Gurmit
Singh & Ors Vs. State of Punjab [1995] INSC 542 (29 September 1995)
Nanavati
G.T. (J) Nanavati G.T. (J) Ray, G.N. (J) Nanavati,J.
CITATION:
1995 SCC Supl. (4) 146 JT 1995 (7) 171 1995 SCALE (5)630
ACT:
HEAD NOTE:
This
appeal arises out of a common judgment of the Punjab and Haryana High Court in Criminal Appeal No.778-DB of 1983
and Criminal Appeal No.653-DBA of 1984. Criminal Appeal No.778-DB of 1983 was
filed by Gurmit Singh who was convicted by the Sessions Court, Amritsar fori the offence punishable under
Section 302 IPC and Sections 25 and 27 of the Arms Act. The other appeal was
filed by the State against the order of acquittal of the three co-accused.
Briefly
stated, the prosecution case is that on 12.7.83 at about 7.30 P.M. when Sadhu Singh (P.W.10) and his son Parkash Singh
(P.W.12) were returning from their field to their house, Accused Gurmit Singh, Puran
Singh, Joginder Singh and Kashmir Singh met them on the way. At that time, Puran
Singh was carrying a kirpan, Joginder Singh was armed with a single-barrel .12
bore gun and Kashmir Singh was carrying a gandhali. On seeing Sadhu Singh
(P.W.10) and Parkash Singh (P.W.12) the accused started uttering abusive words.
Sadhu Singh and his son requested them with folded hands not to do so but after
proceeding a little ahead they told the accused that they would come back with Bawa
Singh to lodge a protest. After reaching their house Sadhu Singh narrated to Bawa
Singh what had happened on the way.
Meanwhile
Duman Singh (P.W.13) who was passing by their house was also informed about the
incident. Thereafter Baba Singh (the deceased), Sadhu Singh (PW 10), Parkash
Singh (PW12), Duman Singh (P.W.13) and Karam Singh (PW11) went towards the
house of accused Gurmit Singh to lodge a protest. Bawa Singh and Sadhu Singh
were carrying lanterns in their hands, Karam Singh and Parkash Singh had sticks
and Duman Singh had a kirpan with him. When they were a little away from the
house of accused Gurmit Singh all the four accused carrying the weapons which
they had earlier carried came from the opposite direction. Accused Puran Singh
then raised a Lalkara to the effect that Bawa Singh should not be spared. He
then gave a kirpan blow on the right elbow of Parkash Singh. One more blow was
given by Puran Singh.
Accused
Joginder Singh gave a blow with the butt of his gun on the chest of Sadhu
Singh. Accused Gurmit Singh took the gun of Joginder Singh and fired with the
result that Bawa Singh received injuries on his face and chest. Accused Kashmir
Singh gave a blow with the stick portion of his gandhali on the right shoulder
of Bawa Singh as a result of which Bawa Singh fell down. He also gave another
blow with the stick portion of gandhali on the back of Sadhu Singh (PW10).
Accused Joginder Singh picked up the stick of Parkash Singh (PW12) and gave one
blow with it to Karam Singh (PW11). Bawa Singh had already died as a result of
the injuries received by him. So, Sadhu Singh, Parkash Singh and Karam Singh
remained by the side of the dead body during the night as they apprehended that
the accused would otherwise remove the same. Next day morning at about 6.30 A.M. Sadhu Singh went to the Police Post at Sultanwind
falling under Police Station Sadar Amritsar and lodged the first information
report.
On
these allegations all the accused were charged for commission of offences under
Section 302 read with Section 34 IPc and Sections 25 and 27 of the Arms Act. At
the trial the prosecution mainly relies upon the evidence of the three
eye-witnesses namely Sadhu Singh (P.W.10), Parkash Singh (P.W.12) and Duman
Singh (P.W.13). Karam Singh (P.W.11) was not examined but was offered for cross
examination. He was not cross-examined by the accused. As the learned Sessions
Judge found the evidence of the eye-witnesses consistent and reliable as
regards accused Gurmit Singh he convicted accused Gurmit Singh for the offence
punishable under Section 302 IPC and Sections 25 and Section 27 of the Arms
Act. He acquitted the other accused as he was of the opinion that participation
by the other accused as stated by the eye-witnesses was doubtful in view of the
nature of injuries alleged to have been caused by the said accused and the
medical evidence on record.
Aggrieved
by the order of conviction and sentence accused Gurmit Singh filed and appeal
in the High Court and aggrieved by the order of the acquittal the State filed
an appeal against the remaining three accused. The High Court believing the
evidence of the eye-witnesses maintained the conviction of accused Gurmit
Singh, set aside the acquittal of the remaining accused and convicted them for
the offences punishable under Section 302 read with Section 34 and Sections 25
and 27 really not injured during that incident but they had caused those
injuries themselves in order to create evidence against the accused. He further
submitted that for all these reasons the conviction of the accused deserved to
be set aside.
We
have carefully gone through the evidence of Sadhu Singh (P.W.10), Parkash Singh
(P.W.12) and Duman Singh (P.W.13) and also the medical evidence on record. Both
Sadhu Singh and Parkash Singh have referred to the incident which had taken
place at 7.30 P.M. Therefore, there was no
justification for the learned Public Prosecutor who appeared in the Sessions
Court to give a go by to that incident. Be that as it may, the learned Sessions
Judge did not disbelieve the witnesses on this ground and did not record any
finding one way or the other. As there was no justification for the said
concession made by the learned Public Prosecutor, the High Court rightly
considered that part of the evidence of the eye-witnesses and came to its own
conclusion. The defence had not suggested to Sadhu Singh and Parkash Singh in
their cross-examination that such an incident had not taken place. We,
therefore, do not find any substance in the contention raised in this behalf.
The evidence of the three eye-witnesses is quite consistent and it does not
suffer from any serious of the Arms Act.
What
was contended by Mr. B.K. Mehta, learned senior counsel appearing for all the
appellants was that as the learned Public Prosecutor had given a go by to the
earlier incident which had taken place at 7.3 P.M. the whole version of the
eye-witnesses became doubtful because in absence of that incident there was no
reason for the appellants to attack Bawa Singh and others accompanying him. He
submitted that in view of this concession made by the learned Public Prosecutor
the High Court should not have relied upon that part of the evidence of the
eye-witnesses and taken a contrary view. He also contended that the version of
the eye-witnesses that they remained near the dead body for the whole night is
not consistent with natural conduct and it was an attempt to explain the delay
in lodging the first information report. He also contended that even though Sadhu
Singh had stated to the police that he had received injuries during the
incident no injury statement was prepared at that time and he was not sent for
medical examination soon thereafter. Both Sadhu Singh (P.W.10) and Parkash
Singh (P.W.12) were sent for medical examination on the next day after about 11 O'clock and that would go to show that they were infirmity.
Except bringing out minor omissions the defence was not able to take out
anything in their cross- examination which would raise any doubt regarding
truthfulness of their evidence. examination. The High Court has dealt with each
and every reason given by the trial court for not accepting their evidence with
respect to Puran Singh, Joginder Singh and Kashmir Singh. In our opinion, the
High Court was quite right in re-appreciating the evidence and coming to its
own conclusion in as much as the reasons given by the trial court for
acquitting those appellants were not proper and sufficient. Their evidence
clearly establishes that it was appellant Gurmit Singh who had fired the gun
and caused injuries to Bawa Singh which had caused his death. Their evidence
also clearly establishes that appellants Puran Singh and Karam Singh were with
appellant Gurmit Singh at the time of the incident and had taken part therein,
as deposed by the eye-witnesses. The conduct of the eye-witnesses in remaining
with the dead body for the whole night cannot be said to be unnatural in view
of the possibility of the appellants removing the dead body in order to cause
disappearance of the evidence against them.
Once
this explanation given by the witnesses for not approaching the police earlier
is accepted, it cannot be said that there was any delay in lodging the first
information report.
It was
next contended by Shri Mehta that in any case the appellants could not have
been convicted under Section 302 read with Section 34 as they were acting in
exercise of their right of private defence: and, at the highest they can be
said to have exceeded that right. In view of the evidence on record it is not
possible to accept this contention also.
The
evidence discloses that seeing the party of Bawa Singh approaching them the
appellants also armed with weapons proceeded in that direction and did not
remain near the house. the evidence further discloses that Sadhu Singh and Parkash
Singh had while going away earlier proclaimed that they would come with Bawa
Singh in order to lodge a protest.
After
reaching their house and narrating the incident to Bawa Singh they had all
started for the house of the appellant armed with sticks and a kirpan. That
would indicate that they were not going there for lodging a simple protest. It
clearly appears to us that both the sides had pre-determined to fight and the
incident wherein Bawa Singh came to be killed happened as a result of that pre-
determination. Thus this was a case of free fight between the two groups. This
aspect has not been considered by the High Court. In view of our finding that
his was really a case of free fight the conviction of appellants for the
offences punishable under Sections 302, 326 and 323 all read with Section 34
IPC will have to be set aside and they will have to be convicted for the
offence committed by them individually.
The
evidence clearly establishes that Appellant No.1, Gurmit Singh caused the death
of Bawa Singh. He has been convicted under Section 302 and, therefore, we
maintain his conviction and also the order of sentence passed against him for
that offence. His conviction for the offences punishable under Sections 326 and
323 both read with Section 34 is set aside. Therefore, the sentence imposed
upon him for those offences is also set aside. The conviction of Appellant
No.2, Puran Singh under Section read with Section 34 and also under Section 323
read with Section 34 and the order of sentence passed against him for those
offences is set aside.
The
evidence against him establishes that he had given two kirpan blows to Puran
Singh but it is not established that he caused grievous hurt to Puran Singh.
Therefore, he will have to be convicted under Section 324 IPC. For the said
offence he is sentenced to undergo rigorous imprisonment for two years. The
conviction of Kashmir Singh, Appellant No.3, under Sections 302 read with
Section 34, 326 read with 34 and 323 read with 34 is set aside and so also the
order of sentence passed against him for those offences. His conviction under
Section 323 for causing injuries to Bawa Singh and Sadhu Singh is maintained.
The order of sentence passed against him for the offence punishable under
Section 323 is also maintained. So far as Appellant No.4, Joginder Singh is
concerned his conviction under Sections 302, 326 and 323 all read with Section
34 is set aside and also the order of sentence passed against him for those
offences.
However,
his conviction under Section 323 for causing injuries to Sadhu Singh is
maintained. The order of sentence passed against him for that offence is also
maintained.
The
appeal is thus partly allowed. It is allowed to the aforesaid extent only. It
appears that Appellant Nos. 2.3 and 4 have been released on bail. They are
ordered to surrender to jail custody for serving out the sentence imposed upon
them if they have not by now served out the same.
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