Punjab-Haryana High Court
Bhagwan Singh And Ors vs State Of Haryana on 6 September, 2017
Author: Gurvinder Singh Gill
Bench: Rajesh Bindal, Gurvinder Singh Gill
(1) Criminal Appeal-D No.174-DB of 2011 (O&M)
In the High Court of Punjab and Haryana at Chandigarh.
Criminal Appeal-D No.174-DB of 2011
Date of Decision:- September 06, 2017
Bhagwan Singh and others ......Appellants
Versus
State of Haryana ......Respondent
CORAM: Hon'ble Mr. Justice Rajesh Bindal
Hon'ble Mr. Justice Gurvinder Singh Gill
Present : Mr. Mansur Ali and Mr. H.S.Deol, Advocates,
for the appellants.
Mr. Ankur Mittal, Additional Advocate General, Haryana and
Mr. Manoj Dhankhar, Assistant Advocate General, Haryana.
Mr. Inderjit Sharma, Advocate, for the complainant.
******
Gurvinder Singh Gill, J.
1. Bhagwan Singh and others have filed the present appeal challenging judgment dated 24.12.2010 passed by learned Additional Sessions Judge, Sirsa vide which all the six appellants namely Bhagwan Singh, Dharamjeet Singh, Harnam Singh, Sukhdev @ Sukha, Davender Pal @ Angrej and Hardev @ Gurdev have been convicted for offences punishable under sections 148, 302, 326, 324 and 323 read with Section 149 of IPC and have been sentenced as under :-
1 of 27 ::: Downloaded on - 10-09-2017 18:14:33 ::: (2) Criminal Appeal-D No.174-DB of 2011 (O&M) Convicted for Sentence Imposed In default of payment offence u/s of fine 1 148 IPC R.I. for 18 months Further S.I. for one month and fine of ` 1,000/-.
2 302 IPC R.I. for life Further S.I. for six months
read with 149 IPC and fine of ` 5,000/-
3 326 IPC R.I. for 3 years Further S.I. for two months
read with 149 IPC and fine of ` 1,500/-
4 324 IPC R.I. for 18 months Further S.I. for one month
read with 149 IPC and fine of ` 1,000/-
5 323 IPC R.I. for 3 months Further S.I. for 15 days.
read with 149 IPC and fine of Rs.500/-
2. The case arises out of FIR No. 348 lodged at Police Station, Rania, District Sirsa, on 29.11.2008 under Sections 148, 302, 326, 324, 506 read with 149 of IPC, at the instance of complainant Fauja Singh whose statement (Ex.P-54) was recorded by Inspector Dharamvir Singh (PW-13) in General Hospital, Sirsa, who had gone to the hospital upon receipt of information that Fauja Singh, Gurbax Singh and Sukhchain Singh had been admitted in Hospital in injured condition. Fauja Singh in his statement (Ex.P-54) stated that he is agriculturist by profession and has a dispute with Bhagwan Singh in respect of 1½ kilas of land. The said land was in the name of his mother and they were cultivating the same. He stated that on 28.11.2008 he and his sons Sukhchain Singh and Gurbax Singh alongwith his brother Jagga Singh were sowing wheat in the aforesaid land with the help of tractor belonging to Jagga Singh. Jagga Singh, after leaving the tractor in the field, went to nearby 'Dhani' (hamlet) to bring water. The complainant alleged that at about 4.30 p.m., Bhagwan Singh armed with 'gandasa', Hardev armed with 'kappa', Dharmjeet Singh armed with 'kirpan' (sword), Jeeto Bai armed with 'gandasa', Angrej Singh armed
2 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: (3) Criminal Appeal-D No.174-DB of 2011 (O&M) with 'kirpan' (sword), Chhinda Singh armed with 'gandasa', Harnam Singh armed with 'gandasa', Sukha Singh armed with 'gandasi' came there raising 'lalkaras' that the complainant party be taught a lesson for sowing wheat. The complainant stated that Bhagwan Singh and Harnam Singh placed 'parali' (stubble) underneath the tractor and tried to set the tractor on fire but they did not allow them to do so. Thereafter, the accused started causing injuries to them. Bhagwan Singh gave a blow with 'gandasa' on the head of complainant and another blow on his right leg. Harnam Singh gave a blow with 'gandasa' on the left arm of the complainant. The complainant, as a result of the injuries fell down and while lying he saw that Angrej Singh gave a blow with 'kirpan' on head of his son Sukhchain Singh and then Sukha Singh gave a blow with 'gandasi' on the hip-joint of Sukhchain Singh. Bhagwan Singh gave a blow with 'gandasa' to Gurbax Singh on right side of head above the forehead and as a result of which he fell down. Harnam Singh gave a kick blow to the complainant while he was lying on the ground. Dharamjeet Singh gave fist blows and slap to Sukhchain. Harnam Singh gave 3-4 kick blows to his son Gurbax Singh while he was lying on the ground. All this time, Jeeto Bai was raising 'lalkaras' that the complainant party should not be spared and should be eliminated. The complainant party raised alarm 'maar diya - maar diya' upon which Jagga Singh, brother of complainant and Sona Singh, son of complainant rushed there from 'Dhani' and upon seeing them, the assailants went away with their respective weapons while proclaiming that the complainant party had been spared and in case they come to the land in question again, they would be eliminated. The complainant alleged that all the accused had caused injuries to them after sharing a common intention. Sona 3 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: (4) Criminal Appeal-D No.174-DB of 2011 (O&M) Singh and Jagga Singh took the three injured to General Hospital, Sirsa and got them admitted there.
3. Upon admission of the injured in General Hospital, Sirsa, the hospital authorities sent an intimation to the Police Station, Rania regarding admission of the injured persons and in pursuance thereof the police party went to the hospital and sought opinion of the doctor regarding fitness of the injured persons to make statement but the doctor declared all the three injured to be unfit to make statement. Gurbax Singh succumbed to his injuries, during the night itself. On the next day, Fauja Singh-injured was declared fit and his above referred statement(Ex.P-54) was recorded, on the basis of which FIR (Ex.P-51) was lodged.
4. The matter was investigated by the police. Inquest proceedings were conducted. Post-mortem examination was conducted on the dead body of Gurbax Singh. The medico-legal reports in respect of the injured were collected and the opinion of the doctors as regards the nature of injuries was also sought. The police visited the place of occurrence and prepared a rough site plan. Blood stained earth was lifted from the place of occurrence. During investigation, statements of the witnesses were recorded in terms of Section 161 Cr.P.C.
5. Accused Bhagwan Singh and Dharmjeet Singh were arrested on 30.11.2008.
During interrogation Bhagwan Singh made a disclosure statement (Ex.P-58) that he had kept 'gandasa' used in commission of crime underneath wheat- straw in 'kotha'. The accused then led the police party to the disclosed place and got the 'gandasa' recovered, which was taken into possession vide 4 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: (5) Criminal Appeal-D No.174-DB of 2011 (O&M) recovery memo Ex.P-61. Dharamjeet Singh also made a disclosure statement Ex.P-59 to the effect that he had concealed the sword used in commission of crime and got the same recovered from a room in his residential house which was taken into possession vide recovery memo Ex.P-63. Accused Harnam Singh was arrested on 2.12.2008, who upon interrogation made a disclosure statement Ex.P-65 regarding his having concealed the 'gandasa' used in the commission of crime and got the same recovered from his house which was taken into possession vide recovery memo Ex.P-67. Accused Sukhdev Singh, Hardev, Angrej Singh were arrested on 7.12.2008. Upon interrogation, Sukhdev Singh got a 'gandasi' recovered which was taken into possession vide recovery Memo Ex.P-69. Gurdev Singh produced a 'Kappa' before the Investigating Officer which was taken into possession vide recovery Memo Ex.P-72. Anjrej Singh produced a sword before the Investigating Officer which was taken into possession vide recovery memo Ex.P-75. The recovered weapons as well as the blood stained earth lifted from the place of occurrence and blood stained clothes were sent for chemical examination to Forensic Science Laboratory, Haryana and Report Ex.P-79 was obtained.
6. Upon conclusion of investigation, the police found the accused Jeeto Bai and Surjit 2 Chhinda to be innocent. However, the remaining six accused namely Bhagwan Singh, Dharamjeet Singh, Harnam Singh, Sukhdev @ Sukha, Davender Pal @ Angrej and Hardev @ Gurdev were found to have committed offences u/s 148, 324, 326, 302, 506/149 IPC and a challan was presented in the Court of learned Judicial Magistrate, Sirsa on 26.2.2009 who committed the case to the Court of Sessions vide order dated 4.3.2009. The case was assigned to the Court of Additional Sessions Judge, Sirsa who upon finding 5 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: (6) Criminal Appeal-D No.174-DB of 2011 (O&M) sufficient grounds to presume that the accused had committed offences punishable under Sections 148, 302, 326, 324, 506 read with Section 149 of IPC framed charges against the accused on 18.4.2009 to which the accused pleaded not guilty and claimed trial.
7. The prosecution in order to establish charges framed against the accused examined as many as 15 witnesses. The complainant Fauja Singh expired during the course of trial and as such his statement could not be recorded. PW- 1 Sukhchain Singh, who is an injured eye-witness, narrated the incident in the same manner as had been narrated by the complainant Fauja Singh in his statement (Ex.P-54) made to the police on the basis of which FIR was lodged. PW-1 specifically stated about the accused having caused injuries to him as well as to his father Fauja Singh and to Gurbax Singh. He attributed injuries to the accused in the same manner as had been stated by Fauja Singh in his statement(Ex.P-54). The other eye-witness in the present case is PW-4 Sona Singh, son of Fauja Singh-complainant who has corroborated the statement of PW-1 Sukhchain Singh and has stated identically regarding attribution of injuries to the accused.
8. PW-2 PHC Daya Nand is a formal official witness who tendered his affidavit Ex.P-1 in evidence. PW-3 Doctor Viresh Bhushan who had medically examined Sukhchain Singh, Gurbax Singh and Fauja Singh when they had been taken to General Hospital, Sirsa on 28.11.2008, proved MLRs in respect of their medical examination as Ex.P-3, Ex.P-5 and Ex.P-7 respectively. He deposed that he had given his opinion Ex.P-11 declaring injury no.1 on the person of Sukhchain Singh, and injury no. 2 and 3 on the persons of Fauja Singh as grievous. PW-5 Doctor N.K.Saharan who had conducted post-mortem 6 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: (7) Criminal Appeal-D No.174-DB of 2011 (O&M) examination on the dead body of Gurbax Singh proved the post-mortem report as Ex.P-20. PW-6 Doctor S.L.Aggarwal, who had radiologically examined Fauja Singh, Gurbax Singh and Sukhchain Singh, proved their X-ray reports as Ex.P26, Ex.P-27 and Ex.P-28, respectively. PW-7 Constable Kuldeep Singh who had photographed the place of occurrence proved the photographs as Ex.P-37 to Ex.P-43. PW-8 ASI Subhash Chander who was posted as MHC in Police Station, Rania tendered his affidavit as Ex.P-44 in evidence wherein he stated that the case property was deposited with him and as long as the same remained under his possession, the same was not tampered with. PW-9 Resham Singh, Revenue Patwari deposed that on 18.12.2008, he had visited the place of occurrence and prepared scaled site-plan Ex.P-45 and handed over the same to police. PW-10 Constable Nahan Singh deposed that on 29.11.2008 he had taken the photographs of the dead body and proved the same as Ex.P-47 to Ex.P-50. PW-11 EHC Dharam Pal is a formal official witness who deposed that he had delivered special reports to Illaqa Magistrate and to higher officers on 29.11.2008.
9. PW-12 SI Jagdish Chander stated that on 29.11.2008 while he was posted as SI in Police Station, Rania, Inspector Dharamvir Singh, SHO took into possession the blood stained clothes of Fauja Singh and Sukhchain Singh and that on the same day he along with Inspector Dharmavir Singh inspected place of occurrence and lifted blood stained earth and also took into possession the tractor from the place of occurrence. PW-13 Inspector Dharamvir Singh who is Investigating Officer of the present case stated in detail in respect of entire proceedings conducted in the case right from recording statement (Ex.P-
54) of the complainant upto filing of challan. PW-14 ASI Gulzari Lal stated 7 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: (8) Criminal Appeal-D No.174-DB of 2011 (O&M) that on 29.11.2008 he was posted as ASI in Police Station, Rania and remained associated with the investigation of the case. He stated in corroboration to statement of the Investigating Officer PW-13 Inspector Dharmavir Singh. PW-15 ASI Sher Singh stated that on 28.11.2008, upon receipt of intimation, he went to General Hospital, Sirsa and moved an application before the Medical Officer seeking his opinion in respect of injured Sukhchain Singh, Gurbax Singh and Fauja Singh as regards their fitness to make statement and that the doctor declared all the three injured unfit to make statement at 11.30 p.m.
10. Upon conclusion of prosecution evidence, entire incriminating evidence appearing against accused was put to them to enable them to explain the same. The accused, in their statements recorded u/s 313 Cr.P.C., took a stand that infact the complainant party armed with weapons had entered into the fields belonging to accused Bhagwan Singh which earlier belonged to complainant's mother but had been sold by her to Bhagwan Singh and regarding which there had been litigation also and that infact it is the complainant party which was the aggressor and the accused had acted in self defence. The accused stated that the complainant party had started ploughing the fields forcibly though the possession of the same had been given to the accused party through process of law. It is further pleaded therein that during the course of self defence Bhagwan Singh had caused injury to Gurbax Singh with a 'Kasia' (shovel) with which he was working in the fields.
11. The accused in order to establish their plea of self defence examined DW-1 Joginder Singh, Registration Clerk, who proved sale-deed dated 17.3.2006. He deposed that the said sale deed was got registered by Surinder Sharma as a 8 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: (9) Criminal Appeal-D No.174-DB of 2011 (O&M) Court Commissioner in favour of Bhagwan Singh. The accused also examined DW-2 Surinder Sharma, Reader, office of the District & Sessions Judge, Sirsa who desposed that on 17.3.2006 he was posted as Reader in the Court of Shri Jarnail Singh, the then learned Sub-Judge (Jr. Divn.), Sirsa and was appointed as a Court Commissioner for executing the sale-deed on behalf of Taro Bai in favour of Bhagwan Singh and that he accordingly went to the office of Sub- Registrar, Sirsa and did the needful for getting the sale deed executed. The accused, after tendering copies of various documents, closed their evidence.
12. The learned trial Court, upon appreciating the evidence on record, held that the prosecution had successfully established charges framed against the accused and accordingly convicted all the accused u/s 148, 323, 324, 326, 302 read with section 149 of IPC vide impugned judgment dated 24.12.2010. Aggrieved by the aforesaid judgment, the appellants filed the present appeal.
13. The learned counsel for the appellant, while assailing the impugned judgment, vehemently argued that the occurrence took place in the fields belonging to accused, the possession of which had been delivered to accused Bhagwan Singh through process of law, which is duly established from the documents relied upon by the accused and that since it is the complainant party which had entered into the fields of the accused party duly armed with weapons, therefore, it stands fully established that it is the complainant party which is the aggressor and injuries, if any, sustained by the complainant party had been caused in self defence while protecting the person and property of accused party. The learned counsel has further submitted that infact the police had sided with the accused party and had not filed any chargesheet against the complainant party though some of the accused had sustained injuries and that 9 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: ( 10 ) Criminal Appeal-D No.174-DB of 2011 (O&M) in view of such conduct of police, the investigation is rendered tainted and no reliance can be placed upon the same and thus the accused are entitled to be acquitted.
14. On the other hand, the learned counsel representing the State submitted that the evidence led by the prosecution fully established that infact it is only the accused party which was armed with weapons and had caused injuries leading to death of Gurbax Singh and grievous injuries on the other accused as well. He further submitted that the medical evidence led by prosecution is absolutely in tune with the ocular version lending credibillity to the case of prosecution. Learned State counsel submitted that the impugned judgment is well reasoned and there is no scope for interference with the same and prayed for dismissal of the appeal.
15. We have considered the rival submissions addressed before this Court and with able assistance of learned counsel, have also perused the record of the case.
16. As regards the factum of homicidal death of Gurbax Singh, the prosecution has led ample evidence to prove the same. Gurbax Singh had been taken to General Hospital, Sirsa in an injured condition where, in the first instance, he was examined by PW-3 Doctor Viresh Bhushan. PW-3 Doctor Viresh Bhushan has described the injury found on the person of Gurbax Singh as follows :-
" Incised wound 4 cm x 1 cm on right parietal region. It was bone deep. Fresh bleeding was present. X-Ray was advised."
17. PW-6 Doctor S.L.Aggarwal, who had radiologically examined Gurbax Singh on 28.11.2008, proved the X-ray report as Ex.P-27. He opined that the 10 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: ( 11 ) Criminal Appeal-D No.174-DB of 2011 (O&M) possibility of the injury having been caused to Gurbax Singh with gandasa could not be ruled out. Gurbax Singh, however, succumbed to his injuries shortly thereafter. PW-5 Dr. N.K.Saharan, who had conducted post-mortem examination on dead body of Gurbax Singh, proved post-mortem report as Ex.P-20 and described the injury found on the head of the dead body as follows :-
" A stitched wound 4.5 cm x 0.2 cm in size on the mid of right parietal bone region. A massive haemotoma 15 cm x 10 cm in size over mid of both parietal bone region below scalp and underlying fracture at mid of both parietal bones region. And massive haemotoma 7 cm x 5 cm in size below left parietal bone region at fracture site. Haematoma sub arachnoid in nature, dura lacerated. At dissection of injury sub cuticular infiltration of blood present."
18. PW-5 Dr. N.K.Saharan opined that the cause of death was due to injury on the head of the deceased which was ante-mortem in nature and sufficient to cause death in ordinary course of nature. PW-5 was briefly cross-examined on behalf of the accused but nothing substantial could be elicited during cross- examination so as to doubt the veracity or opinion of the witness. In these circumstances, the factum of homicidal death of Gurbax Singh stands duly established.
19. The prosecution in order to establish the existence of injuries on the person of Sukhchain Singh and Fauja Singh has examined PW-3 Dr. Viresh Bhushan who desposed that he had medically examined Sukhchain Singh on 28.11.2008 and had found the following injuries on his person:-
11 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: ( 12 ) Criminal Appeal-D No.174-DB of 2011 (O&M)
1. Incised wound 6 cm x 1 cm on left occipital-parietal region posteriorly. It was bone deep. Fresh bleeding was present. X-Ray was advised.
2. Incised wound 10 cm x 2 cm on right gluiteal region. It was muscle deep. Profuse fresh bleeding was present. X-
Ray was advised.
20. PW-3 further deposed that on the same day, he also examined Fauja Singh and found the following injuries on his person :-
1. Curved incised would 10 cm x 1.5 cm on left temporo parietal region scalp. It was bone deep. Fresh bleeding was present. X-Ray was advised.
2. Incised wound 6 cm x 1 cm on left forearm middle 1/3rd postero medially. It was bone deep. Fresh bleeding was present. X-Ray was advised.
3. Incised wound 6 cm x 1 cm on right leg lower 1/3rd anteriorly. It was bone deep. Fresh bleeding was present.
X-Ray was advised.
21. PW-3 proved the MLRs in respect of Sukhchain Singh as Ex.P-3 and in respect of Fauja Singh Ex.P-7. He opined that the possibility of injuries on the person of Fauja Singh having been caused with 'gandasa' could not be ruled out. He further deposed that the possibility of injury no. 1 on the person of Sukhchain Singh having been caused with a 'kirpan' could not be ruled out. He further stated that he gave his opinion Ex.P-11 declaring injury no.1 found on the person of Sukhchain Singh as well as injury no. 2 and 3 found on the person of Fauja Singh to be grievous in nature. The witness was cross- examined on behalf of the accused but his opinion could not be shattered on any count. In view of the above referred medical evidence led by the 12 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: ( 13 ) Criminal Appeal-D No.174-DB of 2011 (O&M) prosecution, the existence of injuries on the person of Sukhchain Singh and Fauja Singh cannot be doubted.
22. The question as to whether the aforesaid injuries had been suffered by the deceased Bhagwan Singh and injured Fauja Singh and Sukhchain Singh at the hands of the accused needs no deep probe as the testimony of the stamped witness PW-1 Sukhchain Singh is absolutely in tune with the statement made by complaianant to the police on 29.11.2008, on the basis of which FIR was lodged. His testimony also finds corroboration from the statement of PW-4 Sona Singh.
23. In any case, the accused in their statements recorded under Section 313 Cr.P.C.
have not strictly denied the occurrence though the manner of occurrence is being disputed inasmuch as the accused have taken a stand that infact it is the complainant party which had attacked the accused with weapons in the fields in possession of accused and the accused had merely acted in self-defence to protect their person and property. Accused Bhagwan Singh in his statement recorded under Section 313 Cr.P.C. has admitted that he had caused an injury to Gurbax Singh with a 'Kasia'.
24. Thus, the material question in the present case is as to whether the injuries had been caused to the complainant party in private defence. To ascertain the existance of a right of self-defence, the factum of possession over the land where the occurence took place would be an important determining factor. As per the case of the prosecution, it is the complainant party which was in possession of the land but there was a dispute between Bhagwan Singh and Fauja Singh over 1-1/2 kilas of land which originally was in the name of Taro 13 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: ( 14 ) Criminal Appeal-D No.174-DB of 2011 (O&M) Bai mother of complainant Fauja Singh. On the other hand, the accused claim that Bhagwan Singh had purchased the property in question from Taro Bai and though there was a litigation between both the parties but ultimatly the possession of the same was handed over to the accused party through Civil Court. The accused, in their statements u/s 313 Cr.P.C. have specifically pleaded that on 14.11.1995, Smt. Taro Bai mother of complainant Fauja Singh had entered into an agreement with Bhagwan Singh for sale of her land measuring 1.5 acres but since she did not honour the agreeement and did not execute the sale-deed by the sipulated date, Bhagwan Singh filed a suit for specific performance of the agreement which was decreed in his favour on 22.5.2004(Ex.DC). The sale deed was got executed through the Court on 17.3.2006. Though appeal was filed by Smt. Taro Bai in the Court of Ld. District Judge, Sirsa, but the same was dismissed on 13.9.2007. The accused pleaded that on 30.6.2008 Bhagwan Singh was put in possession under orders of the Court through Resham Patwari with police help and proceedings regarding delivery of possession were entered by Resham Singh Patwari in his daily diary and DDR No. 3 was recorded on 30.6.2008 to this effect and since then he was in possession of the same.
25. The accused in order to prove their aforesaid stand of being in possession have placed on record the Civil Court judgement dated 22.5.2004 as Ex.DC and Warrants of Possession issued by the Court of Civil Judge (Sr. Divn.) Sirsa as Ex.DG. The accused have also placed on record the report dated 30.6.2008 and copy of 'Roznamcha Wakyati' (D.D.R.) dated 30.6.2008 in respect of the proceedings recorded by Kanungo for delivery of possession as Ex. D-5 and Ex. D-6.
14 of 27
::: Downloaded on - 10-09-2017 18:14:34 :::
( 15 ) Criminal Appeal-D No.174-DB of 2011 (O&M)
26. From the above referred documents, and the testimonies of DW-1 and DW-2, it is borne out that though there had been a litigation in respect of 1.5 acres of land whch originally belonged to Taro Bai, mother of the complainant, but ultimately the case came to be decided in favour of the accused Bhagwan Singh. The sale-deed(Ex.DB) was got executed through Court. The Revenue authorities, with police help got the possession delivered to accused Bhagwan Singh. In light of the said documentary evidence, we have no hesitation in affirming the findings of the learned trial Court to the effect that it is Bhagwan Singh who was in possession of the land where occurence took place. Neither the State nor the complainant has challenged the said findings by filing any appeal.
27. Having held that the fields where the occurrence took place belonged to Bhagwan Singh who was in possession of the same, it goes without saying that the accused would have a right to protect their property. If the complainant party had entered the said fields and started sowing wheat with the help of a tractor in an apparent bid to take possession of the same, it was, but natural, for the accused party to restrain the complainant party from interfering into their possession and to do all that was needful for protecting their possession.
28. Section 96 and 97 of IPC for the sake of ready reference are reproduced below :-
96. Things done in private defence.--Nothing is an offence which is done in the exercise of the right of private defence.
97. Right of private defence of the body and of property.--Every person has a right, subject to the restrictions contained in section 99, to defend--
15 of 27
::: Downloaded on - 10-09-2017 18:14:34 :::
( 16 ) Criminal Appeal-D No.174-DB of 2011 (O&M)
(First) - His own body, and the body of any other person, against any offence affecting the human body;
(Secondly)- The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
29. The scheme of the Code further provides that the right of private defence in no case exceeds to inflicting of more hurt than is necessary to inflict for the purpose of defence.
30. Thus, the controversy in the present case is further narrowed down to the question as to whether the accused have exceeded the right of private defence or as to whether the injuries were caused within their right of private defence only. Though, the learned counsel for the appellants vehemently argued that the complainant party was also armed with deadly weapons and had infact caused injuries to some of the accused and that the genesis of occurence had been supressed, but nothing could be shown from the record in this regard. Neither any MLR in respect of any injury on the person of any the accused has been brought on record and nor any doctor has been examined to prove any factum of existance of any injury on person of any of the accused. Nor is there any other evidence to even show that the complainant party was armed with any kind of weapons. As such, the contention raised by the learned counsel for the appellants in this regard cannot be accepted and it is borne out that the complainant party was unarmed and had not caused any injury to any of the accused.
16 of 27
::: Downloaded on - 10-09-2017 18:14:34 :::
( 17 ) Criminal Appeal-D No.174-DB of 2011 (O&M)
31. The role of each of the accused is required to be examined individually in context of the evidence led by the prosecution to know the extent of injuries caused by each of the accused and the intention of the accused and as to whether the accused had exceeded the right of private defence.
32. Role of Bhagwan Singh :
As per FIR, Bhagwan Singh was armed with a 'gandasa' and had inflicted two injuries on the person of Fauja Singh i.e. one on his head and another on his right leg. It is also alleged that Bhagwan Singh caused one injury on the right side of head of deceased Gurbax Singh. PW-1 Sukhchain Singh who is a stamped witness has stated identically regarding causing of injuries by Bhagwan Singh to Fauja Singh on his head and right leg. PW-4 Sona Singh also stated in corroboration of the said statement. Both PW-1 Sukhchain Singh and PW-4 Sona Singh have stated consistently to the effect that Bhagwan Singh had also caused one injury on the right side of head of deceased Gurbax Singh. PW-3 Dr. Viresh Bhushan, who had medically examined the aforesaid Fauja Singh and Gurbax Singh in the first instance when they were taken to General Hospital, Sirsa on 28.11.2008 duly proved the MLRs in respect of Fauja Singh and Gurbax Singh as Ex.P-5 and Ex.P-7 and described the relevant injuries on their person as follows:
Injuries of Fauja Singh
1. Curved incised would 10 cm x 1.5 cm on left temporo parietal region scalp. It was bone deep. Fresh bleeding was present. X-
Ray was advised.
2. xxx xxx xxx
3. Incised wound 6 cm x 1 cm on right leg lower 1/3rd anteriorly.
17 of 27
::: Downloaded on - 10-09-2017 18:14:34 :::
( 18 ) Criminal Appeal-D No.174-DB of 2011 (O&M)
It was bone deep. Fresh bleeding was present. X-Ray was advised.
Injuries of Gurbax Singh :
1. Incised wound 4 cm x 1 cm on right parietal region. It was bone deep. Fresh bleeding was present. X-Ray was advised.
33. All the above mentioned three witnesses withstood cross-examination and their testimonies could not be shattered on any count. Bhagwan Singh in his statement recorded under Section 313 Cr.P.C. has himself also admitted causing of one injury on the head of Gurbax Singh though he is silent about any other injury to any member of the complainant party. As such, we have no hesitation in holding that Bhagwan Singh was duly armed with 'gandasa' and had caused injuries to Fauja Singh on head and right leg and had also caused an injury on head of deceased Gurbax Singh.
34. In view of the fact that the complainant party was unarmed, and the accused were not even out-numbered by complainant party, the accused Bhagwan Singh having inflicted a blow with 'gandasa' on the head and right leg of Fauja Singh as well as to Gurbax Singh on his head which proved fatal had certainly exceeded the right of private defence. Bhagwan Singh by inflicting a blow on the head of Gurbax Singh had caused his death. However, there is no such allegation that he had given repeated blows or caused any other injury to Gurbax Singh. His case would, thus, fall in Exception 2 to Section 300 of IPC, which for the sake of ready reference is reproduced below :-
Exception 2.--
Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the
18 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: ( 19 ) Criminal Appeal-D No.174-DB of 2011 (O&M) person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
35. Hon'ble the Supreme Court in a judgment reported as (2014) 5 SCC 744 State of Rajasthan vs. Manoj Kumar, in somewhat identical circumstances, where the complainant party had gone to take possession of a plot which was resisted by the accused and the accused had opened fire resulting in death of one of the complainant party, which was not armed, affirmed the judgment of the High Court holding that the accused had a right of private defence and that the High Court had correctly converted the conviction from Section 302 IPC to Section 304 Part-I IPC. In light of ratio of above cited judgement, the present case is thus held to be a case falling in Exception 2 to Section 300 of IPC, rendering the appellant Bhagwan Singh liable for offence u/s 304 Part-I and not 302 IPC.
36. Bhagwan Singh had also caused injuries with the help of 'gandasa' on the head and right leg of Fauja Singh. The injury on the head of Fauja Singh was a large injury measuring 10 cm x 1.5cm. The injury on the right leg of Fauja Singh, in any case, was declared a grievous injury as has been stated specifically by PW- 3 Dr. Viresh Bhushan. Bhagwan Singh is, thus, also guilty for having committed an offence punishable under Section 326 IPC for causing grevious hurt to Fauja Singh.
37. Role of Hardev :
As per FIR, Hardev was armed with a 'Kappa' but no injury is attributed to him in the FIR. Even as per PW-1 Sukhchain Singh, accused Hardev was armed with a 'Kappa', but no injury is attributed to him. PW-4 Sona Singh has 19 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: ( 20 ) Criminal Appeal-D No.174-DB of 2011 (O&M) stated that Hardev was armed with a 'Kappa'. Though he is also silent regarding use of 'kappa' but he stated that Hardev gave fist and slaps to Sukhchain Singh. We find that PW-4 has attempted to improve the case of prosecution by alleging that Hardev gave fist blow and slap to Sukhchain Singh when infact the FIR is absolutely silent in this regard. So much so, even the stamped witness PW-1 has not stated a word regarding Hardev having caused any kind of injury to any member of the complainant party. In these circumstances, Hardev cannot be said to have caused any injury to any member of the complainant party. Thus, Hardev can not be fastened with substantive liability for any offence. The question of his vicarious liability shall be discussed in latter part of this judgement.
38. Role of Dharamjeet Singh :
As per FIR, Dharamjeet Singh was armed with a 'kirpan'. Though he is not alleged to have used his 'kirpan' but it is stated in the FIR that he gave fist blow and slap to Sukhchain Singh. PW-1 Sukhchain Singh stated that Dharamjeet Singh gave fist blow to him. PW-4 Sona Singh stated that Dharamjeet Singh gave fist blow and slap to Sukhchain Singh. Since the testimony of victim PW-1 Sukhchain Singh himself is limited to receipt of fist blow only and he has not stated that he had received slap also, it is, thus, held that Dharamjeet Singh had given fist blow to Sukhchain Singh. Dharamjeet Singh, however, can not be said to have exceeded the right of private defence, as despite having been armed with a 'kirpan', he had merely given a fist blow to Sukhchain Singh. He did have an opportunity to use 'kirpan' but chose to give fist blow only. Thus, Dharamjeet can not be said to have committed any offence individually. The question of his vicarious liability shall be discussed 20 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: ( 21 ) Criminal Appeal-D No.174-DB of 2011 (O&M) in latter part of this judgement.
39. Role of Angrej Singh :
As per FIR, Angrej Singh was armed with a 'kirpan' and had inflicted an injury with 'kirpan' on the head of Sukhchain Singh. Both PW-1 Sukhchain Singh and PW-4 Sona Singh have stated consistently and specifically to the effect that Angrej Singh caused an injury on the head of Sukhchain Singh with 'kirpan'. A perusal of his MLR(Ex.P-3) confirms the aforesaid fact. The relevant extract from the testimony of PW-3 Dr.Viresh Bhushan, who had medically examined Sukhchain Singh and has proved his MLR(Ex.P-3) is reproduced below for the sake of ready reference :
1. Incised wound 6 cm x 1 cm on left occipital-parietal region posteriorly. It was bone deep. Fresh bleeding was present. X-Ray was advised.
2. xxx xxx xxx
40. Thus, we find that the evidence led by the prosecution leaves no manner of doubt that Angrej Singh had caused injury on the head of Sukhchain Singh with 'kirpan'. PW-3 Dr. Viresh Bhushan had declared the said injury to be grevious in nature and specifically stated to this effect. In view of the fact that the complainant party was unarmed, and the accused were not even out- numbered by complainant party, the accused Angrej Singh having inflicted a blow with 'kirpan' on the head of Sukhchain Singh had certainly exceeded the right of private defence. Angrej Singh, by causing a grevious hurt on the head of Sukhchain Singh with a 'kirpan', rendered himself liable for having committed an offence punishable under Section 326 IPC.
21 of 27
::: Downloaded on - 10-09-2017 18:14:34 :::
( 22 ) Criminal Appeal-D No.174-DB of 2011 (O&M)
41. Role of Harnam Singh :
As per allegations in FIR, Harnam Singh was armed with 'gandasa' and had inflicted a blow with the same on the left arm of Fauja Singh. It is also alleged that Harnam Singh gave kick blow to Fauja Singh and another 3-4 kick blows to Gurbax Singh. Both PW-1 Sukhchain Singh and PW-4 Sona Singh stated consistently in tune with aforesaid version in FIR. The medical evidence led by the proseuction also establishes the factum of existence of incised wound on the left arm of Fauja Singh. An extract from the testimony of PW-3 Dr.Viresh Bhushan, describing the relevant injury on the person of Fauja Singh is reproduced below :-
1. xxx xxx xxx xxx
2. Incised wound 6 cm x 1 cm on left forearm middle 1/3rd postero medially. It was bone deep. Fresh bleeding was present. X-Ray was advised.
3. xxx xxx xxx xxx
42. PW-3 Dr. Viresh Bhushan had declared the said injury to be grevious in nature and specifically stated to this effect. In view of the fact that the complainant party was unarmed, and the accused were not even out-numbered by complainant party, the accused Harnam Singh having inflicted a blow with 'gandasa' on the left arm of Fauja Singh had certainly exceeded the right of private defence. Harnam Singh, by causing a grevious hurt on the left arm of Fauja Singh with 'gandasa', rendered himself liable for having committed an offence punishable under Section 326 IPC. Further, by giving kicks to Fauja and Gurbax Singh, he rendered himself liable for having committed an offence punishable u/s 323 of IPC for causing simple hurt.
22 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: ( 23 ) Criminal Appeal-D No.174-DB of 2011 (O&M)
43. Role of Sukha :
As per FIR, Sukha was armed with a 'gandasa' and had inflicted a blow with the same on the hip joint of Sukhchain Singh. The injured PW-1 Sukhchain Singh as well as PW-4 Sona Singh have both stated consistently in tune with the allegations levelled in the FIR. The MLR (Ex.P3) in respect of Sukhchain Singh duly proved by PW-3 Dr.Viresh Bhushan also depicts the injury on the hip of Sukhchain Singh as follows :-
1 xxx xxx xxx xxx 2 Incised wound 10 cm x 2 cm on right gluiteal region. It was muscle deep. Profuse fresh bleeding was present. X-Ray was advised.
44. The testimony of the aforesaid witnesses i.e. PW-1 and PW-4 could not be shaken during cross-examination. Thus, we have no hesitation in holding that Sukha caused injury with the help of 'gandasa' on the hip-joint of Sukhchain Singh. In view of the fact that the complainant party was unarmed, and the accused were not even out-numbered by complainant party, the accused Sukha having inflicted a blow with 'gandasi' on hip-joint of Sukhchain Singh had certainly exceeded right of private defence. Sukha, by causing simple hurt on the hip joint of Sukhchain with a 'gandasi', rendered himself liable for committing offence punishable under Section 324 of IPC
45. The "individual" liability of the appellants, as found in our discussion made above may be summed up as follows:
Name of Offence found to have been committed "individually"
convict
Bhagwan 304 Part-I of IPC : For causing death of Gurbax Singh
23 of 27
::: Downloaded on - 10-09-2017 18:14:34 :::
( 24 ) Criminal Appeal-D No.174-DB of 2011 (O&M)
Singh AND
326 of IPC : For causing grevious hurt on right leg of Fauja Singh Hardev @ XXX ( Not found to have committed any offence. ) Gurdev Dharamjeet XXX ( Not exceeded right to private defence. ) Singh Davender Pal 326 of IPC : For causing grevious hurt on head of Angrej Singh @ Angrej Harnam 326 of IPC : For causing grevious hurt on left arm of Fauja Singh Singh AND 323 of IPC : For causing simple hurt by giving kicks to Fauja and Gurbax Singh.
Sukhdev @ 324 of IPC : For causing simple hurt on hip-joint of Sukhchain Sukha
46. In a case of where injuries are caused in self defence, if any one of the accused exceeds the right of private defence, then the other accused can not be held vicariously responsible unless the prosecution is able to establish that all had a pre-meditation or were bent upon causing injuries in excess of their right to private defence. In a judgment reported as 2014(5) SCC 744 State of Rajasthan Vs. Manoj Kumar, the Honourable Supreme Court, in somewhat identical circumstances, where the right of private defence had been exceeded by only one of the accused, held that guilt of each of the accused has to be dealt with individually. Hon'ble Supreme Court affirmed the judgment of the High Court wherein it had been held that Section 34 IPC was not attracted. In another recent case reported as 2017 AIR (SC) 393 Uday Singh v. State of Madhya Pradesh, Hon'ble the Supreme Court, while dealing with the a case vicarious liability of members of unlawful assembly held that merely because some persons assembled, all of them cannot be condemned 'ipso facto' as 24 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: ( 25 ) Criminal Appeal-D No.174-DB of 2011 (O&M) being members of that unlawful assembly. It was incumbent upon the prosecution to prove that the commission of the offence was by any member of an unlawful assembly and such offence must have been committed in prosecution of the common object of the unlawful assembly or such that the members of the assembly knew that it was likely to be committed.
47. It is worth noticing that while appellant No.2 Dharamjeet Singh, appellant no.
5 Davender Pal @ Angrej and appellant No. 6 Hardev @ Gurdev are sons of appellant No.1 Bhagwan Singh, appellant No. 3 Harnam Singh and appellant no. 4 Sukhdev @ Sukha are not shown to be related to Bhagwan Singh. The fact that all the accused had gone together with 'gandasas', 'gandasi' and 'kirpan' would show that though they had initially gone together to defend their possession. At that point of time the accused party may not be knowing as to whether the opposite party was carrying any weapon or not. However, some of the accused, apparently, have exceeded their right of private defence as has been discussed above, while some despite being armed chose to give fist blows only and remained well within their right of private defence in the given circumstances. In these circumstances all of them cannot be said to be vicariously liable for the acts of other accused accompanying them. Further it is also borne out that the accused did not really act in a merciless manner and it is not the case that the accused caused multiple injuries to deceased Gurbax Singh deceased. The liability of the accused has thus to be fastened in respect of the individual acts of each of the accused.
48. As a sequel to our discussion made above, while the appellants Hardev Singh and Dharamjeet Singh are acquitted of all the charges framed against them, the appeal qua the remaining four appellants namely Bhagwan Singh, Harnam 25 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: ( 26 ) Criminal Appeal-D No.174-DB of 2011 (O&M) Singh, Sukhdev Singh @ Sukha and Devender Pal @ Angrej is partly allowed and their conviction is altered as follows:
(i) All the appellants are acquitted of charges framed against them for offence u/s 148 of IPC.
(ii) The conviction of Bhagwan Singh u/s 302 IPC is altered and he is convicted for offence punishable u/s 304 Part-I of IPC instead of 302 IPC.
(iii) The conviction of appellants Harnam Singh, Sukhdev Singh @ Sukha and Devender Pal @ Angrej for offence u/s 302 IPC read with 149 of IPC is set aside and they are acquitted of said charges.
(iv) The conviction of appellants Bhagwan Singh, Harnam Singh and Devender Pal @ Angrej u/s 326 of IPC for causing grevious hurt individually to Fauja Singh and Sukhchain offence is upheld. However, their conviction u/s 324 read with 149 of IPC is set aside.
(v) The conviction of appellant Sukhdev Singh @ Sukha u/s 324 of IPC for causing simple hurt to Sukhchain offence is upheld. However, his conviction u/s 326 read with 149 of IPC is set aside.
(vi) The conviction of appellant Harnam Singh u/s 323 of IPC for causing simple hurt to Fauja Singh and Gurbax Singh is upheld. However, the conviction of appellants Bhagwan Singh, Sukhdev Singh @ Sukha and Devender Pal @ Angrej u/s 323 read with 149 of IPC is set aside.
49. Appellant Bhagwan Singh is sentenced to undergo rigorous imprisonment for a period of 10 years and is imposed a fine of ` 50,000/- for committing offence under section 304 Part-I of IPC. In default of payment of fine, he shall further undergo simple imprisonment for 1 year. The appellants Bhagwan Singh, Harnam Singh and Devender Pal @ Angrej whose conviction u/s 326 of IPC has been affirmed; appellant Sukhdev Singh @ Sukha whose conviction under 26 of 27 ::: Downloaded on - 10-09-2017 18:14:34 ::: ( 27 ) Criminal Appeal-D No.174-DB of 2011 (O&M) Section 324 of IPC has been affirmed; and Harnam Singh whose conviction under Section 323 has been affirmed on the basis of their substantive liability shall undergo punishment in respect of said offences as was imposed by the trial Court for such offences, though with the aid of section 149 IPC. The period of imprisonment already undergone shall be set off. The appeal stands partly accepted in the manner stated above.
( Rajesh Bindal ) ( Gurvinder Singh Gill )
Judge Judge
September 06, 2017
kamal
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
27 of 27
::: Downloaded on - 10-09-2017 18:14:34 :::