Punjab-Haryana High Court
Harchand Singh And Anr. vs State Of Punjab on 25 April, 1994
Equivalent citations: 1995CRILJ1606
JUDGMENT S.S. Grewal, J.
1. This appeal is directed against the order of Sessions Judge, Bhatinda, dated 7th November, 1992, whereby Harchand Singh and Darshan Singh accused were convicted under Section 302/34, IPC and each of them was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/- each. In default of payment of fine, they were further directed to undergo rigorous imprisonment for three months whereas Gurcharan Singh their co-accused was acquitted of the charge. The stale has however not filed any appeal against his acquittal.
2. In brief facts of the prosecution case as emerge from the first information report recorded on the statement of Sukhpal Singh are that his father Jagjit Singh (since deceased) had a licensed single barrel gun and used to work as gunman for Comrade Bakhtaur Singh of his village, whereas, Devi Dayal was the second gunman, who was deputed for the safety of Bakhtaur Singh aforesaid. For, this purpose his father used to keep his single barrel licensed gun with him. On 14-5-1990, at about 10 p.m. they were taking wheat chaff in their Eicher Tractor-trolley from their field for storing the same in the store of Cooperative Society which has been abandoned by the said society. Jagjit Singh was the Vide-President of the said society and the store was under his possession. That store adjoins the house of Harchand Singh accused, who stopped the complainant party from storing the wheat chaff in that store as he himself wanted to use that store. On 14-5-1990 at about 10-30/11 p.m. Sukhpal Singh, first informant along with his brother Gurpal Singh accompanied by Jagjit Singh and Devi Dayal aforesaid were taking their wheat chaff in their tractor-trolley towards the building of the aforesaid Cooperative Store. As they reached near the building of the Co-operative Store, Harchand Singh accused armed with a spear (Barchha) and his two sons Gurcharan Singh armed with an iron kundi and Darshan Singh armed with a Gandasa came out from their hiding place behind the wall of nearby Janj-ghar. Immediately thereafter Sukhphal Singh complainant party stopped the tractor-trolley and Jagjit Singh who was carrying his empty gun with him came down and placed his gun on the mud-guard of the tractor. Then Darshan Singh accused raised lalkara that the accused would not permit the complainant party to store wheat chaff in the building of the Co-operative store. Immediately thereafter Darshan Singh accused opened the attack and gave two gandasa blows on the head of Jagjit Singh from its sharp side. As a result thereof Jagjit Singh fell down on the ground. After Jagjit Singh had fallen on the ground Harchand Singh accused gave blows with spear one on the right thigh and other two blows on the left buttock. The complainant and the said eye-witnesses raised alarm, hearing which Darshan Singh accused reported that the accused would also deal with them. As the aforesaid eye witnesses were empty handed they ran backwards, whereas Gurcharan Singh accused gave blows with an iron kundi on the buttock and back of Jagjit Singh. Darshan Singh accused then gave 5 or 6 blows with gandasa from its reverse side on the scapular region, both the flanks and on the left eye of Jagjit Singh, Meanwhile, Sukhpal Singh who had taken shelter behind the heap of turi witnessed the occurrence in the lights of the tractor engine which were still on. Sukhpal Singh and other witnesses again raised alarm hearing which all the accused ran away from the spot. Before fleeing from the spot Gurcharan Singh accused picked up the gun of Jagjit Singh from the mud-guard of the tractor and after loading it fired a shot towards the main door of his house. Thereafter, all the three accused went back to their house along with their respective weapons and they also took the gun of Jagjit Singh with them. After about half an hour all the three accused left their house on their tractor. Gurpal Singh and Devi Dayal were sent by the first informant to inform the Panchayat. Sukhpal Singh PW came out of his place of hiding and saw that his father Jagjit Singh had already died due to the injuries received by him. After some time Jaswant Singh Sarpanch and Comrade Bakhtaur Singh reached the spot along with Gurpal Singh and Devi Dayal. Sukhpal Singh PW narrated the entire occurrence to them, and then he along with Bakhtaur Singh left for the Police Station on their tractor to lodge the report, leaving Gurpal Singh and Devi Dayal at the spot to guard the dead-body. Due to non-availability of fuel, they could not lodge the report with the police immediately. They reached the police station at 4 a.m. on the next morning of the occurrence. The special report sent in this case was received by the llaqa Magistrate at Bhatinda at 6-30 a.m. on 15-5-1990. Inspector Manohar Singh accompanied by other police officials then went to the spot, inspected the same, prepared the inquest report and sent the dead-body for post-mortem examination. He also lifted blood stained earth from near the spot, recorded the statement of the P.Ws. After the arrest of the accused and on completion of the investigation Harchand Singh accused and his two sons Darshan Singh and Gurcharan Singh were challaned and tried. Harchand Singh and Darshan Singh were convicted and sentenced whereas Gurcharan Singh accused was acquitted by the trial court, as stated earlier.
3. Learned counsel for the parties were heard and with their help we have scrutinized the record.
4. Before dealing with the arguments advanced by the learned counsel for the parties, it would be desirably to note injuries on the dead body of Jagjit Singh by Dr. Charanjit Singh PW 1, who conducted post-mortem on the next day of occurrence at about 2-50 p.m. 1(a) Incised wound 7.5 cms x 1 cm over the right occipital region. Hair were cut. Muscles and blood vessels were injured. Underlying bone was fractured. Clotted Blood was present.
(b) Incised wound 4 cms X 1 cm over the right occipito parietal region. Hair was cut, muscles and blood vessels were injured. Underlying bone was fractured. Chotted blood was present. On dissection a large haematosna was present in the brain cavity.
2. Incised wound 4 cms x 1.25 cm over the right thigh on its lateral aspect on the lower one third. Injury was bone deep. Muscles were injured. Clotted blood was present.
3(a) Incised wound 2.5 cms x 1.25 cm over the lateral side of left buttock. Bone deep, muscles and blood vessels were injured. Clotted blood was present.
(b) Incised wound 2.5 cms x 1.25 cm over the left buttock. Muscles and blood vessels were injured. Clotted blood was present.
4. Reddish bruise of 1.5 cm diameter over the lateral side of right buttock.
5. As shown in the diagram an downside up (J) shaped reddish bruises two in number one on thoraco lumber region of right back and other in the sacral region. 7 x .75 cm & 10 cms x .75 cm.
6. Five reddish bruises measuring 8 cms x 1.25 cm, 7 cms x 1.25 cm, 11 cms x 1.25 cm, 5 cms x 1.25 cm, 5.5 cms x 1.25 cm were present over the both scapular region, crossing to each other including mid-line.
7. Left eye-lids were swollen and blackish incolour.
8. Two reddish bruises 3 cms x 1.75 cm, 5 cms x 1.75 cm over the lower right chest on its front.
9. Reddish bruise on the left lower chest 3 cms x 2 cms on its posterio lateral aspect.
10. Reddish bruise 3 cm x .25 cm x 1.75 cm over the left lower chest on its front.
The cause of death in the opinion of the said doctor was due to shock and haemorrhage due to the injuries suffered by the deceased which were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature.
5. The ocular account in the instant case rests on the testimony of Sukhpal Singh PW 2 and Gurpal Singh PW 3, sons of Jagjit Singh deceased. The first and the foremost question which arises for determination is whether the presence of both the witnesses at the spot at the time of occurrence is natural, probable and convicing. Both these witnesses have given cogent reasons for their presence at the time of occurrence. They along with the deceased were bringing wheat chaff from their field in order to store it in the building which has been abandoned by the village Co-operative Society, when the occurrence* took place. In this regard testimony of the two eye witnesses finds independent corroboration from the testimony of the investigating officer who observed trolley loaded with wheat chaff parked near the place of occurrence when he inspected the spot, on the next day.
6. The next question which arises for determination is as to whether the testimony of two eyewitnesses is credible and trustworthy. The version given by the two alleged eye witnesses that their father who was working as a security guard was well versed with the handling of weapon would leave his gun on the mud-guard of the tractor instead of keeping the same with him, is not worthy of reliance. It is also difficult to believe that the accused who while armed with deadly weapons raised Lalkara and posed serious threat to the safety of the complainant party and still Jagjit Singh deceased and Devi Dayal who used to work at bodyguards and were well versed with the use of firearms remained idle spectators and made no effort whatsoever to secure the gun of Jagjit Singh, in order to protect themselves from the assault by the accused party.
7. The ocular account given by the two eye witnesses does not find ample corroboration from the medical evidence on the record as far as the injuries allegedly caused by Harchand Singh and Gurcharan Singh accused to Jagjit Singh deceased are concerned. Both these witnesses have categorically stated that after Jagjit Singh fell down on receipt of two gandasa blows at the hands of Darshan Singh accused, three blows with barchha one on the right thigh and two on the left buttock were given by Harchand Singh accused. The nature and extent of injuries on the right thigh and left buttock of the deceased do not in any manner indicate that the said injuries could be caused by a sharp pointed weapon like barchha used thrustwise. Ail these injuries are muscle deep or bone deep. In case injuries on the right thigh and left buttock of Jagjit Singh had been caused by a spear used thrustwise, in that eventuality the injuries would be must deeper and have clean cut margins. It is also significant to note that medical expert who conducted the post mortem examination on the dead-body of Jagjit Singh, in this case, has not mentioned whether the margins in case of these injuries were clean cut. In the absence of such details there does not seem to be any cogent basis for Dr. Charanjit Garg, to opine that these injuries could be caused from a spear used thrustwise. The medical opinion in this regard cannot be legally relied upon in order to lend independent corroboration to the occular account given by the two alleged eye witnesses produced by the prosecution concerning presence and participation of Harchand Singh accused is concerned.
8. The next part of the ocular account that Gurcharan Singh gave injuries with an iron Kundi on the buttock of Jagjit Singh is belied by the medical evidence on the record. The bruises on the back and right buttock of the deceased can very well be caused from the reverse side of the gandasa. Both according to the first information report as well as according to the ocular account given by Sukhpal Singh and Gurpal Singh P.Ws., Darshan Singh accused had given 5/6 blows from the reverse side of his gandasa to the deceased on the scapular region, right and left flank and over the left eye. Even otherwise injuries attributed to Gurcharan Singh accused could very well be caused by Darshan Singh accused from reverse side of the gandasa. It is significant to note that it was a night time occurrence and it does not seem probable that the two eye-witnesses who during the initial stages of the occurrence ran backwards in order to save themselves, would be able to give all the material details concerning the manner in which the occurrence took place particularly when in later stages they had witnessed the occurrence in the light of the tractor from a considerable distance. The ocular account given by the two eye-witnesses produced by the prosecution that after the accused had inflicted all the injuries including two injuries on the head of the deceased, Gurcharan Singh accused picked up the gun of the deceased which he had left on the mud-guard of the tractor, loaded aim and fired towards the door of his house hardly seems credible or worthy of reliance. Thus, it would not be safe to place implicit reliance on the ocular account given by the two eye-witnesses in this case, as far as presence and participation of Harchand Singh and Gurcharan Singh accused during the occurrence is concerned. There is inordinate and unexplained delay in lodging the first information report. There was considerable delay in sending the special report to the Illaqa Magistrate in this case. This is another important circumstance which has to be taken into consideration. Such delay per se is not fatal to the prosecution case. Its only effect is to scrutinise the prosecution evidence more thoroughly in order to disentangle truth from falsehood and to separate wheat from the chaff. It would thus be desirable to seek independent corroboration on the material aspects of the prosecution version given by the two eye-witnesses produced by the prosecution who are close relations of the deceased, whereas Devi Dayal the only independent witness has been withheld by the prosecution. Thus it can be reasonably inferred that Devi Dayal would not support the prosecution story, in its entirety, in case he had been examined as a P.W.
9. The defence plea that Darshan Singh accused acted bona fide in exercise of right of private defence of his person and property seems quite probable, in the circumstances of the present case. Darshan Singh accused came out of his house after he heard somebody abusing him in front of his house. He was armed with a gandasa at that time. He came near the outer gate of his house in order to know the identity of that person. Instead that person fired at Darshah Singh accused who saved himself as he was behind the shutter of the door. The pellets found by the investigating officer on the outer door on the next day of the occurrence in an area of 4 diameter support the plea set up by Darshan Singh accused on this point. Plea taken by Darshan Singh accused to the effect that after the assailant had fired at him and was in the process of re-loading his gun when Darshan Singh accused in order to save himself attacked that assailant with his gandasa and caused injuries in bona fide exercise of his right of self defence of his person seems quite probable, in the circumstances of the case.
10. The next question which remains to be decided is as to whether Darshan Singh had exceeded the right of private defence of his person or not. From the circumstances referred to above, it is quite evident that Darshan Singh accused had attacked Jagjit Singh deceased with a gandasa and caused him injuries while the fetter was in the process of re-loading his gun. The ocular account given by the two eye-witnesses produced by the prosecution clearly shows that after Darshan Singh accused gave two gandasa blows on the head of the deceased, the letter fell down. Thereafter he received numerous injuries which as already discussed earlier were caused by Darshan Singh accused. From all these material facts it is crystal clear that there was no need for Darshan Singh accused to inflict further injuries to the deceased after he had fallen on the ground with head injuries. It is true that right of self defence of person and property cannot be weighed in golden scales. However, it is pertinent to note that in the present case Darshan Singh accused has not received even a single injury on his person during the entire occurrence. Rather in the initial stage he gave two gandasa blows on the head of the deceased. Thus there does not seems to be any justification for him to cause further injuries to the deceased while the latter was lying on the ground. Apparently there would Be no reasonable apprehension to the life of Darshan Singh accused, as the deceased in that situation was not in a position to re-load or fire from his gun which as discussed earlier could be easily taken away from the deceased. Darshan Singh accused obviously had exceeded the right of private defence of person and property in this case. The prosecution has thus been able to bring home guilt under Section 304, Part I of the Indian Penal Code, against Darshan Singh accused beyond reasonable doubt and we convict him accordingly and sentence him to undergo imprisonment for 7 years and to pay a fine of Rs. 1000/-. In default of payment of fine he is further ordered to undergo further R.I. for three months. Harchand Singh accused is acquitted of the charge under Section 302/34, IPC. This appeal is partly allowed to the extent indicated above.