SANTOKH SINGH v. STATE OF PUNJAB

Citation: [2009] 2 S.C.R. 412

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, MUKUNDAKAM SHARMA

Case summary

SANTOKH SINGH v. STATE OF PUNJAB.pdf

Judgment text

[2009] 2 S. C. R. 412 SANTOKH SINGH v. STATE OF PUNJAB Criminal Appeal No. 285 of 2009 FEBRUARY 12, 2009 (DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ) _.. _. Penal Code, 1860: s. s. 300, Exception 4, 302, s. 304(part I) and ss. 97 and 100 - On a dispute regarding land, accused fired at his opponent leading to his death - Accused also received firearm injury from his own weapon - Plea of right of private defence - Rejected by trial court- Conviction u/s 302 affirmed by High Court - HELD: Trial court and High Court correctly ,.. held that it was not a case ofright ofprivate defence - However, .... conviction altered from s. 302 to s. 304 (part-I) with a sentence · of 10 years imprisonment. The appellant and his wife were prosecuted for murder. The prosecution case was that on a dispute regarding certain agricultural land, the appellant fired a shot from his pistol at his opponent (who later succumbed -4 to his injuries in the hospital).

The appellant was ·~ overpowered by a witness and in the process a shot from the pistol also hit the appellant himself. The trial court convicted the appellant of the offence charged and acquitted his wife. The plea of right of private defence raised on behalf of the convict on the premise that the land in question was in his possession, was rejected by the High Court, and the conviction was upheld. ...... ~ "-. - In the appeal filed by the accused, besides reiterating ' the plea of right of private defence, it was alternatively pleaded for the appellant that, in any event, the case was STATE OF PUNJAB covered by Exception 4 to s. 300 IPC and, as such, he could not have been convicted and sentenced u/s 302 IPC. Allowing the appeal in part, the Court HELD: 1. 1 So far as the question of possession of the land in dispute is concerned, the High Court did not find any substance in the plea it was in possession of the / appellant. [para 6] [418-A, B] + 1.

2 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 probabilise the version of 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 very important circumstance. But mere non-explanation of the injuries by the /> prosecution may not affect the prosecution case in all cases. [para 8] [418-C, D, E] )- .... Lakshmi Singh v. State of Bihar AIR 1976 SC 2263 referred to. 1.

3 To claim a right of private defence extending to voluntarily 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. No evidence much less cogent and credible was adduced in this regard. 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. [para 8 and 11-12] (419-C, D; 420-8, C] Jai Dev v. State of Punjab AIR 1963 SC 612; 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 - referred to. \ 2. As regards the applicability of Exception 4 to s.

300 + IPC, 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. Heat of passion requires that there must be no time for the passions to cool down. In the instant case, "Jf.. ..... _ the parties have worked themselves into a fury on account of the verbal altercation in the beginning. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. Considering the background facts, there is substance in the plea that the occurrence took place in the course of a sudden quarrel. Accordingly, the conviction is altered from s. 302 IPC to s. 304 Part I IPC. Custodial sentence of ten ~ years would meet the ends of justice. [para 13-14 and ...... 16] (420-D; 421-D, E; 422-B, C] Kikar Singh v.

State of Rajasthan AIR 1993 SC 2426 distinguished. Case Law Reference AIR 1976 SC 2263 referred to para 8 I AIR 1963 SC 612 referred to para 9 . _.. - 2003 (2) sec 661 referred to para 10 2003 (7) sec 643 referred to para 10 AIR 1993 SC 2426 distinguished para 15 SANTOKH SINGH V. STATE OF PUNJAB 415 CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 285 of 2009 From the final Judgement and Order dated 27. 2. 2008 of the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 99-08 of 1999. 8 J. L. Gupta, Nidhi Gupta, Tapun Gupta and S. Janani, with him for the Appellant. I .. , Ranjit Kapoor, Addi. A. G. , Vikas Pahwa and Kuldip Singh, with him for the Respondent. The Judgement of the Court was delivered by OR. 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 wa~ 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 j 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 Singh appellant and Gurdip Singh. After they had been separated, Gurdip Singh came home, took his tractor to the ... " I land and started ploughing it. Gurdial Singh watched Gurdip ~ Singh ploughing while standing on the track.

Then, appellant i- Santokh Singh along with his wife Gurjit Kaur appeared on the I 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 • 4. 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 23. 6. 1996, Gurdial Singh (informant) handed over one 32 bore pistol (which had 4-' 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. J... 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 IOA), i ,. , 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 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 rfght 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. 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 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 (Al R 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 Jnjury 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 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. 10. The above position was highlighted in Rizan and Another vs. State of Chhattisgarh, through the Chief Secreta[Y, Govt. of ) . ;"' Chhattisgarh, Raigur, 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. 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. -~ --- -. 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 ~- - .. _ being so the conviction is altered from Section 302 IPC to 304 ~ "" i )-- Part I IPC, custodial sentence of ten years would meet the ends C ofjustice. 17. The appeal is allowed to the aforesaid extent. R. P. Appeal party allowed. ')'- . l ..