Punjab-Haryana High Court
Waryam Singh @ Bhan Singh & Others vs State Of Punjab on 7 February, 2013
Author: Hemant Gupta
Bench: Hemant Gupta, Ritu Bahri
Crl. Appeal No.358-DB of 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : 07.02.2013
CRA No.358-DB of 2009
Waryam Singh @ Bhan Singh & others ...Appellants
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MS. JUSTICE RITU BAHRI
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mr. V.K.Chahaun, Advocate, for the appellants.
Mr. Pavit Mattewal, Addl. AG, Punjab, for the respondent.
HEMANT GUPTA, J.
The present appeal is directed against the judgment of conviction and order of sentence dated 07.01.2009 rendered by the learned Addl. Sessions Judge, Ferozepur, vide which the appellants namely Waryam Singh, Major Singh and Harjinder Singh were convicted for the offences punishable under Sections 302/307/148 read with Section 149 IPC, whereas appellant Charan Singh was convicted for the offences punishable under Sections 302/307/148 IPC as well as under Section 27 of the Arms Act and sentenced them to the varying terms as per the order of sentence.
The prosecution case was set in motion on the statement of Mehal Singh son of Gajjan Singh, brother of the deceased Milkha Singh Crl. Appeal No.358-DB of 2009 2 made to SI/SHO Palwinder Singh, P.S. Mallanwala on 30.05.2005 at about 6.15 PM. In his statement (Ex.P12), Mehal Singh stated that they are five brothers and three sisters and that he is residing in Village Allewala, P.S. Mallanwala along with Harjit Singh, his brother, whereas his three other brothers Milkha Singh, Hakam Singh and Major Singh are residing in Village Butewala. It is stated that they live in self-constructed house on 4 ½ acres of land, owned by Central Government, but khasra girdawari of land measuring 28 Kanals 13 Marlas is in his name from the last wheat crop. Waryam Singh son of Mal Singh is in possession of land measuring 28 Kanals 13 Marlas since the last wheat crop. On such land, they had built a house and temporarily shifted their residence. The civil and criminal cases in respect of such land are pending in the Court. He further stated that today when he reached his home after attending the hearing in respect of the land case pending at Ferozepur, his brothers Milkha Singh, Karaj Singh, Harjit Singh and Sarwan Singh were present there. At about, 3.00 PM, he took his brothers to show them the disputed land, where Waryam Singh had sown Mustard crop. When they reached to the spot then Charan Singh son of Waryam Singh came from the residence of Waryam Singh armed with .12 bore Double Barrel Gun; whereas Waryam Singh and Harjinder Singh son of Mal Singh armed with Barchas (spear) as well as Major Singh son of Basant Singh and Dilbagh Singh son of Mal Singh (since deceased) residents of Allewala armed with dangs and Sotas (Sticks) came towards them. Then, Waryam Singh raised a lalkara that 'Charan Singh what are you seeing, make fire'. On this, Charan Singh fired a shot from his gun, which hit on the right thigh of Milkha Singh as a result of which Milkha Singh fell down. Waryam Singh inflicted two Barchha blows to Milkha Singh on his Crl. Appeal No.358-DB of 2009 3 chest. He further stated that he reacted due to fear and then Charan Singh made another fire short, which hit Karaj Singh, as a result of which he also fell down. Thereafter, the above said persons dragged his brothers Milkha Singh and Karaj Singh by their legs to their village home. On raising hue and cry by him and his brother Harjit Singh, all the persons ran away along with their respective weapons. He and Harjit Singh came forward and noticed that his brother Milkha Singh was died. He further stated that Shingara Singh son of Surain Singh resident of Allewal removed Karaj Singh to the Hospital at Ferozepur in injured condition on peter rehra (improvised vehicle). On the basis of such statement, FIR (Ex.P12/B) was lodged at about 6.40 PM on the same day and the special report was delivered to the Learned Magistrate by Constable Hajinder Singh.
Thereafter, the police party headed by SI Palwinder Singh accompanied Mehal Singh to the place of occurrence i.e. in the area of village Allewala and found that the dead body of deceased Milkha Singh was lying in the field. After recording the statements of Major Singh and Sukhdev Singh as well as preparing inquest proceedings, he sent the dead body of Milkha Singh for conducting post mortem examination. After coming to know about the death of Karaj singh, who was lying admitted in Civil Hospital, Ferozepur, SI Palwinder Singh again visited the spot on 31.05.2005 and taken into possession blood stained soil along with mustard fodder as well as simple soil from the place where the dead body of Milkha Singh was found. He also taken into possession blood stained soil along with mustard fodder from the place where Karaj Singh received the injuries. He also took into possession empty cartridges. After converting the Crl. Appeal No.358-DB of 2009 4 recovered articles into separate sealed parcels, he prepared rough site plan Ex.P48. He also recorded the supplementary statement of Mehal Singh.
Accused Waryam Singh, Major Singh, Harjinder Singh and Dilbagh Singh were arrested by ASI Bhajan Singh on 07.06.2005. On interrogation, all the accused suffered disclosure statements and in pursuance of such statements got recovered their respective weapons. It was on 19.06.2005, accused Charan Singh was arrested from his house. On his search, .12 bore double barrel gun, without any permit or license along with five live cartridges was recovered. The same were taken into possession vide recovery memo Ex.P52 after converting into separate sealed parcels.
After completing the other necessary formalities, the accused were made to stand trial.
To prove its case, apart from examining PW-4 Mehal Singh, author of FIR and PW-5 Sarwan Singh, an injured witness, the prosecution examined PW-10 SI Palwinder Singh, the Investigating Officer; PW-7 ASI Bhajan Singh and PW-15 ASI Rachhpal Singh, who deposed in respect of the investigations carried out by them. The prosecution also examined PW-1 Dr. Bobby Gulati, who medico legally examined Sarwan Singh son of Joginder Singh on 30.05.2005 at about 5.10 PM. He proved the medico legal report in respect of Sarwan Singh as Ex.P1. PW-1 Dr. Bobby Gulati deposed that he handed over four pellets to Constable Madan Lal. He deposed that on 31.05.2005 at about 9.20 AM, he conducted post mortem examination on the dead body of Milkha Singh and found the following injuries:
Crl. Appeal No.358-DB of 2009 5
"1. Incised wound 4 cm x 2 cm below the left shoulder and 9 cm above the left nipple and left side of chest. Clotted blood was present. On dissection the track of injury No.1 was found going obliquely deeply downward, piercing the left pleura, left lung and left side of pericardial cavity and heart both pleural and pericardial cavity were found full of blood intervening ribs were found fractured.
2. Incised wound 5 cm x 3 cm on the left side of lower part of chest 4 cm below the left nipple. Clotted blood was present.
3. A lacerated punctured wound of 4 cm x 4 cm on the inner side of right thigh at its upper half. Clotted blood was present."
After proving post mortem report as Ex.P4, PW-1 Dr. Bobby Gulati opined that in his opinion the cause of death was shock, hemorrhage and injury to vital organs, lung and heart, which were sufficient to cause death in the ordinary course of nature. He further deposed that on the same day at about 9.40 AM, he also conducted the post mortem examination on the dead body of Karaj Singh and found the following injuries:
"1. Abrasion 2 cm x 2 cm on left side of cheek. Clotted blood was present.
2. Abrasion 3 cm x 2 cm on right side of cheek. Clotted blood was present.
3. A lacerated and punctured wound 3.5 cm x 3 cm on the left inguinal region with inverted margins. Margins were blackened and clotted blood was present.
On dissection of injury No.3 underlying tissues were found congested and infilterated with blood. Fermoral vessels were badly lacerated and underlying bone was found fractured (femur) at its neck. Multiple pellets were found embedded in surrounding muscles which were taken out from the body sealed in a container and handed Crl. Appeal No.358-DB of 2009 6 over the police. Clotted blood measuring about 300 C.C. in volume was found at its fractured ends.
4. Incised wound 1.5 cm x 1.5 cm on the left buttock, clotted blood was present.
5. Incised wound 1.5 cm x 1 cm on right leg in anterior part of middle one third. Clotted blood was present."
After proving post mortem report in respect of Karaj Singh as Ex.P6, PW-1 Dr. Bobby Gulati opined that in his opinion the cause of death was due to shock and hemorrhage as a result of injuries to femoral vessels and due to fracture of femur, which were sufficient to cause death in the ordinary course of nature, as a result of fire arm injury. In his cross- examination, he stated that Sarwan Singh, injured, was brought to the hospital by his brother Jaswant Singh at about 5.07 PM and that Karaj Singh was also brought to the hospital approximately at the same time in gasping condition. He further stated Karaj Singh came to the hospital earlier than Sarwan Singh.
After concluding the prosecution evidence, the accused were confronted with the incriminating circumstances appearing against them in the prosecution evidence while recording their statements under Section 313 Cr.P.C. Accused Major Singh and Harjinder Singh have denied the prosecution allegations and asserted that they were not present at the spot and have been falsely implicated. However, accused Waryam Singh stated to the following effect:
"I am innocent. I and Charan Singh are living together in our fields by constructing a room in the area of village Butewala. We had sown Barseen crop in our fields and Mehal Singh etc. wanted to grab Crl. Appeal No.358-DB of 2009 7 that land which is in our possession. On 30.05.2005 Mehal Singh had hired Milkha Singh, Karaj Singh and Sarwan Singh to grab that land and at that time Mehal Singh was to attend the court at Ferozepur. Milkha Singh, karaj Singh and Sarwan Singh started cultivation and also attacked us. I alongwith my son tried to forbid them for not doing so, but they grappled with me. I was having a Barchha (spear) with me and I used it in my self defence and to defend my property. My son Charan Singh fired from his gun in defence of person and property. At that time Mehal Singh was not present and police has concocted the FIR at the spot as the police has reached the spot just after the occurrence. Myself and my son were arrested by the police."
Accused Charan Singh also gave similar explanation that he fired from his gun in defence of person and property. In defence, the accused have examined DW-1 Santokh Singh, Registration Clerk, who proved the general power of attorney given by Mehal Singh son of Gajjan Singh in favour of Sarwan Singh son of Joginder Singh as Ex.D1. After considering the entire evidence on record, the learned trial Court convicted and sentenced the appellants, as mentioned above.
Learned counsel for the appellants has vehemently argued that Mehal Singh was not present at the spot and has been introduced later by the prosecution. He is untruthful witness. It is also argued that Waryam Singh was in possession of land, which is evident from the statement (Ex.P12) of Mehal Singh, the basis of the FIR. It is, thus, argued that since Waryam Singh was in possession of the land in question, arrival of Mehal Singh and his accomplices Milkha Singh, Karaj Singh and Sarwan Singh on such land shows that they were aggressors and that the appellants Waryam Singh and Charan Singh had acted to protect their person and property. Crl. Appeal No.358-DB of 2009 8 Mehal Singh and others had no occasion to come near the land, which is in possession of the appellants. The fact that Mehal Singh and others came towards the land, which is in possession of the appellants, shows that in fact Mehal Singh and others were the aggressors. Any action taken by the appellants to protect their person and property is in exercise of right of private defence and thus, the conviction of Waryam Singh and Charan Singh is wholly untenable.
In respect of Major Singh and Harjinder Singh, it is argued that both the persons were not present at the spot. The testimonies of PW-4 Mehal Singh and PW-5 Sarwan Singh in respect of their presence and participation in the commission of crime are the self-serving statements, which cannot be made basis of their conviction.
On the other hand, Mr. Mattewal argued that in fact Mehal Singh was in possession of the remaining land of 4 ½ acres out of which 28 Kanals 13 Marlas alone was in possession of Waryam Singh. Mehal Singh and others were in the land, which is in their possession and therefore, the appellants were not justified in taking law into their hands. It is argued that in exercise of right of private defence, the accused cannot take law into their hands and at best could take steps so as to protect their person and property. There is no evidence that Mehal Singh and others were armed with deadly weapons or had any agricultural implement so as to take forcible possession of the land said to be in possession of Waryam Singh. It is, thus, argued that the argument that appellants have acted in their private defence is wholly untenable and even if the appellants could act in right of their private defence, but they could not exceed that right so as to take lives of un-armed Crl. Appeal No.358-DB of 2009 9 Milkha Singh and Karaj Singh. It is argued that Major Singh and Harjinder Singh though residents of village were part of the unlawful assembly consisting of the appellants and Dilbag Singh. The presence of Major Singh and Harjinder Singh and their active participation in the commission of crime is abundantly proved on the basis of testimony of PW-4 Mehal Singh corroborated by the statement of PW-5 Sarwan Singh. The prosecution story is further strengthened by the medical evidence given by PW-1 Dr. Bobby Gulati, when he deposed that Sarwan Singh reached the Hospital at about 5.07 PM on 30.05.2005 soon after Karaj Singh was removed to hospital. Thus, the presence of PW-5 Sarwan Singh stands proved. While appearing in the witness box as PW-4 and PW-5, Mehal Singh and Sarwan Singh have categorically deposed on oath in respect of the presence of accused Major Singh and Harjinder Singh and also gave graphic role played by each one of them. Therefore, the charges against the appellants stand proved and the judgment rendered does not warrant any interference.
Having heard learned counsel for the parties, we find no merit in the present appeal. However, the case of four accused needs to be dealt with separately i.e. in respect of Waryam Singh and Charan Singh on the one hand and Major Singh and Harjinder Singh on the other hand.
Mehal Singh is the brother of the deceased with whom Waryam Singh and others are locked up in civil and criminal litigations. Mehal Singh has admitted in his statement Ex.P12, the basis of FIR, that Waryam Singh was in possession of land measuring 28 kanals 13 Marlas since the last wheat crop. Mehal Singh also admits that mustard crop standing on the land in question was sown by Waryam Singh. Therefore, we Crl. Appeal No.358-DB of 2009 10 need to proceed on the assumption that Waryam Singh was in possession of the land in question at the time of occurrence i.e. on 30.05.2005. Though Mr. Mattewal has vehemently argued that the remaining land was in possession of Mehal Singh, but we find that said argument is more based upon inferences rather than fact on record. Neither PW-4 Mehal Singh nor PW-5 Sarwan Singh have deposed in respect of possession of any part of land out of land measuring 4 ½ acres owned by Central Government. In the absence of reliable and cogent evidence, the argument of possession of Mehal Singh over the remaining land over and above land measuring 28 Kanals 13 Marals is based upon surmises and conjectures and cannot be said to be proved.
The role of Waryam Singh and Charan Singh in respect of causing injuries to Milkha Singh, Karaj Singh and Sarwan Singh stands proved from the testimonies of PW-4 Mehal Singh and PW-5 Sarwan Singh corroborated by the medical evidence as soon after the occurrence i.e. around 5.00 PM, Sarwan Singh was medico legally examined by PW-1 Dr. Bobby Gulati. Karaj Singh reached hospital in gasping condition. Even in their statements recorded under Section 313 Cr.P.C., Waryam Singh and Charan Singh had not denied the occurrence and in fact admitted clearly and categorically causing of injuries and use of Barcha by Waryam Singh and use of .12 bore double barrel gun by Charan Singh. The cause of death of Milkha Singh was the injury given by Barcha, whereas that of Karaj Singh was on account of fire arm injury attributed to Charan Singh and admitted by him.
Crl. Appeal No.358-DB of 2009 11
Under Section 97 of the Indian Penal Code, the right extends not only to the defence of one's own body against any offence affecting the human body, but also to defending the body of any other person. The right also embraces the protection of property, whether one's own or another person's, against certain specified offences, namely theft, robbery, mischief and criminal trespass. Apart from the fact that such right does not arise if there is time to have recourse to the protection of the public authorities, and for another, it does not extend to the infliction of more harm than is necessary for the purpose of defence. Another factor to be examined is that when death is caused the person exercising the right must be under reasonable apprehension of death, or grievous hurt, to himself or to those whom he is protecting and in the case of property, the danger to it must be of the kinds specified in Section 103. The argument of learned counsel for the appellants revolves around exercise of right of private defence in relation to property following under clause fourthly of Section 103 of the IPC.
In Jai Dev Vs. State of Punjab AIR 1963 SC 612, it was held that right of private defence must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended. It was held to the following effect:
"12. ....In other words, where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself and his property. That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and Crl. Appeal No.358-DB of 2009 12 should not exceed its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious."
In Arjun Vs. State of Maharashtra (2012) 5 SCC 530, the Hon'ble Supreme Court held that the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. It was observed as under:
"22. The law clearly spells out that the right of private defence is available only when there is a reasonable apprehension of receiving injury. Section 99 IPC explains that the injury which is inflicted by a person exercising the right should commensurate with the injury with which he is threatened. True, that the accused need not prove the existence of the right of private defence beyond reasonable doubt and it is enough for him to show as in a civil case that preponderance of probabilities is in favour of his plea. The right of private defence cannot be used to do away with a wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence.
23. It is for the accused claiming the right of private defence to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution, if a plea of private defence is raised. (Munshi Ram v. Delhi Admn. AIR 1968 SC 702, State of Gujarat v. Bai Fatima (1975) 2 SCC 7, State of U.P. v. Mohd. Musheer Khan (1977) 3 SCC 562, Mohinder Pal Jolly v. State of Punjab (1979) 3 SCC 330 and Salim Zia v. State of U.P (1979) 2 SCC 648)
24. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find out whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting.Crl. Appeal No.358-DB of 2009 13
25. Section 97 deals with the subject-matter of right of private defence.
The plea of right comprises the body or property of the person exercising the right or of any other person, and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to the property.
26. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To plea a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him."
In Ranjitham Vs. Basavaraj (2012) 1 SCC 414, it was held that the right of private defence is a question of fact to be determined on the facts and circumstances of each case. The burden is on the accused to establish his plea. The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and whether the accused had time to have recourse to public authorities are all relevant factors to be considered. It was observed that:
"17. That the deceased was stabbed by A-2 is admitted. A-2 has taken up the defence of right of private defence. In several decisions, this Court has considered the nature of this right. Right of private defence cannot be weighed in a golden scale and even in absence of physical injury, in a given case, such a right may be upheld by the court provided there is reasonable apprehension to life or reasonable apprehension of a grievous hurt to a person. It is well settled that the onus of proof on the accused as to exercise of right of private defence is not as heavy as on the prosecution to prove guilt of the accused and it is sufficient for him to prove the defence on the touchstone of preponderance of probabilities (see Sat Narain v. State of Haryana (2009) 17 SCC 141, SCC p.148, para 28).Crl. Appeal No.358-DB of 2009 14
18. In V. Subramani v. State of T.N. (2005) 10 SCC 358 this Court examined the nature of this right. This Court held that whether a person legitimately acted in exercise of his right of private defence is a question of fact to be determined on the facts and circumstances of each case. In a given case it is open to the court to consider such a plea even if the accused has not taken it, but the surrounding circumstances establish that it was available to him. The burden is on the accused to establish his plea. The burden is discharged by showing preponderance of probabilities in favour of that plea. The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and whether the accused had time to have recourse to public authorities are all relevant factors to be considered."
In Ghansham Dass Vs. The State (Delhi Administration) (1978) 3 SCC 391, the Court rejected the plea of self-defence, when the injuries were inflicted inside the shop in possession of the accused. In Kashi Ram & others Vs. State of Rajasthan (2008) 3 SCC 55, the Supreme Court rejected the plea of self-defence, when the serious injuries were inflicted on the un-armed complainant party. It was observed as under:
"44. In the instant case, the appellants were the aggressor. They inflicted serious injuries on the unarmed complainant party by a variety of weapons causing the death of Balu Singh and also inflicted serious injuries on other members of the complainant party.
45. Private defence can be used only to ward off unlawful force, to prevent unlawful force, to avoid unlawful detention and to escape from such detention as held by this court in Bishna Vs. State of W.B. (2005) 12 SCC 657....
xxx xxx xxx
52. The right of private defence is purely preventive and not punitive. This right is available only to ward off the danger of being attacked; the danger must be imminent and very real and it cannot be averted by a counter-attack.Crl. Appeal No.358-DB of 2009 15
xxx xxx xxx
54. The acts of the accused appellants of proceeding to a definite destination with lethal weapons and thereafter causing serious injuries including fatal injuries on the unarmed members of the complainant party can never legitimately claim the benefit of the provisions of the right of private defence. Since the accused appellants did not have the right of private defence, therefore, the findings of the courts below regarding their exceeding the right of private defence cannot be sustained and are accordingly set aside."
Mehal Singh and others are said to be aggressors. But the fact remains that Mehal Singh and others were neither armed with any deadly weapon nor were carrying any agricultural implement so as to take possession over the land in question. There is no such cross examination on any of the prosecution witness or even suggestion to this effect. The investigation officer has not been asked any question about the recovery of any weapon, any agricultural implement or otherwise from the prosecution witnesses or that they were possessed of such arms or implements. Therefore, Mehal Singh and others cannot be termed as the aggressors having intention to take possession of the land, which is claimed to be in possession of Waryam Singh. In exercise of right of private defence, Waryam Singh and Charan Singh could not exceed power given to them by law, as they could only protect their person and property, but law does not authorize them to take lives of other persons. Charan Singh, as per eye- witnesses i.e. PW-4 Mehal Singh and PW-5 Sarwan Singh, has fired three shots. Each of such shot hitting Milkha Singh, Karaj Singh and Sarwan Singh. Waryam Singh gave two barcha blows on the chest of Milkha Singh, which was the cause of his death. The manner of injuries clearly proves that Waryam Singh and Charan Singh have exceeded the right of private defence Crl. Appeal No.358-DB of 2009 16 and that have caused more injuries than necessary to protect their person and property.
The right of private defence is available if it is without premeditation. The fact remains that Major Singh and Harjinder Singh, the other two accused said to be armed with dang and barcha were on the land said to be in possession of Waryam Singh. Both of them are not related to Waryam Singh. Their presence on the land in question with their respective weapons and the fact that Waryam Singh armed with Barcha and Charan Singh armed with .12 bore double barrel gun are sufficient to indicate prior meeting of minds. More so, the date of occurrence was the date of hearing of the case in the Court at Ferozepur. Since the presence of Major Singh, Harjinder Singh and Dilbag Singh (since deceased) unconnected with the land of Waryam Singh is proved from the testimonies of PW-4 Mehal Singh and PW-5 Sarwan Singh constituting an unlawful assembly with common object to commit crime, therefore, such persons have been rightly convicted and sentenced.
In view of the discussion above, we do not find any illegality in the findings recorded by the learned trial Court, which may warrant any interference in the present appeal.
Dismissed.
(HEMANT GUPTA)
JUDGE
07.02.2013 (RITU BAHRI)
Vimal JUDGE