CRL.A. NO.      OF 2010 @ SLP(CRL.) 3244 OF 2009                                                                         REPORTABLE 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1670 OF 2010 [ARISING OUT OF SPECIAL LEVE PETITION (CRL.) NO. 3244 OF 2009]

 KAMAL SINGH  ..... APPELLANT

VERSUS

STATE OF HARYANA  ..... RESPONDENT

O R D E R

1. Leave granted.

2. Ten persons in all, Kamal Singh the appellant  

herein and his brothers, Randhir Singh, Attar Singh &  

Baljeet Singh, Anees, son of Attar Singh, Ramrati wife  

of Kamal Singh, Maya wife of Attar Singh and Urmila  

wife  of  Baljeet  Singh  along  with  two  others  were  

brought  to  trial  for  offences  punishable  under  

Sections  148,  302,  307,  149  for  the  first  eight  

persons and for the other two under Sections 420, 467,  

468, 471, 120B and 200 of the IPC.  Of the ten persons  

aforesaid, only Kamal Singh, the appellant was armed  

with a licensed shot gun which is the alleged murder  

weapon.  As per the prosecution story, Wazir Singh,  

P.W. 7, resident of Village Khatiwas had two sons Phul

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Kumar deceased and Anil Kumar, whereas Sumer Singh,  

Rakesh and Chhatar Singh were the brothers of Wazir  

Singh.  A piece of shamlat land in front of the house  

of Rakesh, Ramesh and Sumer Singh, was being used by  

the latter to tether his cattle.  Kamal Singh's house  

was also close by.  On the 9th of May, 2002, Manti,  

wife of Rakesh was tethering her cattle in this plot  

of  land  when  Ramrati  accused  hit  a  buffalo  with  a  

stick  and also warned Manti not to tie the cattle at  

that place. A quarrel soon ensued  but the matter was  

ultimately settled.  On the 10th of May, 2002 i.e., on  

the  very  next  day,  at  about  6:00p.m.  the  appellant  

armed with his .12 bore licensed gun along with the  

other accused climbed up to the roof of his house and  

started abusing the complainant party.  Wazir Singh,  

Sumer Singh, Abhimanyu son of Sumer Singh, Phul Kumar,  

Maya Ram and Chhatar Singh  attempted to pacify him  

but without success. On the contrary, Randhir Singh,  

Baljeet Singh and Attar Singh raised a lalkara calling  

upon the appellant to sort out the other party once  

and for all.  The appellant thereupon fired a shot at  

Phul Kumar into the left side of his chest on which he  

fell down and as Randhir Singh and Chhattar Singh came  

forward  to  assist  Phul  Kumar,  the  appellant  again  

fired two shots hitting them as well.  All the accused

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also hurled brick bats and caused several injuries to  

the witnesses and as Maya Ram, Indrawati and Phulwati  

came  forward  to  rescue  the  injured,  the  appellant  

again fired from his gun hitting them as well.  On  

hearing the sound of the gun shots a number of persons  

rushed to the spot on which all the accused came down  

from the roof and ran away. They also found that Phul  

Kumar  and  Maya  Ram  had  died  of  their  injuries.  

Chhattar Singh and Indrawati were, however,  shifted  

to the PGI, Rohtak whereafter Wazir Singh PW 7, lodged  

a report at police station  Sadar, Dadri.  Chhattar  

Singh also died a short time later.  The accused were  

arrested over several days and on the statement made  

by  the  appellant,  the  weapon  of  offence  i.e.,  his  

licensed shot gun along with some catridges was taken  

into  possession.   On  the  completion  of  the  

investigation, the accused were brought to trial.  The  

trial  court  relying  primarily  on  the  statements  of  

P.W. 7-Wazir Singh and PW 16 - Indravati and PW 17 –  

Ravinder, injured  and PW - 18 Umed Singh  convicted  

and sentenced  eight of the accused viz., Kamal Singh,  

Randhir  Singh,  Baljeet  Singh,  Attar  Singh,  Ramrati,  

Mayaram, Urmila and Anil for offences punishable under  

Sections 148, 302, 307 read with Section 149 of the  

IPC and also for the offence punishable under Section

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27  of  the  Arms  Act  with  respect  to  the  appellant.  

Urmila, Dr. Surya Prakash Singh and Ram Chander were,  

however, given the benefit of doubt and were acquitted  

of all charges levelled against them.

3. An  appeal  was  thereafter  taken  to  the  High  

Court.  The High Court acquitted all but the present  

appellant on the plea that no injuries had been caused  

by any of them which revealed that their common object  

was not to cause the death of anybody and it also  

appeared that the entire family of the appellant had  

been  implicated  for  reasons  of  enmity.   The  plea  

raised  by  the  appellant  that  his  case  fell  within  

Exception  II  to  Section  300  was  repelled  for  the  

reason that there was no evidence to show that the  

conduct of the complainant party had resulted in some  

apprehension in his mind of serious injury at their  

hands and the story that he had been first attacked  

with brick bats and lathis could not be believed as he  

had no injuries on his person.   

4. Mr. Sushil Kumar, the learned senior counsel,  

has confined his submission only to the plea that the  

appellant had exceeded the right of private defence  

although it has also been submitted that as there was

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no charge under Section 302 simplicitor against the  

appellant,  he  could  in  fact  claim  an  outright  

acquittal.  The learned counsel has submitted that in  

the  circumstances  he  would  not  go  into  the  

technicalities of the matter and confine himself only  

to the benefit of Exception II to Section 300.  The  

learned counsel has brought to out notice the findings  

of the trial court in this matter which we reproduce  

hereunder:

“Moreover, defence taken by accused  Kamal Singh quits fanciful imaginary and  without any basis.  His defence is that  when he was coming back to his house and  was passing in front of the house of PW  Ramesh,  he  was  encircled  by  the  complainant  party.   Phul  Kumar  (since  deceased) tried to inflict lathi blow to  him and other PWs gave him beatings, then  in order to save himself, he fired a shot  upon  Phul  Kumar  from  his  gun,  then  he  rushed inside his house, closed the door  and  went  up  stairs.   The  complainant  party  then  broke  open  the  door  of  the  house and broke his window panes then he  fired shots only to scare them away.  But  accused Kamal singh was not having even a  scratch  on  his  person.   All  the  three  deceased persons and other three injures  Pws, were quite empty handed.  There is  nothing to presume that any one of them  was having any lathi or that Phul Kumar  tried  to  inflict  lathi  blow  to  Kamal  Singh.  In the circumstances, how Kamal  Singh would have right to kill Phul Kumar  by firing a shot from his licensed gun.  Even  if,  he  was  tried  to  be  inflicted  lathi blows, he could have used his gun  lathiwise from its butt side.  There is  also  nothing  on  record  to  prove  or  to  presume that doors or window panes of his  house were broken.  Moreover, had door of

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his house been broke open then, in all  probabilities  he  would  not  have  gone  unhurt.   Certainly  he  would  have  been  thrashed  very  well  by  so  many  persons.  Further, if he had gone to safe place,  then he had no right of self defence to  fire  shots  to  kill  other  two  accused  persons  and  to  cause  serious  fire  shot  injuries  to  other  Pws.   Certainly,  accused  Kamal  Singh  had  no  right  of  private defence.  Even if he was having,  he had certainly exceeded the same, as he  fired shot for killing as many as three  accused persons and for causing fire shot  injuries to other PWs.”

It has been pointed out that even as per the findings  

of the trail court a case of exceeding  the right of  

private  defence  was  clearly  made  out  and  the  

appellant, was therefore, liable to be convicted and  

sentenced  under  Section  304  Part  I  of  IPC  and  not  

Section 302 thereof.

5. Mr.  Rao  Ranjit,  the  learned  counsel  for  the  

State has however, pointed out that the very basis of  

the argument made by Mr. Sushil Kumar was lacking as  

there was no evidence to indicate that any attack had  

been made on the appellant as there were no injuries  

on his person and the story that the door of his house  

had  been  broken  by  the  complainant  party  was  

fallacious as there was no evidence to that effect.  

He  has,  further,  submitted  that  the  appellant  had,  

without  any  basis  and  without  any  apprehension  of

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injury, caused the death of three persons.

6. We  have  heard  and  considered  the  arguments  

advanced by the the learned counsel.

7. As  per  the  appellant's  defence  given  in  his  

examination under Section 313 Cr.P.C. he was returning  

from Siwani i.e. his place of employment and was going  

towards his house carrying his licensed gun and as he  

was  passing  by  the  house  of  Ramesh,  he  had  been  

encircled by the complainant party and at that time  

Phul Kumar had tried to give him a lathi blow on which  

he had fired one shot from his gun killing him.  He  

further stated that he had then run to his own house  

and  closed  the  door  but  the  complainant  party  had  

attempted  to  break  open  the  door  on  which  he  had  

rushed to the roof and fired several shots in self  

defence resulting in two deaths and some injuries to  

the witnesses as well.

8. In this situation we are called upon to examine  

which of the two theories is correct.

9. We notice that there are three deceased in this  

matter.  As per the admitted position  the injury on

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Phul Kumar had been inflicted from a very short range  

whereas the injuries to the others had caused from the  

roof of the house which would be 8 to 10 feet high.  

This fact is verifiable from the medical evidence as  

well.   The  post  mortem  examination  of  Phul  Kumar’s  

body  revealed  a  rat  hole  injury  1”  X  .75”  with  

inverted margins and tattooing and lacerations around  

it.  It is evident from this injury that the pellets  

had entered  the body  enmasse and had exited from  

injury  no.2   on  the  rear  side  of  the  body  as  the  

margins were everted.  The premise that the injury had  

been  caused  from  virtually  point  blank  range  is  

supported by the observations made in Modi’s Medical  

Jurisprudence  and  Toxicology,  Twenty  Third  Edition,  

under the  Chapter 'Injuries by Mechanical Violence'  

at pp.722:-   

“The  effects  produced  by  small  shot fired from a shotgun vary according  to the distance of the weapon from the  body, and choking device.  A charge of  small  shot,  fired  very  close  to,  or  within a few inches, of the body enters  in one mass like a single bullet making  a  large  irregular  wound  with  scorched  and contused edges, and is followed by  the gases of the discharge which greatly  lacerate and rupture the deeper tissues.  Particles of unburn power expelled from  the weapon behind the missile are driven  to some distance through the wound, and  some of them are found embedded in the  wound and the surrounding skin, which is  also singed and blackened by he flame  and smoke of combustion.  The exit wound

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of a close range shot may show greater  damage  of  tissues  that  he  entrance  wound,  the  margins  are  everted,  but  there is no evidence of blackening of  singeing.  At a distance of one to three  feet, small shots make a single aperture  with  irregular  and  lacerated  edges  corresponding in size to the bore of the  muzzle of the gun, as the shot enter as  one  mass,  but  are  scattered  after  entering  the  wound  and  cause  great  damage to the internal tissues. The skin  surrounding  the  wounds  is  blackened,  scorched  and  tattooed,  with  unburnt  grains of powder.  On the other hand, at  a  distance  of  six  feet,  the  central  aperture  is  surrounded  by  separate  openings in an area of about two inches  in diameter made by the few pellets of  the  shot,  which  spread  out  before  reaching the mark.  The skin surrounding  the  aperture  may  not  be  blackened  or  scorched,  but  is  tattooed  to  some  extent.  At a distance of 12 feet, the  charge of the shot spreads widely and  enters  the  body  as  individual  pellets  producing separate openings in an area  of  five  to  eight  inches  in  diameter  depending  on  the  choke,  but  without  causing  blackening,  scorching  or  tattooing of the surrounding skin.”

10. We further see that PW 12 Dr. U.S. Sisodia who  

had performed the post mortem examination on the dead  

body  also  opined  that  in  that  the  injury  No.  1  

appeared to have been caused by a single projectile  

from  a  very  close  range.   It  is  nevertheless  the  

admitted  position  that  the  weapon  used  by  the  

appellant was his licensed shot gun is even otherwise  

proved  as  pellets  had  been  recovered  from  the  dead  

body of Maya Ram.  The doctor, therefore, obviously

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mistook a shot fired from point blank range, as being  

from a single projectile.  When a comparison of the  

injuries on Phul Kumar's body with those on the dead  

bodies of the other two victims ie. Chhattar Singh and  

Maya Ram is made it stands revealed that they had been  

shot from a distance of 10 to 12 feet which is the  

appellant's  defence.   Admittedly,  in  the  case  of  

Chhattar Singh also  there appears to be blackening  

around the wounds but the distance is definitely much  

greater than that in the case of Phul Kumar as the  

dispersal  of  pellets  would  show.   Likewise,  in  the  

case of Maya Ram, there were multiple pellet injuries  

but  no  blackening  or  scorching  and  on  dissection  

several  pellets  had  been  located.   To  our  mind,  

therefore, the story projected by the appellant that  

the injury caused to Phul Kumar was at ground level  

and  from  a  very  short  distance  when  he  had  been  

attacked by him and that the injuries to the others  

had been caused when he had fired from the roof, is  

supported  by  the  medical  evidence.   There  is  yet  

another  circumstance which to out mind goes to the  

root of the matter.  The positive finding of the High  

Court is that the story that the accused party had  

gone  to  the  roof  and  thrown  brickbats  at  the  

complainant  party  was  incorrect  and  it  is  on  that

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basis that seven of the accused had been given the  

benefit of doubt and acquitted.  The photographs which  

have  been  produced  on  record  by  the  prosecution,  

however,  clearly show the presence of  a large number  

of brick bats lying around the house belonging to the  

appellant.   The  prosecution  story,  therefore,  with  

regard to the brick bats having been disbelieved, the  

possibility that the story projected by the appellant  

could be the correct one, cannot be ruled out.  We  

also notice from the record including, the FIR that  

there  is  no  reference  whatsoever  to  the  pelting  of  

stones by the accused.

11. In a matter relating to the right of private  

defence  or  exceeding  the  right  of  private  defence  

some element of guess work based on common experience  

has indeed to come into play and it is for that reason  

that the Courts have gone so far as to rule that even  

though an accused may not stake a claim to the right  

of  private  defence,  the  Court  can  still  give  the  

benefit if it emanates from the evidence.  In the case  

of a claim to the benefit of Exception II we feel that  

it is impossible to accept that a person who has been  

attacked, and in this case by several persons to know  

exactly where and when to stop and to use a hackneyed

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expression, the evidence cannot be weighed in golden  

scales.  The claim to this Exception is also perhaps  

the most risky and tenuous for an accused, although it  

is  often  the  most  appropriate  one.   The  advice  

tendered  by  an  experienced  defence  counsel  is  

invariably  ignored  in  favour  of  that  of  the   co-

prisoners who act as untrained legal advisors and warn  

an  accused  against  taking  such  a  plea.  The  defence  

version given by the appellant is that he had been  

attacked by half a dozen persons and he had managed to  

save himself as he was carrying his gun which he had  

used with telling effect.  The trial court has given a  

somewhat unusual explanation  by saying that though it  

could  be  a  case  of  exceeding  the  right  of  private  

defence but the benefit could  not be given to the  

appellant, the suggestion being that the gun ought to  

have been used not as a weapon but as a lathi.  With  

great respect, to the learned judge, this observation  

belies logic and is absurd.  It cannot be ignored that  

the appellant was a Commando and an ex-member of the  

National Security Guard and had been trained in the  

use of weapons, and was at the relevant time employed  

as a security guard in a bank premises and to expect a  

person like him when attacked, and that too by six or  

seven persons, to cover in fear and to use the weapon

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as a lathi, cannot be countenanced.   

12. We  are,  accordingly,  of  the  opinion  that  Mr.  

Sushil Kumar's plea that the appellant had exceeded  

the right of private defence must be accepted.  We  

make an order in the above terms and allow the appeal  

to  this  limited  extent.   We  also  direct  that  the  

conviction against the appellant be modified from one  

under Section 302 to 304 Part I and the sentence is  

also  modified  from  life  to  ten  years  rigorous  

imprisonment;  all  other  parts  of  sentence  being  

maintained as it is.  

  ..........................J    [HARJIT SINGH BEDI]

   .........................J     [CHANDRAMAULI KR. PRASAD]

NEW DELHI JULY 29, 2010.