Punjab-Haryana High Court
Balwinder Singh And Others vs State Of Punjab on 19 February, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Crl. Appeal No.445-SB of 1998
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.445-SB of 1998
Date of decision : 19.02.2010
Balwinder Singh and others
.... Appellants
VERSUS
State of Punjab
....Respondent
CORAM:- HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. P.S. Hundal, Senior Advocate,
with Mr. Dinesh Trehan, Advocate,
for the appellants.
Mr. Mehardeep Singh, DAG, Punjab,
for the respondent - State.
KANWALJIT SINGH AHLUWALIA, J. (Oral)
Pritam Singh and his five sons namely Balwinder Singh, Lakhwinder Singh, Balbir Singh, Sukhdev Singh and Narinder Singh along with Ajit Singh and his son Satnam Singh were tried by the court of Additional Sessions Judge, Amritsar. They were named as accused in case FIR No.166 dated 29.09.1987 registered at Police Station Mehta District Amritsar under Sections 148/307/326/324/323 and 149 IPC. The learned trial Court acquitted accused Pritam Singh and Sukhdev Singh @ Kaka, whereas the other accused were convicted and sentenced as under:-
Crl. Appeal No.445-SB of 1998 -2-
(i) For offence under All the convicts namely Section 148 IPC Balwinder Singh, Lakhwinder Singh, Ajit Singh, Narinder Singh, Balbir Singh and Satnam Singh to undergo rigorous imprisonment for one year.
(ii) For offence under Convict Narinder Singh to Section 307 IPC undergo Rigorous imprisonment for five years to pay a fine of Rs.500/- in default of payment of fine to undergo further rigorous imprisonment for six months.
(iii) For offence under Convicts Balwinder Singh, Section 307/149 IPC Lakhwinder Singh, Ajit Singh, Balbir Singh and Satnam Singh to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/- in default of payment of fine, to undergo further rigorous imprisonment for six months.
(iv) For offence under Convict Balwinder Singh to Section 326 IPC undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- in default of payment of fine, to undergo further rigorous imprisonment for six months.
(v) For offence under Convicts Lakhwinder Singh, Section 326/149 IPC Ajit Singh, Narinder Singh, Balbir Singh and Satnam Singh to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- in default of payment of fine, to undergo further rigorous imprisonment for six months.
(vi) For offence under Convicts Balwinder Singh, Section 324 IPC Balbir Singh, Lakhwinder Singh and Ajit Singh to undergo rigorous imprisonment for one year.
(vii) For offence under Convicts Narinder Singh and Section 324/149 IPC Satnam Singh to undergo Crl. Appeal No.445-SB of 1998 -3- rigorous imprisonment for one year.
(viii) For offence under Convict Satnam Singh to Section 323 IPC undergo rigorous imprisonment for six months.
(ix) For offence under Convict Balwinder Singh, Section 323/149 IPC Lakhwinder Singh, Ajit Singh, Narinder Singh and Balbir Singh to undergo rigorous imprisonment for six months.
Substantive sentences on all counts shall run concurrently. In the present case, criminal proceedings were set into motion on the basis of statement Ex.PA made by Harbans Singh injured PW-1 before ASI Ajit Singh. True translation of the FIR has been reproduced by the trial court in Para 2 of its judgment. For facility of reference, it is reproduced as under:-
"I am resident of village Arjan Manga and am a cultivator. In the said village, I, Jagtar Singh son of Inder Singh and Puran Singh son of Kishan Singh Jats, residents of the village are cultivating the land measuring about 32 kanals for about 24/25 years. Pritam Singh son of Mahain Singh, Jat, resident of the village are stated to be owners of this land. Regarding its possession, both parties have filed cases in the court. Local police had also taken proceedings under Sections 107/151 and Section 145 Cr.P.C. against both parties. On 24.9.1997 at about 6/7 P.M., Pritam Singh aforesaid armed with dang along with his sons Bira armed with kirpan, Ninda armed with kirpan, Lakha armed with kirpan, Narinder Singh Fauji armed with pistol, Kaka Ram armed with dang and Ajit Singh son of Amar Singh armed with kirpan, Satnam Singh son of Ajit Singh armed with datar and Amar Singh son of Mahain Singh armed with a dang, started ploughing the disputed land with tractor. I, Crl. Appeal No.445-SB of 1998 -4- Jagtar Singh and Puran Singh had just reached the field of Hazara Singh Rasaldar to prevent them when Narinder Singh Fauji fired a shot and others started giving injuries to us with their respective weapons. Bira Singh gave a kirpan blow on my right hand, Binda gave a kirpan blow on the right wrist of Jagtar Singh. Satnam Singh gave a datar blow on the left thumb of Jagtar Singh. Puran Singh advanced to save us, when Amar Singh, Pritam Singh and Kaka with their respective dangs started beating us. Injuries were inflicted to Puran Singh on his arm, back and chest, to me on my right side chest, and left arm, and to Jagtar Singh on his right arm, chest and back. We also fought with them in defence. Later, the accused ran away with their weapons. Pritam Singh etc. had conspired, ploughed our land and inflicted injuries to us. We did not go to the hospital at night. In the morning we arranged transport and went to hospital at Amritsar where my medical examination was conducted. Action be taken."
A perusal of the FIR reveals that in the occurrence, three persons namely Jagtar Singh, Puran Singh and Harbans Singh received injuries. Investigating Agency found Balwinder Singh, Lakhwinder Singh, Balbir Singh and Pritam Singh as accused. However, Ajit Singh, Amar Singh, Satnam Singh, Sukhdev Singh @ Kaka and Narinder Singh were placed in column no.2. However, during the proceedings, Amar Singh died. The court of Sub Divisional Judicial Magistrate, Baba Bakala on 13.1.1995 committed all the eight accused to stand trial. They were charged under Sections 148/307/326/323/324/325 & 149 IPC.
Narinder Singh was substantively charged for offence under Section 307 IPC having fired a pistol shot upon Jagtar Singh Crl. Appeal No.445-SB of 1998 -5- whereas his other co-accused were charged with aid of Section 149 IPC. Balbir Singh was substantively charged for offence under Section 326 IPC and other were charged with aid of Section 149 IPC for causing grievous injuries to Harbans Singh. Balwinder Singh was substantively charged for offence under Section 324 IPC for causing injury to Jagtar Singh with kirpan and other were charged with aid of Section 149 IPC. Further Balbir Singh was substantively charged under Section 324 IPC for causing kirpan blow to Harbans Singh and other were charged with aid of Section 149 IPC. Lakhwinder Singh was substantively charged for causing kirpan blow to Harbans Singh under Section 324 IPC and other were charged with aid of Section 149 IPC. Ajit Singh was substantively charged for causing datar blow to Jagtar Singh under Section 324 IPC and other were charged with aid of Section 149 IPC. Pritam Singh accused was substantively charged under Section 325 IPC for causing grievous hurt to Harbans Singh and Puran Singh and other were charged with aid of Section 149 IPC. Sukhdev Singh was also substantively charged for offence under Section 325 IPC for having caused grievous hurt to Harbans Singh and other were charged with aid of Section 149 IPC. Satnam Singh was substantively charged for offence under Section 323 IPC for having caused hurt to Jagtar Singh and other were charged with aid of Section 149 IPC.
Harbans Singh appeared as PW-1. He reiterated as to what was stated in the FIR. He has specifically stated that he had purchased 32 kanals of land along with Jagtar Singh and Puran Singh from Pritam Singh. The land was purchased 26/27 years ago Crl. Appeal No.445-SB of 1998 -6- and they were in possession of the same. At the time of occurrence, complainant party was also in possession of the land. Occurrence has taken place because Pritam Singh accused wanted to take forcible possession of the land in question. Before the occurrence, there was a dispute between the parties. Proceedings under Sections 107/151 Cr.P.C. were initiated. The land was also subject matter of 145 Cr.P.C. proceedings. In cross-examination this witness stated that disputed land of 32 kanals was previously owned by Pritam Singh. No sale deed was executed but agreement to sell was entered into. Harbans Singh had filed a suit for specific performance of the agreement. He denied the suggestion that no suit for specific performance of the agreement was filed. He further denied that Pritam Singh did not file any suit against him and others. But, however, later on this witness stated that he might have appeared and filed a written statement in that case. He denied the suggestion that Civil Court had granted a stay in favour of Pritam Singh. However, he stated that he had filed a suit prior in time and had given a copy of the stay order to the police. He was confronted with statement Ex.PA where it was not recorded that shot fired by Narinder Singh had hit Jagtar Singh on arm. The following line of the cross-examination of PW-1, being important, is reproduced below:-
"Previously the land was in possession of Pritam Singh but I had taken possession of the land when agreement to sell was executed. I am in possession of copy of the agreement. The agreement was shown to the police."
PW-3 Jagtar Singh corroborated the testimony of PW-1 Crl. Appeal No.445-SB of 1998 -7- Harbans Singh. He stated that proceedings under Section 145 Cr.P.C. in respect of the land had started. In cross-examination, he stated that agreement to sell executed by Pritam Singh had been produced in a Court and was attached with a civil suit pending between the parties but a copy of the same was supplied to the police. He further stated that status quo was ordered by the Civil Court. The following line of his cross-examination is required to be noticed as under:-
"The accused were present in the fields before we reached there and they were going to cultivate the land when we reached there. They were going to cultivate the land with one tractor."
He further stated that none of the persons from the complainant party was armed with any weapon and nobody from the complainant side had inflicted any injury. He further stated that proceedings under Section 145 Cr.P.C. were started 2/3 months prior to the present occurrence. Proceedings under Section 145 and 107/151 Cr.P.C. were initiated at the instance of the accused. PW-4 Puran Singh also appeared to corroborate the testimony of PW-1 Harbans Singh. This witness was also reiterated that they came in possession of the land on the basis of an agreement to sell and at the time of agreement, Pritam Singh was owner in possession of the disputed land. They had filed a suit for specific performance but Pritam Singh has not filed any suit. He was confronted with his statement Ex.DB where it was recorded that they have been fighting with the accused in self-defence. He admitted that he along with Crl. Appeal No.445-SB of 1998 -8- Jagtar Singh, Harbans Singh, Hazara Singh and Tarsem Singh were challaned for inflicting injuries to Balbir Singh accused. Harbans Singh PW-1, Jagtar Singh PW-3 and Puran Singh PW-4 were injured in the occurrence. They were medico legally examined by Dr. Vasudev Sharma, PW-5. The injuries suffered by the abovesaid injured have been detailed by the trial Court in Para 3 of the judgment. To save repetition, they are not made part of this judgment. However, to be precise, it can be noticed that Jagtar Singh was examined by Dr. Vasudev Sharma PW-5 and he found injuries on his person. All injuries were declared as simple. Regarding injury No.10 it was opined that weapon used was fire arm. The injuries are not reproduced as trial court had reproduced them in the judgment Puran Singh has suffered five injuries. Injury no.2 and 4 were declared as grievous. Injury no.2 was on the right forearm. Injury no.4 was on the back of left chest. On the person of Harbans Singh five injuries were found. Injury no.1, 4 and 5 were declared as grievous.
Dr. Sudhir Tondon, PW-7 on 29.9.1987 had declared Jagtar Singh fit to make statement. Rajinder Singh Inspector appeared as PW-2. He stated that on 8.8.1987 on receipt of a complaint, proceedings under Section 145 Cr.P.C. in respect of the disputed land were initiated. He further stated that it is not in his knowledge that any civil suit was pending between the parties at the time of proceedings under Section 107/151 Cr.P.C. were initiated. Ajit Singh SI PW-6 has investigated the FIR. He recorded the statement Ex.PA of Harbans Singh on the basis of which formal FIR Ex.PA/2 was Crl. Appeal No.445-SB of 1998 -9- recorded.
Thereafter statement of the accused under Section 313 Cr.P.C. was recorded. They denied incriminating circumstances against them and pleaded false implication.
In defence DW-1 Dr. Vijay Sharma was examined. He proved one injury on the person of Dalbir Singh and one injury on the person of Mukhtiar Singh. Both the injuries were simple in nature.
Accused party tendered a judgment of civil court Ex.DC. A perusal thereof shows that Pritam Singh accused had filed a civil suit against Harbans Singh, Jagtar Singh, Puran Singh and others. Head note of the suit reveals that suit was for declaration to the effect that Pritam Singh is owner in possession of the land, particulars of which have been given in the plaint also relate to land in dispute. This suit was instituted on 10.08.1987. Plaintiff Pritam Singh accused asserted his possession on the basis of the revenue record. Defendants - complainant party denied the same and stated that they have come into possession of the land on the basis of agreement to sell. Issue no.1 formulated by the civil court was as to whether plaintiff Pritam Singh was in possession of the suit land. Second issue framed was as to whether any agreement to sell dated 22.5.1964 was entered into by the plaintiffs? If so, what is its effect? The Court taking the admission of defendants - complainant party that accused Pritam Singh had entered into agreement to sell held him to be owner of the suit land. Further Court held that in the agreement D1 there is no recital that the possession of the land in suit or any part thereof was delivered to the defendants at the time of the execution of the Crl. Appeal No.445-SB of 1998 -10- agreement. Para 13 and 14 of the judgment of the Civil Court are required to be reproduced below:-
"13. Next question which requires determination is which of the party is in possession of the land in suit. The plaintiff and his witnesses have stated that the plaintiff is in possession of the land in suit; whereas the witnesses examined by the defendants, have stated that the defendants are in possession of the land in suit. There is no recital in the agreement Rx D1 that the possession of the land in suit or any part thereof, was delivered to the defendants at the time of execution of the agreement. The defendants have not produced any revenue record to establish that they have been or in possession of the land in suit. Rather, the plaintiff has failed a certified copy of Khasra Girawari Ex.P2 wherein he is recorded in possession of the land in suit from Rabi 1984 onwards. The entries in the khasra Girdawari have evidenciary value which is not rebutted by the defendants by leading any cogent evidence except the bare statements of the witnesses. The entries in the Khasra Girdawri were made in the name of the plaintiff after duly recording reports in the Roznamcha the copies of which are Ex.P3 and Ex.P4. It was contended that the notice was not given to the defendants before effecting the correction of Khasra Girdawari in the name of the plaintiff. Suffice to say that the defendants are not recorded in possession of the suit land in the entries of Khasra Girdawari prior to Rabi 1984 and, therefore, it was not necessary to issue any notice to them. Had the defendants been in possession of the land in suit they would have applied for the corrections of the Khasra Girdawari. Thus, taking the entries in Khasra Girdawari, into account, it is held that the plaintiff is in possession of the land in suit.
Crl. Appeal No.445-SB of 1998 -11-
14. There is a report of the Local Commissioner which is dated 5.10.1987 on the file which is hereby exhibited as Ex.C1. The Local Commissioner was appointed to go to the spot and to report about the possession of the party on the suit land by the then Sub Judge, vide his order dated 21.9.87. The Local Commissioner submitted his report that the land, near the cremation ground and a pond, is in possession of the defendants and land about 2 Killas on the road of Argan Manga to Kaler is in possession of the plaintiff but the Local Commissiner did not mention the Khasra numbers which he found to be in possession of the defendants or the plaintiff. He did not record the statement of any witness and, therefore, from the report o the Local Commissioner it cannot be said that the defendants are in possession of any part of the suit land."
It will be pertinent to notice that Local Commissioner has visited the spot on 5.10.1987 and stated that some portion near the cremation ground was found in possession of the defendant - complainant party and other portion was in possession of the accused - plaintiff. However, no khasra numbers were given by the Local Commissioner. Accused have also placed on record various documents issued by the revenue authorities Ex.DB, Ex.DF and Ex.DG Khasra Girdawaris. The trial court has held its discussion regarding possession in the judgment. Para 15 of the judgment reads as under:-
"Judgment Ex.DC dated 23.02.1995 passed by Sh. Kewal Krishan Addl. Senior Sub Judge, Baba Bakala in the Civil Suit 'Pritam Singh son of Mahain Singh Vs. Harbans Singh & Ors.' admissions of PWs Harbans Singh, Jagtar Singh and Puran Singh show that the parties were asserting Crl. Appeal No.445-SB of 1998 -12- rival claim to the land which was the subject matter of agreement dated 25.05.1964, set up by the complainant party and they were also locked in the security proceedings under Section 107/151 Cr.P.C. and the land was also the subject matter of the proceedings U/s 145 Cr.P.C. It seems that the complainant party had not admitted the accused party's right in or their possession over the land in question. True, in judgment Ex.DC it was held that Pritam Singh from the accused party was the owner in possession and was also granted injunction against the complainant party regarding the land. It is also true that in jamabandies Ex.DB for 1986-87, Ex.DE for 1991-92, Khasra Girdawaries Ex.DF for Sauni and Harri, 1987 and Ex.DG from Sauni 1992 to Harii 1997, Pritam Singh is recorded in possession of the land. Judgment Ex.DC does not show if on or immediately before 24.9.1987 also, Pritam Singh from the accused party was in actual possession. It is highly unlikely that if complainant party was out of possession, they would have gone to the land, virtually unarmed and in much lesser numerical strength vis-a-vis the accused party as if to invite trouble and suffer injuries/humiliation at the hands of the accused party. It seems that in the tussle for possession over the land, the parties had been taking advantage of the development from time to time and in such a situation, the complainant party was successful in coming into possession of the land sometime before 24.9.1987 even though judgment Ex.DC and revenue records referred to above show that at the time of institution of suit on 10.08.1987 and its decision on 23.02.1995 the accused party might have been in possession. In any case, it seems that possession of the accused party on 24.9.1987 was not settled or admitted. From these circumstances the numerical strength of the complainant party, number and nature of injuries suffered by them and going by the normal human nature I Crl. Appeal No.445-SB of 1998 -13- am of the opinion that infact the complainant party was in possession of the land on 24.09.1987. I, therefore, repel the contention that the accused party had no reason or grievance to commit the offence. In my opinion the non- execution of a formal sale deed or non-production of agreement to sell set up by the complainant party are immaterial because both parties were locked in litigation over right to possession of the land and in the present criminal trial, the title or right to possession of the land is not to be adjudicated."
Counsel for the appellants has contended that it was incumbent upon the complainant party to prove its possession over the disputed land. Except the statement of PW-2 Rajinder Singh Inspector, that on 8.8.1987 proceedings under Section 145 Cr.P.C. were initiated, there was nothing on record to prove possession of the complainant party over the disputed land. No order passed by the SDM in proceedings under Section 145 Cr.P.C. has been produced on the record. Proceedings u/s 145 Cr.P.C. were initiated, admittedly when there was apprehension of a breach of peace regarding possession. Whether any receiver was appointed or whether anybody had taken the possession from the party who was in possession, prosecution case is totally silent. Accused have produced revenue record to say that they were in possession. This fact is also acknowledged by the learned trial Judge. However, the inference drawn by the learned trial Judge that Ex.DC does not show that immediately before 24.09.1987 complainant party had come in possession is to be discarded. In the Court, Harbans Singh PW-1, Jagtar Singh PW-3 and Puran Singh PW-4 have stated that they Crl. Appeal No.445-SB of 1998 -14- came into possession on the basis of agreement to sell. They have further stated in categorical terms that possession devolved upon them from Pritam Singh accused. Agreement to sell or copy thereof has not been brought on the record. This important piece of evidence was withheld from the Court purposely. A perusal of the judgment Ex.DC shows that agreement to sell was relied and exhibited as Ex.D1 before the Civil Court has no recital that any possession passed on to the complainant party. Thus evidence of the prosecution witnesses is to be taken with a pinch of salt. These witnesses have stated that they have gone at the spot unarmed. They had not caused any injury but two of the persons from the accused side namely Dalbir Singh and Mukhtiar Singh have suffered simple injuries. Therefore, this Court has to sift grain from the chaff. In view of the aforesaid discussion, it can be held as under:-
a) That accused party was in possession of the land.
b) Witnesses had gone to the disputed land.
c) Dalbir Singh and Mukhtiar Singh have suffered
simple injury which can be a result of scuffle or fall.
Having held that complainant party had gone at the place of occurrence and were unarmed the question will arise as to what offence has been committed by the present accused. Entry or trespass on the land in the possession of the accused did not give them right to cause 25 injuries out of which 5 injuries are grievous. Therefore, the accused have used more force than what was necessary. Complete right of self defence of the property had not accrued to the appellants. However, they had exceeded the right of Crl. Appeal No.445-SB of 1998 -15- their self-defence. In case, in the present case, murder had taken place, the case would have fallen under Exception 2 to Section 300 IPC and offence would fall u/s 304 IPC Part I IPC and not under Section 302 IPC . The circumstances in which 302 IPC is diluted to Section 304 Part I and II IPC in same manner Section 307 is diluted to Section 308 IPC. The benefit of Exception 2 shall accrue in cases of murderous - assault then offence will not fall under Section 307 but under Section 308 IPC. Similarly entry of the witnesses into land of the accused which was subject matter of dispute, would have caused provocation. Therefore, offence qua Balwinder Singh will not fall under Section 326 IPC but under Section 335 IPC.
In the present case, occurrence has taken place in September 1987. A period of more than 22 years is going to elapse. Sh. P.S. Hundal, Advocate states that for the last 22 years, no other occurrence had taken place and appellants have been in the corridors of litigation.
Since this Court had converted the offence under Section 307 IPC to 308 IPC and offence under Section 326 IPC to 335 IPC, it would be in the interest of justice if the appellants are released on probation under Section 4 of the Probation of Offenders Act, 1958 to maintain good conduct, behaviour and peace for a period of one year. Since it has been held that trespass and provocation falls under exception, this Court will not impose any cost of litigation. The appellants shall be called upon by the CJM, Amritsar to furnish bonds/surety bonds and shall specify the conditions therein that appellants have to maintain the good conduct, behaviour and peace Crl. Appeal No.445-SB of 1998 -16- during the period of probation, failing which they can be called upon to serve sentence of 3 years RI.
The appeal stands disposed of with the aforesaid modifications.
(KANWALJIT SINGH AHLUWALIA)
19-02-2010 JUDGE
manju