HARDIAL SINGH AND OTHERSversusSTATE OF PUNJAB

A                      HARDIAL SINGH AND OTHERS
                                         v.
                              STATE OF PUNJAB
                                                                                        -
                                  APRIL 9, 1996

B             [M.K. MUKHERJEE AND G.B. PATTANAIK, JJ.]

          Indian Penal Code, 186(}-Sections 302, 326/149, 148, 326-Prosecutiofl
    of 5 accused for offences under-Acquittal of two accuse~onviction of
                                                                                    •
    three acrnsed by applying Sec. 149 IPC-Wlzet11er sustainable-Held, Na-In-
c   dividual ove1t acts of appellants to be considered.

          The three appellants alongwith the two acquitted accused were
    prosecuted for offences u/Ss. 148, 302/149 IPC on the allegation that they
    came armed with guns and rifles and fired ~t the deceased as well as the
    injured PW 5 and other members of the informant party who were cultivat-
D   ing the land. All the five accused were related to each other. The Tuo
    accused were acquitted, giving them benefit bf doubt on a conclusion that
    the prosecution evidence did not prove the, charge against them beyond
    reasonable doubt. The three appellants wer~ convicted differently, He was
    convicted u/s 302, 148, 326/149 IPC, appellant u/s 148, 302/149 and 326 IPC
E   and appellant G u/s 148, 302/149 IPC. High Court confirmed their convic-
    !ions. This appeal had been filed against the jndgment of the High Court.

          The appellants contended that five kn~wn persons being charged u/s
    302/149 !PC and two of them having been acquitted of the charge the
    conviction of the three appellants by taking recourse to Section 149 IPC
F   was unsustainable; that the entire prosecution case based on the evidences
    of PWs 4 and 5 should not be accepted in view of inherent inconsistencies
    accepted in their statements and their evidence being contrary to the
    medical evidence; that it being a case of free fight, the individual accused
    persons might thus be liable for their individual acts and could not be
    made conjointly liable; that appellant H having sustained serious injuries
G
    in course of the incident, the only conclusion possible was that he had fired
    from his gun in private defence of his person and therefore, he could not
    be held liable for the offence of murder.
                                                                        I
                                                                       '
         The respondent State submitted that in view of the acquittal of the
H   two accused persons, provision of Section 149 !PC could not be applied
                                      114
                                                                                    •
                                                                                        -
                          HARDIALSINGH v. STATE                           115

    and though under law it was possible for a court to convict the accuse.d A
    persons charged u/s 302/149 !PC by altering it to one u/s. 302/34 !PC but
    in this case on the evidence on record it being difficult to convict the three
    appellants u/s 302/34 !PC, the individual overt acts of the appellants had
    to be considered and that in view of the positive evidence of PWs 4 and 5
    conviction of appellant H u/s 302 !PC and of two other appellants u/s 326 B
    !PC was unassailable and could not be interfered with.

         Allowing the appeals in part, this Court
•
         · HELD : l.l. The death of deceased was on account of the gun shot
    injury on his chest which in turn had been caused on account of tiring C
    from the gun of appellant H. So far as the two other appellants were
    concerned, the gun shot from the appellant G had caused an injury on the
    right forearm of the deceased and the gun shot from the appellant U had
    caused an injury on the thigh of P.W. 5. The evidence of P.Ws. 4 and 5 had
    been believed by the two courts below and there was no ground to discard D
    that testimony. Appellant H had sustained one lacerated inl£t wound on
    the posterio medical aspect of right leg having a corresponding lacerated
    outlet wound, the injury was grievous in nature as the X-ray report
    indicated that the right fibula had been fractured. But that by itself cannot
    be basis to establish a claim of right of private defence of person. The land
    in question was admittedly in cultivation of the informant party and the E
    accused persons reached the place fully armed with guns and rifles. As
    stated by P.W. 4 when the informant party did not stop the ploughing, it
    was accused G who first tired which hit the right arm of the deceased and
    then in self defence P.W. 5 tired two shots from his gun and thereafter
    accused H tired from his gun which hit the chest of the deceased. Accused F
    U also had tired from his rifle which hit the left thigh of P.W. 5. It was the
    accused persons who must be held to be aggressor and the plea of right of
    private defence of person could not be available to them. It was the gun
    shot from two firings made by PWS in self defence which had caused the
    injury on accused H. When the accused persons came anned to the place
    of occurrence which was in lawful possession of the informant party and G
    who bad obtained injunction from the court of law, the question of claim
    of right of private defence by the accused did not arise and more so in the
    sequence of events as narrated by P.Ws. 4 and 5. [120B-C; E-H; 121-A·B)

          1.2. The conviction of appellant H u/s 302 IPC and the sentence of H
    116                  SUPREME COURT REPORTS [1996) SUPP. 1 S.C.R.

A   im1irisonment for life thereuuder are upheld. The conviction of appellant
    u/s 326 IPC and sentence of R.I. for two years on that score and that of
    appellant G u/s 326 IPC and sentence of R.I. for two years are confirmed.
                                                                    [121-E-G]
          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
B   Nos. 117-18 of 1986.

         From the Judgment and Order dated 12.9.83 of the Punjab &
    Haryana High Court in Cr!. A No. 388-DB of 1983.

          R.L. Kohli, M.S. Honda! and R.C. Kohli for the Appellants.
c         H.M. Singh for R.S. Suri for the Respondents.

          The Judgment of the Court was delivered by

           G.B. PATTANAIK, J. The three appellants being unsuccessful in the
D   appeal filed by tbem in the High Court and their cdnviction and sentence
    passed by the learned Additional Sessions Judge, AmritC!t, having been
    confirmed have approached this Court. These three alongwith the ac-
    quitted Amar Singh and Dalip Singh stood their ,trial in the Court of
    Additional Sessions Judge, Amritsar under Sections 148, 302/149, 326/149
    I.P.C. on the allegation that they came armed with gons and rifles and fired
E   at the deceased as well as the injured P.W. 5 and other members of the
    informant party who were cultivating the land belonging to Khazan Singh
    in village Rekh Jhitan. It is to be noted that all the five accused persons
    are related to each other, accused Dalip Singh being the father and the
    rest four are his sons. The learned Additional Sessions Judge acquitted
F   accused Dalip Singh and Amar Singh giving them benefit of doubt on a
    conclusion that the prosecution evidence does not prove the charge against
    them beyond reasonable doubt. But so far as the three appellants are
    concerned, the. learned Additional Sessions Judge convicted them and
    sentenced them differently. Appellant Hardial Singh was convicted under
    Section 302 !PC and was sentenced to imprisonment for life. He was also
G   convicted under Selection 148 I.P.C. and sentenced to R.I. for one year
    and under Section 326/149 I.P.C. was sentenced to R.I. for two years.
    Appellant Uttam Singh was convicted under Section 302/149 !PC and was
    sentenced to imprisonment for life. He was also convicted under Section
    148 IPC and was sentenced to R.I. for one year and convicted under
H   Section 326 !PC and was sentenced to R.I. for two years. Appellant
             HARDIALSINGH v.STATE[PATIANAIK,J.]                      117

Gurnam Singh was also convicted under Section 302/149 !PC and was           A
sentenced to imprisonment for life. He was also convicted under Section
148 1.P.C. and sentenced to R.I. for one year and convicted under Section
326/149 !PC and sentenced to R.l. for two years. The sentences of im-
prisonment of each of the appellants were ordered to run concurrently.
They moved the High Court against the conviction and sentence in
                                                                            B
Criminal Appeal No. 388 of 1983 but the High Court dismissed the appeal
and confirmed the conviction and sentence and, hence, the present appeal.

       Prosecution case in nutshell is that a piece of land belonging to one
Khazan Singh of village Rekh Jhitan was being cultivated by Kulwant Singh
P.W.4 and his father Guizar Singh P.W. 10, Amar Singh and Harbans Singh     c
for the last so many years. The appellants' family became interested in
dispossessing Kulwant Singh and his father and apprehending forcible
eviction by the appellants, said Guizar Singh P.W. 10 filed a Civil Suit and
had obtained an order of injunction on December 24, 1980. On the date
of occurrence, on 31st of October 1981 Kulwant Singh P.W. 4 had made D
arrangements for getting the land ploughed with a tractor and accordingly
approached P.W. 9 who was also distantly related to Kulwant Singh. The
further prosecution case is that the said P.W.9, Jagir Singh the deceased,
P.W. 4 and 5 were ploughing the land and P.W. 5 had brought his licensed
gun as they were apprehending trouble from the accused persons. While
the ploughing operation was going on the accused persons armed with E
rifles and guns appeared at the spot and Gurnam Singh gave a lalkara not
to plough further. P.W. 4 Kulwant Singh, however, asked P.W. 5 Jagir Singh
to continue ploughing operation. Gurnam Singh then told his other com-
panions that the people should be taught a lesson for ploughing land. The
appellants then took their position behind the paddy straw ridge and F
Gurnam Singh fired from his rifle which hit P.W. 5 who was operating the
tractor. Said P.W. 5 then rushed towards the boundary to pick up his 12
bore gun and al that point of time appellant Uttam Singh fired a shot which
hit P.W. 5 on his lift thigh. P.W. 5 then fired two shots in his defence.
Appellant Hardial Singh fired another shot which hit the deceased Jagir G
Singh on his chest and he fell down. Amar Singh and Dalip Singh also fired
shots from their respective weapons and none of the shots hit any of the
complainant party. The appellants and their companions then left the place
\vilh their respective weapons. Kulwant Singh P.W. 4 immediately went to
Police Statior. Jandiala at a distance of 8 kms from the place of occurrence
and lodged the FIR at 11 A.M. P.W. 15 the Investigating Officer recorded H
    118                   SUPREME COURT REPORTS [1996] SUPP. l S.C.R.

A the First Information Report and left for the place for investigating into
    the offence. At the place of occurrence he prepared the Inquest Report
    and sent the dead body of deceased Jagir Singh for Post Mortem examina-
    tion. The Investigating Officer also sent the injured P.W. 5 to Hospital at
    Amritsar for treatment and medical examination: The Investigating Officer
    collected some blood stained earth from the place where the deceased
B
    .Jagir Singh was lying and collected some empty c;artridges from that place.
    From another place also he seized six empties and some live cartridges and
    recorded that statement of some of the witnesses under Section 161 of the
    Code of Criminal Procedure. On completion bf investigation he finally
                                                                                      •
    submitted the chargesheet and on being committed the accused persons
C   stood their trial as already stated. In support of tqe prosecution case a large
    number of witnesses were examined of whom P.Ws. 4 and 5 arc the
    eye-witnesses to the occurrence. P.W. 2 is the Doctor who had examined
    the injured P.W 5. as well as the injured accused Hardial Singh. The other
    Doctor was examined as P.W. 1 had conducted the Post Mortem examina-
D   ti on on the dead body of deceased J agir Singh. Jl.elying upon the statement
    of P.Ws 4 and 5 and being of the opinion that the medical evidence
    corroborates the ocular statement, the learned Additional Sessions Judge
    convicted the three appellants as already stated but since there was no
    prosecution evidence to establish that Dalip Singh and Amar Singh had
    fired any shot which hit any of the members of the prosecution party, they
E   were given benefit of doubt and were acquitted. No appeal had been filed
    against the said order of acquittal of Dalip Singh and Amar Singh but the
    appellants' appeal against their conviction and 'sentence was dismissed by
    the High Court on a reappreciation of the evidence of P.Ws. 4 and 5 as
    well as the medical evidence.
F
          Mr. Kohli, the learned senior counsel appearing for the appellants
    contended that five known persons being charged under Section 302/149
    !PC and two of them having been acquitted of the charge the courts below
    committed gross of law in convicting the rest three accused persons by
    taking recourse to Section 149 !PC. He further contended that the entire
G   prosecution case as unfolded through the evidence of P.Ws. 4 and 5 should
    not be accepted in view of inherent inconsisteqcies in their statements and
    in view of the fact that their evidence is contrary to the medical evidence.
    Mr. Kohli further urged that from the narration of facts it must be held
    that it was a case of free fight and, therefore, the individual accused
H   persons may thus be liable for their individual acts and cannot be conjointly

                                                                                      •
•
                  HARDIALSINGH v. STATE[PATIANAIK,J.]                       119

    liable. According to Mr. Kohli, if the prosecution case is examined from A -
    this angle and taking into consideration the serious injuries which appellant
    Hardial had sustained in course of the incident, the only conclusion pos-
    sible is that said Hardial had fired from his gun in private defence of his
    person and, therefore, he cannot be held liable for the offence of murder.
    Learned counsel appearing for the State fairly submitted that in view of B
    the acquittal of the two accused persons provision of Section 149 !PC could
    not have been pressed into service and the courts below committed error
    on that score. He further stated that though under law it is possible for a
    court to convict the accused persons who were charged under Sections
    302/149 I.P.C., if that charge fails by altering it to one under Sections 302/34
    I.P.C.. but in the case in hand on the evidence on record it will be difficult C
    to convict the appellants Uttam Singh, Gurnam Singh and Hardial Singh
    under Section 302/34 !PC and necessarily therefore, the individual overt-
    acts of the appellants have to be considered. According to the learned
    counsel for the respondent, in view of the positive evidence of P.Ws. 4 and
    5 conviction of appellant Hardial Singh under Section 302 !PC is unassail- D
    able and cannot be interfered with. So far as the two other appellants are
    concerned, according to him their conviction under Section 326 !PC
    remains unassailable. We find sufficient force in the submission of the
    learned counsel appearing for the State.

           P.W. 4 Kulwant Singh had stated in his evidence that while they were E
    cultivating the land in question accused Gurnam Singh challenged them
    and asked them not to plough the land. But when notwithstanding the said
    order of Gurnam Singh P.W. 5 continued the ploughing of the land, said
    Gurnam Singh fired from his rifle which hit the deceased on his right arm,
    at that point of time P.W.5 lifted his gun and fired two shots in self defence.
                                                                                    F
    Uttam Singh fired from his rifle which hit the witness Jagir Singh P.W. 5
    then Hardial Singh fired from his rifle which hit the deceased Jagir Singh
    on his chest and the deceased fell down. Thereafter when they raised alarm
    the accused persons-left the place. P.W. 5 substantially corroborates·the
    aforesaid version of P.W.4. It is thus apparent that the shot alleged to have
    been fired by Gurnam Singh hit the right arm of the deceased and the gun G
    shot which had been fired by Hardial Singh hit the chest of the deceased.
    The gun shot fired by Uttam Singh hit the left thigh of Jagir Singh P.W. 5.
    P.W. 1 who had conducted the Post Mortem examination on the dead body
    of the deceased found one inlet wound as well as outlet wound on the right
    forearm of the deceased and both those injuries correspond with each
    other. He also found an inlet would of 1 cm x 3/4 cm oval in shape on the H
    120                  SUPREME COURT REPORT~ [1996] SUPP. 1 S.C.R.

A front and left side of chest 6 cm above left nipple. On dissection he found
  that the bullet after piercing the chest had entered the third intercostal
  space and then piercing the left pleura and upper l0 be of the left lung had
  also ruptured the heart. The bullet was found in the right cavity. In his
  opinion the death was due to haemorrhage as a result of the injury to heart,
  left lung, liver and mesenteric vessels which had been caused on account
B of the gun shot injury on the chest. It would thus be crystal clear that the
  death of deceased Jagir Singh was on account of the gun shot injury on his
  chest which in turn had been caused on account of firing from the gun of
  appellant Hardial Singh. So far as the two otller appellants are concerned,     .
  the gun shot from the appellant Gurnam Singh had' caused an injury on the
  right forearm of the deceased and the gun shot from the appellant Uttam
c Singh had caused an injury on the thigh of P.W. 5. At this stage, it would
  be appropriate for us to examine the contention of Mr. Kohli, the learned
  counsel for appellant with regard to the so-called right of private defence
  of person of appellant Hardial Singh and whether ,the evidence of P.Ws. 4
  and 5 should at all be believed or not. So far as the testimony of P. Ws. 4
D and 5 is concerned on a thorough scrutiny of the same we have not found
  anything in their cross examination to impeach their veracity. On the other
  hand, both of them have narrated the occurrence which also gets ample
  corroboration from the medical evidence as discussed earlier. The evidence
  of those two witnesses have been believed by the l:Wo courts below and we
  see no ground to discard that testimony. The submission of Mr. Kohli to
E discard their evidence, therefore, cannot be sustained. Coming to the
  question of claim of right of private defence of appellant Hardial Singh, it
  is no doubt true that Hardial Singh had sustained one lacerated inlet
  wound 1 cm x 3/4 cm on the posterio medical aspect of right leg having a
  corresponding lacerated outlet wound as found by the Doctor P.W. 2 and
  the injury was grievous in nature as the X-ray report indicated that the
F right fibula had been fractured. But that be itself cannot be the basis to
  establish a claim of right of private defence of person. The land in question
  was admittedly in cultivation of the informant party and the accused
  persons reached the place fully armed with guns ,and rifles. As stated by
  P.W. 4 when the informant pariy did not stop the ploughing, it is accused
G Gurnam Singh who first fired which hit the right arm of the deceased and
  then in self defence P.W.5 fired two shots from his gun and thereafter
  Hardial Singh fired from his gun which hit the chest of the deceased.
  Accused Uttarn Singh also had fired from his rifle which hit the left thigh
  of P.W. 5. This being the sequence of the events, it is the accused persons
  who must be held to be aggressor and the plea of right of private defence
H of person cannot be available to them. It is then gun shots from lwo firings

                                                                                  •
              HARDIALS!NGH v. STATE [PATTANAIK,.1.]                   121

made by P.W. 5 in self defence which had caused the injury on Hardial A
Singh. When the accused persons come armed to the place of occurrence
which was in lawful possession of the informant party and who had ob-
tained injunction from the court of law, the question of claim of right of
private defence by the accused does not arise and more so in the sequence
of events as unfolded through the evidence of P.Ws. 4 and 5. It is difficult
for us to accept the pica of right of private defence of person of accused B
Hardial Singh. Necessarily, therefore, on the evidence of the Doctor P.W.
1 and the evidence of P.Ws. 4 and 5 it must be held that the charge under
Section 302 !PC so far as appellant Hardial Singh is concerned is proved
beyond reasonable doubt and the conviction and sentence of appellant
Hardial Singh on that score cannot be interfered. But so far as the
conviction of two other appellants under Section 302/149 !PC, as stated      c
earlier, the same cannot be sustained nor is it possible on the facts and
circumstances of the case to convict them even under Section 302/31 !PC
for their overt acts. In fact as already stated, the learned counsel appearing
for the respondent State fairly submitted that their conviction under Sec-
tion 302/149 !PC cannot at all be sustained. But for their individual act for D
the injuries caused on the right arm of the deceased as well as on the thigh
of P.W. 5 their conviction under Section 326 IPC and the sentence passed
thereunder has to be maintained. So far as the conviction under Section
148 IPC is concerned, the same also cannot be sustained as the prosecution
has failed to establish an "unlawful assembly''. of the accused persons.
                                                                            E
      In the premises as aforesaid, the conviction of appellant Hardial
Singh under Section 302 !PC and the sentence of imprisonment for life
thereunder is upheld. His conviction under Section 148 !PC as well as
326/149 !PC and the sentence passed thereunder are set aside. The con-
viction of appellant Uttam Singh under Section 302/149 !PC and the F
sentence passed thereunder are set aside but his conviction under Section
326 !PC and sentence to undergo R.I. for two years on that score are
confirmed. Conviction of appellant Gurnam Singh under Section 302/149
!PC and the sentence passed thereunder are set aside and his conviction
under Section 326 !PC and sentence to R.I. for two years are confirmed.
So far as the appellant Hardial Singh is concerned, his bail bond stands G
cancelled and he is directed to surrender for serving the balance period of
sentence. So far as the other two appellants are concerned; Mr. Kohli
appearing for them submitted that they have already undergone the period '
of sentence of two years but from the records of this Court it is not possible
to come to that conclusion since they were granted bail by order dated H
    122                   SUPREME COURT REPORTS j1996] SUPP. 1 S.C.R.
                                                           I

A   10.2.1986. In that view of the matter we direct that in case they have already
    undergone the sentence of two years, the question of their surrendering
    again would not arise but in case they have not undergone the sentence of
    two years they must surrender to serve the balance period. These appeals
    are accordingly allowed in part.

B R.A.                                                          Appeal allowed.




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