Iqbal Singh Vs. State
of Punjab [2008] INSC 1399 (21 August 2008)
Judgment
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 State of
Punjab ...Respondent With CRIMINAL APPEAL NO.1322 OF 2008 (Arising out of SLP
(Crl.) No. 2844 of 2007)
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
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 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 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 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 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 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 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
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 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.
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