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CASE NO.: Appeal (crl.)  195 of 2005

PETITIONER: Ranbaj Singh

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 14/11/2006

BENCH: A.K.MATHUR & LOKESHWAR SINGH  PANTA

JUDGMENT:

J U D G M E N T  With  Crl.A.No.196 of 2005.

A.K. MATHUR, J.

Both these appeals arise against the same order  therefore,  they are disposed of by this common judgment. Brief facts giving rise to these appeals are  Kulwinder Singh  son of Pal Singh is a resident of village Loharke. On the basis of  the statement of Kulwinder Singh, a first information report was  registered at the Police Station, Raja Sansi on 22.12.1999  to the  effect that they are agriculturist. It is alleged that on the  fateful day while they were going to the field for cultivation,  they passed through a small passage  across the land of accused  Mohan Singh.  On the eastern side of the passage there is land of  accused Mohan Singh and he has encroached the passage which  has reduced the width of the passage. On 21.12.1999 at about  4.oo P.M.  the complainant, along with brother Gurwant Singh and  father Pal Singh were transporting bricks in their tractor trolley  to their land  for some pucca construction  of the pucca tube well.   When they were passing through the passage, one tyre of the  tractor trolley passed through the land of accused Mohan Singh  where they had sown wheat crop.  Mohan Singh saw the damage  done to the wheat crop by the tyre of the tractor trolley. He  went to his house and after some time he came on his tractor  which was driven by his son accused Shamsher Singh. Accused  Mohan Singh and his sons Ranbaj Singh and Balraj Singh were  armed with a dang. All the accused raised lalkara and they  started ploughing the field of Pal Singh  (deceased) in which Javi  crop was sown.  Pal Singh pleaded with the accused that he had  not intentionally damaged the wheat crop but accidentally the  tyre of the tractor trolley has passed over some part of their  wheat crop. Thereupon  accused Shamsher Singh  called Pal Singh  and his sons  be taught a lesson for  the damage to the wheat  crop.  Accused Mohan Singh gave dang blow  to Pal Singh which he  warded off on his right arm. Accused Ranbaj Singh gave dang  blow to Pal Singh which hit him on his head and Pal Singh fell down  on the ground. While he was lying on the ground, accused Balraj  Singh gave another dang blow on Pal Singh’s head. Both  Mohan  Singh and Ranbaj Singh also gave dang blow  on  Pal Singh’s head  as a result of which he became unconscious. The complainant had  stated that  because of fear from the accused he ran away and  then he raised alert. Thereafter, all the accused persons along  with their weapons  on their tractor ran away from that place.  Meanwhile,  the complainant’s uncle, Gurdip Singh  came to the  spot  who witnessed the incident. Gurvail Singh, the cousin of the  complainant,  brought the tractor trolley and  Pal Singh was taken

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to Guru Nanak Dev Hospital, Amritsar where he was admitted as  an indoor patient and his statement was recorded and formal  FIR   under Section 307 read with Section 34, Indian Penal Code (to be  referred to as ’the IPC’)  was registered against all the accused  persons  at Police-station, Raja Sansi.   On 23.12.1999,  Pal Singh  died  and   therefore a case was registered under section 302  read with Section 34, IPC. During the course of investigation  accused persons were arrested and they were charged under  section 302IPC read with Section 34,IPC and committed to  session for trial.  The prosecution examined 11 witnesses. After close of the  trial, learned Sessions  Judge by his judgment dated 6.11.2001  convicted accused appellant Ranbaj Singh and Mohan Singh under  section 304, Part-II, IPC and sentenced them to undergo  rigorous imprisonment for seven years each and to pay a fine of  Rs.2000/-. In default of payment of fine, both the convicts were  directed to further undergo rigorous imprisonment for four  months each. The other two accused  namely, accused Balraj  Singh and Shamsher Singh were given the benefit of doubt and  they were acquitted.   Both the convicted accused preferred  appeal against their conviction and State preferred appeal  against the acquittal of accused  Balraj Singh and Shamsher  Singh and also prayed that the conviction of the accused under  section 304, Part-II, IPC  be  converted under Section 302, IPC.   The High Court dismissed the appeal of the accused and allowed  the appeal filed by the State and converted the conviction under  Section 304, Part-II, IPC to that of Section 302,IPC and  sentenced  the accused to life. However,  the order of acquittal  of Shamsher Singh and Balraj Singh was upheld. Hence the  present appeals. Meanwhile accused Mohan Singh expired  hence  appeal by accused  Ranbaj Singh only. We have  heard learned counsel for the parties and have  gone through the records.   It appears that  when Kulwinder  Singh along with his father, Pal Singh were going to their field  which passes through a narrow passage where some portion of the  wheat crop of the accused were damaged. Shamsher  Singh who  was on the field at that time did not do anything but he went to  the village and came back along with accused Ranbaj Singh, Mohan  Singh and Balraj Singh and they started damaging the field of  the deceased Pal Singh with tractor.  This was resisted by Pal  Singh and it is alleged that Pal Singh gave a sota blow to accused  Ranbaj Singh who fell down  and in defence of Ranbaj Singh,  his  father Mohan Singh gave a blow from the backside of Kandhali as  a result of which the deceased Pal Singh fell down and thereafter  he got up and went to his field. Accused Mohan Singh took Ranbaj  Singh  in an injured condition to his village and from there he  took him to the Hospital at Amritsar and got him admitted  in the  hospital. However,  in the meanwhile,  the deceased Pal Singh was  also immediately shifted to the Hospital at Amritsar. Thereafter,  a case was  registered on the basis of the statement of Kulwinder  Singh under Section 307, IPC but after some time the deceased  Pal Singh expired. Therefore, the case was converted from  Section 307,IPC to one under Section 302, IPC. Accused Mohan  Singh and Ranbaj Singh were arrested.  In view of these facts   the question is whether accused Mohan Singh had a right to  private defence  to the person of his son Ranbaj Singh.  It is  admitted by the doctor that Ranbaj Singh was admitted in Guru  Nanak Dev Hospital, Amritsar where  the deceased was also  admitted. Accused Mohan Singh in his statement under Section  313 of the Code of Criminal Procedure has taken a definite stand  that while going to the tube well of Pal Singh, his cattle used to  stray his wheat crop field and used to damage the same.  Therefore, in order to save from further damage to the crop  from the cattle of the deceased, he along with his son Ranbaj  Singh were fixing the branches of thorny bushes  in the field by

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the side of the said passage.  Accused Mohan Singh was digging  holes in the earth with kandhali, while accused Ranbaj Singh was  fixing the branches of thorny bushes in the said passage.  In the  mean while Pal Singh came there and objected to the fixing of  those bushes.  He told his son Ranbaj Singh not to do so to which  accused Ranbaj Singh did not agree. Thereafter, Pal Singh who  had sota started inflicting  sota blows  on the head and other  parts of the body of Ranbaj Singh. Ranbaj Singh fell down on the  ground. But Pal Singh continued to give sota blows to Ranbaj  Singh. Therefore, in order to save  him from any onslaught  by  the deceased Pal Singh he gave a kandhali blow from its blunt side  on the head of Pal Singh.  Pal Singh fell down and thereafter he  got up and went towards his village along with sota.  Accused  Mohan Singh then brought Ranbaj Singh  in an injured condition  to the village from where he took him  to a hospital at Amritsar  and was admitted.  Accused Mohan Singh stated that  the Police  met him on 21.12.1999 and recorded his version but after the  death of Pal Singh in the Hospital, the Police removed  him as well  as his son Ranbaj Singh and took them to the Police-station and  detained them. Therefore, in view of the categorical stand taken  by accused it shows that in fact the incident started with the  deceased giving a sota blow to Ranbaj Singh, son of Mohan Singh  and in a right to private defence, Mohan Singh gave a blow on the  reverse side of the Kandali to the deceased Pal Singh.  The  prosecution has not placed the matter objectively and fairly  before the Court and did not produce necessary medical evidence  to the effect that Ranbaj Singh was also similarly admitted  in  the Hospital and  he was also medically examined by the doctor  and the statements of Ranbaj Singh and Mohan Singh were  recorded by the Police but on  the contrary an attempt was made  to hide this aspect of the matter.    Whenever  the plea of right  of private defence  is taken it is not necessary for the defence  to lead specific evidence. The defence is entitled to substantiate  their case from the evidence of the prosecution.  It is not  incumbent upon  the defence to substantiate  right to private  defence  if it can be substantiated from the prosecution  evidenceTherefore, the burden of establishing  the defence is  not that rigourous on the part of the defence as  that  of the  prosecution.  In the present case, the defence has been  substantiated by the fact that the Doctor, P.W.2- Dr. Jaswinder  Singh who has come to the witness box has admitted that along  with Pal Singh, accused Ranbaj Singh  was also admitted in the  same ward in Guru Nanak Dev  Hospital.  He also admitted that   the police approached him on 21.12.1999 for statement of   accused Ranbaj Singh but he was not fit to make any statement   and there was an endorsement made by him on Ex.DB/1. The bed  head ticket was also produced by P.W.3 but it was not of Ranbaj  Singh but it was of Gurbaj Singh. Therefore, the trial Court has  not placed much reliance on that bed head ticket.   Kulwinder  Singh, P.W.8,  son of the deceased Pal Singh admitted in his  statement before the Police that   injuries were also received by  Mohan Singh and Ranbaj Singh, on the basis of that  statement  which was recorded on 21.12.1999 FIR was registered. Though  during trial he disowned that statement when confronted with his  statement before the police.  P.W.10, ASI Jaswant Singh has also  admitted about this fact that Ranbaj Singh had received injuries  in the same incident. Therefore, from these facts the defence  has substantiated that accused Ranbaj Singh received injuries in  this incident and accused Mohan Singh in order to save his son,  gave Kandali blow on the reverse side on the head of deceased Pal  Singh.  Therefore, from these facts, right of private defence  of  the accused stood established from the evidence of the  prosecution. However, the High Court has reversed the finding   of the trial court and convicted both the accused under Section  302, IPC.  In our opinion, the view taken by the trial court is

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correct. Hence we uphold the order of the trial court i.e.  conviction  under Section 304, Part-II, IPC and sentence the  appellant to suffer rigorous imprisonment for seven years and to  pay a fine of Rs.2000/-. As a result of our above discussion, we allow these appeals,  set aside the impugned orders of the High Court and affirm the  view taken by the trial court and convict  the accused appellant  under section 304, Part-II, I.P.C. and maintain the sentence of  seven years’ rigorous imprisonment with a fine of Rs.2000/-, in  default to further undergo rigorous imprisonment for four  months.