Santokh Singh vs State Of Punjab

Santokh Singh ..Appellant

Versus

State of Punjab ..Respondent

JUDGMENT

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 2 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

3 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

4 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

6 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

7 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 10 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

11 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.

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

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

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