Gurnam Singh vs State of Punjab

S.S. Dewan, J.

Gurnam Singh appellant along with his brother Nirmal Singh was arraigned in the Court of Sessions at Ferozepore on the charges of murder of Khazan Singh and committing, murderous assault on Malkiat Singh. The learned Sessions Judge, Ferozepore, acquitted Nirmal Singh accused of the charges and found Gurnam Singh guilty of both the charges under Sections 302 and 307, Indian Penal Code and had imposed the sentence of life imprisonment and fine of Rs. 2000/ under the first count and five years rigorous imprisonment and a fine of Rs. 500/ under the second count with the direction that the substantive sentences so awarded to him shall run concurrently. He has challenged his conviction and sentence in this appeal.

The suggested motive for the crime is that on the fateful day i.e. on 5th November, 1982, at about 8 a.m. Sharam Singh PW was going to his fields when the accused Gurnam Singh and Nirmal Singh met him on the way and there was exchange of hot words between them on account of some earlier dispute of Sharam Singh with the father of the accused. Pritam Singh Lambardar of the village was informed about that incident who advised them not to exasperate the matter.

Sharam Singh complainant, Piara Singh and Khazan Singh since deceased were three brothers. Malkiat Singh injured is the son of Sharam Singh. Gurnam Singh and Nirmal Singh accused are brothers. The wife of Piara Singh is the niece of Ram Singh, father of the accused and Pappi daughter of Khazan Singh deceased is marred to the grandson of sister of said Ram Singh. Sharam Singh and his two brothers were living separately in the same house. The residential house of Kartar Singh is at a distance of about 20 feet from the house of Sharam Singh.

The prosecution case is that on 5th November, 1982, at about 6 p.m. Gurnam Singh accused armed with a gun and Nirmal Singh accused armed with a takwa were standing in the street and they were abusing Sharam Singh. In order to prevent them from abusing Sharam Singh along with Khazan Singh since deceased came out of their house and went to the street in front of the house of Kartar Singh. Khazan Singh asked the accused as to why they were abusing, whereupon Nirmal Singh accused exhorted Gurnam Singh to fire from his gun. Gurnam Singh fired a shot from his gun and the same hit Khazan Singh in his abdomen and he fell down at the spot. Sharam Singh raised commotion on hearing which his son Malkiat Singh was attracted to the spot and they both went to take care of Khazan Singh but in the meantime Gurnam Singh fired another shot which hit the right thigh of Malkiat Singh. When Sharam Singh and Malkiat Singh raised alarm, then both the accused left the place of occurrence with their respective weapons. Piara Singh and Sharam Singh removed Khazan Singh to a hospital at Zira on a tractor but on the way to the hospital, Sharam Singh left for the Police Station and lodged the F.I.R. Ex PO which was recorded by SubInspector Lakhbir Singh. The condition of Khazan Singh being serious he was referred to Mission Hospital, Ferozepore and from there he was referred to P.G.I., Chandigarh where he died on 23rd November, 1982.

On 6th November, 1982, Lakhbir Singh inspected the place of occurrence and prepared its visual plan Ex.PD/1. He also observed three pellet marks on the door of the house of Kartar Singh and also recovered one empty cartridge from there. The Sub Inspector went to the hospital at Ferozepore to record the statements of Khazan Singh deceased and Malkiat Singh but they were unfit to make the statements Sher Singh Assistant Sub Inspector was deputed to effect the arrest of Nirmal Singh accused who was reported to have been admitted in Civil Hospital, Moga. He went to the said hospital and recorded the statement Ex.PS of Nirmal Singh. It is said that on 7th November, 1982, the deceased and the injured witness were declared fit to make statements and the Sub Inspector Lakhbir Singh recorded their statements. Gurnam Singh accused was arrested on 12th November, 1982 and his gun Ex.P.1 was recovered from his possession by Sub Inspector Lakhbir Singh. Gun licence Ex.P.2 in the name of Joginder Singh was also taken into possession from Gurnam Singh. Nirmal Singh accused was reported to have been discharged from the Civil Hospital, Moga, on 14th November, 1982 and he was arrested on the same day. Khazan Singh having died in P.G.I. Chandigarh, his inquest was held by Prem Nath Assistant Sub Inspector and he sent the dead body to the mortuary for autopsy.

Malkiat Singh was stated to have been examined by Dr. Parshotam Dass Gupta on 5th November, 1982 at about 12 midnight and he found the following injuries on his person :

One lacerated wound (R) gluteal region about 1 km in diameter. Wound was 34" below and lateral to anterior exterior iliac spine. Skin around wound was blackened.

On exploration of wound skin, sub outaneous and muscle were blackened which were excised."

Dr. Tajinder Kumar Gupta PW.4 examined Nirmal Singh accused on 6th November, 1982 at 2.55 a.m. and found the following four simple injuries on his person :

Lacerated punctured wound with inverted margins 3/10 cms. in diameter on the back of left leg 14 cm. below the knee jointclotted blood was present. Middle of the left leg was swollen and tender. Xray advised.

Lacerated punctured wound with inverted margins, 3/10 cm. in diameter on the back of left leg 14 cm. above the ankle joint and 13 cm. below the injury No. 1. Clotted blood was present and Xray advised.

Abrasion 3/10th cm. in diameter on the back of left leg 6 cm. from injury No. 1 and 7 cm. above the injury No. 2. Clotted blood was present.

Lacerated punctured wound 3/10th cm. in diameter, with margins inverted, on the back of right leg, 16 cm. from the knee joint. Middle of the leg was swollen and tender. Clotted blood was present. Xray advised.

Dr. U.S. Bansal, PW.3 conducted autopsy on the dead body of Khazan Singh on 24th November, 1982 at about 11 a.m. and found two injures as detailed in the postmortem report Ex.PD. Death was opined to be due to shock and septicaemia as a request of fire arm injury in the abdomen. The probable time that elapsed between the injury and death was stated to be about 18 days and between death and postmortem within 24 hours.

After necessary investigation, the accused were challaned and committed.

The ocular testimony consists of Sharam Singh PW.6 and Malkiat Singh PW.7. Sunder Singh Draftsman PW.10 prepared the site plan Ex.PT of the place of occurrence. Sub Inspector Lakhbir Singh PW. It is the Investigating Officer. The remaining evidence is of formal nature. When examined under Section 313, Cr.P.C., the accused denied the prosecution allegations and pleaded false implication in the case. Gurnam Singh accused, however, gave his own version in the following terms.

"On the day of occurrence in the morning myself and Nirmal Singh were working in the fields. Nirmal Singh had the gun of his fatherinlaw for hunting purposes in the fields. Sharam Singh came towards our fields and entered into a dispute. We gave abuses. Thereafter, he went away and after sunshine myself and Nirmal Singh while returning to our house were yet in the lane when Sharam Singh, Piara Singh, Mohinder Singh armed with guns each and Khazan Singh and Malkiat Singh all drunk came into our lane, started abusing us and raised lalkaras, whereupon we tried to enter our door. I had entered into the door but Nirmal Singh was behind and Sharam Singh and .12 bore gun shot hitting on his legs behind. Nirmal Singh had the gun with him in normal course which he was having while returning from fields. Nirmal Singh fired shots in right of private defence and entered into the house. The gun was left in the house and Nirmal Singh was taken to hospital Kot Ise Khan from where he was brought to Moga Hospital for treatment.

Nirmal Singh adopted the version given by Gurnam Singh. No evidence was, however, led in defence.

Mr. Dara Singh, learned Counsel for the appellant has strenuously urged that Gurnam Singh appellant and his companion Nirmal Singh had committed no offence as they caused injuries to the deceased in exercise of their legitimate right of private defence of person. He stressed that the stand taken by the appellant is more probable as firearm injuries sustained by Nirmal Singh accused land credence to his version and legitimately support the plea of selfdefence advanced by him on his behalf.

After hearing the learned Counsel for the parties and after perusing the material on the record with their help, we are of the opinion that this appeal must succeed. It is plain from the statement of Gurnam Singh appellant under Section 313, Criminal Procedure Code, that two well matched rival versions view for acceptance in this case. Fortunately for the appellant, the medical testimony and the independent circumstantial factors seem to belie the version set up by the prosecution and to tilt the case entirely in favour of the forthright plea of private defence taken by the appellant.

According to the prosecution version, the appellant was the aggressor, who at the instigation of his coaccused Nirmal Singh had launched the premeditated and designed attack by firing two shots from his gun hitting Khazan Singh deceased in his abdomen and causing injury on the right thigh of Malkiat Singh PW. On a close examination of the injuries of Nirmal Singh accused, admittedly suffered by him in the incident negatives the prosecution version. Dr. Tajinder Kumar Gupta PW.4 who medically examined Nirmal Singh on 6th November, 1982, at 2.55 a.m. found three firearm injuries on his leg sustained by him within a probable duration of 12 hours. Itt bears repetition that these injuries appear to us as consistent only with the defence plea of Gurnam Singh appellant that whilst he was entering into his house followed by Nirmal Singh accused, Sharam Singh PW. fired a shot which hit the left leg of Nirmal Singh and then the latter fired shot from his gun in his self defence. The version of Gurnam Singh finds corroboration from the statement of the Sub Inspector Lakhbir Singh PW.11 who has categorically stated that he had observed some pellet marks on the gate of the house of the accused party. This circumstantial factor indicates that the firearm injuries on the person of Nirmal Singh accused were caused first by the complainant party and then the latter sustained firearm injuries by Nirmal Singh. If that be so and it appears to be the only result on the probabilities of the case, it is clear that an unerring finger is pointed out at the complainant party being aggressor who had caused as many as three firearm injuries to Nirmal Singh accused.

This apart, the curious thing is that the prosecution suggests that by coincidence two close relations were the only persons who came to witness the assault on the deceased in a sudden quarrel originating in front to the house of Kartar Singh. It seems strange that at the moment Sharam Singh, the real brother of the deceased and Malkiat Singh son of Sharam Singh are coincidentaly happened to be there. Neither Kartar Singh nor his family members came forward as a witnesses in the case. It emerges from the evidence of Sharam Singh that immediately after the occurrence he met Pritam Singh Sarpanch and apprised him of this incident. Pritam Singh was withheld by the prosecution for the reasons best known to it. Therefore, the absence of disinterested testimony and the strange coincidence of not one but two persons closely related to the deceased and equally inimical to the appellant, arriving at the spot appears to us as the most suspicious and unsatisfactory feature of the prosecution case.

In the light of the aforesaid discussion, it is evident that the prosecution has signally failed to establish the case which it chose to lay against the appellant. In fact, all the circumstantial evidence is a pointer to the fact that the plea taken by him has an inherent ring of truth and, therefore his plea of right of private defence of the body has to be sustained. The appeal is, therefore, allowed and the conviction and evidences of the appellant are hereby set aside.