Dalip Singh vs The State

Gurnam Singh, J.—Chattar Singh son of Gurbux Singh, aged 65 years, Sahib Singh aged 20 years, Dalip Singh aged 28 years and Jodh Singh, aged 25 years sons of Chattar Singh, residents of village Ferozepur Khunda, police station Saddar Pathankot, were tried for the offences under sections 302, 302 read with section 34, 325 read with section 34, 324 read with section 34 and 323 read with section 34, Indian Penal Code, by the learned Additional Sessions Judge, Gurdaspur. Chattar Singh, Jodh Singh and Sahib Singh were acquitted of all the charges, but Dalip Singh was convicted u/s 304, Indian Penal Code, and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/- or in default, to further undergo rigorous imprisonment, for six months. Dalip Singh has filed Criminal Appeal No. 557 of 1972.

2.The prosecution story, briefly stated, is that about 5 days prior to the present occurrence, the cattle of the appellant damaged the paddy crop of Dhian Singh, P.W. Dhian Singh in the company of Fauja Singh went to Chattar Singh appellant to lodge a protest but he (Chattar Singh) and his sons Jodh Singh and Dalip Singh quarrelled with him and abused him. Fauja Singh, however, intervened and separated them. On 21st August, 1971 at about 5/6 P.M. the cattle of the accused again damaged the crop of Dhian Singh, P.W. Amar Singh deceased and his sons Karam Singh and Dhian Singh, P.Ws., proceeded towards the house of the accused to protest and then they reached the Phirni, the accused met them and they lodged the protest. At that time Chattar Singh was armed with a Kirpan. Jodh Singh and Sahib Singh brought lathis from their house and Dalip Singh brought a Kirpan. It is alleged that Chattar Singh exhorted that Dhian Singh etc., should not be allowed to go alive. Dalip Singh gave a Kirpan blow on the right side of the neck of Amar Singh as a result of which he fell down. Thereafter Chattar Singh gave a Kirpan below on his head. When Dhian Singh intervened to save his father, Chattar Singh gave him a Kirpan blow, from its reverse side, on his forehead and Jodh Singh gave him 2/4 blows on his right arm with his Dang. Sahib Singh gave him two Dang blows on his left and right thighs. All the accused caused injuries to Karam Singh also, Amar Singh died at the spot. As Karam Singh and Dhian Singh were armed with Lathis and they used the same in self-defence so Dalip Singh, Jodh Singh and Sahib Singh received injuries. When Karam Singh became unconscious, the accused fled away.

Leaving Gian Chand Chowkidar to guard the dead body of Amar Singh, Dhian Singh, P. W., went to police station Saddar Pathankot and lodged First Information Report, Exhibit P.H., with Assistant Sub-Inspector Darshan Singh. Assistant Sub-Inspector Darshan Singh came to the spot and prepared the inquest report, Exhibit. P.C., and sent the dead-body for post-mortem examination He also took into possession blood-stained earth and turned it into a sealed parcel. Dhian Singh and Karam Singh. P.Ws., were got medically examined. The accused were arrested on 23rd August, 1971. Chattar Singh accused produced Kirpan, Exhibit P. 1, and Dalip Singh Kirpan. Exhibit P. 2.

4 The post-mortem on the dead body of Amar Singh was conducted by Dr. K. N. Kaul on 22nd August, 1971 at 5-00 P.M. and in his opinion death was due to shock and profuse haemorrhage due to injuries to the neck. The doctor further stated that injuries Nos. 1 and 2 on the body of Amar Singh deceased could individully be sufficient to cause death.

Karam Singh. P.W. was examined on 22nd August, 1971, and Jodh Singh, Sahib Singh and Dalip Singh accused were examined on 23rd August, 1971. Dhian Singh was examined by Dr. A. N. Soni on 22nd August. 1971 at 1.50 A.M.

The prosecution examined Dhian Singh and Karam Singh as eyewitnesses in the case.

The plea taken up by Dalip Singh appellant was that he along with his brother Jodh Singh was sitting near their cattle in front of their house, that Amir Singh deceased, Karam Singh and Dhian Singh armed with Dangs came there that abuses were exchanged, that Amar Singh deceased opened attack on him and gave a Dang blow on his forehead, that they all continued assaulting them with their respective weapons, that they in their self-defence caused injuries to them and that Chattar Singh and Sahib Singh accused, since acquitted, were not present there.

Karam Singh, P. W., has admitted that his father Amar Singh deceased first gave a Dang blow on the head of Dalip Singh and thereafter Dalip Singh gave a Kirpan blow on his neck. The learned Sessions Judge relying upon Parichhat and Others Vs. The State of Madhya Pradesh, and in view of the fact that the head injury of Dalip Singh was simple held that he (Dalip Singh) had exceeded the right of private defence and as such convicted him u/s 304, Indian Penal Code.

The learned counsel for the appellant vehemently contended that it is not a case in which the appellant had exceeded the right of his private defence, rather Amar Singh deceased gave a Dang blow on his head and the companions of the deceased were also armed, so he appreshended unlawful aggression on their part and gave a Kirpan blow to Amar Singh and as such no offence was committed by him.

In this case, as stated by Karam Singh, P. W. Amar Singh deceased first abused the accused and also gave a Pang blow on his forehead. So as soon as he (Amar Singh) gave a Dang blow to Dalip Singh, the right of private defence accrued to him and that right continued so long as such apprehension of danger to body continued Dalip Singh and others were sitting in their court-yard and the complainant party went there aimed. So the right of private defence was available to the appellant against apprehended unlawful aggression. It is a preventive and not punitive right. The blow given by Amar Singh to Dalip Singh was aimed on a vital part of the body like head. It is generally seen that a Lathi blow given on head sometimes proves fatal. It has been held by the Hon''ble Judges of the Supreme Court in Deo Narain v. The State of U.P. 1973 Ch R 412 Criminal Appeal No. 192 of (969, that in such like cases it cannot be laid down as a sound proposition of law that the victim is not justified in using a spear in his defence. It has been further observed that :--

In such moments of excitement or disturbed mental equilibrium it is somewhat difficult to expect parties facing grave aggression to cooly weigh, as if in golden scales, and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression.

This Court in Ajit Singh v. The State of Punjab AIR 1972 P&H , held that :--

The appellant never made an attack first and it was The deceased who gave a dang blow. Even at this stage when the appellant could reasonably apprehend danger to his life or grievous hurt being likely to be caused because of the determination of Harnam Singh to give blows with his dang. Ajit Singh gave only one spear blow He must, in the circumstances, be held to have acted in the exercise of right of private defence of body.

In the above cited case the deceased had given the first Dang blow hitting the appellant on the back of left fore-arm and it was then that the appellant gave a spear blow in his chest and it was held that the appellant apprehended danger of grievous hurt and had acted in the right of his private defence of his body and was acqitted.

In Parichhat and Others Vs. The State of Madhya Pradesh, the medical evidence was that the injury on the head of Parichhat, father of Gangu accused, was on the back which indicated that he was attacked when he had his back towards Kanshi Ram. Kanshi Ram had given that blow to Parichhat and Sita Ram and Ram Sahai exhorted Gangu who gave a Ballam blow in the chest of Kanshi Ram. It was thus held that Gangu had exceeded the right of private defence The facts and circumstances of that case in hand are mostly covered by the case Deo Narain v. State of U.P. 1973 Ch R 412 (supra) and as Dalip Singh apprehended danger of grievous hurt or death at the hands of Amar Singh and his sons so his act in using his Kirpan as against Amar Singh is covered by section 100, Indian Penal Code. His conviction is, therefore, bad in law. This appeal is accepted and the conviction and sentence of the appellant are set aside and he is acquitted of the charge. His bail bond is discharged.