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PETITIONER: THE STATE OF PUNJAB, SUKHJINDER KAUR ETC.

       Vs.

RESPONDENT: JASWANT SINGH & OTHS.

DATE OF JUDGMENT:       10/09/1997

BENCH: M. K. MUKHERJEE, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT: Present:              Hon’ble Mr. Justice M.K. Mukherjee              Hon’ble Mr. Justice M. Jagannadha Rao Ujagar Singh,  Sr. Adv.,  (R.K. Talwar)  Adv.  for  Goodwill Indeever, (Ms. Geetanjli Mohan) Adv. for R.S. Sodhi, (Girish Chandra) Adv. for Ms. Naresh Bakshi, Adv./Advs. with him for the appearing parries.                       J U D G M E N T The following Judgment of the Court was delivered:                             WITH                CRIMINAL APPEAL NO 594 OF 1996                       J U D G M E N T M.K. MUKHERJEE, J.      Jaswant Singh, the respondent in these two appeals, was convicted by  the Sessions  Judge, Ferozepur  under Sections 302 I.P.C.  and 27 of the Arms Act for committing the murder of Harnek  Singh on  August 24,  1990 by firing at him.  For the conviction  under Section 302 I.P.C. he was sentenced to imprisonment for life and fine, and for the other conviction be was  sentenced to  rigorous imprisonment  for three years and fine  with a  direction that  the substantive  sentences shall run  concurrently.  In the appeal preferred by him the High Court  set aside  his  above  convictions  and  instead thereof convicted him under Section 304 (part I) I.P.C.  For the conviction  so recorded  he was  sentenced  to  rigorous imprisonment for  seven  years  and  fine.    Assailing  his acquittal of the offences under Section 302 I.P.C. and 27 of the Arms  Act these two appeals have been filed:  one by the wife of the deceased and the other by the State of Punjab. 2.   At the  material time  Balkaran Singh  (P.W.2) was  the principal  of   the  Government   Senior  Secondary  School, Talwandi Bhai  and  Harnek  Singh  (the  deceased)  and  the respondent were  teachers of  that school.  Sometimes before the death  of Harnek Singh (the deceased) and the respondent were teachers of that school.  Sometimes before the death of Harnek Singh,  the respondent  had sent a letter (Ext PE) to Smt. Prithpal  Kaur, wife  of P.W.2,  bringing to her notice that her husband was having ijlicit relations with some lady teachers of  the  school  and  that  the  deceased  and  one Rajinder Singh  (another teacher) were working as his pimps.

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On August 24, 1990 P.W.2 had convened a meeting of the staff members of  the school  in the school premises to remove the misunderstandings that  might have  arisen  from  the  above letter of the respondent. 3.   According to  the prosecution case when the meeting was in progress with the deceased and other members of the staff present there  Darshan Singh (P.W.3), brother of the wife of the deceased,  came there  to meet  him.  A little later the respondent, who  was  not  invited  to  attend  the  meeting appeared on  the scene.  When the deceased took exception to his such  uncalled for  presence the respondent took out his revolver from  the pocket  of his  trousers and  fired three shots aiming at him, as a result of which he fell down dead. The respondent  then made good his escape with the revolver. Leaving P.W.3 to guard the dead body P.W.2 proceeded on foot to lodge  a report at the police station.  On his way he met S.I. Sukhwinder Singh, in-charge of Police Post Talwandi and handed over  to him  a written  report of  the incident.  On that report  a case was registered and S.I. Sukhwinder Singh took up  investigation.   He held inquest upon the dead body of Harnek  Singh inside  the school  premises and onwards it for post mortem examination.  In course of the investigation he arrested  the respondent  on August 27, 1990 and from his person recovered  a .32  bore revolver, with its license and five live  cartridges.  He sent those seized articles to the Forensic Science  Laboratory for  examination by  an expert. On completion  of investigation  he  submitted  charge-sheet against the respondent. 4.   The  respondent  pleaded  not  guilty  to  the  charges levelled against  him; and  in his examination under Section 313 Cr.P.C. stated, inter alia, as under:      "I treat the wife of Balkaran Singh      as my sister and on coming to known      about  the  bad  acts  of  Balkaran      Singh I  wrote a letter to his wife      which is  Ex.PE,  the  contents  of      which were  disclosed  by  Balkaran      Singh to  Harnek Singh prior to the      date of  occurrence.   On  24.8.90,      when I  came to  school premises at      about 7.15 A.M. Harnek Singh had an      altercation with  me.   He  was  In      great rage  and fury.  He abused me      and  then  there  was  exchange  of      abuses.   Harnek Singh  caught hold      of   a hockey stick from a student,      named  Chamkaur  Singh  s/o  Harnek      Singh and  started giving the blows      with it,  which hit  on  the  upper      part of  thigh, fore-head and other      part  of   body  while  I  kept  on      retreating to  ward off  the blows.      My turban also fell on the spot.  i      took out the revolver, which I used      to keep  with me  loaded as  I  had      earlier  been   threatened  by  the      militants.  First of all, I fired a      shot in  the air  to desist  Harnek      Singh from  giving blows to me, and      when he  did not stop and was going      to give  me another  blow, wielding      the hockey  from his right side and      the hockey  being almed at my head,      apprehending danger  to my  life  I      then fired  at him  In self defence

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    but realised  later that  two shots      had been  fired in quick succession      in the  tension of  moment.  I then      went to  the Police  Post  Talwandi      Bhal and apprised the officer there      with the  facts of  the  occurrence      who detained  me there  and did not      record  my  statement  nor  get  me      medically examined.  I was examined      by the doctor in the afternoon." 5.   In support  of their  respective cases  the prosecution examined four  witnesses and  exhibited  affidavits  of  the formal  witnesses,   while  the   respondent  examined  five witnesses in his defence. 6.   In the  context of  the respective cases of the parties and the  admitted facts,  the only  question that  fell  for determination  before   the  trial  Court  was  whether  the respondent fired  at the  deceased without  any  provocation whatsoever as  alleged by the prosecution or such firing was resorted to  by him  in exercise  of his  right  of  private defence.   The trial  Court discussed  the  entire  evidence including that of the two eye witnesses, namely, P.Ws. 2 and 3 and the five defence witnesses threadbare and accepted the case of  the  prosecution  in  preference  to  that  of  the respondent.  In appeal the High Court found that the plea of right  of  private  defence  taken  by  the  respondent  was probable and  convincing but as, according to it, he did not stop firing  after the first shot, held that he exceeded his such right.   With the above finding the High Court recorded the impugned order of conviction and sentence. 7.   Having perused  the entire evidence in the light of the judgment of  the High  Court, particularly, its finding that P.W.2 was  a natural  and  probable  witness  and  that  his evidence was  convincing, we are constrained to say that the High Court  was not  at  all  justified  in  disturbing  the convictions  recorded   by  the   trial  Court  against  the respondent. 8.   It appears  that the  High Court  was much impressed by the fact that when the respondent was examined by the doctor on August  28, 1990  (four days  after the  incident) he was found to have the following injuries on his person:-      "1. An  abrasion,  covered  in  its      upper half by a brown scab and with      scab detected  in  its  lower  part      which was partially healed over the      right side of fore head immediately      above the  outer one third of right      eye brow.  It was 1.5 cm x 1 cm.      2. An abrasion partially covered by      brown scab  in its centre with rest      of part  partially  hesled  it  was      measuring 1 cm x 0.75 cm.  It was 2      cm above injury No. 1.      3. A bluish black contusion 35 cm x      20 cm  over  the  front  outer  and      posterior aspect  of upper  part of      left  thigh.      The   wound   was      extending upto  left buttock.   The      contusion  was   super  imposed  by      scabbed abrasion". 9.   According to  the High Court the existence of the above injuries on  the person  of the  respondent probabilised his version that  he was  first assaulted by the deceased with a hockey stick  and apprehending danger to his life thereby he fired at  him in  self defence.  Apart from the fact that no

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evidence was  laid  by  the  respondent  to  prove  that  he sustained those  injuries at  the time  of the  incident  on being assaulted  by a  hockey stick  as alleged  by him, the doctor, who  examined  him  categorically  stated  that  the injuries were  simple in  nature and could be self inflicted or self  suffered.   It is  pertinent to point out here that though the  respondent  examined  five  witnesses  none  was examined to  testify about his claim of having been hit with a hockey  stick and  for that  matter  about  his  right  of private defence.  The witnesses were examined by him only to prove that  after the incident he had surrendered before the Police on  the same day but he was not produced in the Court within 24  hours as  statutorily required.  We hasten to add that the trial Court found even such evidence unsatisfactory and unreliable  - a  finding with  which we  are in complete agreement - and the High Court did not at all advert to this aspect of the matter.  Incidentally it may be mentioned that even proof  of the  above fact  would not  have in  any  way improved the  defence version  nor impaired  the prosecution case.    Having  gone  through  the  entire  record  we  are constrained to  say that  there is  not an  iota of material from which  it can be even remotely said that the respondent had a right of private defence of his person. 10.  In the  result we  allow these  appeals, set  aside the judgment and  order of  the High  court and restore those of the trial   Court.  Since from the record it is not clear as to  whether  the  respondent  has  already  served  out  the sentence imposed  by the  High Court, we direct that if e is now out of jail he shall be re-arrested and remanded to jail for serving out the remainder of the sentence imposed by the trial Court.  In case, however, he is still in jail he shall continue to remain there for the self same purpose.