Lehna Singh vs State of Haryana

S.S. Grewal, J.

This appeal is directed against the order of Additional Sessions Judge, Kurukshetra, dated 30th March 1989, whereby the present appellant was convicted under Section 304 Part I of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1000/ in default of payment of fine, he was further ordered to undergo rigorous imprisonment for two years. Fine, if realised, was directed to be paid to the wife of the deceased Fateh Singh.

In brief, facts relevant for the disposal of this appeal are that both the appellant and the deceased were real brothers and their fields consisting of one Killa each adjoin each other. Both of them have their houses in the fields. The deceased had sold his land to one Dalal Singh but he was cultivating the said land on payment of rent. The appellant and the deceased have a common `dol'' which had been made irregular by the appellant. The deceased wanted to rectify the dol and that, according to the prosecution, was the motive for the occurrence which took place on June 30,1988 at about 10 A.M. The appellant did not permit the deceased to rectify the dol, in spite of latter''s insistence. Lehna Singh appellant then went inside his house and returned with a Gandasi. His son Balraj Singh armed with a lathi also accompanied him. On their return appellant gave a Gandasi blow on the head of Fateh Singh, whereas his son and coaccused Balraj Singh gave a lathi blow to the deceased. Thereafter both of them ran away from the spot towards their house. The injured was first taken to Civil Hospital, Pundri and thereafter to Civil Hospital, Kaithal, where he was got admitted. There he was medically examined at 5.45 P.M. on the same day by Dr. D. P. Gupta, who found two injuries on his person, the first was an incised wound 12.5 cm x 2.5 cm over left parietal region of skull extending to occipital region. Underlying bone was exposed. Outer table of skull was cut in linear fashion, corresponding to incised wound. Soft reddish scab was also found, Second injury was a swelling and tenderness was present over left Zygomatic process.

On receipt of information concerning the admission of the injured, ASI Mam Chand of Police Station, Kaithal, went to the Hospital at 8 P.M. The injured was not fit to make a statement, as per opinion of Dr. D. P. Gupta.

On the following day, ASI Karam Singh of Police Station, Pundri in whose jurisdiction the place of occurrence fell, came to the Hospital Fateh Singh injured was again not fit to make a statement. ASI Karam Singh then recorded the statement of Chanderpati wife of the injured and on its basis formal FIR was registered at 2 P.M. under Section 24/34 IPC. Fateh Singh injured died in the Hospital on 1671988 without regaining consciousness, However, on 1571988, the offence was converted to undersection 307/34 IPC on receipt of the opinion of the doctor that injury No. 1 was dangerous to life.

After the death of Fateh Singh injured, the offence was converted to one under section 302 IPC. Postmortem on the dead body of Fateh Singh deceased was got conducted. The cause of death in the opinion of the doctors who conducted the postmortem examination was subdural haemaoma and fresh haematoma. caused by injury over head which was sufficient to can death in the ordinary course of nature. The present appellant was arrested on 571988 whereas his son and coaccused was arrested on 1371998. Latter being a child his case is tried by the Children Court. After completion of investigation, committal proceedings and trial, the present appellant was convicted and sentenced by the Additional Sessions Judge, Kurukshetra as indicated earlier. Counsel for the parties were heard.

According to the prosecution, the ocular account in the instant case rests on the testimony of Chanderpati PW 5 the first informant and wife of the deceased who was working in the field along with her husband at the time when the occurrence took place, and Ranpat PW. 6 who too was working in his nearby fields. Both these witnesses have given cogent reason for their presence near the spot at the time of the occurrence. A suggestion was also put to Chanderpati PW. 5 that after the receipt of lathi blow, Lehna Singh gave a Gandasi blow to the deceased in his self defence. Her presence at the spot is even admitted by the defence. Thus the presence of both Chanderpati and Ranpat at the spot at the time when the occurrence took place seems quite natural, probable and convincing.

The next point which arises for determination is as to whether the ocular account given by these two eyewitnesses on salient features of the story is credible and trustworthy and, secondly as to whether the present appellant acted bona fide in the exercise of right of private defence of person and property.

As far as the ocular account given by these two witnesses concerning infliction of the headinjury to the deceased by the present appellant is concerned, the same finds ample corroboration from the medical evidence on the record which clearly indicates that the said injury could be caused by a Gandasi. Mere opinion of the doctor that the said injury could be caused by a fall on the blade of Kassi cannot be relied upon to contradict the two eyewitnesses produced by the prosecution. The opinion of the medical expert in this regard is neither based on any cogent basis, nor the same is of that conclusive nature, which can be safely relied upon to contradict the direct testimony of the two eyewitnesses in this case. Injury No. 2 on the body of the deceased is a mere swelling which could be even caused otherwise than by a direct blow.

Both these witnesses however, have given no explanation whatsoever concerning the injuries received by the appellant. Testimony of Dr. R. K Gupta, DW. 1, reveals that the said doctor had medically examined the appellant on 2nd July, 1988 at 8.20 A.M. and had found four injuries on his person. Out of these four injuries, injury No. 1 was a deep lacerated wound of pale reddish colour with sign of infection, on the left side of the scalp vertically on the parietal area of the scalp. This injury obviously could not be selfsuffered or selfinflicted. Opinion of Dr. R.K. Gupta, DW. 1 also supports the defence plea that the said injury could probably be caused at the time when the present occurrence took place. It is significant to note that both Chanderpati and Ranpat PWs in their deposition before the trial Court have not given any explanation whatsoever concerning the head injury of the appellant referred to above, and denied that Lehna Singh had received any such injury in their presence. According to Ranpat PW, the present appellant had run away when he reached near the place of occurrence. Another important aspect of the case is that as per testimony of Chanderpati PW. 5, who is an interested witness, her deceased husband was carrying a Kassi at the time of the occurrence whereas Ranpat PW had not cared to notice any such Kassi. It is thus quite obvious that both these eyewitnesses have deliberately tried to suppress the material fact concerning the head injury suffered by the appellant at the time when the main occurrence took place. Besides, there was inordinate delay in lodging the first information report which has not been satisfactorily explained in this case. Thus Chanderpati complainant had ample time to make due deliberations and consultations, in order to twist the facts and to coin version of her own choice favourable to her. Both the eyewitnesses produced by the prosecution are thus not wholly reliable witnesses, and their testimony has to be weighed with great care and caution on this important aspect of the case and it would also be prudent to seek independent corroboration to their testimony on other material aspects. In these circumstances the sole testimony of Chanderpati PW cannot be safely relied upon to the effect that after the accused and the deceased had verbal altercation when the deceased wanted to change the `dol'' to appellant''s disadvantage, the accusedappellant went towards his house and came, armed with a Gandasi.

It is well settled that in case, plea of selfdefence is made out from the circumstances on the record, an accused can certainly take benefit of those circumstances even though he had not specifically taken the plea of selfdefence. It is equally well settled that right of private defence cannot be weighed in golden scales. In the instant case, from the facts and circumstances referred to above it is quite obvious that immediately after verbal altercation between the appellant and the deceased, the latter who had greater motive to wreck vengeance inflicted head injury to the appellant, and in order to defend himself the appellant gave single injury with a Gandasi to the deceased which subsequently proved fatal, after more than a fortnight. No doubt the appellant had changed his stance in his statement under Section 313 of the Code of Criminal Procedure, 1973, wherein he stated that he merely gave a lathi blow to his brother in selfdefence, whereas, suggestion has been put to Chanderpati PW. 5 that after her husband gave a lathi blow to Lehna, Singh (appellant), the latter gave Gandasi blow to her husband in selfdefence. This change in stance to my mind alone would not be per se sufficient to reject the plea of selfdefence raised on behalf of the appellant, which as already indicated above, has been made out from other material on the record. The circumstances referred to above are helpful in establishing the defence plea set up in this case that the appellant acted bonafide in exercise of right of private defence of his person and property and had not exceeded the same in any manner.

For the foregoing reasons, I hereby accept this appeal, set aside the order of conviction and sentence passed by the trial Court and giving the benefit of doubt acquit Lehna Singh appellant.