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PETITIONER:

HARDIAL SINGH & OTHERS

Vs.

RESPONDENT:

THE STATE OF PUNJAB

DATE OF JUDGMENT09/04/1995

BENCH:

M.K. MUKHERJEE, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

G.B. PATTANAIK. J.

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,

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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

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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

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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 intercostal 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

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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.