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PETITIONER: KULWANT SINGH

       Vs.

RESPONDENT: AMARJIT SINGH AND TWO OTHERS

DATE OF JUDGMENT:       07/03/2000

BENCH: S.S.Ahmad, D.P.Wadhwa

JUDGMENT:

D.P.  Wadhwa, J.

     We  condone  the  delay and grant leave to  appeal  in Special Leave Petition (Criminal) No.  510 of 1999.  Special Leave  Appeal  (Criminal)  No.   511 of  1999  is,  however, dismissed.

     By  judgment dated April 4, 1996 District and Sessions Judge,  Sri  Ganganagar convicted Amarjit Singh  and  Jagsir Gingh.  Amarjit Singh was convicted under Section 307 of the Indian   Penal   Code  (IPC)   and  sentenced  to   rigorous imprisonment  for  5 years and also fine of Rs.500/- and  in default  of  payment  of fine, he was  to  undergo  rigorous imprisonment   for  one  month.    Amarjit  Singh  was  also convicted  for  an offence under Section 27 of the Arms  Act and  sentenced to undergo rigorous Imprisonment for a period of 2 years and fine of Rs.200/- and in default of payment of fine he was to undergo rigorous imprisonment for a period of another one month.  Jagsir Singh was convicted under Section 27  of  the Arms Act and sentenced to rigorous  imprisonment for two years and also to fine of Rs.200/- and in default of payment  of  fine,  to undergo rigorous imprisonment  for  a further  period of one month.  Nine other accused  (Jitender Singh,  Surender  Singh, Rajinder Singh, Kewal Singh,  Bhola Singh, Gurmail Singh, Paramjit Singh, Richpal Singh and Mani Ram),  also tried along with Amarjit Singh and Jagsir Singh, were, however, acquitted.

     Against  the  judgment of District and Sessions  Judge two  appeals were filed in the High Court of Judicature  for Rajasthan at Jodhpur  one by Amarjit Singh and Jagsir Singh against their conviction and sentence and other by the State of  Rajasthan  against acquittal of nine other accused.   By the  impugned judgment dated February 3, 1998 learned single Judge  of  the High Court dismissed the appeal filed by  the State of Rajasthan holding that the acquittal of the accused was  by  a  well reasoned order.  In the other  appeal  High Court maintained the conviction of Amarjit Singh but reduced his  sentence  to  already  undergone.   Jagsir  Singh  was, however,  acquitted  of the offence under Section 27 of  the Arms  Act.  Aggrieved complainant has sought leave to appeal against the judgment of the High Court.

     When  both  the  special leave petitions came  up  for admission  this Court on February 2, 1999 directed issue  of

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notice and on July 19, 1999 passed the following order:  -

     "Issue  notice  to the respondents for enhancement  of the  sentence.  Since the respondents have put in appearance through  counsel  these  matters shall be listed  after  six weeks with the clear understanding that the sentence awarded by  the High Court may ultimately be interfered with by this Court."

     An  incident took place on September 23, 1989  outside the  court  of  Munsif,  Sadul   Shahar.   Two  groups  were involved.  There was firing from both the sides resulting in the  death  of one Sukhmander Singh and injuries to  others. One  group  of  which  the two  respondents  are  before  us comprised of eleven persons (Group-1) and the other group of which  one  of  the  accused (also the  complainant  in  FIR against  Group-1) is the appellant before us comprised  nine persons  (Group-2).  Five persons of Group-1 were accused in a  case  before the Munsif, which included Sukhmander  Singh and  two of the Group-2 were complainants in that case.   It is  stated  that parties had entered into a  compromise  and that  compromise  was to be recorded by the Munsif  on  that day.   The accused were present in the court premises and so also  the two complainants.  Amarjit Singh, Respondent No.1, who  was  having a 12 bore gun and belonged to Group-1,  had also  come  there  and  so were other  members  of  Group-1. Respondent  Jagsir Singh of this group was also having a  12 bore gun.

     Appellant  Kulwant  Singh along with other members  of Group-2  also came there.  Appellant was having a pistol  in his  hand.  Jagjit Singh was having a 315 bore rifle and two or  three of Group-2 had 12 bore guns.  In the FIR lodged on the  same day at about 2.15 p.m.  Surinder Singh of  Group-1 alleged  that  on  the  arrival   of  Group-2  persons  they surrounded  Group-1  and  fired with the  result  Sukhmander Singh,  Jagsir  Singh,  Paramjit  Singh  and  Amarjit  Singh received  bullet injuries.  A case under Sections 307,  147, 148,  149  IPC  and  under Section 27 of the  Arms  Act  was registered   against   persons    comprising   in   Group-2. Sukhmander  Singh, however, died on his way to the  hospital and Section 302 IPC was added.

     At  the  same time another FIR was lodged  by  Kulwant Singh, the appellant.  According to him when he was entering the  court premises, persons belonging to Group-1 came there with  guns.   Out of them one Kewal Singh was having  a  315 bore  gun and others had 12 bore guns.  They started abusing the  appellant  who  ran away.  After an hour  or  so  other persons  of Group-2 arrived and when Jagjit Singh and  Radha Krishan  of Group-2 were going to the room of the  Tehsildar in  the court premises they were fired upon by Amarjit Singh and  Jagsir  Singh  (respondents).  Amarjit Singh  fired  at Radha  Krishan of Group-2, which hit him on the face and  he fell  down.  While falling down Radha Krishan also  returned fire on the persons of Group-1.  In his firing other members of Group-2 also suffered bullet injuries.  On this basis FIR a  case under Sections 307, 147, 148, 149 IPC and Section 27 of  the Arms Act was registered against persons belonging to Group-1.

     Two  sessions cases  one arising out of FIR lodged by Surinder  Singh  of Group-1 (Sessions Case No.  123/94)  and the  other lodged by Kulwant Singh of Group-2 (Sessions Case

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No.  65/94)  were tried in the Court of Sessions Judge, Sri Ganganagar.   Eye  witnesses from both the  groups  appeared against  the accused in the opposite groups.  other evidence was  recorded  by the learned Sessions Judge.  He  delivered judgments  in both the Sessions Cases on April 4, 1996.   In Sessions  Case  No.   123/94, which  pertained  to  Group-1, learned  Sessions  Judge acquitted all the  accused  persons except  the respondents 1 and 2.  As noted above, Respondent 1,  Amarjit  Singh was convicted under Section 307  IPC  and Section  27  of  the Arms Act.  Jagsir Singh  was  convicted under  Section  27  of the Arms Act.  In Sessions  Case  No. 65/94  where Kulwant Singh, the appellant before us, was one of  the  accused,  learned Sessions Judge  convicted  Jagjit Singh  under Section 302 IPC for causing death of Sukhmander Singh.   Seven others were convicted under Sections  302/149 IPC.   Jagraj Singh, accused, was however, acquitted.  It is stated  that Radha Krishan and Saheb Ram accused in  Group-2 have  since  died.  Both the groups filed  their  respective appeals in the High Court of Judicature at Rajasthan.  While appeal  filed by Group-2 is still pending in the High Court, that filed by Group-1 was decided by learned Single Judge of the High Court by the judgment dated February 3, 1998, which is impugned before us.

     We  are quite amazed as to why the two appeals,  which arose out of the same incident and in fact resulted in cross sessions cases, could not have been heard together.  This is apart  from the fact that the impugned judgment of the  High Court  is not legal judgment in the eyes of law.  High Court did  not  at all consider the evidence led in the  case  and merely  said  that it was adopting the appreciation  of  the evidence  and  the  reasoning recorded by the  trial  court. This  is  how the High Court disposed of the appeal  in  one paragraph:  -

     "With  the  assistance of the learned counsel for  the accused  as  also  the  learned Public  Prosecutor,  I  have re-scrutinised  the  evidence on record and re-  appreciated the  same in light of contentions raised by the rival sides. A  careful scrutiny of the evidence leads me to a conclusion that  no  error either of law or of fact in appreciation  of evidence is committed by the learned Judge.  His approach to the  case  is  correct,  his reasoning  for  convicting  the accused  persons  as  also  for acquitting  some  others  is faultless and I entirely agree with the reasons given by the learned Judge for reaching the conviction and acquittal.  I, therefore,  see  no reason to reiterate the entire case  and give  my  findings  on  the  same  all  over  again.   I  am concurring  with  the  observations of the findings  of  the learned  Judge.   I, therefore, accept the same and  dismiss both the appeals."

     On  the question of sentence High Court said as under: -

     "It  has then contended by the learned counsel for the appellant  Amar Jeet Singh that he was sentenced to rigorous imprisonment  for  a period of 5 years under Sec.307 of  the Indian  Penal  Code and he has already undergone  three  and half  years of that sentence.  Taking into consideration the fact  that the violence occurred due to pre-existing enmity, interest  of  justice would be met, if he is allowed  to  be released  on  the sentence already undergone.  It  was  then contended that Jagsir Singh is convicted under Sec.27 of the

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Arms Act for two years rigorous imprisonment.  Only evidence that occurs against him is that Jagsir Singh instigates Amar Jeet Singh to fire from the gun.  Even if this allegation of instigating accepted as true, he cannot be guilty of offence under Sec.27 of the Arms Act."

     Finally,  High Court disposed of two appeals as under: -

     "In  the result, accepting these reasons, I  partially accept  the  appeal No.  258/96, maintain the conviction  of Amar  Jeet  Singh  and he be released  on  sentence  already undergone  and  acquit  Jagsir Singh for the  offence  under Section  27 of the Arms Act as his actions are not  culpable under  Section  27  of  the Arms Act.   The  appeal  against acquittal is also liable to be dismissed as the acquittal is well reasoned."

     It  may be noticed that while the trial court judgment runs  into as many as 109 pages High Court thought it fit to dispose of the appeal in four pages.  Though number of pages may not be apposite but this does indicate the sloppy manner in which the High Court dealt with the criminal appeal.

     It was expected by the High Court to apply its mind to the facts of the case and to find out who was the aggressor; whether  there was right of private defence and if so was it exceeded  in  the  circumstances of the  case.   High  Court unfortunately  lost  sight  of the  relevant  considerations which  weigh  with the court while hearing  criminal  appeal against  conviction  and sentence.  However, the  respondent Amarjit Singh does not feel aggrieved.

     In  the  present  case  we   had  issued  notice   for enhancement  of sentence.  Acquittal of Jagsir Singh by  the High Court cannot be interfered.  The incident was a serious one  occurring  in the court complex.  Our consideration  of the  case  against  Amarjit Singh may  affect  the  criminal appeal filed by Group-2 and still pending in the High Court. It has been contended before us by Mr.  H.M.  Singh, learned advocate  for  the  appellant, that it were the  accused  of Group-1,   who  were  responsible   and  aggressors  in  the violence.   It  is not disputed that there was cross  firing between  the two groups but he submitted that it was Amarjit Singh  who  first fired the shot and injured Radha  Krishan, while  Amarjit  Singh  and  Jagsir  Singh  had  only  simple injuries  on  them.   It was the further submission  of  Mr. Singh  that  the manner in which the occurrence  took  place clearly  showed that whatever accused of Group-2 did was  in right to private defence and since they were fired upon they had  to  resort  to firing to protect  themselves  from  the onslaught of Group-1.

     As  stated above it is difficult for us to comment  on the  exact  role played by Amarjit Singh as whatever we  say might  affect  the appreciation of the evidence by the  High Court  in the appeal filed by Group-2 and pending before it. However,  what we find is that once High Court held  Amarjit Singh  guilty of an offence under Section 307 IPC it  should not have interfered with the sentence of imprisonment.  High Court  noticed  that  Amarjit Singh  had  already  undergone imprisonment   for   three  and  a  half  years.    In   the circumstances  of the present case though we do not wish  to

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interfere  with  the sentence of imprisonment as reduced  by the  High  Court we will, however, enhance the  sentence  of fine  on  Amarjit  Singh to Rs.25,000/- and  in  default  of payment  of  fine  to undergo rigorous  imprisonment  for  a period  of six months.  The fine shall be payable within one month  and  when  realized shall be paid over to  the  legal representatives  of deceased Radha Krishan as it was he  who suffered  bullet  injuries from gun fired by Amarjit  Singh. In  the  end  we express our anguish in the way  High  Court disposed  of  the criminal appeal.  It has certainly led  to miscarriage of justice.

     The appeal is thus partially allowed.