Mohinder Singh and Others vs State of Punjab

S.S. Grewal, J.—Mohinder Singh son of Munsha Singh, his sons Nishan Singh, Avtar Singh, Mewa Singh son of Gyan Singh, Gurdev Kaur wife of Tarlok Singh, Sukhdev Singh son of Tarlok Singh and Gyan Singh son of Tarlok Singh were tried u/s 302/307, read with Section 149 and u/s 148, of the Indian Penal Code for intentionally committing the murder of Baldev Singh and for causing injuries to Kulwinder Singh and Tara Singh PWs by Additional Sessions Judge, Ropar, who, vide his order dated 11-5-1993 acquitted Mewa Singh and Sukhdev Singh accused and convicted the rest of the accused under Sections 302/326/149 and 148 of the Indian Penal Code. Each of them was sentenced to undergo imprisonment for life u/s 302/149 IPC and to pay a fine of Rs. 1000/-. In default of payment of fine the defaulting convict was ordered to undergo further rigorous imprisonment for six months. Avtar Singh accused was sentenced to undergo imprisonment for two years and to pay a fine of Rs. 500/- u/s 326 of the Indian Penal Code. In default of payment of fine he was ordered to undergo further rigorous imprisonment for two months whereas Mohinder Singh, Gyan Singh, Gurdev Kaur and Nishan Singh were sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/ - each u/s 326 read with Section 149 of the Indian Penal Code. In default of payment of fine each of the defaulting convict was ordered to undergo further rigorous imprisonment for two months. Nishan Singh was further sentenced to undergo imprisonment for two years and to pay a fine of Rs. 500/- u/s 326 of the Indian Penal Code. In default of payment of fine he was ordered to undergo further rigorous imprisonment for two months, whereas Mohinder Singh, Gurdev Kaur, Avtar Singh and Gyan Singh were sentenced to undergo imprisonment for two years and to pay a fine of Rs. 500/- u/s 326 read with Section 149, of the Indian Penal Code. All the convicts were further sentenced to un-. dergo imprisonment for six months u/s 148, of the Indian Penal Code. All the substantive sentences of imprisonment were, however, ordered to run concurrently.

Aggrieved against their orders of conviction and sentence passed by the learned trial . Court, Mohinder Singh, Gurdev Kaur, Nishan Singh and Avtar Singh filed Criminal Appeal No. 200-DB of 1993 whereas Gyan Singh filed Criminal Appeal No. 54-DB of 1994. State of Punjab has also filed Criminal Appeal No. 461 DBA of 1993 against the acquittal of Mewa Singh and Sukhdev Singh. As common questions of law and fact are involved in all the three appeals, these shall be disposed of by one judgment.

In brief facts of the prosecution case as emerge from the first information report recorded on the basis of the statement of Kulwinder Singh PW an eye witness who has imprint of injuries on his person, are that he along with his parents cultivate land in village Fatehpur Naian and also own some land in village Fatehpur Bahadurgarh. Mohinder Singh accused has also staked his claim on the said land which is in possession of the complainant party. On 11-7-1988, at about 5-30 P.M. Kulwinder Singh PW along with his father Baldev Singh (since deceased) and his uncle Tara Singh were sowing Chari crop in their land situated in village Fatehpur Bahadurgarh and for ploughing they had hired, tractor of Jagir Singh Sarpanach of village Magror. The complainant party was present in their land and was waiting for the tractor. In the meantime Nishan Singh accused armed with a Kirpan, Sukha Singh alias Sukhdev Singh armed with Kulhari, Avtar Singh and his father Mohinder Singh, Cyan Singh and Mewa Singh accused armed with Gandasis and Gurdev Kaur wife of Tarlok Singh armed with a Sotacame there from the house of Mohinder Singh. Mohinder Singh accused raised a lalkara exhorting his co-accused to catchhold of Baldev Singh another member of the complainant party. Nishan Singh accused opened the attac and gave a Kirpan blow to Kulwinder Singh on his head, whereas, Avtar Singh gave a Gandasi blow to Kulwinder Singh which he tried to ward off with his left hand and in the process that blow hit him on his left elbow. Gurdev Kaur pushed Tara Singh PW who fell down. Sukhdev Singh accused then gave a blow with his Kulhari hitting Tara Singh on his right leg. Nishan Singh accused then gave a Kirpan blow hitting Tara Singh on his left leg. At that stage Baldev Singh father of Kulwinder Singh PW came forward to save them, Nishan Singh accused gave a Kirpan blow to Baldev Singh hitting him on the right side of his forehead. Mewa Singh then gave a Gandasi blow hitting Baldev Singh on his left knee. Mohinder Singh accused gave a Gandasi blow to Baldev Singh on the outer side of his right leg. His father Baldev Singh snatched Kirpan from Nishan Singh and caused injuries to him in self defence. However, all the accused then encircled Baldev Singh, Avtar Singh accused then gave a Gandasi blow to him on the right side of his head, Gyan Singh gave another Gandasi blow hitting Baldev Singh on the left side of his head. Mohinder Singh gave aGandasi blow on the back side of the head of Baldev Singh. Mohinder Singh accused gave another Gandasi blow hitting Baldev Singh on the left side of his head. Gyan Singh gave another Gandasi blow to Baldev Singh hitting on the right side of his head. On receipt of these injuries Baldev Singh fell down and while he was lying fallen on the ground Sukhdev Singh gave Kulhari blow on his left ankle. Thereafter the accused caused more injuries to Baldev Singh with their respective weapons, and before leaving the spot they also caused more injuries to Kulwinder Singh and Tara Singh PWs. On hearing the alarm raised by the complainant party Sucha Singh son of Bakhtwar Singh resident of village Fatehpur who was going on the road also came to the spot and witnessed the entire occur-rence. Several other persons from the village were also attracted to the spot on hearing the alarm. All the aforesaid seven accused then went away from the spot along with their respective weapons and also took Gurdev Kaur injured their co-accused with them. Baldev Singh died at the spot as a result of the injuries caused by the accused who intentionally committed his murder and also caused injuries to Tara Singh and Kulwinder Singh in prosecution of their common object.

After the occurrence Kulwinder Singh PW was going to the police station to lodge the report, when he met ASI Gulzar Singh at the bus stand of his village and made his statement which was completed at 8 P.M. and on its basis formal first information report was recorded at the Police Station, Ropar at 8-50 P.M. on the same evening and the special report reached the Ilaqa Magistrate on the next morning of the occurrence at 6 A.M. ASI Gulzar Singh prepared inquest report, lifted blood stained earth from near the spot, sent the deadbody for post-mortem examination. After arrest of the accused and completion of the investigation, all the seven accused were challaned, tried and out of them Mewa Singh and Sukhdev Singh accused were acquitted by the trial Court whereas Mohinder Singh, Gurdev Kaur, Nishan Singh, Avtar Singh and Gyan Singh were convicted and sentenced, as stated earlier.

The learned counsel for the parties were heard.

It is the specific case of the prosecution that the complainant party had gone to the land in dispute for sowing Chari crop and were waiting for the tractor which they had already arranged for starting cultivation. It is also admitted by Kulwinder Singh PW that the land of Mohinder Singh accused adjoins the land where the occurrence took place. It has also come in evidence that the well situated in Khasra No. 42/47 is a common well and Mohinder Singh accused has a right of irrigation from that well. Revenue entries reveal that the land in dispute comprising in Khasra No.42/12 is owned by the Forest department and as per Jamabandi for the year 1986-87 Mohinder Singh (present appellant) is shown to be in cultivating possession of the said land as a tenant at will. The subsequent Khasra Girdawri entries Ex. PW9/C show that there was dispute about the name of the cultivator. Admittedly, the complainant party had moved an application for correction of Khasra Girdawri. However, no revenue entry or documentary evidence has been produced on the record by the prosecution to the effect that the accused party had handed back possession of the land in dispute either to the Forest department or that the complainant party had entered into actual physical possession of the land in dispute., at any stage prior to 1986-87 or later on till the date on which the present occurrence took place. Mere fact that the complainant party had moved the revenue authorities for correction of Khasra Girdawri entries would not give the complainant party any semblance off right to dispossess the accused party or to occupy the land in dispute otherwise than by due process of law. It is also noteworthy that since the Jamabandi for the year 1986-87 had already been prepared, the only course open to complainant party was to approach the Civil Court for rectifi-cation of the Jamabandi entries in favour of Mohinder Singh accused. Admittedly no civil suit was filed by the complainant party for this purpose and even proceedings for rectification of the aforesaid revenue entries were dismissed by the revenue authorities. Apart from that there s no legal, cogent or reliable evidence on the record to show that the complainant party entered into actual physical possession of the land in dispute where the occurrence (took place). Thus it is quite obvious that the complainant party had no legal right whatsoever to take law into their own hands and to occupy or cultivate the land in dispute in possession of Mohinder Singh appellant on the day when the main occurrence took place.

The complainant party which admittedly had gone to sow crop in the said land shortly before the occurrence took place were rank trespassers. Medical evidence shows that Gurdev Kaur received one incised wound on the front of the right lower limb 7 cm below the knee joint, whereas, Nishan Singh accused had received five injuries out of which three were incised wounds i.e. one on the left temporal region and the other two on the right index and right middle fingers. Normally such like injuries cannot be self-inflicted or self-suffered. No plausible explanation in respect of the injuries received by Nishan Singh and Gurdev Kaur accused has been given by the complainant party. The version given by Kulwinder Singh and Tara Singh close relations of the deceased that after both of them received injuries at the hands of the accused party and Baldev Singh deceased came forward to rescue them and received Kirpari blows on.the right side of his fore-head, left knee, right leg, and, in all 19 injuries during the occurrence including 9 on his head and face, was able to snatch Kirpan from Nishan Singh accused who is in his twenties, does not seem natural, probable or convincing. There is no injury on the hands of Baldev Singh deceased. A few minor injuries near the right elbow, on the back of left wrist or on the front and outer aspect of left forearm and other injuries on the body of the deceased do not support the ocular account in this regard. Rather the absence of the injuries on the hands of the deceased falsifies the ocular account given by the two alleged eye-witnesses that the deceased was able to snatch Kirpan from Nishan Singh accused or caused injuries to Nishan Singh in their self-defence. This aspect of the case further shows that the two witnesses have tried to withhold the fact that some of the members of the complainant party went armed in order to take forcible possession of the land in dispute.

Kulwinder Singh PW deposed that he had no talk with anybody about the occurrence before he suffered his statement before the police. His statement which incidentally constitutes the first information report was recorded by AS1 Gulzar Singh at the spot when the latter went to the spot where fight had already taken place between Mohinder Singh etc. and Baldev Singh etc. This aspect of the case shows that the first information report in the instant case was prepared after spot inspection by the Investigating Officer and after due deliberations and consultations with the complainant party.

Another important aspect of the case is that Gurdev Kaur accused too had received injuries during the occurrence. It is difficult to believe that if the accused party had been the aggressor, and wanted to attack the complainant party, then Gurdev Kaur would accompany her men folk for the purpose of assault. Rather the explanation given by Gurdev Kaur that she and Nishan Singh were already working in the fields when the complainant party attacked them seems quite probable, in the circumstances of the case.

From these circumstances, it can be reasonably inferred that the complainant party was the actual aggressor and had assaulted the ac-cused party in order to take forcible possession of the land in dispute and the accused party acted bona fide in due exercise of its right of private defence of person and property while causing injuries to the complainant party. Thus the accused party had rightly exercised its right of private defence of person and property.

Faced with this situation, it was submitted by the learned State counsel that the complainant party including Baldev Singh deceased received as many as 28 injuries whereas the accused party had received six injuries in all and that the accused party had not acted bona fide in exercise of their right of private defence of person and property and had exceeded the same. The argument is without any merit. Right of private defence of person and property cannot be weighed in golden scales. Nor the accused party while under attack was expected to modulate its defence step by step. The accused party naturally would have reasonable apprehension from the time when the complainant party duly armed reached the spot in order to take forcible possession of the land in dispute, which was already in possession of the accused party. Such reasonable apprehension in jour view commenced immediately on the arrival of the complainant party and continued till the complainant party was disarmed or retreated from the land in dispute. In the instant case the real test to determine as to whether the right of private defence of person and property extended even to cause the death of one of the aggressors would be, as to whether the accused party had reasonable apprehension in its mind that the death or grievous hurt would be the consequence of the assault on the accused party by the complainant party, as envisaged under Ss. 97, 99 to 103, of the Indian Penal Code. In our view in the peculiar facts and circumstances of the present case referred to above, the accused party had reasonable apprehension in their mind that death or grievous hurt would be the consequence of the assautlt by the complainant party as contemplated u/s 103, of the Indian Penal Code. The accused party used proper force after it received serious injuries due to wrongful assault on the part of the complainant party while acting bona fide in due exercise of right of private defence of person and property and in our opinion had not exceeded the same.

Kulwinder Singh and Tara Singh the two eye witnesses produced by the prosecution are wholly unreliable witness and have not given truthful version about the circumstances leading to and the manner in which the main, occurrence took place. Both these witnesses have tried to suppress the important facts that while armed they had gone to the land in dispute to take forcible possession from the accused party which was already in possession thereof since long. Thus the complainant party was the actual aggressor and had tried to pass on the entire blame to the accused party with whom it had previous enmity. From the circumstances on the record, the accused party had been able to substantiate the defence plea that it had acted in bona fide exercise of right of private defence of person and property and had not exceeded the same in any manner.

For the foregoing reasons, we hereby set aside the order of conviction and sentence passed by the trial Court and giving the benefit of doubt acquit Mohinder Singh, Gurdev Kaur, Nishan Singh, Gyan Singh and Avtar Singh accused. Criminal Appeals Nos. 200-DB of 1993 and Crl. A.No. 54-DB of 1994 are accordingly allowed whereas Criminal Appeal No. 461 -DBA of 1993 filed by the State is dismissed.