The
State of Haryana Vs. Sher Singh & Ors [2002] Insc
384 (11 September 2002)
S. Rajendra Babu & P.Venkatarama Reddi. P. Venkatarama Reddi,
J.
In
this appeal filed by the State of Haryana with special leave, the verdict of
the Punjab & Haryana High Court acquitting the respondents 1 to 9 of the
charges under Section 302, I.P.C. read with S. 149 etc. and modifying the
conviction and sentence of the 10th respondent Dalel Singh, is being assailed.
The Additional Sessions Judge, Kurukshetra, convicted the 12 accused including
the 10th respondent herein charged for the offences under Section 302, I.P.C.
read with 149, Section 307 read with 149, Section 148 and Section 427, I.P.C,
and they were sentenced to life imprisonment. They were charged for the murder
of one Bhim Singh in the morning hours of 23rd July, 1983 in a fallow field near the village Serdha
and for attempting to murder PWs 6, 11 and another who received injuries in the
course of fight. Most of the accused respondents excepting respondents 5 and 6
are related to each other. The members of the prosecution party too are
inter-related and they are also related to some of the accused.
According
to the prosecution, Phool Singh (PW5), who is the cousin of the deceased Bhim
Singh, was in possession of the disputed land at the time of occurrence, having
taken the land as tenant for cultivation from Rameshwar, the father of the
accused Kishan Chandd who filed the suit for pre-emption and got a decree in
his favour. Rameshwar also executed an agreement of sale in favour of Phool
Singh on 23.1.1981 and received part of the sale consideration. The accused
armed with weapons viz., 'bhalas', 'jelis', 'gandasis' and 'lathis' came to the
land to take forcible possession and the cattle brought by them were let loose
in the fields resulting in damage of standing crop. Then, the deceased and four
others namely, Phool Singh (PW 5), Zile Singh (PW 6), Diwan Singh (PW 11) and Ghuman
Singh (not examined) reached the spot. When Bhim Singh, the deceased questioned
their high-handed acts, four of the accused encircled him and started
inflicting injuries with their weapons. PW 6 tried to rescue the deceased but
he was also attacked by four of the accused who inflicted severe injuries and
so also PW 11 Dewan Singh and Ghuman Singh were inflicted injuries by four
other accused when they tried to intervene. Bhim Singh succumbed to the
injuries on the spot. The 'bhala' blow given by Dalel Singh (10th respondent)
on the chest of Bhim Singh proved fatal.
Phool
Singh (PW5) lodged the complaint with the police. The injured were examined and
treated at the Civil Dispensary, Pundri. The Medical Officer (PW1) at Pundri
referred PW 6 to Civil Hospital, Kaithal as he had received severe injuries. The other two
received simple injuries. At the Civil Hospital, Kaithal, the Doctor who examined
PW 4 found a wound on the left side of the abdomen and lower part of thorax
from which omentum was coming out. In view of the gravity of his condition he
was referred to Civil Hospital, Rohtak and from there, he was taken to and admitted in
PGI, Chanddigarh. PW 6 remained under treatment of Dr. J.D. Wig (PW 3) who
performed a surgery to save his life. PW 6 ultimately recovered from the
injuries. An autopsy done by PW 2 on the dead body of Bhim Singh revealed various
injuries. The first injury noticed by him was lacerated wound 2" x 1"
scalp deep above right eye-brow on the forehead. The most serious injury, which
according to the Doctor was the immediate cause of death, is injury no. 7.
According
to PW 4, the death occurred due to shock and haemorrhage caused by the injuries
to the vital organs as a result of injury No. 7 which was caused by a sharp
weapon. The description of injury No.7 is as follows:
"a
penetrating wound 2" x 1-1/2" in the second intercostals space on
left side of chest running up side down and laterally and edges were clean cut.
The underlying 3rd rib was fractured and the intercostals and pectoral muscles
were torn. Blood coming out of the wound was collected in the muscles. Further
dissection revealed that the wound was directed posteriorly upto the posterior
abdominal wall injuring the structures viz. left lung, left-septum and right
ventricle.
On the
basis of the information furnished by the accused the weapons were discovered
by the police officials in the presence of Panchas. The injured persons PWs 6
and 11, the informant P.W. 5 and one Gaje Singh (PW 12) who allegedly came to
the scene of offence after the commencement of the incident are the
eye-witnesses.
The
prosecution case, as spelt out from the evidences of PWs 5, 6, 11 and 12, was
believed by the Trial Court. The learned Sessions Judge recorded the finding
that the accused formed themselves into an unlawful assembly with the common
object of taking forcible possession of the land by attacking, if necessary the
members of prosecution party, if they offered resistance. The learned Sessions
Judge held that Phool Singh (PW 5) was in possession of the land in question,
he having taken over the possession from Kishan Chand (accused) a few months
earlier to the incident. In coming to this finding, the Sessions Judge inter alia
relied on the FIR (Ex. P U) lodged by Kishan Chand on 25.4.1983. The learned
Judge did not accept the plea that the accused acted in exercise of right of
private defence of property.
On
this aspect, the learned Trial Judge observed that even assuming that the
accused Kishan Chand was in possession of the land on the date of the incident
i.e. 23.7.1983 and Bhim Singh and other members of prosecution party, had gone
to the land to enter into possession and plough it, there was no justification
to cause the death of Bhim Singh in the alleged exercise of the right of
private defence because the accused could not have had reasonable apprehension
of death or grievous hurt. He further observed that the circumstances of the
case did not indicate that the accused were justified even in causing hurt to
PW 6 and others.
The
High Court did not agree with the trial court's findings as regards possession
of the land. The High Court was of the view that the deceased and his partisans
went to the field to take possession thereof forcibly and in order to ward off
their attempts and to save the property from their onslaughts, the accused had
to defend themselves. However, as there could be no apprehension of death or
grievous injury from the deceased and his party, there was no justification in
killing Bhim Singh. Therefore, the High Court concluded that the accused Dalel
Singh (respondent No. 10 in this appeal) who gave the fatal blow to Bhim Singh
with a deadly weapon exceeded his right of self-defence and hence liable to be
punished under Section 304 Part I instead of Section 302. The High Court
observed that the accused were within their rights to inflict injuries on the
complainant party short of causing death in exercise of the right of private defence
of property.
It is
contended before us by the learned counsel appearing for the appellant State
that the High Court is not justified in reversing the finding of the trial
court with regard to the possession of the land. In this appeal against
acquittal under Art. 136 we cannot disturb the finding of the fact reached by
the High Court unless it is perverse or the material evidence is over looked or
an erroneous legal approach is adopted. We find no such infirmity in the
finding of the High Court though, perhaps, a different view is possible. The
High Court took into account the pre-emption decree obtained by the father of
the accused Kishan Chand on 23.1.1981, the entries in Khasra Gidrawari (Ex.
D.T. 1-4) coupled with the evidence of Patwari, the temporary injunction order
obtained in the suit filed by Kishan Chand against the deceased Bhim Singh on
30.10.1982 and the order of the Additional Sessions Judge dated 11.3.1985 in
the Revision filed by Kishan Chand against an order of Executive Magistrate
under Section 145 Cr.P.C. The learned Judges of the High Court further observed
that Phool Singh (PW 5), though applied for correction of entries in Khasra Girdawari
on 17.1.1983, the entry in so far as field No. 17/2 of Rectangle No. 80 where
the occurrence took place was not challenged. Coming to the material relied on
by the prosecution, the High Court considered each one of them, namely, Nehri Girdawari
entries (Ex. PSS) and the FIR lodged by Kishan Chand on 25.4.1983 (Ex. P U)
wherein he is alleged to have stated that the deceased and Phool Singh forcibly
occupied the land in dispute. Either for want of proof or for other reasons
given by the High Court, no weight was given to this documentary evidence.
Stress was laid by the learned counsel for the appellant on the FIR (Ex. P U)
said to have been given by Kishan Chand.
Apart
from the fact that the Police Officer who recorded the FIR was not examined,
the High Court observed that there was no admission by Kishan Chand regarding
possession of the deceased Bhim Singh or Phool Singh (PW 5). The complaint was
to the effect that the deceased and Phool Singh, in contravention of the order
of SDM, had stealthily harvested the wheat crop raised by him. Thus, the High
Court discussed all the aspects having bearing on the question of possession.
We cannot upset that finding of the High Court merely because a different view
such as the one taken by the trial Court could be taken.
One
more aspect noticed by the High Court in doubting the prosecution story is that
no evidence has been let in to prove the allegation that crop was damaged by
the cattle allegedly let loose by the accused. On this aspect the High Court
observed that the Sub-inspector of police (PW 15) did not positively state that
he found any damaged crop when he inspected the site of occurrence and he did
not produce the photographs which were said to have been taken at the spot. The
High Court commented that no reliance can be placed on the letter sent to the Tehsildar
nearly two months after the incident requesting him to assess the damage to
crop. Moreover, according to the Investigating Officer, PW 15, the ploughs and
yokes were lying in the field in which 'Chari'
crop not fully grown was standing. He further stated that he seized the four
ploughs and yokes as per the memo (Ex. BDD). It remains unexplained as to why
so many ploughs were brought to the fields when there were standing crops
thereon. This is another circumstance which casts a doubt on the truth of the
prosecution case.
The
finding of the High Court in favour of the accused as regards the possession of
field where the incident took place led to the logical conclusion that the
deceased and party came to the spot to enter into the field forcibly and the
accused exercised their right of private defence to safeguard the property. In
our view, the judgment of the High Court cannot be faulted excepting in so far
as the acquittal of Sher Singh (Respondent No.1) is concerned.
As far
as Sher Singh (Respondent No.1) is concerned, we are of the view that he
clearly exceeded the right of private defence and there was no justification in
inflicting grievous injuries to PW 6. The fourth clause of Section 99, I.P.C.
lays down the extent to which the right of private defence is available. It says
:- "The right of private defence in no case extends to the inflicting of
more harm than it is necessary to inflict for the purpose of defence." The
manner in which PW 6 was attacked and the injuries caused to him by Sher Singh
with a dangerous weapon ('bhala') would reveal that the accused Sher Singh had
clearly exceeded the right available to him.
According
to PW 6, five accused, namely, Jai Karan, Sadhu, Sher Singh, Ratna and Kishan Chand
encircled him and Sher Singh thrust the 'bhala' into his abdomen on the left
side near the waist. Though he stated that Jai Karan and Sadhu inflicted
injuries with 'gandasi' on his head, such a statement was not made to the
police when he was examined under Section 161 Cr.P.C. As regards the part
played by others, viz., Kishan Chand and Ratna, PW 6 stated that the lathi blow
given by the former had struck his left hand and the jeli blows inflicted by Ratna
landed on his arms. The injuries caused by these two accused were, however,
simple in nature. Hence, the inference that they exceeded the right of private defence
cannot follow.
Coming
back to the attack by Sher Singh on PW 6, according to PW 3, Dr. J.D. Wig,
Assistant Professor, Department of Surgery, PGI, Chandigarh, when PW 6 was
admitted on 24.7.1983 and even on the next day, his condition was so critical
that he was not fit to give a statement. He found a lacerated stab wound 3cm. X
2cm. in the left side of the chest in auxiliary line. Multiple lacerated wounds
were also found on his scalp. Trachea was displaced to the right. He performed
a surgical operation known as 'Laporotomy' on 24.7.1983 in order to save his
life. P.W.3 stated that stab wounds on the chest would have been inflicted by a
sharp edged weapon.
The
patient was discharged from the hospital on 24.8.1983 as seen from the
in-patient record filed as Ex.PL. Puss was being drained out from the chest
periodically. Number of post-surgical complications are discernible from the
case-sheet. As late as on 20.8.1983, while giving clearance for the discharge
of the patient, it was noticed that the puss was still present and chest tube
drainage was recommended. Thus, he suffered a grievous hurt within the meaning
of Clause Eighthly of Section 320 on account of stab injuries inflicted by Sher
Singh with 'bhala'. Such a brutal attack on PW 6 could have been avoided by Sher
Singh, especially when P.W.6 was unarmed and the other accused, at least two of
them, had simultaneously started attacking him - may be, to resist his further
advance towards the fields.
A
conspectus of the facts would lead to the inevitable conclusion that the
accused Sher Singh clearly exceeded his right of private defence and caused
much more harm than necessary. He cannot, therefore, claim immunity under the
garb of Section 97 IPC. The right of private defence under Section 97 IPC is
expressly subject to the restriction contained in Section 99 which has been set
out above. Therefore, we are of the view that Sher Singh, respondent No. 1, is
liable to be punished under Section 326 read with S. 322, I.P.C. Accordingly,
he is convicted under Section 326 IPC and sentenced to undergo RI for a period
of five years and to pay a fine of Rs. 500/- and in default of payment of fine,
he shall undergo SI for a further period of three months. The period of
detention already undergone either before or after conviction shall be set off
against the sentence of imprisonment now imposed.
The
appeal is thus allowed insofar as Sher Singh, Respondent no.1 is concerned. As
regards other respondents, the appeal stands dismissed.
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