Holding

The facts constitute murder under the third limb of Section 300 IPC; the right of private defence was not available and the conviction under Section 302 IPC (and Section 29 Arms Act) stands.

Summary

The case concerns the murder of Karanjit Singh on 7 February 1995 when accused Gurlabh Singh, on the instruction of co‑accused Rajesh Narang, fired a .12‑bore DBBL gun after stopping a college bus with a gypsy. The trial court convicted both accused under Section 302 IPC (murder) and, for Narang, under Section 29 of the Arms Act. The High Court reduced the conviction to culpable homicide not amounting to murder (Section 304 Part I IPC) on the ground that the accused had exceeded a claimed right of private defence. On appeal, the Supreme Court held that the facts constitute murder under the third limb of Section 300 IPC, that the right of private defence was not available, and that the injuries to the co‑accused were simple and did not justify the defence. Consequently, the State’s appeal was allowed, the convictions under Section 302 IPC and Section 29 Arms Act were restored, and the accused’s appeal was dismissed.

Issues considered

The appropriate offence under the IPC – whether the incident falls under Section 300 (thirdly) constituting murder or Section 304 Part I.
Whether the accused could successfully invoke the right of private defence under Sections 96/100 IPC.
Whether the simple injuries sustained by the co‑accused negate the claim of private defence.
Whether the failure to explain injuries to the accused warrants a benefit of doubt.
Whether Section 29 of the Arms Act applies to the licensed firearm used.

Legislation cited

Arms Act, 1959s. 29
Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 100, s. 300, s. 302, s. 304(Part I), s. 34, s. 96

Subjects

murderprivate defenceIPC Section 300IPC Section 304 Part ISection 34 IPCArms Act Section 29licensed firearmculpable homicideright of private defenceevidentiary burden

Judgment

[2009] 8 S.C.R. 853
"
STATE OF PUNJAB A
v.
GURLABH SINGH AND ANOTHER
(Criminal Appeal Nos. 178-179 of 2009)
MAY 12, 2009
B
[S.B. SINHA, HARJIT SINGH BEDI AND
AFTAB ALAM, JJ.]

Penal Code, 1860 - s. 300, thirdly - Fatal gun shot injury
to victim - Shot fired by accused on exhortion by co-accused c
- Co-accused armed with gun - Conviction of accused u/s.
302 and co-accused uls 302134 as a/so s.29 Arms Act - High
Court convicting accused u/s. 304 (Part I) and co-accused u/
s. 304 (Part I) IW s.34 holding that accused exercised right of
private defence - Justification of - Held: On facts, case falls D
under s.300, thirdly-All injuries were simple in nature - High
Court erred in holding that accused exercised right of private
defence - More so, said case not pleaded by accused -
Depositions of informant and prosecution witness consistent
and corroborated by medical evidence - Non-disclosure of E
injuries sustained by gunman not fatal to prosecution case -
Co-accused was holder of licenced gun and kept it loaded -
_.
It was in possession of third party and used for wrongful
purpose.

In these appeals, the order of High Court convicting
F
the accused GS u/s. 304 (Part I) and accused RN u/s. 304
(Part I) rw s.34 and sentencing both of them to rigorous
imprisonment for eight years, is under challenge.

. Allowing the appeal of the State and dismissing the
appeal of the accused, the Court
G

HELD: 1.1. The fact that the deceased along with the
other students had boarded a bus and were going to their
853 H
854 SUPREME COURT REPORTS [2009] 8 S.C.R.
..
A college is not in dispute. PW-1, in his evidence clearly
stated that the bus was stopped by the accused persons,
who were traveling in a gypsy and the deceased was
dragged out. [Para 11) [862-A-B]

1.2. It is assumed that a scuffle ensued between the
8
accused on the one hand and the deceased and the
prosecution witnesses on the other. It, however, stands
admitted that the barrel of the gun was towards the earth.
The first shot which was fired, did not have any space to
exist as a result whereof it bursted. While the scuffle was
C going on to snatch the gun, it would be wholly unlikely
that the second shot would hit the top of head of the
deceased in such a manner. Autopsy Surgeon, PW-4 in
his report showed the place where the deceased suffered
the gun-shot injury, in the sketch attached thereto. The
D place of injury was the top of the head. If the barrel of the
gun was facing the ground any accidental fire could have
hit the lower part of the body and not the head of the
deceased. Therefore, the submission that deceased not
only alighted from the bus but assaulted them and MS
E with a sharp edged weapon and tried to snatch the gun
from him cannot be accepted. [Para 14) [863-F-H; 864-A]

1.3. Both the courts below relied upon the .
depositions of BS-PW 1, informant and MH-PW 2. No
F inconsistency in their statements having been pointed
out and even otherwise having regard to the defence
raised by the accused, there is no reason to differ
therewith. [Para 15) [864-B-C]

1.4. The first informant was a student. He even, as
G stated by the Investigating Officer, was very perplexed
and made his statement when asked to do so very
hurriedly. A supplementary statement was also prepared
but the same was not signed by him. If, therefore, injuries
sustained by MS had not been disclosed, the same would
H
STATE OF PUNJAB v. GURLABH SINGH AND ANR. 855

not make much difference for the purpose of arriving at A
a different conclusion. [Para 15] [864-D]

1.5. Right of private defence cannot be raised
because one of the accused had suffered some minor
injuri~s or the prosecution has not explained the same.
8
All the injuries were simple in nature. They were not such
which would have prompted the accused to take
recourse to their right of private defence. [Paras 16 and
20] [865-B; 867-E]

1.6. GS filed application for getting himself examined C
in the Hospital. The said application was dismissed. It
itself goes to show that the Magistratd did not find any
truth therein. Moreover, the occurrence took place a week
before. Although the accused raised a plea that they also
intended to lodge the first information report but the same D
was not proved. It may be true that MS was discharged
during the course of trial but that should not have
deterred accused persons from examining him,
particularly when they examined SS as DW-2. MS was the
gunman of RN. He, therefore, was on the side of the E
accused. He could have been examined to prove the plea
of right of private defence taken by the accused. [Paras
21 and 22] [868-A-D]

1.7. According to GS, he was arrested on 7th
February, 1995. It, in absence of any other evidence,
F
could not be believed that he was kept in police custody
for 7 days without any order of the Court. If he was
arrested on 7th February, 1995 and not on 14th February,
1995 or prior thereto, he should have got himself
examined by any doctor, even assuming that the first G
information report was not recorded by the Officer
lncharge of the police station. There is nothing on record
to show that even while he was in judicial custody, he got
himself treated by the jail doctors. [Para 24] [869-A-C]
H
856 SUPREME COURT REPORTS [2009J 8 S.C.R.

A 1.8. The statement of PW-2 did not fit in with the case
of the defence. The trial judge rightly did not place any
reliance thereupon particularly having regard to the fact
that the ocular version given by PW 1 and PW 2 was not
only found to be trust worthy but the same was found to
B have been corroborated by the medical evidence given
by the doctors-PW 3 and PW 4. [Para 23] [868-G-H; 869-
A]

1.9. High Court erred in passing the impugned
judgment in so far as it failed to take into consideration
c that the accused never put forth the case of exercise of
right of private defence. According to them the deceased
was accidentally hit while the scuffle was going on. The
question of considering their case as if the accused had
exercised their right of private defence or exceerkd the
D same, therefore, could not have been gone into. [Para 25] '
[869-D-E]

1.10. High Court failed to consider that accused RN
was a holder of a licensed gun. He kept the gun loaded.
E It was in possession of a third party. It was used for a
wrongful purpose. He, therefore, had also been found
guilty of commission of offence under section 29 of the
Arms Act by the trial court. That part of the finding of the
trial court was not set aside by the High Court, nor was
F any reason assigned therefor. [Para 26] [869-F-G]
1.11. The bus did not have a regular stop at the place
of occurrence. It was stopped by the accused which
came in a gypsy. The defence that 30-34 students
surrounded the accused and inflicted injuries on the
G person of MH cannot be believed at all. Their travel to the
place of occurrence in a gypsy and stopping the bus had
not been explained. The likelihood, therefore, that the
students who were traveling in the bus, finding the shots
having been fired, manhandled MS at a later stage cannot
H be ruled out. Therefore, it is a case which comes within
STATE OF PUNJAB v. GURLABH SINGH AND ANR. 857

the pi.,ryi~W 9f Thirdly gf section 300 IPC. [Para 27] (869- A
..... G-H; 870-A-B] ,

f?aj Pal and qnqthf}r y. ~(?te qf Hary~na (2gQ7) 13 ~<;:<;:
554; Biabu Ram v. State of Punjab (2008) 3 s·cc 709;
Bhanwar Singh and others. v. State of Madhya Pradesh 2008 B
(7) SCALE 633, referred to.

C~~e. L,aw Re.ference :

(2001) 13 sec 554 Referred to. Para 17

(2008) 3 sec 109 Referred to. Para 17 C

2.Q08 ~7) SCALE 633 Referred to. Para 19

CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 178-179 of 2009.
D
From the Judgment & Order dated 09.07.2001 of the High
Court of Punjab & Haryana in Criminal Appeal No. 591 DB of
1997 and 608 DB of 1997.

WITH E
Crl. A. No. 180 of 2009.

K.B. Sinh, Aishwarya Bhati (A.C.) Sweta Rani, Kuldip
Singh, Kawaljit Kochar, Kusum Chaudhary, Yunus Malik, Vijay
Shree (for Praveen Swarup) for the appearing parties. F

Tile Judgment of ttie. Court was delivered by
S.B. SINHA, J .. 1. Rajesh Narang and Gurlabh Singh stood
trial for commission of an offence for causing death of one
Karanjit Singh, a student of D.A.V. College, Abohar. He was a G
• ""' resident of village Burj Muhar. He used to go to the college by
bus.
2. The prosecution case is that on 7th February, 1995 at
8.00 a.m., Bakhtaur Singh (informant), a student of B.A. Part I H
858 SUPREME COURT REPORTS [2009] 8 S.C.R. ..,

A in D.A.V. College, Abohar and a resident of village commonly "
known as Dharangwala, alongwith Gagandip Singh son of
Gurbans Singh and Mohinder Singh son of Simarjit Singh --·
residents of the same village reached the bus stand of their
village. They boarded a bus bearing registration No. PB-05-
B 9710. Deceased Karanjit Singh, who was a resident of Village
Burj Muhar and student of the same College was also travelling
in the same bus. When they crossed octroi post situated at
Malout Road they found a Gypsy bearing No.HNX - 5000
standing on the road. Raju Narang @ Rajesh Narang armed
c with a DBBL gun signaled the bus to stop. When the bus
stopped, Raju Narang and Gurlabh Singh entered into the bus
and allegedly dragged the deceased out of it, whereafter on
being asked by Raju Narang, Gurlabh Singh fired a shot from
his .12 bore DBBL gun which hit the deceased. On alarm being
raised, the appellants are said to have run away in the said
D
gypsy.

3. Karanjit Singh was taken to the hospital in the same
bus. On their way, they met Paramjit Singh son of Balwant
Singh, resident of Dharangwala. The motive for commission of
E the offence is said to be that few days prior thereto a quarrel
had taken place between accused and the deceased and the
latter was threatened by the accused that he would be taught
a lesson.
..
F On the basis of the abovesaid statement made by
Bakhtawar Singh a First Information Report was recorded at
10.30 a.m. on the same date. A special report was also sent
to the Judicial Magistrate lncharge, Abohar on the same date
at 6.05 p.m.
G 4. The prosecution in support of its case examined the first
informant Bakhtawar Singh as PW-1; Mohinder Singh, PW-2
and two doctors, who examined the deceased and conducted
the post-mortem examination on his dead body, namely - Dr.
.
-
Lal Chand Thakral, as PW-3, and Dr. Daljit Singh Kochar as
H PW-4.
STATE OF PUNJAB v. GURLABH SINGH AND ANR. 859
[S.B. SINHA, J.]

5. One Mahabir Singh, who was said to be the gunman of A
Rajesh Narang was also arrayed as an accused. He was,
however, discharged during trial.

6. The learned Sessions Judge, Ferozepore by his
judgment and order dated 8th August, 1997 while convicting
B
accused Gurlabh Singh under Section 302 of the Indian Penal
·• Code, convicted accused Rajesh Narang under Section 302/
34 thereof. Both of them were sentenced to undergo
imprisonment for life and to pay a fine of Rs.3,000/- each in
default to further undergo rigorous imprisonment for one year
each. Accused Rajesh Narang was also convicted under
c
Section 29 of the Arms Act and was sentenced to undergo
rigorous imprisonment for three years and to pay a fine of
Rs.500/-., in default to further undergo rigorous imprisonment
for three months.
D
7. On appeals being preferred thereagainst, the High Court
of Punjab and Haryana at Chandigarh by reason of the
impugned judgment, while opining that the accused had merely
exceeded their right of private defence and thus the offence
committed by them is one under Section 304 Part I IPC, E
convicted Gurlabh Singh under Section 304 Part I and Rajesh
Narang under Section 304 Part I read with Section 34 thereof.
~
Both of them were sentenced to undergo rigorous
imprisonment for eight years.
F
8. The gun in question was a licensed gun of Rajesh
Narang. Mahabir Singh was appointed by him as his gunman.
The fact that incident had taken place on 7th February, 1995
at about 8.00 a.m. is not in dispute. The fact that the death of
Karanjit Singh was caused upon receipt of a gun shot injury is
also not in dispute . G
..;
•
The version of the appellant with regard to the incident,
however, is somewhat different as would appear from the
statement made by Gurlabh Singh under Section 313 of the
H
860 SUPREME COURT REPORTS [2009] 8 S.C.R.

A Code of Criminal procedure, which reads as under :-

" Buses ply in the morning and students both boys and girls
travel in the bus in order to attend to their school and
colleges. A bus in the morning also plies through my village
in which boys and girls students go to Abohar to attend
B
their school and colleges. Karanjit Singh used to tease the
girls. On the preceding Saturday Karanjit Singh teased
girls in the bus which was objected by me which resulted
in an altercation and Karanjit Singh threatened to eliminate
me.
c
On the day of occurrence at 8.15 A.M., I was
standing near the octroi post Abohar along with Raju
Narang and Mahabir Singh, Gunman of Raju Narang. Raju
was talking with one Sat Pal. Karanjit Singh deceased
D along with other alighted from the bus and started giving
injuries to me and Mahabir with sharp and blunt weapons
and tried to snatch the gun from Mahabir. As the gun was
loaded I too resisted the snatching of the gun and during
this snatching process barrel of the gun touched the
E ground and the gun went off suddenly and barrel was
smashed and again during this snatching process, the
second shot also went off and hit the deceased in the head.
I went to police station to lodge the report where I was
made to sit. I was produced in the court on 14.2.1995 and
I made application through my lawyer Shri Harbhagwan
F
Kamboj, Advocate for my medico legal examination, but
the same was dismissed by the Committee Court. I had
10/12 injuries on my person. I am innocent."

9. Mr. Kuldip Singh, learned counsel appearing on behalf
G of the State, would urge:-

(i) Keeping in view the facts and circumstances of the
case, the High Court committed a serious error in
holding that accused merely exceeded their right of
H private defence, as a clear case of conviction
STATE OF PUNJAB v. GURLABH SINGH AND ANR. 861
[S.B. SINHA, J.]

under Section 302 of the Indian Penal Code has A
been made out.

(ii) The right of private defence being within the purview
of general exceptions contained in Section 96 of
the Indian Penal Code, the burden was on the
8
accused to prove the same, which having not been
discharged, the High Court judgment is
unsustainable.

10. Mr. K.B. Sinha, learned senior counsel appearing on
behalf of Rajesh Narang and Ms. Aishwarya Bhati, learned C
amicus curiae appearing on behalf of Gurlabh Singh, would
contend:-

(i) That the version of the accused is more probable
as it was found by the High Court that the first shot, 0
which was fired, did not have any space to exist
from the barrel and thus it got burst at the end and
it was the second shot, which had hit the deceased.

(ii) Mahabir Singh having not been named in the first
information report and the prosecution having not E
explained several injuries suffered by him, it must
be held to have withheld the genesis of the
,. occurrence.

(iii) The incident, if considered, from the point of view F
of the accused would clearly show that the accused
as also the said Mahabir Singh suffered injuries
and while an attempt was made to snatch away the
gun, the first shot which came out from one of the
barrel of the gun hit the ground as a result of which G
the one of the barrel was burst, the second shot had
accidentally hit the deceased.

(iv) In any event, keeping in view the injuries sustained
by Mahabir Singh, the accused was entitled to
exercise their right of private defence. H
862 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 11. The fact that the deceased along with the other
students had boarded a bus and were going to their college is
not in dispute. PW-1, Bakhtawar Singh in,,his evidence clearly
stated that the bus was stopped by the accused persons, who
were traveling in a gypsy and the deceased was dragged out.
B
We have noticed hereinbefore that the accused, however,
contended that deceased not only alighted from the bus but
assaulted them and Mahabir Singh with a sharp edged weapon
and tried to snatch the gun from him.
c 12. With a view to appreciate the rival contentions of the
parties we may notice the injury report as also the post mortem
report of the deceased, which are as u:ider :-

Injury Report
D ,
"1. A lacerated wound 16 ems x 2 ems anteriorly and
8 ems posteriorly, present on the right side of skull
involving frontal, parietal and part of occipital region.
The margins of the wound were inverted anteriorly
and everted posteriorly. The width of the wound was
E increasing anterior-posteriorly. The bones were
partly missing and were fractured. Brain matter was
lacerated and coming out of the wound. Fresh
bleeding was present and was profuse. Margins
were blackened anteriorly.
F
2. An abrasion 2 ems x 1.5 ems present below the
right knee anteriorly.

According to the doctor, the patent was
unconscious, his B.P. and pulse were
G unrecordable. Injury No.1 was declared dangerous
in nature while injury No.2 was declared as simple
in nature. The probable duration of the injuries was
within six hours and injury No.1 was caused by fire
arm while injury No.2 was the result of blunt
H
~,

STATE OF PUNJAB v. GURLABH SINGH AND ANR. 863
[S.B. SINHA, J.]
~
r
I v
weapon." A
-"".
.,. Post-mortem examination

1. Surgical stitched wound 'U' shaped starting from
right frontal region and going to right parietal and
occipital region on upper part and coming back to B
left parietal and frontal region. The length of the
~ wound was about 15", underneath surgical drain
was out. Portions of right temporal parietal and right
occipital bones were missing. Haematoma was
present. Membrances were missing underneath the c
fractures sides and brain matter was badly
lacerated and brick red blood clots were present.
Pieces of skin graft were present over brain matter.
;\
2. Surgical wound in an area 7" x 5" on the front and D
middle of right thigh and skin was removed.

' 3. Abrasion%" x 1/2" on right knee lower part. Clotted
'
ooze was present."
..' 13. The injuries sustained by the deceased would clearly E
show that the place of injury on the deceased was on his head
~ starting from right frontal region and going to right parietal and
.; '
occipital region on upper part and coming back to left parietal
and frontal region being 'U' shaped.
F
14. We would assume that a scuffle ensued between the
accused on the one hand and the deceased and the
prosecution witnesses on the other. It, however, stands admitted
that the barrel of the gun was towards the earth. The first shot
which was fired, did not have any space to exist as a result
G
whereof it bursted. While the scuffle was going on to snatch the
-·· " gun, it would be wholly unlikely that the second shot would hit
the top of head of the deceased in such a manner. The Autopsy

- Surgeon, PW-4 in his report showed the place where the
deceased suffered the guh-shot injury, iii the sketch attached
H
864 SUPREME COURT REPORTS [2009] 8 S.C.R.
I
A thereto. The place of injury was the top of the head. If the barrel ~
of the gun was facing the ground any accidentai fire could have
~
hit the lower part of the body and not the head of the deceased.

15. We, therefore, could not persuade ourselves to agree
8 with the contention of Mr. Sinha.

Both the courts below have relied upon the depositions of
Bakhtawar Singh (PW-1) and Mohinder Singh (PW-2). No ?
inconsistency in their statements having been pointed out and
even otherwise having regard to the defence raised by the
c accused, we do not find any reason to differ therewith.

The first informant was a student. He even, as stated by
the Investigating Officer, was very perplexed and made his
statement when asked to do so very hurriedly. A supplementary
D statement was also prepared but the same was not signed by I
him. If, therefore, injuries sustained by Mahabir Singh had not
been disclosed, the same in our opinion would not make much
difference for the purpose of arriving at a different conclusion.

16. Mahabir Singh was examined by Dr. Lal Chand
E Thakral (PW-3) who found on his person the following injuries:-

"1. An incised wound 5 ems x 1.4 ems present on the
right front to parietal region, 5 ems above the eye "
brow. Fresh bleeding was present. ·'
F
2. A lacerated wound 5 ems x 1 cm x bone deep
present on the right parietal region, present
transversely 10 ems above the right ear pinna.
Fresh bleeding was present.
G 3. A lacerated wound 4.5 ems x 1 cm x bone deep
present on the right parietal region posteriorly ¥

crossing mid line. Fresh bleeding was present.
4. A lacerated wound 6 ems x 1 cm x bone deep
H present on the left parietal region posteriorly 12
,,
STATE OF PUNJAB v. GURLABH SINGH AND ANR. 865
[S.B. SINHA, J.]
l
• ems above the left ear pinna. Fresh bleeding was A
present."

All the injuries were simple in nature. They were, therefore,
no such which would have prompted the accused to take
recourse to their right of private defence. B
17. Mr. Sinha, however, has relied upon the decision of
f this Court in Raj Pal and another v. State of Haryana, [ (2007)
13 SCC 554 ] wherein this Court after noticing Bishna v. State
of West Bengal, [ (2005) 12 sec 657 ], opined :-
c
"22. While there is no absolute rule that merely because
the prosecution has failed to explain the injuries on the
accused ipso facto the prosecution case should be thrown
out, the non-explanation of the injuries on the accused is
'~ certainly an important circumstance which has to be taken D
into consideration by the Court in deciding whether the
benefit of doubt should go to the accused. In Bishna's case
(supra) the entire law on the point has been discussed in
great detail, and hence it is unnecessary to repeat it here.

23. The injuries on the accused include an injury on the E
head, which is a vital part of the body. Ordinarily self-
~
inflicted injuries are on non-vital parts. The injury on the
,, head of the accused Jai Pal required stitches. It is difficult
to believe that this was self-inflicted. Moreover, in the
present case, as noticed above, there are very important F
discrepancies in the prosecution version. It is true that
minor discrepancies will not necessarily lead to the
rejection of the prosecution case, but when there are major
discrepancies and unexplained injuries on the accused it
is an important factor to be taken into account." G
'¥-
The issue in regard to exercise of right of private defence was
determined on the fact of the said case.
Mr. Sinha had also placed reliance on a decision of this
Court in Babu Ram v. State of Punjab, [ (2008) 3 SCC 709 ] H
866 SUPREME COURT REPORTS [2009] 8 S.C.R.

A wherein it was observed :- 'I

"19. Further, it is important to point out that the omission
on the part of the prosecution to explain the injuries on the
person of the accused assumes much greater importance
B where the evidence consists of interested or inimical
witnesses or where the defence gives a version which
competes in probability with that of the prosecution one."

18. In that case both the accused and his wife sufrered
grievous injuries. They were arrested while having been
c admitted in the hospital. In the facts of that case it was held that
the version of the defence that the accused inflicted a single
blow on the person of the deceased in exercise of his right of
private defence of his body as also of his wife who had suffered
several injuries at his hands with a weapon called kappa, were
)•
D not inflicted with an intention of causing death of the deceased.

·19. We may, however, notice that recently this Court in
Bhanwar Singh and others. v. State of Madhya Pradesh, [2008
(7) SCALE 633 ] held as under :-
E "51. To put it pithily, the right of private defence is a
defence right. It is neither a right of aggression or of
reprisal. There is no right of private defence where there 1

is no apprehension of danger. The right of private defence
is available only to one who is suddenly confronted with
F the necessity of averting an impending danger not of self
creation. Necessity must be present, real or apparent.

52. The basic principle underlying the doctrine of the right
of private defence is that when an individual or his property
G is faced with a danger and immediate aid from the state
machinery is not readily available, that individual is entitled ll
to protect himself and his property. That being so, the
necessary corollary is that the violence which the citizen
defending himself or his property is entitled to use must
H not be unduly disproportionate to the injury which is sought
STATE OF PUNJAB v. GURLABH SINGH AND ANR. 867
[S.B. SINHA, J.]
r
(-
to be averted or which is reasonably apprehended and A
should not exceed its legitimate purpose. We may,
however, hasten to add that the means and the force a
threatened person adopts at the spur of the moment to
ward off the danger and to save himself or his property
cannot be weighed in golden scales. It is neither possible B
nor prudent to lay down abstract parameters which can be
~ applied to determine as to whether the means and force
adopted by the threatened person was proper or not.
Answer to such a question depends upon host of factor$
like the prevailing circumstances at the spot, his feelings c
at the relevant time; the confusion and the excitement
depending on the nature of assault on him etc.
Nonetheless, the exercise of the right of private defence
can never be vindictive or malicious. It would be repugnant
:~ to the very concept of private defence. {See Dharam v. D
State of Haryana, [ 2006 (13) SCALE 280] )."

20. These authorities, therefore, have clearly laid down the
legal proposition that right of private defence cannot be raised
because one of the accused had suffered some minor injuries
or the prosecution has not explained the same. E

21. Our attention, however, has been drawn to an
"
i application filed by one of the accused, namely Gurlabh Singh,
on 14th February, 1995 in the Court of Shri Jatinder Paul Singh
Wehniwal, PCS Judicial Magistrate, First Class, Abohar, for F
getting himself examined in the Civil Hospital stating :-

"It is submitted that in the above noted case, accused Labh
Singh alias Gurlabh Singh son of Naib Singh r/o.
Gobindgarh has been produced today in your Hon'ble
Court. Injuries on his person are visible. Therefore, his G
medico legal examination is necessary to be conducted.
Permission may please be granted for conducting his
medico legal examination from Civil Hospital, Abohar. The
applicant is ready to deposit the requisite fee. So, in view
of the above facts the order for conducting medico legal H
868 SUPREME COURT REPORTS [2009) 8 S.C.R.

A examination of accused Labh Singh may please be
' ~

passed."

The said application was dismissed. It itself goes to show
that the learned Magistrate did not find any truth therein.
B 22. Moreover, the occurrence took place on 7th February,
1995. Although the accused raised a plea that they also
intended to lodge the first information report but the same was .
¥

not proved. It may be true that Mahabir Singh was discharged
during the course of trial but that should not have deterred
c accused persons from examining him, particularly when they
examined Sat Pal as DW-2. Mahabir Singh was the gun man
of Rajesh Narang. He, therefore, was on the side of the
accused. He could have been examined to prove the plea of
right of private defence taken by the accused. DW-2 in his ,,'
D evidence stated as under :-

"On the road 30 to 40 boys had collected. There is a gypsy
bearing No.HNX 5000 came which was being driven by
Raju Narang. Two boys were sitting at the back side·of the
gypsy, one was Mahabir and other was Labh Singh. The
E
boys who were standing on the road dragged the boys who
were sitting at the back side of the gypsy and gave them
!
beating. The boys were armed with dangs, kirpans,
hockies etc. There was a gun with Mahabir. During the '
scuffle the barrel of the gun was towards the earth and was
F touching a earth and a fire was shot. At that time Raju ran
away with the gypsy. The second fire hit Karanjit Singh
deceased. When the fire hit the earth, one of the barrels
of the gun exploded."

G 23. The statement of the aforementioned witness does not
fit in with the case of the defence. The learned trial judge, in
our opinion, rightly did not place any reliance thereupon
"'
particularly having regard to the fact that the ocular version given
by PW. 1 and PW-2 was not only found to be trust worthy but
H the same was found to have been corroborated by the medical
STATE OF PUNJAB v. GURLABH SINGH AND ANR. 869
[S.B. SINHA, J.]
,/ A
evidence given by Dr. Lal Chand Thakral (PW-3) and Dr. Daljit
Singh Kochar (PW-4).

24. According to Gurlabh Singh, he was arrested on 7th
February, 1995. It, in absence of any other evidence, cannot
be believed that he has been kept in police custody for 7 days B
without any order of the Court. If he was arrested on 7th
February, 1995 and not on 14th February, 1995 or prior thereto,
he should have got himself examined by any doctor, even
assuming that the first information report was not recorded by
the Officer lncharge of the police station. There is nothing on
record to show that even while he was in judicial custody, he
c
got himself treated by the jail doctors.

25. The High Court, in our opinion, furthermore committed
;(
a serious error in passing the impugned judgment in so far as
it failed to take into consideration that the accused never put D
forth the case of exercise of right of private defence. According
to them the deceased was accidentally hit while the scuffle was
going on. The question of considering their case as if the
accused had exercised their right of private defence or
exceeded the same, therefore, in our opinion, could not have E
been gone into.

"
.,(
26. The High Court unfortunately even failed to consider
that accused Rajesh Narang was a holder of a licensed gun.
He kept the gun loaded. It was in possession of a third party. It
F
was used for a wrongful purpose. He, therefore, had also been
found guilty of commission of offence under Section 29 of the
Arms Act by the trial Judge. That part of the finding of the trial
court was not set aside by the High Court, nor was any reason
assigned therefor.
G
... 27. The bus did not have a regular stop at the place of
I
occurrence. It was stopped by the accused which came in a
gypsy. The defence that 30-34 students surrounded the accused
and inflicted injuries on the person of Mohinder Singh cannot
be believed at all. Their travel to the place of occurrence in a H
870 SUPREME COURT REPORTS [2009) 8 S.C.R.

A gypsy and stopping the bus had not been explained. The
likelihood, therefore, that the students who were traveling in the
bus, finding the shots having been fired, manhandled Mahabir
Singh at a later stage cannot be ruled out. It is, therefore, a case
which comes within the purview of Thirdly of Section 300 of the
B Indian Penal Code.

28. The result is that the appeals of the State are allowed -~

and that of the accused is dismissed. '

N.J. Appeals disposed of.