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PETITIONER: WASSAN SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT28/11/1995

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) MUKHERJEE M.K. (J)

CITATION:  1996 SCC  (1) 458        JT 1995 (8)   434  1995 SCALE  (6)653

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar. J.      Appellant, Wassan  Singh has  brought in  challenge his conviction and  sentence as  imposed upon  him by  the  High Court of  Punjab &  Haryana at Chandigarh in Criminal Appeal No.637-DB  of   1981.  While  allowing  his  appeal  against conviction under  Section 302  Indian Penal  Code (in  short ‘IPC’) the  High Court  has convicted  him  for  the  lesser offence under  Section 304  Part I, IPC and sentenced him to undergo rigorous  imprisonment for 10 years. The appellant’s grievance is  that he  is not  liable to  be convicted  even under the said provision.      In order to appreciate the grievance of the appellant a few relevant  facts leading  to this  appeal deserve  to  be noted at the outset. BACKGROUND FACTS :      The appellant who was accused no.1 along with two other accused Piara  Singh and  Charan  Singh  were  charged  with offences under  Sections 302,  307, 325,  324, 323 read with Section 34 of the IPC on the allegation that on 11th January 1981 at about 6.00 p.m. in the area of village Nizamwala, in furtherance of  their common  intention which  was to commit the murder of one lady Smt. Bholan, the appellant did commit murder of the aforesaid Mst. Bholan by intentionally causing her death  whereas the  other two accused committed offences under Section  302 read  with Section 34 of the IPC. Accused Piara Singh  was also  charged with an offence under Section 307 IPC for having fired a gun shot at one Hazara Singh with such intention  and under such circumstances that if by that act he  had caused  the death  of Hazara Singh he would have been guilty  of murder  while the appellant was charged with an offence  under Section  307 read  with Section 34 IPC. It was also  alleged  that  at  the  same  time  and  place  in furtherance of  their common  intention accused Charan Singh Voluntarily caused  hurt to  Hazara  Singh  by  means  of  a

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‘gandasa’, which  is an  instrument of  cutting, and thereby committed  an  offence  punishable  under  Section  324  IPC whereas appellant  and Piara  Singh accused  were alleged to have committed  offences punishable  under Section  324 read with Section  34 of the IPC. They were similarly charged for an offence  for having  caused hurt  to one  Bachan Singh by means of  a ‘gandasa’,  which is  an instrument  of cutting. Appellant was  also charged  along with other co-accused for having committed  an offence  under Section  325  read  with Section 34 of the IPC for having voluntarily caused grievous hurt to  one Jagir  Singh. Appellant was lastly charged with an  offence  under  Section  27  of  the  Arms  Act  on  the allegation that  on the  same date, time and place he had in his possession  a single barreled 12 bore gun with intent to use the same for an unlawful purpose, that is, to commit the murder of  Mst. Bholan  and that he actually used it for the above-said  purpose  thereby  committing  an  offence  under Section 325 of the IPC.      The prosecution  story briefly  is to  the effect  that accused Charan  Singh is  the sister’s  son of  Piara  Singh accused and  the appellant who belongs to village Baghewala, is their  partyman. That prosecution witnesses, Bachan Singh and Hazara  Singh, are  the real  brothers and  Mst.  Bholan deceased was the wife of Hazara Singh and Jagir Singh is the nephew of  Bachan Singh, Piara Singh is the cousin of Hazara Singh and Jagir Singh is the nephew of Hazara Singh. That PW Bachan Singh  was to  celebrate Lohri festival in connection with the birth of his grand-child. He went to Jagir Singh at village Akku  Masteke on  10th January  1981 to  request him (Jagir Singh)  to join  the celebration of Lohri festival at his house.  On 11th  January 1981  at about  9.00 a.m. Jagir Singh came  to the  house of Bachan Singh and remained there upto 6.00 p.m. in connection with the distribution of sweets on the  occasion of the birth of his (Bachan Singh’s) grand- child. At  about 6.00  p.m.  Hazara  Singh,  his  wife  Mst. Bholan, his brother Bachan Singh came out of the house along with Jagir  Singh to  see the letter off. They were standing in front  of the gate of his (Hazara Singh’s) house. At that time electric  light which  was fitted  at  his  house,  was illuminating in  which a  human being  could be  identified. Jagir Singh  was going  to  connect  his  tractor  with  his trolley. Meanwhile,  Piara  Singh  accused  armed  with  his D.B.B.L. gun,  Wassan Singh  accused  armed  with  a  single barrelled gun and Charan Singh accused armed with ‘grandasa’ came to  the house  of Hazara Singh and Bachan Singh raising ‘lalkaras’. Charan  Singh accused raised a ‘lalkara’ that he and his  companion co-accused  were going  to  teach  Hazara Singh and others a lesson for parking the tractor trolley in the lane.  Piara Singh  accused opened  the attack by firing from his  D.B.B.L. gun  towards Hazara  Singh. However,  the fire missed  the target  as he (Hazara Singh) had knelt down to  save   himself  and  the  fire  passed  over  his  head. Thereafter appellant fired from his single barrelled gun and the shot  hit Mst. Bholan deceased near he pelvic region. On receipt of  this  injury,  she  fell  down  on  the  ground. Thereafter Charan  Singh accused  dealt a  ‘gandasa’ blow on the head  of Bachan  Singh from  its sharp  side.  Meanwhile Piara Singh  accused dealt  blow with the butt of his gun on the left  hand of Jagir Singh and another blow from the said butt on  his right  ear. Then  Charan Singh  accused dealt a ‘gandasa’ blow  on the head of Bachan Singh from its reverse side. Thereupon  Hazara Singh,  Bachan Singh and Jagir Singh raised ‘raula’  and on this, the accused decamped with their weapons. Before  that, Bachan  Singh and  Hazara Singh  also caused injuries  on the  person of  appellant in their self-

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defence. Thereafter  the PWs  arranged a car in which Bholan was placed. Bachan Singh and Hazara Singh accompanied her to Civil  Hospital,   Forezepore,  at   a  distance   of  14/15 kilometers. The  car left  village Nizamwala  at about  6.45 p.m. but  Bholan died  on the way at a distance of 6/7 miles near village Sodhiwala on their way to the Hospital.      On receipt  of telephonic  message, Inspector Balvinder Singh  of  Police  Station  Mallanwala  went  to  the  Civil Hospital, Ferozepore,  and recorded  the statement of Hazara Singh, which  formed the  basis  of  the  First  Information Report. The inspector held inquest and sent the dead body of Smt. Bholan to the mortuary for autopsy. Thereafter, he went to the  spot, lifted  blood-stained earth  and recovered one empty catridge case from there. The accused were arrested on 17th  January   1981  and  their  weapons  were  taken  into possession.      After investigation  the appellant  along with  his co- accused were  chargesheeted and  ultimately their  case  was committed to  the court  of Sessions  for trial. The learned Trial Judge  after recording  evidence and hearing the rival versions took  the view  that appellant  was  guilty  of  an offence under Section 302 of the IPC for killing Smt. Bholan and ordered  him to undergo imprisonment for life and to pay a fine  of Rs.3,000/-  or  in  default  to  further  undergo rigorous imprisonment  for one and a half years, while Piara Singh and  Charan Singh accused were sentenced under Section 302 read with Section 34 of IPC and were directed to undergo imprisonment for  life and  to pay a fine of Rs.1,000/- each and in  default  of  payment  of  fine  to  further  undergo rigorous imprisonment  for  six  months  each.  Piara  Singh accused was sentenced under Section 307 IPC and was directed to undergo  rigorous imprisonment  for one  and a half years and to  pay a  fine of Rs.300/- and in default of payment of fine to further undergo rigorous imprisonment for two months while the  appellant and  another accused  Charan Singh were sentenced under  Section 307  read with  Section 34  IPC and were directed  to  undergo  rigorous  imprisonment  for  six months each  and to  pay a  fine of  Rs.100/-  each  and  in default of  payment of  fine  to  further  undergo  rigorous imprisonment  for   one  month   each.  Appellant  was  also sentenced under  Sections   324 and 325 read with Section 34 for the injuries caused to the concerned PWs as mentioned in the  charge.   He  was   sentenced   to   undergo   rigorous imprisonment for  six months  under Section  27 of  the Arms Act.      The aforesaid  decision of  the Sessions Court resulted in criminal  appeal moved by the appellant and the other two accused Piara  Singh and  Charan Singh  in the High Court of Punjab &  Haryana at  Chandigarh. The  Division Bench of the High Court  after hearing the contesting parties came to the conclusion that  the co-accused Piara Singh and Charan Singh deserved to  be acquitted  of the  offences with  which they were charged and the appeal qua them was fully allowed while so far  as the  appellant was concerned, he was acquitted of offences under  Section 302,  Section 307  read with Section 34, Sections  324  and  325  read  with  Section  34  I.P.C. However, he  was held guilty of an offence under Section 304 Part I,  IPC. He  was sentenced as aforesaid. His conviction and sentence  under Section  27 of  the Arms  Act were  also maintained. That  is how  the appellant  is before us in the present appeal.      Learned advocate  appearing for the appellant contended that when  the High  Court came  to the  conclusion that the appellant had  a right  of private  defence of  body  having received number  of injuries in the incident, the High Court

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instead of  carrying this  conclusion to  its  logical  end, wrongly assumed that the appellant had exceeded his right of private defence of body as his reasonable apprehension could be of  having  caused  simple  hurt  at  the  hands  of  the complainant party  and, therefore,  he had  a right  to give only grievous  hurt but  could not  have  caused  any  fatal injury  by  the  use  of  his  firearm.  It  was  vehemently contended  that  looking  to  the  evidence  on  record  the aforesaid finding  of the  High Court is not well sustained. Learned counsel  for the  respondent State  of Punjab on the other hand  tried to  support the  reasoning and  the  final conclusion to  which the High Court reached. In our view the decision of  the High Court to the effect that the appellant had  exceeded   the  right  of  private  defence  cannot  be supported on  the evidence  on record. It will be profitable to extract  what the  High Court has said in this connection in the penultimate paragraph of its judgment at page 15 :           "...Wassan  Singh   appellant   and      Dalip Singh  had sustained as many as 12      injuries and  out of  them 2 injuries on      the  person  of  Wassan  Singh  and  one      injury on the person of Dalip Singh were      on the  vital parts  of their bodies. In      such  a  situation,  the  accused  party      could    legitimately     harbour    the      apprehension that  the complainant party      would cause them simple hurt. But Wassan      Singh appellant  had  over  stepped  the      legal limits of the defence of person by      firing a  shot from  his gun  which  hit      Smt.  Bholan   and  proved   fatal.  The      occurrence appears  to have  taken place      all of  a sudden  and it  was not a pre-      planned  attack.   When   Wassan   Singh      appellant apprehended simple hurt at the      hands of  the compainant  party, he  had      the right to give a grievous hurt but he      obviously exceeded  the right of private      defence of  his person  and  caused  one      fire arm injury, which proved fatal.           Consequently Wassan  Singh is found      guilty for  an offence under section 304      Part I, Indian Penal Code..." Now it  must be  noted that  according to the High Court the appellant had a right of private defence as he had sustained number of  injuries in  the incident. So far as his injuries are concerned,  Dr. Jaspal  Singh, PW.1  has  described  the injuries by stating as under :           "I    conducted     medico    legal      examination  on  the  person  of  Wassan      Singh accused  and found  the  following      injuries on his person:-      1. Incised  wound of the size 5.5 cm x 1      cm  bone   deep  at   the  right   front      pariental region  9.5 cm  from the right      eye-brow, obliquely placed and 8 cm from      the right pinna. Blood clot was present.      X-ray was advised.      2. Swelling  of the size 3.5 cm x 3.5 cm      on the left side of the fore-head 1.5 cm      above  the   left  eye-brow.  X-ray  was      advised.      3. Reddish  swelling of  the size 5 cm x      3.5 cm  with overlying  abrasion 2  cm x      0.5 cm,  at the  back and  upper part of

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    left fore-arm.      4. Swelling  of the size 2.5 cm x 2.5 cm      with overlying lacerated wound 0.75 cm x      0.25 cm  back and  middle of left middle      finger of hand. X-ray was advised.      5. Swelling  1 cm x 1.5 cm at the tip of      middle finger  of left  hand. X-ray  was      advised.      6. Abrasion  0.5 cm  x 0.5 cm on medical      aspect and middle of left index finger.      7. Reddish  contusion 5.5  cm x  2 cm at      the upper  and lateral  aspect of  right      upper arm. X-ray was advised.      8. Reddish  contusion 5 cm x 3 cm on the      front and middle of right upper arm.      9. Abrasion  3 cm  x 2  cm on  front  of      right elbow joint.           The patient  was  conscious.  Pulse      was 72  per minute.  B.P. 130/70. Nature      of  the   injuries.   Injuries   nos   :      1,2,3,4,5  and   7   were   kept   under      observation  for  X-ray.  Injuries  nos:      3,6,8 and  9 were  declared simple.  The      probable duration  of the  injuries  was      within six  hours. The  weapon  declared      for injury  no.1 was  sharp edged.  Rest      all by  blunt weapon. On receiving X-ray      report   No.10/60,    dated   13.1.1981,      injuries  nos  :  1,2,4,5,  and  7  were      declared simple."      Now it  becomes at  once clear  that the  appellant had received as  many as  nine injuries  out of  which first two injuries were  on a very vital part, namely, on his head and injury no.1  was an  incised wound  which was  caused  by  a sharp-edged  weapon.   Under  these   circumstances  if  the appellant fired one shot from his gun in his self-defense it could not  be said that he had exceeded the right of private defence as  the nature  of assault  by the complainant party which left  him with  the aforesaid injuries certainly could be said to have caused a reasonable apprehension in his mind that grievous  hurt would  otherwise be  the consequence  of such an assault. In this connection it will be profitable to look at  Section 100 of the Indian Penal Code which reads as under :      "100. When  the right of private defence      of the  body extends to causing death.--      The right  of private  defence  of  body      extends,    under    the    restrictions      mentioned in the last preceding section,      to the  Voluntary causing of death or of      any other  harm to the assailant, if the      offence which  occasions the exercise of      the right  be of any of the descriptions      hereinafter enumerated, namely :-      First:-   Such   an   assault   as   may      reasonably cause  the apprehension  that      death will  otherwise be the consequence      of such assault;      Secondly:-  Such   an  assault   as  may      reasonably cause  the apprehension  that      grievous  hurt  will  otherwise  be  the      consequence of such assault;      Thirdly.- An  assault with the intention      of committing rape;      Fourthly.- An assault with the intention

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    of gratifying unnatural lust;      Fifthly.- An  assault with the intention      of kidnapping or abducting;      Sixthly.- An  assault with the intention      of wrongfully  confining a  person under      circumstances which may reasonably cause      him to  apprehend that he will be unable      to   have   recourse   to   the   public      authorities for his release." It is  not the  case of  the prosecution  that  any  of  the restrictions mentioned  in Section  99 can be invoked by the prosecution against  the appellant.  Once that is so, clause ‘secondly’ of  Section 100  would squarely get attracted. It is difficult  to appreciate  the reasoning of the High Court that  the   reasonable  apprehension  in  the  mind  of  the appellant who  had received  two injuries  on his  head  and seven other  injuries on  his body would be the apprehension that only  simple hurt  would  be  caused  to  him  and  not grievous hurt.  It is  true that  the first injury caused on his head  had fortunately  not resulted  into a fracture but when it  was caused  with a  sharp cutting instrument on the vital part  of his  body, namely,  right side  of  head,  it cannot be  gainsaid that  at least a reasonable apprehension would arise in his mind at the spur of the moment that if he does not retaliate by using his weapon, namely, the gun with which he  was armed  he would  certainly suffer  at least  a grievous hurt  as a  consequence of  the assault  by  the  c party.  Under  these  circumstances  the  right  of  private defence of  body available  to the appellant would extend to even causing  death. It is of course true that his, gun shot unfortunately hit  an innocent  person like  Smt. Bholan who was present  on the  scene of  occurrence but as at the very same time and place the appellant had suffered an assault at the hands  of the  assailants comprising  of the complainant party, right  of private  defence of body which would extend to even causing death of the assailant would arise in favour of the  appellant on  the facts  of the  present case and in exercise of  that right  if  death  is  caused  not  of  the assailant but of any other person it cannot be said that the right of  private defence  extending up  to causing death of the assailant would not be available to the accused qua even an innocent  party which  got fatally hurt on account of the exercise of  such a  right of  private defence which ensured for the  appellant under  Section 100 clause secondly of the IPC. It  is obvious  that if an accused with an intention to kill his  victim fires a shot at him which misses the target and hits  any other  innocent person fatally he would remain guilty of  an offence  of murder  but if  the accused had no such intention and was protected by right of private defence under the  situation and  circumstances in  which  it  could extend to  even causing  death of  assailant as laid down by Section 100  and if  in exercise  of that  right of  private defence the  blow fatally  falls on  an innocent  person the action would still remain protected under Section 100 of the IPC. In  this connection  we may  refer to  Section 301, IPC which reads as under :      "301. Culpable homicide by causing death      of person  other than person whose death      was intended.-  If a  person,  by  doing      anything which he intends or knows to be      likely to  cause death, commits culpable      homicide by  causing the  death  of  any      person, whose  death he  neither intends      nor knows himself to be likely to cause,      the culpable  homicide committed  by the

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    offender is  of the description of which      it would  have been if he had caused the      death  of  the  person  whose  death  he      intended or knew himself to be likely to      cause." For applicability  of that  Section the  act must  amount to culpable homicide  in the  first place.  If the  act is  not culpable at all, then even if it results into homicide of an innocent person,  in view  of Section  100  IPC  as  in  the present case, Section 301 will have no operation.      While judging  the  nature  of  apprehension  which  an accused  can  reasonably  entertain  in  such  circumstances requiring him  to act  on the  spur of  moment when he finds himself assaulted,  by number of persons, it is difficult to judge the  action of the accused from the cool atmosphere of the court  room. Such  situations have  to be  judged in the ‘light of what happens on the spur of the moment on spot and keeping in view the normal course of human conduct as to how a person  would react  under such  circumstances in a sudden manner with an instinct of self-preservation. Such situation have to  be judged  from the subjective point of view of the accused concerned who is confronted with such a situation on spot and cannot be subjected to any microscopic and pedantic scrutiny. In  this connection  it is  profitable to refer to two decisions of this Court. In the case of Mohd. Ramzani v. State of  Delhi (1980  Supp. SCC  215), a  Division Bench of this Court  speaking through Sarkaria, J. made the following pertinent observations :      "...the onus  which rests  on an accused      person under  Section 105, Evidence Act,      to establish his plea of private defence      is not  as  onerous  as  the  unshifting      burden which  lies on the prosecution to      establish  every   ingredient   of   the      offence  with   which  the   accused  is      charged, beyond  reasonable doubt. It is      further well  established that  a person      faced with  imminent peril  of life  and      limb  of  himself  or  another,  is  not      expected to weigh in ‘golden scales’ the      precise  force   needed  to   repel  the      danger. Even  if he  in the  heat of the      moment  carries  his  defence  a  little      further than  what  would  be  necessary      when  calculated   with  precision   and      exactitude by a calm and unruffled mind,      the law makes due allowance for it..." In the case of Deo Narain v. The State of U.P. (1973 (1) SCC 347), this  Court was  concerned with  a situation where the accused had  received a  blow on  head by  a ‘lathi’  and in self-defence he  had used  his spear  in retaliation.  While holding that  the accused  was  entitled  to  the  right  of private defence  extending to  even causing death, in such a case, he was acquitted of the offence under Section 302 IPC. In this  connection Dua,  J., speaking  for  this  Court  in paragraph  5   of  the   Report  has  made  these  pertinent observations :      "In our  opinion, the  High  Court  does      seem to  have erred in law in convicting      the appellant  on the ground that he had      exceeded the  right of  private defence.      What the High Court really seems to have      missed is  the provision of law embodied      in Section 102, I.P.C. According to that      section the  right of private defence of

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    the  body   commences  as   soon  as   a      reasonable apprehension  of dager to the      body arises from an attempt or threat to      commit the  offence, though  the offence      may not  have been  committed, and  such      right  continues   so   long   as   such      apprehension  of   danger  to  the  body      continues.  The  threat,  however,  must      reasonably give  rise to the present and      imminent,  and  not  remote  or  distant      danger. This  right rests on the general      principle  that   where   a   crime   is      endeavored to  be committed by force, it      is lawful  to repel  that force in self-      defence. To say that the appellant could      only claim  the right to use force after      he had  sustained a serious injury by an      aggressive   wrongful   assault   is   a      complete  misunderstanding  of  the  law      embodied in the above section. The right      of  private  defence  is  available  for      protection against  apprehended unlawful      aggression and  not  for  punishing  the      aggressor for  the offence  committed by      him. It is a preventive and not punitive      right.  The  right  to  punish  for  the      commission  of  offences  vests  in  the      State (which  has a duty to maintain law      and   order)    and   not   in   private      individuals.     .   .............   the      approach of  the High  Court that merely      because the  complainat’s party had used      lathis, the  appellant was not justified      in  using   his   spear   is   no   less      misconceived and  insupportable,  During      the  course   of  a  marpeet,  like  the      present, the  use of a lathi on the head      may very  well give rise to a reasonable      apprehensions  that  death  or  grievous      hurt would  result from an injury caused      thereby. It  cannot be  laid down  as  a      general rule  that the use of a lathi as      distinguished from  the use  of a  spear      must always  be held  to result  only in      milder  injury.   Much  depends  on  the      nature of  the lathi,  the part  of  the      body aimed  at and  the  force  used  in      giving the blow. Indeed, even a spear is      capable of  being so  used as to cause a      very minor  injury. The High Court seems      in this  connection to  have  overlooked      the provision  contained in section 100,      I.P.C. We do not have any evidence about      the size or the nature of the lathi. The      blow,  it  is  known,  was  aimed  at  a      vulnerable part like the head. A blow by      a  lathi   on   the   head   may   prove      instantaneously fatal  and cases are not      unknown in  which such a blow by a lathi      has  actually   proved   instantaneously      fatal. If,  therefore,  a  blow  with  a      lathi is aimed at a vulnerable part like      the head  we do not think it can be laid      down as  a sound proposition of law that      in  such   cases  the   victim  is   not

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    justified  in   using   his   spear   in      defending himself.  In such  moments  of      excitement    or     disturbed    mental      equilibrium it  is somewhat difficult to      expect parties  facing grave  aggression      to cooly  weigh, as if in golden scales,      and clamly  determine  with  a  composed      mind  as   to  what   precise  kind  and      severity  of   blow  would   be  legally      sufficient for  effectively meeting  the      unlawful aggression.  No doubt, the High      Court does  seem to  be  aware  of  this      aspect because the other accused persons      were given the benefit of this rule. But      while dealing  with the appellant’s case      curiously  enough  the  High  Court  has      denied him  the right of private defence      on the  sole ground  that he had given a      dangerous blow  with considerable  force      with  a   spear  on  the  chest  of  the      deceased  though  he  himself  had  only      received a superficial lathi blow on his      head. This view of the High Court is not      only  unrealistic  and  unpractical  but      also contrary  to law and indeed even in      conflict with  its own  observation that      in  such   case  the  matter  cannot  be      weighed in scales of gold." The facts  of the  present case  are almost  parallel to the facts of  the aforesaid  case. Consequently  it must be held that the  appellant had  a right  of private defence of body which extended to even causing death and in exercise of that right if he fired one gun shot which unfortunately killed an innocent person that is, Smt. Bholan, it cannot be said that he was  guilty of  an offence even under Section 304 Part of the IPC  on the  ground that  he had  exceeded his  right of private  defence.   Consequently  the   conviction  of   the appellant under  Section 304  part I, IPC as pendered by the High Court  is quashod  and set  aside. The  High Court  has already acquitted  the appellant  of charges  under Sections 307, 324  and 325 of the IPC. So far as his conviction under Section 27  of the Arms Act is concerned even that would not survive as  it could not be said that he has used his gun of any unlawful purpose, that is to commit culpable homicide of Mst.  Bholan   not  amounting   to  murder.  The  appeal  is accordingly allowed.  Accused is  no bail.  His  bail  bound shall stand discharged.