Punjab-Haryana High Court
Angrej Singh vs State Of Punjab And Others on 8 October, 2013
Author: G.S.Sandhawalia
Bench: Jasbir Singh, G.S.Sandhawalia
CRA-D-1067-DB of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D-1067-DB of 2013
Date of decision: 08.10.2013
Angrej Singh .Appellant
Vs.
State of Punjab and others .Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE G.S.SANDHAWALIA
*****
Present: Mr. A.S.Dhaliwal, Advocate for the appellant.
Mr. K.K.Gupta, Addl. Advocate General, Punjab
for respondent no.1.
Mr. Narender Singh, Advocate for respondents No.2 to 4 & 7
*****
G.S.Sandhawalia, J.
1. The present appeal is directed against the judgment of acquittal dated 31.3.2012 recorded by the Addl. Sessions Judge, Moga against private respondents No.2 to 7 of the charges under Sections 307/427/148/149 IPC read with Sections 25/54/59 of Arms Act in FIR No.70 dated 5.6.2007 registered at Police Station, Kot Ise Khan, District Moga.
2. A perusal of the judgment would go on to show that the private respondents were given benefit of doubt on the ground that they were exercising the right of private defence and there were inimical relationship between the parties.
3. The case of the prosecution was that on 5.6.2007, the complainant, namely, Angrej Singh along with Gurpreet Singh son of Malkiat Singh-PW3, Gurpreet Singh son of Bachan Singh-PW4, Bachan Kumar Pardeep 2013.10.29 11:42 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA-D-1067-DB of 2013 -2- Singh, Sarpanch, Chamkaur Singh, Iqbal Singh and other respectable persons were making a temporary pond in the Panchayat land with the help of tractors. The said land measuring one acre was near the residence of Gurdev Singh-respondent no.4 along with some other Panchayat land and the Panchayat had resolved to construct the temporary pond to drain out the water of the village into this land. Gurdev Singh had occupied the land of the Panchayat and wanted to occupy the one acre also which was objected to by the villagers. Gurdev Singh armed with 12 bore rifle along with Kamikkar Singh armed with 315 bore rifle, Parminder Singh armed with Datar, Gurjit Singh armed with Kirpan came on the spot in a jeep and Indica car in which Surinder Singh @ Soni armed with revolver, Jasbir Singh having belt of cartridges of 12 bore and Raj Singh also came there. The occupants of the said vehicles raised lalkaras and started hurling abuses. Gurdev Singh opened fire from his rifle and pellets hit the complainant on his left leg. Kamikkar Singh fire from his 315 bore rifle and the shot hit right tyre of Swaraj tractor and the complainant went underneath the stopped tractor. Gurdev Singh fired another shot from his rifle which hit on the right leg of the complainant. Kamikkar Singh then fired towards Gurpeet Singh son of Bachan Singh but the shot did not hit him. However, Gurdev Singh fired shot from his rifle which hit on the left leg of Gurpreet Singh and he fell down. Inderjit Singh and Balbir Singh, who were plying their respective tractors ran away after leaving their tractors whereas Gurpreet Singh son of Malkiat Singh and Gurpreet Singh son of Bachan Singh went underneath the stopped tractors to save themselves. Gurdev Singh and Kamikkar Singh continued firing shots towards Kumar Pardeep 2013.10.29 11:42 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA-D-1067-DB of 2013 -3- complainant party with intention to kill them and one pellet hit Gurpreet Singh son of Malkiat Singh on his forehead. On raising an alarm 'Marditta Marditta' on which persons started gathering there and the accused ran away from the place of occurrence in their jeep and car. Accordingly, FIR was registered and challan was presented against respondent no.2-Jasvir Singh, respondent no.3-Parminder Singh, respondent no.4-Gurjit Singh and respondent no.5-Gurdev Singh who all were arrested. Thereafter, Kamikkar Singh and Raja Singh were summoned on an application filed under Section 319 Cr.P.C. whereas Surinder Singh could not be arrested.
4. The prosecution examined as many as 13 witnesses to prove its case whereas the accused denied the occurrence and pleaded innocence and took the plea of alibi.
5. In defence Gursewak Singh son of Sardara Singh and Sadhu Singh son of Lekh Ram were examined as DW1 and DW2 and certified copies of order dated 19.5.2006 Ex. D1, order dated 29.1.2009 Ex. D2, Copies of the Jamabandi for the years 1988-89 and 2003-04 as Ex. D3 and Ex. D4 respectively were brought on record.
6. Keeping in view the nature of injuries on the persons of Gurpreet Singh son of Malkiat Singh, Gurpreet Singh son of Bachan Singh and Angrej Singh and admitted fact that Gurdev Singh was in possession of the land in dispute and 25-30 persons went on the spot to dispossess him and destroy his standing crops inspite of the stay order, it was held that since nature of injuries were simple, accused were entitled to right of private defence.
7. Counsel for the appellant has placed reliance upon the Kumar Pardeep 2013.10.29 11:42 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA-D-1067-DB of 2013 -4- statements made under Section 313 Cr.P.C. to plead that once the accused had denied the incident then the benefit could not have been granted as has been done by the trial Court.
8. A perusal of the record would, however, go on to show that PW-4 Gurpreet Singh son of Bachan Singh admitted that his father was Sarpanch at the time of occurrence and Angrej Singh complainant- injured and his party had helped his father at the time of election. PW-3 Gurpreet Singh son of Malkiat Singh, another injured also belonged to the party of Angrej Singh. As per his cross-examination when the accused were returning to the village after attending the Shagun ceremony from Maghi Resorts, occurrence had taken place whereas they had gone to the spot on 5.6.2007 at about 8.00 AM to dig pond. In his cross-examination, it had further come that they were not restrained by any one to dig pond from 9.00 AM to 12.00 noon. The Panchayat Secretary PW-5 Romesh Singh brought the Panchayat book wherein resolution was passed on 4.6.2007 to show that the Panchayat had passed resolution regarding digging of the pond due to problem for discharge of water. Similarly, Angrej Singh himself in his statement also stated that at 12.00 noon the accused had come on the spot and opened fire and the shot fired by Kamikkar Singh had also hit the tyre of the tractor. A perusal of Ex. D1 would go on to show that Gurdev Singh had filed a suit against Gram Panchayat for permanent injunction for restraining the defendants from interfering with the peaceful possession of the plaintiff. On 19.5.2006, the Addl. Civil Judge (Senior Division), Moga passed an interim injunction restraining the Gram Panchayat from interfering in the suit land till 29.5.2006. The relevant portion of order Kumar Pardeep 2013.10.29 11:42 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA-D-1067-DB of 2013 -5- reads as under:-
"Arguments have been heard. Perused the pleadings and documents on the file. A prima facie case and balance of convenience lies in favour of the plaintiff. As such defendant is restrained from interfering in the suit land as detailed & described in the head note of plaintiff till 29.5.2006. Plaintiff is directed to get the personal service effected upon the defendant by taking dasti summons failing which exparte injunction granted today shall stand vacated automatically.
Compliance u/o 39 Rule 3 CPC be made immediately. Notice of the suit as well as injunction application be issued to the defendant for 29.5.2006. Dasti summons be given, if so desired."
Announced : 19.5.2006 Addl. Civil Judge (Sr. Division), Moga.
9. Thereafter on 1.6.2007, the injunction was declined and the appeal was preferred before the Addl. District Judge, Moga. Vide order dated 29.1.2009 (Ex. D2) injunction was granted by holding as under:-
"6. It is yet to be decided during the trial as to under which circumstances, the same halqa Patwari, issued fresh Jamabandi to the defendants on 19.3.2006 depicting only two kanals of land of Khasra No.23//18 in possession of the appellant and 6 kanals in the name of defendant Lachhman Singh of same Khasra number when earlier to that he had already issued jamabandi and Khasra girdawari entries on 7.3.2006 to the plaintiff depicting his possession over the Kumar Pardeep 2013.10.29 11:42 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA-D-1067-DB of 2013 -6- entire 8 kanals of land of this Khasra number. It seems that some hanky panky has been done by the halqa Patwari at the instance of the defendants in order to negate the factum of possession of the plaintiff which was exclusively recorded in his name at the time of issuing jamabandi and khasra girdawari entries on 7.3.2006. In these circumstances, the subsequent jamabandi and khasra girdawari entries depicting different position, at this stage, has to be ignored. The learned trial Court was required to draw adverse inference against the defendants regarding this ambiguity rather than against the plaintiff who was already prepared jamabandi by the same Patwari. Although, the plaintiff has not placed on record any receipt of payment of rent to the Gram Panchayat but on the other hand he has been shown to be in settled possession of the land in dispute as gair maursi under the Gram Panchayat in the record of rights to which presumption of truth is attached. The defendants have no right to dispossess him forcibly and illegally till disposal of the main suit for permanent injunction. Prima- facie case is made out in favour of the appellant. If the appellant is dispossessed forcibly and illegally definitely irreparable loss and injury will be caused to him. Hence, the present appeal is allowed. The impugned order passed by the learned trial Court is set aside. Interim injunction application filed by the appellant before the learned trial Court is also allowed. The defendants are restrained from Kumar Pardeep 2013.10.29 11:42 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA-D-1067-DB of 2013 -7- dispossessing the appellant forcibly and illegally except due course of law. However, it is made clear that this order shall have no bearing upon the decision of the main suit by the learned trial Court on merits. Memo of costs be prepared. A copy of this order along with trial Court file be sent back. Appeal file be consigned to the record room.
Pronounced Sd/ B.S.Sandhu
29.1.2009 Additional Sessions Judge,
Moga."
10. Thus, it is apparent that there was civil litigation inter-se the parties and the Civil Court found that Gurdev Singh was in possession. It is the case of the complainant himself that Gurdev Singh was in possession. Photographs brought on record would go on to show that the tractors so used for ploughing of the land levelling it were standing on the spot with punctured tyre on account of opening of fire by the accused. Once there was civil litigation going on inter-se the parties which is not denied by the complainant side, it is apparent that they themselves had gone there to dig out a pond in the land which was in possession of Gurdev Singh. The plea taken that in the statement Gurdev Singh had denied his presence, on carefully examination of his statement would go on to show that since there was a marriage in the family of accused and it was only on his coming back, the incident had taken place, the plea of alibi was one which was not totally false also since it is a case of the complainant party itself that on coming back at 12.00 noon the incident had taken place. This would be clear from the cross-examination of PW-2 Angrej Singh which reads as under:-
"......All the accused had earlier gone to Moga to join Kumar Pardeep 2013.10.29 11:42 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA-D-1067-DB of 2013 -8- Shagan ceremony function of Sukhchain Singh at Maghi Resorts before the occurrence. The disputed land was already sown with Jhijan crop. Volunteered such Jhijan was sown by the Gram Panchayat. It is incorrect to suggest that such Jhijan was sown by accused Gurdev Singh. The gun used by Gurdev Singh was licenced."
11. Once Gurdev Singh was in possession of the land and it was being ploughed by number of tractors led by the Sarpanch and his son and a large number of persons were came there as per the case of the complainant party itself, the finding recorded by the trial Court cannot be faulted with. It is apparent that the complainant party was taking the advantage of declining of injunction on 1.6.2007. Since the resolution was passed on 4.6.2007 and incident was of 5.6.2007. Thereafter, Gurdev Singh was successful in getting injunction on 29.1.2009 from the Lower Appellate Court which, however, was vacated by this Court in Civil Revision No.2550 of 2009 decided on 24.3.2009 on the strength of the judgment of the Apex Court in Jagpal Singh and others Vs. State of Punjab and others 2011(2) Scale 42 which it would be clear from perusal of the certified copy of the judgment which is available on record.
12. The Apex Court in Laxman Singh Vs. Poonam Singh 2003 (4) RCR (Criminal) 560 in similar circumstances upheld the acquittal of the accused persons after referring to a judgment of the Apex Court in Munshi Ram Vs. Delhi Administration AIR 1968 Supreme Court 702 and held that it is always open to the Court to consider the plea of private defence even if the accused had not taken it if it can be established from the record. The principle that person who is Kumar Pardeep 2013.10.29 11:42 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA-D-1067-DB of 2013 -9- apprehending death or bodily injury in the heat of moment was viewed and held that the Court has to weigh the material to conclude whether the plea is acceptable and it is essentially a finding of fact. The relevant observations reads as under:-
"8. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non- explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See Lakshmi Singh v. State of Bihar (AIR 1976 SC 2263)]. 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 Kumar Pardeep 2013.10.29 11:42 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA-D-1067-DB of 2013 -10- relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find 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. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) 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 property. 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 claim 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. The burden is on the accused to show that he had a right of private defence which extended to causing of death.
Sections 100 and 101, IPC define the limit and extent of right of private defence.
xxxx xxxx xxxx
11. As noted in Butta Singh v. The State of Punjab (AIR 1991 SC 1316) : 1991 (3) RCR (Crl.) 91 (SC) , a Kumar Pardeep 2013.10.29 11:42 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA-D-1067-DB of 2013 -11- person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of moment, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self- defence and the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self- preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially a finding of fact."
13. Accordingly, keeping in view the above observations and Kumar Pardeep 2013.10.29 11:42 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA-D-1067-DB of 2013 -12- the fact that there is no dispute regarding the incident which was put forward by the prosecution itself that the Panchayat had to dig the land which was in possession of Gurdev Singh, no fault can be found with the finding recorded by the trial Court. The other important factor which rightly weighed with the trial Court was that the nature of injuries were simple in nature though inflicted by firearm. The relevant para reads as under:-
"As per case of prosecution, accused Gurdev Singh had fired a shot from distance of 2 karams whereas defence taken by accused is that shots were fired from a distance of more than 20 Karams. From the perusal of evidence given by PW1 Dr. Rajesh Attri and from copies of MLRs, which are Ex. P1, Ex. P4 and Ex. P7, it is clear that only pellet injuries have been received by Angrej Singh complainant (PW2), Gurpreet Singh son of Malkiat Singh (PW3) and Gurpreet Singh son of Bachan Singh (PW4). Defence counsel has argued that if shot is fired from a distance of 2 Karams, then only pellets injuries are not suffered by injured. From the medical evidence, it is also clear that only simple injuries have been suffered by Angrej Singh, Gurpreet Singh son of Malkiat Singh and Gurpreet Singh son of Bachan Singh. It is also proved on the file that Bachan Singh Sarpanch, father of PW4, was having inimical relations with accused Gurdev Singh also belonged to the party of Sarpanch Bachan Singh, which has been admitted by PW4 Gurpreet Singh son of Bachan Singh in his cross-examination."
Kumar Pardeep 2013.10.29 11:42 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA-D-1067-DB of 2013 -13-
14. It is further to be kept in mind that the judgment of acquittal has bolstered the presumption of innocence in favour of the accused and the counsel for the appellant has not been able to show any weighty reason which would compel this Court to interfere with the well reasoned judgment passed by the trial Court. Nothing could be shown from the record that there was any misreading of evidence or certain facts which the trial Court has not considered. Keeping in view the said principles which are to be kept in mind while deciding the appeal against the judgment of acquittal, we are of the opinion that no cause is made out for interference with the impugned judgment.
15. Accordingly, the present appeal is dismissed.
(G.S.SANDHAWALIA)
JUDGE
08.10.2013 (JASBIR SINGH)
Pka JUDGE
Kumar Pardeep
2013.10.29 11:42
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh