Punjab-Haryana High Court
Jagbir And Others vs State Of Haryana on 13 January, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.300-DB of 2008 1
Criminal Appeal No.349-DB of 2008
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:January 13, 2012
Criminal Appeal No.300-DB of 2008
Jagbir and others ......Appellants
Versus
State of Haryana .......Respondent
Criminal Appeal No.349-DB of 2008
Ashok @ Nanha ......Appellant
Versus
State of Haryana .......Respondent
Criminal Revision No.1308 of 2008
Dharambir ......petitioner
Versus
State of Haryana and others .......Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Vivek Khatri, Advocate,
for the appellants.
Mr.Pardeep Singh Poonia, Addl.A.G.Haryana.
Mr.Ashit Malik, Advocate.
For the complainant.
****
JUDGMENT
SABINA, J.
Criminal Appeal No.300-DB of 2008 2Criminal Appeal No.349-DB of 2008 Vide this judgment, criminal appeals bearing No. 300-DB and 349-DB of 2008 criminal revision No.1308 of 2008 will be disposed of as these have arisen out of a common incident/ judgment.
Prosecution story, in brief, is that on 9.5.2006 at about 5 pm, complainant Suman along with her husband Charanjit, brother- in-law Pardeep, father-in-law Dharambir and mother-in-law Parkashi had gone to their fields for watering the same. At about 5.30 pm, Saroj, sister-in-law of the complainant along with her brothers Brijesh and Narender reached there. At about 6.00 pm, one car and two motorcycles came from the side of the village and stopped in front of their fields. Dinesh, armed with axe, Rakesh, armed with jelli, Jagbir, armed with stick and Jagwanti, armed with farsa alighed from the car. Four persons, who had come on motorcycles, were armed with axe/ farsas. All of them came towards the fields of the complainant party and Jagbir exhorted the others to teach the complainant party a lesson for taking their land. Immediately, Dinesh attacked Charanjit with his axe, Rakesh attacked Pardeep with his jelli, Jagbir attacked Dharambir with his stick and Jagwanti attacked Parkashi with her farsa. The unknown persons started beating the complainant, her sister-in-law Saroj and brothers of Saroj. Jagwanti gave a farsa blow on the right shoulder of the complainant. On hearing alarm raised by the complainant party, many persons from the village gathered at the spot. Thereafter, the assailants fled away from the spot with their respective weapons believing that they had died. All the injured were rushed to the Criminal Appeal No.300-DB of 2008 3 Criminal Appeal No.349-DB of 2008 hospital, where Charanjit and Pardeep were declared dead. Parkashi and Dharambir were admitted in the hospital, whereas, the complainant, Saroj, Brijesh and Narinder were discharged after providing treatment to them.
On the basis of the statement of the complainant formal FIR No.82 was registered on 9.5.2006 at police station Murthal under Sections 148, 149, 323, 324, 302 of the Indian Penal Code, 1860 (IPC for short) After completion of investigation and necessary formalities, challan was presented against the appellants.
Prosecution in order to prove its case examined 18 witnesses.
Appellant Jagbir, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), after the close of prosecution evidence, in reply to question No.1, stated as under:-
"In fact said land belonged to Ganga who is paternal aunt to me and she had given the land to me. The share of Dharambir had already been included in his favour in 1986. Because of this reason, I did not vacate the land on the asking of Dharambir, Dharambir had approached Gannaur courts for getting the land of Sona Devi transferred in his name in the court of Dr. Abdul Majid and his request was declined on my application to the court. Advocate of Dharambir advised him to purchase that land. A notice was sent from Tehsil at Criminal Appeal No.300-DB of 2008 4 Criminal Appeal No.349-DB of 2008 village Farmana to Sona Devi asking that how she had sold the land since the land belonged to Ganga. Sona through her counsel filed reply in the Tehsil office stating that she (Sona was not the paternal aunt (Bua) of Jagbir i.e mine. Dharambir then made application in the court of Dr.Abdul Majid for delivery of possession. Court instead of ordering possession, passed status quo order regarding the land. On 3.5.2006, Dharambir then withdraw his case. Thereafter, Dharambir wanted to take forcible possession of the land in dispute."
In reply to question No.7, he stated as under:-
" Prior to them I had come to the hospital as I had been attacked. There was open fierce fight between both the parties in which we also sustained injuries. We reached the hospital prior to the other party."
In reply to question No.11, he stated as under:-
"Brijesh and Narender did not participate in the occurrence at all as they went inside telling that my land was separate and so they could not involve in delivering the possession. Suman also did not do anything."
He further pleaded as under:-
"Saroj wife of Pardeep resides in Gurgon. After one of two months of the occurrence, panchayat had gone to the house of Saroj in Gurgaon. Saroj stated therein that land in dispute should not be allowed to be Criminal Appeal No.300-DB of 2008 5 Criminal Appeal No.349-DB of 2008 sold as she had to bring up her children by the earnings of that land. Panchayat has perhaps has taken a stay order by moving an application in Gannaur court so that land is not further sold. Randhir my Bua's son, in fact, wants to purchase the land in dispute and sell it at higher price and he is behind all the occurrence."
Appellant Rakesh, when examined under Section 313 Cr.P.C., after the close of prosecution evidence, pleaded as under:-
"After completing my graduation 3-4 years ago, I had started a PCO booth and STD in Sonepat. Me, my father or my brother used to sit on that shop depending upon who was free. On the date of occurrence, I was present at the shop in Sonepat and I received message on mobile phone that fight had taken place in the fields with my father and mother. I contacted my brother Dinesh who had gone for some work in Sonepat itself and then two of us went to Civil Hospital Sonepat where treatment was being provided to my father and mother. Thereafter dead bodies of my uncle Pardeep and Charanjit arrived in the hospital. Somebody asked the doctors to stop treatment of my parents and check the dead bodies. Then I was taken by the police along with my brother and father. Later on my signatures were obtained on some documents.:
Appellant Dinesh, when examined under Section 313 Cr.P.C., after the close of prosecution evidence, pleaded as under:- Criminal Appeal No.300-DB of 2008 6 Criminal Appeal No.349-DB of 2008 "I did not participate in the occurrence. At the place of occurrence only my father and mother were present. They were removing the weeds from their fields. I and my brother were present in Sonepat at that time. At about 5.30- 6 pm my parents had come to our shop at Sonepat. I and my brother have joint shop of photostat/ STD etc. at Kami Road. I took my parents in a taxi to the civil hospital Sonepat and got them bandaged. Then police arrived there along with the dead bodies. We were already in the hospital at that time. We were arrested by the police. Our signatures were forcibly obtained by the police."
Appellant Jagwanti, when examined under Section 313 Cr.P.C., after the close of prosecution evidence, in reply to question No.3, stated as under:-
"It is incorrect. In fact I and my husband were removing the weeds from our land when Dharambir and his family members reached there and asked us not to remove the weeds. We told them that since land belonged to us so we will remove the weeds at which Dharambir and others told that they will take possession of the land forcibly. Dharambir and others threatened us and we told them that we will not relinquish the possession even if we die. Dharambir and others were already conspiring and they assaulted us. They all of them were having weapons. We had snatched the Criminal Appeal No.300-DB of 2008 7 Criminal Appeal No.349-DB of 2008 weapons from complainant party itself and caused injuries to them in self defence. Dharambir hit a two pronged jailwa at my right arm. My husband snatched that jailwa and kept that with him. Then Pardeep elder son of Dharambir hit some pointed arm on my head. Then a fierce fight took place in which both the sides sustained injuries. My sons were not present at the spot. My husband had brought me from the spot to home. I am not aware that what happened later on."
In reply to question No.7, she stated as under:-
" It is incorrect. At the time when I and my husband left the spot, Parkashi was lying on the ground. Dharambir and Pardeep were sitting there and their screams were audible but they had not died. From the village I and my husband came to my children at Sonepat."
In reply to question No.18, she stated as under:-
"It is incorrect. Police had arrested my husband and both the sons from the hospital itself on 9.5.2006, whereas, I was admitted in the hospital. I was unconscious on that day. Police was guarding me and I was then produced next day."
The appellants did not examine any witness in their defence.
The trial Court vide judgment/ order dated 18.3.2008/ 25.3.2008 convicted and sentenced the appellants for commission of Criminal Appeal No.300-DB of 2008 8 Criminal Appeal No.349-DB of 2008 offence under Sections 148, 302, 307, 325, 324, 323/ 149 IPC and Section 25 of the Arms Act, 1959. Hence, the convicts have filed the above mentioned two appeals. Petitioner Dharambir has filed the above mentioned criminal revision seeking enhancement of sentence and payment of compensation.
Learned counsel for the appellants has submitted that no reliance could be placed on the statements of the eye witnesses as they were interested witnesses being relatives of the deceased. The statements of the eye witnesses were not corroborated by any independent witness. The appellants had no motive to cause injuries to the complainant party. Rather the motive was with the complainant party to falsely involve the appellants in this case as they wanted to take possession of the land allegedly purchased by them. In fact, appellants Jagwanti and Jagbir were removing weeds from their land. Complainant party armed with weapons threatened them that they would take forcible possession of the land. They had snatched the weapons from the complainant party and had caused injuries to them in their self defence. At the most it could be said to be a case of free fight as the parties had no previous enmity with each other.
Learned State counsel, who is assisted by learned counsel for the complainant, on the other hand, has submitted that the occurrence had taken place in the fields of Chand Singh. The accused had come to the spot armed with weapons and had inflicted injuries on the person of the complainant party. Seven persons from the complainant party side had suffered injuries. Pardeep and Charanjit died at the spot, whereas, injured Parkashi died in the Criminal Appeal No.300-DB of 2008 9 Criminal Appeal No.349-DB of 2008 hospital on the same day on account of injuries suffered by them, whereas, from the side of the accused only appellant Jagwanti had suffered two superficial injuries.
Medical evidence:
PW-5 Dr. Yogeh Goel deposed that on 9.5.2006, he medico legally examined Dharambir and had found following injuries on his person :-
"1.Lacerated wound of 4 x 5 cm on left lower limb. Bone coming out. Fresh bleeding present. X-ray was advised with orthopedic opinion.
2. Lacerated wound of 2 x 3 cm near right ankle joint. Fresh bleeding present. X-ray of right foot ankle and orthopedic opinion advised .
3. Lacerated wound of 2 x 3 cm near right ankle medial side. X-ray of the right foot ankle and orthopedic opinion advised .
4. Lacerated wound of 8 x 1cm on left parietal aspect of skull with fresh bleeding present. X-ray skull advised ."
All the injuries had been caused with blunt weapon. On the same day, he medico legally examined Narender and had found following injuries on his person:-
"1. 1 x 0.5 cm incised wound on right lower leg just above the ankle. Reddish in colour. X-ray of the right lower leg and opinion of orthopedic was advised .
2. Abrasion of 1 x 1 cm on left forearm in middle on lateral aspect reddish in colour. It was a simple injury." Criminal Appeal No.300-DB of 2008 10
Criminal Appeal No.349-DB of 2008 Injury No.1 was caused by sharp edged weapon, whereas, injury No.2 has been caused with blunt weapon.
On the same day, he medico legally examined Suman and had found following injury on her person:-
" An incised wound 8 x 1 cm on right shoulder near the neck. Reddish in colour."
The injury was caused with a sharp edged weapon and was simple in nature.
On the same day, he medico legally examined Brijesh and had found following injury on his person:-
"Diffused swelling on right wrist. Tenderness was present."
The injury was caused with a blunt weapon.
On the same day, he medico legally examined Parkashi and had found following injuries on her person:-
"1. Lacerated wound of 10x 8 cm on left parietal aspect of scalp. Blood oozing. Wound is bone deep. X-ray skull and surgeon's opinion was advised .
2. Lacerated wound of 8x 8 cm. Bone deep with blood oozing on occipital region of skull. X-ray skull and surgeon's opinion was advised .
3. Multiple bruises, abrasion of various sizes and shape, red coloured. Ultra sound and surgeon's opinion was advised ."
All the injuries had been caused with a blunt weapon. He further deposed that the incised injuries on the person of Narender Criminal Appeal No.300-DB of 2008 11 Criminal Appeal No.349-DB of 2008 and Suman could have been caused with a farsa and axe. Blunt injuries were possible with a stick.
In his cross-examination, he deposed that on the same day he had also medico legally examined Jagwanti and had found following injuries on her person:-
"1. Lacerated wound of 2 cm x 0.5 cm on left parietal region of scalp.
2. Lacerated wound of 0.5 x 0.5 cm on right upper arm. Reddish in colour."
Both the injuries were simple in nature. In his re- examination by the learned public prosecutor, he stated that the injuries on the person of Jagwanti were superficial in nature.
PW-9 Dr.Manju Arora deposed that on 10.5.2006, he had conducted post mortem examination on the dead body of Parkashi and had found following injuries on her person:-
"1. Multiple small reddish contusion of varying sizes over chest, abdomen, upper limbs.
2. A lacerated wound of 8 x 9 cm size over left parietal region of scalp. Clotted blood present all around.
3. A lacerated wound of 10 x 8 cm size over occipital region of scalp. Underlying bone is fractured. There is big hymotoma in brain corresponding area of the brain. Clotted blood present alal around."
The cause of death in his opinion was shock and haemorrhage due to the injuries described above which were ante mortem in nature and sufficient to cause death in the ordinary course Criminal Appeal No.300-DB of 2008 12 Criminal Appeal No.349-DB of 2008 of nature.
PW-10 Dr.S.P.Sharma deposed that on 10.5.2006, he had conducted postmortem examination on the dead body of Pardeep and had found following injuries on his person:-
" 1. 2 ½ x 1" lacerated wound with clotted blood on the margins bone deep with fascia lacerated. On dissection there was fracture of corresponding occipital bone with left side in the left occipital area. There was subdural hymotoma and inter cerebral hymotoma in the brain left occipital area.
2. 2 ½ " incised wound transacting left ear helix just below tragus on left temple. On dissection, underlying muscle and vessels in the temple interior to the ear cut with clotted blood on the margins and the floor.
3. 2 ½" muscle deep incised wound on the left posterior auxiliary fold with clotted blood over the margins half inch while.
4. 2 ½ " incised wound on left elbow posteriorly bone deep with clotted blood over the margins with fracture of the underlying radious neck laterally. Width half inch.
5. 3" x 4" mm scratch mark on the left buttock with clotted blood.
6. 3"x 4" mm scratch mark on left interior abdominal wall in the para umbilical area.
In his opinion, deceased had died of syncope due to Criminal Appeal No.300-DB of 2008 13 Criminal Appeal No.349-DB of 2008 injury No.1 and haemorrhage from injury No.2. Injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature.
On the same day, he conducted postmortem examination on the dead body of Charanjit and had found following injuries on his person:-
"1. 1 x ½" bone deep incised wound on the right parietal area of skull just above the right ear with incised underlying fascia and muscles. With clotted blood on the margins.
2. 2 x 1" incised wound bone deep over interior part of the neck just lateral to the left side of thyroid cartilage. Underlying neck muscles and vessels on left side incised with hymotoma in the wound.
3. 2" incised wound over cheek right side bone deep with underlying muscles incised with clotted blood lateral to medially upto upper angle of mouth.
4. 2" lacerated wound over left forearm. 3" being promimal to wrist posterior medially bone deep with lacerated wound underlying muscles.
5. 2" incised wound on left little finger and hand dorso medially. ½" wide bone deep with underlying tendon cut with fracture distal phalanx hanging with tag.
6. 2X1" incised wound bone deep over right forearm posterior laterally transversely placed. 3" distal to the elbow joint with incised underlying muscles." Criminal Appeal No.300-DB of 2008 14
Criminal Appeal No.349-DB of 2008 In his opinion, the deceased had died of haemorrhage and shock due to injury No.2. All the injuries were ante mortem in nature and were sufficient to cause death in the ordinary course of nature.
Ocular version:
PW-1 injured Dharambir deposed that on 2.2.2006, he had purchased two bighas of land from his sister Sona Devi. The said land was under cultivation of appellant Jagbir for the last 3-4 years. Jagbir was not vacating the land despite its purchase by him. He had requested Jagbir several times to vacate the land. On 9.5.2006, at about 5 pm, he was present in their fields for watering the same along with his sons Pardeep and Charanjit, wife Parkashi, daughters-in-law Saroj and Suman. At about 5.30 pm, Narender and Brijesh, brothers of Saroj, came there to meet them. At about 6 pm, one Maruti car followed by two motorcycles came there and stopped in front of their fields on the road. Jagbir, Dinesh, Rakesh and Jagwanti alighted from the car. Jagbir was armed with a lathi, Dinesh was armed with an axe, Rakesh was armed with a jelli and Jagwanti was armed with a farsa. Two persons were sitting on each motorcycle. Ashok, armed with a country made pistol and Phool Singh, armed with an axe had come on one motorcycle. Manjit armed with a farsa and Mukesh armed with a stick came on the other motorcycle. All the said eight persons started moving in their direction. When they reached near them, Jagbir exhorted others to teach them (complainant party) a lesson for purchasing the land.
Immediately, Dinesh gave an axe blow on Charanjit, Rakesh inflicted Criminal Appeal No.300-DB of 2008 15 Criminal Appeal No.349-DB of 2008 a jelli blow on Pardeep, Jagwanti gave injuries on the person of Parkashi with her gandasi and Jagbir gave a lathi blow on his (PW-
1) shoulder. Ashok pointed his country made pistol in their direction.
Saroj, Suman, Brijesh and Narender moved aside out of fear. Rakesh gave axe blows on the person of Charanjit, Pardeep, Parkashi and on his both legs. Rakesh had taken axe from Phool Singh. Manjit gave a farsa blow on his head. Phool Singh gave axe blows to all of them. Jagwanti gave a farsa blow on the shoulder of Suman. Jagbir gave a lathi blow on the hands of Brijesh. Manjit gave farsa blows on the head of Narender. Due to alarm raised by his daughter-in-laws, villagers gathered at the spot. Thereafter, all the assailants fled away from the spot on their respective vehicles along with their weapons. Saroj was watching the occurrence from some distance and due to this reason, she had not sustained any injury. He was shifted to the hospital along with other injured. When he re-gained consciousness, he came to know that his wife and two sons had been killed by the assailants. He was referred to PGIMS, Rohtak for treatment.
Complainant, while appearing in the witness box as PW- 2, has deposed as per the contents of the FIR. She further stated that later on she came to know the names of the persons, who had come on motorcycles as Manjit, Mukesh, Ashok and Phool Singh. Investigation:
PW-17, Sub Inspector Rajbir Singh deposed that on 9.5.2006 at about 6.30 pm, he received a message qua the occurrence which had taken place in village Rajpur. Then he went to Criminal Appeal No.300-DB of 2008 16 Criminal Appeal No.349-DB of 2008 village Rajpur where he was told that the occurrence had taken place in the fields. Then he reached the spot and came to know that both the parties had already gone to the hospital. He reached Civil Hospital, Sonepat at about 9.30 pm. Assistant Sub Inspector Kadam Singh of Police Station Murthal was already present there. Injured Brijesh, Narender and Saroj were also present there. He took over the investigation from Assistant Sub Inspector Kadam Singh and recorded statements of witnesses. Statement of Suman had already been recorded by Assistant Sub Inspector Kadam Singh, on the basis of which formal FIR was registered.
On 10.5.2006, he again visited Civil Hospital, Sonepat and conducted inquest proceedings qua dead bodies of Parkashi and Charanjit, whereas, Assistant Sub Inspector Kadam Singh was asked to conduct the inquest proceedings qua dead body of Pardeep. Then he visited the spot and prepared rough site plan. Blood stained earth was lifted from the spot. He went to the Civil Hospital, Sonepat but the accused were not found there. It came to their notice that accused Jagwanti was injured and admitted in the hospital but her family members had taken her away. He arrested accused Jagbir, Rakesh, Dinesh and Jagwanti.
On 11.5.2006, he moved an application seeking information qua fitness of injured Dharambir. The doctor opined the said injured fit for making statement and he recorded the statement of injured Dharambir on 12.5.2006. He arrested accused Manjit, Ashok and Phool Singh.
On 13.5.2006, accused Ashok, Phool Singh and Manjit Criminal Appeal No.300-DB of 2008 17 Criminal Appeal No.349-DB of 2008 suffered their disclosure statements and on the basis of the same accused Ashok got recovered one country made .315 bore pistol from the disclosed place. Accused Phool Singh got recovered the axe from the disclosed place. Accused Manjit got recovered the farsa and motorcycle make 'Pulser" from the disclosed place.
On 14.5.2006, accused Jagbir, Rakesh, Dinesh and Jagwanti suffered their disclosure statements. Accused Rakesh got recovered the car and jelli from the disclosed place. Accused Jagbir got recovered a stick from the dicky of the same car. Accused Dinesh got recovered the axe from the dicky of the same car. Accused Jagwanti got recovered the gandasi from the disclosed place.
PW-14 Assistant Sub Inspector Kadam Singh deposed that on 9.5.2006, on receipt of information qua admission of injured Dharambir and Parkashi in the hospital at Sonepat, he reached there at about 8.30 pm. He sought information from the doctor qua fitness of the injured. Doctor declared both the injured unfit to make the statements. He recorded statement of complainant Suman and on the basis of the same, formal FIR was registered. Thereafter, Station House Officer Rajbir Singh reached the spot and took over the investigation from him. On 10.5.2006, on the directions of Station House Officer Rajbir Singh, he conducted inquest proceedings qua deceased Pardeep. Thereafter, he has corroborated the statement of PW-17 qua investigation. Discussion/ conclusion:
The prosecution case rests on eye witness account. It is Criminal Appeal No.300-DB of 2008 18 Criminal Appeal No.349-DB of 2008 a case where three persons were murdered and four persons suffered injuries from the complainant side. As per the prosecution case, injured Dharambir had purchased the land from his sister Sona Devi, which was in possession of appellant Jagbir Singh and they had sown crops on the said land. Despite requests made by injured Dharambir, appellant Jagbir had failed to vacate the said land.
A perusal of Ex.PS, rough site plan prepared by the Investigating Officer, reveals that the land which was purchased by Dharambir fell in between his other land and the fields of Chand Ram, where the occurrence has taken place. To a court question put to PW-1, Dharambir, he stated that they had reached the fields of Chand Ram at the time of occurrence as they were running to save themselves when they were chased by the accused and were surrounded by the accused in the land of Chand Ram, where the occurrence took place. The said reply given by PW-1 appears to be probable when read along with Ex.PS, rough site plan. Thus, it had been successfully established on record that the complainant party was present in their own fields when they were attacked by the accused party. The complainant party was un-armed at the time of occurrence. The appellants had come to the spot armed with weapons and had inflicted serious injuries on the person of the complainant party. Although the complainant party had also named Mukesh as one of the accused but challan was not presented against the said accused after investigation. During trial, application under Section 319 Cr.P.C. moved qua summoning of the said accused was dismissed vide order dated 20.11.2006. A combined reading of the Criminal Appeal No.300-DB of 2008 19 Criminal Appeal No.349-DB of 2008 eye witness account as well as the medical evidence shows that the ocular version is duly corroborated by the medical evidence.
The argument raised by the learned counsel for the appellants that the injuries had been caused on the person of the complainant party by accused Jagbir and his wife Jagwanti in the self defence fails to inspire confidence.
It has been held in Apex Court in Deo Narain v. The State of U.P.1973 CAR 72 (SC) as under:-
" 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 such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant, danger. This right rests on the general principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in self defence. "To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right." Criminal Appeal No.300-DB of 2008 20
Criminal Appeal No.349-DB of 2008 "But while dealing with the appellant's case curiously enough the High Court has denied him the right of private defence on the sole ground that he had given a dangerous blow with considerable force with a spear on the chest of the deceased though he himself had only received a superficial lathi blow on his head. This view of the High Court is not only unrealistic and unpractical but also contrary to law and indeed even in conflict with its own observation that in such cases the matter cannot be weighed in scales of gold."
The Apex Court in the case of Gottipulla Venkata Siva Subbrayanam & Ors. v. The State of Andhra Pradesh & Anr. 1970 CAR 105 (SC) has held that right of private defence of a person and property is recognized in all free, civilized, democratic societies within certain reasonable limits. Those limits are dictated by two consideration:
(1) that the same right was claimed by all other members of the society and (2) that it was the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with graver imminent danger to their person or property as a result of unlawful aggression, nor were they expected, by use of force, to right the wrongs done to them or to punish the wrongdoer for commission of offences. The right of private defence Criminal Appeal No.300-DB of 2008 21 Criminal Appeal No.349-DB of 2008 serves a social purpose and there was nothing more degrading to the human spirit then to run away in face of peril. This right was basically preventive and not punitive."
In the present case the complainant party was watering their fields at the time of occurrence. Although the land which has been purchased by Dharambir is adjacent to the fields of the complainant party but there is nothing on record to substantiate the plea of self defence by the accused that the complainant party had entered their land and by doing so they had posed a threat to their property or their person. There is nothing on record to suggest that crops in the fields in possession of Jagbir Singh had been damaged. So far as appellant Jagwanti is concerned, she had suffered two superficial injuries. The doctor opined that the possibility of these injuries being caused by fall on a hard surface could not be ruled out. The said injuries on the person of Jagwanti could have been suffered by her, while she was inflicting injuries on the person of the complainant party.
There is no force in the argument raised by learned counsel for the appellants that it was a case of free fight.
In order to bring the case within Exception 4 to Section 300 IPC all the following conditions have to be fulfilled:-
1. The act must be committed without pre-meditation in a sudden fight in the heat of passion;
2. when there was a sudden quarrel;
3. without the offender taking undue advantage and
4. the accused had not acted in a cruel or unusual Criminal Appeal No.300-DB of 2008 22 Criminal Appeal No.349-DB of 2008 manner.
It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden fight or not must necessarily depend upon the proved facts of each case. The cause of quarrel is not relevant nor is it relevant who offered the provocation or started the fight. A fight is a combat between two or more persons whether with or without weapons. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to either party.
In the present case seven persons suffered injuries from the complainant party, whereas, only appellant Jagwanti had suffered two superficial injuries from the accused side. Hence, in the facts and circumstances of the present case, the possibility that it was a case of free fight is ruled out.
There is also no force in the argument raised by learned counsel for the appellants that the statements of PW-1 and PW-2 could not be relied upon as they were interested witnesses. The law on this aspect is now well settled. Evidence of interested witnesses cannot be rejected straightway on the sole ground that they are interested witnesses, but the Court has to scrutinize evidence of interested witnesses with care and caution. It may also be pointed out that close relations of the deceased are, in fact, best witnesses who would naturally like to ensure that the culprits do not escape. Criminal Appeal No.300-DB of 2008 23 Criminal Appeal No.349-DB of 2008 It has been held in State of Rajasthan vs. Teja Ram and others AIR 1999 Supreme Court 1776, as under:-
"The over-insistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house. It is un- pragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbour- hood may be replete with other residents also."
In the present case, the statements of PW-1 and PW-2 cannot be doubted as the said witnesses had also suffered injuries in the occurrence. The presence of the said witnesses at the spot, stands duly established. Moreover, the said witnesses had no reason to shield the real culprits and falsely involve the appellants in this case. The statements of PW-1 and PW-2 being natural inspire Criminal Appeal No.300-DB of 2008 24 Criminal Appeal No.349-DB of 2008 confidence. Their statements are duly corroborated by medical evidence.
The argument raised by learned counsel for the appellants that the appellants had no motive to cause injuries to the complainant party is without any force. Admittedly, a dispute is going on between the parties qua the land in possession of appellant Jagbir. The said fact is evident from the answer given by appellant Jagbir to question No.1 posed to him when he was examined under Section 313 Cr.P.C. It further transpires from the perusal of the said reply that Dharambir had filed an application before the Court seeking delivery of possession. This shows that Dharambir had taken recourse to law for seeking possession of the land purchased by him. Since Dharambir had already taken recourse to law, there was no occasion for him to have falsely involved the appellants in this case. Rather appellant Jagbir was in possession of the land and with a view to retain the possession, he inflicted injuries on the person of the complainant party.
Thus, the prosecution had been successful in proving its case. The eye witness account is duly corroborated by the medical evidence. The presence of the eye witnesses at the spot cannot be doubted as they had also suffered injuries in the occurrence.
Learned counsel for the complainant has submitted that the fine imposed by the trial Court be disbursed to the complainant party as compensation as they had lost three lives in the occurrence. The said argument of the learned counsel for the complainant deserves to be accepted. Complainant Suman and Saroj have lost Criminal Appeal No.300-DB of 2008 25 Criminal Appeal No.349-DB of 2008 their husbands in the occurrence and in the interest of justice it would be appropriate to disburse the amount of fine, deposited by the appellants, as compensation, in equal shares to them.
Accordingly, Criminal Appeals No.300- DB of 2008 and 349-DB of 2008 are dismissed.
Criminal Revision No.1308 of 2008 is disposed of with a direction to the trial Court to disburse the amount of fine, deposited by the appellants, as compensation, to complainant Suman, widow of Charanjit and Saroj, widow of Pardeep in equal shares.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
January 13, 2012
anita