LexRAMANLAL AND ANR. versus STATE OF HARYANA
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[2015) 7 S.C.R. 147 RAMANLAL ANDANR. v. STATE OF HARYANA (Criminal Appeal No. 2279 of 2009) MAY 15, 2015 [T. S. THAKUR AND R. F. NARIMAN, JJ.] Penal Code, 1860 - ss. 148, 323, 325 and 304 (Part I) A B - Prosecution ulss. 148, 323, 325 and 302 rlw s. 149- Of ten c accused - Trial court convicted all the accused - High Court confirmed the conviction of 4 of the accused while acquitted rest of them - On appeal, held: Prosecution proved its case qua the appellants-accused - However, since the incident was without premeditation and a sudden fight upon a sudden D ... , ,.. quarrel and since the injuries were inflicted in the heat of passion without taking any undue advantage or acting in a cruel and unusual manner - Therefore, by invoking Exception 4 to s. 300 the offence will not'fall uls. 302 but uls. 304 (Part I) - Since the number of accused was reduced to E only 4 due to acquittal of 6 of the accused, the appellants also cannot be convicted with the aid of s. 149 - The conviction of appellant-accused 'H' is converted from s. 3021 149 to s. 304 (Part I) - Other appellants-accused are acquitted u/s. 3021149 while their conviction ulss. 325 and 323 F confirmed. Partly allowing the appeals, the Court HELD: 1. There is nothing in the evidence to G probablise the defence version that the incident in question had taken place on account of an attempt on the part of the deceased to sodomise 'J'. There are no tell tale signs of any such attempt having been made. Not only that, the defence has not taken care to examine H 147 148 SUPREME COURT REPORTS [2015] 7 S.C.R. A 'J', the alleged victim of the attempted act as a witness to prove that any such attempt was at all made by the deceased. [Para 6) [153-H; 154-A-B] 2. The provisions of Section 149 IPC are no longer B available to the prosecution for convicting the appellants whose number is reduced to 4 consequent upon the acquittal of the remaining accused persons. In the present case, the prosecution had named all those constituting the unlawful assembly, but, only four of C those named were eventually convicted, thereby reducing the number to less than five. There is no evidence to suggest that any one, apart from the persons named in the charge-sheet were members of the unlawful assembly, but, were either not available or remained D unidentified. Such being the position, the conviction of the appellants with the help of Section 149 IPC does not appear to be legally sustainable. [Para 12) [161-~·E] . . .· .. Mohan Singh v. State of Punjab AIR 1963 SC 174: E 1962 Suppl. SCR 848; Nagamalleswara Rao (K) and Ors. v. State of Andhra Pradesh (1991) 2 SCC 532: 1991 (1) SCR 875 - relied on. 3.1 The fact that accused 'H' had inflicted a single F injury on the head of the deceased, showed that there was no intention to kill the deceased, other injuries inflicted by the remaining accused being only simple in nature. The offence could not, therefore, be graver than culpable homicide not amounting to murder punishable G u/s. 304 (Part-I) IPC. [Para 13) [161-H; 162-A-B] H Virsa Singh v. State of Punjab AIR 1958 SC 465:1958 SCR 1495- relied on. 3.2 Even when the act may not have been committed RAMANLAL ANDANR. v. STATE OF HARYANA 149 with the intention of causing death, the same was A intended to cause such bodily injury as was likely to cause death, within the meaning of Section 304 Part I. However, the circumstances of the present case leave no manner of doubt that the incident was without any pre-meditation and a sudden fight upon a sudden B quarrel. The injuries upon the deceased were inflicted in the heat of passion and without the appellant taking any undue advantage or acting in a cruel or unusual manner. The fact situation of the case, therefore, attracts Exception 4 to s. 300 especially when in terms of C explanation to Exception 4, it is immaterial in such cases which party offers the provocation or commits the first assault. That being so, the offence committed by the author of the injury is not murder but culpable homicide 0 not amounting to murder punishable u/s. 304 IPC. Therefore, the conviction of the appellants u/s. 302 r/w. Section 149 IPC and the sentence of imprisonment for life awarded to them is set aside. Appellant 'H' is, instead, convicted u/s. 304 Part-I. [Paras 16, 17 and 18] [164-B-H] E 4. The conviction of other three appellants-accused for offences punishable under Se
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