Punjab-Haryana High Court
Baldev Singh Son Of Karam Singh And ... vs The State Of Punjab on 13 February, 2003
Author: J.S. Narang
Bench: J.S. Narang
JUDGMENT J.S. Narang, J.
1. The prosecution version is that on 24.11.1987 at about 10.30 A.M. Mehar Singh and Gurmej Singh sons of Surjit Kaur were cutting fodder from their field in New Abadi Umarpura (Batala). Surjit Kaur, their mother was present in the open kitchen of her house and that the house is quite near the said field. She heard the raula and abuses being hurled. She reached the place and found that Baldev Singh her other son and brother of Mehar Singh was standing there who was armed with a knife, alongwith Darshan Singh, who was empty handed. Baldev Singh was stating that he had sown fodder in his field and that Mehar Singh and Gurmej Singh have no right to cut it. Darshan Singh stated that they would be taught a lesson for cutting the fodder and the dispute shall be settled once and for all. Baldev Singh accused gave a knife blow to Mehar Singh, which struck on the left flank just below the left nipple. Mehar Singh fell on the ground and that Darshan Singh gave fist blows to him. Surjit Kaur and Gurmej Singh raised raula and thereupon, the accused ran away with the knife. Thus, the occurrence was witnessed by Surjit Kaur and Gurmej Singh. After sometime, her husband Karam Singh also reached There. Mehar Singh was taken to Civil Hospital, Batala and the doctor found his condition to be precarious and referred him to Sri Guru Teg Bahadur Hospital, Amritsar. The injured was medico legally examined by Dr. Gurpal Singh, Medical Officer, Civil Hospital, Batala on the same day at about 11.15 A.M. and found following injuries on the person of Mehar Singh.
"1. An incised penetrating wound on the left lower chest in the anterior axillary line, 2 cm x 3/4 cm, and 6-1/2 cm below and lateral to left nipple. Bleeding present. Wound not probed. Surgical emphysema present on the left side of the chest and corresponding cut in the shirt and banian were also present. Kept under observation and referred to SGTB Hospital Amritsar for further treatment.
2. Complained of pain upper back.
3. Complained of headache."
2. The injury No. 1 was kept under observation and upon the basis of the surgical notes dated 24.11.1987 of Dr. Arun Chawla of Sri Guru Teg Bahadur Hospital, Amritsar. Dr. Gurpal Singh declared the aforesaid injury as dangerous to life vide his report which has been exhibited as Ex.PK/1. it has been opined that the said injury seems to have been caused with sharp edged weapon and that the injuries Nos. 2 and 3 were caused with blunt weapon. The duration of the injury caused has been given as one hour. It has also been opined that injury No. 1 was sufficient in the ordinary course of nature to cause death but for the medical aid rendered timely.
3. Upon receipt of a ruqa, ASI Avtar Singh of Police Station Sadar Batala, reached the Civil Hospital at about 3.30 P.M. and he found that the injured had already been referred to Amritsar. He went to Amritsar and presented a written request Ex.PD to Dr. Ramita Sharma she declared Mehar Singh unfit to make any statement. Since Surjit Kaur was present at the hospital, he recorded her statement which has been exhibited as Ex.PA. On the basis of the said statement, formal FIR was recorded. Karam Singh father of Mehar Singh produced before him one shirt and one Banian, both stained with blood and corresponding to the injury, which bore initials of the doctor on the edges of the cut. Both were taken into possession vide memo. Ex.PF. Again on 25.11.1987, a request was made to Dr. Ramita Sharma, which has been exhibited as Ex.PE. She declared him fit make statement. Statement of the injured was recorded under Section 161 Cr.P.C. He went to the scene of occurrence, prepared rough site plan Ex.PG. He has stated that it is due to accidental slip, the date thereon has been given as 24.11.1987. He could not collect blood stained earth as the same not washed of because of the due drops at night. Upon completion of investigation, the accused were arrested on 27.11.1987 and accordingly, they were challaned and were charged. The accused were committed for trial vide order dated 21.7.1988 passed by the Sub Divisional Judicial Magistrate, Batala. They were charged under Sections 307/324/323/34 IPC on 13.9.1988. It may be specified that Baldev Singh was charged under Section 307 IPC and 323/34 IPC and Darshan Singh was charged under Section 307/34 and 323 IPC. The accused pleaded not guilty and claimed trial.
4. The prosecution examined Surjit Kaur as PW1, Mehar Singh, injured as PW2. Satish Chander Draftsman as PW3. Dr. Gurpal Singh, Medical Officer, Civil Hospital, Batala as PW4. Dr. Ramita Sharma, Medical Officer, Primary Health Centre, Jhakolari, PW5, Avtar Singh, ASI, CIA, Staff Batala as PW6, Surjit Kaur has categorically stated that she has five sons, namely, Baldev Singh, Mehar Singh, Gurtej Singh, Randhir Singh and Jagir Singh. She has also stated that except Baldev Singh, all other four sons are residing with her. She has corroborated the fats recorded in the FIR and she has categorically stated that she saw the entire incident herself with her own eyes. It is also stated that when she tried to rescue Mehar Singh, Darshan Singh gave her a push and she fell down. She has also stated that Baldev Singh accused has been claiming the ownership of the field wherefrom Mehar Singh and Gurtej Singh were cutting the fodder. Darshan Singh accused is his "Pag Wat Bhara" (claimed as brother by exchange of turbans) of Baldev Singh. She has corroborated her statement Ex.PA which was made by her when she had taken Mehar Singh to Sri Guru Teg Bahadur Hospital, Amritsar. She has been confronted with her statement to the effect that she has not stated that she went running to the place of occurrence and that she was present in the Chaunka (Open Kitchen) and that she has also not stated that Darshan Singh is the 'Pag Wat' brother of Baldev Singh. She has also not stated that she was given a push by Baldev Singh or Darshan Singh. She has admitted the civil litigation between Baldev Singh on the one side and the rest of the family on the other side alongwith some other persons. She has admitted that there were cross security proceedings going on between Baldev Singh and Gurtej Singh on the other hand. She has also admitted that she has got registered a case under Section 326 IPC against Baldev Singh for causing injuries to her. She has categorically denied that the land in question was in possession of Baldev Singh accused. She has stated that in fact he works as Carpenter outside and that the land measures about 3 kanals 19 marlas and residential house is situated therein. However, one room out of the house is in possession of Baldev Singh. She has denied further that any effort is being made to oust Baldev Singh from that room. Mehar Singh, the injured has appeared as PW2 and he has corroborated the version recorded in the FIR. He has corroborated the fact that there is some litigation between Baldev Singh and his father but he did not know the exact nature of the litigation. He emphatically denied knowledge of any stay order having been obtained by Baldev Singh from the Civil Court in respect of the disputed land. He has also emphatically denied that the land in question was ever in possession of Baldev Singh. Gurtej Singh and Karam Singh were given up as unnecessary witnesses and so also Constable Jagdish Raj and SI Ajaib Singh and Inspector Gurpal Singh. Dr. Gurpal Singh, Medical Officer, Civil Hospital, Batala has been examined as PW4. He has proved the injuries and has also categorically stated that injury No. 1 could have caused death in the ordinary course of nature but by timely medical aid he was saved. He has also placed reliance upon the surgical notes of Dr. Arun Chawla at Sri Guru Teg Bahadur Hospital, Amritsar, as the injured had been referred to the said Hospital. The medico legal report has been exhibited as Ex.PC/1 and he has categorically stated that his opinion was based upon the surgical/operation notes and that the injury had been declared dangerous to life. He has admitted in cross-examination that he has stated first time in the course that "the injury would have been sufficient to cause death in the ordinary course of nature." which is not so stated in his opinion so recorded and exhibited as Ex.PC/1 Dr. Ramita Sharma, Medical Officer, Primary Health Centre, Jhakolari has also appeared as PW5 and has corroborated the endorsement made as Ex.PD ad Ex.PD/1 vide which she has declared the injured as unfit int eh first instance and subsequently fit for making the statement.
5. The defence version is that Baldev Singh had obtained an interim order in respect of the land, which is being claimed by the complainants as their ownership. It is alleged that he was in possession of an area measuring 3 kanals 19 marlas out of Khasra No. 144/1 total being 6 Kanal 1 Marlas. It is further pleaded that Mehar Singh and Gurtej Singh are guilty of having committed tress pass in the field belonging to the accused and that he had acted in his self defence and also defence of the property and that resultantly, if any injury has been caused, he would not be liable in any manner whatsoever. In defence Thoru Ram, Ahlmad has been examined as DW1, who has produced the copy of the order dated 28.10.1986. Apart from this plea no other plea has been taken nor any defence witness has been examined by the accused.
6. Learned counsel for the appellant has argued that the trial Court has not taken into consideration, the pivital document by virtue of which the possession of the accused stands established in respect of the land measuring 3 Kanals 19 Marlas and that he had obtained interim injunction from the trial Court. Reference has been made to Ex.DC, i.e. the application for seeking correction of Khasra Girdawari and that the Girdawari has been corrected which has been exhibited as Ex.DD. It is argued that infact, Mehar Singh and Gurtej Singh had committed the offence of tress-pass and that the accused have acted in defence and if any injury has been caused short of causing death, the accused cannot be held liable under Section 307 IPC. It is further argued that the Medico Legal Report, which is being relied upon, is not sustainable under law, reliance has been placed upon the surgical note of Dr. Arun Chawla but he has not been produced as a witness by the prosecution for corroborating the said surgical notes. Thus, the opinion that the injury stated declared dangerous to life has not been established. Resultantly, the offence under Section 307 IPC is not made out.
7. On the other hand, learned Additional Advocate General, Punjab has argued that the basic ingredients that the land belongs to the accused and he has been in possession, has not been established. The interim injunction does not establish that he is in actual physical possession and is the owner of the land in question. However, the statement of Surjit Kaur to the effect that they are in possession of the land and that the residential house has been constructed therein and only one room has been given to Baldev Singh which is in his occupation has not been demolished in any manner. She has categorically opined in her cross-examination to this effect. It is further argued that for argument sake, if the right of private defence is taken into consideration, first it has to be established that the accused was in legal possession of the land in question and that the crop was sown by him and that he had acted in self defence and that in that context it shall have to be established that the complainant/injured made an attempt to cause injury to the accused, but no such plea has been taken nor has been established by way of evidence, thus the plea of self defence is neither here nor there as the same is not corroborative from the attendant circumstances and the facts alleged to have been brought on record.
8. After hearing learned counsel for the parties, and examining the documentary evidence and the occular evidence produced on record, I am of the opinion that the appellant has not been able to establish the right of self defence. It is nowhere the case of the accused that Mehar Singh and Gurmej Singh made any attempt to cause any injury to the accused or they had acted in a manner to do so, thus, giving knife blow in self defence has not been established. Even if for argument sake, it is accepted that the accused had obtained an interim injunction which does not establish physical possession and that the complainants/injured had entered the premises, the plea of self defence would not be available but on the other hand, he could have initiated the proceedings envisaged under Order 39 (2-A) of the C.P.C. None of the such proceedings are shown to have been initiated. Thus the plea of self defence is nothing but a farce. So far as the statement of Surjit Kaur is concerned, she has categorically stated that she alongwith other sons and husband are in possession of the house which is situated in the land which is being claimed as the ownership by the accused. She has further stated that Baldev Singh is a Carpenter by profession and he works outside and is in occupation of the one room in the said house and that they have not initiated any king of proceedings to oust him. This statement has remained unrebutted and the accused have not been able to demolish the said evidence. Reliance has been placed upon the khasra girdawari Ex.PD which relates to the year 1988-89 whereas the occurrence is of November, 1987 and admittedly an application is stated to have been filed for seeking correction of the khasra girdawari, all these documents do not establish the factum of ownership in favour of the accused nor the possession has been established. Thus, keeping in view the above, I find no reason to interfere in the judgment dated 3.8.1989 of leaned Additional Sessions Judge, Gurdaspur. Resultantly, the appeal is dismissed.
9. The accused have been heard in regard to sentence as well and that no interference is called for. It is noticed that the accused have been enlarged on bail to the satisfaction of Chief Judicial Magistrate in pursuant to the order dated 5.9.1989. Since the appeal has been dismissed, the accused be taken into custody forthwith undergo sentence in accordance with law.
10. Resultantly, Criminal Revision No. 997 of 1989 is also dismissed.