Dhir Singh vs State of Punjab

A. P. Chowdhri, J.

Dhir Singh (35) and his younger brother Jodh Singh (28) were tried by the learned Sessions Judge, Amritsar, for an offence under Section 302/34, Indian Penal Code. While Jodh Singh was acquitted, Dhir Singh was convicted under Section 302, Indian Penal Code, and sentenced to life imprisonment and a fine of Rs. 5000/ In default of payment of fine, he was further sentenced to rigorous imprisonment for one year. He was also convicted under section 27 of the Arms Act and sentenced to rigorous imprisonment for two years. Both the sentences were made concurrent. Aggrieved by the conviction and sentence, the convict has preferred this appeal.

The undisputed factual background of the occurrence in this case is that Niranjan Singh PW8 is the father of Ranjit Singh deceased. Niranjan Singh had some joint property with his three brothers, Chanan Singh and others. By a memorandum of partition dated January 17, 1982, Exhibit PL, the agricultural land was divided into four shares. Inter alia it was written in the memorandum that the trees standing in the various parcels of land had been exchanged except for one Lasoora tree which was situated in the land of Chanan Singh and which would remain common to all the four brothers for five years.

The case of the prosecution is that through the intervention of the Panchayat, it was agreed between the parties to the memorandum of partition that whosoever had planted the tree will remain owner of the same even though the tree had fallen in the lot allotted to another brother. Further case of the prosecution is that a Kikar tree admittedly situated in the land allotted to Chanan Singh was claimed to have been planted by Niranjan Singh PW8. On June 4, 1986, Niranjan Singh PW8 along his sons Ranjit Singh (20) deceased and Kuljit Singh PW9 went to the field of Chanan Singh in the morning and started cutting the Kikar tree. Dhir Singh appellant and Jodh Singh, the acquitted accused, are sons of Chanan Singh. They came to the spot and objected to Niranjan Singh and his sons to their cutting the Kikar tree. Niranjan Singh and his sons however, maintained that according to the settlement arrived through the Panchayat they were entitled to cut the Kikar tree and, therefore, they did not stop cutting the tree. Both the aforesaid sons of Chanan Singh went away. After 15/20 minutes i.e. at about 10. 15 or 10.20 a.m. Dhir Singh appellant reappeared at the scene with his licensed 12 bore single barrel gun Exhibit P8. By that time the complainant party aforesaid had cut the Kikar tree and were preparing to carry it away. Dhir Singh fired two shots hitting Ranjit Singh on the shoulder and later in the chest. As a result, he fell down and died at the spot. Jhirmal Singh and Nirmal Singh came to the spot on hearing noise and both the accused ran away from the spot. Niranjan Singh PW8 father of the deceased, lodged a report Exhibit PD at 12.30 p.m. at Police Station Ramdass. Special report was received by the Judicial Magistrate at Amritsar at 2.45 p.m. the same day. SI Gurnam Singh PW10 inspected the spot. He prepared inquest report, sent the dead body for postmortem examination and recovered bloodstained earth as well as one empty cartridge case from the spot. They were duly sealed and deposited in the Police Station He also took into possession the Kikar tree and prepared rough site plan of the place of occurrence. After the postmortem examination, he took into possession the belongings of the deceased Ranjit Singh as well as two sealed bottles containing pellets and wad and the other containing pellets removed from the dead body of Ranjit Singh during the autopsy. The accused were not available till June 12, 1986, when they were arrested. On Jun 14, 1986, Dhir Singh appellant got recovered his licensed 12 bore single barrel gun which was sealed and taken into possession. At the trial, the prosecution produced Niranjan Singh PW8 and Kuljit Singh PW9 as eyewitnesses of the occurrence. Dr. R.K. Goria PW1, who conducted the postmortem examination, was produced to corroborate the testimony of the eyewitnesses. The Investigating Officer appeared as PW10. The reports of the Chemical Examiner and Serologist as also of the Ballistic Expert were produced, besides formal evidence. The eyewitnesses fully supported the version set out above.

The plea of the appellant was that he had gone to his field with his licensed single barrel gun at about 7.30 a.m on the day of occurrence. He found Niranjan Singh and his sons, Ranjit Singh deceased and Kuljit Singh, cutting his Kikar tree. He protested As to why they had cut his tree. The complainant party retorted that unless and until the accused permitted them to use their common tubewell for irrigation, they would cause damage to the trees. The complainant party was armed with deadly weapons like Gandasi, Sota and Kulhari and they surrounded Dhir Singh. Ranjit Singh went near Dhir Singh accused and he was about to give a Gandasi blow to him. It was in these circumstances that in bonafide exercise of the right of private defence of his person and property that he fired from his gun hitting Ranjit Singh. The presence of Jodh Singh at the time of occurrence was denied. The accused produced no evidence in defence,

The Learned Sessions Judge accepted the prosecution evidence and convicted Dhir Singh and acquitted Jodh Singh, as already indicated. This is how this appeal is before us.

It will be convenient to notice the material part of the evidence at this stage. Dr. R.K. Goria PW1 conducted postmortem examination on June 5, 1986. at 9.30 a.m. on the dead body of Ranjit Singh and found the following injuries on it :

A lacerated wound 4 x 3.5 cm on the front of right side or the chest, 8 cm. above the nipple. Clotted blood was present. Margins were inverted.

A lacerated wound 10x7 cm on the front of the right upper arm in its upper one third. Clotted blood was present.

A reddish brown abrasion 3xI cm medial to injury No. 1.

A reddish brown abrasion 2x0.8 cm, I cm below injury No. 3.

A reddish brown abrasion 2x0.5 cm, 6 cm medial to injury No. 1.

A reddish brown abrasion 0.5 cm x 0.2 cm, I cm below supra sternal notch.

On dissection, he found injury No. 1 connecting with the right Pleural cavity through the second and third inter costal space, fracturing third rib at its medial end; pleura corresponding to the injury was lacerated. Wad and 38, pollets were recovered from the right pleural cavity, lung and anterior chest wall. About two litres of fluid and clotted blood was present in the right pleural cavity. On dissection of injury No. 2, five pellets were recovered. The stomach contained 250 CC of semidigested food. Small intestines. contained chyme and large intestines contained faecal matter. The bladder was empty. All the injuries were antemortem in nature. In his opinion, the death was due to shock and haemorrhage as a result of injury No. 1 which was individually sufficient to cause death in the ordinary course of nature. In crossexamination, the witness stated that a broad estimate of the distance from which the fire was made was about 21/2 yards.

Niranjan Singh PW8, father of the deceased, gave the version set out in the earlier part of this judgment. In crossexamination, he admitted that a writing in connection with the partition of the land had been scribed by one Parshotam, a deed writer, He also, admitted that he transferred possession of the land which was previously with him and which had fallen to the share of Chanan Singh to the latter about 4 1/2 years back, after harvesting the Rabi crop of that year. He, however, denied the suggestion that the parcel of land where Kikar tree in question was growing was never in his (Niranjan Singh) possession. He further stated that after the family settlement had been concluded, it was agreed that the tree shall belong to the party who had sown it prior to the settlement regardless of the fact to whom the particular parcel of land had been allotted in the family settlement. The attention of the witness was drawn to the writing Exhibit PL regarding memorandum of partition where the above agreement was not mentioned. The prosecution has thus tried to show an oral agreement which is not only not corroborated by the writing Exhibit PL but it runs counter to the stipulation in the said memorandum. The memorandum Exhibit PL provides that the parties to the memorandum had exchanged the trees except that there was one Lasoora tree which would continue to be common for a period of five years. In other words, the memorandum is not silent with regard to the trees and the writing runs counter to the assertion of Niranjan Singh that it was agreed that notwithstanding the partition of the land the trees would continue to belong to the individual coowner who had planted the same. The prosecution failed to lead independent evidence to corroborate the statement of Niranjan Singh with regard to such an agreement following the execution of the memorandum of family settlement. In the absence of any cogent evidence to prove such an agreement and in view of the fact that the memorandum in writing specifically dealt with the question of partition of trees, we are unable to accept the assertion of Niranjan Singh PW8 that the Kikar tree in question, which was admittedly situated in the land which had fallen to the share of Chanan Singh, father of the appellant, continued to belong to Niranjan Singh.

Kuljit Singh PW9 also supported the above prosecution version. In crossexamination he admitted that prior information had not been given to Chanan Singh or his sons that the complainant party wanted to cut and carry away the Kikar tree standing in their land and after the appellant and his brother Jodh Singh had taken objection to their cutting the tree, they did not go to the village Sarpanch or other respectable persons of the village to assert their right to cut the Kikar tree. Instead they continued the cutting of the tree. By the time the appellant reappeared at the scene of occurrence the tree had been cut. It was found so by the Investigating Officer and it was taken into possession in the course of investigation and is an exhibit in this case.

The law regarding the private defence of property or person is well settled and may be briefly stated here. The onus is on the accused to establish this right not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explicitly or might or might not adduce any evidence in support of it but he can succeed in his plea if he is able to bring out material in the records of the case on the basis of the evidence of the prosecution witnesses or on other pieces of evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or person or both.

The material before the Court to establish the preponderance of probability in favour of the defence plea, may consist of oral or documentary evidence, admissions appearing in evidence led by the prosecution, elicited from the prosecution witnesses in cross examination, presumptions and the statements of the accused recorded under section 313 of the Code of criminal Procedure, 1973.

The Code excepts from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations The most salient of them concerned the defence of body are as under : Firstly, there is no right of private defence against an act which is not in itself an offence under the Code; Secondly, the right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is coterminus with the duration of such apprehension (Section 102). That is to say, right avails only, against a danger imminent, present and real; Thirdly, it is a defensive and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence (Section 99). In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right very reasonable allowance should be made for the bona fide defender "if he with the instinct of selfpreservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack." It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack; Fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Section 100. The combined effect of the first two clauses is that taking the life of the assailant would be justified on the plea of private defence if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of losing his life or limb may, in the exercise of right of selfdefence, inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. This principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled; Fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailant; Sixthly, the right being, in essence a defensive right, does not accrue and avail where there is "time to have recourse to the protection of the public authorities" (Section 99).

It is in the light of the law as explained above that the facts of the present case have to be examined. From the material on record, it is proved that the Kikar tree in question belonged to Chanan Singh, father of the appellant, and Niranjan Singh and his sons had no right to cut and carry away the same. The appellant warned Niranjan Singh and his two sons, including the deceased, not to cut the tree but, they persisted in doing so and actually by the time the appellant returned to the spot with his gun, they had cut the tree. When the appellant objected to the complainant party having cut the tree, they statedly advanced towards him armed with deadly weapons. They must have gone close enough to the appellant as is apparent from the fact that the gun was fired from a distance of about 6/7 feet. In these circumstances, the appellant could, in good faith, apprehend danger to his own life. He was, therefore, justified in firing one shot. We are further of the view that one shot which hit Ranjit Singh on the shoulder was enough to disable him and deter his coaccused. The appellant fired a second shot at Ranjit Singh. This, in the facts and circumstances of the case, amounted to exceeding the right of private defence of person. The case is thus covered under Exception 11 of Section 300, Indian Penal Code, and the offence made out is culpable homicide not amounting to murder. We, therefore, set aside the conviction of the appellant under section 302, Indian Penal Code, and instead convict him under section 304, part1, Indian Penal Code, and sentence him to rigorous imprisonment for seven year.

The appeal stands allowed to the extent indicated above.