •
        ss. 300, Exception 4, and s. 304 (Part-II) - Dispute          c
    between two groups regarding agricultural land - Accused
    group assaulting complainant party in which one person of the
    other group died and two others received injuries - Trial court
    convicting all the three accused u/ss 302, 324 and 323 rlw
    s.34 /PC - High Court convicting two of the accused u/ss 324      D
    and 323 /PC and sentencing them to the period already
    undergone and convicting the third uls 302 /PC -Held:
    Appropriate conviction would be uls 304 (part-II) /PC -
    Appellant convicted accofdingly - Custodial sentence
    reduced to 7 years RI.                                            E
         The appellant and two others were convicted and
    sentenced by the trial court u/ss 302, 324 and 323 r/w s.
    34 IPC. The prosecution case was that when the
    complainant party was ploughing their fields, the three
    accused armed with 'ballam' 'gandasi' and 'lathi'                 F
    appeared on the scene and challenged them. The
    accused with their respective weapons attacked the
    brother of the complainant. When two persons tried to
    save him, they were also assaulted. Meanwhile some
~   other persons reached the scene and the accused fled              G
    away. The trial court rejected the plea of free fight raised
    by the accused. On appeal the High Court conve ed ~. 1e
    conviction of two of the accused to s.324 and 32.. • C

                                 873                                  H
    87 4        SUPREME COURT REPORTS           [2009) 6 S.C.R.

                                                                  •
A   and considering the period already undergone set them
    at liberty. The conviction of the third accused u/s 302 was
    maintained.
         In the instant appeal by the accused, the plea of free
    fight was reiterated and it was submitted that in the
8   circumstances s.302 was not applicable.
           Allowing the appeal in part, the Court
       HELD: Keeping in view Exception 4 to s.300 IPC, it
  is to be noted that in some cases conviction is made in
C terms of s.304 (part-I) IPC and in some cases conviction
  is made in terms of s.304 (part-II) IPC. Considering the
  facts of the instant case, the appropriate conviction
  would be u/s 304 (part-II) IPC instead of s.302 IPC. i:nds
  of justice would be met if the custodial sentence is
D reduced to 7 years R.I. [Para 9 and 10) [879-E-G]
                                                                  •
         Ra_mkishan vs. State of Maharashtra. (2007) 3 SCC 89,
    relied on.
                         Case Law Reference:
E       (2007) 3 sec 89             relied on         para 7
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 210 of 2008.
        From the Judgment & Order dated 25.10.2007 of the High
F   Court of Punjab and Haryana at Chandigarh in Crl. Nos. 87-
    DB/2005.
        K.G. Bhagat, Manju Bhagat, Monohar Singh Bakshi, Vineet
    Bhagat and Debasis Misra for the Appellant.
G       Rajeev Gour 'Naseem' and Naresh Bakshi for the
    Respondent.
        The Judgment of the Court was delivered by
       DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
H to the judgment of a Division of the Punjab and Haryana High
            NAFE SINGH v. STATE OF HARYANA                        875
                 [DR. ARIJIT PASAYAT, J.]

    Court dismissing the appeal filed by the appellant.                 A
         2. Three accused persons faced trial for alleged
    commission of offences punishable under Section 302, 323
    and 324 read with Section 34 of the Indian Penal Code, 1860
    (in short "IPC") for allegedly intentionally causing the death of B
    Bhanwar Singh (hereinafter referred to as "the deceased") in
    furtherance of their common intention and causing injuries to
    Mukesh (PW.8) and his brother Vinod. The trial court' found the
    accused persons guilty and convicted them for the offences
    punishable under Sections 302, 323 and 324 read with Section C
    34 IPC. The appeal was filed by all the three convicted accused
    persons. Criminal Revision No.474/2005 was filed by the
    complainant.
        3. The prosecution version in a nutshell is as follows:
          4. On 30.5.2002, Kanwar Singh (PW.4) complainant along D
    with his brother, namely, deceased Bhanwar Singh was
    working in the fields known by the name ofYamuna belt. Ram
    Phal son of Sugna, resident of Goela Khurd, was also ploughing
    his fields. Besides, the sons of the complainant, namely, Vinod
    and Mukesh, were also working in the field. At about 12 noon, E
    appellant Nafe Singh armed with a Ballam, Dheeraj armed with
    a Gandasi and Angrej Singh armed with a lathi, came to their
    fields and raised a lalkara that Bhanwar Singh be taught a
    lesson for ploughing the fields, whereafter Nafe Singh gave a
    Ballam blow to Bhanwar Singh on the right side of his chest F
    on its lateral side lower part, while Oeeraj gave a Gandasi blow
    on his left knee and Angrej gave a lathi blow to him. Upon this,
    Bhanwar Singh cried "Mar Diya Mar Diya" and on hearing his
    noise, Vinod and Mukesh went to rescue their uncle Bhanwar


-
    Singh; but they were also inflicted injuries by the above three G
    accused with their respective weapons. When Kanwar Singh -
    complainant along with Ram Phal intervened, the accused
    along with their respective weapons fled away from the spot.
    Accused Nafe Singh while leaving told them that his brothers
    Sahab Singh and Iqbal Singh has lot of money and can manage H
    876       SUPREME COURT REPORTS               [2009] 6 S.C.R.


A the affairs. Kanwar Singh, complainant along with Ram Phal
   went to the spot and found his brother Bhanwar Singh lying
   dead. Thereafter, Hari Singh son of Phula Singh and his wife
   Kiran Sarpanch who were coming from the fields along with
   Jhota - Buggi took the injured to village and subsequently, to
8 Civil Hospital, Panipat. Complainant Kanwar Singh made
   statement exhibits PB before ASI Randhir Singh in regard to
   the occurrence which led to registration of formal FIR exhibit
   PB/1 .after making an endorsement Ex.PB/2. After
   commencement of investigation, both the injured, Mukesh and
C Vinod, were got medico-legally examined and their medical
   reports exhibits PE and PF were obtained. The police then
   moved an application Ex. PG for recording their statements and
   vide endorsement Ex. PG/1 the injured were declared fit to
   make statement. The police also moved an application Ex. PH/
D 3 for conducting post-mortem on the body of Bhanwar Singh
   deceased and post-mortem report Ex. PH, was given.
   Thereafter, a rough site plan, Ex. PH of the place of occurrence
  was prepared. The dead body of Bhanwar Singh was got
  photographed and photographs Ex. P3 to Ex. P6 along with
E their negatives Ex. P7 to Ex.P10 were collected. A scaled site
  plan of the place of occurrence Ex. PC was got prepared.
  Blood soaked earth was also collected from the place of
  occurrence and taken into possession vide seizure memo Ex.
  PD. Thereafter, proceedings under Section 174 Cr.P.C. were
F conducted. All the three accused, named above, were arrested
  out of whom accused Nafe Singh made a disclosure statement
  Exhibit PQ on the basis of which he got recovered Ballam,
  Exhibit P/2, which was taken into possession vide recovery
  memo Ex. PQ/2 after preparing its rough Khaka Ex. PQ/1.
G Further, the rough site plan of the place of recovery of the said
  weapon of offence Exhibit PQ/3 was prepared. Later the other
  two accused namely, Dheeraj and Angrej Singh produced
  weapons of offence i.e. Gandasi Ex.P1 and Lathi taken into
  possession vide recovery memos Ex. PS and Ex. PW/1 after
                                                                      -
H preparing their rough khakas Ex. PR and Ex. PR/1 respectively.
                       NAFE SINGH v. STATE OF HARYANA                       877
                            [DR. ARIJIT PASAYAT, J.]
              The police then moved an application Ex. PH/1 for getting            A
              opinion frorn the doctor about the nature of injuries caused to
              deceased Bhanwar Singh with Ballam and obtained report Ex.
              PH/2.
                   5. On completion of investigation, the accused-appellants
                                                                                    8
              were charge- sheeted under Sections 302/324/323 read with
              Section 34 IPC. As the accused pleaded innocence, trial was
              held. In order to substantiate the accusations, 15 witnesses
         I·
              were examined. The accused persons in their statement
              recorded under Section 313 of the Code of Criminal Procedure,
              1973 (in short "the Code") took the plea of innocence and false C
              implication as well as the plea of self-defence. The trial court
              placed reliance on the evidence of the witnesses and directed
              conviction. It did not find any substance in the plea that this being
              a case of free fight, Section 302 will have no application.
                                                                                    D
                   6. Q\,lestioning the correctness of the judgment of their
              conviction, three convicted accused preferred appeal before
              the High Court which was numbered as Appeal No. 8708 of
              2005. By the impugned judgment, the High Court altered the
              conviction of the two accused persons to Section 324 and 323 E
              IPC and considering the period of sentence already served, they
              were directed to be set at liberty unless required in any other
              case. The appeal of the present appellant was dismissed.
l   ..
                   7. Learned counsel for the appellant submitted that in a
              case of free fight which has been established by the evidence        F
              on record, Section 302 will have no application.
                   8. In support of his contention, learned counsel has drawn
              our attention to the law laid down in the case of Ramkishan v.
              State of Maharashtra (2007) 3 SCC 89. Paragraph 10 of the           G
              said judgment reads as under:
                  "10. "17. The Fourth Exception of Section 300 IPC covers
                  acts 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      H
    878         SUPREME COURT REPORTS                   (2009] 6 S.C.R.


A         appropriate. The exception is founded upon the same
          principle, for in both there is absence of premeditation.
          But, while in the case of Exception 1 there is total
          deprivation of self- control, in case of Exception 4, there
          is only that heat of passion which clouds men's sober
8         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 provocation. In fact Exception 4 deals          ·I

          with cases in which notwithstanding that a blow may have
c         been struck, or some provocation given in the origin of the
          dispute or in whatever way the quarrel may have
          originated, yet the subsequent conduct of both parties puts
          them in respect of guilt upon equal footing. A 'sudden fight'
          implies mutual provocation and blows on each side. The
D         homicide committed is then clearly not traceable to
          unilateral provocation, nor in such cases could the whole
          blame be placed on one side. For if it were so, the
          Exception more appropriately applicable would be
          Exception 1.
E          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
           acted in a cruel or unusual manner; and (d) the fight must
           have been with the person killed. To bring a case within
F          Exception 4 all the ingredients mentioned in it must be
           found. It is to be noted that the 'fight' occurring in Exception
           4 to Section 300, IPC is not defined in IPC. It takes two
           to make a fight. Heat of passion requires that there must
           be no time for the passions to cool down and in this case,
G          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 weapons. It is not possible to enunciate any
           general rule as to what shall be deemed to be a sudden
H
            NAFE SINGH v. STATE OF HARYANA                   879
                 [DR. ARIJIT PASAYAT, J.]

       quarrel. It is a question of fact and whether a quarrel is   A
       sudden or not must necessarily depend upon the proved
       facts of each case. For the application of Exception 4, it
       is not sufficient to show that there was a sudden quarrel
       and there was no premeditation. It must further be shown
       that the offender has not taken undue advantage or acted     B
       in a cruel or unusual manner. The expression 'undue
       advantage' as used in the provision means 'unfair
       advantage'.
     19. Where the offender takes undue advantage or has
     acted in a cruel or unusual manner, the benefit of Exception C
    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
    whether undue advantage has been taken. In Kikar Singh
    v. State of Rajasthan (AIR 1993 SC 2426) it was held that D
    if the accused used deadly weapons against the unarmed
    man and struck a blow on the head it musl be held that by
    using the blows with the knowledge that they were likely
    to cause death he had taken undue advantage."
                                                                  E
    Learned counsel for the respondent, on the other hand,
supported the judgment of the High Court.
      9. It is to be noted that in some cases conviction is made ·
in terms of Section 304 Part-1 IPC and in some cases conviction
is made in terms of Section 304 Part-11 IPC.                       F
      10. Considering the facts of this case, according to us, the
appropriate conviction will be under Section 304 Part-II IPC
instead of Section 302 IPC. Ends of justice would be met if the
conviction is altered from Section 302 IPC to Section 304 Part G
11 IPC and the custodial sentence is reduced to 7 years R.I. We
order accordingly.
       11. The appeal is allowed to the aforesaid extent.
R.P.                                     Appeal partly allowed.
                                                                    H