2002 Supreme(SC) 251

2002(2) Supreme 28
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
R.P. Sethi and K.G. Balakrishnan, JJ.
Sukhbir Singh -Appellant
versus
State of Haryana -Respondent
Criminal Appeal No. 650 of 1992
Decided on 20-2-2002
Counsel for the Parties :
For the Appearing Parties : U.R. Lalit, Senior Advocate, Annam D.N. Rao, Rajiv K.Garg, J.P. Dhanda, Ms. Raj Rani Dhanda, D.S. Nagar, K.P. Singh, Advocate for Ranbir Singh Yadav, Sudhir Kulshreshtha, S.S. Khanduja, Yash Pal Dhingra, S. Srinivasan, Advocates.

IMPORTANT POINT
All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 IPC. Where it is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with Bhala caused injuries at random and thus did not act in a cruel or unusual manner, he was held liable to be convicted u/s. 304-I, IPC.

Headnote:(i) Indian Penal Code, 1860-Sections 302, 149 and 304-I-Unlawful Assembly-Common object-Altercation over splashing of mud on person of accused-Receiving two slaps on his face from complainant party, appellant declared to teach complainants a lesson and went home-Immediately thereafter he alongwith others came on the spot and wanted to remove obstructions caused in flow of water-Failure to prove existence of common object amongst accused persons-High Court rightly found that common object, if any, was not to cause death of deceased-Appellant proved to have inflicted two blows on person of deceased-Appellant s conviction u/s. 302 IPC set aside -He was convicted u/s. 304, Part I-Sentence of R.I. for 10 years with fine of Rs. 5,000/-.

       Held : The prosecution in the instant case could not specifically refer to any of the objects for which the accused are alleged to have formed the assembly. It appears, from the circumstances of the case, that after altercation over the splashing of mud on his person and receiving two slaps on his face from the complainant-party, Sukhbir Singh declared to teach the complainant-party, a lesson and went home. Immediately thereafter he alongwith others came on the spot and as held by the High Court wanted to remove the obstructions caused in the flow of water. As the common object of the assembly is not discernible, it can, at the most, be held that Sukhbir Singh intended to cause the fatal blow to the deceased and the other accused accompanied him for the purposes of removing the obstruction or at the most for teaching a lesson to Lachhman and other. At no point of time any of the accused persons threatened or otherwise reflected their intention to commit the murder of the deceased. Merely because the other accused persons were accompanying him when the fatal blows were caused by Sukhbir Singh to the deceased cannot prove the existence of the common object specifically in the absence of any evidence of the prosecution in that behalf. The members of the unlawful assembly can be held liable under Section 149 of the IPC if it is shown that they knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. It is true that the common object does not require prior concert and a common meeting of mind before the attack. It can develop even on spot but the sharing of such an object by all the accused must be shown to be in existence at any time before the actual occurrence. The High Court, on appreciation of evidence, has rightly found that the common object of the accused persons, if any, was not to cause the death of the deceased and such an intention could be attributed only to appellant, Sukhbir Singh. The prosecution evidence probabilise the version of the accused that the occurrence was sudden and unanticipated. The occurrence, including the quarrel and the causing of fatal blows to the complainant-party, all took place within such a narrow compass which renders the story of the prosecution highly improbable. In the facts and circumstances of the case, it cannot be said that the findings returned by the High Court were completely improbable. The appeal filed by the State is not sustainable even on merits. (Paras 14 & 15)

       Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) of the IPC. The findings of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) of the IPC and sentenced to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. 5000/-. In default of payment of fine, he shall undergo further Rigorous Imprisonment for one year. (Para 21)

       (ii) Indian Panel Code, 1860-Section 300, Exception 4, 304-I-Sudden fight-Absence of pre-meditation-No enmity between parties-Occurrence took place when appellant got mud splashes on account of sweeping of street-Deceased gave slaps to appellant for no fault of his-Appellant went home and came armed in company of others with weapons-Appellant, armed with Bhala inflicted two blows on deceased sufficient in ordinary course of nature to cause death-Absence of common object-Appellant convicted u/s. 304-I Sentence of 10 years RI with fine-His conviction u/s. 302 IPC set aside.

       Held : To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of pre-meditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by courts that a fight is not per se palliating circumstance and only unpre-meditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception. (Para 17)

       The High Court has also found that the occurrence had taken place upon a sudden quarrel but as the appellant was found to have acted in a cruel and unusual manner, he was not given the benefit of such exception. For holding him to have acted in a cruel and unusual manner, the High Court relied upon the number of injuries and their location on the body of the deceased. In the absence of the existence of common object, the appellant cannot be held responsible for the other injuries caused to the person of the deceased. He is proved to have inflicted two blows on the person of the deceased which were sufficient in the ordinary course of nature to cause his death. The infliction of the injuries and their nature proves the intention of the appellant but causing of such two injuries cannot be termed to be either in a cruel unusual manner. All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with Bhala caused injuries at random and thus did not act in a cruel or unusual manner. (Para 19)

       (iii) Constitution of India-Article 136-Appeal by special leave-Scope of powers of Court.

       Held : It is now well established that this Court does not, by special leave, convert itself into a court to review evidence for a third time. However, where the High Court is shown to have failed in appreciating the true effect and material change in the version given by the witnesses, in such a situation it would not be right for this Court to affirm such a decision when it occasions a failure of justice. The power under Article 136 of the Constitution of India is, no doubt, extraordinary in amplitude and this Court goes into action only to avert miscarriage of justice if the existence of perversity is shown in the impugned judgment. Unless some serious infirmity or grave failure of justice is shown, this Court normally refrains from re-appreciating the matter on appeal by special leave. The findings of the High Court have to be judged by the yardstick of reason to ascertain whether such findings were erroneous, perverse and resulted in miscarriage of justice. If the conclusions of the courts below can be supported by acceptable evidence, the Supreme Court will not exercise its overriding powers to interfere with such a decision. If two views of an occurrence are possible the view taken by one of the courts which is favourable to accused should be given credence. (Para 8)