REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   285              OF 2009 (Arising out of SLP (Crl.) No.3912 of 2008)

Santokh Singh ..Appellant

Versus

State of Punjab ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Punjab and Haryana High Court dismissing the appeal filed by the appellant

who was convicted for offence punishable under Section 302 of the Indian

Penal  Code,  1860  (in  short  the  ‘IPC’)  alongwith  the  appellant,  his  wife

Gurjit Kaur was tried but she was acquitted by the trial court.

3. Prosecution version in nutshell is as follows:

Makhan Singh son of Mangal Singh had three sons, namely, Gopal

Singh,  Joginder  Singh  and  Santokh  Singh,  the  last  indicated  being  the

youngest  of the trio and-presently appellant before this Court. He retired

from the Army in  the rank of a Major few years ago and was Amritsar

based thereafter,  while his  two other  brothers,  namely, Gopal  Singh and

Joginder Singh reside in the village to look after their agricultural holding.

Makhan Singh had given his agricultural holding to his three sons in equal

shares, though they have a joint account inter-se. Initially, there indeed was

some problem between them which was sorted out with the intervention of

respectables of the village. Appellant Santokh Singh was given land near

his tubewell. That land is situated towards the land owned by Gurdip Singh

(hereinafter referred to as the ‘deceased’). On 22.6.1996, informant-Gurdial

Singh was proceeding towards his tubewell when he spotted the appellant

ploughing the land under reference by a tractor which he had taken on hire

from  Ladi  son  of  Gurmeet  Singh.  Gurdip  Singh  came  over  there  and

forbade  appellant  Santokh  Singh  from  ploughing  that  land  which  he

claimed to  be his.  In the  light  of  that  conversation,  Ladi  took away his

tractor towards the village. It was followed by a scuffle between Santokh

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Singh appellant and Gurdip Singh. After they had been separated, Gurdip

Singh came home, took his  tractor  to  the land and started  ploughing  it.

Gurdial  Singh  watched  Gurdip  Singh  ploughing  while  standing  on  the

track.  Then,  appellant  Santokh  Singh  along  with  his  wife  Gurjit  Kaur

appeared on the scene and told Gurdip Singh to desist from ploughing that

land. The appellant, in the meanwhile, took out his pistol and fired a shot at

Gurdip Singh, while the latter was in the process of getting down from the

tractor. The shot fired by the appellant felled Gurdip Singh on the ground.

In the meantime, Satnam Singh, a brother of Gurdip Singh, came from the

village  and  caught  hold  of  the  appellant  from latter's  rear  side.  In  the

meantime, Gurdial Singh also raised a raula. Satnam Singh, with a view to

disable  the appellant  from firing  another  shot,  twisted  latter's  right  arm.

During  the  period  the  arm stood  twisted  towards  his  rear  side,  Santokh

Singh kept on firing and one of the shots hit him on the right side of hip

bone and the ribs.  He, too fell down upon the ground and handed over his

pistol to Gurdial Singh.  In order to ensure that there was no further blood

shed, Gurdial Singh fired shots in the air in order to ensure that the revolver

did  not  stay  loaded.  Thereafter,  Gurdial  Singh  and  Joginder  Singh

transported Gurdip Singh to Guru Nanak Dev Hospital, Amritsar, where the

latter was initially hospitalized. While notifying the offence to the police on

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23.6.1996,  Gurdial  Singh  (informant)  handed  over  one  32  bore  pistol

(which had earlier been given to him by appellant Santokh Singh) and six

empty cartridges of 32 bore to the police. Gurdip Singh succumbed to the

injuries on 24.6.1996.  Investigation was undertaken,  and on completion

thereof chargesheet was filed.  As accused abjured guilt trial was held.

The  prosecution  presentation  is,  thus,  to  the  effect  that  it  was  the

appellant  who  fired  the  fatal  shot  at  deceased  Gurdip  Singh.  The

prosecution version was testified on oath at the trial by HC Surain Singh

(PW 1), Dr-.  Kulwant Singh (PW 2), Dr. Gurmanjit  Rai (PW 3),  Gurdial

Singh  (PW 4),  Dr.  Vijay  Kumar  Sethi  (PW 5),  Joginder  Singh  (PW 6),

Satnam Singh (PW 7), Jagjit Singh Patwari (PW 8), ASI Jagdev Singh (PW

9), Reserver Inspector Ragllbir  Singh (PW 10), HC Baljinder Singh (PW

l0A), C. Kashmir Singh (PW 11), ASI Santokh Singh (PW 12), Constable

Rajinder Kumar (PW 13) and Constable Dharam Singh (PW 12).

The  trial  court  found  the  accused  appellant  guilty  while  directing

acquittal of the co-accused.  Trial court placed reliance on the evidence of

Gurdial  Singh  (PW4)  who  was  the  eye  witness.  Joginder  Singh  (PW6)

reached  the  spot  immediately  after  the  occurrence and  saw the deceased

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lying on the ground. Satnam Singh (PW7) had witnessed the occurrence and

tried to avert further bloodshed by taking the appellant in his grip and by

twisting his right arm.  It was his case that while he was trying to do so

accused started continued firing. The trial court relied on the evidence of

prosecution version and as noted above found the accused guilty.  It did not

accept the plea of the appellant that the accused was acting the exercise of

right of private defence. Before the High Court, the appellant took the plea

of right of private defence which was rejected.  It did not find any substance

in the plea that the land in question was in the possession of the appellant.

4. In support of the appeal learned counsel for the appellant submitted

that  the  evidence  of  the  patwari  clearly  show that  the  appellant  was  in

possession of the land and the conclusions of the High Court was contrary

to the evidence. It was also submitted that when the right of private defence

was pleaded and established, the trial court and the High Court ought not to

have directed conviction.

5. Learned counsel for the respondent-State on the other hand supported

the judgment of the trial court and the High Court.   

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6. So far as the question of possession is concerned the High Court has

found that the entry made in the name of Makhan Singh and Gurdip Singh

was unauthorisedly done.

7.  That being so there is no substance in the plea of the appellant that he

was in possession.  Alternative plea related to exercise of right of private

defence and in the alternative that the occurrence took place in the course of

sudden quarrel and Section 302 has no application.

8. The number of injuries is not always a safe criterion for determining

who the aggressor was. It cannot be stated as a universal rule that whenever

the injuries  are on the body of the  accused persons,  a presumption must

necessarily  be  raised  that  the  accused  persons  had  caused  injuries  in

exercise of the right of private defence. The defence has to further establish

that the injuries so caused on the accused probabilises the version of the

right of private defence. Non-explanation of the injuries  sustained by the

accused at about the time of occurrence or in the course of altercation is a

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very important circumstance. But mere non-explanation of the injuries by

the  prosecution  may  not  affect  the  prosecution  case  in  all  cases.  This

principle applies to cases where the injuries sustained by the accused are

minor  and  superficial  or  where  the  evidence  is  so  clear  and  cogent,  so

independent and disinterested, so probable, consistent and creditworthy, that

it far outweighs the effect of the omission on the part of the prosecution to

explain the injuries. [See:  Lakshmi Singh v.  State of Bihar (AIR 1976 SC

2263). A plea of right of private defence cannot be based on surmises and

speculation.  While  considering  whether  the  right  of  private  defence  is

available to an accused, it is not relevant whether he may have a chance to

inflict severe and mortal injury on the aggressor. In order to find whether

the right of private defence is available to an accused, the entire incident

must be examined with care and viewed in its proper setting. Section 97 IPC

deals with the subject-matter of right of private defence. The plea of right

comprises the body or property (i) of the person exercising the right; or (ii)

of  any other  person;  and  the  right  may be  exercised  in  the  case  of  any

offence  against  the  body,  and  in  the  case  of  offences  of  theft,  robbery,

mischief or criminal trespass, and attempts at such offences in relation to

property.  Section  99  IPC  lays  down  the  limits  of  the  right  of  private

defence.  Sections  96  and 98 IPC give  a right  of  private  defence  against

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certain offences and acts. The right given under Sections 96 to 98 and 100

to 106 IPC is  controlled by Section 99 IPC. To claim a right  of  private

defence extending to voluntary causing of death,  the  accused must show

that  there  were  circumstances  giving  rise  to  reasonable  grounds  for

apprehending that either death or grievous hurt would be caused to him. The

burden is  on the accused to  show that  he had a right  of  private  defence

which extended to causing of death. Sections 100 and 101, IPC define the

limit and extent of right of private defence.  

9. Sections 102 and 105, IPC deal with commencement and continuance

of the right of private defence of body and property respectively. The right

commences,  as soon as a reasonable  apprehension of danger to the body

arises from an attempt, or threat to commit the offence, although the offence

may not  have been  committed  but  not  until  that  there  is  that  reasonable

apprehension. The right lasts so long as the reasonable apprehension of the

danger to the body continues. In Jai Dev v. State of Punjab (AIR 1963 SC

612), it was observed that as soon as the cause for reasonable apprehension

disappears and the threat has either been destroyed or has been put to route,

there can be no occasion to exercise the right of private defence.  

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10. The above position was highlighted in Rizan and Another vs. State of

Chhattisgarh, through the Chief Secretary, Govt.  of  Chhattisgarh,  Raipur,

Chhatttisgarh (2003 (2) SCC 661),  and  Sucha Singh and Anr. v.  State of

Punjab (2003 (7) SCC 643).

11. Merely because there was a quarrel and some of the  accused persons

sustained injuries, that does not confer a right of private defence extending

to the extent of causing death as in this case. Though such right cannot be

weighed in golden scales, it has to be established that the accused persons

were  under  such  grave  apprehension  about  the  safety  of  their  life  and

property that  retaliation  to  the extent  done was  absolutely necessary.  No

evidence much less  cogent  and credible was adduced in  this  regard.  The

right of private defence as claimed by the accused persons have been rightly

discarded.   

12. As rightly observed by the trial court and the High Court there was no

question of exercise of right of private defence as claimed by the appellant.

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13. For bringing in its operation it has to be established that the act was

committed without premeditation, in a sudden fight in the heat of passion

upon a sudden quarrel without the offender having taken undue advantage

and not having acted in a cruel or unusual manner.

14. The  Fourth  Exception  of  Section  300  IPC  covers  acts  done  in  a

sudden  fight.   The  said  exception  deals  with  a  case  of  prosecution  not

covered by the first exception, after which its place would have been more

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 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  with cases in

which  notwithstanding  that  a  blow  may  have  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  homicide  committed  is  then

clearly not traceable to unilateral provocation, nor in such cases could the

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whole blame be placed on one side. For if it were so, the Exception more

appropriately  applicable  would  be  Exception  1.   There  is  no  previous

deliberation  or  determination  to  fight.  A fight  suddenly  takes  place,  for

which both parties are more or less to be blamed. It may be that one of them

starts it, but if the other had not aggravated it by his own conduct it would

not have taken the serious turn it did. There is then mutual provocation and

aggravation,  and  it  is  difficult  to  apportion  the  share  of  blame  which

attaches to each fighter.  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 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  the  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,  the  parties  have  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

quarrel.  It is a question of fact and whether a quarrel is sudden or not must

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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 in cruel or unusual  manner. The

expression  ‘undue  advantage’  as  used  in  the  provision  means  ‘unfair

advantage’.     

15. Where the offender takes undue advantage or has acted in a cruel or

unusual manner, the benefit of Exception 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 if the accused used deadly weapons against the

unarmed man and struck a blow on the head it must be held that using the

blows with the knowledge that they were likely to cause death, he had taken

undue advantage.   

16. Considering the background facts it is clear that the appellant cannot

be  said  to  have  exercise  the  right  of  private  defence.  However,  there  is

substance  in  the  plea  that  the  occurrence  took  place  in  the  course  of  a 12

sudden quarrel.  That being so the conviction is altered from Section 302

IPC to 304 Part I IPC, custodial sentence of ten years would meet the ends

of justice.

17. The appeal is allowed to the aforesaid extent.                 

………….… …............................J.

(Dr. ARIJIT PASAYAT)     

………… …..................................J.

(Dr. MUKUNDAKAM SHARMA) New Delhi, February 12, 2009

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