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PETITIONER: PARAMJIT

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       11/05/2000

BENCH: Doraswami Raju, G.B.Pattanaik, S.N.Variava

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J       S.  N.  VARIAVA, J.

     These  two Criminal Appeals can be disposed of by this common  Judgment.   Both  the Appeals are  filed  against  a Judgment  dated 11th September, 1997 of the Punjab & Haryana High  Court.   The  High  Court   has  convicted  both   the Appellants  under Section 302 read with Section 34 I.P.C and sentenced  them  to undergo rigorous imprisonment for  life. The  High  Court  has  enhanced the fine  from  Rs.500/-  to Rs.2,000/-  each  and  in  default of  payment  thereof  the Appellants are to undergo rigorous imprisonment of 6 months.

     Briefly  stated the facts are as follows:  The case of the prosecution is that on the evening of 18th August, 1993, one  Subhash  and  one Raj Pal, both  residents  of  village Babail  had  a quarrel.  On 19th August, 1993, as  the  said Subhash  was returning from the fields, carrying a bundle of jowar,  Raj  Pal with two other persons intercepted him  and gave  him a beating.  Subhash then complained to Ex-Sarpanch of  the village, who in-turn complained to the father of the Raj  Pal,  one Bhalle Ram that his son should not behave  in this  manner.  On 20th August, 1993 there was again a heated exchange  between members of the family of these two persons and  there was threat, by one Arjun Singh (from the group of the  Appellants) that they would come with lathis.  On  21st of August, 1993, there was again an exchange of word between family  members of Raj Pal and the son of one of the accused by  name Mahiya.  During this exchange the family members of Raj  Pal  taunted the said Mahiya that they only give  empty threats and did not carry them out.

     It is the case of the prosecution that thereafter at 7 a.m.  on 21st of August, 1993 while Raj Pal along with Fateh Singh,  Ram  Mehar  and Ram Chander was sitting  on  a  cot, spread  outside  the  house  of  Ram  Mehar,  Paramjit  (the Appellant  in  Crl.  Appeal No.882/99) armed with  a  double barrel  gun (belonging to his father), persons by names Nafe Singh,  Molar, Randhir, Ram Singh (son of one Jailu),  Arjun Singh,  Rajinder  and  one  Raj  Kumar  armed  with  lathis, Lachhman  Singh, Bhalle Ram, Ram Singh (son of one  Harbans) armed  with jailies, Jaswant Singh armed with a gandasi  and Mahinder  Singh  (the Appellant in Crl.   Appeal  No.883/99) armed  with a double barrel gun came there.  Mahinder  fired

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from  his  .12 bore double barrel gun and the shot  hit  Ram Chander.   On hearing the shot certain other people came out from  the house.  At that time Paramjit fired two shots from his  gun.  Thereafter Mahinder Singh fired another shot from his  gun.  The shots hit one Balkar, Om Pati and Ram Chander on  various  parts of their bodies.  It is the case  of  the prosecution  that Jaswant Singh then gave a gandasi blow  on the  left  arm  of Raj Pal, and Molar gave a lathi  blow  on head,  left arm and nose of Raj Pal.  It is the case of  the prosecution  that several other injuries were caused to  the other  members of the complainant party.  In the fight which took  place Raj Pal and Ram Mehar caught hold of the gun  of the  Appellant  herein  and  broke  it  into  pieces.   Some injuries  were  also  caused to some of  the  accused.   The accused then ran away from the scene carrying their weapons.

     It is the case of the prosecution that Ram Chander was removed  to  the  General  Hospital at Panipat  but  he  was declared dead on arrival.

     The  FIR in this respect was registered at 10.55  a.m. on the same day.  Initially PW18, Sub Inspector Bhagat Singh recorded  a report in the daily diary register and  recorded the  statement  of PW 10 i.e.  Ram Mehar.  Thereafter PW  16 i.e.   Sub Inspector Badan Singh, who was the SHO of  Police Station  Sadar  Panipat, took up the investigation from  ASI Bhagat  Singh.   He then made his way to village Babail  and examined  the  place  of  the occurrence  and  lifted  blood stained  earth  from two places and an empty shell of a  .12 bore  cartridge  from the place of occurrence.  He  recorded the  statements  of various witnesses and then arrested  Ram Singh  (son of Jailu), Jaswant Singh, Randhir, Rajinder  and Sanjay.   On 30th August, 1993, Mahinder (Appellant in  Crl. Appeal  No.  883/99) was arrested.  Pursuant to a disclosure statement  made  by him, a double barrel gun along with  two fired cartridge cases still in the gun barrel was recovered. On  31st August, 1993, Mahiya, Nafe Singh and Ram Singh  son of   Harbans  were  arrested.   As  per   their   disclosure statements the weapons used by them were recovered.  On 18th September,  1993,  Arjun  Singh, Bhalle Ram, Raj  Kumar  and Lachhman  were arrested.  A jaili each was recovered as  per the  disclosure statements made by Bhalle Ram and  Lachhman. A  lathi each was recovered as per the disclosure statements made  by  Arjun  Singh  and   Raj  Kumar.   Paramjit   Singh (Appellant in Crl.  Appeal No.  882/99) was arrested on 28th September, 1993.  A .12 bore double barrel gun was recovered on  the basis of a disclosure statement made by him.   Molar was  arrested on 10th October, 1993.  A lathi was  recovered as per the disclosure statement made by him.

     The  guns and the cartridges were sent to the Forensic Science  Laboratory  at Madhuban.  According to  the  report given  by the Laboratory and supported by the evidence of PW 5,  i.e.   Dr.   L.A.   Kumar, the Deputy  Director  of  the Laboratory,  the gun recovered from Paramjit singh was in  a broken condiiton but could be made serviceable after repairs and  the gun recovered from Mahinder Singh was  serviceable. The Report and evidence proved that the fired cartridge case had  been  fired  from these two guns and that  the  pellets recovered  from the dead-body of Ram Chander and the  person of Balkar Singh were Shot Gun Pellets, which could have been fired from these guns.

     All  the above named persons, who were arrested,  were

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committed  to  the  Session’s Court.  As  they  pleaded  not guilty, they were brought to trial.

     The  prosecution  examined  18  witnesses.   In  their statement  under  Section  313  of   the  Code  of  Criminal Procedure Code, Mahinder Singh denied that he was present at the spot and claimed that because of his good relations with the  family of Molar he had been falsely implicated.  On the other hand Paramjit Singh admitted the incidents but claimed that it was the group of Ram Mehar who were causing injuries to  Molar  and others and that he merely intervened to  save those  persons.  He claimed that he fired the shots to  save himself  and  his companions.  He admitted that his gun  was broken to pieces.

     The  defence  also examined three witnesses, who  were doctors  to show that some of the Accused had also  received injuries.

     The  Sessions Judge considered the evidence in  detail and convicted all the Accused for offences under Section 148 of  the Indian Penal Code as well as Sections 302, 307, 326, 325,  324,  323  read with Section 149 of the  Indian  Penal Code.   Mahinder  and  Paramjit   were  also  convicted  for offences  punishable under Section 27 of the Arms Act, 1959. All   the  Accused  were   sentenced  to  undergo   rigorous imprisonment  for  life and to pay a fine of Rs.500/-  each. In default of payment of fine, they were to undergo rigorous imprisonment for six months.

     All  the  Accused filed Criminal Appeal No.  66-DB  of 1996 in the High Court of Punjab & Haryana.  By the impugned Judgment  dated 11th September, 1997, the High Court came to the conclusion that the incident was in the nature of a free fight and that each of the accused was only liable for their individual  act.  On this basis the High Court held that the prosecution had not proved the case, beyond reasonable doubt in  respect of Bhalla Ram and acquitted him of all  charges. The  High  Court  also  held that the  prosecution  had  not proved,   in  respect  of  all   accused,  other  than   the Appellants,  the  charge  under Section  302/307  read  with Section 149 I.P.C.  and allowed their appeal to that extent. In  respect  of Sanjay, Randhir, Ram Singh (son  of  Jailu), Nafe  Singh,  Rajinder  Singh, Mahiya, Arjun,  Lachhman  and Molar,  the High Court upheld their conviction under Section 323  I.P.C.   but sentenced them to period  of  imprisonment already undergone.  The fine was increased to Rs.1000/- each and  in  default  of payment thereof each  was  directed  to undergo  further  RI  for  three  months.   The  High  Court convicted  Jaswant  Singh for an offence under  Section  326 I.P.C.   and  sentenced  him to the period  of  imprisonment already  undergone.  The fine was enhanced to Rs.1000/-.  In default  thereof he was directed to undergo further RI for 3 months.  The High Court convicted Ram Singh (son of Harbans) for  an offence under Section 325 I.P.C.  and sentenced  him to  the period of imprisonment already undergone.  The  fine was  enhanced to Rs.1000/- and in default thereof he was  to undergo further RI for 3 months.

     In  respect  of Mahinder and Paramjit, the High  Court held that it proved beyond a reasonable doubt that these two persons had fired the guns and that this had resulted in the death  of  Ram  Chander.   These two  Appellants  were  thus convicted  under  Section  302 read with Section 34  of  the Indian   penal  Code  and   sentenced  to  undergo  rigorous

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imprisonment  for  life.   The fine was  enhanced  from  Rs. 500/-  to  Rs.  2000/-.  In default of payment they were  to undergo rigorous imprisonment for six months each.

     Paramjit  and  Mahinder  have   filed  these  Criminal Appeals  against  their conviction by the High  Court.   The State  of Haryana had filed S.L.P.  (Crl.) No.  277 of  1999 against the portion of the impugned Judgment whereby all the other  Accused  were  acquitted of  offences  under  Section 302/307  read with Section 149 I.P.C..  However, that S.L.P. stood dismissed on 19th March, 1999 as Counsel for the State of Haryana was not present.  No Application has been made to have  that S.L.P.  restored.  None of the other parties have appealed against the judgment of the High Court.

     On behalf of both the Appellants it was submitted that these  Appellants  had  acted  in   self  defence.   It  was submitted  that  both the Courts below had ignored the  fact that many of the Accused had also received serious injuries. It  was  submitted that this clearly showed that it was  the other  party  which  were  the   aggressors  and  that   the Appellants  were  merely  defending   themselves.   It   was submitted  that  prosecution  had failed  to  examine  these injured  persons  or to examine any  independent  witnesses. Reliance  was placed in the case of Baddi Venkata  Narasayya and Ors.  vs.  State of A.P., (1998) 2 S.C.C.  329.  In this case  it  was  held  that  in   cases  of  free  fights  the prosecution  case against each accused must be supported  by at least two witnesses.  Based on this it was submitted that the  prosecution  had  not been able to pin-point  any  case against  these  two Appellants.  It was submitted  that  the case  of the prosecution against these two Appellants is not supported by evidence of two independent witnesses.

     Reliance was also placed upon the case of Gajanand and Ors.   vs.  State of Uttar Pradesh, A.I.R.  1954 S.C.   695, and  it  was submitted that if the Court held that this  was not  a  case of free fight, then this was a case  where  the Appellants   were   merely  exercising    their   right   of self-defence.

     On  behalf  of Mahinder it was further submitted  that from  the site of incident only one cartridge was found.  It was  submitted  that even according to the prosecution  more than  three shots had been fired.  It was submitted that  it had not been shown that Mahinder had any common intention to murder or take part in an unlawful assembly.

     On  the  other hand, Counsel for the State of  Haryana has  supported the reasonings and the findings given by  the High Court.

     We have considered the submissions of the parties.  We have  also  read the evidence.  In our view both the  Courts below  are right in holding that, on the earlier days, there had  been  altercations  between  Subhash and  Raj  Pal  and between  their family members.  In our view both the  Courts below have correctly concluded that the chain of events were proved.   In our view it is also proved that on the  morning of  21st  August, 1993, the Appellants, along with  all  the other named persons, had gone outside the house of Ram Maher where  Raj Pal and the deceased Ram Chander was sitting on a cot.   In our view the venue of the incident is proved.   In our  view it is proved that both Paramjit and Mahinder  were armed  with  double  barrel  guns.  This  shows  that  these

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persons  were  the aggressors.  The evidence of a number  of witnesses  shows  that  these two persons  had  fired  their double barrel guns and that the pellets from both these guns had  hit Ram Chander.  The evidence proves that Ram  Chander had died as a result of these gun shot wounds.  In case of a double barrel gun, it is impossible to make out which pellet has  been  fired  from  which  gun.   The  evidence  of  the ballistic  expert  showed  that the injury suffered  by  Ram Chander  and  the pellets removed from his body  could  have been fired from these double barrel guns.  Coupled with this is  the fact that there has been recovery of the guns as per the  disclosure  statement  made by Paramjit  and  Mahinder. Also  it is not even the case of the Appellants that,  apart from  them, any other person/persons had guns.  As the group of the Appellants were the aggressors, both the Courts below have  correctly  held that the injuries received by some  of the Accused were by reason of the other group acting in self defence.   We also find that the presence of Mahinder during the  incident  is  proved beyond a reasonable  doubt.   Also there  is  no substance in the submission  that  independent witnesses  were not examined.  The prosecution only needs to lead  evidence  sufficient to prove its case.  In this  case the   prosecution  has  led   trustworthy  evidence  of  eye witnesses.  Both the courts below have accepted the evidence of  these witnesses and we see no reason to take a different view.   The prosecution has thus proved all necessary facts. In  view  of  these  facts   having  been  proved  beyond  a reasonable  doubt  we find no infirmity in the reasoning  of the High Court in the impugned Judgment.

     We  thus see no reason to interfere.  Accordingly  the Appeals stand dismissed.