Iqbal Singh vs State Of Punjab

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

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