Holding

The Court held that the appellant was not entitled to claim private defence but the incident fell within Exception 4 to s.300 IPC, warranting conviction under s.304 Part I.

Summary

Santokh Singh and his wife were tried for murder after a land dispute in which Santokh fired a pistol at Gurdip Singh, causing his death, and was also injured when his arm was twisted during the altercation. He claimed the right of private defence, arguing he possessed the disputed land, but the trial court and High Court rejected this plea and convicted him under s.302 IPC. On appeal, the Supreme Court examined whether the facts established a right of private defence and whether Exception 4 to s.300 IPC applied. The Court held that the appellant failed to prove a reasonable apprehension of danger and thus could not rely on private defence, but the incident qualified as a sudden quarrel, invoking Exception 4, thereby reducing the offence to culpable homicide not amounting to murder under s.304 Part I. The conviction was altered and a ten‑year imprisonment sentence imposed.

Issues considered

The appellant's claim of right of private defence under s.97, s.100 IPC.
Whether the facts satisfy Exception 4 to s.300 IPC, justifying reduction of murder to culpable homicide.
Whether possession of the disputed land establishes a right of private defence.
Whether injuries sustained by the accused create a presumption of private defence.

Legislation cited

Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 105, s. 106, s. 300, s. 302, s. 304(Part I), s. 96, s. 97, s. 98, s. 99

Subjects

right of private defencemurderculpable homicide not amounting to murderException 4 to s.300 IPCsudden quarrelland disputeconviction alteration

Judgment

[2009] 2 S.C.R. 412

A SANTOKH SINGH
v.
STATE OF PUNJAB
Criminal Appeal No. 285 of 2009
FEBRUARY 12, 2009
B
(DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ) _.._.

Penal Code, 1860:

c 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 fire-
arm 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 ,..
D
held that it was not a case of right of private 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
E 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
to his injuries in the hospital). The appellant was -4

·~
overpowered by a witness and in the process a shot from
F 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.
G ......~
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

H 412
SANTOKH SINGH V. 413
STATE OF PUNJAB

covered by Exception 4 to s. 300 IPC and, as such, he A
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 B
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
c
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.
D
~
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.
E
/>
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. F
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 G
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 H
\
414 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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,
B 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
c 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
D 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.
E 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 ......
F 16] (420-D; 421-D, E; 422-B, C]
Kikar Singh v. State of Rajasthan AIR 1993 SC 2426 -
distinguished.
Case Law Reference

G
AIR 1976 SC 2263
AIR 1963 SC 612
2003 (2) sec 661
2003 (7) sec 643
referred to
referred to
referred to
referred to
para 8
para 9
para 10
para 10
._.. -
I

H
AIR 1993 SC 2426 distinguished para 15
SANTOKH SINGH V. STATE OF PUNJAB 415

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal A
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.
c
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 D
>- 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. E
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 F
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
G

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
H
416 SUPREME COURT REPORTS [2009] 2 S.C.R.

A (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
B 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
c 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
D 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,
E 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
F 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
G 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.
- 4-'

H
SANTOKH SINGH V. 417
STATE OF PUNJAB [DR. ARIJIT PASAYAT J.]

J... The prosecution presentation is, thus, to the effect that it A
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), B
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). c
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 .
D

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
E
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
F
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 G
~

"'-· 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.
H
418 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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.
B
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
. ),

c 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
D 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.
E
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
F
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
G 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
H
SANTOKH SINGH V. 419
STATE OF PUNJAB [DR. ARIJIT PASAYAT J.]

subject-matter of right of private defence. The plea of right A
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 B
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 c
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
D
>.- 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
E
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
F
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
G
) 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 H
420 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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
B 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
c 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
D
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
E 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 ~

F 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
G
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.
H
SANTOKH SINGH V. 421
STATE OF PUNJAB [DR. ARIJIT PASAYAT J.]

).. For if it were so, the Exception more appropriately applicable A
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 B
then mutual provocation and aggravation, and it is difficult to
apportion the share of blame which attaches to each fighter.
y
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 c
,
1 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
D
,>-.
~
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 E
fact and whether a quarrel is sudden or not must necessarily
depend upon the proved facts of each case. For the application
~-
<
•tr 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 F
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
G
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
H
• t=

422 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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
8 appellant cannot be said to have exercise the right of private F
defence. However, there is substance in the plea that the I
occurrence took place in the course of a sudden quarrel. That >-.._
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 of justice.
17. The appeal is allowed to the aforesaid extent.

R.P. Appeal party allowed.

')'-

..
.l