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PETITIONER: JANGEER SINGH & ORS.

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       26/08/1998

BENCH: M.K. MUKHERJEE, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T D.P. Wadhwa, J.      Appellants jangeer  Singh and  Harbans Singh have filed this appeal  against the  judgment of  the Division bench of the Rajasthan  High court  convicting the  appellant Jangeer Singh for  an offence under section 326 read with Section 34 Indian Penal  Code (for  short ’IPC’)  and appellant Harbans Singh under  Section 302  IPC. While  Harbans Singh has been sentenced to  imprisonment for  life and a fine of Rs. 200/- and in  default thereof  to undergo  simple imprisonment for two months,  Jangeer Singh  has been  sentenced  to  undergo rigorous imprisonment  for three  years and to pay a fine of Rs. 200/-  and in  default of  payment of  fine  to  undergo simple imprisonment for two months.      Both the  appellants were  tried by the Sessions Judge; Sriganganagar, for  an offence  under Section  302 read with Section 34  IPC. Sessions Judge, however, acquitted both the appellants. Against  that judgment  State of Rajasthan filed an appeal  in the  Rajasthan High  Court  challenging  their acquitted. By  the impugned  judgment High Court allowed the appeal  convicting   and  sentencing   the   appellants   as aforesaid.      On report  lodged with  the police  by  Kashmir  Singh, brother of  deceased Jeet  Singh, case  under Section 302/34 IPC was  registered against  the appellants.  The report was lodged at  9.45 p.m.  on November  9,  1981  within  fifteen minutes of the occurrence. The appellants were prosecuted on the allegation  that on  November 9, 1981 at about 9.20 p.m. Jeet Singh along with Balvindra Singh and Narendra Pal Singh was going  to his  house. On  the way  he passed through the house of  the appellants.  At that  time both the appellants were standing  in front  of the gate of their house and they called out  Jeet Singh  to go  to them. When Jeet singh went near them  the appellants  got hold of him and told him that he had got the jeep repaired from them but did not make full payment of  the repairing  charges and  yet he was raising a dispute and  that the  appellants would  teach him  a lesson that day.  It is  alleged that  appellant Harbans  Singh was holding a  ’barchha’ in  his hand  and  he  started  causing injuries  to   Jeet  Singh  while  appellant  Jangeer  Singh

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continued holding  Jeet Singh.  Balvindra Singh and Narendra Pal Singh,  who appeared  as prosecution  witnesses and  had watched the  occurrence, rushed  to the  house of Jeet Singh and told  his brother Kashmir Singh as to what had happened. They said  that because  of fear  they did  not go  near the appellant while they were attacking Jeet Singh  and told his brother Kashmir  Singh as  to what  had happened.  They said that because  of fear  they did  not go  near the appellants while they  were attacking  Jeet Singh  as both of them were having weapons  in their  hands. Kashmir  Singh  along  with Balvindra Singh  rushed to  the house  of the appellants and saw that  Jeet Singh  was lying  dead in  the court-yard  of their house.  Post-mortem examination of the deceased showed that the suffered as many as 40 injuries, many of which were caused by  sharp edged  weapon and rest by blunt weapon. All injuries were  ante-mortem. According to Dr. M. P. Aggarwal, who examined  the dead  body of  Jeet Singh, two injuries on the body  of Jeet Singh  were sufficient to cause death of a person in  the normal course. In the opinion of Dr. Aggarwal death was  caused due  to bleeding  and shock  caused to the liver, stomach, kidney and intestines of the deceased.      The appellants  did not deny the death of Jeet Singh in their house  on the  fateful day.  Their defence was that on that day at about 8.00 p.m. appellant Harbans Singh took his bath and  was preparing  to take  dinner. Appellant  Jangeer Singh   at that  time was lying on the cot and was listening to the  news on  the radio.  They heard the cry of Balvindra Kaur, wife  of the  appellant Harbans Singh, who was working outside the  house, calling  for help  and shouting "bachao, mer izzat  loot lia hai". On this Harbans Singh came out and saw that Jeet Singh was holding his wife and was putting his hands over  her breasts  and was  touching his face with her face. Harbans  Singh tried  to separate  them on  which Jeet Singh slapped  him 3-4  times. Harbans  Singh also  gave him slap and  fight between the two started. Jangeer Singh tried to separate  them but was unsuccessful. According to Jangeer Singh he  rushed to  the police station and when police came there he and Harbans Singh were taken to the police station. As per version of Harbans Singh come tools were lying in the nearby straw room and he picked up one tool and then stabbed Jeet Singh.  First he  stabbed Jeet Singh 2-3 times and then he lost his senses and stabbed him number of times. When the police arrested them it also took away the weapon with which Jeet  Singh   was  killed  by  Harbans  Singh.  Presence  of Balvindra Singh  and Narendra  Pal Singh  at the time of the incident was denied by the appellants.      Prosecution  case   depended  on   the  statements   of Balvindra Singh  (PW-1), Narendra  Pal Singh (PW-2), Kashmir Singh  (PW-5),   Dr.  M.   P.  Aggarwal   (PW-6)   and   the investigating officer,  Jai  Narayan,  SHO  (PW-8).  Learned sessions Judge  did not  give credence  to  the  prosecution person. He  did not  accept the  presence of Balvindra Singh and Narendra  Pal Singh  at the  site  and  said  they  were interested witnesses.  He held  that injuries  caused to the deceased Jeet Singh were given by the appellants in the heat of passion.  According to  him the  situation  of  the  case possibly tallied  with the  case of self-defence and in fact stood  corroborated   with  the   prosecution  version.  he, therefore, held  that the prosecution had not proved that it was a  case beyond doubt and possibility could not  be ruled out that  Harbans Singh  caused the  death of  Jeet Singh in grave and sudden provocation. Giving benefit of doubt to the appellants, Sessions Judge acquitted them.      High Court,  in the  impugned  judgment,  noticed  that there were  following 11  factors which  lead  the  Sessions

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Judge to  come to the conclusion that the prosecution failed to prove  the charge  against the  accused appellants beyond all reasonable doubt:      " (i)  Narendra Pal Singh being the      resident of  village  14-0  had  no      reason to  be  present  in  village      Karanpur of  the deceased  and  the      appellants;      (ii) Both  these witnessed  did not      try to  intervene in the occurrence      and they  even did  not  shout  for      help;      (iii)  Narendra   Pal   Singh   and      Balvindra Singh  did not  accompany      kashmir   Singh   to   the   police      station;      (iv) The  witnesses have  not  been      able to  state as  to what was done      by Jeet  Singh to save himself when      both the  accused  caught  hold  of      him;      (v) Jeet Singh also sustained blunt      weapon  injuries   but   both   the      witnessed did not explain as to how      he  happened   to   receive   those      injuries;      (vi) The F.I.R. was not sent to the      Magistrate  immediately  after  its      registration and  was sent  on  the      second day which shows that the FIR      was ante timed and ante dated after      introducing  two   persons  as  eye      witnesses;      (vii) There  was no adequate motive      for  the   accused  to  commit  the      murder of Jeet Singh;      (viii)  Narendra  Pal  Singh,  Jeet      Singh and  kashmir  Singh  all  the      three  are   drivers  and  as  they      belong to  one  special  fraternity      and  had   reason  to   give  false      statement;      (ix)  Balvindra  Singh  had  served      Harbans Singh,  accused and  he was      removed by  the accused (which fact      the  witnesses   had  denied)  and,      therefore,  Balvindra   Singh   had      animus against them;      (x) Accused  Jangeer  Singh  is  70      years  old  and  it  could  not  be      possible for  him to  keep a  young      man of 22 years of age in holding;      (xi) The  fact that  Jeet Singh was      murdered brutality  indicates  that      there was  immediate provocation to      the accused  and this  fits in  the      defence version  that the  deceased      was molesting  the wife  of accused      Harbans Singh."      High Court  considered each  of the  above grounds  and disagreed with the reasoning given by the Sessions Judge for disbelieving the  evidence of the two witnesses and throwing out the  case of  the prosecution.  We agree  with the  High Court that  there was  nothing unnatural  in the  conduct of both the  eye witnesses  and their  evidence could  not have

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been discarded  by  the  Sessions  Judge.  High  Court  also commented adversely  on the  reasoning of the Sessions Judge in disbelieving  the evidence  of Kashmir  Singh and that of the Investigation  Officer. FIR  in  this  case  was  lodged without any  loss of time and the names of the eye witnesses find mention  in that.  The police  moved immediately in the matter, arrested the accused and took possession of material evidence.      High Court  has rightly  held that  the defence version does not  appeal to  the reason. Appellants in their defence had  examined  Balvindra  Kaur  (PW-1),  wife  of  appellant Harbans singh,  whose honour was allegedly being violated by the deceased Jeet Singh and had shouted to that effect. Jeet Singh was  repeatedly stabbed and mercilessly beaten. Out of 40 injuries,  which he  suffered, 30  were caused  by  sharp edged weapon. It was a brutal attack on him.      High Court considered law laid by this Court as to when it should  interfere in  the case  of acquittal by the trial court. Considering  the  relevant  facts  and  law  on  this subject High  Court found  that judgment  of the trial court was perverse  and set aside the same. It then considered the question as to whether Jangeer Singh was also liable for the act of  the Harbans  Singh and if so to what extent and held that there  was no  clear evidence that all the time Jangeer Singh   was holding Jeet Singh he in any way facilitated the murder. High  Court was  of the  view that  it  was  Harbans Singh, who  had called  Jeet Singh  at the door of his house while standing along with Jangeer Singh. Both the appellants caught hold of Jeet Singh and said that they would teach him a lesson. when Jeet Singh was called by Harbans Singh he was having a  ’barchhi blade’  in his  hand which  fact  Jangeer Singh   knew. High Court was, therefore, of the view that it could safely  be presumed  that both  the appellants  shared common intention  of at  least causing grievous hurt to Jeet Singh and  that it  was difficult to hold that the appellant Jeet Singh had shared common intention to cause the death of Jeet Singh.  Thus considering  the role  played  by  Jangeer Singh  High Court said that he could be convicted only under Section 326 read with Section 34 IPC.      Circumstances enumerated by the trial Judge in throwing overboard the  case of  the prosecution are not correct. His examination  of  the  evidence  appears  to  be  rather  too superficial. Narendra  Pal Singh    (PW-2)  though  was  not resident of the village of the appellants and Jeet Singh but he explained  his presence  in that  village along  with the deceased Jeet  Singh at  the relevant  time. He  said he had gone to  Ganganagar to  collect money  from one Diwan Chand, which money  he was  required to pay to Dilawar Singh of the village Karanpur  of the  appellants. Since  Diwan Chand did not make any payment Narendra Pal Singh got down at Karanpur from bus  in order  to inform Dilawar Singh that money could not be  arranged. He  said while  he was  returning  to  his village, which is five kilometers away, he met Jeet Singh on the way.  Jeet Singh asked him to accompany him to his house and offered  him to  drop him  to his village in his jeep as night had  already fallen.  He was  subjected  to  searching cross-examination but his testimony could not be shaken. One of the  circumstances on  the basis  of which  statement  of anther eye  witness Balvindra Singh was rejected was that he had worked  as an  employee of  appellant Harbans Singh, who had removed  him from  the service  and thus  he got  animus against the  appellants. Balvindra  Singh denied that he was removed from  the service  and said that he voluntarily left the service.  Presence of  Balvindra Singh  and Narendra Pal Singh (PWs) along with Jeet Singh and their all going to the

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house of  Jeet Singh  was quite  natural. It  is not the law that if witnesses belong to same trade they would make false statements. Eye witnesses have explained their conduct as to why they  did  not  intervene  when  Jeet  Singh  was  being stabbed. They  said that  they were too afraid to do so when appellants were  holding weapons  in their  hands. We do not think circumstances  enumerated by  the learned  trial Judge either singly  or cumulatively are enough to throw any doubt on the  veracity of  the statements of the eye witnesses and that of Kashmir Singh, the informant.      Appellants do  not deny  that Jeet  Singh was killed in their House.  They admit  that Harbans  Singh  done  him  to death. In  their defence  in causing death of Jeet Singh and then shifted their stand to contend that death was caused by Harbans Singh  due to  grave and sudden provocation given by Jeet Singh.  Section 100  IPC entails the circumstances when right of  private defence  of the  body extends  to  causing death. this section is as under :-      "  100   .  The  right  of  private      defence of  body extends, under the      restrictions  mentioned   in   last      preceding section, to the voluntary      causing of  death or  of any  other      harm  to   the  assailant,  if  the      offence   which    occasions    the      exercise of  the right be of any of      the     description     hereinafter      enumerated, namely:-      Firstly -  Such an  assault as  may      reasonably cause  the  apprehension      that death  will  otherwise  b  the      consequence of such assault;      Secondly -  Such an  assault as may      reasonably cause  the  apprehension      that grievous  hurt will  otherwise      be the consequence of such assault;      Thirdly  -   An  assault  with  the      intention of committing rape;      Fourthly  -  An  assault  with  the      intention of  gratifying  unnatural      lust;      Fifthly  -   An  assault  with  the      intention    of    kidnapping    or      abducting;      Sixthly  -   An  assault  with  the      intention of wrongfully confining a      person  under  circumstances  which      may   reasonably   cause   him   to      apprehend that he will be unable to      have   recourse   to   the   public      authorities for his release."      It is  not the case of the defence that the assault was made on  Balvindra Kaur  by Jeet Singh with the intention of committing rape. No suggestion to that effect has been made. There, therefore,  could not be any right of private defence to cause death of Jeet Singh. It was then submitted that the case of  the appellants would fall under the first exception of Section 300 IPC. This exception is as under:-      "  Exception  1.  -  When  culpable      homicide is  not murder. - culpable      homicide  is   not  murder  if  the      offender, whilst  deprived  of  the      power of  self control by grave and      sudden  provocation,   causes   the      death of  the person  who gave  the

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    provocation or  causes the death of      any  other  person  by  mistake  or      accident.      The above  exception is subject too      the following provisions:-      First- that  the provocation is not      sought or  voluntarily provoked  by      the  offender   as  an  excuse  for      killing  or   doing  harm   to  any      person.      Secondly- That  the provocation  is      not  given   by  anything  done  in      obedience  to  the  law,  or  by  a      public  servant   in   the   lawful      exercise  of  the  powers  of  such      servant.      Thirdly-That the provocation is not      given  by   anything  done  in  the      lawful exercise  of  the  right  of      private defence.      Explanation-      Whether       the      provocation was  grave  and  sudden      enough to  prevent the offence from      amounting to  murder is  a question      of fact."      The question  that arises  for consideration  is if the evidence shows  that when  wife of  Harbans Singh  was being molested by  jeet Singh  could that  cause grave  and sudden provocation for Harbans Singh to be deprived of the power of self-control  to  cause  death  of  Jeet  Singh.  The  story narrated by  Balvindra Kaur  (DW-1) does  not appear  to  be probable that  Jeet  Singh  had  come  to  their  house  and molested her.  Balvindra kaur said that they were having two cows which had been tied outside and about 8.00 p.m. she had gone out  to bring the cows inside. She said she hardly took two or  three steps  from the  gate of  her house when a man came and caught her all of a sudden and his intention was to molest her.  Then she started shouting. On hearing her cries Harbans Singh  came there and tried to release her from that man and  then they  slapped each  other. She  said when  her husband came  out that  man was  still holding  her and  was putting his  hands over  her breasts  and touching  her face with his  face. At that time she felt smell of liquor coming out of  the mouth  of that man. medical Report does not show that Jeet  Singh had  taken any drink. There was, therefore, no question  of any smell of liquor coming out of his mouth. It is  also not  probable that  Jeet Singh would be standing there waiting  for Balvindra  Kaur to  come out  and then to molest her,  parti ularly when her husband was in the house. That apart assuming what Balvindra Kaur said is true was the provocation given  by Jeet  Singh so  grave and sudden as to cause Harbans  Singh to  lose his self-control and senses to commit murder of Jeet Singh.      In Aher Raja Khima vs. State of Saurashtra (AIR 1956 SC 217) the appellant had repudiated his confession. He offered explanation as  to  in  what  circumstances  confession  was given. This Court said:-      " Now  it may  be possible  to take      two views  of  this  statement  but      there are  two important factors in      every  criminal  trial  that  weigh      heavily in  favour  of  an  accused      person; One  is that the accused is      entitled to  the benefit  of  every      reasonable doubt  and the other, an

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    off-shoot of  the  same  principle,      that when  an accused person offers      a  reasonable  explanation  of  his      conduct,  then,   even  though   he      cannot prove  his assertions,  they      should   ordinarily   be   accepted      unless the  circumstances  indicate      that they are false."      We have examined the conduct of the appellants from the stand point  of a  reasonable man  if he would have acted in the same  manner as  Harbans Singh  did. We do not think so. circumstances do  not even  remotely  suggest  that  Harbans Singh could have possessed such uncontrollable impulse as to lose self-control  to repeatedly  stab Jeet  Singh and  kill him. From  the evidence  on record  we do not think that any other view  is possible  except to  hold that the appellants are guilty  of the crime alleged against them. Circumstances clearly indicate  that explanation offered by the appellants is palpably  false. Here  we apply the principles set out by this Court in Aher Raja Khima’s case. It cannot be said that death of  Jeet Singh  was caused due to any grave and sudden provocation given  by him  so as to deprive Harbans Singh of the Power  of self-control. Defence set up by the appellants is not true. Case of the appellants is not true. Case of the appellants does not fall in any of the exceptions to Section 300 IPC.  High court has given due consideration to the view of the  trial court  in coming  to the  conclusion that  its appreciation of  evidence was rather perverse and it wrongly acquitted the appellants. We agree with the High Court.      We, therefore,  do not  see merit  in this  appeal  and dismiss the same.