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PETITIONER: HARDIAL SINGH & OTHERS

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT09/04/1995

BENCH: M.K. MUKHERJEE, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.B. PATTANAIK. J.      The three  appellants being  unsuccessful in the appeal filed by  them in  the High  Court and  their conviction and sentence passed  by the  learned Additional  Sessions Judge, Amritsar, having  been confirmed have approached this Court. These three  alongwith the  acquitted Amar  Singh and  Dalip Singh stood  their trial in the Court of Additional Sessions Judge, Amritsar  under Sections 148, 302/149, 326/149 I.P.C. on the  allegation that they came armed with guns and rifles and fired  at the  deceased as well as the injured P.W.5 and other members  of the  informant party  who were cultivating the land  belonging to  Khazan Singh in village Rekh Jhitan. It is  to be  noted that  all the  five accused  persons are related to each. other, accused Dalip Singh being the father and the  rest four  are his  sons,  The  learned  Additional Sessions Judge  acquitted accused Dalip Singh and Amar Singh giving them  benefit of  doubt  on  a  conclusion  that  the prosecution evidence  does not prove the charge against them beyond reasonable  doubt. But so far as the three appellants are  concerned,   the  learned   Additional  Sessions  Judge convicted them  and sentenced  them  differently.  Appellant Hardial Singh  was convicted  under Section  302 IPC and was sentenced to  imprisonment for  life. He  was also convicted under Section  148 I.P.C. and sentenced to R.I. for one year and under  Section 326/149) I.P.C. was sentenced to R.I. for two years. Appellant Uttam Singh was convicted under Section 302/149 IPC  and was  sentenced to imprisonment for life. He was also  convicted under  Section 148 IPC and was sentenced to R.I. for one year and convicted under Section 326 IPC and was sentenced  to R.I. for two years. Appellant Gurnam Singh was also  convicted under  Section  302/149    IPC  and  was sentenced to  imprisonment for  life. He  was also convicted under Section  148 I.P.C. and sentenced to R.I. for one year and convicted  under Section  326/149 IPC  and sentenced  to R.I. for two years. The sentences of imprisonment of each of the appellants  were ordered to run concurrently. They moved the High  Court  against  the  conviction  and  sentence  in Criminal Appeal No. 388 of 1989 but the High Court dismissed the appeal  and confirmed  the conviction  and sentence and,

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hence, the present appeal.      Prosecution case  in nutshell  is that  a piece of land belonging to  one Khazan  Singh of  village Rekh  Jhitan was being cultivated  by Kulwant  Singh  P.W.4  and  his  father Gulzar Singh  P.W.10, Amar  Singh and  Harbans Singh for the last so many years. The appellant’s family became interested in  dispossessing   Kulwant  Singh   and   his   other   and apprehending  forcible  eviction  by  the  appellants,  said Gulzar Singh  P.W.10 filed  a Civil Suit and had obtained an order of  injunction on  December 24,  1980. On  the date of occurrence, on 31st of October, 1981 Kulwant Singh P.W.4 had made arrangements  for getting  the  land  ploughed  with  a tractor  and  accordingly  approached  P.W.9  who  was  also distantly related  to Kulwant Singh. The further prosecution case is that the said P.W.9, Jagir Singh the deceased, P.W.4 and 5  were ploughing  the land  and P.W.5  had brought  his licensed gun  as they  were apprehending  trouble  from  the accused persons.  While the ploughing operation was going on the accused  persons armed  with rifles and guns appeared at the spot  and Gurnam  Singh gave  a lalkara  not  to  plough further. P.W.4  Kulwant Singh,  however, asked  P.W.5  Jagir Singh to  continue ploughing  operation. Gurnam  Singh  then told his other companions that the people should be taught a lesson for  ploughing land.  The appellants  then took their position behind the paddy straw ridge and Gurnam Singh fired from his  rifle  which  hit  P.W.5  who  was  operating  the tractor. Said P.W.5 then rushed towards the boundary to pick up his  .12 bore  gun and  at that  point of  time appellant Uttam Singh  fired a shot which hit P.W.5 on his left thigh. P.W.5 then fired two shots in his defence. Appellant Hardial Singh fired  another shot which hit the deceased Jagir Singh on his  chest and  he fell  down. Amar Singh and Dalip Singh also fired  shots from  their respective weapons and none of the shots  hit any  of the camplainant party. The appellants and  their   companions  then  left  the  place  with  their respective weapons.  Kulwant Singh P.W.4 immediately went to Police Station  Jandiala at  a distance  of 8  kms from  the place of occurrence and lodged the FIR at 11 A.M. P.W.15 the Investigating Officer  recorded the First Information Report and left  for the  place for investigating into the offence. At the  place of  occurrence he  prepared the Inquest Report and sent  the dead  body of  deceased Jagir  Singh for  Post Mortem examination.  The Investigating Officer also sent the injured P.W.5  to Hospital  at Amritsar  for  treatment  and medical examination.  The  Investigating  Officer  collected some blood  stained earth  from the place where the-deceased Jagir Singh  was lying  and collected  some empty cartridges from that  place. From  another place  also  he  seized  six empties and  some live cartridges and recorded the statement some of the witnesses under Section 161 of the Code Criminal Procedure. On  completion of  investigation  of  he  finally submitted  the  charge-sheet  and  on  being  committed  the accused persons  stood their  trial as  already  stated.  In support of  the prosecution case a large number of witnesses were examined  of whom P.Ws 4 and 5 are the eye-witnesses to the occurrence.  P.W.2 is  the Doctor  who had  examined the injured P.W.5  as well as the injured accused Hardial Singh. The other  Doctor was  examined as  P.W.1 had  conducted the Post Mortem  examination on  the dead body of deceased Jagir Singh. Relying  upon the  statement of P.W 4 and 5 and being of the  opinion that  the medical  evidence corroborates the ocular statement,  the  learned  Additional  Sessions  Judge convicted the  three appellants  as already stated but since there was  no prosecution  evidence to  establish that Dalip Singh and Amar Singh had fired any shot which hit any of the

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members of the prosecution party, they were given benefit of doubt and  were acquitted,  No appeal had been filed against the said  order of  acquittal of  Dalip Singh and Amar singh but the  appellants’ appeal  against  their  conviction  and sentence was dismissed by the High Court on a reappreciation of the  evidence of  P.Ws.4 and  5 as  well as  the  medical evidence.      Mr. Kohli, the learned senior counsel appearing for the appellants contended  that five  known persons being charged under Section  302/149 IPC  and  two  of  them  having  been acquitted of  the charge  the courts  below committed  gross error of law in convicting the rest three accused persons by taking recourse  to Section  149 IPC.  He further  contended that the  entire prosecution  case as  unfolded through  the evidences of  P.Ws.4 and 5 should not be accepted in view of inherent inconsistencies  in their statements and in view of the fact,  that their  evidence is  contrary to  the medical evidence. Mr. Kohli further urged that from the narration of facts it  must be held that it was a case of free fight and, therefore, the individual accused persons may thus be liable for their  individual acts  and cannot  be cojointly liable. According to  Mr. Kohli, if the prosecution case is examined from this  angle and  taking into  consideration the serious injuries which  appellant Hardial had sustained in course of the incident,  the only  conclusion possible  is  that  said Hardial had  fired from  his gun  in private  defence of his person and,  therefore, he  cannot be  held liable  for  the offence of murder. Learned counsel appearing for the State fairly  submitted that in view of the acquittal of the two accused  persons provision  of Section 149 IPC could not have  been   pressed  into  service  and  the  courts  below committed error on that score. He further stated that though under law  it is possible for a court to convict the accused persons who  were charged  under Sections 302/149 I.P.C., if that charge  fails by  altering it  to  one  under  Sections 302/34 I.P.C.,  but in  the case  in hand on the evidence on record it  will be difficult to convict the appellants Uttam Singh, Gurnam  Singh and  Hardial Singh under Section 302/34 IPC and  necessarily therefore,  the individual over-acts of the appellants  have to  be  considered.  According  to  the learned counsel  for the respondent, in view of the positive evidence of  P.Ws 4  and 5  conviction of  appellant Hardial Singh under  Section 302  IPC is  unassailable and cannot be interfered with.  So far  as the  two other  appellants  are concerned, according  to him  their conviction under Section 326 IPC  remains unassailable.  We find  sufficient force in the submission  of the  learned counsel  appearing  for  the State.      P.W.4 Kulwant  Singh had  stated in  his evidence  that while they  were cultivating  the land  in question  accused Gurnam Singh  challenged them  and asked  them not to plough the land.  But when notwithstanding the said order of Gurnam Singh P.W.  5 continued  the ploughing  of  the  land,  said Gurnam Singh  fired from his rifle which hit the deceased on his right  arm, at  that point  of time P.W.5 lifted his gun and fired  two shots in self defence. Uttam Singh fired from his rifle  which hit  the witness  Jagir  Singh  P.W.5  then Hardial Singh  fired from  his rifle  which hit the deceased Jagir Singh  on  his  chest  and  the  deceased  fell  down. Thereafter when  they raised  alarm the accused persons left the place.  P.W. 5  substantially corroborates the aforesaid version of  P.W.4. It is thus apparent that the shot alleged to have  been fired by Gurnam Singh hit the right arm of the deceased and  the gun  shot which  had been fired by Hardial Singh hit  the chest  of the deceased. The gun shot fired by

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Uttam Singh  hit the left thigh of Jagir Singh P.W. 5. P.W.1 who had  conducted the  Post Mortem  examination on the dead body of the deceased found one inlet wound as well as outlet wound on  the right  forearm of  the deceased and both those injuries correspond  with each other. He also found an inlet wound of  1 cm  x 3/4 cm oval in shape on the front and left side of chest 6 cm above left nipple. On dissection he found that the  bullet after  piercing the  chest had  entered the third intercostal  space and  then piercing  the left pleura and upper lobe of the left lung had also ruptured the heart. The bullet was found in the right cavity. In his opinion the death was  due to  haemorrhage as  a result of the injury to heart, left  lunge liver  and mesenteric  vessels which  had been caused  on account of the gun shot injury on the chest. It would  thus be  crystal clear  that the death of deceased Jagir Singh  was on  account of  the gun  shot injury on his chest which  in turn  had been  caused on  account of firing from the  gun of  appellant Hardial Singh. So far as the two other appellants  are  concerned,  the  gun  shot  from  the appellant Gurnam  Singh had  caused an  injury on  the right forearm of  the deceased and the gun shot from the appellant Uttam Singh  had caused  an injury on the thigh of P.W.5. At this stage,  it would  be appropriate  for us to examine the contention of  Mr. Kohli,  the learned counsel for appellant with regard  to the  so-called right  of private  defence of person of  appellant Hardial  Singh and whether the evidence of P.Ws  4 and  5 should at all be believe or not. So far as the testimony  of P.  Ws 4  and 5 is concerned on a thorough scrutiny of  the same  we have  not found  anything in their cross examination  to impeach  their veracity.  On the other hand, both  of them  have narrated the occurrence which also gets  ample  corroboration  from  the  medical  evidence  as discussed earlier.  The evidence of those two witnesses have been believed  by the  two courts below and we see no ground to discard  that testimony.  The submission  of Mr. Kohli to discard their  evidence,  therefore,  cannot  be  sustained. Coming to  the question of claim of right of private defence of appellant Hardial Singh, it is no doubt true that Hardial Singh had  sustained one lacerated inlet wound 1 cm x 3/4 cm the  posterio   medical  aspect   of  right   leg  having  a corresponding lacerated  outlet wound as found by the Doctor P.W.2 and  the injury  was grievous  in nature  as the X-ray report indicated  that the  right fibula had been fractured. But that  be itself cannot be the basis to establish a claim of right  of private defence of person. The land in question was admittedly  in cultivation  of informant  party and  the accused persons  reached the place fully armed with guns and rifles. As  stated by P.W.4 when the informant party did not stop the  ploughing, it  is accused  Gurnam who  first fired which his  the right  arm of  the deceased  and then in self defence P.W.5  fired two  shots from  his gun and thereafter Hardial Singh  Fired from his gun which hit the chest of the deceased. Accused  Uttam Singh also had fired from his rifle which hit  the left  thigh of P.W.5. This being the sequence of the events, it is the accused persons who must be held to he aggressor  and the  plea of  right of  private defence of person cannot be available to them. It is the gun shots from two firing  made by  P.W.5 in  self defence which had caused the injury  on Hardial  Singh. When the accused persons come armed to  the  place  of  occurrence  which  was  in  lawful possession of  the informant  party  and  who  had  obtained injunction from  the court  of law, the question of claim of right of  private defence  by the accused does not arise and more so  in the  sequence of  events as unfolded through the evidence of  P.Ws. 4 and 5. It is difficult for us to accept

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the plea  of right  of private  defence of person of accused Hardial Singh.  Necessarily, therefore,  on the  evidence of the Doctor  P.W. 1 and the evidence of P.Ws. 4 and 5 it must be held  that the  charge under  Section 302  IPC so  far as appellant  Hardial  Singh  is  concerned  is  proved  beyond reasonable  doubt   and  the   conviction  and  sentence  of appellant Hardial  Singh on that score cannot be interfered. But so  far as  the conviction of two other appellants under Section 302/149  IPC, as  stated earlier, the same cannot be sustained nor  is it possible on the facts and circumstances of the  case to  convict them  even under Section 302/34 IPC for their  over acts. In fact as already stated, the learned counsel appearing  for the respondent State fairly submitted that their  conviction under  Section 302/149  IPC cannot at all be  sustained. But  for their  individual  act  for  the injuries caused  on the right arm of the deceased as well as on the  thigh of  P.W. 5  their conviction under Section 326 IPC and the sentence passed thereunder has to be maintained. So far as the conviction under Section 148 IPC is concerned, the same  also cannot  be sustained  as the  prosecution has failed to  establish an  "unlawful assembly"  of the accused persons.      In  the   premises  as  aforesaid,  the  conviction  of appellant Hardial  Singh  under  Section  302  IPC  and  the sentence of  imprisonment for life thereunder is upheld. His conviction under  Section 148 IPC as well as 326/149 IPC and the sentence passed thereunder are set aside. The conviction of appellant  Uttam Singh  under Section 302/149 IPC and the sentence passed  thereunder are set aside but his conviction under Section  326 IPC  and sentence to undergo R.I. for two years on  that score  are confirmed. Conviction of appellant Gurnam Singh  under Section  302/149 IPC  and  the  sentence passed thereunder  are set  aside and  his conviction  under Section 326  IPC and  sentence to  R.I. for  two  years  are confirmed.  So   far  as  the  appellant  Hardial  Singh  is concerned, his bail bond stands cancelled and he is directed to surrender  for serving the balance period of sentence. So far as  the other  two appellants  are concerned,  Mr. Kohli appearing  for   them  submitted   that  they  have  already undergone the  period of  sentence of two years but from the records of  this Court  it is  not possible  to come to that conclusion since  they were  granted  bail  by  order  dated 10.2.1986. In that view of the matter we direct that in case they have  already undergone  the sentence of two years, the question of  their surrendering again would not arise but in case they  have not undergone the sentence of two years they must surrender  to serve  the balance  period. These appeals are accordingly allowed in part.