Holding

The Court held that Partap Singh's statement is admissible as a dying declaration under Section 32 of the Evidence Act and, having found that the accused could not prove the right of private defence, the appeal is dismissed.

Summary

The appellants, Kulwant Singh and others, were charged with murder, attempt to murder and causing hurt arising from a land‑boundary dispute in which two of the victims, Kartar Kaur and Partap Singh, were injured and later died. The trial court acquitted them on the basis of private defence, but the High Court convicted them and sentenced them to life imprisonment. On appeal, the Supreme Court examined whether the statement of Partap Singh, recorded five days after the incident, qualified as a dying declaration under Section 32 of the Evidence Act, and whether the accused could establish a right of private defence. The Court held that Section 32 does not require the statement to be made before a magistrate or in anticipation of death, and therefore the statement is admissible as a dying declaration. It further found that the prosecution evidence, corroborated by eyewitnesses and medical reports, showed the accused were the aggressors and they failed to discharge the burden of proving private defence. Consequently, the appeal was dismissed.

Issues considered

Whether the accused were entitled to claim the right of private defence.
Whether the accused exceeded the scope of private defence, if any.
Whether the statement of Partap Singh recorded on 18‑June‑1987 constitutes a dying declaration under Section 32 of the Indian Evidence Act.

Legislation cited

Indian Evidence Act, 1872s. 32
Indian Penal Code, 1860s. 100, s. 148, s. 149, s. 302, s. 323, s. 96, s. 97

Subjects

dying declarationprivate defenceIndian Evidence ActIndian Penal Codeadmissibility of evidenceburden of proofmurdersection 32section 96section 148section 149section 302section 323section 97section 100

Judgment

,I

I
A KULWANT SINGH AND ORS. ....
V.

ST ATE OF PUNJAB

JANUARY 23, 2004

B (DORAISWAMY RAJU AND S.B. SINHA, JJ.]

Penal Code, 1860-Sections 96, 148, 149, 302 & 323-Evidence Act,
1872-Section 32-Murder of two persons and injuring two witnesses by
...
accused with sharp weapons-One of the deceased making a statement five
c days before death-Whether dying declaration-Plea ofright ofprivate defence
by accused-Admissibility of-Held, the said statement is a dying declaration
and hence admissible in evidence-On facts, the accused were not able to
establish that the offence was committed in the exercise of their right of
private defence.
D
Appellants, numbering three, with their father (accused no.I) and
brother (accused no.3) attacked P and Kand two sons of K (PWs. 5 and
6) over a dispute relating to the boundaries of agricultural lands. K died
on way to hospital. PWs. 5 and 6 received injuries. P was seriously injured
and was admitted in a hospital. The statement of P was recorded after 5
E days of the incident when he was fit. P died thereafter. Appellant no. 3
and accused no.I also received injuries purportedly inflicted by PWs . 5
and 6 in self defence. All the five accused were charged for offences under
sections 148, 302, 323 & 149 !PC. The trial court acquitted all the accused
holding that the offences were committed by the accused in exercise of
F the right of private defence. In appeal by the State, High Court convict1ed
all the accused and sentenced them to life imprisonment and also sentenc1!d
_,._ .
them for various offences.

In appeal to this Court, the appellants contended that the statement
of P cannot be treated as a dying declaration under section 32 of the Indian ·
G Evidence Act, 1872 and was made under section 161 Cr. PC and the same
is not reliable since P died thereafter; that P and PWs. 5 and 6 were the
aggressors and the offences were committed by the appdlants whi!le ¥ •
exercising the right of private defence which is proved by the nature of
injuries suffered by them; that the injuries suffered by PWs. 5 and 6 were

H 1018
KULWANT SINGH v. STATE OF PUNJAB 1019
I
> self-in flictcd; and that there is no material on record to show that they A
were present and participated in the crime.

The State contended that the appellants failed to prove that the
informant party were _the aggressors and they ell\ercised their right of
private defence; that no explanation has been offered by the appellants
as to why K was done to death; and that from the materials on record, K B
was subjected to assault despite falling down on the field.

f ....
Dismissing the appeal, the Court

HELD: I. Section 32 of the Indian Evidence Act, 1872 nowhere states
that the dying declaration must be recorded in the presence of a Magistrate
c
or in other words no statement, which has not been recorded before the
Magistrate, cannot be treated to be a dying declaration. The fact that the
investigating officer from the beginning intended to take the statement of
P is not in dispute. The endorsement made by the doctor would clearly
show that he had not been found fit to make such statement. Only on the D
fifth day, the statement of P could be recorded. Section 32 of the Indian
Evidence Act also does not state that a dying declaration should be made
only in expectation of death and in that view of the matter the fact that P
died after a period of one week is of no consequence. Explanation-I
appended to Section 32 specifies that when the statement is made by a
person as to the cause of his death, or any of the circumstances of the
E
transactio.n which resulted in his death where cause of death of that
person's death comes into question would be a relevant factor. The
investigating officer has proved the statement of P. He deposed that he
was fully conscious when he made the statement which were read over to
him. Hence, the statement of P would be admissible under Section 32 of F
....
' the Indian Evidence Act. 11031-F-H; 1032-A-BI

Ramawati Devi'" State of Bihar, AIR (1983) SC 164 and Tehal Singh
and Ors. v. State of Punjab, AIR (1979) SC 1347, relied on.

2. The statement of P stands corroborated by the evidence of PWs. G

. ).
5 and 6. PW 5 categorically state;! that when they were working in the
field, their mother K had come with food and when they just finished
taking the same, the accused came with weapons and inflicted blows on
P, K, PW 5 and PW 6. The sufferance of minor injuries by PWs. 5 and 6
at the hands of the accused appears to be more probable as by the time
H
J
1020 SUPREME COURT REPORTS [2004] I S.C.R.

A they realised their position and went to the actual place of occurrence upon
collecting their weapons and assaulting the accused therewith, the accused
might have realized that they had already inflicted fatal blows on I( and
P and in the meanwhile they had also suffered injuries at the hands of
the informant party. The allegations made in the first information report ...
B and the statements by PWs. 5 and 6 as also the dying declaration of P
clearly indicate the manner in which the offence had been committed and
injuries had been inflicted upon the deceased. The statement made by PW
5 as regard nature of injuries suffered by K also stands corroboratl~d by
medical evidence. The presence of PWs. 5 and 6 at the place of occurrence
cannot be disbelieved only on the ground that the injuries found on their
C persons were found to be simple in nature. They might have suffered
simple injuries because they might have collected their arms so as to make
counter attacks after seeing unarmed K and P having been seriously
injured. (1034-C-G]

3. 1. The right of private defence is available to a person who is
D .. suddenly confronted with immediate necessity of averting an impending
danger which is not his own creation. The necessity must be present, real
or apparent. It is preventive and not retributive. The question, whenever
a right of private defence is claimed, must be judged from the nature of
occurrence, the circumstances in which it had occurred and whether the
E person claiming such right has acted legitimately. Attending circumstances
would also be relevant for judging the same. The burden to prove the same
is on the person who raises such a plea. For the purpose of proving the
same, the accused may rely upon the materials on record brought by the
prosecution in addition to examining the witnesses and adducing posilive
evidences, if any. A person has a right of private defence of body under
F Section 97 IPC and in the event it is found that he was entitled to exerdse
the same, he necessarily must be held to have a right to cause death in
terms of Section I 00 IPC, if there was a reasonable apprehension that
death or grievous hurt would be caused. 11034-H; 1035-A-DI

laxman Sahu v. State of Orissa, AIR (1988) SC 83, referred to.
G
3.2. The place of occurrence is the agricultural field of the informant.
It will, therefore, be safe to presume that the accused persons trespassed "'
into the property of the informant. The fact that at least two of the accused
persons were armed with sharp-edged weapons is not disputed. If they had
H trespassed into the agricultural field of the informant with deadly weapons,
KULWANT SINGH v. STATE OF PUNJAB 1021
it is difficult to presume, in· absence of any material on record, that the A
initiation of the assault was from the side of the informant. There is also
no reason to disbelieve the statements of PWs. 5 and 6 as also the dying
declaration of P that their' mother had brought food for them and they
had taken the food and the incident took·place immediately thereafter.
The injuries inflicted on deceased K is not disputed. She was not and could B
not have been armed with any weapon. She did not take any part. She
did not incite her sons to assault the accused persons. If the informaiit
party was the aggressor, there was no reason as to why she would run
towards the place where the fight was taking place, resulting in causing
of injuries on the person of P. She apparently tried to intervene seeing
her sons being assaulted with sharp cutting weapons. She had been inflicted C
with as many as five sharp-cut injuries, three on the leg and two on the
wrist. There does not appear to be any reason as to why an aged lady was
done to death. Injury no.2 of the five injuries was sufficient to cause death
in ordinary course of nature. It defies common sense, if the prosecution
story is accepted that PWs. 5 and PW. 6 were not present at the place of
occurrence, that the deceased P alone would single handedly attack the D
accused persons who were five in number and variously armed.

- (1035-F-H; 1036-A-CI

3.3. There were five male members on the side of the accused
whereas three were there on the side of the informant. The nature of the E
weapons used in the commission of offence also suggests that they are not
ordinairly required to be carried on their persons, even on religious
ground. One of the accused has suffered five injuries out of nine injuries
on both palms because he might have tried to ward off the assault of the
blows which were inflicted on him by themselves, cannot be conclusive that
he was attacked first. Another factor is that after the occurrence at I 0.30 F
a.m, PW-5 went back to the village to inform his cousin, brought a tractor
and took the injured K and P to the hospital. On the way, K died and P
was examined at 12.30 p.m. It is not in dispute that they were brought to
the hospital by PW-5 ~!:d in that view of the matter his presence at the
place of occurrence appears more probable. On the other hand, the injured G
accused were brought to the hospital by another accused at least one hour
thereafter. Presence of the injured accused also, thus, appears to be
probable. Despite suffering such injuries why they were not rushed to
hospital has not been explained. If the informant and his brothers were
the aggressors, it was expected, that the injured accused would have made
such statements before the police officer giving details as to the mode and H
1022 SUPREME COURT REPORTS [2004] I S.C.R.

A manner in which the incident had happened and as to how the two of the
accused suffered such grievous injuries. The accused persons have not been
able to discharge their onus of proof that they had killed the deceased in
exercise of their right of private defence. 11036-E-H; 1037-A-DI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
B 947 of 1997.
From the Judgment and Order dated 14.5.97 of the Punjab and Haryana
High Court in Crl.A.No.402 DBA/89 and Crl.R.No.104 of 1989.

U.U. Lalit and Ms. Indra Sawhney for the Appellants.
c
O.K. Khullar, R.C. Kohil, Arun Kr. Sinha and Rakesh Singh for Bimal
Roy Jad for the Respondent.

The Judgment of the Court was delivered by

D S.B. SINHA, J. The appellants who are three in number with their
father, Virsa Singh (Accused No. I) and brother Tara Singh (Accused No.3)
[since deceased] were charged for commission of an offence under Sections
148/302/323/149 of the Indian Penal Code. -
The incident took place at about 10.30 a.m. on 13.6.1987. Admittedly,
E the family of the deceased and the appellants belong to the same village. .
They have agricultural lands. The parties had disputes both as regard
boundaries of their agricultural land as also as regard irrigation of their
respective field. On the day of the incident, Kartar Kaur (deceased) brought
food for her sons Avtar Singh and Balkar Singh (PW 5 and PW 6) who were
F working in their agricultural field. When they finished taking their meals,
Virsa Singh (Accused No. I) armed with 'Takwa', Kulwant Singh (Appellant
No. I) and Tara Singh (Accused No.3) armed with 'Kirpan' each, Sahiba
Singh (Appellant No.2) armed with 'Barchha' and Darbara Singh (Appelant
No.3) armed with 'Kappa' came near the informant and the deceased from
the side of their tubewell. Virsa Singh, allegedly, exhorted the complainant
G and the deceased to be ready as they had come to teach them a lesson for
scrapping the boundaries of the fields; whereupon the first informant Partap
Singh, since deceased, and Balkar Singh along with their mother got up. It
is contended that Sahiba Singh gave one Barchha blow to Partap Singh in his
abdomen and another blow just below his right shoulder in the chest, whereas
H Virsa Singh assaulted Partap Singh with Takwa on the back of his right hand.
KULWANT SINGH v. STATE OF PUNJAB [SINHA, J.) 1023

Kartar Kaur, mother of the informant, who had tucked her salwar as she A
waded through the water, came forward and she was given a blow with
Kirpan by Kulwant Singh on the back of her left leg, whereupon she fell
down. Even thereafter Tara Singh is said to have given Kirpan blow on her
left thigh and Virsa Singh gave two Takwa blows on her both wrists.

Avtar Singh and Balkar Singh who examined themselves as PW 5 and B
PW 6 respectively came forward to rescue their mother and brother whereupon
Sahiba Singh is said to have given Barchha blow in the abdomen of Avtar
Singh (PW 5) and another blow on his left thigh. Accused No. I allegedly
gave blunt side Takwa blow on Balkar Singh (PW 6) on the back of his right
hand.
c
It stand admitted that in the aforementioned incident, Darbara Singh
and Virsa Singh also suffered injuries which are said to have been inflicted
on them by the complainant and his brother purported to be in their self-
defence.

The accused persons thereafter ran away with their respective weapons D
whereafter Avtar Singh (PW 5) went to the village and informed his cousin
Hardip Singh about the occurrence. A tractor was brought from the village
in which Partap Singh and Kartar Kaur were brought to the hospital at
Ferozepur. The lady breathed her last on the way whereas Partap Singh was
admitted to the Civil Hospital, Ferozepur. E
The motive for commission of the said offence on the part of the
accused persons is said to be a dispute which took place a day prior to the
day of the occurrence between the complainant party and Virsa Singh allegedly
on the ground that the complainant party scrapped the boundaries of the
> fields. However, it is said that the matter had been settled at the instance of F
/ one Maura Singh, a resident of the same village.

The doctor attending on Partap Singh informed the Police whereupon
the S.H.O. of the Police Station came to the Hospital. The statement of Partap
Singh, who was seriously injured could not be taken by the police and only
at about 4.30 p.m., the first information report was lodged by Avtar Singh. G

.1 ). It is not disputed that Partap Singh was medico-legally examined at
12.30 p.m. on 13.6.1987 by Dr. A.S. Mann (PW 2) and the following injuries
were found on his person :

- "I. Oblique incised wound 10 ems. X Yi cm. and depth varied from H
1024 SUPREME COURT REPORTS [2004] I S.C.R.

A muscle deep to bone deep on back of right hand starting from
base of index finger and going upwards and medially with
bleeding.
2. Incised wound 3 ems. X I cm. (at centre) oblique on front and
right side of abdomen 5 ems. medial at the level of right anterior
B superior iliac spine with bleeding. Omentum and a small leap of
intestine was coming out of the wound. Abdomen was tender
and tense.
3. Incised wound 1.5 ems. X Y, cm. oblique in direction on front 1' •
and upper part of right chest just below the outer half of right
c clavicle."
Injury No. I was kept under observation for X-ray examination and
injury No.3 was kept under observation for surgical report and injury
No.2 was declared dangerous to life. In this regard Dr. Mann gave his
report Ex.PH and also prepared pictorial diagram Ex.PH/I showing r
the seats of injuries. PW 2 Dr. A.S. Mann sent ruqa Ex.PJ to the '
D
Station House Officer, Police Station Sarad, Ferosepur, regarding the
death of Kartar Kaur and arrival of Avtar Singh (Injured)"

The statement of Partap Singh on a certificate issued by the doctor that
he was fit to make a statement was recorded on 18.6.1987. Partap Singh,
E however, succumbed to his injuries 26.6.1987.

Dr. J.S. Dalal (PW 3) who conducted the post-mortem on the dead
body of Partap Singh found the following injuries on his person :

"1. Under the bandages of both ankles vene section wounds were
F present medially over both ankles.
.... ~
2. On removing bandage of right hand there was an oblique healed
wound except in its middle one third. It was 10 ems. long on the
back of right hand starting from base of index finger and going
upwards and medially. The unhealed wound was pale and on
G opening it frank pus came out. There were corresponding cuts in
the third and fourth metacarpal bones.
3. Horizontal healed wound 1.5 ems. Jong just below outer half of ....
right clavicle.

H
4. An oblique wound with clean cut margins 8 ems. X 3.5 ems.
muscle deep on the right side of abdomen starting 5 ems. medially
-
KULWANT SINGH v. STATE OF PUNJAB [SINHA, J.] 1025
and above the right anterior superiod iliac spine and going A
downwards and medially. The floor of this wound contained
plough and on dissection of surrounding tissues frank pus oozed
out.
5. A stitched wound 20 ems. long on right side of abdomen just
lateral tomid line. On removing stitches there was corresponding B
out in the perticotniu with stitches. The mesentery had been
repaired at many places and small gut at two places. The
abdominal cavity contained about 300 grams of chocolate colored
foul smelling fluid."

Autopsy examination of Kartar Kaur was held about 6.45 p.m. on the C
same day by Dr. Tirath Goel (PW I), which disclosed the following injuries
on her dead body :

I. Incised wound 5 ems. X 2 ems. on the front and lower part of
left thigh.
ii. Incised wound 10 ems. X 3 ems. on the back of left leg.
D
Underlying vessels and muscles were cut and bones were
fractured.
111. Incised wound 5 ems. X 2 ems. on the back of right writ joint.
Under lying bones were cut through and through.
E
1v. Incised wound 4 ems. X 1 cm. on the back of left leg just below
injury No.2.

v. Incised wound 3 ems. X I cm. on the back of left writ joint."

Accused Darbara Singh was also medico-legally examined by PW 2, F
Dr. A.S. Mann, at about 1.30 p.m. on the same day and the following injuries
were found on his person :

"I. Incised wound 11 ems. X 2 ems. oblique in palm of right hand
on lower part 2 c_ms. deep with bleeding.
2. Incised wound 2 ems. X Yz cm. on palmer aspect of right index G
finger on the promimal phallanx with bleeding. Injury was I cm.
deep.
3. Reddish abrasion 1/3 cm. X Y. cm. on back and upper and of .
right hand little finger.
H
1026 SUPREME COURT REPORTS [2004] 1 S.C.R

A 4. Reddish abrasion with over lying lacerated wound 1.5 cm. X V. .l
cm. Oblique on back of right and ring finger on proximal phallanx.
Injury was 1/3 cm. deep with bleeding.
5. Lacerated wound Yi cm. X V. cm. X I/~ cm. on back of right
hand middle finger on proximal phallanx with bleeding.
B 6. Incised wound 2.5 cm. X Yi cm. on palmer aspect of left hand
index finger on the distal phallanx with bleeding, I cm. deep.
7. Incised wound 3 ems. X Yi cm. on outer side of root of left
thumb with bleeding 1.5 ems. deep.
. '

c 8. Incised wound 20 ems. X 7 ems. slightly oblique and almost
vertical on back of right abdomen crossing the mid line. Depth
could be easily traced upto 10 ems.
9. Incised wound 3 cm. X 2 ems. X 2.5 ems. oblique on postere
medial side of left thigh in middle one third with bleeding."
D Accused No. I, Virsa Singh, was also medico-legally examined by the
same doctor at about 2.20 p.m. on that day and following injuries were found
on his person.

"'1. Incised wound 5 cm. X Yi cm. and bone deep on right side of
skull, oblique in direction 6.5 ems. vertically behind the middle
E of right eye brow with bleeding.
2. Lacerated wound I cm. X 113 cm. and bone deep in mid line and
centre of forehead.
3. Incised wound 8 ems. X Yi cm. starting from the tip of nose and
F going transversally over the right cheek varying in depth from
Yi cm to I cm. Right ala of nose was cut through and through ""-
with bleeding.
4. Incised wound 3.5 ems. X 1.5 ems. transverse in mid line and
front of neck 5 ems. below the thyreid cartilage with bleeding.
The depth could be easily traced upto 2 ems.
G
5. Lacerated wound Yi cm. x 1/3 cm. x 1/3 cm. on palmer surface
of left hand in the V space of thumb and index finger with A
bleeding."

The statement of PW 6 was recorded by the police at 8.10 p.m. on
H 14.6.1987.
KULWANT SINGH v. STATE OF PUNJAB (SINHA, J.) 1027

Despite the fact that two of the accused persons were in the hospital A
itself, they were not arrested immediately as they were undergoing treatment.
Accused Nos. 2, 3 and 5 were arrested on 20.6.1987; whereas Accused Nos.
1 and 4 were arrested on 29/30.6.1987.

PW 5 and PW 6 who are also said to have suffered minor injuries in
the said incident were examined by Dr. Tirath Goel and Dr. A.S. Mann B
respectively on 13.6.1987 at 5.30 p.m. and on 14.6.1987.

The injuries on the person of Avtar Singh as found were as under :

"I. Lacerated wound 1 cm. X 1 cm. superficial on the front and
lower part of left thigh. Fresh bleeding was present on touching. C
2. Abrasion I cm. X I cm. on the right side of abdomen 5 ems.
above the umlicus."

The following injuries were found on the person of Balkar Singh :

"a blush contusion 3 ems. X 3 ems. on back of left hand index finger D
over the meta carpe phallangeal joint with overlying partially scabbed
brownish abrasion 1.5 ems. X Y. cm."

Upon completion of the investigation, the accused persons were charge-
sheeted. The learned Sessions Judge, Ferozepur disbelieving the prosecution E
case acquitted the accused persons by a judgment and order dated 26.8.1988.
The State of Punjab aggrieved thereby and dissatisfied therewith preferred an
appeal thereagainst before the Punjab and Haryana High Court which was
marked as Criminal Appeal No.402-DB of 1989.

By reason of the impugned judgment, the High Court disagreeing with F
the view of the learned Sessions Judge came to the conclusion that the accused
persons were guilty of commission of the offences under Section 302 and
302/149 IPC and sentenced them to undergo the rigorous imprisonment for
life and passed the following sentences :

"Name of the accused Offence committed Sentence G
Kulwant Singh U/s 302 IPC for He shall undergo life
> >- imprisonment and pay a fine of
committing murder
of Kartar Kaur Rs. 10,000 and in default thereof
shall further undergo rigorous
H
r

1028 SUPREME COURT REPORTS [2004) I S.C.R.

A imprisonment for a term of one
A
year.

Virsa Singh U/s 302/149 IPC They shall undergo life
Kulwant Singh for committing the imprisonment and pay a fine of
Tara Singh murder of Rs.10,000 each and in default
B Darbara Singh Partap Singh thereof shall further undergo
rigorous imprisonment for a period
of one year each.
~

Sahiba Singh U/s 323 !PC for He shall undergo rigorous
c causing injuries imprisonment for six months and
to Avtar Singh pay a fine of Rs. I 000/- and in
default thereof, shall further
undergo rigorous imprisonment for
one month.

D Virsa Singh U/s 323/149 !PC They shall undergo rigorous
Kulwant Singh imprisonment for six months and
Tara Singh and pay a fine of Rs. I 000/- each and
1"
Darbara Singh in default thereof shall further
undergo rigorous imprisonment for
one month each.
E
Virsa Singh U/s 323 !PC for He shall undergo rigorous
causing injuries imprisonment for six months and
to Balkar Singh pay a fine of Rs. I 000/- and in
default therefor, undergo rigorous·
imprisonment for one month.
F
Kulwant Singh U/s 323/149 IPC They shall undergo rigorous ~
~
Tara Singh imprisonment for six months and
Darbara Singh pay a fine of Rs. 1000 each and in
and Sahiba Singh default thereof, shall further
undergo rigorous imprisonment for
G one month each."

All the substantive sentences awarded to the respective accused persons ,,_
were directed to run concurrently. It was further directed that the fine, if
recovered, shall be paid by way of compensation to the heirs of the respective
H deceased in equal shares.
KULWANT SINGH v. STATE OF PUNJAB [SINHA, J.] 1029
)
A Mr. UU Lalit, learned counsel appearing on behalf of the appellants A
would submit that the High Court committed a manifest error in passing the
impugned judgment insofar as it failed to take into consideration that in the
facts and circumstances of this case, the appellants, their brother and father
should have been held to have exercised their right of private defence having
regard to the nature of injuries s·uffered by Accused Nos. 1 and 4.
B
Mr. Lalit would submit that the nature of injuries on the person of the
said accused are pointers to the fact that the complainants were the aggressors.
,... The learned counsel would contend that the alleged immediate cause leading
to the occurrence was that Harnam Singh's field used to be irrigated through
the water drawn from the tubewell of the complainant and when Darbara
Singh was cleaning the water channel, Partap Singh came whereupon the
c
verbal altercation ensued; whereafter they came being armed with weapons
and attacked Darbara Singh. According to the learned counsel, Harnam Singh
was armed with 'Khund', a hard and blunt weapon whereas Partap Singh
came with a sharp-edged weapon and while he was attacked Darbara Singh
tried to ward away the attack with his both hands, as a result whereof he D
suffered as many as five injuries on his two palms.

The learned counsel would point out that Darbara Singh was evidently
working in the field as he had been found by the doctor to be bare chested.
It was contended that only upon noticing Darbara Singh being assaulted with
'Khund', a blunt weapon, Virsa Singh came to his rescue and he had also E
been attacked and only in the said scenario Virsa Singh exercised his right
of private defence. Kartar Kaur, however, who had come in the meanwhile
at the place of occurrence unfortunately suffered injuries resulting in her
death.
F
·.'..>..... Mr. Lalit would urge that had the complainant been not aggressors,
there was no reason as to why PW 5 and PW 6 would suffer only minor
~ injuries. Sufferance of su.ch injuries by the said witnesses, Mr. Lalit would
'
contend, is doubtful, as in the opinion of the doctor they could be self-
1
int1.icted. Mr. Lalit would further argue that there is noihing on records to
show that except Darbara Singh and Virsa Singh, any of the other three G
accused persons was present at the place of occurrence and participated therein.
) ) According to Mr. Lalit, only in the aforementioned fact situation, the trial
court found the presence of PW 5 and PW 6 at the place of occurrence to be
doubtful and i(1rther111ore held that having regard to the injuries on the persons
of Darbara Sing~h and Virsa Singh, they were entitled to exercise their right H
\
1030 SUPREME COllRT REPORTS [2004] I S.C.R.

A of private defence. In that view of the matter, the learned counsel would ;.
argue, that the High Court should not have interfered with the judgment of
acquittal passed by the leaned Sessions Judge having regard to the fact that
the said defence had been raised from the very beginning of the trial.

Mr. Lalit would further submit that the statements of Partap Singh in
B the facts and circumstances of the case, shouid not have been treated to be
a dying declaration.

So-called dying declaration of Partap Singh in effect and substance,
Mr. Lalit would submit, was a statement under Section 161 of the Code of
Criminal Procedure and the same was not reliable in view of the fact that
c Partap Singh died five days thereafter.

The learned counsel would urge that the High Court failed to consider
the nature of the injuries suffered by the accused persons which having
regard to the materials brought on records would clearly prove that the accused
D persons exercised their right of private defence. Mr. Lal it would further submit
that the prosecution failed to prove that the injuries caused to the accused
persons by PW 5 and PW 6 were by way of exercise of their right of private
defence as merely a bald statement had been made in the first information
report to the said effect and furthermore PW 5 and PW 6 also did not elaborate
thereabout in their depositions before the Sessions Court.
E
Mr. Lalit would argue that as the judgment of acquittal passed by the
learned Sessions Judge in the aforementioned situation was reasonable, the
High Court should not have interfered therewith.

Mr. OK Khullar and Mr. Arun Kumar Sinha, learned counsel appearing
F on behalf of the State and the complainant, on the other hand, would submit ,A.
that from the site plan prepared by the investigating officer, it would appear
that the occurrence took place in the field of the first informant. The learned

G
counsel would contend that as the date and place of occurrence as also the
nature of offence stand admitted, it was for the accused persons to prove 'that
the informant party were the aggressors and they exercised their ri.ght of
'
private defence. The learned counsel would contend that even ifthe contention
of the appellants is accepted, no explanation has been offered as to why
Kartar Kaur was done to death. It was pointed out that from the materials on
records, it would appear that she was subjected to assault despite falling
,, .
down on the field. '
H
KULWANT SINGH v. STATE OF PUNJAB [SINHA, J.] 1031
The principal questions which arise for consideration in this appeal, in A
view of the rival submissions made by the learned counsel for the parties are:

(i) whether the accused persons were entitled to exercise their right
of private defence;

(ii) in any event whether they exceeded the same in doing so; B
(iii) Whether the statement of Partap Singh recorded on 18.6.1987
should be construed to be a dying declaration?

Before adverting to the rival contentions, as noticed hereinbefore, it
may be noticed that Accused Nos. I and 3 have since died. C
It is not in dispute that the deceased Kartar Kaur and the injured Partap
Singh were brought to the hospital by PW 5, Avtar Singh. According to the
prosecution, Balkar Singh had gone to his maternal uncle's place to inform
him about the incident and as such he was examined by the police on the next
day of occurrence. The materials on records further show that the investigating D
officer having been informed about the incident by Dr. Mann wai.ted to
record the evidence of Partap Singh as he was an injured witness but as he
was not declared fit to make a statement, the statement of PW ?was recorded
and· the same was treated as the first information report.
E
We may at the threshold exam in.: the question as to whether the statement
of Partap Singh cou Id be treated to be a dying declaration.

Section 32 of the Indian Evidence Act, 1872 nowhere states that the
dying declaration must be recorded in the presence of a Magistrate or in other
words no statement which has not been recorded before the Magistrate cannot F
be treated to be a dying declaration. The fact that the investigating officer
from the beginning intended to take the statement of Partap Singh is not in
dispute. The endorsement made by the doctor in Ex.PQ/l and Ex.PR/I would
clearly show that he had not been found fit to make such statement. Only on
· the fifth day i.e. 18.6.1987, the statement of Partap Singh could be recorded. G

Section 32 of the Indian Evidence Act also does not state that a dying
• ;t. declaration should be made only in expectation of death and in that view of
the matter the fact that Partap Singh died on 26.6.1987 after a period of one
week is cif no consequence. Explanation-I appended to Section 32 specifies
that when the statement is made by a person as to the cause of his death, or H
1032 SUPREME COURT REPORTS [2004) I S.C.R.

A any ofthe circumstances of the transaction which resulted in his death where >-
cause of death of that person's death comes into question would be a relevant
factor.

PW-9, the investigating officer Hukam Singh has proved the statement
of Partap Singh. He deposed that he was fully conscious when he made the
B statements which were read over to him. In that view of the matter the said
statements are admissible under Section 32 of the Indian Evidence Act.

The statement of PW-I in no unmistakable terms shows that the condition
of Partap Singh was very serious.
c In Ramawati Devi v. State of Bihar, AIR (1983) SC 164, this Court
observed :

" ... A statement, written or oral, made by a person who is dead as to
the cause of his death or as to any of the circumstances of the
transaction which resulted in his death, in case in which the cause of
D
that person's death comes into question, be<oomes admissible under
section 32 of the Evidence Act. Such statement made by the deceased
is commonly termed as dying declaration. There is no requirement of
law that such a statement must necessarily be made to a Magistrate.
What evidentiary value or weight has to be attached to such statement
E must necessarily depend on the facts and circumstances of each
particular case. Jn a proper case, it may be permissible to convict a
person only on the basis of a dying declaration in the light of the
facts and circumstances of the case. Jn the instant case, the dying
declaration has been properly proved ..."
F In Teha/.Singh and Ors v. State of Punjab, AIR (1979) SC 1347, this
Court negatived the contention that a dying declaration should be made only
in expectation of death, stating :

" ... We do not also see any force in the suggestion of Dr. Chitale that
the statement of Harmel Singh was not made in expectation of death
G and was, therefore, not entitled to weight. Apart from the fact that
Section 32 of the Evidence Act does not require that a statement
should be made in expectation of death, it is clear from the evidence
that the condition of Harmel Singh was serious at that time. In the
requisition made by the Medical Officer to the Police it has been
H clearly mentioned that the condition of Harmel Singh was serious.
KULWANT SINGH v. STATE OF PUNJAB [SINHA, J.] 1033
~ The very circumstance ·that Dr. Pasricha advised that Harmel Singh A
. .J..
should be removed to Bhatinda Hospital for better treatment clearly
indicates that the condition of Harmel Singh was serious ... "

In that view of the matter, the statement of Partap Singh, in our opinion,
would be admissible under Section 32 of the Indian Evidence Act.
B
The prosecution case as emerging from the first information report
would clearly show the respective parts played by the accused persons. The
allegations made in the first information report and the statements made
t J. before the court by PW 5, Avtar Singh and PW 6, Balkar Singh, who were
the eye-witnesses as also the dying declaration of Partap Singh clearly indicate
the manner in which the offence had been committed and injuries had been
c
inflicted upon the deceased.

The autopsy report of Kartar Kaur further demonstrates that injury no.2
inflicted on her, an incised wound of I 0 ems. X 3 ems. on the back of left
leg as a result whereof underlying vessels and muscles were cut and bones D
were fractured, was in the opinion of the doctor, sufficient to cause death in
the ordinary course of nature.

The injury report of Partap Singh also would clearly show that injury
no. 2 suffered by him which was an incised wound 3 ems. x I cm. (at center)
obliqu.e on front and right side of abdomen 5 ems medial, was in the opinion E
of the doctor was dangerous to his life, which came to be true.

The injuries caused on the deceased Kartar Kaur and Partap Singh were
found to have been caused within six hours. The boundary dispute between
the parties as also a dispute with regard to irrigation of the accused field from
the water taken from the tubewell of the complainant are admitted . F
..lo
The statement of Partap Singh is also material. He was seriously injured
and was examined by Dr. Tirath Goel (PW-I). He, continuously for days was
not found fit to make any statement and endorsement to the said effect was
made by the said doctor to the investigatinf; officer in Ex.PQ/I and Ex.PR/ G
I. Only on the fifth day, he was found fit to make a statement as would
appear from the endorsement marked as Ex. P.5/1 made by the Dr. Goel
• A
whereupon only a statement was recorded by the investigating officer. The
statement of Partap Singh marked as Ex.POO was recorded on 18.6.1987 by
AS! Hukam Singh.
H
1034 SUPREME COURT REPORTS [2004) 1 S.C.R.

A The appellants did not dispute the aforementioned facts; neither the
statements of PW-I and PW-9 in this behalf were put to test in cross- "
examination .

.It is not essential that a dying declaration should be made only before
a Magistrate.
B
We wciuld deal with the question of admissibility of the statement made
by Partap Singh, a little later but suffice it to point out at this juncture that
the statements of Partap Singh stand corroborated by the evidence of Avtar
Singh (PW-5) and Balkar Singh (PW-6). Even if the evidence of Balkar ~·
Singh is held not to be reliable, as has been submitted by Mr. Lalit, we find
c no reason to disbelieve the statements of Avtar Singh (PW-5). He categorically
stated that when they were working in the field, their mother had come with
food and when they just finished taking the same, the accused persons came
and Virsa Singh gave a 'lalkara' whereupon accused persons inflicted blows
on Partap Singh, Kartar Kaur and PW-5 and PW-6. The sufferance of minor
D injuries by PW-5 and PW-6 at the hands of the accused persons appears to
be more probable as by the time they realized their position and went to the
actual place of occurrence upon collecting their weapons and assaulting
Darbara Singh and Virsa Singh therewith, the accused persons might have
realized that they had already inflicted fatal blows on Kartar Kaur and Partap
Singh and in the meanwhile they had also suffered injuries at the hands of
E
the informant party. Partap Singh suffered two Barchha blows at the hands
of Sahiba Singh, one in the abdomen and another in the chest whereas Virsa
Singh appears to have inflicted a Takwa blow. These injuries are corroborated
by medical evidence.

F Similarly, the statements made in the first information report as also
before the court by PW-5 as regard nature of injuries suffered by Kartar Kaur
also stands corroborated by medical evidence. The presence of PW-5 and
PW-6 at the place of occurrence cannot be disbelieved only on the ground
that the injuries found on their persons were found to be simple in nature.
They might have suffered simple injuries because they might have collected
G their arms so as to make counter attacks after seeing unarmed Kartar Kaur
and Partap Singh having been seriously injured.

Chapter IV of the Indian Penal Code provides for the general exceptions. ~ •
Sections 96 to I 06 which occur in the said chapter deals with the right of
H private defence.· Section 96 says that nothing is an offence which is done in
KULWANT SINGH v. STATE OF PUNJAB [SINHA, J.] I 035
exercise of 'the right of private defence. This right, however, is available to· A
a person who is suddenly confronted with immediate necessity of averting an
impending danger which is not his own creation. The necessity must be
present, real or apparent. It is preventive and not retributive. See Laxman
Sahu v. Stale of Orissa, AIR (1988) SC 83.

The question, whenever a right of private defence is claimed, must be B
judged from the nature of occurrence, the circumstances in which it had
occurred and whether the person claiming such right has acted legitimately.
Attending circumstances would also be relevant for judging the same.

It is well-settled that the burden to prove the same is on the person who
raises such plea. For the purpose of proving the same, the accused may rely C
upon the materials on records brought by the prosecution in addition to
examining the witnesses and adducing positive evidences, if any. A person
has a right of private defence of body under Section 97 and in the event it
is found that he was entitled to exercise the same, he necessarily must be held
to have a right to cause death in terms of Section I00 of the Indian Penal D
Code, if there was a reasonable apprehension that death or grievous hurt
would be caused.

For arriving at a finding as to whether the accused persons had
legitimately exercised their right of private defence, it is necessary to pass the
question as to who had started the assault. E
The place of occurrence is the agricultural field of the informant. It
will, therefore, be safe to presume that the acc4sed persons trespassed into
the property of the informant. The fact that at least two of the accused
persons were armed with sharp-edged weapons like Kirpan or Kappa is not
disputed. If they had trespassed into the agricultural field of the informant F
with deadly weapons, it is difficult to presume in absence of any material on
record that the initiation of the assault was from the side of the informant. It
stands admitted that the Accused Darbara Singh was cleaning the water channel
which passes through the field of the informant. There is also no reason to
disbelieve the statements of PW-5 and PW-6 as also the dying declaration of G
Partap Singh that their mother had brought food for them and they had taken
the food and incident took place immediately thereafter. As noticed
} ) hereinbefore, the injuries inflicted on deceased Kartar Kaur is not disputed.
She was not and could not have been armed with any weapon. She did not
take any part. She ever did not incite her sons to assault the accused persons.
If the informant party was the aggressor, there was no reason as to why she H
1036 SUPREME COURT REPORTS (2004] I S.C.R.

A would run towards the place where the fight was taking place, resulting in >.
causing of injuries on the person of Partap Singh. She apparently tried to
intervene seeing her sons being assaulted with sharp cutting weapons. She
had been inflicted with as many as five sharp-cutting injuries, three on the
leg and two on the wrist. There does not appear to· be any reason as to why
an aged lady was done to death. The impact of the blows on her person
B would be evident from the autopsy report. Apart from the cumulative effect
of five injuries inflicted on her person, as noticed hereinbefore, injury no.2
was sufficient to cause death in ordinary course of nature. It defies common
sense, if the prosecution story is accepted that PW-5 and PW-6 were not ~ .
present at the place of occurrence, that the deceased Partap Singh alone
c would single handedly attack the accused persons who were five in number
and variously armed.

Virsa Singh himself and his four sons are said to have taken part in the
occurrence. There were five male members on the side of the accused whereas
three were there on the side of the informant. The nature of the weapons used
D in the commission of offence also suggests that they are not ordinarily required
to be carried on their persons, even on religious ground.

It may be true that Darbara Singh suffered five injuries out of nine
injuries on both palms but only because he might have tried to ward off the
assault of the blows which were inflicted on him by themselves cannot be
E conclusive that he was attacked first. Another factor which deserves attention
of this Court is that the occurrence which had taken place at about I0.30 a.m.
on 13.6.1987 whereafter, PW-5 went back to the village to inform his cousin,
brought a tractor and took the injured Kartar Kaur and Partap Singh to hospital.
The distance between the place of occurrence and the hospital is said to be
F about 9 k.m. On the way Kartar Kaur died and Partap Singh was examined
at 12.30 p.m. It is not in dispute that they were brought to the hospital by •
PW-5 and in that view of the matter his presence at the place of occurrence
appears more probable. On the other hand, the injured Darbara Singh and
Virsa Singh were brought to the hospital by Kulwant Singh at least one hour
thereafter. Presence of Kulwant Singh also, thus, appears to be probable.
G Despite suffering such injuries why they were not rushed to hospital has not
been explained. Furthermore, Dr. A.S. Mann (PW-2) immediately informed
the officer incharge about the incident. The police came to the hospital, the
first information report was lodged at 4.30 p.m. If the informant and his
A. •
brothers were the aggressors, it was expected, that the injured Darbara Singh
H and Virsa Singh or the Appellant no. I, Kulwant Singh, would have made
KULWANT SINGH v. STATE OF PUNJAB [SINHA,.1.J 1037
> ..; such statements before the police officer giving details as to the mode and A
manner in which the incident had happened and as to how Virsa Singh and
Darbara Singh suffered such grievous injuries, particularly when PW 2 in his
evidence categorically stated that Virsa Singh was fully conscious and could
talk clearly.

The records also reveal that weapons of attacks were recovered at the B
instance of both Kulwant Singh and Sahiba Singh. The spear and kirpan
which were recovered were found to be blood-stained. We, therefore, are of
the opinion that there does not exist any legal infirmity in the findings of the
High Court.

For the reasons aforementioned, we are of the opinion that the accused C
persons have not been able to discharge their onus of proof that they had
killed the deceased in exercise of their right of private defence.

The appeal being devoid of any merit is dismissed.

B.S. Appeal dismissed. D

).