REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1321 OF 2008 (Arising out of SLP (Crl.) No. 1733 of 2007)

Iqbal Singh …Appellant

Vs.

State of Punjab …Respondent

With

CRIMINAL APPEAL NO.1322 OF 2008 (Arising out of SLP (Crl.) No. 2844 of 2007)

J U D G M E N T

Dr.  ARIJIT PASAYAT, J.

1. Leave granted.

2. These appeals are directed against the judgment of

1

a Division Bench of the Punjab and Haryana High

Court  whereby  an appeal  and a  criminal  revision

were disposed of.  The appellants were found guilty

of offence punishable under Sections 302, 324 and

323 read with Section 34 of the Indian Penal Code,

1860 (in short the ‘IPC’) and sentenced to undergo

various terms of  sentences.   The  Criminal Appeal

was  filed  by  three  appellants  questioning  the

conviction and sentence as recorded.  Complainant

filed a revision petition stating that she was entitled

to compensation.

3. Background  facts  giving  rise  to  the  trial  are

essentially as follows:

The  complainant and the  appellants  are  first  cousins,

and  as  such  are  closely  related  to  each  other.  Their

grandfather was Roor Singh. As per site plans Ex. PP prepared

by  Makiat  Singh,  Patwari  PW4  and  Ex.  PT  prepared  by

Sukhchain  Singh  PW9  (I.0.),  it  shows  that  the  place  of

occurrence  was  in  the  common  land  owned  both  by  the

2

appellants and the complainant party. The tubewell of which

the pipes were being taken out by the appellants, was also in

the  common  piece  of  land.  Sikander  Singh  (hereinafter

referred  to  as ‘deceased’)  was standing in the  water-course

point B (Ex.PT). Complainant Gursewak Singh was standing in

the  common  land  Point  C  (Ex.PT)  and  Bhim  Singh  was

standing at Point D (Ex. PT). It is the appellants who went 16

to 35 feet towards the complainants where deceased Sikander

Singh and the other two witnesses Gursewak Singh (PW6) and

Bhim  Singh  (PW7)  were  standing  and  thereafter  attacked

them. Gursewak Singh (PW6) asked the appellants not to take

out the iron and plastic pipes of the tubewell, but firstly to talk

to  the  elders.  Malkiat  Singh,  Patwari  (PW4),  who  is  a  key

witness in regard to the ownership of the piece of land where

the tubewell was installed, was not put any question regarding

the ownership of the common land.

Gursewak  Singh  (PW6),  in  his  testimony  before  the

Court, stated that the appellants on 7.1.2001 at about 1.00

P.M.  armed  with  spades  came  to  the  tubewell  and started

removing  the  pipes,  which  was  jointly  owned  by  both  the

3

appellants  and  complainant  party.  On  being  stopped,  the

appellants felt offended  and attacked the complainant party.

He  (PW6)  has  further  stated  that  there  was  no  dispute

regarding the joint property, but the appellants were  not on

visiting  terms  with  them  as  far  social  functions  were

concerned.   Sikander  Singh was attacked  in the  joint water

channel and across the water channel there  was the field of

Gurpiar  Singh,  father  of  Iqbal  Singh.   After  leaving  the

common pipes of land where the tubewell was installed, rest

of  the  land had been  divided  by both the  parties  and they

were  cultivating  the  land  separately  and  peacefully.  The

complainant party did not have any weapons in their hands

when they had gone to stop the appellants. This witness (PW6)

has stated that they did not go near the appellants, but asked

them not to remove the pipes. They were at that time standing

at  a  distance  of  5-6  karms.   Bhim  Singh  (PW7)  has  also

reiterated the same. Gursewak Singh (PW6) has stated, that

Balbir Singh and Hamir Singh have their fields at a distance of

about  half  a kills from the  place  of  occurrence.  Both these

witnesses  Gursewak  Singh  (PW6)  and  Bhim  Singh  (PW7)

corroborate each other inter-se and also corroborate the FIR

4

Ex. PQ/1.

The  medical  evidence  also  corroborates  the  statements

given by the eye witnesses. Dr. Deepak Rai (PW 1) has stated

in his testimony, that on examining Gursewak Singh he found

that he had received one incised wound injury on the scalp

left  parietal area vertical in position. Similarly on examining

Bhim Singh, he found the first injury to be an incised wound.

Second  and third  were  abrasions  on  the  left  shoulder  and

neck.  The fourth injury was a lacerated wound on the  right

parietal  area  of  scalp.  On  the  post-mortem  conducted  on

Sikander Singh, an incised wound was found on the parietal

area  of  the  scalp,  about  12  cms  from  right  ear  pinna

backwards, traversing part of left parietal area of scalp to left

occipital area.  The medical evidence  corroborates the  ocular

account.

4. Trial court took note of the fact that the appellants

and the  members  of  the  complainant party are  related  to

each other closely.  The dispute arose because of conflicting

claims as to the  ownership of the  land.  It was submitted

5

that the  occurrence  took place  when the  members  of  the

complainant  party  came  forward  and  obstructed  the

appellant  from doing  the  work  and  restrained  them  from

pulling out the pipe.  There was exchange of hot words and

in the process, the occurrence, according to the prosecution,

took place.   In essence  it was submitted that the accused

were  exercising  the  right  of  private  defence  or  in  the

alternative  the  occurrence  took  place  in  the  course  of  a

sudden  quarrel  and  therefore  Section  302  IPC  has  no

application.

5. Stand of the State was that though there appears to

be some exchange of words that cannot take out the case out

of the application of Section 302 IPC.  The trial court found

substance in the plea and found the accused persons guilty.   

6. Before  the  High  Court  it  was  submitted  that  the

factual scenario  has not been  correctly  appreciated  by the

trial court.  The plea relating to non-applicability of Section

302  IPC was reiterated.   The  High Court did  not find any

substance.  It noted that the appellants pulled out the iron

6

and plastic  pipes  which were  installed  on the  land jointly

owned by both the parties.  Since the accused persons pulled

out  the  pipes  it  was  natural  that  the  members  of  the

complainant party who were standing at a distance of 16 to

35 feets from the appellants intervened and  asked them not

to pull out the  pipes unless the elders take a decision.  The

appellants did not pay any heed.  That being so the case at

hand was covered by Section 302 IPC.

7. Learned  counsel  for  the  appellants  reiterated  the

stand taken before the trial court and the High Court.

8. Learned  counsel  for  the  State  supported  the

judgments of the trial court and the High Court.

9. The  substantive  plea  relates  to  the  applicability  of

Exception 4 of Section 300 IPC.

10. 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

7

without the offender having taken undue advantage and not

having acted in a cruel or unusual manner.

11. 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

8

provocation,  nor  in  such  cases  could  the  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

9

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

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’.     

12. 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

10

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

he had taken undue advantage.   

13. From  the  background  facts  as  considered  in  the

light of  the  evidence,  the  inevitable  conclusion is that the

occurrence took place in course of sudden quarrel, therefore,

Exception  4  to  Section  300  IPC  applies.   The  appropriate

conviction would be under Section 304 Part-I  IPC.  Custodial

sentence of 10 years would meet the ends of justice.

14. The appeals are allowed to the aforesaid extent.  

                         …………………….....................J.            (Dr. ARIJIT PASAYAT)              

      …… ……………………...............J.

 (Dr. MUKUNDAKAM SHARMA) New Delhi,      August 21, 2008

11