IMPORTANT POINTS
(1) Fight between the two parties 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 deceased with deadly or dangerous arms (or weapons).
(2) Action is 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.

JUDGMENT :

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 & 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.

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 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 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 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 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 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 nonpayment of fine, they shall undergo rigorous imprisonment for a further period of six months.

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 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 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 premeditated 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 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., (2002) 7 SCC 79 wherein this Court has modified the conviction to one under Section 304 Part-II IPC. Learned counsel by further submitting that appellant has al