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One Sukhdev Singh s/o Gulzar Singh made a statement before the Police on 29.6.1998 pointing out that there is party faction on account of Panchayat election in their village Kallowal (for short 'village'). On 2.6.1998, Paramjit Singh S/o Malook Singh (now appellant) openly fired in the air with 315 bore gun of his brother Pal Singh. A case has been registered in Police Station Lopoke and both the parties were challaned for an offence under Sections 107 and 151 Cr.P.C. The case was fixed in the Court of Sub Divisional Magistrate, Ajnala. Both the parties have come to the Court on their respective vehicles. The case was adjourned to 13.7.1998 by the Sub Divisional Magistrate, Ajnala at about 11.00 AM. He went to Tehsil compound for his personal work. Paramjit Singh went to the village alongwith his other fellows on his tractor-trolley. After some time, the complainant alongwith Avtar Singh S/o Bhajan Singh, Kunan singh S/o Harnam Singh, Mohinder Singh S/o Gulzar Singh, Baldev Singh S/o Lakha Singh left for their village in a maruti car, driven by Mahain Singh. At about 11.30 AM, when their car reached half kilometer ahead of village Issapur towards village Chogwan side, Paramjit Singh was seen blocking the passage with tractor-trolley. Car was stopped and then all the accused present in Court came down from the said tractor trolley. Accused Paramjit Singh, Pal Singh, Ranjit Singh armed with kirpan, accused Saranjit Singh and Satnam Singh armed with datar, accused Kuldip Singh armed with gandassi and accused Malook Singh came down of their tractor-trolley while raising lalkaras. On seeing them, complainant asked Mahain Singh, driver of the car, to take the same back, but while taking the car back, it got stuck in a pit and stopped. Accused Paramjit Singh and others came near their car. As the complainant party was empty handed, they ran out of the car towards village Issapur. Paramjit Singh accused raised lalkara to catch hold of Avtar Singh, as he is root cause of the dispute. The accused party ran towards Avtar Singh. Accused Paramjit Singh, Pal Singh and Ranjit Singh gave kirpan blows on the person of Avtar Singh, as a result of which he fell down on the ground. After that accused Saranjit Singh and Satnam Singh gave datar blows on the back of the neck of Avtar Singh. Kuldip Singh also gave 5/6 blows with his gandassi. Malook Singh also gave kirpan blows on the person of Avtar Singh. Brother of the complainant, Mohinder Singh made hue and cry not to kill Avtar Singh and came forward to save Avtar Singh, when Kuldip Singh gave three gandassi blows on the person of Mohinder Singh. Thereafter, all the accused ran away towards village Othian on their tractor trolley, while raising lalkaras. The complainant and Baldev Singh went to see Avtar Singh, but he had succumbed to his injuries. On the basis of such statement (Ex.PA) at about 12.30 PM, an FIR (Ex.PW3/E) was recorded at 1.30 PM. The inquest report is Ex.PF with hour of discovery of dead body at 12.30 PM. Baldev Singh and Kunan Singh are the persons, who identified the dead body. The injuries noticed in column No.10 of the inquest report are: (i) three injuries of sharp edged weapon, left back side in the head (ii) four marks of injuries on neck; mark of injury on right ear; two marks of wound on right front side of leg; two parks of wound on left buttock; mark of wound on left leg back side and left ankle and remaining injuries according to injury statement. The special report was sent to the Magistrate at Ajnala and the same was received by the said Magistrate at 6.50 PM on the date of occurrence.

Sukhdev Singh (PW-3), on whose statement the FIR was lodged, and Mohinder Singh (PW-4) injured, are real brothers. The next material witness is SI Dharampal (PW-8). The said witness has proved rough site plan Ex.PY. As per the said plan point A is the place, where dead body of Avtar Singh was lying, point B is the place from where blood stained earth was picked up, point C is the place from which blood stained parna of Avtar Singh was picked up, point D is the place, where Mohinder Singh sustained injuries, point E is the place, where Maruti car was parked. Point A is 15 karams from point E. Learned counsel for the appellants relied upon the statement of Balkar Singh (DW-6), resident of village Issapur. He has, inter alia, deposed that it was about 11.00/12.00 noon time, when he saw tractor trolley parked on the road. He also saw one car coming from the side of Ajnala. One person alighted from the car and started altercating with the driver of the tractor trolley. The person, who was altercating with the driver of the tractor, was trying to climb on the tractor trolley alongwith a kirpan in his hand and one person immediately came from the fields and he was having gandassi in his hand. He attacked with gandassi to the person, who was trying to climb tractor trolley. The person, who was trying to climb tractor trolley, got his leg struck with the chain of the trolley and was dragged to a distance of few feet. Thereafter, his leg got extracted from the chain of the tractor trolley and tractor trolley went away. When he went to the place of occurrence, he found that the person who tried to climb the trolley was lying dead. He has further deposed that the car was standing at the place, where it was initially stopped and that he only saw one person outside the car and did not find any other person there.

On the other hand, Mr. Brar, learned counsel for the prosecution has vehemently argued that the appellants have set up a case of self-defence, which is evident from the statement of Paramjit Singh recorded under Section 313 Cr.P.C. and the statement of Balkar Singh (DW-

6). It is contended that in terms of Section 105 of the Evidence Act, 1872, the burden of proving the existing circumstances to bring the case within any of the exceptions in the Indian Penal Code, is on the accused. From the cross-examinations of the prosecution witnesses and statement of accused Paramjit Singh, it is apparent that the tractor trolley was parked in the middle of the road. As per Paramjit Singh, the same was stopped on road, so as to enable him to ease himself and his children continued to sit in the tractor trolley. The stand of the accused was also that one Ram Narain was driving the tractor trolley on the aforesaid date. The appellants have not produced either the alleged driver or any of the family members alleged to be with Paramjit Singh on the date of occurrence. Therefore, it is contended that the appellants have failed to discharge the burden of proof in terms of Section 105 of the Evidence Act, 1872. It is also argued that inquest report may be relevant in the cases of circumstantial evidence, but not in the cases of eye-witness account. It is also argued that the site plan is not substantive evidence, as the same is prepared on the information given and is not a substitute of occular evidence.

The statement of Paramjit Singh, accused, recorded under Section 313 Cr.P.C, is relevant to find out the case set up in defence, which reads as under :

"In fact on the day of occurrence, I and my children were sitting in trolley and Ram Narain Baiya was driving the tractor. After crossing Issapur, I got stopped the tractor trolley and went to adjoining field to ease myself. I was having a gandassi with me. At that time, Mohinder Singh and Avtar Singh came from the side of Ajnala in a car driven by a driver. The car was stopped near tractor trolley. Avtar Singh was having a kirpan. Avtar Singh abused the driver as to why he has stopped the tractor. Ram Narain also abused in return. Then Avtar Singh tried to assault Ram Narain and Ram Narain started moving the tractor towards Chogawan. Avtar Singh raised lalkara and tried to climb the moving trolley with a naked kirpan in his hand. I cam running and caused injuries to Avtar Singh to defend Ram Narain and the children. Foot of Avtar Singh struck in hind chain of trolley and he was dragged to some distance. Then his foot get off the chain. When Mohinder Singh came forwards, I also gave him a push. Police made a false case against me. My co-accused were not present at the spot."