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PETITIONER: KABUL SINGH & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT01/09/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) NANAVATI G.T. (J)

CITATION:  JT 1995 (6)   370        1995 SCALE  (5)162

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE. J.      In this  appeal  preferred  under  Section  14  of  the Terrorist Affected  Areas (Special Courts) Act, 1984 the six appellants challenge  the order  of conviction  and sentence recorded against them under Sections 148, 307, 307/149. 324, 324/149, 323  323/149  of  the  Indian  Penal  Code  by  the Additional Judge, Special Court, Ludhiana.      The prosecution case in a nutshell is that on April 13, 1984 at  or about 8 P.M. when Bhajan Singh and his son Chain Singh were  sitting on the onirni in front of their house in village Mangli Tanda, the six appellants came there shouting that Bhajan  Singh should  not be spared. Of the appellants, Amar Singh,  Mukhtiar Singh  and Chand Singh were armed with lathis, Kabul  Singh with  a double barrelled gun and Roshan Singh with  a takua.  Immediately after reaching there Kabul Singh fired  a shot  from his  gun  aiming  at  and  causing injuries to  Chain Singh.  When Bhajan Singh stepped forward he met  with the  same fate  at the hands of Kabul Singh. On being so hit both of them raised alarms and nearing the same Mela Singh,  Jairnail Singh, Sucha Singh. Smt. Maya and Smt. Chindo reached  there. Seeing  them the  appellants Mukhtiar Singh, Chand  Singh and Roshan Singh started assaulting them with their respective weapons. Finding no other alternative, when the victims started hurling brickbats towards them, the appellants fled  away. On that very night the injured Bhajan Singh, Chand  Singh, Smt.  Maya and Chindo went to the Civil Hospital, Ludhiana for their treatment while the other three namely,  Jarnail  Singh,  Mela  Singh  and  Such  Singh  got themselves examined  at the  local Primary  Health Centre as their injuries were minor.      On the  following morning, ASI Mulkh Raj, of Police Out Post Kalan  went to Civil Hospital, Ludhiana on receipt of a wireless message  from Sahnewal  Police Station and recorded the statement  of Bhajan  Singh (Ext/PCC).  He forwarded the statement to  the police  station  for  registering  a  case

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thereupon and took up investigation. He went to the spot and got a  site plan  prepared. Besides  he  seized  some  blood stained earth  and two  empty cartridges  and in  due course sent the  same for  examination by experts. In course of the investigation he  also seized  the licensed gun of appellant Kabul Singh  and sent  it to  the  Ballistic  Expert.  After examining the  witnesses and  completing the  formalities of investigation the  Investigating Officer  submitted  charge- sheet against the appellants.      The motive that was ascribed by the prosecution for the murderous assault was that Bhajan Singh had purchased a plot from the  Gram  Panchayat  for  a  sum  of  Rs.  3000/-  and constructed a  house thereon.  Since the  Panchayat had  not issued any  receipt for  the above  sum in spite of repeated demands, Bhajan Singh had earlier on the day in question had gone to  the house of appellant Amar Singh, who was a member of the  Panchayat. and  demanded the  receipt or  the  money back. Over  this issue  an altercation  took  place  between them.      In order to bring home the charges levelled against the six  appellants   the  prosecution   examined  Bhajan  Singh (P.W.6), Chain  Singh (P.W.7)  and Smt.  Maya (P.W.8) as eye witnesses. Besides,  it examined  five doctors,  namely, Dr. Uggar Singh  (P.W.1), Dr. Ravinder Kumar (P.W.2), Dr. Deepak Walia (P.W.3),  Dr. Parminder Singh (P.W.4), Dr. Suman Gupta (P.W.5) who  examined and  treated the injured at one or the other time,  ASI Mulkh  Raj  (P.W.9)  and  Nachhattar  Singh (P.W.10), a draftsman who prepared the site plan. The report of the  Chemical Examiner  indicating that  human blood  was found on  the seized  eartn and  that  of  the  Director  of Forensic Science  Laboratory in  Proof of  the fact that the seized empty  cartridges were fired from the licensed gun of Kabul Singh  were also  exhibited (Ext.  PNN  and  Ext.  POO respectively).      In their  statements recorded under Section 313 Cr.P.C. the appellants, except Roshan Singh, took a plea of right of private defence  of their  persons. Their positive stand was that at  or about  8.30 P.M.  when. On  their way home, Amar Singh and  his son  Chand Singh,  reached near  the house of Bhajan Singh,  he came  out therefrom  accompanied by  Chain Singh, Mela  Singh Jarnail Singh and Suchha Singh armed with lathis and  gave a  lathi blow on the right side of the nose of Amar  Singh felling him down. Simultaneously, Mela Singh, Jarnail Singh  and Suchha  Singh also  assaulted Amar  Singh with lathis,  Chand Singh  was also  beaten up  by the above five persons.  When, raised  by their alarms, the appellants Bhulla Singh, Mukhtiar Singh and Kabul Singh came there they were also  assaulted by  them. Placed  in such a predicament Kabul Singh  ran away  from the place, went to his house and came back  with his  licensed gun.  He  then  requested  the assailants to  desist from further assault but when they did not heed to his request he fired a shot from his gun. In the commotion that followed the female members of Bhulla Singh‘s family threw brick bats resulting in injuries to Sucha Singh and Maya  (P.W.8). Then  the assailants  left the  place  of occurrence and  the injured appellants were taken to primary health  centre  where  they  were  medically  examined.  The defence of  the appellant Roshan Singh was one of alibi. The appellants, however,  did not examine any witness in support of their versions.      When the  prosecution case,  as detailed  by the  three eye-witnesses, is  considered  vis-a-vis  the  defence  case mentioned above  it can  be said  to have  been conclusively proved that  an incident  of assault  took place in front of the house  of Bhajan  Singh in  which Kabul Singh fired from

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his gun.  The evidence  of the doctors also prove that seven members  of   the  complainant‘s   party  and  five  of  the appellants sustained  injuries. Indeed  presence of  all  of them, except  appellants Bhulla  and Roshan  Singh  is  also admitted by the defence.      The only  question therefor that remains to be answered is whether  the incident took place in the manner alleged by the prosecution or by the defence. To answer the question we have given  our anxious consideration to the evidence of the three eye  witnesses particularly that of Smt. Maya (P.W.8). Indeed, her  presence at  the time  of the  incident and her sustaining injuries,  in course thereof, is also admitted by the defence.  In narrating  the incident  she stated that on that evening  she had  gone to  the house of Bhajan Singh to enquire about the welfare of his wife. According to her when she was  in his house she found Bhajan Singh and Chain Singh in front  of the  outer gate  of their  house. While  in the house  she  heard  a  gun  shot  coming  from  outside.  She immediately came  out and  saw Chain  Singh  in  an  injured condition. She  next stated  that she saw Kabul Singh firing from his  gun which  hit Bhajan  Singh. She  named the other five appellants  present there  along with  Kabul Singh. She also detailed  the weapons  they were carrying. In narrating the incident  further she  stated  that  after  her  arrival Chindo also  arrived there and Amar Singh gave a blow with a lathi on  her head.  She next  stated that  she, Chindo  and Bhajan Singh  then took  up some  brick bats lying there and hurled the  same towards  the miscreants.  She lastly stated that after  causing injuries  to them all the six miscreants (the appellants  before us)  ran away. Though she was cross- examined at length nothing, except some minor contradictions with reference  to her  statement recorded under Section 161 Cr.P.C., could  be elicited  by the  appellants to discredit her: nor  is there  anything on  record to show that she was inimically deposed  towards the appellants or was interested in the  success of  the prosecution.  When her  evidence  is considered in  the light  of the  evidence of  the other two eye-witnesses and  the evidence  of the doctors who examined Chain Singh  and other injured the conclusion is inescapable that the  appellants had no right of private defence and, on the contrary.  it  is  the  complainant‘s  party  which  was entitled to  the right  of private defence as the appellants were the aggressors. This apart, the nature of injuries that was sustained  by some  of the  appellants clearly show that those could  not have  been caused  by lathis  as claimed by them. Rather,  the injuries fit in with the prosecution case that they  sustained those  injuries owing  to  throwing  of brick bats.      It was  however contended  on behalf  of the appellants that the  recovery of the two empty cartridges from near the house of  Kabul Singh  not only  falsified the  story of the prosecution that  Kabul Singh  had fired  from his  gun from near the  house of  Bhajan Singh  out supported  the defence case also.  It is of course true that the evidence on record shows that the empty cartridges were recovered from near the house of  kabul Singh  but then  the above circumstance does not support  the above  contention of  the appellants for it was elicited  in cross-examination  of Bhajan  Singh (P.W.6) that the  house of Bhulla Singh is opposite to his house and only the  village Phirni separates those houses. Then again, it was  elicited in  cross-examination of  Chain Singh  that Kabul Singh  fired at  him from  a distance of 7/8 Karams (1 Karam is  equivalent to  5 ft.  approximately) and Dr. Uggar Singh (P.W.1)  who examined  the  injuries  on  Chain  Singh opined that  those injuries could be the result if the fire-

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arm was used from a distance of more than six feet.      It was  next contended  that the  evidence of  the  eye witnesses that  brick bats  were hurled  by them  during the incident was  absolutely untrue as the Investigating Officer did not  find or  seize any  brick-bats at  the  site.  This contention is  also of  no avail for it was the defence case also that  brick-bats were hurled during the incident. While on this point we cannot also lose sight of the fact that the Investigating  Officer  visited  the  site  long  after  the incident was over.      Coming now to the individual roles of the appellants in the incident we find that all of them were armed with deadly weapons except Bhulla Singh, who was unarmed. His conviction under Section  148 IPC  therefore cannot be sustained but he will be  liable for  the offence  under Section 147 IPC. We, therefore, alter  his conviction from Section 148 to Section 147 IPC  and reduce the sentence of one year imposed for the former conviction  to six  months. Though  appellant  Roshan Singh took  the plea  of  alibi,  he  did  not  produce  any evidence in  support thereof.  His case  therefore stands on the same  footing as the other appellants more so as he used a takua.  Except to  the above  extent we  do not  find  any reason to alter, much less set aside, any of the convictions of  the  appellants.  As  the  sentences  imposed  upon  the appellants err  on the  side of leniency, no interference in respect there of is also called for.      In the  result  the  appeal  stand  dismissed  and  the impugned order  of conviction and sentence is upheld subject to the modification indicated above. The appellants, who are on bail, will now surrender to their bail bonds to serve out their sentences.