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PETITIONER: PRITAM SINGH ETC.

       Vs.

RESPONDENT: STATE OF PUNJAB ETC.

DATE OF JUDGMENT:       20/08/1996

BENCH: M.K.MUKHERJEE, S.P.KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                 THE 20TH DAY OF AUGUST, 1996 Present:           Hon’ble Mr. Justice M.K. Mukherjee           Hon’ble Mr. Justice S.P. Kurdurkar U.R. Lalit,  Sr.Adv., Rajiv  K.Garg, Ajay  Bansal, (Ms. Indu Sharma) (NP)  N.D.Garg, S.B.  Upadhyay, Laxmi  Raman  Singh, (H.M. Singh,)  Adv. for  R.S. Suri,  Advs. with  him for the appearing parties.                       J U D G M E N T The following judgment of the Court was delivered: Pritam Singh V. State of Punjab                             WITH                CRIMINAL APPEAL NO. 63 of 1988 Balbir Singh V. Nachhatar Singh & Ors.                       J U D G M E N T S.P. KURDUKAR, J.      Criminal appeal  No.  157  of  1985  is  filed  by  the appellant-original accused no. 1 under section 14 (1) of the Terrorist Affected  Areas (Special  Courts) Act, Against the judgment and  order dated  9th January,  1985 passed  by the learned Judge,  Special Court,  Ferozepur in  case No. 36 of 1984. The  learned Special  Judge found the appellant guilty of committing  the murder  of  Naib  Singh  and  accordingly sentenced him  to suffer imprisonment for life under Section 302 of  the Indian  Penal Code  and also  sentenced  him  to suffer rigorous  imprisonment for nine months for an offence punishable under  Section 324  of the  Indian Penal Code for causing simple hurt to Balvinder Singh (PW 5). 2. Criminal  Appeal NO 63 of 1988 is filed by Balbir Singh - the complainant  against the  very same judgment challenging the acquittal  of Nachhatar  Singh and  Sukhpal Singh  under Section 302/34  of the  Indian Penal  Code. Since both these appeals arise  out of  the common  judgment, they  are being disposed of by this judgment. 3.   The appellant  is brother  of Nachhatar Singh (A-2) and Sukhpal Singh  is son  of the appellant (A-3). They were put

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up for  trial for  committing the  murder of  Naib Singh and causing grievous  injuries  to  the  prosecution  witnesses. Sukhpal Singh was convicted by the Trial Court under Section 323 of  the  Indian  Penal  Code  but  Nachhatar  singh  was acquitted. 4.   It is  also not  in  dispute  that  Naib  Singh  (since deceased )  was the  first cousin  of appellant. On February 14,  1984,  in  the  morning  hours,  Balbir  Singh  (PW  4) alongwith his  son Naib  Singh was going to the fields. When they reached  the point from where the passage bifurcates to the field of Pritam Singh, Pritam Singh, Nachhatar Singh and Sukhpal singh  (A-1 to  A-3) who  were armed  with gandasas, came there  and raised a lalkara that Balbir Singh (PW 4) be not spared.  The appellant  immediately  attacked  and  gave gandasa blow on the head of Naib Singh. Naib Singh sustained a bleeding  injury and  fell down.  The  other  two  accused caused injuries  to Balbir  singh (PW 4) with the gandasas.. Balvinder Singh  (PW 5)  on hearing  the alarm  reached  the place of  occurrence. The appellant gave gandasa blow on his head also.  Nachhatar Singh  (A-2) gave two gandasa blows to Balvinder Singh  (PW 5) from the blunt side. Balvinder Singh (PW 5)  at the  relevant time was having kasauli and in self defence used  the same  causing injuries to Pritam Singh-the appellant and  Nachhatar  Singh  (A-2).  This  incident  was witnessed by   Thana  Singh (PW  6). Thana  Singh (PW 4) and Balvinder Singh  (PW 5) to the Civil Hospital at Gidderbaha. Dr. N.G. Garg (PW 2) declared Naib Singh dead. Dr. N.C. Garg (PW 2)  examined Balbir  Singh (PW  4) and issued the injury certificate. Dr.  N.C. Garg  (PW 2)  also examined Balvinder Singh (PW 5) and found two injuries on his person. Paras Ram (PW 8) Station House Officer, Police Station, Gidderbaha, On receipt of the Information went to the Hospital and recorded the statement  of injured Balbir Singh (Ex. P12) and treated the same  as formal  P.I.R. The  crime came to be registered against three  persons under  Sections 302, 323 and 324 read with Section  34 of  the Indian Penal Code. After completing the necessary  investigation, the  accused were  put up  for trial for the aforesaid offences. 5.   Nachhatar Singh  (A-2) had also sustained injuries went to the Civil Hospital. Gidderbaha for medical treatment. His statement was  also recorded by Paras Ram (PW 8) SHO, Police Station, Gidderbaha. 6.   The defence  of the  accused  is  that  they  have  not committed any  offence  and  pleaded  that  the  members  of complaint partly  were aggressors and infact Balvinder Singh (PW 5)  who was  armed with  kasauli  assaulted  and  caused injuries to Pritam Singh (A-1) and Nachhatar Singh (A-2). In exercise  of  their  right  of  private  defence  they  were compelled to  retaliate the  assault. They have committed no offence. They are innocent and they be acquitted. 7.   The prosecution  in support  of its case examined eight witnesses. Balbir  Singh (PW  4) and  Balvinder Singh (PW 5) are the  eye witnesses.  PW2 is  Dr. N.C. Garg who performed the autopsy  on the dead body of Naib Singh  and also issued injury certificates to the injured prosecution witnesses and to Nachhatar Singh (A-2).      The learned  Trial Judge after considering the evidence led by  the prosecution  and the  defence taken  up  by  the accused held the appellant guilty of an offence of murder of Naib Singh  punishable under  Section 302  IPC and sentenced him to  suffer imprisonment for life. The appellant was also found guilty  of an  offence punishable under Section 324 of the Indian  Penal Code  for causing simple hurt to Balvinder Singh and  sentenced him to suffer rigorous imprisonment for nine months, It may be stated that we are not concerned with

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the other two accused in this appeal. 9.   Mr.  U.R.  Lalit,  the  learned  counsel  appearing  in support of  this appeal  urged that  the evidence  of Balbir Singh  (PW   4)  and  Balvinder  singh  (PW  5)  is  totally unreliable being  close relations  of deceased  Naib  Singh. Both these  witnesses had suppressed the true facts from the Court relating  to the  incident. He  then urged that infact the members of the complainant party were the aggressors and initially they  opened up the assault on Nachhatar singh who had sustained  as many  as seven  injuries out  of which two were incised  wounds and  one was  lecerated wound.  Learned counsel urged  that the  trial court has totally misread the evidence of  Balbir Singh  (PW 4) and Balvinder Singh (PW 5) and  wrongly  convicted  the  appellant  for  the  aforesaid offences. 10. Mr. H.M. Singh, learned advocate appearing for the State of Punjab supported the impugned judgment. 11.  At the  outset, it  may be  stated  that  there  is  no serious challenge  before us to the fact that Naib Singh met with a homicidal death. 12.  The next  question that  falls for our consideration is as to  which party  was the  aggressor and whether appellant and his associate had any right of private defence.      The prosecution  story mainly  rests on the evidence of Balbir Singh  (PW 4)  and Balvinder Singh (PW 5) who claimed to be  the eye witnesses. Balbir Singh is the father of Naib Singh (since deceased). Balvinder Singh (PW 5) is the son of PW4. P.W.4  has stated  that field of appellant is adjoining to their  field. On February 14, 1984 at about 10.15 a.m.,he alongwith his son Naib Singh were going to the fields and at the relevant  time A-1 to A-3 were in their field. When they reached the  spot which  bifurcates the passage, on going to the field  of  appellant  and  other  going  to  his  field, suddenly, the appellant Nachhatar Singh (A-2), Sukhpal Singh (A-3) came  to that  junction, they were armed with gandasas and said  that he  (PW 4) would not be spared. the appellant thereafter opened  the attack  and gave gandasa blows on the head of  Naib Singh. Nachhatar Singh (A-2) and Sukhpal Singh (A-3) gave  gandasa blows  on his  head by  the blunt  side. Sukhpal Singh (A-3) again tried to gave gandasa blow to him, however, he  warded off  the same but sustained an injury on his left  arm. He then fell down. nachhatar singh (A-2) gave two more  blows with  gandasa on  his head.  He then gave an alarm and  thereafter his  son Balvinder  Singh (PW  5) came there. The  appellant suddenly  gave the gandasa blow on the head of  Balvinder Singh  (PW 5). Other accused persons also assaulted Balvinder  Singh   (PW 5 ) then wielded kasauli in his self  defence and  in that  process Nachhatar  Singh had sustained injuries.  When again  an  alarm  was  given,  the accused fled  away. Balbir  Singh (PW  4)  has  been  cross- examined at  great length  but, however, he stood firmly and asserted that  initially the  appellant and  his  associates opened up the assault and the appellant first gave a gandasa blow on  the head  of Naib  Singh. He  also further asserted that the  appellant and  other accused  assaulted him (PW 4) and Balwinder Singh (PW 5). 13.       The  evidence of  Balvinder Singh (PW 5) is almost identical in material particulars and he stated that when he heard the  alarm given by his father Balbir Singh (PW 4), he come to  the spot  and noticed  that the appellant and other accused were  assaulting his  father Balbir Singh (PW 4) and Naib Singh.  He was  also assaulted by Nachhatar Singh (A-2) and other  accused persons.  Apprehending danger to his life and his  father and brother, in self defence, he wielded the kasauli in which Nachhatar had sustained the injuries. There

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is nothing  in the  cross-examination which would make us to disbelieve the evidence of these two eye witnesses. 14.      Mr.  U.R. Lalit, however, urged that there is total artificiality in  the evidence  of Balbir  Singh (PW  4) and Balvinder Singh (PW 5) when they tried to split the incident into  two   parts.  According  to  learned  counsel,  infact complainant party  was the  aggressor and they had assaulted the appellant  and Nachhatar  Singh and  caused incised  and lacerated injuries  to them.  In support of this submission, he  drew   out  attention  to  the  injury  certificates  of Nachhater Singh  (A-2). It  is true that Nachhatar Singh had sustained two  incised and one lacerated wound but, however, having regard  to the  evidence of  Balbir Singh  (PW 4) and Balvinder Singh  (PW 5)  which  is  totally  free  from  any contradiction/omission, it  is difficult  to accept that the complainant party  was the  aggressor. Once  the evidence of Balbir Singh (PW 4) Balvinder Singh (PW 5) is accepted being truthful as  regards the  initial start  of assault  by  the appellant and  his  associates,  it  must  follow  that  the appellant and  his associates  were the  aggressors and when they were  assaulting Naib  Singh, Balbir  Singh (PW  4) and Balvinder  Singh   (PW  5)  with  the  deadly  weapons  like gandasas, Balvinder  Singh (PW  5) was  totally justified in retaliating the  attack in  self defence.  It may  be stated that even  in the  First Information  Report lodged  by  the complainant, the injuries sustained by Nachhatar Singh (A-2) were also  mentioned. During  the trial,  PW 4 and PW 5 also explained the injuries sustained by the appellant as well as Nachhatar Singh (A-2). 15.  After careful  consideration of the evidence on record, we are  satisfied that the impugned judgment suffers from no error of law or fact and does not call for any interference. Appeal to  stand dismissed.  Appellant, who  is on  bail, to surrender  to   his  baibond  forthwith  to  serve  out  the remainder of his sentence. 16.       Coming to the criminal Appeal No. 63 of 1988 field by the complainant, we are of the considered opinion that no interference is  called  for.  Accordingly,  the  appeal  is dismissed.