Punjab-Haryana High Court
Gursewak Singh And Another vs State Of Punjab on 15 March, 2011
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Murder Reference No. 5 of 2010
DATE OF DECISION : 15.03.2011
State of Punjab
.... PROSECUTOR
Versus
Gursewak Singh and another
..... RESPONDENTS
Criminal Appeal No. 1032-DB of 2010
DATE OF DECISION : 15.03.2011
Gursewak Singh and another
.... APPELLANTS
Versus
State of Punjab
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE M. JEYAPAUL
Present: Ms. Manjari Nehru Kaul, Addl. A.G., Punjab.
Mr. Sanjeev Sharma, Advocate, for the respondents
(in Murder Reference No.5 of 2010)
and for the appellants
(in Crl. A. No. 1032-DB of 2010).
Mr. Sant Pal Singh Sidhu, Advocate, for the complainant.
***
SATISH KUMAR MITTAL , J.
1. This judgment shall dispose of Murder Reference No. 5 of 2010, made by Sessions Judge, Ferozepur, for confirmation of death sentence awarded to Gursewak Singh and his brother Jagsir Singh alias Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -2- Jagga; and Criminal Appeal No. 1032-DB of 2010, filed by both the brothers against the judgment dated 22.9.2010 and order dated 24.9.2010, passed by the court of Sessions Judge, Ferozepur. Vide judgment dated 22.9.2010, appellant Gursewak Singh has been convicted under Section 302 IPC for having committed the murder of Baldev Singh and under Section 302 read with Section 34 IPC for committing the murder of Kuldip Singh; and appellant Jagsir Singh alias Jagga has been convicted under Section 302 IPC for having committed the murder of Kuldip Singh and under Section 302 read with Section 34 IPC for committing the murder of Baldev Singh. Vide order dated 24.9.2010, both the appellants have been sentenced as under :-
Name of appellant Offence Sentence Gursewak Singh 302 IPC Sentenced to death i.e. to be hanged till death and to pay fine of ` 50,000/- (Rs. Fifty thousand only). In default of payment of fine, to further undergo RI for two years for the commission of murder of Baldev Singh. Jagsir Singh @ Jagga 302/34 IPC Sentenced to death i.e. to be hanged till death and to pay fine of ` 50,000/- (Rs. Fifty thousand only). In default of payment of fine, to further undergo RI for two years for the Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -3- commission of murder of Baldev Singh. Jagsir Singh @ Jagga 302 IPC Sentenced to death i.e. to be hanged till death and to pay fine of ` 50,000/- (Rs. Fifty thousand only). In default of payment of fine, to further undergo RI for two years for the commission of murder of Kuldip Singh. Gursewak Singh 302/34 IPC Sentenced to death i.e. to be hanged till death and to pay fine of ` 50,000/- (Rs. Fifty thousand only). In default of payment of fine, to further undergo RI for two years for the commission of murder of Kuldip Singh.
The trial court has further ordered that in case, the fine imposed upon the appellants is deposited, the same shall be disbursed to the legal heirs of deceased Baldev Singh and Kuldip Singh, respectively. Case of the prosecution
2. Appellants Gursewak Singh and Jagsir Singh alias Jagga are the real brothers. Baldev Singh and his son Kuldip Singh (both deceased) were the uncle (father's brother) and cousin, respectively, of the appellants. The appellants and the deceased were residents of village Kundal, Tehsil Abohar, District Ferozepur. On 23.8.2007, Baldev Singh and his sons, Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -4- namely Kuldip Singh and Gurwinder Singh (PW.1), went to their fields for cultivation. Their turn of water was in the evening. On that day, complainant Angrej Kaur wife of deceased Baldev Singh (PW.3) along with Harnek Singh resident of Roohrian Wali and Shivraj Singh resident of Daulatpura, who were their relatives and had come to meet them, was going to the fields with tea. At about 6.30 PM, when they reached near the Pakka Nakka of khal (water course) of the land of Gurjant Singh, which they had taken on lease, accused Gursewak Singh (appellant No.1 herein) armed with a spade, accused Jagsir Singh alias Jagga (appellant No.2 herein) armed with a spade, Sikander Singh son of Balkar Singh armed with spade, Darshan Singh son of Mall Singh armed with dang and one unknown person armed with dang were spotted. They were speaking loudly to Baldev Singh and Kuldip Singh regarding breaking of water (Nakka). When Baldev Singh and Kuldip Singh were about to lift cemented lid placed on Nakka, while entering into the water course, in order to break the water, then appellant No.1 Gursewak Singh raised lalkara to the effect that they (Baldev Singh and Kuldip Singh) be taught a lesson for always picking up quarrel with them for water, so that the dispute should be finished for ever. Then appellant No.2 Jagsir Singh alias Jagga gave three successive blows with spade on the head of Kuldip Singh with intention to kill him. Thereafter, appellant No.1 Gursewak Singh gave four successive blows with spade on the head of Baldev Singh. The other three persons, accompanying Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -5- the appellants, were standing nearby and were raising lalkara. On receiving the injuries, Baldev Singh fell into the flowing water of Pacca Khal and Kuldip Singh fell into the water of Kacha Khal. Then complainant Angrej Kaur, Harnek Singh and Shivraj Singh raised hue and cry. In the meantime, Gurwinder Singh son of complainant Angrej Kaur, who was at some distance having a round of the Khal and witnessed the occurrence, had also come. He also raised clamour, upon which all the accused persons fled away from the spot with their respective weapons. When the complainant and other persons went near Baldev Singh and Kuldip Singh, they saw that both had succumbed to their injuries on their heads. After deputing Gurvinder Singh and Harnek Singh to guard the dead bodies, complainant Angrej Kaur along with Shivraj Singh left the spot for reporting the matter to the police. In the way, at a petrol pump in the area of village Kundal, the police party headed by Inspector Harjit Singh, SHO, Police Station Sadar Abohar, met them. Statement (Ex.P9) of complainant Angrej Kaur was recorded by Inspector Harjit Singh (PW.5) at 10.00 PM, on the basis of which the formal FIR (Ex.P9/B) was registered at 10.30 PM. In her statement, the complainant also stated that on account of the dispute regarding the turn of water, the accused were having a grudge against the deceased persons. Due to that, in connivance with each other, they have committed the murder of her husband and son.
Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -6- Investigation
3. On 23.8.2007, after registration of the FIR, Inspector Harjit Singh along with ASI Kundan Singh (PW.10), complainant Angrej Kaur and other police officials, visited the place of occurrence. A photographer was also called at the spot, who clicked the photographs of the dead bodies of Baldev Singh and Kuldip Singh. After preparing the inquest reports (Ex.P11 and Ex.P15), the dead bodies were sent to Civil Hospital, Abohar, for post mortem examination.
4. On 24.8.2007, Inspector Harjit Singh conducted the spot inspection, prepared the rough site plan of the place of occurrence (Ex.P16) with correct marginal notes. He also lifted simple water and blood stained water from the spot in separate small glass containers, which were sealed by him with his seal bearing impression `HS' and both the parcels were taken into possession vide memo (Ex.P17), which was attested by Shivraj Singh and ASI Kuldip Chand. Two spades, which were lying at the spot, were also taken into possession vide separate memo (Ex.P18), which was also attested by the aforesaid witnesses.
5. Thereafter, Inspector Harjit Singh conducted the raid to arrest the accused, named by the complainant in her statement, and he arrested both the appellants from Bus Stand, village Bahawal Wassi. During interrogation, appellants Gursewak Singh and Jagsir Singh alias Jagga, in pursuance of their disclosure statements (Ex.P19 and Ex.P20), got Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -7- recovered spades, used by them in the crime, which were taken into possession vide memos (Ex.P22 and Ex.P24), attested by ASI Kuldip Chand and Shivraj Singh. Appellant No.1 Gursewak Singh got recovered the spade from the room meant for the storage of chaff and appellant No.2 Jagsir Singh alias Jagga got recovered the spade from the manure heap, lying in the courtyard of his house. Site plans (Ex.P22/A and Ex.P25) of the places of both the recoveries were prepared. Appellants Gursewak Singh and Jagsir Singh alias Jagga were also subjected to personal search, which led to the recovery of currency notes of ` 50/- and ` 100/-.
6. On 24.8.2007, Dr. Alka Khurana (PW.4), conducted autopsy on the dead body of Baldev Singh and she found the following injuries on the body of the deceased :
1. An incised wound 10 cm x 5 cm x bone deep on the back of the middle of the neck. On dissection, underlying muscles were cut. Bones fractured and blood vessels were cut.
2. An incised wound 10 cm x 4 cm x bone deep on the back of the skull, 3 cm above injury No.1. On dissection, underlying muscles were cut. Occipital bone was cut and blood vessels were cut.
3. An incised wound 5 cm x 4 cm on the back of the skull, 3 cm above injury No.2. On dissection, underlying muscles were cut. Bone fractured and blood vessels were cut.
4. An incised wound 6 cm x 4 cm x 2 cm extending from the outer corner of left eye to left ear.
7. On the same day, i.e. on 24.8.2007, Dr. Alka Khurana, conducted autopsy on the dead body of Kuldip Singh and she found the Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -8- following injuries on the body of the deceased :
1. An incised wound 8 cm x 4 cm x bone deep on the right side of back of the neck. On dissection, underlying muscles were cut. Bone fractured and blood vessels were cut.
2. An incised wound 10 cm x 2 cm x bone deep on the right side of the back of skull. On dissection, underlying muscles were cut. Bone fractures and blood vessels were cut.
3. An incised wound 1 cm x 2 cm on the left ear pinna.
8. The cause of death in the cases of both the deceased were opined as due to haemorrhage and shock, i.e. due to injuries to vital organs, i.e. brain. Injuries were ante mortem in nature. The probable time between injuries and death of both the deceased was stated to be within few minutes, whereas between death and the post mortem examination, the time was within 12 to 24 hours.
9. After completion of investigation, the challan was filed against the appellants.
10. It is pertinent to mention here that initially, the case was registered against four persons, i.e. both the appellants, namely Gursewak Singh and Jagsir Singh alias Jagga, as well as Darshan Singh and Sikander Singh. However, during investigation, Darshan Singh and Sikander Singh were found innocent and they were kept in column No.2 of the report under Section 173 Cr.P.C. Thereafter, during trial, the prosecution moved an application under Section 319 Cr.P.C., for summoning aforesaid Darshan Singh and Sikander Singh along with one Lakhwinder Singh as accused to Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -9- face trial. Vide order dated 5.12.2008, the said application was allowed. The revision against the said order, filed by the aforesaid three persons, who were summoned to face trial, was allowed by this Court on 21.8.2009, and the trial court was directed to decide the application under Section 319 Cr.P.C., afresh. Thereafter, vide order dated 14.10.2009, the trial court dismissed the aforesaid application. The said order was not challenged.
11. Thereafter, appellant No.1 Gursewak Singh was charge sheeted under Section 302 IPC for committing the murder of Baldev Singh and under Section 302 read with Section 34 IPC for committing the murder of Kuldip Singh, whereas appellant No.2 Jagsir Singh alias Jagga was charge sheeted under Section 302 IPC for committing the murder of Kuldip Singh and under Section 302 read with Section 34 IPC for committing the murder of Baldev Singh. Both the appellants did not plead guilty to the charges and claimed trial.
Prosecution evidence
12. In support of its case, the prosecution examined thirteen witnesses.
13. PW.1 Gurwinder Singh is the eye witness, who is son of deceased Baldev Singh and brother of deceased Kuldip Singh. He has fully supported the case of the prosecution. In the cross-examination, he has stated that he did not make any effort to intervene to save his father and brother, as he was at a distance of 15-16 karams, when the injuries were Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -10- being caused to them by the accused. He denied the suggestion put to him by the defence that neither he nor his mother nor Harnek Singh and Shivraj Singh were present at the spot at the time of the alleged occurrence. He further denied the suggestion that the injuries were caused by accused Gursewak Singh to Baldev Singh in self defence and in defence of property.
14. PW.2 Balwant Singh is the formal witness, who clicked photographs (Ex.P1 to Ex.P8) on the dead bodies.
15. PW.3 Angrej Kaur, who is widow of deceased Baldev Singh and mother of deceased Kuldip Singh, is the complainant and the eye witness. In the cross-examination, she has also denied the suggestion that neither she nor Gurvinder Singh nor Harnek Singh and Shivraj Singh were present at the spot. She further denied the suggestion put to her by the defence that her husband Baldev Singh tried to get turn of water at about 6.35 PM i.e. about 10 minutes prior to his turn and when Gursewak Singh accused asked him to desist from doing so, Baldev Singh gave a spade blow from blunt side on the arm of Gursewak Singh and thereafter, Gursewak Singh in his self defence and in the defence of property, gave injuries to Baldev Singh firstly and when Kuldip Singh was about to assault him, then Gursewak Singh caused injuries to Kuldip Singh.
16. PW.4 Dr. Alka Khurana, who conducted post mortem examination over the dead bodies of deceased Baldev Singh and Kuldip Singh, proved their Post Mortem Reports (Ex.P10 and Ex.P13) and the Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -11- pictorial diagrams (Ex.P10/A and Ex.P13/A).
17. PW.5 Inspector Harjit Singh is the Investigating Officer of the case, who supported the entire case of the prosecution. In the cross- examination, he has admitted that at the time of arrest of the accused, he had noticed an injury on the right arm of accused Gursewak Singh and on 25.8.2007, he was also got medico legally examined from Civil Hospital.
18. PW.6 HC Rajbir Singh and PW.7 HC Resham Singh are the formal witnesses.
19. PW.8 Jaswider Singh Patwari proved the scaled site plan (Ex.P34) of the place of occurrence, prepared by him at the demarcation of the complainant.
20. PW.9 Ram Partap, Assistant Revenue Clerk, Canal, has proved the record regarding turn of water (Warabadi) as Ex.P35.
21. PW.10 ASI Kundan Singh and PW.11 HC Kaur Singh are the formal witnesses.
22. PW.12 Daya Ram, an official of the Canal Department, proved that as per the record, on the day of occurrence i.e. on 23.8.2007, the water kept on flowing in Abohar Branch canal from morning to evening.
23. PW.13 HC Nishan Singh is another formal witness.
Besides examining the aforesaid witnesses, the prosecution also tendered into evidence the report of Forensic Science Laboratory as Ex.P39. Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -12- Statements of accused under Section 313 Cr.P.C.
24. In their statements under Section 313 Cr.P.C., both the appellants denied all the incriminating evidence appearing against them. They pleaded their innocence and false implication in the case. They took the plea that on the day of occurrence, while they were taking their turn of water, 10 minutes before the expiry of their turn, both the deceased persons, namely Baldev Singh and Kuldip Singh, tried to get water from the khal and that too beyond the Nakka. When appellant No.1 Gursewak Singh stopped them from doing so saying him that this act will create loss to them, Baldev Singh gave a kassi blow, and to ward off the same, appellant Gursewak Singh raised his right arm and the blow hit near his wrist from the blunt side of the kassi. In his self defence and defence of property, appellant Gursewak Singh caused injuries to Baldev Singh and when deceased Kuldip Singh tried to hit appellant Jagsir Singh alias Jagga, he too was given injuries by Jagsir Singh apprehending danger to his life. Both the appellants specifically denied the presence of complainant Angrej Kaur, her son Gurvinder Singh, Harnek Singh and Shivraj Singh. They further stated that they went to the police station, informed the police and gave kassi to them on the same day. However, the police got up false witnesses and false mode of recoveries.
25. In their defence, the appellants did not examine any witness. Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -13- The findings of the trial court
26. After hearing learned counsel for the parties and considering the evidence on record, while relying upon the statements of two eye witnesses, namely PW.1 Gurwinder Singh and PW.3 Angrej Kaur, the medical evidence, the recovery of spades at the instance of the appellants, and while disbelieving the plea of private defence, taken by the appellants, the trial court convicted and sentenced the appellants, as mentioned in the first para of the judgment.
Arguments of learned counsel for the appellants
27. Learned counsel for the appellants argued that PW.1 Gursewak Singh and PW.3 Angrej Kaur, the alleged eye witnesses, had not witnessed the occurrence, as at the time of the occurrence, they were not present at the spot. Subsequently, after due deliberations and consultation, they gave a concocted version of the occurrence. Actually, on 23.8.2007, the appellants had gone to their fields to irrigate the same with canal water. At 5.47 PM, they had taken turn of their water from Nachhattar Singh, but 10 minutes before their turn, deceased Baldev Singh and Kuldip Singh tried to get water from the khal and that too beyond the Nakka. When appellant Gursewak Singh tried to refrain them from doing so, by saying that their act will cause loss to him, Baldev Singh gave a Kassi blow and to ward off the same, appellant Gursewak Singh raised his right arm and the blow hit near his wrist from the blunt side of the Kassi. In his self defence and defence of Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -14- property, appellant Gursewak Singh caused injuries to Baldev Singh. According to the learned counsel, when Kuldip Singh tried to hit appellant Jagsir Singh alias Jagga, apprehending danger to his life, he also gave injuries to Kuldip Singh. Learned counsel argued that the Investigating Officer of the case, while appearing as PW.5, has admitted in his cross- examination that at the time of arrest of the accused, he had noticed an injury on the right arm of accused Gursewak Singh and on 25.8.2007, he was also got medico legally examined from Civil Hospital. This piece of the prosecution evidence itself establishes the defence, taken by the accused. Learned counsel argued that in order to suppress a part of the occurrence and the real genesis of the occurrence, the prosecution has deliberately not brought on record the MLR of accused Gursewak Singh. According to the learned counsel, it was obligatory on the part of the prosecution to explain the injuries on the person of accused Gursewak Singh, but it has failed to do so. Learned counsel further argued that in order to suppress the real facts, the prosecution has also not examined the other two alleged eye witnesses, namely Harnek Singh and Shivraj Singh, without any reason. Therefore, according to the learned counsel, the prosecution has failed to establish the allegations against the appellants beyond reasonable doubt and the trial court has acted illegally and arbitrarily, while relying upon the statements of the aforesaid two witnesses, namely PW.1 Gursewak Singh and PW.3 Angrej Kaur, and disbelieving the plea of private defence, taken by the Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -15- accused. Learned counsel further argued that in the facts and circumstances of the present case, the learned trial court has erred in law as well as on facts, while coming to the conclusion that in the facts and circumstances of the case, the right of private defence was not available to the appellants. According to the learned counsel, in the facts and circumstances of the case, the injuries caused to deceased Baldev Singh and Kuldip Singh were fully justified to have been caused by the accused in their self defence and defence of their property. Therefore, the trial court has acted illegally, while disbelieving the plea of private defence, taken by the accused, and illegally convicting the accused for committing the murder of Baldev Singh and Kuldip Singh. Learned counsel further argued that even if it is held that the appellants had exceeded their right of private defence and caused death of Baldev Singh and Kuldip Singh, then in the facts and circumstances of the case and in view of Exception 2 of Section 300 IPC, they had committed the offence of culpable homicide not amounting to murder. Therefore, the appellants are liable to be punished under Section 304 IPC. In the last, learned counsel argued that the present case is not the rarest of rare case, where the awarding of capital punishment is justified. Arguments of learned State counsel as well as counsel for the complainant
28. On the other hand, learned Additional Advocate General, Punjab, assisted by learned counsel for the complainant, while supporting the impugned judgment and order, submits that it is the admitted case of the Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -16- accused that the occurrence in this case had taken place on 23.8.2007 at about 6.30 PM, wherein accused Gursewak Singh caused injuries to Baldev Singh and accused Jagsir Singh alias Jagga caused injuries to Kuldip Singh, which resulted into death of Baldev Singh and Kuldip Singh. She argued that in the facts and circumstances of the case, the defence taken by the accused that they caused injuries to the deceased persons in their self defence and defence of their property has rightly not been believed by the trial court. She further argued that the prosecution, by leading sufficient evidence, has established beyond reasonable doubt that the accused have committed the murder of Baldev Singh and his son Kuldip Singh. Regarding the quantum of sentence, learned counsel argued that keeping in view the fact that on account of the dispute regarding the turn of water for irrigating their fields, the accused have committed the murder of their uncle (father's brother) and his son, by inflicting spade injuries on their heads, the case in hand falls in the category of rarest of rare case, therefore, the sentence of death awarded by the trial court, is liable to be confirmed. Discussion
29. According to the prosecution version, which is based upon the testimony of two eye witnesses, namely PW1 Gurwinder Singh and PW.3 Angrej Kaur, on 23.8.2007 at about 6.30 PM, on a lalkara being raised by accused Gursewak Singh to teach lesson to Baldev Singh and Kuldip Singh for always picking up quarrel with them for turn of water, accused Jagsir Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -17- Singh gave three successive blows of spade on the head of Kuldip Singh with intention to kill him and thereafter, accused Gursewak Singh gave four successive blows with spade on the head of Baldev Singh. Due to those injuries, Baldev Singh fell in the Pacca Khal, whereas Kuldip Singh fell in the Kacha Khal and they both succumbed to their injuries at the spot. On the autopsy, conducted by PW.4 Dr. Alka Khurana, four corresponding injuries were found on the body of deceased Baldev Singh and three on the body of deceased Kuldip Singh. According to the opinion, given by the doctor, both the persons died due to haemorrhage and shock, i.e. due to the injuries to their vital organs, i.e., brain, and those injuries were sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was described to be within few minutes and between death and post mortem examination, it was within 12 to 24 hours. The medical evidence, led by the prosecution, clearly establish that both the deaths in this case were homicidal. On a close scrutiny of the statements of both the eye witnesses, their testimonies appear to be reliable and trust-worthy. They have established the prosecution version.
30. However, during the course of arguments, it has been vehemently argued by the learned defence counsel that both the eye witnesses were not present at the time of the occurrence and they had not seen the occurrence. Later on, the police introduced them as eye witnesses and they gave a distorted version of the occurrence. It has also been argued Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -18- by the learned defence counsel that two other alleged eye witnesses, namely Harnek Singh and Shivraj Singh, who had accompanied PW.3 Angrej Kaur to the fields and had allegedly witnessed the occurrence, have also not been examined. This fact further creates doubt about the presence of both the eye witnesses and the version given by them.
31. After a close scrutiny of the statements of the aforesaid two eye witnesses, particularly with respect to their cross-examination by the defence counsel, we do not find any substance in his argument. The presence of both the eye witnesses at the time of the occurrence was natural. They were not the chance witnesses. Merely because they did not make any effort to save the deceased persons, it cannot be inferred that they were not present at the time of the occurrence, particularly when PW.1 Gurwinder Singh has clearly stated that he did not make any effort to intervene, because at the time, when the injuries were being caused to his father and brother, he was at a distance of 15-16 karams. In the present case, both the accused, in their statements under Section 313 Cr.P.C., have not denied the causing of injuries by them to the deceased. However, they have taken the defence that they had caused those injuries in their self defence and defence of property. The accused are only disputing that the version given by the alleged eye witnesses is not correct. In our opinion, there is nothing in the cross-examination of these two witnesses, which may remotely indicate that they were not present at the time of the occurrence and had not seen the Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -19- occurrence. Therefore, in our opinion, the trial court was fully justified in relying upon the testimony of these two eye witnesses.
32. In their statements under Section 313 Cr.P.C., the accused have taken a slightly different version. According to them, on 23.8.2007, they were irrigating their fields with canal water. They took their turn of water from Nachhattar Singh son of Dalip Singh at 5.47 PM. Their turn was to continue till 6.45 PM, but 10 minutes before the end of their turn, Baldev Singh and his son Kuldip Singh tried to get water from the khal and that too beyond the Nakka. Accused Gursewak Singh stopped them. Then Baldev Singh gave a spade blow to him. To ward off the blow, he (Gursewak Singh) raised his arm and the blow hit near his wrist from the blunt side of the spade. Thereafter, in his self defence and defence of property, accused Gursewak Singh caused injuries to Baldev Singh and when Kuldip Singh tried to hit accused Jagsir Singh, he too was given injuries by Jagsir Singh apprehending danger to his life.
33. Section 96 of the Indian Penal Code, 1860 (herinafter referred to as `the IPC') provides that nothing is an offence, which is done in the exercise of the right of private defence. Section 97 of the IPC further provides that every person has a right of private defence to defend his own body and the property, subject to the restrictions contained in Section 99. Section 99 of the IPC provides that there is no right of private defence against an act which does not reasonably cause the apprehension of death or Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -20- of grievous hurt, if done, or attempted to be done, by a public servant, or by the direction of a public servant, acting in good under colour of his office, though that act may not be strictly justifiable by law. This provision further provides that 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. Sections 100, 101, 102, 103, 104 and 105 of the IPC further provide as under :
"100. When the right of private defence of the body extends to causing death - The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely :-
First - Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
Thirdly - An assault with the intention of committing rape;
Fourthly - An assault with the intention of gratifying unnatural lust;
Fifthly - An assault with the intention of kidnapping or abducting;
Sixthly - An assault with the intention of wrongfully Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -21- confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
101. When such right extends to causing any harm other than death - If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.
102. Commencement and continuance of the right of private defence of the body - The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.
103. When the right of private defence of property extends to causing death - The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-
doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely :-
First - Robbery;
Secondly - House-breaking by night;
Thirdly - Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -22- Fourthly - Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
104. When such right extends to causing any harm other than death - If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.
105. Commencement and continuance of the right of private defence of property - The right of private defence of property commences when a reasonable apprehension of danger to the property commences.
The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.
The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.
The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.
The right of private defence of property against house- Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -23- breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues."
34. Now, the question arising for consideration in this case is as to whether in the facts and circumstances of the case, both the accused were justified in causing injuries to Baldev Singh and Kuldip Singh, as mentioned above, in their self defence and defence of property, which resulted into their death. It is a settled position of law that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case. The court, while deciding this question of fact, is to take into consideration various facts, like the weapon used, the manner and nature of assault, the motive and other circumstances. The Hon'ble Supreme Court in Darshan Singh v. State of Punjab and another, (2010) 2 Supreme Court Cases 333, while considering the various previous judgments on the subject, has summarised the following principles regarding the right of private defence :
(i) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -24- impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.
In the light of the aforesaid principles, the plea of private defence, taken by the accused, is to be examined in the facts and circumstances of the present Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -25- case.
35. The first important question is whether the accused at the relevant time were having a reasonable apprehension of death or grievous hurt or danger to their property at the hands of the deceased, and were justified in causing injuries to the deceased in their private defence; and the second question would be that if the accused were justified in causing injuries to the deceased in their private defence, whether they had caused more harm than it was necessary.
36. In the present case, undisputedly, the accused and the deceased were close relatives. Deceased Baldev Singh, aged about 50 years, and his deceased son Kuldip Singh, were the real uncle and cousin, respectively, of accused Gursewak Singh. The fields of both the parties were adjoining each other. When the occurrence had taken place, they were irrigating their fields. According to the prosecution, there was a dispute between the parties with regard to their turn of water. When Baldev Singh and Kuldip Singh were about to lift cemented lid placed on Nakka, in order to break the water, then accused Gursewak Singh raised lalkara to the effect that the deceased be taught a lesson for always picking up quarrel with them for turn of water, so that the dispute be finished for ever. Thereupon, accused Jagsir Singh gave three successive blows with spade on the head of Kuldip Singh and thereafter, accused Gursewak Singh gave four successive blows on the head of Baldev Singh. According to the prosecution case, none of the deceased Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -26- caused any injury to any of the accused. Gurwinder Singh, while appearing in the court as PW.1, supported the prosecution version. In his cross- examination, no suggestion was put that Baldev Singh gave a spade blow from its reverse side to accused Gursewak Singh, which hit near the wrist of his right arm. The only suggestion put to him was that accused Gursewak Singh caused injuries to Baldev Singh in his self defence. However, while cross-examining PW.3 Angrej Kaur (complainant), it was suggested by the learned defence counsel that Baldev Singh gave a spade blow from its blunt side on the arm of accused Gursewak Singh, and thereupon, in his self defence as well as in defence of property, he firstly caused injuries to him (Baldev Singh) and then to Kuldip Singh, who was about to assault him (Gursewak Singh). It is true that PW.5 Inspector Harjit Singh, the Investigating Officer of the case, has stated that he had noticed an injury on the right arm of accused Gursewak Singh and on 25.8.2007, he was also got medico legally examined from Civil Hospital, Abohar, but in order to prove the nature of injury, accused Gursewak Singh did not place on record his MLR. According to the defence version, when accused Gursewak Singh, requested Baldev Singh to desist from taking the water turn 10 minutes earlier to his turn, then Baldev Singh gave one spade blow from the blunt side near the wrist of right arm of accused Gursewak Singh.
37. In the aforesaid facts and circumstances, the question arising for consideration is whether it can be said that accused Gursewak Singh was Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -27- having reasonable apprehension that Baldev Singh would cause his death or cause a grievous hurt to him; and if the said apprehension was there, the force used by the accused, i.e. giving four successive spade blows on the vital organ of the body of Baldev Singh was disproportionate or much greater than necessary for protection of the person or property. In our view, there was neither a reasonable apprehension of causing death or giving assault nor the accused had used the force proportionate to the protection required. As per the prosecution case, firstly, on the lalkara being raised by accused Gursewak Singh, accused Jagsir Singh gave three successive spade blows on the head of Kuldip Singh and thereafter, accused Gursewak Singh caused four successive spade blows on the head of Baldev Singh. If we see the occurrence from the angle of the prosecution version, then it is evident that at the time, when accused Jagsir Singh gave three successive blows on the head of Kuldip Singh, there was no apprehension of causing any death or grievous hurt to him by Kuldip Singh; and if we see the occurrence, as projected by the defence, even then there was no apprehension of causing death or grievous hurt by Kuldip Singh to accused Jagsir Singh. It is only stated that when Kuldip Singh was about to assault accused Jagsir Singh, he caused injuries to him in his self defence. It is not the defence of the accused that Kuldip Singh had actually caused any injury to accused Jagsir Singh. Even if it is taken that Baldev Singh caused a simple injury near the wrist of the right arm of accused Gursewak Singh from the blunt side of the Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -28- spade, even then Gursewak Singh was not justified in giving four successive spade blows from the sharp side on the vital organ of the body of Baldev Singh, who was an old man. He could have demobilised Baldev Singh by giving one spade blow, but he repeated four successive spade blows to deceased Baldev Singh on vital organ of his body. By giving repeated injuries, the appellants have caused more harm than it was necessary for the purpose of their defence. This clearly shows his intention that he wanted to kill Baldev Singh and he was having no actual apprehension of death or grievous injury. Similarly, in the case of accused Jagsir Singh, he was not justified at all in causing three successive spade blows on the head of Kuldip Singh, when it is not the stand of the defence that Kuldip Singh was going to attack Jagsir Singh with the spade in his hand. It is simply said that accused Jagsir Singh caused injuries to Kuldip Singh in his self defence and defence of property. The right of self defence is available only to the person, who is having reasonable apprehension of death or grievous hurt at the hands of the assailant. In the present case, apprehension on the part of accused Jagsir Singh is totally mis-placed. Therefore, in our view, the trial court was fully justified in rejecting the plea of private defence, taken by the accused.
38. The alternative submission, made by learned counsel for the appellants that in the instant case, the culpable homicide allegedly committed by the appellants falls under Exception 2 of Section 300 IPC and Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -29- thus, they are liable to be punished under Section 304 IPC, is also not acceptable. In order to get the case of the appellants falling under this Exception, the appellants are required to establish few ingredients, i.e. (a) they exercised the right of private defence in good faith; (b) they have exceeded the power given to them by law; and (c) caused deaths of persons against whom they exercised such right of defence without premeditation, and without any intention of doing more harm than was necessary for the purpose of such defence. In the present case, the appellants have not established these ingredients. Actually, in the facts and circumstances of the present case, right of private defence was not available to the appellants. Therefore, in the present case, the culpable homicide committed by the appellants clearly falls under the definition of murder and it cannot be said that in this case, the culpable homicide committed by the appellants does not amount to murder.
39. In view of the aforesaid discussion, we are of the opinion that in the instant case, the prosecution has fully established beyond reasonable doubt that both the accused have committed the murder of Baldev Singh and Kuldip Singh and they have been rightly convicted by the trial court. Thus, the conviction of both the appellants, recorded by the trial court, is upheld. Confirmation of Death Sentence
40. Regarding the confirmation of death sentence, awarded to both the appellants, it is to seen as to whether the present case is the rarest of rare case, justifying the death sentence of the appellants. Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -30-
41. In Bachan Singh v. State of Punjab, (1980) 2 SCC 684, a Constitutional Bench of the Hon'ble Supreme Court, while upholding the constitutional validity of the provision of penalty of death for murder, has held that the death sentence shall not normally be awarded for the offence of murder and it must be confined to the rarest of rare cases when the alternative option is unquestionably foreclosed in a given case. Thus, in essence, rarest of rare dictum imposes a wide-ranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy double qualification, i.e. (a) the case belongs to the rarest of rare category; and (b) the alternative option of life imprisonment will just not suffice in the facts of the case. Life imprisonment is the rule and death punishment is an exception. In order to determine whether a particular case falls in the category of rarest of rare case, an extra ordinary burden lies on the court to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum. While framing the opinion and coming to such conclusion, the court is required to see the nature, motive and impact of the crime, culpability of the convict, quality of evidence adduced, characteristics and socio-economic background of the offender, probability that the accused can be reformed and rehbilitated and the manner in which the crime was committed. In Machhi Singh v. State of Punjab, (1983) 3 SCC 470, the Hon'ble Supreme Court, while following the ratio in Bachan Singh's case (supra), laid down certain guidelines, which Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -31- should be taken into consideration for recording reasons attracting the death penalty. A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded fully weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option to awarding death sentence is exercised.
42. In the present case, both the accused have no criminal background. They are villagers doing the agriculture operation. They are young in age. There is no probability that they would commit criminal acts of violence as would constitute a continuing threat to society. The occurrence in this case has taken place, while accused and the deceased were working in their agriculture fields. The motive of the crime was a dispute over turn of water. The accused and the deceased were closely related. The weapons used in the crime are the agriculture implements, which are usually kept by a farmer in his field. The accused are not harden criminals. Keeping in view their socio-economic background and the fact that they are illiterate villagers, there is all probability that they could be reformed and rehabilitated. In this case, no opinion can be framed that in no circumstance, the accused can be reformed and brought to the stream of social life. While taking into consideration all the aggravating and mitigating circumstances of the case, we are not able to frame the opinion that the instant case is a rarest of rare case, where there is no alternative Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -32- option of life imprisonment. In our opinion, in the present case, the life imprisonment will be sufficient punishment to the accused for committing murder of Baldev Singh and Kuldip Singh.
43. In view of the above, death penalty awarded to appellant No.1 Gursewak Singh is commuted to life sentence under Section 302 IPC for committing the murder of Baldev Singh, whereas appellant No.2 Jagsir Singh alias Jagga is sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 34 IPC. Appellant No.2 Jagsir Singh alias Jagga is sentenced to undergo rigorous imprisonment for life under Section 302 IPC IPC for committing the murder of Kuldip Singh, whereas appellant No.1 Gursewak Singh is sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 34 IPC. However, both the sentences of imprisonment for life shall run concurrently and the sentence of fine, awarded by the trial court, is upheld.
44. Thus, the reference made by the trial court for confirmation of death sentence awarded to the appellants, is declined and the appeal, filed by the appellants, is dismissed with the aforesaid modification in the sentence.
( SATISH KUMAR MITTAL )
JUDGE
March 15, 2011 ( M. JEYAPAUL )
ndj JUDGE