Singh & Ors Vs. State of Punjab  Insc
44 (23 January 2004)
Raju & S.B. Sinha. S.B. Sinha, J :
appellants who are three in number with their father, Virsa Singh (Accused
No.1) and brother Tara Singh (Accused No.3) [since deceased] were charged for
commission of an offence under Sections 148/302/323/149 of the Indian Penal
incident took place at about 10.30 a.m. on
13.6.1987. Admittedly, the family of the deceased and the appellants belong to
the same village. They have agricultural lands. The parties had disputes both
as regard boundaries of their agricultural land as also as regard irrigation of
their respective field. On the day of the incident, Kartar Kaur (deceased)
brought food for her sons Avtar Singh and Balkar Singh (PW 5 and PW 6) who were
working in their agricultural field. When they finished taking their meals, Virsa
Singh (Accused No.1) armed with 'Takwa', Kulwant Singh (Appellant No.1) and
Tara Singh (Accused No.3) armed with 'Kirpan' each, Sahiba Singh (Appellant
No.2) armed with 'Barchha' and Darbara Singh (Appelant No.3) armed with 'Kappa'
came near the informant and the deceased from the side of their tubewell. Virsa
Singh, allegedly, exhorted the complainant and the deceased to be ready as they
had come to teach them a lesson for scrapping the boundaries of the fields;
whereupon the first informant Partap Singh, since deceased, and Balkar Singh
along with their mother got up. It is contended that Sahiba Singh gave one Barchha
blow to Partap Singh in his abdomen and another blow just below his right
shoulder in the chest, whereas Virsa Singh assaulted Partap Singh with Takwa on
the back of his right hand. Kartar Kaur, mother of the informant, who had
tucked her salwar as she waded through the water, came forward and she was
given a blow with Kirpan by Kulwant Singh on the back of her left leg,
whereupon she fell down. Even thereafter Tara Singh is said to have given Kirpan
blow on her left thigh and Virsa Singh gave two Takwa blows on her both wrists.
Singh and Balkar Singh who examined themselves as PW 5 and PW 6 respectively
came forward to rescue their mother and brother whereupon Sahiba Singh is said
to have given Barchha blow in the abdomen of Avtar Singh (PW 5) and another
blow on his left thigh. Accused No.1 allegedly gave blunt side Takwa blow on Balkar
Singh (PW 6) on the back of his right hand.
stand admitted that in the aforementioned incident, Darbara Singh and Virsa
Singh also suffered injuries which are said to have been inflicted on them by
the complainant and his brother purported to be in their self-defence.
accused persons thereafter ran away with their respective weapons whereafter Avtar
Singh (PW 5) went to the village and informed his cousin Hardip Singh about the
occurrence. A tractor was brought from the village in which Partap Singh and Kartar
Kaur were brought to the hospital at Ferozepur. The lady breathed her last on
the way whereas Partap Singh was admitted to the Civil Hospital, Ferozepur.
motive for commission of the said offence on the part of the accused persons is
said to be a dispute which took place a day prior to the day of the occurrence
between the complainant party and Virsa Singh allegedly on the ground that the
complainant party scrapped the boundaries of the fields. However, it is said
that the matter had been settled at the instance of one Maura Singh, a resident
of the same village.
doctor attending on Partap Singh informed the Police whereupon the S.H.O. of
the Police Station came to the Hospital. The statement of Partap Singh, who was
seriously injured could not be taken by the police and only at about 4.30 p.m., the first information report was lodged by Avtar
not disputed that Partap Singh was medico-legally examined at 12.30 p.m. on 13.6.1987 by Dr. A.S. Mann (PW 2) and the
following injuries were found on his person:
Oblique incised wound 10 cms. X = cm. and depth varied from muscle deep to bone
deep on back of right hand starting from base of index finger and going upwards
and medially with bleeding.
Incised wound 3 cms. X 1 cm. (at centre) oblique on front and right side of
abdomen 5 cms. medial at the level of right anterior superior iliac spine with
bleeding. Omentum and a small leap of intestine was coming out of the wound.
Abdomen was tender and tense.
Incised wound 1.5 cms. X = cm. oblique in direction on front and upper part of
right chest just below the outer half of right clavicle." Injury No.1 was
kept under observation for X-ray examination and injury No.3 was kept under
observation for surgical report and injury No.2 was declared dangerous to life.
In this regard Dr. Mann gave his report Ex.PH and also prepared pictorial
diagram Ex.PH/1 showing the seats of injuries. PW 2 Dr. A.S. Mann sent ruqa Ex.PJ
to the Station House Officer, Police Station Sarad, Ferosepur, regarding the
death of Kartar Kaur and arrival of Avtar Singh (Injured)" The statement
of Partap Singh on a certificate issued by the doctor that he was fit to make a
statement was recorded on 18.6.1987. Partap Singh, however, succumbed to his
J.S. Dalal (PW 3) who conducted the post-mortem on the dead body of Partap
Singh found the following injuries on his person :
Under the bandages of both ankles vene section wounds were present medially
over both ankles.
removing bandage of right hand there was an oblique healed wound except in its
middle one third. It was 10 cms. long on the back of right hand starting from
base of index finger and going upwards and medically. The unhealed wound was
pale and on opening it frank pus came out. There were corresponding cuts in the
third and fourth metacarpal bones.
Horizontal healed wound 1.5 cms. long just below outer half of right clavicle.
oblique wound with clean cut margins 8 cms. X 3.5 cms. muscle deep on the right
side of abdomen starting 5 cms. medically and above the right anterior superiod
iliac spine and going downwards and medially. The floor of this wound contained
plough and on dissection of surrounding tissues frank pus oozed out.
stitched wound 20 cms. long on right side of abdomen just lateral tomid line.
On removing stitches there was corresponding out in the perticotniu with
stitches. The mesentery had been repaired at many places and small gut at two
abdominal cavity contained about 300 grams of chocolate colored foul smelling
fluid." Autopsy examination of Kartar Kaur was held about 6.45 p.m. on the same day by Dr. Tirath Goel (PW 1), which
disclosed the following injuries on her dead body :
Incised wound 5 cms. X 2 cms. on the front and lower part of left thigh.
Incised wound 10 cms. X 3 cms. on the back of left leg. Underlying vessels and
muscles were cut and bones were fractured.
Incised wound 5 cms. X 2 cms. on the back of right writ joint.
lying bones were cut through and through.
Incised wound 4 cms. X 1 cm. on the back of left leg just below injury No.2.
Incised wound 3 cms. X 1 cm. on the back of left writ joint." Accused Darbara
Singh was also medico-legally examined by PW 2, Dr. A.S. Mann, at about 1.30 p.m. on the same day and the following injuries were
found on his person :
Incised wound 11 cms. X 2 cms.
in palm of right hand on lower part 2 cms. deep with bleeding.
wound 2 cms. X = cm. on palmer aspect of right index finger on the promimal phallanx
with bleeding. Injury was 1 cm. Deep.
Reddish abrasion 1/3 cm. X
Reddish abrasion with over lying lacerated wound 1.5 cm. X 1/4 cm.
on back of right and ring finger on proximal phallanx.
was 1/3 cm. deep with bleeding.
Lacerated wound = cm. X
Incised wound 2.5 cm. X = cm. on palmer aspect of left hand index finger on the
distal phallanx with bleeding, 1 cm. deep.
Incised wound 3 cms. X = cm. on outer side of root of left thumb with bleeding
1.5 cms. deep.
Incised wound 20 cms. X 7 cms.
oblique and almost vertical on back of right abdomen crossing the mid line. Depoth
could be easily traced upto 10 cms.
Incised wound 3 cm. X 2 cms. X 2.5 cms. oblique on postere medial side of left
thigh in middle one third with bleeding." Accused No.1, Virsa Singh, was
also medico-legally examined by the same doctor at about 2.20 p.m. on that day
and following injuries were found on his person.
Incised wound 5 cm. X = cm. and bone deep on right side of skull, oblique in
direction 6.5 cms.
behind the middle of right eye brow with bleeding.
Lacerated wound 1 cm. x 1/3 cm. and bone deep in mid line and centre of forehead.
Incised wound 8 cms. X = cm.
from the tip of nose and going transversally over the right cheek varying in
depth from = cm to 1 cm. Right ala of nose was cut through and through with
Incised wound 3.5 cms. X 1.5 cms.
in mid line and front of neck 5 cms. below the thyreid cartiledge with
bleeding. The depth could be easily traced upto 2 cms.
Lacerated wound = cm. x 1/3 cm. x 1/3 cm. on palmer surface of left hand in the
we space of thumb and index finger with bleeding." The statement of PW 6
was recorded by the police at 8.10 p.m. on
the fact that two of the accused persons were in the hospital itself, they were
not arrested immediately as they were undergoing treatment. Accused Nos. 2, 3
and 5 were arrested on 20.6.1987; whereas Accused Nos. 1 and 4 were arrested On
and PW 6 who are also said to have suffered minor injuries in the said incident
were examined by Dr. Tirath Goel and Dr. A.S. Mann respectively on 13.6.1987 at
5.30 p.m. and on 14.6.1987.
injuries on the person of Avtar Singh as found were as under :
Lacerated wound 1 cm. x 1 cm.
on the front and lower part of left thigh. Fresh bleeding was present on
Abrasion 1 cm. x 1 cm. on the right side of abdomen 5 cms. above the umlicus."
The following injuries were found on the person of Balkar Singh :
blush contusion 3 cms. X 3 cms. on back of left hand index finger over the meta
carpe phallangeal joint with overlying partially scabbed brownish abrasion 1.5 cms.
X The State of Punjab aggrieved thereby and dissatisfied therewith preferred an
appeal thereagainst before the Punjab and Haryana High Court which was marked
as Criminal Appeal No.402-DB of 1989.
reason of the impugned judgment, the High Court disagreeing with the view of
the learned Sessions Judge came to the conclusion that the accused persons were
guilty of commission of the offences under Section 302 and 302/149 IPC and
sentenced them to undergo the rigorous imprisonment for life and passed the
following sentences :
of the accused Offence committed Sentence Kulwant Singh U/s 302 IPC for
committing murder of Kartar Kaur He shall undergo life imprisonment and pay a
fine of Rs. 10,000/- and in default thereof shall further undergo rigorous
imprisonment for a term of one year.
Singh Tara Singh Darbara Singh and Sahiba Singh U/s 302/149 IPC They shall
undergo life imprisonment and pay a fine of Rs.10,000/- each and in default
thereof shall further undergo rigorous imprisonment for a period of one year
Singh Kulwant Singh Tara Singh Darbara Singh U/s 302/149 IPC for committing the
murder of Partap Singh They shall undergo imprisonment and pay a fine of
Rs.10,000/- each and in default thereof shall further undergo rigorous
imprisonment for a period of one year each.
Singh U/s 323 IPC for causing injuries to Avtar Singh He shall undergo rigorous
imprisonment for six months and pay a fine of Rs.1000/- and in default thereof,
shall further undergo rigorous imprisonment for one month.
Singh Kulwant Singh Tara Singh and Darbara Singh U/s 323/149 IPC They shall
undergo rigorous imprisonment for six months and pay a fine of Rs.1000/- each
and in default thereof shall further undergo rigorous imprisonment for one
Singh U/s 323 IPC for causing injuries to Balkar Singh He shall undergo
rigorous imprisonment for six months and pay a fine of Rs.1000/- and in default
therefor, undergo rigorous imprisonment for one month.
Singh Tara Singh Darbara Singh and Sahiba Singh U/s 323/149 IPC They shall
undergo rigorous imprisonment for six months and pay a fine of Rs.1000/- each
and in default thereof, shall further undergo rigorous imprisonment for one
month each." All the substantive sentences awarded to the respective
accused persons were directed to run concurrently. It was further directed that
the fine, if recovered, shall be paid by way of compensation to the heirs of
the respective deceased in equal shares.
Lalit, learned counsel appearing on behalf of the appellants would submit that
the High Court committed a manifest error in passing the impugned judgment
insofar as it failed to take into consideration that in the facts and
circumstances of this case, the appellants, their brother and father should
have been held to have exercised their right of private defence having regard
to the nature of injuries suffered by Accused Nos. 1 and 4.
would submit that the nature of injuries on the person of the said accused are
pointers to the fact that the complainants were the aggressors. The learned
counsel would contend that the alleged immediate cause leading to the
occurrence was that Harnam Singh's field used to be irrigated through the water
drawn from the tubewell of the complainant and when Darbara Singh was cleaning
the water channel, Partap Singh came whereupon the verbal altercation ensued; whereafter
they came being armed with weapons and attacked Darbara Singh. According to the
learned counsel, Harnam Singh was armed with 'Khund', a hard and blunt weapon
whereas Partap Singh came with a sharp- edged weapon and while he was attacked Darbara
Singh tried to ward away the attack with his both hands, as a result whereof he
suffered as many as five injuries on his two palms.
learned counsel would point out that Darbara Singh was evidently working in the
field as he had been found by the doctor to be bare chested. It was contended
that only upon noticing Darbara Singh being assaulted with 'Khund', a blunt
weapon, Virsa Singh came to his rescue and he had also been attacked and only
in the said scenario Virsa Singh exercised his right of private defence. Kartar
Kaur, however, who had come in the meanwhile at the place of occurrence unfortunately
suffered injuries resulting in her death.
would urge that had the complainant been not aggressors, there was no reason as
to why PW 5 and PW 6 would suffer only minor injuries. Sufferance of such
injuries by the said witnesses, Mr. Lalit would contend, is doubtful, as in the
opinion of the doctor they could be self-inflicted. Mr. Lalit would further
argue that there is nothing on records to show that except Darbara Singh and Virsa
Singh, any of the other three accused persons was present at the place of
occurrence and participated therein.
to Mr. Lalit, only in the aforementioned fact situation, the trial court found
the presence of PW 5 and PW 6 at the place of occurrence to be doubtful and
furthermore held that having regard to the injuries on the persons of Darbara
Singh and Virsa Singh, they were entitled to exercise their right of private defence.
In that view of the matter, the learned counsel would argue, that the High
Court should not have interfered with the judgment of acquittal passed by the
leaned Sessions Judge having regard to the fact that the said defence had been
raised from the very beginning of the trial.
would further submit that the statements of Partap Singh in the facts and
circumstances of the case, should not have been treated to be a dying
dying declaration of Partap Singh in effect and substance, Mr. Lalit would
submit, was a statement under Section 161 of the Code of Criminal Procedure and
the same was not reliable in view of the fact that Partap Singh died five days
learned counsel would urge that the High Court failed to consider the nature of
the injuries suffered by the accused persons which having regard to the
materials brought on records would clearly prove that the accused persons
exercised their right of private defence. Mr. Lalit would further submit that
the prosecution failed to prove that the injuries caused to the accused persons
by PW 5 and PW 6 were by way of exercise of their right of private defence as
merely a bald statement had been made in the first information report to the
said effect and furthermore PW 5 and PW 6 also did not elaborate thereabout in
their depositions before the Sessions Court.
would argue that as the judgment of acquittal passed by the learned Sessions
Judge in the aforementioned situation was reasonable, the High Court should not
have interfered therewith.
Khullar and Mr. Arun Kumar Sinha, learned counsel appearing on behalf of the
State and the complainant, on the other hand, would submit that from the site
plan prepared by the investigating officer, it would appear that the occurrence
took place in the field of the first informant. The learned counsel would
contend that as the date and place of occurrence as also the nature of offence
stand admitted, it was for the accused persons to prove that the informant party
were the aggressors and they exercised their right of private defence. The
learned counsel would contend that even if the contention of the appellants is
accepted, no explanation has been offered as to why Kartar Kaur was done to
death. It was pointed out that from the materials on records, it would appear
that she was subjected to assault despite falling down on the field.
principal questions which arise for consideration in this appeal, in view of
the rival submissions made by the learned counsel for the parties are:
the accused persons were entitled to exercise their right of private defence;
any event whether they exceeded the same in doing so;
Whether the statement of Partap Singh recorded on 18.6.1987 should be construed
to be a dying declaration? Before adverting to the rival contentions, as
noticed hereinbefore, it may be noticed that Accused Nos.1 and 3 have since
not in dispute that the deceased Kartar Kaur and the injured Partap Singh were
brought to the hospital by PW 5, Avtar Singh. According to the prosecution, Balkar
Singh had gone to his maternal uncle's place to inform him about the incident
and as such he was examined by the police on the next day of occurrence. The
materials on records further show that the investigating officer having been
informed about the incident by Dr. Mann wanted to record the evidence of Partap
Singh as he was an injured witness but as he was not declared fit to make a
statement, the statement of PW 5 was recorded and the same was treated as the
first information report.
at the threshold examine the question as to whether the statement of Partap
Singh could be treated to be a dying declaration.
32 of the Indian Evidence Act, 1872 nowhere states that the dying declaration
must be recorded in the presence of a Magistrate or in other words no statement
which has not been recorded before the Magistrate cannot be treated to be a
dying declaration. The fact that the investigating officer from the beginning
intended to take the statement of Partap Singh is not in dispute. The
endorsement made by the doctor in Ex.PQ/1 and Ex.PR/1 would clearly show that
he had not been found fit to make such statement. Only on the fifth day i.e.
18.6.1987, the statement of Partap Singh could be recorded.
32 of the Indian Evidence Act also does not state that a dying declaration
should be made only in expectation of death and in that view of the matter the
fact that Partap Singh died on 26.6.1987 after a period of one week is of no
consequence. Explanation-I appended to Section 32 specifies that when the
statement is made by a person as to the cause of his death, or any of the
circumstances of the transaction which resulted in his death where cause of
death of that person's death comes into question would be a relevant factor.
the investigating officer Hukam Singh has proved the statement of Partap Singh.
He deposed that he was fully conscious when he made the statements which were
read over to him. In that view of the matter the said statements are admissible
under Section 32 of the Indian Evidence Act.
statement of PW-1 in no unmistakable terms shows that the condition of Partap
Singh was very serious.
Devi vs. State of Bihar [AIR 1983 SC 164] , this Court observed :
statement, written or oral, made by a person who is dead as to the cause of his
death or as to any of the circumstances of the transaction which resulted in
his death, in case in which the cause of that person's death comes into
question, becomes admissible under section 32 of the Evidence Act. Such
statement made by the deceased is commonly termed as dying declaration.
is no requirement of law that such a statement must necessarily be made to a
Magistrate. What evidentiary value or weight has to be attached to such
statement must necessarily depend on the facts and circumstances of each
particular case. In a proper case, it may be permissible to convict a person
only on the basis of a dying declaration in the light of the facts and
circumstances of the case. In the instant case, the dying declaration has been
properly proved..." In Tehal Singh and Others vs. State of Punjab [AIR
1979 SC 1347], this Court negatived the contention that a dying declaration
should be made only in expectation of death, stating :
We do not also see any force in the suggestion of Dr. Chitale that the
statement of Harmel Singh was not made in expectation of death and was,
therefore, not entitled to weight. Apart from the fact that Section 32 of the
Evidence Act does not require that a statement should be made in expectation of
death, it is clear from the evidence that the condition of Harmel Singh was
serious at that time. In the requisition made by the Medical Officer to the
Police it has been clearly mentioned that the condition of Harmel Singh was
serious. The very circumstance that Dr. Pasricha advised that Harmel Singh
should be removed to Bhatinda Hospital for better treatment clearly indicates that the condition
of Harmel Singh was serious..." In that view of the matter, the statement
of Partap Singh, in our opinion, would be admissible under Section 32 of the
Indian Evidence Act.
prosecution case as emerging from the first information report would clearly
show the respective parts played by the accused persons. The allegations made
in the first information report and the statements made before the court by PW
5, Avtar Singh and PW 6, Balkar Singh, who were the eye-witnesses as also the
dying declaration of Partap Singh clearly indicate the manner in which the
offence had been committed and injuries had been inflicted upon the deceased.
autopsy report of Kartar Kaur further demonstrates that injury no.2 inflicted
on her, an incised wound of 10 cms. X 3 cms. on the back of left let as a
result whereof underlying vessels and muscles were cut and bones were
fractured, was in the opinion of the doctor, sufficient to cause death in the
ordinary course of nature.
injury report of Partap Singh also would clearly show that injury no.2 suffered
by him which was an incised wound 3 cms. x 1 cm. (at center) oblique on front
and right side of abdomen 5 cms medial, was in the opinion of the doctor was
dangerous to his life, which came to be true.
injuries caused on the deceased Kartar Kaur and Partap Singh were found to have
been caused within six hours. The boundary dispute between the parties as also
a dispute with regard to irrigation of the accused field from the water taken
from the tubewell of the complainant are admitted.
statement of Partap Singh is also material. He was seriously injured and was
examined by Dr. Tirath Goel (PW- 1). He, continuously for days was not found
fit to make any statement and endorsement to the said effect was made by the
said doctor to the investigating officer in Ex.PQ/1 and Ex.PR/1. Only on the
fifth day, he was found fit to make a statement as would appear from the
endorsement marked as Ex. P.5/1 made by the Dr. Goel whereupon only a statement
was recorded by the investigating officer. The statement of Partap Singh marked
as Ex.P00 was recorded on 18.6.1987 by ASI Hukam Singh.
appellants did not dispute the aforementioned facts; neither the statements of
PW-1 and PW-9 in this behalf were put to test in cross-examination.
not essential that a dying declaration should be made only before a Magistrate.
would deal with the question of admissibility of the statement made by Partap
Singh, a little later but suffice it to point out at this juncture that the
statements of Partap Singh stand corroborated by the evidence of Avtar Singh
(PW-5) and Balkar Singh (PW-6). Even if the evidence of Balkar Singh is held
not to be reliable, as has been submitted by Mr. Lalit, we find no reason to
disbelieve the statements of Avtar Singh (PW-5). He categorically stated that
when they were working in the field, their mother had come with food and when
they just finished taking the same, the accused persons came and Virsa Singh
gave a 'lalkara' whereupon accused persons inflicted blows on Partap Singh, Kartar
Kaur and PW-5 and PW-6. The sufferance of minor injuries by PW-5 and PW-6 at
the hands of the accused persons appears to be more probable as by the time
they realized their position and went to the actual place of occurrence upon
collecting their weapons and assaulting Darbara Singh and Virsa Singh
therewith, the accused persons might have realized that they had already
inflicted fatal blows on Kartar Kaur and Partap Singh and in the meanwhile they
had also suffered injuries at the hands of the informant party. Partap Singh
suffered two Barchha blows at the hands of Sahiba Singh, one in the abdomen and
another in the chest whereas Virsa Singh appears to have inflicted a Takwa
blow. These injuries are corroborated by medical evidence.
the statements made in the first information report as also before the court by
PW-5 as regard nature of injuries suffered by Kartar Kaur also stands
corroborated by medical evidence. The presence of PW-5 and PW-6 at the place of
occurrence cannot be disbelieved only on the ground that the injuries found on
their persons were found to be simple in nature. They might have suffered
simple injuries because they might have collected their arms so as to make
counter attacks after seeing unarmed Kartar Kaur and Partap Singh having been
IV of the Indian Penal Code provides for the general exceptions. Sections 96 to
106 which occur in the said chapter deals with the right of private defence.
96 says that nothing is an offence which is done in exercise of the right of
private defence. This right, however, is available to a person who is suddenly
confronted with immediate necessity of averting an impending danger which is
not his own creation. The necessity must be present, real or apparent. It is
preventive and not retributive. [See Laxman Sahu vs. State of Orissa, AIR 1988
question, whenever a right of private defence is claimed, must be judged from
the nature of occurrence, the circumstances in which it had occurred and
whether the person claiming such right has acted legitimately.
circumstances would also be relevant for judging the same.
well-settled that the burden to prove the same is on the person who raises such
plea. For the purpose of proving the same, the accused may rely upon the
materials on records brought by the prosecution in addition to examining the
witnesses and adducing positive evidences, if any. A person has a right of
private defence of body under Section 97 and in the event it is found that he
was entitled to exercise the same, he necessarily must be held to have a right
to cause death in terms of Section 100 of the Indian Penal Code, if there was a
reasonable apprehension that death or grievous hurt would be caused.
arriving at a finding as to the whether the accused persons had legitimately
exercised their right of private defence, it is necessary to pass the question
as to who had started the assault.
place of occurrence is the agricultural field of the informant. It will,
therefore, be safe to presume that the accused persons trespassed into the
property of the informant. The fact that at least two of the accused persons
were armed with sharp-edged weapons like Kirpan or Kappa is not disputed. If
they had trespassed into the agricultural field of the informant with deadly
weapons, it is difficult to presume in absence of any material on record that
the initiation of the assault was from the side of the informant. It stands
admitted that the Accused Darbara Singh was cleaning the water channel which
passes through the field of the informant. There is also no reason to
disbelieve the statements of PW-5 and PW-6 as also the dying declaration of Partap
Singh that their mother had brought food for them and they had taken the food
and incident took place immediately thereafter. As noticed hereinbefore, the injuries
inflicted on deceased Kartar Kaur is not disputed.
was not and could not have been armed with any weapon.
did not take any part. She ever did not incite her sons to assault the accused
persons. If the informant party was the aggressor, there was no reason as to
why she would run towards the place where the fight was taking place, resulting
in causing of injuries on the person of Partap Singh. She apparently tried to
intervene seeing her sons being assaulted with sharp cutting weapons. She had
been inflicted with as many as five sharp-cutting injuries, three on the leg
and two on the wrist. There does not appear to be any reason as to why an aged
lady was done to death. The impact of the blows on her person would be evident
from the autopsy report. Apart from the cumulative effect of five injuries
inflicted on her person, as noticed hereinbefore, injury no.2 was sufficient to
cause death in ordinary course of nature. It defies common sense, if the
prosecution story is accepted that PW-5 and PW-6 were not present at the place
of occurrence, that the deceased Partap Singh alone would single handedly
attack the accused persons who were five in number and variously armed.
Singh himself and his four sons are said to have taken part in the occurrence.
There were five male members on the side of the accused whereas three were
there on the side of the informant. The nature of the weapons used in the
commission of offence also suggests that they are not ordinarily required to be
carried on their persons, even on religious ground.
be true that Darbara Singh suffered five injuries out of nine injuries on both
palms but only because he might have tried to ward off the assault of the blows
which were inflicted on him by themselves cannot be conclusive that he was
attacked first. Another factor which deserves attention of this Court is that
the occurrence which had taken place at about 10.30 a.m. on 13.6.1987 whereafter, PW-5 went back to the village to
inform his cousin, brought a tractor and took the injured Kartar Kaur and Partap
Singh to hospital. The distance between the place of occurrence and the
hospital is said to be about 9 k.m. On the way Kartar Kaur died and Partap
Singh was examined at 12.30
p.m. It is not in
dispute that they were brought to the hospital by PW-5 and in that view of the
matter his presence at the place of occurrence appears more probable. On the
other hand, the injured Darbara Singh and Virsa Singh were brought to the
hospital by Kulwant Singh at least one hour thereafter. Presence of Kulwant
Singh also, thus, appears to be probable. Despite suffering such injuries why
they were not rushed to hospital has not been explained. Furthermore, Dr. A.S.
Mann (PW-2) immediately informed the officer incharge about the incident. The
police came to the hospital, the first information report was lodged at 4.30 p.m. If the informant and his brothers were the
aggressors, it was expected, that the injured Darbara Singh and Virsa Singh or
the Appellant no.1, Kulwant Singh, would have made such statements before the
police officer giving details as to the mode and manner in which the incident
had happened and as to how Virsa Singh and Darbara Singh suffered such grievous
injuries, particularly when PW 2 in his evidence categorically stated that Virsa
Singh was fully conscious and could talk clearly.
records also reveal that weapons of attacks were recovered at the instance of
both Kulwant Singh and Sahiba Singh. The spear and kirpan which were recovered
were found to be blood-stained. We, therefore, are of the opinion that there
does not exist any legal infirmity in the findings of the High Court.
the reasons aforementioned, we are of the opinion that the accused persons have
not been able to discharge their onus of proof that they had killed the
deceased in exercise of their right of private defence.
appeal being devoid of any merit is dismissed.