REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 178-179 OF 2009

State of Punjab ….Appellant Versus

Gurlabh Singh and another ….Respondents

WITH CRIMINAL APPEAL NO. 180 OF 2009

Rajesh Narang ….Appellant

Versus

State of Punjab ….Respondent

J U D G M E N T  

S.B. SINHA, J.

1. Rajesh Narang and Gurlabh Singh stood trial for commission of an  

offence  for  causing death of  one Karanjit  Singh,  a  student  of  D.A.V.  

College, Abohar.   He was a resident of village Burj Muhar.  He used to  

go to the college by bus.  

2. The prosecution case is  that on 7th February, 1995 at 8.00 a.m.,  

Bakhtaur Singh (informant), a student of B.A. Part I in D.A.V. College,  

Abohar  and  a  resident  of  village  commonly  known  as  Dharangwala,  

alongwith Gagandip Singh son of Gurbans Singh and Mohinder Singh  

son of Simarjit Singh residents of the same village reached the bus stand  

of  their  village.   They boarded a  bus bearing registration No.  PB-05-

9710.   Deceased  Karanjit  Singh,  who  was  a  resident  of  Village  Burj  

Muhar and student of the same College was also travelling in the same  

bus.  When they crossed octroi post situated at Malout Road they found a  

Gypsy bearing No.HNX – 5000 standing on the road.  Raju Narang @  

Rajesh Narang armed with a DBBL gun signaled the bus to stop.  When  

the bus stopped, Raju Narang and Gurlabh Singh entered into the bus and  

allegedly dragged the deceased out of it, whereafter on being asked by  

Raju Narang, Gurlabh Singh fired a shot from his .12 bore DBBL gun  

which hit the deceased.  On alarm being raised, the appellants are said to  

have run away in the said gypsy.   

3. Karanjit Singh was taken to the hospital in the same bus.  On their  

way,  they  met  Paramjit  Singh  son  of  Balwant  Singh,  resident  of  

Dharangwala.  The motive for commission of the offence is said to be  

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that few days prior thereto a quarrel had taken place between accused and  

the deceased and the latter was threatened by the accused that he would  

be taught a lesson.   

On the basis of the abovesaid statement made by Bakhtawar Singh  

a First Information Report was recorded at 10.30 a.m. on the same date.  

A special report was also sent to the Judicial Magistrate Incharge, Abohar  

on the same date at 6.05 p.m.   

4. The prosecution in support of its case examined the first informant  

Bakhtawar Singh as PW-1; Mohinder Singh, PW-2 and two doctors, who  

examined the deceased and conducted the post-mortem examination on  

his dead body, namely - Dr. Lal Chand Thakral, as PW-3, and Dr. Daljit  

Singh Kochar as PW-4.

5. One Mahabir  Singh, who was said to be the gunman of Rajesh  

Narang was also arrayed as an accused.  He was, however, discharged  

during trial.   

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6. The learned Sessions Judge, Ferozepore by his judgment and order  

dated 8th August,  1997 while convicting accused Gurlabh Singh under  

Section 302 of the Indian Penal Code, convicted accused Rajesh Narnag  

under Section 302/34 thereof.  Both of them were sentenced to undergo  

imprisonment for life and to pay a fine of Rs.3,000/- each in default to  

further  undergo  rigorous  imprisonment  for  one  year  each.   Accused  

Rajesh Narang was also convicted under Section 29 of the Arms Act and  

was sentenced to undergo rigorous imprisonment for three years and to  

pay  a  fine  of  Rs.500/-.,  in  default  to  further  undergo  rigorous  

imprisonment for three months.  

7. On appeals being preferred thereagainst, the High Court of Punjab  

and Haryana at Chandigarh by reason of the impugned judgment, while  

opining  that  the  accused  had  merely  exceeded  their  right  of  private  

defence and thus the offence committed by them is one under Section  

304 Part I IPC, convicted Gurlabh Singh under Section 304 Part I and  

Rajesh Narang under Section 304 Part  I read with Section 34 thereof.  

Both of them were sentenced to undergo rigorous imprisonment for eight  

years.   

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8. The  gun  in  question  was  a  licensed  gun  of  Rajesh  Narang.  

Mahabir  Singh  was  appointed  by  him as  his  gunman.   The  fact  that  

incident had taken place on 7th February, 1995 at about 8.00 a.m. is not in  

dispute.   The  fact  that  the  death  of  Karanjit  Singh  was  caused  upon  

receipt of a gun shot injury is also not in dispute.   

The version of the appellant with regard to the incident, however,  

is  somewhat  different  as  would  appear  from  the  statement  made  by  

Gurlabh Singh under Section 313 of the Code of Criminal procedure,  

which reads as under :-

“ Buses ply in the morning and students both  boys and girls travel in the bus in order to attend to  their school and colleges.  A bus in the morning  also plies through my village in which boys and  girls students go to Abohar to attend their school  and  colleges.   Karanjit  Singh  used  to  tease  the  girls.   On the preceding Saturday Karanjit  Singh  teased girls in the bus which was objected by me  which resulted in an altercation and Karanjit Singh  threatened to eliminate me.

On the  day  of  occurrence  at  8.15  A.M.,  I  was  standing  near  the  octroi  post  Abohar  along  with Raju Narang and Mahabir Singh, Gunman of  Raju Narang.  Raju was talking with one Sat Pal.  Karanjit Singh deceased along with other alighted  from the bus and started giving injuries to me and  Mahabir with sharp and blunt weapons and tried to  snatch  the  gun  from Mahabir.   As  the  gun  was  

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loaded I too resisted the snatching of the gun and  during  this  snatching  process  barrel  of  the  gun  touched the ground and the gun went off suddenly  and  barrel  was  smashed  and  again  during  this  snatching process,  the second shot  also went off  and hit the deceased in the head.  I went to police  station to lodge the report where I was made to sit.  I  was  produced  in  the  court  on  14.2.1995 and I  made  application  through  my  lawyer  Shri  Harbhagwan  Kamboj,  Advocate  for  my  medico  legal examination, but the same was dismissed by  the Committee Court.  I had 10/12 injuries on my  person.  I am innocent.”    

9. Mr.  Kuldip  Singh,  learned  counsel  appearing  on  behalf  of  the  

State, would urge:-

i) Keeping in view the facts and circumstances of the case, the  

High  Court  committed  a  serious  error  in  holding  that  

accused merely exceeded their right of private defence, as a  

clear  case  of  conviction  under  Section  302  of  the  Indian  

Penal Code has been made out.

ii) The right  of  private  defence being  within  the  purview of  

general  exceptions  contained  in  Section  96  of  the  Indian  

Penal  Code,  the  burden  was on  the  accused  to  prove the  

same,  which having  not  been discharged,  the  High Court  

judgment is unsustainable.  

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10. Mr.  K.B.  Sinha,  learned  senior  counsel  appearing  on  behalf  of  

Rajesh  Narang  and  Ms.  Aishwarya  Bhati,  learned  amicus  curiae  

appearing on behalf of Gurlabh Singh, would contend :-

i) That the version of the accused is more probable as it was  

found by the High Court that the first shot, which was fired,  

did not have any space to exist from the barrel and thus it  

got burst at the end and it was the second shot, which had hit  

the deceased.  

ii) Mahabir  Singh  having  not  been  named  in  the  first  

information report and the prosecution having not explained  

several  injuries  suffered by  him,  it  must  be  held  to  have  

withheld the genesis of the occurrence.  

iii) The incident,  if considered, from the point of view of the  

accused would clearly show that the accused as also the said  

Mahabir Singh suffered injuries and while an attempt was  

made to snatch away the gun, the first shot which came out  

from one of the barrel of the gun hit the ground as a result of  

which the one of the barrel was burst, the second shot had  

accidentally hit the deceased.

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iv) In  any  event,  keeping  in  view  the  injuries  sustained  by  

Mahabir  Singh,  the  accused was entitled  to  exercise  their  

right of private defence.

11. The  fact  that  the  deceased  along  with  the  other  students  had  

boarded a bus and were going to their college is not in dispute. PW-1,  

Bakhtawar Singh in his evidence clearly stated that the bus was stopped  

by the accused persons, who were traveling in a gypsy and the deceased  

was dragged out.

We  have  noticed  hereinbefore  that  the  accused,  however,  

contended that  deceased  not  only  alighted from the  bus  but  assaulted  

them and Mahabir Singh with a sharp edged weapon and tried to snatch  

the gun from him.   

12. With a view to appreciate the rival contentions of the parties we  

may  notice  the  injury  report  as  also  the  post  mortem  report  of  the  

deceased, which are as under :-

Injury Report

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“1. A lacerated wound 16 cms x 2 cms anteriorly and  8 cms posteriorly, present on the right side of skull  involving  frontal,  parietal  and  part  of  occipital  region.  The margins of the wound were inverted  anteriorly  and everted posteriorly.   The width of  the  wound  was  increasing  anterior-posteriorly.  The bones were partly missing and were fractured.  Brain matter was lacerated and coming out of the  wound.   Fresh  bleeding  was  present  and  was  profuse.  Margins were blackened anteriorly.

2. An abrasion 2 cms x 1.5 cms present  below the  right knee anteriorly.   

According  to  the  doctor,  the  patent  was  unconscious, his B.P. and pulse were unrecordable.  Injury  No.1  was  declared  dangerous  in  nature  while injury No.2 was declared as simple in nature.  The probable duration of the injuries  was within  six hours and injury No.1 was caused by fire arm  while injury No.2 was the result of blunt weapon.”

  Post-mortem examination

1. Surgical stitched wound ‘U’ shaped  starting from  right frontal region and going to right parietal and  occipital region on upper part and coming back to  left parietal and frontal region.  The length of the  wound was about  15”,  underneath  surgical  drain  was out.   Portions of right temporal  parietal  and  right  occipital  bones  were  missing.   Haemotoma  was  present.   Membrances  were  missing  underneath the fractures sides and brain matter was  badly  lacerated  and  brick  red  blood  clots  were  present.   Pieces  of  skin  graft  were  present  over  brain matter.  

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2. Surgical wound in an area 7” x 5” on the front and  middle of right thigh and skin was removed.

3. Abrasion  ¾”  x  1/2”  on  right  knee  lower  part.  Clotted ooze was present.”   

13. The injuries sustained by the deceased would clearly show that the  

place of injury on the deceased was on his head starting from right frontal  

region and going to right parietal and occipital region on upper part and  

coming back to left parietal and frontal region being ‘U’ shaped.   

14. We would assume that a scuffle ensued between the accused on the  

one hand and the deceased and the prosecution witnesses on the other.  It,  

however, stands admitted that the barrel of the gun was towards the earth.  

The first shot which was fired, did not have any space to exist as a   result  

whereof it bursted.  While the scuffle was going on to snatch the gun, it  

would be wholly unlikely that the second shot would hit the top of head  

of the deceased in such a manner.  The Autopsy Surgeon, PW-4 in his  

report    showed  the  place  where  the  deceased  suffered  the  gun-shot  

injury, in the sketch attached thereto.  The place of injury was the top of  

the head.  If the barrel of the gun was facing the ground any accidental  

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fire could have hit the lower part of the body and not the head of the  

deceased.   

15. We,  therefore,  could  not  persuade  ourselves  to  agree  with  the  

contention of Mr. Sinha.

Both  the  courts  below  have  relied  upon  the  depositions  of  

Bakhtawar Singh (PW-1) and Mohinder Singh (PW-2).  No inconsistency  

in their statements having been pointed out and even otherwise having  

regard to the defence raised by the accused, we do not find any reason to  

differ therewith.   

The  first  informant  was  a  student.   He  even,  as  stated  by  the  

Investigating Officer, was very perplexed and made his statement when  

asked  to  do  so  very  hurriedly.   A  supplementary  statement  was  also  

prepared but  the  same was not  signed by him.   If,  therefore,  injuries  

sustained  by  Mahabir  Singh  had not  been disclosed,  the  same in  our  

opinion would not make much difference for the purpose of arriving at a  

different conclusion.

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16. Mahabir Singh was examined by Dr. Lal Chand Thakral (PW-3)  

who found on his person the following injuries :-

“1. An incised wound 5 cms x 1.4 cms present on the  right front to parietal region, 5 cms above the eye  brow.  Fresh bleeding was present.

2. A  lacerated  wound  5  cms  x  1  cm x  bone  deep  present  on  the  right  parietal  region,  present  transversely  10  cms  above  the  right  ear  pinna.  Fresh bleeding was present.  

3. A lacerated wound 4.5 cms x 1 cm x bone deep  present  on  the  right  parietal  region  posteriorly  crossing mid line.  Fresh bleeding was present.

4. A  lacerated  wound  6  cms  x  1  cm x  bone  deep  present  on  the  left  parietal  region  posteriorly  12  cms above the left ear pinna.  Fresh bleeding was  present.”   

All the injuries were simple in nature.  They were, therefore, no  

such which would have prompted the accused to take recourse to their  

right of private defence.  

17. Mr. Sinha, however, has relied upon the decision of this Court in  

Raj Pal and another  v.  State of Haryana, [ (2007) 13 SCC 554 ] wherein  

this Court after noticing  Bishna  v.  State of West Bengal, [ (2005) 12  

SCC 657 ], opined :-

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“22.  While  there  is  no absolute  rule  that  merely  because the prosecution has failed to explain the  injuries on the accused  ipso facto the prosecution  case should be thrown out, the non-explanation of  the  injuries  on  the  accused  is  certainly  an  important circumstance which has to be taken into  consideration by the Court in deciding whether the  benefit  of  doubt  should  go  to  the  accused.  In  Bishna's case (supra) the entire  law on the point  has been discussed in great detail, and hence it is  unnecessary to repeat it here.  

23. The injuries on the accused include an injury  on  the  head,  which  is  a  vital  part  of  the  body.  Ordinarily  self-inflicted  injuries  are  on  non-vital  parts. The injury on the head of the accused Jai Pal  required stitches. It is difficult to believe that this  was self-inflicted. Moreover, in the present case, as  noticed  above,  there  are  very  important  discrepancies in the prosecution version. It is true  that minor discrepancies will not necessarily lead  to the rejection of the prosecution case, but when  there  are  major  discrepancies  and  unexplained  injuries on the accused it is an important factor to  be taken into account.”  

The issue in regard to exercise of right of private defence was determined  

on the fact of the said case.   

Mr. Sinha had also placed reliance on a decision of this Court in  

Babu Ram  v.  State of Punjab, [  (2008) 3 SCC 709 ] wherein it  was  

observed :-  

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“19. Further, it  is important to point out that the  omission on the part of the prosecution to explain  the injuries on the person of the accused assumes  much  greater  importance  where  the  evidence  consists  of  interested  or  inimical  witnesses  or  where the defence gives a version which competes  in probability with that of the prosecution one.”

18. In  that  case  both  the  accused  and  his  wife  suffered  grievous  

injuries.  They were arrested while having been admitted in the hospital.  

In the facts of that case it was held that the version of the defence that  

the  accused  inflicted  a  single  blow on the  person  of  the  deceased  in  

exercise of his right of private defence of his body as also of his wife  

who  had  suffered  several  injuries  at  his  hands  with  a  weapon  called  

kappa,  were  not  inflicted  with  an  intention  of  causing  death  of  the  

deceased.  

19. We  may,  however,  notice  that  recently  this  Court  in  Bhanwar  

Singh and others. v.  State of Madhya Pradesh, [ 2008 (7) SCALE 633 ]  

held as under :-

“51. To put it pithily, the right of private defence is  a defence right. It is neither a right of aggression or  of  reprisal.  There  is  no  right  of  private  defence  where  there  is  no  apprehension  of  danger.  The  

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right  of  private  defence is  available  only  to  one  who is suddenly confronted with the necessity of  averting an impending danger not of self creation.  Necessity must be present, real or apparent.

52. The basic principle underlying the doctrine of  the  right  of  private  defence  is  that  when  an  individual or his property is faced with a danger  and immediate aid from the state machinery is not  readily  available,  that  individual  is  entitled  to  protect himself and his property. That being so, the  necessary corollary is that the violence which the  citizen defending himself or his property is entitled  to use must not be unduly disproportionate to the  injury which is sought to be averted or which is  reasonably apprehended and should not exceed its  legitimate  purpose.  We may,  however,  hasten  to  add  that  the  means  and  the  force  a  threatened  person adopts at the spur of the moment to ward  off the danger and to save himself or his property  cannot be weighed in golden scales.  It  is neither  possible  nor  prudent  to  lay  down  abstract  parameters which can be applied to determine as to  whether  the  means  and  force  adopted  by  the  threatened  person  was  proper  or  not.  Answer  to  such a question depends upon host of factors like  the  prevailing  circumstances  at  the  spot,  his  feelings at the relevant time; the confusion and the  excitement depending on the nature of assault on  him etc. Nonetheless, the exercise of the right of  private  defence  can  never  be  vindictive  or  malicious.  It  would  be  repugnant  to  the  very  concept of private defence. {See  Dharam v.  State  of Haryana, [  2006 (13) SCALE 280 ] ).“

20. These  authorities,  therefore,  have  clearly  laid  down  the  legal  

proposition that right of private defence cannot be raised because one of  

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the accused had suffered some minor injuries or the prosecution has not  

explained the same.   

21. Our attention, however, has been drawn to an application filed by  

one of the accused, namely Gurlabh Singh, on 14th February, 1995 in the  

Court of Shri  Jatinder Paul Singh Wehniwal,  PCS Judicial Magistrate,  

First Class, Abohar, for getting himself examined in the Civil Hospital  

stating :-

“It  is  submitted  that  in  the  above  noted  case,  accused  Labh  Singh  alias  Gurlabh  Singh  son  of  Naib  Singh  r/o.  Gobindgarh  has  been  produced  today  in  your  Hon’ble  Court.   Injuries  on  his  person  are  visible.   Therefore,  his  medico  legal  examination  is  necessary  to  be  conducted.  Permission may please be granted for conducting  his medico legal examination from Civil Hospital,  Abohar.   The  applicant  is  ready  to  deposit  the  requisite fee.  So, in view of the above facts the  order for conducting medico legal examination of  accused Labh Singh may please be passed.”

The said application was dismissed.  It itself goes to show that the  

learned Magistrate did not find any truth therein.

22. Moreover,  the  occurrence  took  place  on  7th February,  1995.  

Although the accused raised a plea that they also intended to lodge the  

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first information report but the same was not proved.  It may be true that  

Mahabir Singh was discharged during the course of trial but that should  

not  have  deterred  accused  persons  from  examining  him,  particularly  

when they examined Sat Pal as DW-2.  Mahabir Singh was the gun man  

of Rajesh Narang.  He, therefore, was on the side of the accused.  He  

could have been examined to prove the plea of right of private defence  

taken by the accused.  DW-2 in his evidence stated as under :-

“On the road 30 to 40 boys had collected.  There is  a gypsy bearing No.HNX 5000 came which was  being  driven  by  Raju  Narang.   Two  boys  were  sitting  at  the  back  side  of  the  gypsy,  one  was  Mahabir and other was Labh Singh.  The boys who  were standing on the road dragged the boys who  were sitting at the back side of the gypsy and gave  them beating.  The boys were armed with dangs,  kirpans,  hockies  etc.   There  was  a  gun  with  Mahabir.  During the scuffle the barrel of the gun  was  towards  the  earth  and was touching  a  earth  and a fire was shot.  At that time Raju ran away  with the gypsy.  The second fire hit Karanjit Singh  deceased.  When the fire hit the earth, one of the  barrels of the gun exploded.”   

23. The statement of the aforementioned witness does not fit in with  

the case of the defence.  The learned trial judge, in our opinion, rightly  

did not place any reliance thereupon particularly having regard to the fact  

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that the ocular version given by PW. 1 and PW-2 was not only found to  

be trust worthy but the same was found to have been corroborated by the  

medical evidence given by Dr. Lal Chand Thakral (PW-3) and Dr. Daljit  

Singh Kochar (PW-4).

24. According  to  Gurlabh  Singh,  he  was  arrested  on  7th February,  

1995.  It, in absence of any other evidence, cannot be believed that he has  

been kept in police custody for 7 days without any order of the Court.  If  

he was arrested on 7th February, 1995 and not on 14th February, 1995 or  

prior thereto, he should have got himself examined by any doctor, even  

assuming that the first information report was not recorded by the Officer  

Incharge of the police station.  There is nothing on record to show that  

even while he was in judicial custody, he got himself treated by the jail  

doctors.   

25. The High Court, in our opinion, furthermore committed a serious  

error in passing the impugned judgment in so far as it failed to take into  

consideration that the accused never put forth the case of exercise of right  

of private defence.  According to them the deceased was accidentally hit  

while the scuffle was going on.  The question of considering their case as  

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if the accused had exercised their right of private defence or exceeded the  

same, therefore, in our opinion, could not have been gone into.   

26. The High Court unfortunately even failed to consider that accused  

Rajesh Narang was a holder of a licensed gun.  He kept the gun loaded.  

It was in possession of a third party.  It was used for a wrongful purpose.  

He, therefore, had also been found guilty of commission of offence under  

Section 29 of the Arms Act by the trial Judge.  That part of the finding of  

the trial court was not set aside by the High Court, nor was any reason  

assigned therefor.  

27. The bus did not have a regular stop at the place of occurrence.  It  

was stopped by the accused which came in a gypsy.  The defence that 30-

34 students surrounded the accused and inflicted injuries on the person of  

Mohinder Singh cannot be believed at all.  Their travel to the place of  

occurrence in a gypsy and stopping the bus had not been explained.  The  

likelihood,  therefore,  that  the  students  who were  traveling  in  the  bus,  

finding the shots having been fired, manhandled Mahabir Singh at a later  

stage cannot be ruled out.  It is, therefore, a case which comes within the  

purview of Thirdly of Section 300 of the Indian Penal Code.  

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28. The result is that the appeals of the State are allowed and that of  

the accused is dismissed.  

…………………………..J.    [ S.B. Sinha ]

…………………………..J.    [ Harjit Singh Bedi ]

…………………………..J.    [ Aftab Alam ]

New Delhi May 12, 2009

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