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PETITIONER: THE STATE OF PUNJAB

       Vs.

RESPONDENT: SARWAN SINGH

DATE OF JUDGMENT:       19/11/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT: Present :               Hon’ble Mr. Justice K. Ramaswamy               Hon’ble Mr. Justice G.B. Pattanaik      Ranbir  Yadav,   Adv.  for  R.S.  Suri,  Adv.  for  the appellant      B.B. Vashisht,  P.   Narasimhan and R.S. Suri, Adv. for the Respondent                          O R D E R      The following order of the Court was delivered.      Leave granted.      We have heard learned counsel on both sides.      This appeal  by special  leave relates to nature of the offence committed by him.      The admitted  position is  that on  October 25, 1985 at about 6  a.m. in  village Kahlon  within the jurisdiction of the Police  Station Nawahshahr,  one Santokh  Singh and  his party and  the respondents  ad their  party had a dispute on land. They  indulged in quarrel as a result of which Santokh Singh died.  The courts  below recorded  a finding  that the occurrence had  taken place  at 6.00  p.m. in which both the parties   sustained injuries.  The  deceased  Santokh  Singh received as  many as  8 injuries  five of  which were on the head. As  per the  evidence of  PW-2 the  autopsy doctor, he died of the multiple injuries on the head. The injuries were inflicted with  a gandasa.  According to the ordinary course of nature.  Therefore, it  is clearly  a case  under  Clause thirdly of  Section 300,  IPC and of murder punishable under Section 302,  IPC unless  the case  is brought in any one of the exceptions engrafted is Section 300 IPC. The trial Court and the  appellate Courts  have  applied  Exception  (4)  to Section 300 which reads as under :      Culpable homicide  is not murder if      it     is     committed     without      premeditation in  sudden  fight  in      the heat  of passion  upon a sudden      quarrel and  without the offender’s      having  taken  undue  advantage  or      acted  in   a  cruel   or   unusual      manner."      In this  case, the  courts below  found that  the  four

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injuries  inflicted  by  the  respondent-Sarwan  Singh  were responsible for  the death of the  deceased. It is seen that when Sarwan  Singh had  inflicted four  injuries on the head with gandasa  which is  a heavy weapon, it is obviously that he had the knowledge that the injuries would result in death of the  deceased. It is true that  there was a free fight in which both  the  parties  including  the  accused  sustained injuries. Obviously,  therefore, Section  149  IPC  was  not rightly applied and  this Court refused leave as against the acquittal of  others. However,  the respondent cannot escape the offence.  The parties had to fight over dispute of land. It is not the case of the accused that he had acted in self- defence of  him  or  others  and  in  exercise  thereof,  he inflicted the  injuries. Therefore,  the  right  of  private defence has not been rightly applied and was not extended to the accused.  Under these  circumstances, the  only question that arises  is :  whether   the  respondent  had  inflicted injuries without  undue advantage  and acted  in a  cruel or injuries with  a gandasa on the head, it is implicit that he had taken  undue advantage  and acted  in a cruel or unusual manner in  inflicting four heavy blows on the head resulting in death  of Santokh  Singh. Under  these circumstances, the learned Sessions  Judge as  well  as  the  High  Court  have committed grave  error of  law in  applying Exception  4  to Section 300  IPC  and  giving  the  respondent  the  benefit holding it   to  be an  offence of  culpable  homicide.  The conviction by  the courts below under Sections 304 IPC, Part I, therefore,  is set  aside. The  offence is  one of murder punishable  under  Section  302  IPC  and  accordingly,  the respondent is  convicted of  the offence and is sentenced to undergo imprisonment for life under Section 302 IPC.      The appeal  is accordingly allowed.