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CASE NO.: Appeal (crl.)  947 of 1997

PETITIONER: Kulwant Singh & Ors.                                     

RESPONDENT: State of Punjab                                          

DATE OF JUDGMENT: 23/01/2004

BENCH: Doraiswamy Raju & S.B. Sinha.

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       The appellants who are three in number with their  father, Virsa Singh (Accused No.1) and brother Tara Singh  (Accused No.3) [since deceased] were charged for commission  of an offence under Sections 148/302/323/149 of the Indian  Penal Code.   

The incident took place at about 10.30 a.m. on  13.6.1987.  Admittedly, the family of the deceased and the  appellants belong to the same village. They have  agricultural lands.  The parties had disputes both as regard  boundaries of their agricultural land as also as regard  irrigation of their respective field.  On the day of the  incident, Kartar Kaur (deceased) brought food for her sons  Avtar Singh and Balkar Singh (PW 5 and PW 6) who were  working in their agricultural field.  When they  finished  taking their meals, Virsa Singh (Accused No.1) armed with  ’Takwa’, Kulwant Singh (Appellant No.1) and Tara Singh  (Accused No.3) armed with ’Kirpan’ each, Sahiba Singh  (Appellant No.2) armed with ’Barchha’ and Darbara Singh  (Appelant No.3) armed with ’Kappa’ came near the informant  and the deceased from the side of their tubewell.  Virsa  Singh, allegedly, exhorted the complainant and the deceased  to be ready as they had come to teach them a lesson for  scrapping the boundaries of the fields; whereupon the first  informant Partap Singh, since deceased, and Balkar Singh  along with their mother got up.  It is contended that Sahiba  Singh gave one Barchha blow to Partap Singh in his abdomen  and another blow just below his right shoulder in the chest,  whereas  Virsa Singh assaulted Partap Singh with Takwa on  the back of his right hand.  Kartar Kaur, mother of the  informant, who had tucked her salwar as she waded through  the water, came forward and she was given a blow with Kirpan  by Kulwant Singh on the back of her left leg, whereupon she  fell down.  Even thereafter Tara Singh is said to have given  Kirpan blow on her left thigh and Virsa Singh gave two Takwa  blows on her both wrists.   

Avtar Singh and Balkar Singh who examined themselves as  PW 5 and PW 6 respectively came forward to rescue their  mother and brother whereupon Sahiba Singh is said to have  given Barchha blow in the abdomen of Avtar Singh (PW 5) and  another blow on his left thigh.  Accused No.1 allegedly gave  blunt side Takwa blow on Balkar Singh (PW 6) on the back of  his right hand.  

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It stand admitted that in the aforementioned incident,  Darbara Singh and Virsa Singh also suffered injuries which  are said to have been inflicted on them by the complainant  and his brother purported to be in their self-defence.

       The accused persons thereafter ran away with their  respective weapons whereafter Avtar Singh (PW 5) went to the  village and informed his cousin Hardip Singh about the  occurrence. A tractor was brought from the village in which  Partap Singh and Kartar Kaur were brought to the hospital at  Ferozepur.  The lady breathed her last on the way whereas  Partap Singh was admitted to the Civil Hospital, Ferozepur.

       The motive for commission of the said offence on the  part of the accused persons is said to be a dispute which  took place a day prior to the day of the occurrence between  the complainant party and Virsa Singh allegedly on the  ground that the complainant party scrapped the boundaries of  the fields.  However, it is said that the matter had been  settled at the instance of one Maura Singh, a resident of  the same village.

       The doctor attending on Partap Singh informed the  Police whereupon the S.H.O. of the Police Station came to  the Hospital.  The statement of Partap Singh, who was  seriously injured could not be taken by the police and only  at about 4.30 p.m., the first information report was lodged  by Avtar Singh.   

       It is not disputed that Partap Singh was medico-legally  examined at 12.30 p.m. on 13.6.1987 by Dr. A.S. Mann (PW 2)  and the following injuries were found on his person :

"1.     Oblique incised wound 10 cms. X =  cm. and depth varied from muscle  deep to bone deep on back of right  hand starting from base of index  finger and going upwards and  medially with bleeding.

2.      Incised wound 3 cms. X 1 cm. (at  centre) oblique on front and right  side of abdomen 5 cms. medial at  the level of right anterior  superior iliac spine with bleeding.   Omentum and a small leap of  intestine was coming out of the  wound.  Abdomen was tender and  tense.

3.      Incised wound 1.5 cms. X = cm.  oblique in direction on front and  upper part of right chest just  below the outer half of right  clavicle."       

Injury No.1 was kept under observation  for X-ray examination and injury No.3  was kept under observation for surgical  report and injury No.2 was declared  dangerous to life.  In this regard Dr.  Mann gave his report Ex.PH and also  prepared pictorial diagram Ex.PH/1  showing the seats of injuries.  PW 2 Dr.

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A.S. Mann sent ruqa Ex.PJ to the Station  House Officer, Police Station Sarad,  Ferosepur, regarding the death of Kartar  Kaur and arrival of Avtar Singh  (Injured)"                     

       The statement of Partap Singh on a certificate issued  by the doctor that he was fit to make a statement was  recorded on 18.6.1987.  Partap Singh, however, succumbed to  his injuries 26.6.1987.            

       Dr. J.S. Dalal (PW 3) who conducted the post-mortem on  the dead body of Partap Singh found the following injuries  on his person :

"1.     Under the bandages of both ankles  vene section wounds were present  medially over both ankles.

2.      On removing bandage of right hand  there was an oblique healed wound  except in its middle one third.  It  was 10 cms. long on the back of  right hand starting from base of  index finger and going upwards and  medically.  The unhealed wound was  pale and on opening it frank pus  came out.  There were corresponding  cuts in the third and fourth  metacarpal bones.

3.      Horizontal healed wound 1.5 cms.  long just below outer half of right  clavicle.

4.      An oblique wound with clean cut  margins 8 cms. X 3.5 cms. muscle  deep on the right side of abdomen  starting 5 cms. medically and above  the right anterior superiod iliac  spine and going downwards and  medially.  The floor of this wound  contained plough and on dissection  of surrounding tissues frank pus  oozed out.

5.      A stitched wound 20 cms. long on  right side of abdomen just lateral  tomid line.  On removing stitches  there was corresponding out in the  perticotniu with stitches.  The  mesentery had been repaired at many  places and small gut at two places.   The abdominal cavity contained  about 300 grams of chocolate  colored foul smelling fluid."    

       Autopsy examination of Kartar Kaur was held about 6.45  p.m. on the same day by Dr. Tirath Goel (PW 1), which  disclosed the following injuries on her dead body :

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i.   Incised wound 5 cms. X 2 cms. on  the front and lower part of left  thigh.

ii.     Incised wound 10 cms. X 3 cms. on  the back of left leg.  Underlying  vessels and muscles were cut and  bones were fractured.

iii.  Incised wound 5 cms. X 2 cms. on  the back of right writ joint.   Under lying bones were cut through  and through.

iv.     Incised wound 4 cms. X 1 cm. on the  back of left leg just below injury  No.2.

v.      Incised wound 3 cms. X 1 cm. on the  back of left writ joint."

       Accused Darbara Singh was also medico-legally examined  by PW 2, Dr. A.S. Mann, at about 1.30 p.m. on the same day   and the following injuries were found on his person :

"1.     Incised wound 11 cms. X 2 cms.    oblique in palm of right hand on  lower part 2 cms. deep with  bleeding.

2.  Incised wound 2 cms. X = cm. on  palmer aspect of right index finger  on the promimal phallanx with  bleeding. Injury was 1 cm. Deep.

3.      Reddish abrasion 1/3 cm. X < cm. on  back and upper and of right hand  little finger.

4.      Reddish abrasion with over lying  lacerated wound 1.5 cm. X 1/4 cm.  Oblique on back of right and ring  finger on proximal phallanx.   Injury was 1/3 cm. deep with  bleeding.

5.      Lacerated wound = cm. X <  cm. X  1/3 cm. on back of right hand  middle finger on proximal phallanx  with bleeding.

6.      Incised wound 2.5 cm. X = cm. on  palmer aspect of left hand index  finger on the distal phallanx with  bleeding, 1 cm. deep.

7.      Incised wound 3 cms. X = cm. on  outer side of root of left thumb  with bleeding 1.5 cms. deep.

8.      Incised wound 20 cms. X 7 cms.  slightly oblique and almost  vertical on back of right abdomen  crossing the mid line.  Depoth

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could be easily traced upto 10 cms.  

9.      Incised wound 3 cm. X 2 cms. X 2.5  cms. oblique on postere medial side  of left thigh in middle one third  with bleeding."

       Accused No.1, Virsa Singh, was also medico-legally  examined by the same doctor at about 2.20 p.m. on that day  and following injuries were found on his person.

"1.     Incised wound 5 cm. X = cm. and  bone deep on right side of skull,  oblique in direction 6.5 cms.  vertically behind the middle of  right eye brow with bleeding.

2.      Lacerated wound 1 cm. x 1/3 cm. and  bone deep in mid line and centre of  forehead.

3.      Incised wound 8 cms. X = cm.  starting from the tip of nose and  going transversally over the right  cheek varying in depth from = cm to  1 cm.  Right ala of nose was cut  through and through with bleeding.

4.      Incised wound 3.5 cms. X 1.5 cms.  transverse in mid line and front of  neck 5 cms. below the thyreid  cartiledge with bleeding.  The  depth could be easily traced upto 2  cms.

5.      Lacerated wound = cm. x 1/3 cm. x  1/3 cm. on palmer surface of left  hand in the we space of thumb and  index finger with bleeding."

       The statement of PW 6 was recorded by the police at  8.10 p.m. on 14.6.1987.

       Despite the fact that two of the accused persons were  in the hospital itself, they were not arrested immediately  as they were undergoing treatment.  Accused Nos. 2, 3 and 5  were arrested on 20.6.1987; whereas Accused Nos. 1 and 4  were arrested On 29/30.6.1987.   

       PW 5 and PW 6 who are also said to have suffered minor  injuries in the said incident were examined by Dr. Tirath  Goel and Dr. A.S. Mann respectively on 13.6.1987 at 5.30  p.m. and on   14.6.1987.   

       The injuries on the person of Avtar Singh as found were  as under :

"1. Lacerated wound 1 cm. x 1 cm.   superficial on the front and lower  part of left thigh.  Fresh bleeding  was present on touching.

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2.      Abrasion 1 cm. x 1 cm. on the right  side of abdomen 5 cms. above the  umlicus."

The following injuries were found on the person of  Balkar Singh :

       "a blush contusion 3 cms. X 3 cms. on  back of left hand index finger over  the meta carpe phallangeal joint with  overlying partially scabbed brownish  abrasion 1.5 cms. X < cm."

Upon completion of the investigation, the accused  persons were charge-sheeted.  The learned Sessions Judge,  Ferozepur disbelieving the prosecution case acquitted the  accused persons by a judgment and order dated 26.8.1988.   The State of Punjab aggrieved thereby and dissatisfied  therewith preferred an appeal thereagainst before the Punjab  and Haryana High Court which was marked as Criminal Appeal  No.402-DB of 1989.            

       By reason of the impugned judgment, the High Court  disagreeing with the view of the learned Sessions Judge came  to the conclusion that the accused persons were guilty of  commission of the offences under Section 302 and 302/149 IPC  and sentenced them to undergo the rigorous imprisonment for  life and passed the following sentences :

"Name of the accused         Offence committed                        Sentence Kulwant Singh U/s 302 IPC for  committing murder  of Kartar Kaur He  shall  undergo  life   imprisonment and   pay  a   fine  of  Rs. 10,000/-  and in default thereof  shall further undergo  rigorous imprisonment for  a term of one year.

Virsa Singh Tara Singh Darbara Singh  and Sahiba Singh   

U/s 302/149 IPC They shall undergo life  imprisonment and pay a  fine of Rs.10,000/- each  and in default thereof  shall further undergo  rigorous imprisonment for  a period of one year  each.

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Virsa Singh Kulwant Singh Tara Singh Darbara Singh U/s 302/149 IPC  for committing the  murder of Partap  Singh They shall undergo  imprisonment and pay a  fine of Rs.10,000/- each  and in default  thereof   shall   further   undergo rigorous imprisonment for  a period of one year  each.

Sahiba Singh U/s 323 IPC for  causing injuries  to Avtar Singh  He shall undergo rigorous  imprisonment for six  months and pay a fine of  Rs.1000/- and in default  thereof, shall further  undergo rigorous  imprisonment for one  month.

Virsa Singh Kulwant Singh Tara Singh  and Darbara  Singh U/s 323/149 IPC They shall undergo  rigorous imprisonment for  six months and pay a fine  of Rs.1000/- each and in  default thereof shall  further undergo rigorous  imprisonment for one  month each.

Virsa Singh U/s 323 IPC  for  causing injuries   to Balkar Singh He shall undergo rigorous  imprisonment for six  months and pay a fine of  Rs.1000/- and in default  therefor, undergo  rigorous imprisonment for  one month.

Kulwant Singh Tara Singh Darbara Singh  and Sahiba Singh

U/s 323/149 IPC

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They shall undergo  rigorous imprisonment for  six months and pay a fine  of Rs.1000/- each and in  default thereof, shall  further undergo rigorous  imprisonment for one  month each."    

       All the substantive sentences awarded to the respective  accused persons were directed to run concurrently.  It was  further directed that the fine, if recovered, shall be paid  by way of compensation to the heirs of the respective  deceased in equal shares.

       Mr. UU Lalit, learned counsel appearing on behalf of  the appellants would submit that the High Court committed a  manifest error in passing the impugned judgment insofar as  it failed to take into consideration that in the facts and  circumstances of this case, the appellants, their brother  and father should have been held to have exercised their  right of private defence having regard to the nature of  injuries suffered by Accused Nos. 1 and 4.

       Mr. Lalit would submit that the nature of injuries on  the person of the said accused are pointers to the fact that  the complainants were the aggressors.  The learned counsel  would contend that the alleged immediate cause leading to  the occurrence was that Harnam Singh’s field used to be  irrigated through the water drawn from the tubewell of the  complainant and when Darbara Singh was cleaning the water  channel, Partap  Singh  came whereupon the verbal  altercation ensued; whereafter they came being armed with  weapons and attacked Darbara Singh.  According to the  learned counsel, Harnam Singh was armed with ’Khund’, a hard  and blunt weapon whereas Partap Singh came with a sharp- edged weapon and while he was attacked Darbara Singh tried  to ward away the attack with his both hands, as a result  whereof he suffered as many as five injuries on his two  palms.

       The learned counsel would point out that Darbara Singh  was evidently working in the field as he had been found by  the doctor to be bare chested. It was contended that only  upon noticing Darbara Singh being assaulted with ’Khund’, a  blunt weapon, Virsa Singh came to his rescue and he had also  been attacked and only in the said scenario Virsa  Singh  exercised his right of private defence.  Kartar Kaur,  however, who had come in the meanwhile at the place of  occurrence unfortunately suffered injuries resulting in her  death.   

       Mr. Lalit would urge that had the complainant been not  aggressors, there was no reason as to why PW 5 and PW 6  would suffer only minor injuries.  Sufferance of such  injuries by the said witnesses, Mr. Lalit would contend, is  doubtful, as in the opinion of the doctor they could be  self-inflicted.  Mr. Lalit would further argue that there is  nothing on records to show that except Darbara Singh and  Virsa Singh, any of the other three accused persons was  present at the place of occurrence and participated therein.   According to Mr. Lalit, only in the aforementioned fact  situation, the trial court found the presence of PW 5 and PW  6 at the place of occurrence to be doubtful and furthermore

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held that having regard to the injuries on the persons of  Darbara Singh and Virsa Singh, they were entitled to  exercise their right of private defence.  In that view of  the matter, the learned counsel would argue, that the High  Court should not have interfered with the judgment of  acquittal passed by the leaned Sessions Judge having regard  to the fact that the said defence had been raised from the  very beginning of the trial.

       Mr. Lalit would further submit that the statements of  Partap Singh in the facts and circumstances of the case,  should not have been treated to be a dying declaration.

       So-called dying declaration of Partap Singh in effect  and substance, Mr. Lalit would submit, was a statement under  Section 161 of the Code of Criminal Procedure and the same  was not reliable in view of the fact that Partap Singh died  five days thereafter.

       The learned counsel would urge that the High Court  failed to consider the nature of the injuries suffered by  the accused persons which having regard to the materials  brought on records would clearly prove that the accused  persons exercised their right of private defence.  Mr. Lalit  would further submit that the prosecution failed to prove  that the injuries caused to the accused persons by PW 5 and  PW 6 were by way of exercise of their right of private  defence as merely a bald statement had been made in the   first information report to the said effect and furthermore  PW 5 and PW 6 also did not elaborate thereabout in their  depositions before the Sessions Court.

       Mr. Lalit would argue that as the judgment of acquittal  passed by the learned Sessions Judge in the aforementioned  situation was reasonable, the High Court should not have  interfered therewith.

       Mr. OK Khullar and Mr. Arun Kumar Sinha, learned  counsel appearing on behalf of the State and the  complainant, on the other hand, would submit that from the  site plan prepared by the investigating officer, it would  appear that the occurrence took place in the field of the  first informant.  The learned counsel would contend that as  the date and place of occurrence as also the nature of  offence stand admitted, it was for the accused persons to  prove that the informant party were the aggressors and they  exercised their right of private defence.  The learned  counsel would contend that even if the contention of the  appellants is accepted, no explanation has been offered as  to why Kartar Kaur was done to death.   It was pointed out  that from the materials on records, it would appear that she  was subjected to assault despite falling down on the field.

       The principal questions which arise for consideration  in this appeal, in view of the rival submissions made by the  learned counsel for the parties are:

(i)     whether the accused persons were entitled to  exercise their right of private defence; (ii)    in any event whether they exceeded the same in  doing so; (iii)   Whether the statement of Partap Singh recorded on  18.6.1987 should be construed to be a dying  declaration?

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Before adverting to the rival contentions, as noticed  hereinbefore, it may be noticed that Accused Nos.1 and 3  have since died.   

It is not in dispute that the deceased Kartar Kaur and  the injured Partap Singh were brought to the hospital by PW  5, Avtar Singh. According to the prosecution, Balkar Singh  had gone to his maternal uncle’s place to inform him about  the incident and as such he was examined by the police on  the next day of occurrence.  The materials on records  further show that the investigating officer having been  informed about the incident by Dr. Mann wanted to record the  evidence of Partap Singh as he was an injured witness but as  he was not declared fit to make a statement, the statement  of PW 5 was recorded and the same was treated as the first  information report.   

       We may at the threshold examine the question as to  whether the statement of Partap Singh could be treated to be  a dying declaration.

Section 32 of the Indian Evidence Act, 1872 nowhere  states that the dying declaration must be recorded in the  presence of a Magistrate or in other words no statement  which has not been recorded before the Magistrate cannot be  treated to be a dying declaration. The fact that the  investigating officer from the beginning intended to take  the statement of Partap Singh is not in dispute. The  endorsement made by the doctor in Ex.PQ/1 and Ex.PR/1 would  clearly show that he had not been found fit to make such  statement. Only on the fifth day i.e. 18.6.1987, the  statement of Partap Singh could be recorded.   

Section 32 of the Indian Evidence Act also does not  state that a dying declaration should be made only in  expectation of death and in that view of the matter the fact  that Partap Singh died on 26.6.1987 after a period of one  week is of no consequence.  Explanation-I appended to  Section 32 specifies that when the statement is made by a  person as to the cause of his death, or any of the  circumstances of the transaction which resulted in his death  where cause of death of that person’s death comes into  question would be a relevant factor.   

PW-9, the investigating officer Hukam Singh has proved  the statement of Partap Singh.  He deposed that he was fully  conscious when he made the statements which were read over  to him.  In that view of the matter the said statements are  admissible under Section 32 of the Indian Evidence Act.

The statement of PW-1 in no unmistakable terms shows  that the condition of Partap Singh was very serious.   

       In Ramawati Devi vs. State of Bihar [AIR 1983 SC 164] ,  this Court observed :

"...A statement, written or oral, made  by a person who is dead as to the cause  of his death or as to any of the  circumstances of the transaction which  resulted in his death, in case in which  the cause of that person’s death comes  into question, becomes admissible under  section 32 of the Evidence Act. Such  statement made by the deceased is

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commonly termed as dying declaration.  There is no requirement of law that such  a statement must necessarily be made to  a Magistrate. What evidentiary value or  weight has to be attached to such  statement must necessarily depend on the  facts and circumstances of each  particular case. In a proper case, it  may be permissible to convict a person  only on the basis of a dying declaration  in the light of the facts and  circumstances of the case. In the  instant case, the dying declaration has  been properly proved..."

       In Tehal Singh and Others vs. State of Punjab  [AIR  1979 SC 1347], this Court negatived the contention that a  dying declaration should be made only in expectation of  death, stating :

"... We do not also see any force in  the suggestion of Dr. Chitale that the  statement of Harmel Singh was not made  in expectation of death and was,  therefore, not entitled to weight. Apart  from the fact that Section 32 of the  Evidence Act does not require that a  statement should be made in expectation  of death, it is clear from the evidence  that the condition of Harmel Singh was  serious at that time. In the requisition  made by the Medical Officer to the  Police it has been clearly mentioned  that the condition of Harmel Singh was  serious. The very circumstance that Dr.  Pasricha advised that Harmel Singh  should be removed to Bhatinda Hospital  for better treatment clearly indicates  that the condition of Harmel Singh was  serious..."

In that view of the matter, the statement of Partap  Singh, in our opinion, would be admissible under Section 32  of the Indian Evidence Act.

The prosecution case as emerging from the first  information report would clearly show the respective parts  played by the accused persons. The allegations made in the  first information report and the statements made before the  court by PW 5, Avtar Singh and PW 6, Balkar Singh, who were  the eye-witnesses as also the dying declaration of Partap  Singh clearly indicate the manner in which the offence had  been committed and injuries had been inflicted upon the  deceased.            The autopsy report of Kartar Kaur further demonstrates  that injury no.2 inflicted on her, an incised wound of 10  cms. X 3 cms. on the back of left let as a result whereof   underlying vessels and muscles were cut and bones were  fractured, was in the opinion of the doctor, sufficient to  cause death in the ordinary course of nature.  

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The injury report of Partap Singh also would clearly  show that injury no.2 suffered by him which was an incised  wound 3 cms. x 1 cm. (at center) oblique on front and right  side of abdomen 5 cms medial, was in the opinion of the  doctor was dangerous to his life, which came to be true.   

       The injuries caused on the deceased Kartar Kaur and  Partap Singh were found to have been caused within six  hours.  The boundary dispute between the parties as also a  dispute with regard to irrigation of the accused field from  the water taken from the tubewell of the complainant are  admitted.   

       The statement of Partap Singh is also material.  He was  seriously injured and was examined by Dr. Tirath Goel (PW- 1). He, continuously for days was not found fit to make any  statement and endorsement to the said effect was made by the  said doctor to the investigating officer in Ex.PQ/1 and  Ex.PR/1.  Only on the fifth day, he was found fit to make a  statement as would appear from the endorsement marked as Ex.  P.5/1 made by the Dr. Goel whereupon only a statement was  recorded by the investigating officer.  The statement of  Partap Singh marked as Ex.P00 was recorded on 18.6.1987 by   ASI Hukam Singh.            The appellants did not dispute the aforementioned  facts; neither the statements of PW-1 and PW-9 in this  behalf were put to test in cross-examination.   

It is not essential that a dying declaration should be  made only before a Magistrate.

       We would deal with the question of admissibility of the  statement made by Partap Singh, a little later but suffice  it to point out at this juncture that the statements of  Partap Singh stand corroborated by the evidence of Avtar  Singh (PW-5) and Balkar Singh (PW-6).  Even if the evidence  of Balkar Singh is held not to be reliable, as has been  submitted by Mr. Lalit, we find no reason to disbelieve the  statements of Avtar Singh (PW-5).  He categorically stated  that when they were working in the field, their mother had  come with food and when they just finished taking the same,  the accused persons came and Virsa Singh gave a ’lalkara’  whereupon accused persons inflicted blows on Partap Singh,  Kartar Kaur and PW-5 and PW-6.   The sufferance of minor  injuries by PW-5 and PW-6 at the hands of the accused  persons appears to be more probable as by the time they  realized their position and went to the actual place of  occurrence upon collecting their weapons and assaulting  Darbara Singh and Virsa Singh therewith, the accused persons  might have realized that they had already inflicted fatal  blows on Kartar Kaur and Partap Singh and in the meanwhile  they had also suffered injuries at the hands of the  informant party.  Partap Singh suffered two Barchha blows at  the hands of Sahiba Singh, one in the abdomen and another in  the chest whereas Virsa Singh appears to have inflicted a  Takwa blow.  These injuries are corroborated by medical  evidence.   

       Similarly, the statements made in the first information  report as also before the court by PW-5 as regard nature of  injuries suffered by Kartar Kaur also stands corroborated by  medical evidence.  The presence of PW-5 and PW-6 at the  place of occurrence cannot be disbelieved only on the ground  that the injuries found on their persons were found to be

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simple in nature.  They might have suffered simple injuries  because they might have collected their arms so as to make  counter attacks after seeing unarmed Kartar Kaur and Partap  Singh having been seriously injured.

       Chapter IV of the Indian Penal Code provides for the  general exceptions.  Sections 96 to 106 which occur in the  said chapter deals with the right of private defence.   Section 96 says that nothing is an offence which is done in  exercise of the right of private defence.  This right,  however, is available to a person who is suddenly confronted  with immediate necessity of averting an impending danger  which is not his own creation.  The necessity must be  present, real or apparent.  It is preventive and not  retributive.  [See Laxman Sahu vs. State of Orissa, AIR 1988  SC 83].                  The question, whenever a right of private defence is  claimed, must be judged from the nature of occurrence, the  circumstances in which it had occurred and whether the  person claiming such right has acted legitimately.   Attending circumstances would also be relevant for judging  the same.   

       It is well-settled that the burden to prove the same is  on the person who raises such plea.  For the purpose of  proving the same, the accused may rely upon the materials on  records brought by the prosecution in addition to examining  the witnesses and adducing positive evidences, if any.  A  person has a right of private defence of  body under Section  97 and in the event it is found that he was entitled to  exercise the same, he necessarily must be held to have a  right to cause death in terms of Section 100 of  the Indian  Penal Code, if there was a reasonable apprehension that  death or grievous  hurt would be caused.   

For arriving at a finding as to the whether the accused  persons had legitimately exercised their right of private  defence, it is necessary to pass the question as to who had  started the assault.   

The place of occurrence is the agricultural field of  the informant.  It will, therefore, be safe to presume that  the accused persons trespassed into the property of the  informant. The fact that at least two of the accused persons  were armed with sharp-edged weapons like Kirpan or Kappa is  not disputed.  If they had trespassed into the agricultural  field of the informant with deadly weapons, it is difficult  to presume in absence of any material on record that the  initiation of the assault was from the side of the  informant.  It stands admitted that the Accused Darbara  Singh was cleaning the water channel which passes through  the field of the informant.  There is also no reason to  disbelieve the statements of PW-5 and PW-6 as also the dying  declaration of Partap Singh that their mother had brought  food for them and they had taken the food and incident took  place immediately thereafter.  As noticed hereinbefore, the  injuries inflicted on deceased Kartar Kaur is not disputed.   She was not and could not have been armed with any weapon.  She did not take any part.  She ever did not incite her sons  to assault the accused persons.  If the informant party was  the aggressor, there was no reason as to why she would run  towards the place where the fight was taking place,  resulting in causing of injuries on the person of Partap  Singh.  She apparently tried to intervene seeing her sons

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being assaulted with sharp cutting weapons.  She had been  inflicted with as many as five sharp-cutting injuries, three  on the leg and two on the wrist.  There does not appear to  be any reason as to why an aged lady was done to death.  The  impact of the blows on her person would be evident from the  autopsy report.  Apart from the cumulative effect of five  injuries inflicted on her person, as noticed hereinbefore,  injury no.2 was sufficient to cause death in ordinary course  of nature.  It defies common sense, if the prosecution story  is accepted that PW-5 and PW-6 were not present at the place  of occurrence, that the deceased Partap Singh alone would  single handedly attack the accused persons who were five in  number and variously armed.     Virsa Singh himself and his four sons are said to have  taken part in the occurrence.  There were five male members  on the side of the accused whereas three were there on the  side of the informant. The nature of the weapons used in the  commission of offence also suggests that they are not  ordinarily required to be carried on their persons, even on  religious ground.   

It may be true that Darbara Singh suffered five  injuries out of nine injuries on both palms but only because  he might have tried to ward off the assault of the blows   which were inflicted on him by themselves cannot be  conclusive that he was attacked first.  Another factor which  deserves attention of this Court is that the occurrence  which had taken place at about 10.30 a.m. on 13.6.1987  whereafter, PW-5 went back to the village to inform his  cousin, brought a tractor and took the injured Kartar Kaur  and Partap Singh to hospital.  The distance between the  place of occurrence and the hospital is said to be about 9  k.m.   On the way Kartar Kaur died and Partap Singh was  examined at 12.30 p.m.  It is not in dispute that they were  brought to the hospital by PW-5 and in that view of the  matter his presence at the place of occurrence appears more  probable.   On the other hand, the injured Darbara Singh and  Virsa Singh were brought to the hospital by Kulwant Singh at  least one hour thereafter.  Presence of Kulwant Singh also,  thus, appears to be probable.  Despite suffering such  injuries why they were not rushed to hospital has not been  explained.  Furthermore, Dr. A.S. Mann (PW-2) immediately  informed the officer incharge about the incident.  The  police came to the hospital, the first information report  was lodged at 4.30 p.m.  If the informant and his brothers  were the aggressors, it was expected, that the injured  Darbara Singh and Virsa Singh or the Appellant no.1, Kulwant  Singh, would have made such statements before the police  officer giving details as to the mode and manner in which  the incident had happened and as to how Virsa Singh and  Darbara Singh suffered such grievous injuries, particularly  when PW 2 in his evidence categorically stated that Virsa  Singh was fully conscious and could talk clearly.

The records also reveal that weapons of attacks were  recovered at the instance of both Kulwant Singh and Sahiba  Singh.  The spear and kirpan which were recovered were found  to be blood-stained.  We, therefore, are of the opinion that  there does not exist any legal infirmity in the findings of  the High Court.   

For the reasons aforementioned, we are of the opinion  that the accused persons have not been able to discharge  their onus of proof that they had killed the deceased in

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exercise of their right of private defence.   

The appeal being devoid of any merit is dismissed.