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PETITIONER: GURMIT SINGH & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT29/09/1995

BENCH: NANAVATI G.T. (J) BENCH: NANAVATI G.T. (J) RAY, G.N. (J)

CITATION:  1995 SCC  Supl.  (4) 146 JT 1995 (7)   171  1995 SCALE  (5)630

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI,J.      This appeal  arises out  of a  common judgment  of  the Punjab and  Haryana High  Court in Criminal Appeal No.778-DB of 1983  and Criminal  Appeal No.653-DBA  of 1984.  Criminal Appeal No.778-DB  of 1983  was filed by Gurmit Singh who was convicted by  the Sessions  Court, Amritsar fori the offence punishable under  Section 302  IPC and Sections 25 and 27 of the Arms  Act. The  other appeal  was  filed  by  the  State against the order of acquittal of the three co-accused.      Briefly stated, the prosecution case is that on 12.7.83 at about  7.30 P.M.  when Sadhu  Singh (P.W.10)  and his son Parkash Singh  (P.W.12) were  returning from  their field to their house,  Accused Gurmit  Singh, Puran  Singh,  Joginder Singh and  Kashmir Singh  met them on the way. At that time, Puran Singh  was carrying a kirpan, Joginder Singh was armed with a  single-barrel .12  bore gun  and Kashmir  Singh  was carrying a  gandhali. On  seeing Sadhu  Singh  (P.W.10)  and Parkash Singh  (P.W.12) the accused started uttering abusive words. Sadhu  Singh and  his son  requested them with folded hands not  to do so but after proceeding a little ahead they told the  accused that  they would come back with Bawa Singh to lodge  a protest.  After reaching their house Sadhu Singh narrated to  Bawa  Singh  what  had  happened  on  the  way. Meanwhile Duman  Singh (P.W.13)  who was  passing  by  their house was  also informed about the incident. Thereafter Baba Singh (the  deceased), Sadhu  Singh (PW  10), Parkash  Singh (PW12), Duman  Singh (P.W.13)  and Karam  Singh (PW11)  went towards the  house  of  accused  Gurmit  Singh  to  lodge  a protest. Bawa  Singh and  Sadhu Singh were carrying lanterns in their hands, Karam Singh and Parkash Singh had sticks and Duman Singh  had a  kirpan with him. When they were a little away from  the house  of accused  Gurmit Singh  all the four accused carrying  the weapons which they had earlier carried came from  the opposite  direction. Accused Puran Singh then

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raised a Lalkara to the effect that Bawa Singh should not be spared. He  then gave  a kirpan  blow on  the right elbow of Parkash Singh.  One more  blow was  given  by  Puran  Singh. Accused Joginder  Singh gave a blow with the butt of his gun on the  chest of  Sadhu Singh. Accused Gurmit Singh took the gun of  Joginder Singh  and fired  with the result that Bawa Singh received  injuries on  his  face  and  chest.  Accused Kashmir Singh  gave a  blow with  the stick  portion of  his gandhali on  the right shoulder of Bawa Singh as a result of which Bawa  Singh fell  down. He also gave another blow with the stick  portion of  gandhali on  the back  of Sadhu Singh (PW10). Accused  Joginder  Singh  picked  up  the  stick  of Parkash Singh  (PW12) and  gave one  blow with  it to  Karam Singh (PW11). Bawa Singh had already died as a result of the injuries received by him. So, Sadhu Singh, Parkash Singh and Karam Singh remained by the side of the dead body during the night as  they apprehended  that the accused would otherwise remove the  same. Next  day morning at about 6.30 A.M. Sadhu Singh went  to the  Police Post  at Sultanwind falling under Police  Station   Sadar  Amritsar   and  lodged   the  first information report.      On these  allegations all  the accused were charged for commission of  offences under  Section 302 read with Section 34 IPc  and Sections 25 and 27 of the Arms Act. At the trial the prosecution mainly relies upon the evidence of the three eye-witnesses namely  Sadhu Singh  (P.W.10),  Parkash  Singh (P.W.12) and  Duman Singh (P.W.13). Karam Singh (P.W.11) was not examined  but was  offered for cross examination. He was not cross-examined  by the  accused. As the learned Sessions Judge found the evidence of the eye-witnesses consistent and reliable  as  regards  accused  Gurmit  Singh  he  convicted accused  Gurmit  Singh  for  the  offence  punishable  under Section 302  IPC and  Sections 25 and Section 27 of the Arms Act. He acquitted the other accused as he was of the opinion that participation  by the  other accused  as stated  by the eye-witnesses was doubtful in view of the nature of injuries alleged to  have been  caused by  the said  accused and  the medical evidence on record.      Aggrieved by  the  order  of  conviction  and  sentence accused Gurmit  Singh filed and appeal in the High Court and aggrieved by  the order  of the acquittal the State filed an appeal against  the remaining  three accused. The High Court believing the  evidence of  the eye-witnesses maintained the conviction of  accused Gurmit Singh, set aside the acquittal of the remaining accused and convicted them for the offences punishable under  Section  302  read  with  Section  34  and Sections 25  and 27  really not injured during that incident but they  had caused  those injuries  themselves in order to create evidence  against the  accused. He  further submitted that for  all these  reasons the  conviction of  the accused deserved to be set aside.      We have  carefully gone  through the  evidence of Sadhu Singh (P.W.10),  Parkash  Singh  (P.W.12)  and  Duman  Singh (P.W.13) and also the medical evidence on record. Both Sadhu Singh and  Parkash Singh have referred to the incident which had taken  place  at  7.30  P.M.  Therefore,  there  was  no justification for the learned Public Prosecutor who appeared in the  Sessions Court  to give a go by to that incident. Be that  as   it  may,  the  learned  Sessions  Judge  did  not disbelieve the  witnesses on  this ground and did not record any  finding   one  way  or  the  other.  As  there  was  no justification for  the said  concession made  by the learned Public Prosecutor,  the High  Court rightly  considered that part of  the evidence  of the  eye-witnesses and came to its own conclusion. The defence had not suggested to Sadhu Singh

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and Parkash  Singh in  their cross-examination  that such an incident had not taken place. We, therefore, do not find any substance in  the contention  raised  in  this  behalf.  The evidence of  the three eye-witnesses is quite consistent and it does not suffer from any serious of the Arms Act.      What was  contended by  Mr. B.K.  Mehta, learned senior counsel appearing  for all  the appellants  was that  as the learned Public  Prosecutor had  given a go by to the earlier incident which had taken place at 7.3 P.M. the whole version of the  eye-witnesses became  doubtful because in absence of that incident  there was  no reason  for the  appellants  to attack Bawa  Singh and others accompanying him. He submitted that in  view of  this concession made by the learned Public Prosecutor the  High Court  should not have relied upon that part of  the evidence  of  the  eye-witnesses  and  taken  a contrary view.  He also  contended that  the version  of the eye-witnesses that  they remained near the dead body for the whole night  is not  consistent with  natural conduct and it was an  attempt to  explain the  delay in  lodging the first information report. He also contended that even though Sadhu Singh had stated to the police that he had received injuries during the incident no injury statement was prepared at that time and  he was  not  sent  for  medical  examination  soon thereafter. Both  Sadhu Singh  (P.W.10)  and  Parkash  Singh (P.W.12) were  sent for  medical examination on the next day after about  11 O’clock  and that would go to show that they were infirmity.  Except bringing  out  minor  omissions  the defence was  not able  to take  out anything in their cross- examination  which   would   raise   any   doubt   regarding truthfulness of  their evidence. examination. The High Court has dealt  with each  and every  reason given  by the  trial court for not accepting their evidence with respect to Puran Singh, Joginder Singh and Kashmir Singh. In our opinion, the High Court  was quite  right in re-appreciating the evidence and coming  to its  own conclusion in as much as the reasons given by  the trial  court for  acquitting those  appellants were not  proper  and  sufficient.  Their  evidence  clearly establishes that it was appellant Gurmit Singh who had fired the gun  and caused  injuries to Bawa Singh which had caused his death.  Their evidence  also  clearly  establishes  that appellants Puran  Singh and  Karam Singh were with appellant Gurmit Singh  at the time of the incident and had taken part therein, as deposed by the eye-witnesses. The conduct of the eye-witnesses in  remaining with the dead body for the whole night cannot  be  said  to  be  unnatural  in  view  of  the possibility of  the appellants  removing the  dead  body  in order to  cause disappearance  of the evidence against them. Once  this  explanation  given  by  the  witnesses  for  not approaching the  police earlier  is accepted,  it cannot  be said  that   there  was  any  delay  in  lodging  the  first information report.      It was  next contended  by Shri  Mehta that in any case the appellants  could not  have been convicted under Section 302 read  with Section 34 as they were acting in exercise of their right of private defence: and, at the highest they can be said to have exceeded that right. In view of the evidence on record it is not possible to accept this contention also. The evidence  discloses that  seeing the party of Bawa Singh approaching them  the appellants  also  armed  with  weapons proceeded in  that direction  and did  not remain  near  the house. the  evidence further  discloses that Sadhu Singh and Parkash Singh  had while  going away earlier proclaimed that they would come with Bawa Singh in order to lodge a protest. After reaching  their house  and narrating  the incident  to Bawa Singh  they had  all  started  for  the  house  of  the

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appellant  armed  with  sticks  and  a  kirpan.  That  would indicate that they were not going there for lodging a simple protest. It  clearly appears  to us  that both the sides had pre-determined to  fight and the incident wherein Bawa Singh came to  be  killed  happened  as  a  result  of  that  pre- determination. Thus  this was  a case  of free fight between the two  groups. This  aspect has not been considered by the High Court.  In view  of our  finding that  his was really a case of  free fight  the conviction  of appellants  for  the offences punishable under Sections 302, 326 and 323 all read with Section  34 IPC will have to be set aside and they will have to  be convicted  for the  offence  committed  by  them individually.      The evidence  clearly establishes  that Appellant No.1, Gurmit Singh  caused the  death of  Bawa Singh.  He has been convicted under  Section 302 and, therefore, we maintain his conviction and also the order of sentence passed against him for that offence. His conviction for the offences punishable under Sections  326 and 323 both read with Section 34 is set aside. Therefore,  the sentence  imposed upon  him for those offences is  also set  aside. The  conviction  of  Appellant No.2, Puran  Singh under  Section read  with Section  34 and also under Section 323 read with Section 34 and the order of sentence passed against him for those offences is set aside. The evidence  against him  establishes that he had given two kirpan blows  to Puran  Singh but it is not established that he caused  grievous hurt  to Puran Singh. Therefore, he will have to  be convicted  under Section  324 IPC.  For the said offence he is sentenced to undergo rigorous imprisonment for two years.  The conviction of Kashmir Singh, Appellant No.3, under Sections  302 read  with Section  34, 326 read with 34 and 323  read with  34 is set aside and so also the order of sentence  passed   against  him   for  those  offences.  His conviction under  Section 323  for causing  injuries to Bawa Singh and  Sadhu Singh  is maintained. The order of sentence passed against  him for the offence punishable under Section 323 is  also maintained.  So far as Appellant No.4, Joginder Singh is  concerned his  conviction under  Sections 302, 326 and 323  all read  with Section 34 is set aside and also the order of  sentence passed  against him  for those  offences. However,  his  conviction  under  Section  323  for  causing injuries to Sadhu Singh is maintained. The order of sentence passed against him for that offence is also maintained.      The appeal is thus partly allowed. It is allowed to the aforesaid extent  only. It  appears that  Appellant Nos. 2.3 and 4  have been  released on  bail.  They  are  ordered  to surrender to  jail custody  for  serving  out  the  sentence imposed upon  them if  they have  not by  now served out the same.