Hardial
Singh & Ors Vs. The State of Punjab [1995] INSC 215 (9
April 1995)
M.K.
Mukherjee, G.B. Pattanaik G.B. Pattanaik. J.
ACT:
HEAD NOTE:
The
three appellants being unsuccessful in the appeal filed by them in the High
Court and their conviction and sentence passed by the learned Additional
Sessions Judge, Amritsar, having been confirmed have
approached this Court.
These
three alongwith the acquitted Amar Singh and Dalip Singh stood their trial in
the Court of Additional Sessions Judge, Amritsar under Sections 148, 302/149,
326/149 I.P.C.
on the
allegation that they came armed with guns and rifles and fired at the deceased
as well as the injured P.W.5 and other members of the informant party who were
cultivating the land belonging to Khazan Singh in village Rekh Jhitan.
It is
to be noted that all the five accused persons are related to each. other,
accused Dalip Singh being the father and the rest four are his sons, The
learned Additional Sessions Judge acquitted accused Dalip Singh and Amar Singh
giving them benefit of doubt on a conclusion that the prosecution evidence does
not prove the charge against them beyond reasonable doubt. But so far as the
three appellants are concerned, the learned Additional Sessions Judge convicted
them and sentenced them differently. Appellant Hardial Singh was convicted
under Section 302 IPC and was sentenced to imprisonment for life. He was also
convicted under Section 148 I.P.C. and sentenced to R.I. for one year and under
Section 326/149) I.P.C. was sentenced to R.I. for two years. Appellant Uttam
Singh was convicted under Section 302/149 IPC and was sentenced to imprisonment
for life. He was also convicted under Section 148 IPC and was sentenced to R.I.
for one year and convicted under Section 326 IPC and was sentenced to R.I. for
two years. Appellant Gurnam Singh was also convicted under Section 302/149 IPC
and was sentenced to imprisonment for life. He was also convicted under Section
148 I.P.C. and sentenced to R.I. for one year and convicted under Section
326/149 IPC and sentenced to R.I. for two years. The sentences of imprisonment
of each of the appellants were ordered to run concurrently. They moved the High
Court against the conviction and sentence in Criminal Appeal No. 388 of 1989
but the High Court dismissed the appeal and confirmed the conviction and
sentence and, hence, the present appeal.
Prosecution
case in nutshell is that a piece of land belonging to one Khazan Singh of
village Rekh Jhitan was being cultivated by Kulwant Singh P.W.4 and his father Gulzar
Singh P.W.10, Amar Singh and Harbans Singh for the last so many years. The
appellant's family became interested in dispossessing Kulwant Singh and his
other and apprehending forcible eviction by the appellants, said Gulzar Singh
P.W.10 filed a Civil Suit and had obtained an order of injunction on December 24, 1980. On the date of occurrence, on 31st
of October, 1981 Kulwant Singh P.W.4 had made arrangements for getting the land
ploughed with a tractor and accordingly approached P.W.9 who was also distantly
related to Kulwant Singh. The further prosecution case is that the said P.W.9, Jagir
Singh the deceased, P.W.4 and 5 were ploughing the land and P.W.5 had brought
his licensed gun as they were apprehending trouble from the accused persons.
While the ploughing operation was going on the accused persons armed with
rifles and guns appeared at the spot and Gurnam Singh gave a lalkara not to
plough further. P.W.4 Kulwant Singh, however, asked P.W.5 Jagir Singh to
continue ploughing operation. Gurnam Singh then told his other companions that
the people should be taught a lesson for ploughing land. The appellants then
took their position behind the paddy straw ridge and Gurnam Singh fired from
his rifle which hit P.W.5 who was operating the tractor. Said P.W.5 then rushed
towards the boundary to pick up his .12 bore gun and at that point of time
appellant Uttam Singh fired a shot which hit P.W.5 on his left thigh.
P.W.5
then fired two shots in his defence. Appellant Hardial Singh fired another shot
which hit the deceased Jagir Singh on his chest and he fell down. Amar Singh
and Dalip Singh also fired shots from their respective weapons and none of the
shots hit any of the camplainant party. The appellants and their companions
then left the place with their respective weapons. Kulwant Singh P.W.4
immediately went to Police Station Jandiala at a distance of 8 kms from the
place of occurrence and lodged the FIR at 11 A.M. P.W.15 the Investigating
Officer recorded the First Information Report and left for the place for
investigating into the offence.
At the
place of occurrence he prepared the Inquest Report and sent the dead body of
deceased Jagir Singh for Post Mortem examination. The Investigating Officer
also sent the injured P.W.5 to Hospital at Amritsar for treatment and medical
examination. The Investigating Officer collected some blood stained earth from
the place where the-deceased Jagir Singh was lying and collected some empty
cartridges from that place. From another place also he seized six empties and
some live cartridges and recorded the statement some of the witnesses under
Section 161 of the Code Criminal Procedure. On completion of investigation of
he finally submitted the charge-sheet and on being committed the accused
persons stood their trial as already stated. In support of the prosecution case
a large number of witnesses were examined of whom P.Ws 4 and 5 are the
eye-witnesses to the occurrence. P.W.2 is the Doctor who had examined the
injured P.W.5 as well as the injured accused Hardial Singh.
The other
Doctor was examined as P.W.1 had conducted the Post Mortem examination on the
dead body of deceased Jagir Singh. Relying upon the statement of P.W 4 and 5
and being of the opinion that the medical evidence corroborates the ocular
statement, the learned Additional Sessions Judge convicted the three appellants
as already stated but since there was no prosecution evidence to establish that
Dalip Singh and Amar Singh had fired any shot which hit any of the members of
the prosecution party, they were given benefit of doubt and were acquitted, No
appeal had been filed against the said order of acquittal of Dalip Singh and Amar
singh but the appellants' appeal against their conviction and sentence was
dismissed by the High Court on a reappreciation of the evidence of P.Ws.4 and 5
as well as the medical evidence.
Mr. Kohli,
the learned senior counsel appearing for the appellants contended that five
known persons being charged under Section 302/149 IPC and two of them having
been acquitted of the charge the courts below committed gross error of law in
convicting the rest three accused persons by taking recourse to Section 149
IPC. He further contended that the entire prosecution case as unfolded through
the evidences of P.Ws.4 and 5 should not be accepted in view of inherent
inconsistencies in their statements and in view of the fact, that their
evidence is contrary to the medical evidence. Mr. Kohli further urged that from
the narration of facts it must be held that it was a case of free fight and,
therefore, the individual accused persons may thus be liable for their
individual acts and cannot be cojointly liable.
According
to Mr. Kohli, if the prosecution case is examined from this angle and taking
into consideration the serious injuries which appellant Hardial had sustained
in course of the incident, the only conclusion possible is that said Hardial
had fired from his gun in private defence of his person and, therefore, he
cannot be held liable for the offence of murder. Learned counsel appearing for
the State fairly submitted that in view of the acquittal of the two accused
persons provision of Section 149 IPC could not have been pressed into service
and the courts below committed error on that score. He further stated that
though under law it is possible for a court to convict the accused persons who
were charged under Sections 302/149 I.P.C., if that charge fails by altering it
to one under Sections 302/34 I.P.C., but in the case in hand on the evidence on
record it will be difficult to convict the appellants Uttam Singh, Gurnam Singh
and Hardial Singh under Section 302/34 IPC and necessarily therefore, the
individual over-acts of the appellants have to be considered. According to the
learned counsel for the respondent, in view of the positive evidence of P.Ws 4
and 5 conviction of appellant Hardial Singh under Section 302 IPC is
unassailable and cannot be interfered with. So far as the two other appellants
are concerned, according to him their conviction under Section 326 IPC remains
unassailable. We find sufficient force in the submission of the learned counsel
appearing for the State.
P.W.4 Kulwant
Singh had stated in his evidence that while they were cultivating the land in
question accused Gurnam Singh challenged them and asked them not to plough the
land. But when notwithstanding the said order of Gurnam Singh P.W. 5 continued
the ploughing of the land, said Gurnam Singh fired from his rifle which hit the
deceased on his right arm, at that point of time P.W.5 lifted his gun and fired
two shots in self defence. Uttam Singh fired from his rifle which hit the
witness Jagir Singh P.W.5 then Hardial Singh fired from his rifle which hit the
deceased Jagir Singh on his chest and the deceased fell down.
Thereafter
when they raised alarm the accused persons left the place. P.W. 5 substantially
corroborates the aforesaid version of P.W.4. It is thus apparent that the shot
alleged to have been fired by Gurnam Singh hit the right arm of the deceased
and the gun shot which had been fired by Hardial Singh hit the chest of the
deceased. The gun shot fired by Uttam Singh hit the left thigh of Jagir Singh
P.W. 5. P.W.1 who had conducted the Post Mortem examination on the dead body of
the deceased found one inlet wound as well as outlet wound on the right forearm
of the deceased and both those injuries correspond with each other. He also
found an inlet wound of 1 cm x 3/4 cm oval in shape on the front and left side
of chest 6 cm above left nipple. On dissection he found that the bullet after
piercing the chest had entered the third inter costal space and then piercing
the left pleura and upper lobe of the left lung had also ruptured the heart.
The
bullet was found in the right cavity. In his opinion the death was due to haemorrhage
as a result of the injury to heart, left lunge liver and mesenteric vessels
which had been caused on account of the gun shot injury on the chest.
It
would thus be crystal clear that the death of deceased Jagir Singh was on
account of the gun shot injury on his chest which in turn had been caused on account
of firing from the gun of appellant Hardial Singh. So far as the two other
appellants are concerned, the gun shot from the appellant Gurnam Singh had
caused an injury on the right forearm of the deceased and the gun shot from the
appellant Uttam Singh had caused an injury on the thigh of P.W.5. At this
stage, it would be appropriate for us to examine the contention of Mr. Kohli,
the learned counsel for appellant with regard to the so-called right of private
defence of person of appellant Hardial Singh and whether the evidence of P.Ws 4
and 5 should at all be believe or not. So far as the testimony of P. Ws 4 and 5
is concerned on a thorough scrutiny of the same we have not found anything in
their cross examination to impeach their veracity. On the other hand, both of
them have narrated the occurrence which also gets ample corroboration from the
medical evidence as discussed earlier. The evidence of those two witnesses have
been believed by the two courts below and we see no ground to discard that testimony.
The submission of Mr. Kohli to discard their evidence, therefore, cannot be
sustained.
Coming
to the question of claim of right of private defence of appellant Hardial
Singh, it is no doubt true that Hardial Singh had sustained one lacerated inlet
wound 1 cm x 3/4 cm the posterio medical aspect of right leg having a
corresponding lacerated outlet wound as found by the Doctor P.W.2 and the
injury was grievous in nature as the X-ray report indicated that the right
fibula had been fractured.
But
that be itself cannot be the basis to establish a claim of right of private defence
of person. The land in question was admittedly in cultivation of informant
party and the accused persons reached the place fully armed with guns and
rifles. As stated by P.W.4 when the informant party did not stop the ploughing,
it is accused Gurnam who first fired which his the right arm of the deceased
and then in self defence P.W.5 fired two shots from his gun and thereafter Hardial
Singh Fired from his gun which hit the chest of the deceased. Accused Uttam
Singh also had fired from his rifle which hit the left thigh of P.W.5. This
being the sequence of the events, it is the accused persons who must be held to
he aggressor and the plea of right of private defence of person cannot be
available to them. It is the gun shots from two firing made by P.W.5 in self defence
which had caused the injury on Hardial Singh. When the accused persons come
armed to the place of occurrence which was in lawful possession of the
informant party and who had obtained injunction from the court of law, the
question of claim of right of private defence by the accused does not arise and
more so in the sequence of events as unfolded through the evidence of P.Ws. 4
and 5. It is difficult for us to accept the plea of right of private defence of
person of accused Hardial Singh. Necessarily, therefore, on the evidence of the
Doctor P.W. 1 and the evidence of P.Ws. 4 and 5 it must be held that the charge
under Section 302 IPC so far as appellant Hardial Singh is concerned is proved
beyond reasonable doubt and the conviction and sentence of appellant Hardial
Singh on that score cannot be interfered.
But so
far as the conviction of two other appellants under Section 302/149 IPC, as
stated earlier, the same cannot be sustained nor is it possible on the facts
and circumstances of the case to convict them even under Section 302/34 IPC for
their over acts. In fact as already stated, the learned counsel appearing for
the respondent State fairly submitted that their conviction under Section
302/149 IPC cannot at all be sustained. But for their individual act for the
injuries caused on the right arm of the deceased as well as on the thigh of
P.W. 5 their conviction under Section 326 IPC and the sentence passed thereunder
has to be maintained.
So far
as the conviction under Section 148 IPC is concerned, the same also cannot be
sustained as the prosecution has failed to establish an "unlawful
assembly" of the accused persons.
In the
premises as aforesaid, the conviction of appellant Hardial Singh under Section
302 IPC and the sentence of imprisonment for life thereunder is upheld. His
conviction under Section 148 IPC as well as 326/149 IPC and the sentence passed
thereunder are set aside. The conviction of appellant Uttam Singh under Section
302/149 IPC and the sentence passed thereunder are set aside but his conviction
under Section 326 IPC and sentence to undergo R.I. for two years on that score
are confirmed. Conviction of appellant Gurnam Singh under Section 302/149 IPC and
the sentence passed thereunder are set aside and his conviction under Section
326 IPC and sentence to R.I. for two years are confirmed. So far as the
appellant Hardial Singh is concerned, his bail bond stands cancelled and he is
directed to surrender for serving the balance period of sentence. So far as the
other two appellants are concerned, Mr. Kohli appearing for them submitted that
they have already undergone the period of sentence of two years but from the
records of this Court it is not possible to come to that conclusion since they
were granted bail by order dated 10.2.1986. In that view of the matter we
direct that in case they have already undergone the sentence of two years, the
question of their surrendering again would not arise but in case they have not
undergone the sentence of two years they must surrender to serve the balance
period. These appeals are accordingly allowed in part.
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