Didar Singh and anr. vs State of Punjab

K.P.S. Sandhu, J. (Oral)

Two appellants, namely, Didar Singh and Bhagwan Singh have been convicted and sentenced as under by the Additional Sessions judge, Bhatinda, vide his order dated 31st July, 1982.

(1) Didar Singh appellant was convicted and sentenced under Section 307 of Indian Penal Code to rigorous imprisonment for four years and a fine of Rs. 500/; in default, further rigorous imprisonment for three months.

(2) Bhagwan Singh appellant was convicted and sentenced to rigorous imprisonment for six months under Section 323 of the Indian Penal Code.

Two coaccused of the appellants, namely, Teja Singh and Gola Singh were also tried along with them but were acquitted as the case against them was not found to be free from doubt.

The prosecution case as set out by Balbir Singh PW 2, as injured witness and the first informant, is that, according to the warabandi, he had to take his turn of water after Bhagwan Singh appellant. On the day of occurrence, i.e. 12th December, 1980, Bhagwan Singh appellant had given his turn of water to Didar Singh appellant. That turn of water was to end at 7.25 a.m. At that time Bhagwan Singh appellant, Tejwant Singh, Teja Singh and Gola Singh coaccused of the appellants (since acquitted) and Didar Singh were irrigating their field. At 7.15 a.m. Balbir Singh PW asked his siri Banta Singh to divert the water from the field of Didar Singh appellant ten minutes prior to the time when the turn of Didar Singh was to finish. When Banta Singh to divert the water, Didar Singh appellant told him that he could not divert the water before 7.25 a.m. and that in case he tried to do so he would fire at him. Banta Singh is alleged to have gone back out of fear. balbir Singh PW 2 himself went there with a kassi and tried to divert the water. He was also given the same warning but in spite of that he tried to divert water. Bhagwan Singh appellant gave a lathi blow which hit Balbir Singh on his left hand. Didar Singh appellant, snatched the gun from him and caused an injury on the leg of Gola Singh accused with the butt of the gun, which resulted in the fracture of the leg. According to Balbir Singh, this occurrence was witnessed by Baru Singh besides Balwant Singh. On a raula being raised by Balwant Singh and Baru Singh PWs appellants and their coaccused went away from the spot, Balwant Singh and Baru Singh took the injured to his house. In a tractor trolley of one Kartar Singh he was then removed to the bus stand. They carried the gun of Didary Singh, Exhibit P2, with them. The same was handed over to a Constable by Balbir Singh at the bus stand of village Jhunir. He also handed over live cartridge Exhibit P3 to the constable. The empty had been thrown on the spot by Balbir Singh. He reached the hospital at Mansa at 9.45 a.m., and was medically thereby Dr. Kewal Kumar Singla PW 1 at 9.45 a.m. on the day of occurrence who found the following injuries on his person :

Lacerated wound 2" x 11/2" with irregular margins with blackening around going transversely on left side of abdomen, 1" away from midline and 1 1/2" below and lateral to umbilicus.....

Three ovalshaped wounds with blackening around, just literal to injury No. 1, in an area of 2" x 1 1/2".

Abrasions, two in number, each measuring 1/2" x 1/2" in the same area of injury No. 2.

Swelling 1" x 1" on the left hand on its back at base of little finger.

Complained of pain in right chest at level of nipple.

Balkar Singh, SubInspector visited the hospital and recorded the statement of Balbir Singh Exhibit PE. On the basis of the same, formal first information report Exhibit PE was recorded at Police Station, Sardhulgarh.

When examined under Section 313 of the Code of Criminal Procedure, Didar Singh appellant came out with the following version :

"On the day in question at about 6.30 a.m. myself, Mewa Singh, Gola Singh accused and Bhola Singh son of Bhagwan Singh accused and my servant Teja Singh were irrigating my fields. We had put off our turbans and shoes and had placed them at one point. I placed my gun resting against the tehli tree. Balbir Singh PW armed with a single barrel gun, Baru Singh PW armed with a gandasa and Banta Singh PW armed with a Kasuali came there. From a distance of 7 or 8 karams Balbir Singh PW fired a gun shot at me. Baru Singh PW gave a gandasa blow from the blunt side on the left of Ghola Singh accused. Gola Singh raised raula and fell down. All of us except Ghola Singh accused ran away and left behind our shoes, turbans and kahis as well as my gun. I brought tractor from the village I carried Gola Singh accused to Sardhulgarh Civil Hospital. Gola Singh accused was medically examined. I went to Police Station, Sardulagarh, and narrated the occurrence. The police detained me at the police station and did not investigate my version. The complainant party had relations with Congress (I) Party. So the police did not listen to us."

However, no evidence was led in defence.

Apart from the medical evidence, the prosecution, in order to bring home the charges to the appellants, examined the following witnesses. Balbir Singh PW 2 is the injured witness and first informant. The evidence of PW 3 head Constable Prem Singh, PW 4 Moharrir Head Constable Subash Chand, PW 5 Assistant Moharrir Head Constable Harprit Singh, PW 6 Constable Harnek Singh, PW 7 Constable Gurnam Singh and PW 8 constable Chhota Singh is of a formal nature. PW 9 Baru Singh, a close relation of the injured, is another eyewitness. PW 10 Balkar Singh SubInspector and PW 11 Thakkar Singh SubInspector investigated the case.

The spinal and short point for adjudication in this case is to whether the appellants had a right of private defence of property. It is admitted that the right to irrigate is property. It is further the common case of the parties that the occurrence took place in the fields of the appellants. The case of the prosecution itself is that Bhagwan Singh appellant had given his turn of water on the morning of the day of occurrence to Didar Singh appellant and that his turn was to end at 7.25 p.m. It is further admitted by Balbir Singh injured himself that he wanted to turn water to his field from the field of Didar Singh at 7.15 a.m., i.e., ten minutes before the turn of Didar Singh ended. However, he has stated that he was entitled to do so since he was to received the water at a distance of 2 1/2 killas from the place where Didar Singh was irrigating his field. However, no documentary evidence has been brought on record to substantiate the assertion made by Balbir Singh that he was entitled to get the turn of water ten minutes earlier. Neither any witness from the Irrigation Department nor any respectable from the village has been examined in support of this contention. So, in the absence of any such evidence on record it is difficult to come to a conclusion that Balbir Singh was entitled to curtail the turn of water of Bhagwan Singh by ten minutes. On the other hand, the irresistible conclusion from the circumstances and the prosecution evidence would be that Balbir Singh tried to interfere with the turn of Bhagwan Singh which had been given by him to Didar Singh. Therefore, Didar Singh appellant had a right of private defence of property. So much so it is in the evidence of Balbir Singh that when he went to the field of Didar Singh to turn the water from there. Didar Singh warned him that in case he interfered with his turn of water he would be obliged to fire at him in the exercise of his right of private defence of property. Once it is found that a right of private defence of property accrued to Didar Singh appellant, under Section 104 of the Indian Penal Code he had a right to cause any harm to Balbir Singh short of death. So, I am of the view that injuries had been caused to Balbir Singh by Didar Singh appellant in the exercise of his right of private defence of property and that he has not exceeded that right.

For the reasons stated above, this appeal has to be allowed. consequently both the appellants are acquitted and their conviction and sentence are set aside. The fine, if recovered, would be refunded to the appellants. Criminal Revision No. 1406 of 1982 filed by Balbir Singh for the enhancement of sentence fails and is dismissed. However, Didar Singh appellant and Balbir Singh PW are entitled to get back their guns and licences.