Bachan Singh Basant Singh vs The State

Chopra, J.—Bachan Singh appellant and his son Sukhdev Singh were sent up for trial for the murder of Gurdial Singh and were charged under S. 302/34 IPC. The Session''s Judge, Patiala, acquitted Sukhdev Singh but convicted Bachan Singh under S. 302 IPC and sentenced him to transportation for life. This is an appeal by the convict.

Or behalf of the appellant it is urged I that the trial is vitiated inasmuch as Bachan Singh could not be convicted for an offence for which he was not charged. Reliance in this connection is placed on the recent pronouncement of their Lordships of the Supreme Court in Nanak Chand Vs. The State of Punjab,

That is a case of vicarious liability under S. 149 IPC, holding that since S. 149 IPC, itself creates a specific offence, by framing a charge under S. 302, read with S. 149 IPC. against the accused, the Court indicated that it was not charging the accused with the offence of murder and to convict him for murder and sentence him under S. 302 IPC was to convict him for an offence with which he had not been charged.

It was further observed that in defending himself the accused was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case. The same however cannot be said with respect to an accused charged for a substantive offence, read with S. 34 I.P.C. There is substantial difference between the two sections of the Indian Penal Code (149 and 34), although to some extent they do overlap.

Section 34 simply embodies the commonsense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually. This Section is a mere statement of explanation to be attached to any section which deals with a criminal offence. In law there is little or no distinction between a charge for an offence under a particular section and a charge under that section read with S. 34.

By the application of S. 34, IPC the accused is not charged for being responsible for anything done by one of his companions but for the act done by himself along with some others. In a case where the other persons are not proved to have joined in committing the offence, but the offence is proved to have been committed by the accused himself, there appears to be no reason why he cannot be convicted for his own acts and for committing the offence himself. No question of prejudice arises, for the accused is convicted for the offence or which he was charged.

In the present case, the charge-a joint one against the two accused - states ''both of you'' in furtherance of your common intention to take the life of Gurdial Singh, fired at Gurdial Singh and thereby caused his death, and therefore both of you are liable under S. 302/34 IPC. The charge unequivocally told the appellant that he had the intention to kill Gurdial Singh and that he fired at Gurdial Singh with that intention and thereby caused his death.

The fact that one more person was stated to have done the same thing with the same intention along with him, does not create any difference. Acquittal of the appellant''s companion upon the same charge is equally meaningless so tar as the legality of his conviction is concerned. There is no question of prejudice because the facts on which the appellant has been convicted are the same which were necessary to prove the charge upon which he was actually tried.

The considerations which govern S. 149, IPC, are entirely different from and in many respects the opposite of those which govern S. 34. Where a Court draws up a charge under S. 302 read with S. 149, IPC, it intimates the accused persons that they did not commit the murder themselves but that they are guilty of such offence by implication, inasmuch as somebody else in prosecution of the common object of the unlawful assembly of which they were members did cause the murder.

When these persons are acquitted of rioting, obviously the offence they are stated to have committed by implication disappears. The defence in such a case is not called upon to answer to the specific act of murder simply because it may have appeared in evidence. All this would not be true where the charge is for a specific offence read with S. 34. IPC. A clear distinction between the two sections was drawn by Imam J. in the above noted case and it is in the following terms:

There is a clear distinction between the provisions of Ss. 34 and 149 IPC and. the two sections are not to be confused. The principal element in S. 34 IPC is the common intention to commit a crime. In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation S. 34 provides, that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone.

There is no question of common intention in S. 149 IPC. An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled.

Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence.

This decision, therefore, is of no help to the appellant.

In any case, it is not even contended that the appellant was or was likely to be prejudiced in his defence by the omission of or defect in the charge. Section 535(1) Cr.P.C. lays down that no finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby.

An error or omission in a charge is curable under S. 537, Cr.P.C., unless such error or omission has in fact occasioned a failure of justice. There is nothing to show that the case falls under the exception, for has it been so urged. The contention is consequently rejected.

On merits, it is not disputed that the shot which resulted in the death of Gurdial Singh, was fired by Bachan Singh appellant. The fact stands abundantly established not only by the testimony of the four eye-witnesses but also by the confessions the accused made, even before his arrest, to S. Bhan Singh, Excise Sub-Inspector, Shri K.L. Budhiraja, D.C. Sangrur & Shri Sohan Lal, Magistrate 1st Class (Executive). The last one of these was duly recorded. Therein the appellant further admitted that he had concealed the weapon of offence under a tree near Gurdwara Mastuana. Shortly thereafter he got the gun recovered from the place of its concealment. At the trial, the appellant admitted to have fired from his gun. This is what he says:

The six persons Bhagta, Bhundu, Jeet Jaggar, Maghar, Gurdial attacked me on the day of occurrence while I was sloughing my field. They threatened me that I should keep my gun there otherwise I would be killed. I refused to place the gun there. When I tried to run away to save myself, Gurdial gave me two lathi blows on the left side on the front part of my chest. He also gave me a blow with the front portion of his lathi which resulted in the breakage of my one tooth. I then ran away with the run. I then fired a shot in the air. I ran towards Ghaggar side wherefrom I went to Mastuana and then came to Sangrur.

A written statement almost in similar terms was also filed. Out of the six persons mentioned, Gurdial Singh is the deceased, Bhagta and Bhandu are the two eye-witnesses, besides Gajjan Singh and Dalip Singh.

Mst. Nihal Kaur, wife of Bachan Singh appellant, alone was examined in defence. She stated that Gurdial Singh and others surrounded Bachan Singh. Gurdial Singh gave two lathi blows to Bachan Singh and the latter fired when another blow was aimed at him. She however, denied that the shot hit Gurdial Singh or that he fell down and died at the spot.

The question canvassed before us on behalf of the appellant is that he acted in self-defence of his person as well as property. The bone of contention between the parties is certain land that belonged to S. Premindar Singh. Bachan Singh appellant was the Mukhtiar of S. Premindar Singh and in that capacity he used to lease out his lands to different persons, including the deceased and the prosecution witnesses. By a registered deed dated 9-6-1953 Bachan Singh purchased land measuring 152 bighas and 3 biswas belonging to Premindar Singh.

Out of this area Bachan Singh leased out fields known as Saifanwala (part of Khasra No. 3) for one year to Gajjan Singh (P.W. ) Lease-deed (Ex. DA.) dated 30-3-2010 Bk. (13-7-1953) was executed by Gajjan Singh in favour of Bachan Singh in this connection. The deed does not mention the total area so leased out to Gajjan Singh. From the evidence, however, it appears that land measuring 30 bighas was leased out to Gajjan Singh and about 40 bighas to Gurdial Singh.

The lands leased out to them are contiguous. Gurdial Singh and Gajjan Singh are distantly related, and probably they cultivated some land jointly as well. The present incident took place on the morning of 15-1-1954. The prosecution case is that a day prior to this Bachan Singh, with a view to take forcible possession of a part of the land, went to the field and ploughed a portion of it. In the morning of the fateful day, Bachan Singh again went to* plough the field. Gurdial Singh and Gajjan Singh, having come to know of it, also arrived with their ploughs.

Bhundu father of Gurdial Singh and Bhagta father of Gajjan Singh proceeded to the place apprehending some trouble. Dalip brother of Gurdial Singh and Sukhdev Singh son of Bachan Singh appellant followed a little later. Bachan Singh had a sheathed sword and his son brought a licensed gun with him. Bachan Singh, who was already in the field, did not allow Gurdial Singh and Gajjan Singh to enter upon it. As could well be expected, this gave rise to an altercation. Bachan Singh inflicted two or three blows on Bhagta with the sheathed sword.

The sheath broke and the pieces were picked up by Bhagta. Bachan Singh attacked Gurdial Singh with the sword, but the latter warded off the blows on his lathi and retired. Sukhdev Singh is then said to have shouted that the Chamars would not be allowed to escape, and he passed on the gun to his father. Bachan Singh took the gun and fired. It hit Gurdial Singh at the back of his neck and he fell down dead Report of the incident was lodged by Bhagta the same day at 1 P.M. in police-station Ghaga, at a distance of three miles.

On 21st January, Bachan Singh, accused went to Sangrur with a view to surrender himself to the police. In the way he met two peons of S. Bhan Singh, Excise Sub-Inspector. The peons took him to their master at his residence Bhan Singh made a confession of his guilt to S. Bhan Singh and thereafter to Shri K.L. Budhiraja, D.C. Sangrur. The latter deputed S. Sohan Lal, Magistrate to record the confessional statement. This was duly recorded the same night. Shri Sohan Lal also got the gun recovered. Bachan Singh was then admitted, to the judicial lock-up, Sangrur.

The post-mortem examination on the dead-body of Gurdial Singh revealed eight gunshot wounds on the upper part of back, extending up to the back of neck and shoulder. There was no charring or blackening. In the opinion of the doctor, the probable distance from which the shot was fired, must have been more than five yards, say eight to ten yards.

The theory of self-defence of person is not only denied by the eye-witnesses examined by the prosecution but is forcefully negative by the medical evidence. If, as alleged by the defence, Gurdial Singh was fired at when he was attacking or was about to attack the appellant, the shot ought to have struck somewhere on the front part of his body. On the other hand, it hit him on the back, which supports the prosecution, version that Gurdial Singh was then retiring with his back towards the assailant.

The defence story is also falsified by the distance from which the shot must have been fired. If Gurdial Singh was actually assaulting Bachan Singh when the shot was released, the range must have been much closer. In that case the pellets must have entered en mass or at least caused one central main-hole. The nature of the wounds and the extent of dispersion leave no doubt that the medical witness is correct in forming the opinion that the shot was fired from a distance of eight to ten yards. That is also the distance given by the prosecution witnesses.

Moreover, the accused''s statement that he was struck twice with a lathi and that one of his teeth was extracted is not corroborated by any independent evidence. He was not found to have any injury on hit person when he was arrested. He did not get himself medically examined. Nor did he point out any injury on his person to the officers before whom he had the chance to appear. It is also significant that the trouble, as will be presently seen, was of Bachan Singh own seeking. The alleged right of defence of person cannot, therefore, be accepted.

As regards the self-defence of property, reliance is placed on a stipulation in the lease-deed, that the landlord shall take possession of the portions of the land subject to the lease as they are vacated. The deed further states that the landlord shall be entitled to possession of the land where paddy was cultivated on the raising of that crop, and the land where Rabi crop was sown on its getting vacant. The lease was for one year and admittedly that period had not yet expired.

The defence contention is that since a portion of the land was lying vacant the landlord was within his rights to occupy and plough it. It is further urged that the appellant had, without any obstruction, got into the land and ploughed a part of It on the previous day and he was already there on the day of incident as well. The argument is that he was entitled to maintain the possession which he had peacefully obtained, and whatever he thereafter did was in exercise of his right of defence of that property.

The contention is no doubt ingenious but without substance. There were yet Ave months in the expiry of the lease. The tenants were entitled to retain possession till the end of Har 2011 Bk. while the incident took place on 3rd Magh 2010. Khasra Girdawari (Ex. PW/12 D 1) shows that, in the particular field, the tenants had sown paddy in Kharif 2010. In rabi 2011 they cultivated green fodder in four bighas and four biswas of this field, and the rest of it was left vacant.

The mere fact that a part of the land was lying vacant did not entitle the landlord to terminate the lease unilaterally. The land could revert to the landlord only with the express or implied consent of the tenants. In spite of a somewhat ambiguous term of the lease-deed, the tenants could and did refuse to part with the land till the expiry of one year. In that case, the landlord should have had recourse to law to eject the recalcitrant tenants. He could not take the law into his own hands and forcibly dispossess them, simply because one of the terms of the lease was being refused to be implemented.

Without asking the tenants to surrender possession and without informing them about it, Bachan Singh ploughed a part of the field on the evening. At the time of incident, he went a little ahead of them and did not allow Gajjan Singh and Gurdial Singh enter upon the land. Can it be said that, under these circumstances Bachan Singh had the right of private defence of property. The answer shall have to be in the negative.

A person in actual and peaceful possession of property is entitled to maintain that possession even by use of force if necessary. The question whether he had or had not the right to possession is immaterial. Here the persons in actual and peaceful possession were the tenants. Bachan Singh was only a trespasser, although he might have been under the impression that he was entitled to possession. The tenants who had not acquiesced or accepted Bachan Singh''s right, could re-enter and reinstate themselves provided they did not use more force than was necessary.

The possession which a trespasser is-entitled to defend against a rightful owner, must be a settled possession extending over a sufficiently long period indicative of acquiescence on the part of the true owner. A casual act of possession or mere entry on a vacant part of the land cannot have the effect of interrupting the possession of the rightful owner. This well recognized principle is fully applicable to the facts of the present case. The tenants were in peaceful possession of the land. They would be deemed to have continued in possession in spite of the stray act of Bachan Singh in clandestinely ploughing a part of the land one evening.

The tenants were thus entitled to maintain their possession which they had never lost. They did not commit any offence when they tried to enter upon the land leased out to them. They could also meet resistance to the exercise of that right by using necessary force. Bachan Singh who wanted to enforce his supposed right, could not claim any right of self-defence of property. The contention was, therefore, to be rejected.

In the result, the appeal fails and la hereby dismissed.

Passey, C.J.

I agree.