Jai Dev and Another vs State

Shamsher Bahadur, J.—The five appellants Jai Dev, Dhanpat Singh, Hari Singh, Sajjan Singh and Yudhvir Singh are brothers and alongwith their co-accused Basti Ram, another brother, and Parbhati, were tried for the offences of rioting, causing of grievous hart and murder by the learned Additional Sessions Judge of Gurgaon. Basti Ram and Parbhati have been acquitted but the five appellants have been found guilty of the various charges framed against them. Each of the five convicts has been sentenced to:-

(1) death u/s 302/149, Indian Penal Code.

(2) two years'' rigorous imprisonment u/s 316/149, Indian Penal Code.

(3) one year rigorous imprisonment u/s 148, Indian Penal Code.

Three separate appeals have been filed by the convicted persons: Criminal Appeal No. 635 of 1961 by Jai Dev and Dhanpat, Criminal Appeal No. 636 of 1961 by Hari Singh and Sajjan Singh and Criminal Appeal No. 637 of 1981 by Yudhvir Singh. The proceedings are also before us for confirmation of their death sentences in Murder Reference No. 59 of 1961. All these matters will be disposed of by this judgment.

The incident involving the deaths of as many as seven persons, one from the side of the appellants (Ram Pat, brother of the appellants) and six from the opposite side (Hukma, Jai Narain, Jai Dev, Amin Lal, Mst. Sagarli and Mst. Dil Kaur) and injuries to nine persons (three from the side of the appellants and the others of the opposite side) took place in khasra No. 388 in Mauza Ahrod known as ''Inamwala field'' at 10-30 A.M. on 14th of September, 1960 The occurrence was a culmination of a battle for possession of land between the appellants who are admittedly its owners and the party of the complainants who claiming to be in possession resisted the efforts of the owners to plough it. As the decision of this case must turn largely on the question whether or not the appellants were in possession of the ''Inamwala land'' it would be of advantage to have a clear picture of the situation as it emerged after litigation in civil, Criminal and revenue Courts.

The land in khasra No. 388 comprising of 71 bighas and 6 biswas was given as a charitable gift by the proprietary body of the village Ahrod to one Baba Kanhar Dass many years ago. This land had been in cultivation of Amin Lal deceased, Jug Lal, P.W., Charanji Lal and Duli Chand as tenants. Kanhar Dass sold the entire parcel of land by a registered deed of 30th of May, 1958, for a sum of Rs. 25,000/- to the appellants and their brothers Basti Ram and Ram Pat deceased, who being of village Kulana were considered as strangers by the villagers of Ahrod although the distance between the two places is only one mile. The transference of the land was resented by the proprietary body of Ahrod who had given it as a gift to Baba Kanhar Dass, and a declaratory suit to challenge the sale was filed on 28th of June, 1958, hardly less than a month after the execution of the document of sale. This suit and also the two subsequent pre-emption suits filed by the proprietors having been dismissed, the appellants and their brothers instituted a suit for possession of the land comprised in khasra No. 388 on 19th of February, 1959, and it was alleged therein that Amin Lal deceased, Jug Lal P.W., Charanji Lal and Duli Chand were in possession of it as trespassers. This suit was decreed on 26th of October, 1959 (vide Exhibit D.A.C.) by the Subordinate Judge, 1st Class, Rewari. The decree-holders at once levied execution proceedings but the party of the soi disant tenants, who would hereinafter be referred to as ''resisters'', filed an appeal and obtained an order for stay of execution proceedings. This ex parte order of stay was, however, modified by the order of the District Judge of Gurgaon, passed on 18th of December, 1959 (Exhibit D.A.E.). In this order it was mentioned by the District Judge that only 15 bighas of the suit land was under cultivation of the resisters. The stay was confirmed only in respect of this land and an order was made for delivery of possession of the remaining 56 bighas and 6 biswas, vide Exhibit D.A.E. of 18th of December, 1959. In pursuance of the order of the District Judge, Gurgaon, a warrant of possession (Exhibit D. T/1) was made by the Subordinate Judge, Rewari, on 23rd of December, 1959. It was stated in this warrant that barring (sic) bighas of land under cultivation of the resisters, possession of the remaining 56 bighas and 6 biswas of land was to be given over to the decree-holders. It may be observed in parenthesis that the area of 15 bighas is referred to as 30 bighas kham in the relevant documents. On the same day, the Qanungo reported vide Exhibit D.S., that delivery of possession was made over to Basti Ram and his brothers by the process of ploughing the land after a proclamation had been made in the village. The possession of the remaining land, namely 15 bighas was taken over by the appellants in pursuance of another warrant, Exhibit D.T. of 13th of July, l960 after the appeal of the resisters had been dismissed by the learned Additional District Judge on 2nd of July, 1960 (Exhibit D.A.D.). As some gram crop was still growing and the appellants wanted actual and not symbolical possession, a sum of Rs. 40/- as compensation was assessed by the authorities and paid by the appellants before possession was recorded to have been taken over by them on 21st of July, 1960, vide Exhibit D. T/C.

According to the evidence of Patwari Lakshmi Chand, P.W. 36 and Dalip Singh Girdawar D.W. 3, the possession of 56 bighas and 6 biswas of land in the Inamwala field was delivered to Basti Ram and his brothers on 23rd of December, 1959. The place of occurrence, as deposed by Lakshmi Chand, and according to the plan Exhibit P.A.B., fall''s inside the boundary of the area of which possession was given on 23rd of December, 1959. This witness also proved entries in the khasra girda-waries (Exhibit C.C). The girdawari for Rabi harvest of 1960 was made in the month of March. 1961, and the record shows that 56 bighas and 6 biswas on land is entered in the name of Basti Ram and others. The possession of the remaining 15 bigas is still shown in the names of Amin Lal, Charanji Lal, Jug Lal and Duli Chand as tenants-at-will. For the Kharif harvest of l959, the possession over the Inamwala field is shown as that of Amin Lal, Charanji Lal, Jug Lal and Duli Chand as tenants-at-will holding possession by force. It may also be mentioned that in the earlier khasra girdawaris, portions of crops are sometimes shown as ''kharaba''.

The appellants also resorted to criminal Courts for assertion of their right of possession in the Inamwala field. On 20th of January, 1961, an order was passed by Mr. H.K. Lall, Sub-Divisional Magistrate, Rewari, u/s 148 of the Code of Criminal Procedure. In his order (Exhibit D.A.F.), the learned Magistrate without deciding "the merits of the claim" found that the party of Harji Ram (father of Basti Ram) etc. was in actual possession. The Magistrate declared that Harji Ram etc. were in possession of the said land and entitled to retain such possession until ousted by the course of law, and in the operative part of the order it was mentioned that he would "strictly forbid any disturbance of their possession in the meantime". Earlier, Basti Ram had actually submitted an application (Exhibit D.A.G.) to the Deputy Inspector General of Police, on 23rd of August, 1960, and all the stages leading to the final possession of 15 bighas of land on 21st of July, 1960, were mentioned therein. The prayer in this application was for police protection as Basti Ram and his brothers were in great fear of Amin Lal and others who were threatening to interfere with their possession. It was reiterated that effective possession of the land was already with Basti Ram and others but unless the police protection was given to them there was danger of their being forcibly ousted. A month before the occurrence, both parties were bound down u/s 107 of the Code of Criminal Procedure.

We are unable to agree with the conclusions of the learned Sessions Judge that the reports regarding the delivery of possession of the land to the appellants are mere "paper entries" and not being "as good as these look". We do not find that there is any justification for the finding of the learned Judge that the actual possession of the land all along had remained with the party of the resisters. The report of the Girdawar dated 23rd of December, 1959 (Exhibit D. U/A) cannot be regarded as fictitious. The learned Judge has placed reliance on certain circumstance, especially the failure of the revenue authorities to have informed the judgment-debtors about the warrant of possession. The resisters had been opposing by all methods delivery of possession. The order of the District Judge, Rohtak (Exhibit D.A.E.) of 18th of December, 1959, modifying the previous stay order was passed in presence of the parties. It is in pursuance of this order that the warrant for possession was actually issued and executed. It is not a requirement of any statutory rule that the judgment-debtor should be informed before delivery of possession is actually made. Indeed, under rule 22 of Order 21 C.P. Code, a notice to the judgment-debtor is essential only in an execution application which is filed more than one year after the date of decree. The evidence of Dalip Singh D.W. 6 to show that one of the judgment-debtors was orally informed that delivery of possession was to be made over to the appellants has been disbelieved. It has also been found by the Court that no proper proclamation regarding delivery was made. Mr. Kwatra has further brought to our notice certain rules which have been framed u/s 141 of the Punjab Land Revenue Act. These, however, are only instructions issued for the guidance of the revenue officers who are to execute warrants for delivery of possession. In these instructions, it is provided, inter alia that the Patwari should take such steps as are practicable for the procuring of the attendance of the judgment-debtor and that the delivery of possession should be made in presence of one or more Lambardars. It has been asserted that these instruct ions have been honoured more in the breach than the observance. It has, however, to be observed that the failure of the Patwari to secure the presence of the judgment-debtors when possession was actually made over to the appellants does not vitiate the proceedings as appears to have been the impression of the learned Sessions Judge.

There is no evidence which could enable us to eradicate the recorded note of the Patwari that possession had been taken by the process of ploughing. When possession of the remaining 15 bighas was taken it was specifically mentioned by the appellants that they had already taken over 56 bighas and 6 biswas of land. This assertion that possession had already been taken over has been repeatedly made by the appellants in the various documents to which reference has already-been made. When police aid was asked for in their application Exhibit D.A.G. dated 23rd of August, 1960, it was mentioned that possession, of the entire land had been taken over. There was no point to be gained by the appellants in misleading the authorities by making a wrong; assertion with regard to possession. It would be pertinent to point out that Jug Lal, P.W. 13, one of the four tenants who were cultivating the land under Babu Kanhar Dass, though denying that possession had ever been taken over by the appellants, in his statement before the police admitted that in pursuance of the decree of the Subordinate Judge, Rewari, possession of 56 bighas and 6 biswas of land had been taken over from the tenants (vide portion marked "A-A" in Exhibit D.N). This, witness also stated in Exhibit D.N. (Portion marked ''B-B'') that excepting an area of 15 bighas of disputed land possession had been taken over by the appellants of the remaining portion. It is also apparent from the statement, Exhibit D.A.B., made by one Khem Chanel on 3rd of March, 1960, during the course of criminal proceedings pending between the parties before the Sub-Divisional Magistrate, Rewari, that the possession of the half of the land in dispute had been taken over by Basti Ram. It seems clear to us, therefore, that it has been established from the evidence that possession of the entire area of 76 bighas and 6 biswas had been taken over by the appellants; in any event, according to the admissions made by members of the party of the resisters, themselves substantial portion of the land had been taken, possession of.

We may now examine the case which has been presented on behalf of the prosecution. Between 9 and 10 A.M. on 14th of September, 1960, the appellants and their brothers Ram Pat deceased and Basti Ram came to the Inamwala field with their tractor and started ploughing the bajra crop which had been sown by the tenants. Jug Lal, Amia Lal, Ram Chander, Sunda, Jai Dev, Hukma and others remonstrated that their crop should not be destroyed in this fashion. Dhanpat Singh, who was driving the tractor, had a pharsi with him while Jai Dev and Hari Singh appellants were standing armed with rifles. Yudhvir Singh appellant had a pistol. Sajjan Singh appellant and Parbhati, who has been acquitted, had pharsis while Ram Pat had a bhalla. To the appeal made by folded hands by the party of the resisters the appellants, replied that they had got possession of the land and they would not permit any interference in the ploughing operations. An altercation, ensued and the working of the tractor was stopped Though, as found by the learned Sessions Judge, it is not clear who took the initiative in the fight, it appears from the evidence that Sajjan Singh appellant gave a pharsi blow to Jug Lal P.W. 13 whose left arm was touched. Ram Pat deceased raised his bhatta against Jug Lal causing injuries to the latter on the left side of the abdomen and on the right hand wrist. Hukma deceased then snatching the bhalla from the hands of Ram Pat gave a blow in self-defence and Ram Pat fell on the ground. Thereafter, Sajjan Singh, Dhanpat Singh and Parbhati gave blows to Hukma with pharsis. Hukma fell on the ground in an unconscious condition and when Amin Lal deceased asked the accused not to kill people, he was shot dead by the pistol which was in the hands of Yudhvir Singh. Everybody started running and thereafter Jai Dev accused opened fire and killed Jai Dev deceased and Mst. Sagarali while Jai Narain was shot dead from a distance by Hari Singh appellant. Dil Kaur, who was cutting grass, was killed within the sight of her husband Hari Singh P.W. by Parbhati and others. There was confusion all around, injuries were sustained by many persons and in all seven persons were killed including Ram Pat, brother of the appellants.

The results of the evidence of Dr. Shyam Mohan Lal Grover, who examined the dead bodies, may be summarised as below:-

(1) Hukma deceased had seven injuries on his person, including incised, punctured and contused wounds. The skull was fractured and blood offused on both the cerebral hemispheres. The injuries were sufficient in the ordinary course of nature to cause death. The probable time which elapsed between the injuries and death was about an hour.

(2) On the person of Amin Lal deceased, there were entry and exit gun shot wounds in the region of heart and lower lobe of lung. There were also some contusion and abrasion marks. Death was due, in this case, to haemorrehage and shock caused by bullet wounds which resulted in injuries to left lung, heart and liver, and must have taken place immediately after the gunshot injuries.

(3) Mst. Sagarali had also entry and exit gunshot wounds resulting in fracture of skull. The skull was found to be broken into pieces and the fracture line extended to base of skull from left parietal and temporal region. The cause of death was shock and haemorrhage resulting from the gunshot wounds which broke the skull and injured the brain and its vital centres.

(4) Mst. Dil Kaur, wife of Hari Singh, had ore incised wound on the right shoulder, some lacerations and abrasions The cause of death was shock and haemorrhage due to cut in big blood vessels and nerves of right upper limb, and this must have taken place within one hour of the injury.

(5) Jai Narain had on his person one gunshot wound of entry with irregular edges situated on the back of chest right scapula region. Entry wound was present on the right side of chest "anteriorly upper part". Brain matter was found decomposed and the fourth and fifth ribs of the thorax were broken. The cause of death was the gunshot wound which passed through and through right side of chest fracturing clavicle ribs and scapula right side. Death must have taken place within an hour of the injuries by haemorrhage and shock.

(6) Jai Dev had gunshot injuries on his left thigh and left hand, comminuted fracture on the left humerus shaft and right upper arm. There were also gunshot wounds of entry on the left side of head with fracture of skull bone and of exit on right side of skull with fracture of right parietal bone and frontal bone. Death must have taken place immediately after the injury resulting from gunshot, and was due to shock and haemorrhage caused by skull, brain, left hand and thigh fractures.

Dr. Grover also examined the dead body of Ram Pat, brother of the appellants, and found one punctured wound in the region of the lower ribs, one lacerated wound in front of skull, and one incised wound on the right side of skull. Death must have taken place within one hour of the receipt of the injuries on the head and the punctured wound in the abdomen.

The injured persons were examined by Dr. Goyal and the results are these:-

(1) Chand Kaur P.W. 10 had five injuries on her person, all simple in nature, one caused by sharp-edged weapon and the others by a blunt-edged.

(2) Smt. Murti, P.W. 11, had one lacerated wound and one contusion, both simple in nature.

(3) Jug Lal P.W 13 had one lacerated wound over front of right wrist, one longitudinal incised wound on the left forearm and an oblique incised wound on the lower part of front of left chest. The injuries were caused by blunt-edged and sharp-edged weapons. Two of the injuries were simple in nature while the third was kept under observation.

(4) Murli, P.W. 15 had four simple injuries on his person.

(5) Ram Chander, P.W. 14, had one curved incised wound on the front of left hand which on X-ray examination turned out to be a fracture of trapezium and base of the metacarpol of the thumb of left hand.

(6) Mst. Sarian, P.W. 12 had one lacerated wound on the left forearm and two other wounds of the same nature over middle side of the scalp. All these injuries were simple.

(7) On the person of Yudhvir Singh appellant, the doctor found eight simple injuries, three caused by sharp-edged weapon and others by a blunt-edged.

(8) Sajjan Singh appellant had one swelling and a contusion, both injuries of simple nature.

(9) Basti Ram had two abrasions and two contusions all simple in nature.

The case of the appellants in brief is that they had gone to the Inamwala field at 8.30 A.M. on 14th of September, 1960 and were engaged in the lawful act of ploughing land of which possession had been taken. They had put the tractor on that portion of the bajra crop which is termed as ''kharaba'' with the object of using it for manure. They were not disturbed for sometime but after about two hours a large number of residents of Dhani Sobha and Ahrod, including women, namely, Chand Kaur, Murti, Mst. Sarian, Jug Lal, Murli, Ram Chander, Hnkma, Jai Narain and Amin Lal deceased, Mst. Sagarali and Mst. Dil Kaur and others came to the spot armed with deadly weapons and started abusing and assaulting them with the weapons which they had in their possession. The appellants used the jellies, Russia and lathi in self defence. Deceased Amm Lal was armed with a pistol which he aimed at the appellants. Sajjan Singh then gave a lathi blow to Amin Lal whose pistol fell on the ground. This pistol was picked up by Yudhvir Singh and he used it in retaliation against the assailants firing five or six rounds. Basti Ram who had been acquitted and against whom only instigation was alleged denied his presence.

The first report of the occurrence was made by Jai Dev appellant at (sic) P.M. at Police Station Khol, which is at a distance of three miles front village Ahrod. It was asserted by the informant that possession of 71 bighas and 6 biswas had been taken over through the machinery of the Civil Courts and he and his brothers constantly apprehended danger of breach of piece from the party of the tenants and their sympathisers. On the 14th of September, 1960, they had ploughed the land for about two hours when all of a sudden at 10-30 A.M. they were met with resistance from persons who came armed with bhallas, pharsis and lathis. The line which has been taken up in defence was set out in this report which was recorded by S.H.O. Gurbax Singh. This officer reached the place of occurrence between 3 and 4 P.M. and found the dead bodies of Hukma, Jai Narain, Jai Dev, Amin Lal, Mst. Sagarali and Mst. Dil Kaur lying on the ground. No resident of the village was seen anywhere near the place of occurrence nor did any one come from village Dhani Sobha. Three persons from village Ahrod came there and identified the dead bodies. Inquest reports were prepared and a ruqa was sent to the police station at about 7-30 P.M. for registration of a case u/s 304/149, Indian Penal Code, there being a free fight between the owners of the land on the one hand and the resisters on the other. The bloodstained earth was taken from different places and a trail of blood was also noticed from the place where the dead body of Jai Dev is said to have been dragged. The place from where the body of Jai Dev was recovered was bloodstained and the earth was taken into possession. Two lathis and a bankri were taken into possession from the field. These weapons were found to be bloodstained. Two more lathis a handle portion of a jelli and two blades of the jelli were also taken into possession. The appellants, other than Yudhvir Singh, were arrested on 16th of September, 1960, while Yudhvir Singh was arrested on the next day. Sajjan Singh produced a pistol, Exhibit P. 5, and two live cartridges. Yudhvir Singh, Hari Singh and Dhanpat Singh produced a pharsa each, while Jai Dev produced a lathi. Earlier, the same police officer had gone to village Dhani Kulana where the dead body of Ram Pat was lying in his norah. His injury statement was recorded. The injury statements of the other prosecution witnesses were recorded during the course of investigation.

As their presence at the scene of occurrence has not been denied by the appellants, the sole question for determination is whether the deaths of the six persons, excluding Ram Pat, were caused in the exercise of the right of self-defence? We have already indicated our conclusion that the appellants had obtained possession of the land which they had come to plough on the morning of 14th of September, 1960. The learned Judge has been influenced by the considerations that no sensible person owning a crop would deliberately pillage it by running a tractor over it and has sought to deduce therefrom that the crop which was actually growing belonged to the party of the resisters. The khasra girdawaris show that some crops are styled as ''kharaba''. From the evidence of the Patwari, Lakshmi Chand P.W. 36, who inspected the site on the 16th of September, 1960, it appears that a portion of bajra crop standing on the Inamwala field was ''kharaba'' being of less than normal height. The fields in the vicinity of the place where the tractor was used had a crop which was of about three feet height while at other places it was of a man''s height. The Patwari also stated that the ''kharaba'' crop in a field may usefully serve as a manure for the next harvest. On the evidence, we are unable to take the view that the appellants had come to the scene of occurrence on 14th of September, 1960, to damage the crop which had been sown by the resisters. This line of defence cannot be accurately described as an after thought, as found by the Sessions Judge.

The appellants having gone to their fields in pursuance of their lawful object cannot be regarded as members of an unlawful assembly. They were certainly armed with weapons but this circumstance alone cannot be of any decisive importance knowing as we do that the relations between the parties had been strained and in the application of 23rd of August, 1960, (Exhibit D.A.G.) it was mentioned that a breach of peace was apprehended and a prayer had been made actually for the provision of police aid.

That the appellants had worked in the fields for some time before the occurrence finds support from the fact that a considerable area of the bajra crop was found to have been ploughed over. That there was an altercation between resisters and the appellants is borne out by the medical evidence. On the person of Yudhvir Singh, there are as many as eight injuries and one of these is a composite of five wounds. Sajjan Singh appellant had also received injuries. Some weapons were found at the place of occurrence and actually recovered by the police officer. The evidence of the prosecution witnesses is not very satisfactory and the learned Sessions Judge has not placed full reliance on it. Ram Pat deceased according to the earlier statements made to the police by some of the prosecution witnesses is stated to have been armed with a pharsi and not a bhalla. Later, an improvement was made that Ram Pat had a bhalla in his hand which was snatched subsequently from his hands and used as a weapon of attack against him. In any event, there can be no question that Ram Pat was the first to be attacked and he received fatal injuries which must have caused his death very shortly. Seeing the injuries on the person of Yudhvir Singh and the fatal assault on Ram Pat, the appellants might well have thought themselves beset with danger. A mere trespass of the resisters into the land of the appellants could not extend the right of self-defence in voluntarily causing the death, but once there was a threat to the person the right of self-defence could be exercised to that limit u/s 100 of the Indian Penal Code. Hukma deceased was attacked by Dhanpat Singh, Sajjan Singh and Prabhati and injuries were caused by blunt-weapons. No fire-arm was used till then. As stated by Sunda P.W. 4, in his examination-in-chief, "before the assault was opened on Hukma deceased, the latter had assaulted Ram Pat deceased with the bhalla snatching the said weapon from his victim. On this the accused Prabhati, Sajjan Singh and Dhanpat Singh made an attack with their respective weapons on Hukma deceased". It was at this stage that Amin Lal deceased stepped forward for the help of Hukma and was shot dead by Yudhvir Singh appellant. This is the only shot which is attributed to Yudhvir Singh who, to repeat again, had already received a number of injuries which are not explained by the prosecution evidence. In the circumstances it appears to us that Yudhvir Singh''s act is protected. Later, Jar Dev appellant opened fire and killed both Mst. Sagarali and Jai Dev deceased. Hari Singh appellant about the same time aimed a shot at Jai Narain and it killed him outright. The appellants being engaged in activities on their own land could not be regarded as members of unlawful assembly, at any rate, to start with, and each of them is accountable for his own act. Jai Dev''s action in opening the fire and killing thereby Jai Dev deceased and Mst. Sagarali could be justified only if the apprehension of danger continued. Sunda P.W. 4, Saria P.W. 12, and Jug Lal P.W. 13, the latter two themselves being injured persons, have deposed that Jai Dev and Sagarali were fired from the shots of Jai Dev appellant. Jai Dev deceased actually received two shots. By that time, Yudhvir Singh had killed Amin Lal on the spot. Hukma had also been dealt with by Dhanpat Singh and Sajjan Singh appellants. Both Hari Singh and Jai Dev appellants were armed with rifles and Yudhvir Singh had a pistol. Being unequally matched in weapons the registers could hardly be expected to cause any further injury. The right of defence continues so long as apprehension of danger to the body exists (vide section 102 of the Penal Code). As stated in Mayne''s Criminal Law of India (fourth edition) at page 231, man who is assaulted is not bound to modulate his defence step by step, according to the attack, before there is reason to believe the attack is over. He is entitled to secure his victory, as long as the contest is continued. He is not obliged to retreat but may pursue his adversary till he finds himself out of danger; and if, in a conflict between them, he happens to kill, such killing is justifiable, and every allowance has to be made (sic) for one, who, with the instinct of self-preservation strong upon him, pursues his defence a little further than to a perfectly cool bystander would seem absolutely necessary. The question in such cases will be, not whether there was an actual continuing danger, but whether there was a reasonable apprehension of such danger. Again, as stated by May be, resistance, within the justifiable limits, may be continued so long as the wrongful act is going on. Applying these principles to the instant case, it seems to us that when Jai Dev and Hari Singh used their rifles to kill their victims, no apprehension of any danger could possibly be said to exist. The question whether the attacker was to weigh his action in golden scales, in our opinion, could not have exercised the minds of Jai Dev and Hari Singh. Judging from results, it seems to us that the appellants showed excellent marksmanship; the shots fired by them having fatally hit the victims and none according to the evidence having missed the mark. In the circumstances, it was expected that when the party of the resisters had comparatively poor weapons with them, the appellants as wielders of firearms would use their weapons in defence and not for the purpose of creating a condition of fright and terror. The plea of self-defence available to Dhanpat Singh and Sajjan Singh and also Yudhvir Singh could not be used for the thoughtless and avoidable firing to which recourse was taken by Jai Dev and Hari Singh appellants.

To recapitulate, the appellant Hari Singh with his rifle shot Jai Narain who was at a considerable distance and in fact was not in the Inamwala field. Jai Narain at that time is said to have been on the machan and was fired at because he asked the appellants to desist from attacking the women. Hira Lal P.W. 5 and Hari Singh P.W. 6 have deposed that Jai Narain was shot when he was at a considerable distance from the appellants. Chand Kaur P.W. 10, mother of Jai Narain deceased, was able to tend her son for a few moments before he succumbed to the injury which he received from the shot fired by Hari Singh appellant. Jai Narain''s body was recovered from point (10) in the site plan'' Exhibit P.A.B., at a distance of about 400 paces from where the firing took place.

Likewise, Jai Dev deceased was hit at point (8) and his body was subsequently dragged for a distance of about 200 paces towards the scene of occurrence at point (7) as shown by the trail of blood noticed by Gurbux Singh A.S.I. P.W. 37, and deposed to by Mst. Sarian P.W. 12. Mst. Sarian was also assaulted at point (20) which is near to point (8), at a considerable distance from the place where the tractor was standing. The dead body of Dil Kaur, wife of Hari Singh P.W. 6, was found at a distance of about 300 paces from the place of attack. She is said to have been killed by Prabhati who has been acquitted and we are no longer concerned with this murder. Mam Chand P.W. 8 has deposed about the shot which was aimed by Jai Dev at his brother''s wife Sagarali. He and Sagarali had noting to do with the resisters and happened to be passing that way. It is difficult to avoid the conclusion that after Amin Lal had been brought low to the ground the appellants, wanted to create fight amongst those who were left on the Inamwala field without any regard to the existence or reality of apprehension of danger. Jai Narain was actually outside the Inamwala field and Jai Dev and Sagarali at considerable distances from the place where the appellants were. If the plea of the appellants is to be accepted, it would mean that the right of self-defence extended to clearing every sympathiser of the resisters who happened to be in the Inamwala land. In the beginning the appellants undoubtedly exercised some restraint because they kept the rifles which they had with them in reserve and used only pharsis to ward off attack or threat of an attack from the side of the resisters and there is some justification for the contention of the counsel that the arms which they were carrying were not for creation of trouble but in anticipation of it. The acts of Jai Dev and Hari Singh appellants, however, cannot be justified on the plea of self-defence and amount to murder. The defence plea that the shots were fired by the appellants-from the pistol which had been snatched from Amin Lal is neither supported by circumstances nor the evidence, especially the medical testimony. As observed by the learned Sessions Judge, the distance from which the shots were fired clearly establishes that rifles, and not pistol, were the weapons of offence.

A large number of authorities have been cited at the Bar but every case must really depend on its own facts. It is not every whim or fancy which can constitute apprehension to justify the taking of life and the Courts have to be very astute in examining the plea of self-defence when it is raised. Persons who are carrying firearms have to exercise judgment and when justification is pleaded for acts on grounds of self-defence which, in the last analysis is nothing but the dire necessity of self-preservation, the Courts have to look into the picture as a whole to-reach the conclusion that the personal safety of the accused has been in jeopardy. Successive shootings of Jai Dev, Sagarali and Jai Narain deceased at a stage when the resisters had received a stern warning by the killings of Hukma and Amin Lal from their side at the spot could not be defended in the context of time, circumstances and situation as acts of self-defence and the persons responsible are clearly guilty of murder.

In the result, we would allow the appeals to the extent that we would set aside the convictions of the appellants u/s 302/ 149, 326/149 and 148 of the Indian Penal Code, holding as we do that the appellants did not constitute an unlawful assembly and every one of them is liable for his own acts. Being of the view that the right of private defence of body existed upto a stage, we would acquit Sajjan Singh, Yudhvir Singh and Dhanpat Singh appellants of the charge of murder u/s 302, Indian Penal Code, for causing the deaths of Hukma and Amin Lal deceased. Jai Dev and Hari Singh appellants, for the reasons mentioned aforeseid, are found guilty of murder and we would maintain their convictions though only u/s 302, Indian Penal Code, without the tacking of section 149; Jai Dev for the killings of Sagarali and Jai Dev deceased and Hari Singh for that of Jai Narain. The only appropriate sentence is that of death and we would accordingly confirm the death sentences on the two appellants Jai Dev and Hari Singh. The remaining appellants having been acquitted their death sentences would consequently be set aside.

R.P. Khosla, J.

I agree.