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PETITIONER: GURMUKH SINGH & ORS.

       Vs.

RESPONDENT: THE STATE OF HARYANA(WITH CRL.A. NO. 230/94)

DATE OF JUDGMENT21/11/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) PARIPOORNAN, K.S.(J)

CITATION:  JT 1995 (8)   208        1995 SCALE  (6)496

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      Seventeen persons  were  placed  on  trial  before  the Additional Sessions  Judge,  Kurukshetra  to  answer  common charges under  Sections 148,  302/149, 307/149  and 447 IPC. Against seven  of them  (hereinafter  referred  to  as  ’the appellants’) a  separate charge under Section 27 of the Arms Act, 1959  and against  one of the appellants, namely, Karam Singh a  further charge  under Section 302 IPC (simpliciter) were also  framed. On  conclusion of  the trial  the learned Judge convicted  sixteen of them including the appellants in respect of  all the  charges framed  and sentenced  them  to different terms  of imprisonment,  including life. Aggrieved thereby all the convicts preferred a common appeal which was initially heard  by a  Division Bench comprising two learned Judges of  the High  Court. Since  the learned  Judges  were divided in  opinion  the  appeal  was  laid  before  another learned Judge  of the  Court in  accordance with Section 392 Cr.P.C. The  learned Judges  affirmed  the  convictions  and sentences recorded  against the appellants but acquitted the others.  Against   such  dismissal   of  their  appeal,  the appellants have  filed one of these two appeals (Crl. Appeal No. 29  of 1987) while the other (Cr. Appeal No. 230/94) has been filed  by the  State  against  acquittal  of  the  nine others. Both  the appeals  have been heard together and this judgment will dispose of them.      The case  for the  prosecution  briefly  stated  is  as follows. To  implement the  schemes prepared  under the East Punjab Land  Utilisation Act,  1949 (’Act’  for  short)  135 acres of land in village Karah Sahab and 35 acres of land in village Mohanpur  were leased out by the State Government to various Ex-servicemen hailing from the district of Ropar for periods ranging from 7 years to 20 years, with each of their families getting  10 acres  of land. Various groups of those Ex-servicemen then  joined  together  to  form  Co-operative Societies for  effective management  and cultivation  of the

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lands so  allotted. The Cooperative Society which was formed by the  allottees of  village Mohanpur was known as Mohanpur Ex-servicemen Cooperative  Society and Sunder Singh, who was allotted 10  acres of land in Killa No. 125/5, became one of the members  of that Society. After entering into possession of their  respective allotted  lands in 1952, the allottees, including Sunder  Singh, made those lands cultivable by dint of hard  labour and  at huge  expenses. After  expiry of the period of  lease in  and around  the year  1972,  the  State Government, through its Collector, initiated proceedings for resumption of  the lands  from the  allottees to restore the same to their respective owners. This attempt on the part of the State  Government created tension between the owners and the allottees  but the  latter successfully  warded off  all efforts of  the State  to resume  the lands and continued to possess the same.      Apprehending fresh trouble in 1979, several Cooperative Societies of  the Ex-servicemen  including the  Mohanpur Ex- Servicemen Cooperative  Society filed some writ petitions in this Court  and obtained  stay orders  on  January  9,  1979 restraining   the   Collector   from   initiating/continuing proceedings against  the lessees under Section 7 of the Act. In view  of the  above interim  orders the authorities could not and  did not take any action against the lessees but the owners, including  Lal Singh, who happens to be the owner in respect of  the land  allotted to  Sunder Singh,  could  not reconcile to  the position  that the  lands should remain in possession with the lessees in spite of expiry of the period of the  lease and started putting pressure upon Sunder Singh to vacate  the land  as they  wanted to cultivate it. Sunder Singh and  others, however, told Lal Singh and his sons that they would  not vacate  the lands till the disposal of their writ petitions pending in the Supreme Court.      On July  11, 1982 at or about 7 A.M. when some of those Ex-servicemen and  their family  members including  Rajinder Singh (deceased),  Jiwan Singh (deceased) Hakam Singh (PW4), Gurmukh Singh (PW 5), Surmukh Singh (PW 6), Ranjit Singh (PW 15)  and   Surjit  Singh  (PW  16)  were  cultivating  their respective allotted  lands, they  saw four  tractors  coming along nearby  Guhla-Pehowa road  with  some  people  in  the trolleys attached  to them.  They next found another tractor trolley coming  along the  same road  driven by Mehar Singh, son of  Lal Singh,  with the  seven  appellants  and  others seated therein.  While each of the appellants was armed with firearms the  others were  carrying  gandasas.  The  tractor driven by  Mehar Singh  stopped on the road at a distance of about 20-30  ft. from the land of Sunder Singh but the other four tractors  entered the  land of Sunder Singh and stopped there. The  people who were in the trolleys attached thereto then started  forcibly cultivating the land of Sunder Singh. Gurmukh Singh  and Surmukh  Singh (PW  5 and  PW 6), the two sons of  Sunder Singh then raised alarms that their land was being forcibly  ploughed by the miscreants and then Rajinder Singh (PW  3), his  brother Raghbir  Singh (deceased), Hakam Singh (PW  4), Jiwan  Singh (deceased), Ranjit Singh (PW 15) and Surjit  Singh (P.W.  16) rushed  towards that  direction from their respective fields. When Rajinder Singh went ahead appellant Karam  Singh fired  from his  rifle hitting him on his head  and thereby causing his instantaneous death. Karam Singh fired  another shot at Jiwan Singh who also fell down. Then the  appellant Gurmukh  Singh fired  the fatal  shot at Jiwan Singh.  Then the  other appellants also started firing from their  respective firearms  causing injuries to some of the persons  present there.  The commotion  created by  such attack attracted  the attention  of the people living nearby

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and seeing  them coming the miscreants fled away leaving the four tractors  behind. Seeing  Raghbir Singh and Jiwan Singh lying dead,  the people  who  had  assembled  at  the  spot, removed oil  from the oil tanks of the tractors and set them on fire.      In the  meantime Ripudaman  Singh, brother  of  Karnail Singh (P.W.  19) and  sister’s husband  of Hakam Singh (P.W. 4), having  seen the miscreants proceeding towards the place of occurrence  had rushed  to the  Pehowa police station and lodged a  Diary as  he apprehended a breach of the peace. On receipt of  the information,  Inspector Ram Singh (P.W. 24), alongwith ASI Kulwant Rai (P.W.22), ASI Rajinder Kumar (P.W. 23) and  other  police  officials  left  for  the  place  of occurrence. On  the way  they  came  across  Rajinder  Singh (P.W.3) who  gave a  detailed version  of the  incident. Ram Singh (P.W.  24) recorded his statement and after forwarding it to  the police  station proceeded  to the spot to take up investigation of  the case.  Reaching there  he held inquest upon the dead bodies of Jiwan Singh and Raghubir Singh which were lying  there and sent them for post-mortem examination. He then  seized four  tractors, some blood stained earth and some empty cartridges found there.      Dr. N.K.  Dhawan (P.W.1) held post-mortem upon the dead bodies of  Raghbir Singh  and Jiwan Singh and found a number of injuries on their persons, which according to the doctor, were due  to gun  shots. Among  the witnesses  Gurmukh Singh (P.W. 5),  Surmukh Singh (P.W. 6), Surjit Singh (P.W.16) and Rajinder Singh (P.W.3) were also examined by the doctors and they were  found to  have sustained  injuries which could be caused by fire-arms.      In  course   of  the  investigation  the  Investigating Officer sent  the seized  blood stained earth, and the empty cartridges alongwith the fire-arms, recovered from the seven appellants  for   examination  by   the   Forensic   Science Laboratory. On  receipt of  the reports  of such examination and completion of investigation the police submitted charge- sheet and  in due course the case was committed to the court of Session.      The appellants  pleaded not  guilty to  the charges and except appellant  Gurmukh Singh,  they denied their presence at the place of occurrence. Gurmukh Singh, however, put up a counter version  in his statement recorded under Section 313 Cr.P.C. He  stated that  on 11th  July, 1972  at dawn he was present near  his tubewell  alongwith his  father Lal Singh. Ishar Singh and Lachman Singh, residents of village Tangoli, who were  their relations  came there  on two tractors. They started talking  with Gurmukh Singh. Teja Singh who happened to pass  that side  also came  there to  greet  the  guests. Gurmukh Singh  and Surmukh  Singh (P.Ws.)  thought that they had collected  those tractors  with an intention to forcibly occupying their  land. They  brought Jiwan  Singh,  Raghubir Singh, Ranjit Singh, Surjit Singh and Hakam Singh along with them when  they were armed with fire-arm and gandasas. These persons raised  lalkaras and  started  firing  towards  them while they  were advancing. He and his other companions took shelter  behind   the  parked  tractors  and  the  kotha  of tubewell, but  before that  he, Ishar  Singh, Teja Singh and Lachman had  been hit  by the  gunshot. He had picked up the gun of  his brother  Ram Singh  which  was  lying  on  their tubewell. So  did his  father Lal  Singh. They  fired at the assailants. Raghubir  Singh and  Jiwan Singh  who were armed with gandasas  had come  near them.  All  of  them  received injuries as  they were in open. Their tractors were also hit by gun  shots. Raghubir Singh and Jiwan Singh, when hit, had retreated and  had fallen  in the field of Sunder Singh. The

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assailants stopped  firing on  finding their  two companions have fallen  and they  were not  able to  cause much harm to them. They made good their escape and Lal Singh informed the police. On  coming  to  the  spot,  the  police  found  that Raghubir Singh  and Jiwan  Singh were  dead. Their  tractors were removed  from their  tubewell to  the fields  of Sunder Singh. Tractor  of Hardial  Singh which  was standing on the road-side was  also removed  to the  fields of Sunder Singh. The complainant  party set  their tractors on fire by taking diesel from  them in connivance with the police and this was done to  show that  they were  the aggressors. Their tractor was brought  from their house alongwith trolley later on and involved in this case. He lastly stated that he was arrested on the  same evening  but was  not got medically examined by the police till 19th of July, 1982.      In support  of its case the prosecution examined twenty four witnesses  of whom  Rajinder Singh  (P.W.3) Hakam Singh (P.W.4), Gurmukh  Singh (P.W.5),  Ranjit Singh  (PW 15)  and Surjit  Singh   (P.W.16)  figured   as  eye-witnesses.   The appellants in  their turn,  examined  seven  witnesses.  The appellants in  their turn, examined seven witness in support of their  defence. The trial Court held that the evidence on record clearly  proved that  the incident  took place on the land which  was allotted  to and was in exclusive possession of Sunder  Singh. The  trial Court  further held  that,  the accused persons  had forcibly  trespassed into  the land  to take possession  of the  same and  to commit  murders of the people who  were cultivating  the land, was evident from the fact that  they came in tractors with fire-arms and that the story  given   out  by   the  accused   persons  was  wholly unreliable. The  High Court  concurred with  the findings of the trial Court that the rioting had taken place on the land of Sunder  Singh and that the common object of that unlawful assembly was  to commit  the murders  of Raghubir  Singh and Jiwan Singh. The High Court, however, held that it could not be conclusively  said that  nine of the accused persons (the respondents in  Crl. Appeal  No. 230  of  1994)  shared  the common object of the other seven (the appellants) as none of them was  armed with fire-arms nor did they commit any overt act and,  therefore, they  were entitled  to the  benefit of reasonable doubt.      We have  gone through  the impugned  judgments and  the evidence on record. On perusal of the judgments we find that both the  trial Court  and the High Court have discussed the entire evidence  from a  proper perspective and given cogent and  convincing  reasons  for  excepting  the  case  of  the prosecution in  preference to  that of the defence. Evidence on record  unmistakably proves  that Killa  No. 125/5 was in possession of  Sunder  Singh  and  there  was  an  order  of restraint  from   this  Court   from  interfering  with  his possession. Uncontroverted evidence adduced during the trial further proves  that the  two dead  bodies of Raghubir Singh and Jiwan  Singh and  four tractors belonging to the accused persons were  found on  the above land of Sunder Singh. When the above facts and circumstances, are considered along with the evidence  of  the  eye  witnesses,  some  of  whom  were injured, the  only conclusion that can be drawn are that the accused persons  were not only trespassers but also were the aggressors and that the defence version was a concocted one. Judged in  that context,  even if some of the appellants had sustained some  injuries, which, they asserted were received in course  of that attack, cannot claim any right of private defence. The  evidence of  the doctor  and  the  reports  of Forensic Science  Laboratories also go a long way to support the prosecution  version. Once  it is  established that  the

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seven accused  appellants had  entered the field with deadly weapons, namely,  fire-arms and fired at random resulting in the death  of two  of them and injuries to others it must be said that the prosecution has been able to prove its case.      It was,  however, strenuously  argued on  behalf of the appellants that  even if  the entire  prosecution  case  was believed only  those who  had actually fired at the deceased could be  convicted under  Section  302  IPC,  and  not  the others. In  elaborating this  argument it was submitted that according to  the prosecution case, the common object of the unlawful assembly was to forcibly drive out Sunder Singh who was in occupation of the land in question and in prosecution of that  common object  the members of the assembly intended to assault  or knew  that grievous  hurt was  likely  to  be caused, but it could not be said that all of them shared the common object of committing the two murders. In other words, according to  the learned  counsel for  the appellants, only Karam Singh  who had  fired at  the two  deceased was liable under Section  302 IPC (simpliciter) and the others could be convicted, at best, under Section 326 read with 149 IPC.      As already stated, the evidence laid by the prosecution - clearly  establishes - that the appellants had come to the land of Sunder Singh in a tractor driven by Mehar Singh, the son of  the owner  of the land and at that time each of them was armed  with a  fire-arm. On  coming near  the  field  of Sunder Singh,  Karam Singh  had taken  his position near the tubewell of Lal Singh obviously with the intention of seeing that no  outside help  was made available to the complainant party. When  Jiwan Singh  and Raghubir the two deceased came to the  rescue of the complainant party Karam Singh fired at them from  his rifle  hitting them  on their  head.  Gurmukh Singh also  fired at  Jiwan Singh and both died on the spot. The other  five accused  appellants who  were holding  gunds stood near  the tractors  and fired at the complainant party at random  injuring Rajinder  Singh (P.W.  3), Gurmukh Singh (P.W. 5),  Hakam Singh  (P.W. 4) and Surmukh Singh (P.W. 6), and of them, except Surjit Singh all the others were injured on the upper parts of their bodies by the fire-arms. In such circumstances it is difficult to hold that the common object of the unlawful assembly extended only upto causing grievous injuries and  not beyond  that -  and, in any case, that the other appellants  did not  know that in achieving the object of unlawful assembly murder was likely to be caused. Keeping in view  the background and judged in the context of all the materials  on  record  we  cannot  but  hold  that  all  the appellants have  rightly been  held guilty  and convicted of the offences  under Sections  302 and 307 read with 149 IPC. We, therefore,  do not find any merit in Criminal Appeal No. 29/87.      So far  as the  other appeal  filed  by  the  State  is concerned the  reasons which  weighed with the High Court in recording the  order of  acquittal in  favour  of  the  nine accused respondents  cannot be said to be perverse. It is of course true that a different view of the evidence could have been taken  as against them but that cannot be made a ground for  setting   aside  an  order  of  acquittal.  The  appeal (Criminal Appeal  No. 230/94) filed by the State, therefore, merits dismissal.      In the  result both  the appeals  fail and  are  hereby dismissed.  The  appellants,  who  are  on  bail,  will  now surrender to  their bail  bonds to  serve out  the sentences imposed upon them.