Kala Singh @ Gurnam Singh vs The State Of Punjab on 21 September, 2021


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Supreme Court of India

Kala Singh @ Gurnam Singh vs The State Of Punjab on 21 September, 2021

Author: R. Subhash Reddy

Bench: R. Subhash Reddy, Hrishikesh Roy

     [email protected](Crl.)Nos.11140-11141 of 2019



                                                                              REPORTABLE

                                        IN THE SUPREME COURT OF INDIA

                                        CRIMINAL APPELLATE JURISDICTION

                                   CRIMINAL APPEAL NOS. 1040­1041 OF 2021
                                [Arising out of S.L.P.(Crl.)Nos.11140­11141 of 2019]


                      Kala Singh @ Gurnam Singh                             …..Appellant

                           Versus

                      State of Punjab                                       …..Respondent


                                                  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 Part­I r/w Section 34, IPC, and sentenced to 12 years’ rigorous

imprisonment and a fine of Rs.10,000/­. The conviction under

Signature Not Verified
Section 201 IPC was maintained.

Digitally signed by
Rajni Mukhi

3. It is alleged that, the appellant and the deceased had a
Date: 2021.09.21
16:09:15 IST
Reason:

sudden fight as the deceased had stolen the pigeon of the appellant

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[email protected](Crl.)Nos.11140-11141 of 2019

and in the heat of passion upon a sudden quarrel, the co­accused

(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 co­accused have

thrown the dead body of the deceased in the minor canal.

4. Before the trial court, the co­accused 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 appellant­accused

Kala Singh, scuffle took place between Shamber Singh (deceased) and

the appellant Kala Singh. It is further held that the co­accused 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

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[email protected](Crl.)Nos.11140-11141 of 2019

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 Part­I IPC and imposed the sentence, of 12

years’ rigorous imprisonment and to pay a fine of Rs.10,000/­, on the

appellant herein and co­accused for the offence under Section 304

Part­I 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 appellant­accused to kill the deceased. It is submitted that

the appellant, co­accused 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

co­accused Kehar Singh gave one rod blow on the head of the

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[email protected](Crl.)Nos.11140-11141 of 2019

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 Part­II but not 304 Part­I,

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 Part­II IPC. Learned counsel by further submitting

that appellant has already served more than three years of sentence,

made a request to reduce the sentence by converting the conviction to

one under Section 304 Part­II 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 passed by the High Court. It is submitted that sufficient

leniency is already shown to the appellant­accused and there are no

grounds to interfere with the impugned judgment. It is further

1 (2002) 7 SCC 79

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[email protected](Crl.)Nos.11140-11141 of 2019

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.

9. Having heard learned counsels on both sides, we have

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, co­accused

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 appellant and deceased

Shamber Singh alleging that deceased Shamber Singh had stolen the

pigeon of appellant herein. The co­accused Kehar Singh who had a

rod with him, gave a rod blow on the head of Shamber Singh.

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 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

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[email protected](Crl.)Nos.11140-11141 of 2019

passion upon a sudden quarrel. It was not a pre­meditated one and

as there was no intention on the part of the appellant and co­accused

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 Part­I IPC. In absence of any intention

on the part of the appellant, we are of the view that it is a clear case

where the conviction of the appellant is to be modified to one under

Section 304 Part­II 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 Part­I IPC to

the one under Section 304 Part­II IPC.

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 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, Shishupal
Singh with such force as to ultimately result in

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[email protected](Crl.)Nos.11140-11141 of 2019

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 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
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.

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 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 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. A­1 attacked the
2 (2017) 11 SC 807

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[email protected](Crl.)Nos.11140-11141 of 2019

deceased with the knife and caused injury on his neck
which resulted in his death. The 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 the submissions made by the counsel for the
appellants and 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 deceased
was present. An altercation took place during the
discussion they were having behind the dhaba. That led to
a sudden fight during which A­1 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 they are liable for conviction under
Section 304 Part II IPC. We are informed that A­1 has
undergone a sentence of seven years and that A­2 to A­4
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 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 Part­I/34 IPC to the one under Section 304 Part­II/34

IPC. The appellant is hereby sentenced to undergo 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

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[email protected](Crl.)Nos.11140-11141 of 2019

appellant for the offence under Section 201 IPC and sentence of three

years’ rigorous imprisonment and the fine of Rs.500/­ are also

maintained.

………………………………J.

[R. Subhash Reddy]

………………………………J.

[Hrishikesh Roy]
New Delhi.

September 21, 2021.

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