Punjab-Haryana High Court
State Of Punjab vs Shishu Pal Singh And Anr. on 13 February, 2002
Equivalent citations: 2002CRILJ4642
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT Amar Bir Singh Gill, J.
1. This judgment shall dispose of Criminal Appeals Nos. 485-DBA, 271-SB of 1991 as well as Criminal Revision No. 37-SB of 1992 as these arise out of common judgment dated 10-7-1991 passed by Additional Sessions Judge, Hoshiarpur. Criminal Appeal No. 271-SB of 1991 filed by Shishu Pal Singh is against his conviction and sentence dated 10-7-1991, while Criminal Appeal No. 485-DBA of 1991 titled State v. Shishu Pal Singh and Anr. is against the same Judgment of the trial Court acquitting Surinder Pal Singh and Criminal Revision No. 37 of 1992 filed by complainant Gurdev Singh is for enhancement of sentence awarded to Shishu Pal Singh.
2. The facts necessary to unfold the prosecution case against Shishu Pal Singh and his brother Surinder Singh alias Surinder Pal Singh are that one Kundan Singh of Village Akalgarh has pruchased land measuring 19 Kanals 5 Marias from Shishu Pal Singh accused by way of registered sale deed on 28-4-1982. Kundan Singh and his brother resided abroad and his land was being cultivated by Gurchain Singh deceased in their absence. However, cultivating possession of the said land was shown in the revenue entries/Khasra Girdawari still in the name of Shishu Pal Singh, Janak Singh and Surinder Pal Singh, Kundan Singh had filed an application before the revenue officer on 8-5-1990 for correction of revenue entries i.e. Khasra Girdawari in his name. A copy of the said application is Exhibit PJ. On 25-6-1990 at about 6.30 p.m. Shishu Pal Singh accused along with his brother Surinder Pal Singh (since acquitted) armed with . 12 bore licenced double barrel gun went to the field cultivated by Gurchain Singh deceased. They took with them a bullock disc harrow for ploughing and started uprooting the cotton crop sown by Gurchain Singh deceased from Khasra No. 13/18. In the meantime, Gurdev Singh complainant along with his brothers Gurchain Singh and Amrik Singh, nephew Rajinder Singh and Manjit Singh Sarpanch came to the field. Gurchain Singh asked Shishu Pal Singh not to uproot his crop but the latter insisted that he would plough the land as Khasra Girdawari of the land was in his name. Thereafter, Surinder Pal Singh exhorted his brother Shishu Pal Singh to fire and teach a lesson to Gurchain Singh. Shishu Pal Singh accused fired a shot from his gun which hit Gurchain Singh on both of his thighs and he fell down. Rajinder Singh tried to run away on the northern side but Surinder Pal Singh exhorted to his brother Shishu Pal Singh accused not to allow Rajinder Singh to escape. Shishu Pal Singh fired a shot from his gun which hit the left hip and left leg of Rajinder Singh. He again fired another shot which hit the abdomen of Rajinder Singh who fell down. Gurdev Singh, Amrik Singh and Manjit Singh raised alarm. The accused fled away along with the gun. Gurchain Singh and Rajinder Singh died at the spot. Gurdev Singh and Manjit Singh left Amrik Singh at the spot and they proceeded to the police station. On the way, they met Sub-Inspector Sukhbir Singh near the canal bridge before whom Gurdev Singh PW made statement Exhibit PS regarding the occurrence. The same was sent to the police station by Sub-Inspector, Sukhbir Singh with his endorsement and on its basis First Information Report Exhibit PS/2 was recorded in Police Station, Garhashankar. The police party along with complainant and Manjit Singh came to the spot. Sub-Inspector Sukhbir Singh prepared the inquest reports Exhibit PD and Exhibit PC regarding dead bodies of Rajinder Singh and Gurchain Singh respectively in the presence of Gurdev Singh and Gurshinder Singh. On 26-5-1990, early in the morning, the Sub-Inspector sent the dead bodies of Rajinder Singh and Gurchain Singh for post mortem examination. The Sub-Inspector inspected the place of occurrence. He took into possession two empties of .12 bore and made them into a sealed parcel. He also lifted blood stained earth from the place where the dead bodies of Gurchain Singh and Rajinder Singh were lying and made them into sealed parcels. He also took into possession six disc harrows, plough and yoke. The post mortem examination on the dead bodies of Rajinder Singh and Gurchain Singh was conducted by Dr. Sunita Nanda on 26-6-1990. She confirmed the cause of death on account of gun shot wounds which, according to the doctor, were sufficient to cause death in the ordinary course of nature. Shishu Pal Singh along with his companion Surinder Pal Singh were arrested on 4-7-1990 and from the possession of Shishu Pal Singh .12 bore gun along with bag containing two live cartridges and one licence Exhibit P-1 were recovered and taken into possession.
3. In support of the case, the prosecution examined material witnesses, namely, Dr. Sunita Nanda PW 1, complainant Gurdev Singh PW. 15, Sarpanch Manjit Singh PW. 16, Amrik Singh PW. 17 and Sub-Inspector Sukhbir Singh PW. 19 besides other formal witnesses. The prosecution tendered into evidence the report of the Chemical Examiner; report of the Serologist; copy of the order of Assistant Collector IInd Grade. Garhshankar and copy of the written statement. Surinder Pal Singh accused had denied his presence at the time of occurrence whereas Shishu Pal Singh accused while denying the prosecution case took up the following defence :-
I am innocent. The field in question was in my possession and I was cultivating the said field. I had sown the cotton crop in it. On the day of alleged occurrence, I was present with my son Ranjit Singh who is aged about 10 years in the said field to prepare the other fields for paddy crop. In the meanwhile, Rajinder Singh, Gurchain Singh along with some strangers came in the field with deadly weapons and tried to attack me. In order to scare them away, I fired shot from my gun and in the meanwhile, Rajinder Singh started going towards my son to kill him. I again fired a shot in the air to scare him away and to prevent him to do any harm to my son. Unfortunately, those shots may have hit Rajinder Singh and Gurchain Singh. The other persons ran away from the field. Gurdev Singh, Amrik Singh and Manjit Singh were not present at the time of alleged occurrence. My brother Surinder Singh alias Surinder Pal Singh was also not present in the field with me at that time. I along with my brother were taken away by the police on the same night to the police station and afterwards we were falsely implicated in the present case. Jagdish Singh, Mohna Ram and others were attracted to the spot and they witnessed the occurrence.
He also examined in his defence Charan Singh PW. 1, Paras Ram DW 2, Dildar Singh DW 3, Narinder Pal Abrol DW 4 and produced a copy of the order of Collector, Garhshankar Exhibit DE in evidence.
4. The trial Court did not find favour with the prosecution case against Surinder Pal Singh and acquitted him whereas accepted the case of the prosecution against Shishu Pal Singh to the extent of charge under Section 304 of the Indian Penal Code on two Counts for causing death of Gurchain Singh and Rajinder Singh by exceeding his right of self defence and sentenced him to seven years rigorous imprisonment and fine of Rs. l.000/- or in default of payment of fine to further undergo rigorous imprisonment for six months on both these counts. He was also sentenced to undergo rigorous imprisonment for two years under Section 27 of the Arms Act. The substantive sentences of imprisonment were, however, ordered to run concurrently.
5. We have heard learned counsel for the parties in each of these appeals and revision.
6. The occurrence took place in the field having revenue (Khasra Girdawari) No. 13/ 16. This piece of land was a part of the land purchased by Kundan Singh and his brother Phuman Singh from Shishu Pal Singh, respondent in the State appeal, vide sale deed dated 28-4-1982, copy of which is Exhibit PL on the record. The admitted case is that revenue entries regarding cultivating possession of this field did not change after the sale deed in the name of Kundan Singh. Kundan Singh resided abroad. On 8-5-1990, while he had come to his village, he moved an application for correction of Khasra Girdawari Exhibit PJ claiming that after the sale deed, Khasra Girdawari has wrongly been shown in the name of the owners and this required to be changed in his name. The recitals in the sale deed shows that possession has been delivered in favour of the vendees. The said application was still pending before the Revenue Officer when on 25-6-1990 present occurrence took place at 6.30 p.m. Gurchain Singh deceased, from the evidence on the record, claimed to have, cultivated the land purchased by Kundan Singh from Shishu Pal Singh and he had sown cotton crop in the field where the occurrence took place. As per First Information Report Exhibit PS/2 as well as statement of Gurdev Singh. PW. 15, real brother of Gurchain Singh deceased, when on the date and time of occurrence Shishu Pal Singh along with his brother Surinder Pal Singh (since acquitted) were ploughing the cotton crop and damaging the same, Gurchain Singh along with his brother Gurdev Singh, nephew Rajinder Singh deceased and Manjit Singh Sarpanch of Alma Muglan village had gone to the field of occurrence where Gurchain Singh requested Shishu Pal Singh not to damage the cotton crop and he would pay the batai (share of the crop) in accordance with the decision of the case filed for correction of Khasra Girdawari when Shishu Pal Singh on the exhortation of Surinder Pal Singh fired from his double barrel gun and murdered Gurchain Singh as well as Rajinder Singh at the time of occurrence. It is, thus, admitted even by the prosecution witness that the revenue entries did not show if the cultivation in Khasra No. 13/18 was by Gurchain Singh or any of his brothers. In the application Exhibit PJ moved by Kundan Singh for correction of Khasra Girdawari, it is no where mentioned that Kundan Singh while living abroad was in cultivating possession of the land purchased from Shishu Pal Singh through his tenant Gurchain Singh or any of his brothers. Incidentally, after the occurrence, on 4-7-1990 Kundan Singh again left for abroad leaving behind his attorney Baljeet Singh PW in whose favour he executed power of attorney, copy of which is Exhibit PK. Baljeet Singh appeared as PW. 6 in this case who proved the power of attorney Exhibit PK in his favour and stated that he was pursuing the case on behalf of Kundan Singh for correction of Khasra Girdawari. However, in his statement as well, he no where mentioned if Kundan Singh was cultivating his land through Gurchain Singh deceased or the latter had sown the cotton crop in the field where the occurrence took place. Kashmiri Lal Patwari, PW. 3, proved the revenue entry regarding cultivating possession of the field in question i.e. 13/18 in the name of Gowardhan Singh, Janak Singh and Surinderpal Singh co-sharers. He further stated that he had made the entry after visiting the spot regarding cultivation of the crops. It may also be noted that on 23-6-1990 Surinder Pal Singh himself and on behalf of his co-sharers including Shishu Pal Singh had filed a suit for permanent injunction restraining Kundan Singh and others including Gurchain Singh from taking forcible possession wherein interim direction of maintaining status quo was given. It is also on record that Gurchain Singh deceased had refused to receive the notice of the suit as well as the interim order earlier to the occurrence. The facts noted above, thus, indicate that Gurchain Singh had no right or interest in the field bearing Khasra No. 13/18 on the date of occurrence and in case he entered the same along with his nephew Rajinder Singh and companions, it was no less than a criminal trespass. Even if it be taken that the field bearing Khasra No. 13/18 in which the occurrence took place was no more in the ownership of Shishu Pal Singh, still the sale deed being from out of joint khata. the vendee stepped into his shoes if at all as co-sharer and there being no partition of the joint khata every co-sharer was in possession of each parcel of the land comprising therein including field bearing No. 13/18. It is not the case that Shishu Pal Singh had no other share in the joint khata after sale of certain area as co-sharer vide sale deed Exhibit PL. There is no evidence on record if at any point of time Kundan Singh authorised Gurchain Singh deceased to cultivate the land in his absence, more so field bearing Khasra No. 13/18. In the given circumstances, the finding of the trial Court that Shishu Pal Singh accused had a right to protect the property against any criminal offence including criminal trespass is accepted to that extent. The exercise of right of private defence of property to use force to the extent of causing death is provided under Section 103 of the Indian Penal Code. However, the said right is limited by Section 104 of the Indian Penal Code which provides that the right does not extend to voluntary causing of death but extends to voluntary causing to the wrongdoer any harm other than death and in no case it extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. According to the defence plea of the accused, Gurchain Singh deceased had stopped Shishu Pal Singh from ploughing further when on the exhortation of Surinder Pal Singh, Shishu Pal Singh had fired on Gurchain Singh deceased and similarly he had also fired on Rajinder Singh deceased, 11 was also claimed that the deceased and their companions were armed with deadly weapons. However, it is not shown or suggested if any of them had attempted to strike any weapon either on Shishu Pal Singh or Surinder Pal Singh. As such, it is a clear case of exceeding the right of self defence, as has been rightly held by the trial Court. In a similar case of Jai Bhagwan v. State of Haryana AIR 1999 SC 1083 : 1999 Cri LJ 1634, where the deceased party had come to the land in possession of the accused group in order to irrigate the land which by facts of the case could only amount to criminal trespass within the meaning of Section 441 of the Indian Penal Code, the Apex Court held that the right of the accused did not extend to cause death but extended only to causing of harm other than death. The Supreme Court observed as under (para 9) :-
A-1 and A-3 on the land were armed with deadly weapons. On the exhortation given by their mother, both of them, one after the other, murderously assaulted the deceased with the weapons with which they were already armed. It was not a case of free fight and it cannot be said that they did not intend to cause the injuries inflicted by them. They intended to cause injuries and did inflict the said injuries which caused the death of Prithvi, the deceased. Therefore, they are not entitled to protection of Section 104, IPC. But for the fact that they exceeded the right of self-defence of property under Section 104, IPC, the offence committed by them would have been one under Section 302, IPC.
7. Surinder Pal Singh accused has been given the benefit of doubt by the trial Court since he has not been attributed any overt act other than verbal exhortation (lalkara). Shishu Pal Singh accused was armed with . 12 bore gun and he had not shown any intention to stop ploughing when Gurchain Singh deceased tried to interfere in ploughing and stopped him in doing so. He did not require any exhortation if he had any intention to make use of his gun against Gurchain Singh and Rajinder Singh which he did in causing death of both Gurchain Singh and Rajinder Singh. Application of Section 34 of the Indian Penal Code on the basis of verbal exhortation, in the circumstances, is not made out in the absence of any other overt act on his part. The benefit of doubt has rightly been given to him.
8. In view of what has been stated above, no interference is called for in the judgment of the trial Court. Thus, the appeal filed by the State, so also the revision filed by the complainant and appeal filed by Shishu Pal Singh are hereby dismissed.