Nahar Singh vs The State

Gopal Singh, J.—This is appeal by Nahar Singh from the judgment of Shri Muni Lal Verma, Sessoins Judge, Bhatinda, dated January 11, 1967 convicting him u/s 304 (Part I), Indian Penal Code and sentencing him to rigorous imprisonment for five years. Jang Singh was also tried along with Nahar Singh. He was, however, acquitted.

Briefly stated, the facts of the prosecution case are that a well in the area of village Heron Kalan in the district of Bhatinda was jointly owned by Mukand Singh, Jagir Singh, Maghar Singh, Gurdial Singh and Hardyal Singh deceased brother of Gurdial Singh. The co-sharers used to work the persian wheel of the well by turn. A little more than three weeks prior to the occurrence, Gurdial Singh returned on a cycle from Sunam to the village. He found that the mother of Jung Singh co-accused of the appellant was walking ahead of him. He rang the bell to alert her so as to get aside. In spite of his attempt to save her, his cycle struck against her. She abused him. The following day, Jang Singh convened Panchayat and said that he would deal with Gurdial Singh. About a fortnight prior to the occurrence, which came off on June 8, 1966, Hardial Singh wanted to work the wheel. Nahar Singh appellant siri of Mukand Singh would not allow him to do so. There arose dispute between the two. The matter was referred to the Panchayat. The Panchyat settled the terms to work the wheel. The ill-will in the mind of Nahar Singh and his co-accused Jang Singh is said to have continued in spite of the Panchayat having been convened and the disputes having been settled there. It is further stated on behalf of the prosecution that on June 8, 1966. Hardial Singh was sleeping on a cot in cattle-shed, that Gurdial Singh returned at 10 or 11 p.m. after irrigating the field of Niranjan Singh to his bouse and met Jaila in the vacant site at a distance of 5 karams from the cattle-shed, that Jaila was loading manure on his cart, that on hearing cries from the side of cattle-shed, he and Jaila came there, that they saw Jang Singh pulling out his spear, which be had hit in the belly of Hardial Singh, that Hardial Singh, who was lying on cot with his face up, over turned that Nahar Singh struck him with his spear in his back, that on enquiry as to why they caused injuries to Hardial Singh, the accused decamped, that Hardial Singh was carried on cot to the water-pump at a distance of 3 karams in the vacant site belonging to Nahar Singh as he asked for water and that after he was served with water, he fell down on the ground from the cot.

Gurdial Singh is then said to have contacted Dr. Harbhagwan, a medical practitioner in the village. After seeing the precarious condition of Hardial Singh, he advised that he should be removed to some good hospital. Hardial Singh was carried on a cot to the Primary Health Centre at Langowal at a distance of 6 miles from the village, Dr. Surinder Nath Mittal, Incharge of the Centre, examined Hardial Singh at 5.55 a.m. on June 9, 1966. He found two injuries on his person, one an incised wound on the right side of abdomen with peritoneum cut and the omentum coming outside and another incised wound on the right side of the back below the 7th cervical on the margin of verteberal column. According to the opinion given by him, the injury on the abdomen was dangerous to life. Under his advice, Hardial Singh was taken to the Civil Hospital at Sangrur. The injured arrived in the Civil Hospital at 7.45 a. m. on that day. He was operated upon, but he expired at 10.30 p. m. on June 11, 1966.

On June 9, 1966, statement of Hardial Singh was recorded by Mohinder Singh, Magistrate 1st Class, when he was found to be in a fit condition to make statement. It is Exhibit P.L.

The post-mortem examination on the body of Hardial Singh was performed at 4. 00 p.m. on June 11, 1966 by Dr. K.L. Batra. According to his opinion, the probable weapon used in causing both the injuries was spear and that either of the two injuries was individually sufficient to cause death in the ordinary course of nature. He further opined that the two injuries could be caused while the deceased might have been sitting or standing and that the injury in the abdomen could be caused to the deceased when the assailant could be standing in front of him and the injury in the back could be caused while he could be standing on his back side.

On coming to know about the commission of the crime in the village, Risal Singh, Assistant Sub-Inspector of Police Station, Bhikhi arrived in the village at 2.00 p. m. on June 9, 1966. Having got Hardial Singh admitted in the Hospital at Sangrur, Gurdial Singh returned to the village. He made report Exhibit P.K. to Risal Singh. Risal Singh took in possession blood-stained earth from the spot near the water-pump. Memo pertaining to its recovery is Exhibit P.Q. He recorded the statements of Darshandass Sarpanch, Bhagta Chowkidar, Ujagar Singh and others. He also recorded the statement of Smt Gejo wife of brother of Nahar Singh, he also took in possession blood-stained khes and gudri produced before him by Smti. Gejo. Memo pertaining to its recovery is Exhibit D A. The appellant was arrested on June 17, 1966. Jang Singh accused appeared before Risal Singh on June 10, 1966, but he did not arrest him. He was arrested on, June 30, 1966. The Investigation Officer also took in possession blood-stained gudela, chutahi, khes and chadra said to have been at the cot of the deceased at the time the injuries are said to have been caused to him. Memo pertaining to their recovery is Exhibit P.R. The blood-stained earth, the bloodstained bed-spreads of the deceased and those produced by Smti. Gejo recovered in the case were sent for examination to the Chemical Examiner. By his report, Exhibit P.S., the Chemical Examiner found that the garments recovered from the cot of the deceased as well as those produced by Smt. Gejo were stained with blood. Serologist, by his report Exhibit P.T., found that the blood on these garments was of human origin.

The appellant and Jang Singh were brought to trial for offence u/s 302, Indian Penal Code. The prosecution produced in support of its case Gurdial Singh P.W. 5 as an eye-witness. Jaila, who is named as an eye-witness both in the first information report and in the statement made by Gurdial Singh at the trial, was not produced as a witness. The number and nature of injuries caused to the deceased was explained in their evidence by Dr. Surinder Nath P.W. 2 and Dr. K.L. Batra P.W. 1. The recoveries of various articles were also relied on by the prosecution.

In his statement u/s 342, Criminal Procedure Code, Jang Singh pleaded ignorance about the occurrence. In his statement, Nahar Singh said that he was sleeping in the enclosed compound of his house on one cot and Smti. Gejo wife of his brother was sleeping on another cot close-by, that the deceased came into their house and grappled with her presumably to commit rape upon her, that she raised cry, that finding that the deceased was assaulting Smti. Gejo, he picked up a spear and gave him spear thrust in his abdomen, that the deceased left his sister-in-law and ran back and that he chased him and gave him another spear thrust in the back and that he caused these injuries in exercise of private defence of body of his sister-in-law as he could not tolerate the idea of his sister-in-law being so assaulted by the deceased. The appellant produced Bhagta Chowkidar as D.W. 1 in support of his defence version. Darshandass Sarpanch P.W. 6 also supported the plea of defence of the appellant.

The trial Court did not believe the testimony of Gurdial Singh as an eye-witness and accepted the statement of the appelant but held that there was no justification for the appellant to cause the second injury in the back after he had left the cot of his sister-in-law upon receipt of spear thrust in his abdomen. He held the case to be one of culpable homicide not amounting to murder and consequently convicted him u/s 304 (Part I), Indian Penal Code.

The Counsel for the appellant contends that the evidence of Gurdial Singh given at the trial has been rightly disbelieved by the trial Court as it suffered from material discrepancies and his earlier statements pointed to the justification of the exercise of right of private defence set up by the appellant, that second eye-witness Jaila having not been produced in support of the prosecution version and that there is no justification for conviction of the appellant on the basis of the defence version as he is entitled to exercise right of private defence.

Gurdial Singh P.W. is the brother of the deceased. He is a highly interested witness. It is admittedly the case of the prosecution that there has been no love lost between Gurdial Singh and Hardial Singh deceased on one hand and the appellant on the other. They had a dispute over the turn of water by the working of person wheel at the well jointly owned by both the brothers Gurdial Singh and Hardial Singh on one hand and other above-named co-sharers on the other. The appellant worked as siri of Mukand Singh on the well. The two incidents within course of four weeks or so prior to the date of the occurrence could not only be the cause of motive on the part of the appellant to assault the deceased but could equally be the ground for false implication of the appellant. The occurrence is said to have taken place between 10 and 11 p.m. on June 8, 1966. On that day, the moon rose at 11.45 p.m. It is stated by Gurdial Singh P. W. that the occurrence took place 20 minutes after the moon appeared. He has said so in order to enable himself to see the appellant and his co-accused causing injuries to the deceased with the spears with which they were said to have been armed at the time they attacked him while he was sleeping on a cot in his own cattle shed. In answer to the question asked from Gurdial Singh as to the time at which the occurrence took place, he stated that it took place, between 10 and 11 p.m. According to his statement, it is obvious that in fact there was no moon light when the occurrence took place. In his statement before the Committing Magistrate, Gurdial Singh P.W. stated that he was at a distance of 50 feet from the cot of his brother when the assailants attacked him whereas in his statement at the trial, he stated that he was at a distance of 25 feet. He reduced the distance of his presence to avail himself of the visibility and consequently identity of the assailants assailing his brother, as he would not have been able to identify the assailants in darkness from a distance of 50 feet as he could from a distance of 25 feet. In the first information report, he stated that he and Jaila were loading manure in the cart. At the trial, he denied having made any such statement before the police as it was realised at the trial that non-recovery of a cart being loaded with manure by the police on arrival at the place of occurrence on the following day would create difficulty. In his statement before the police, he stated that Bhagwana (Bhagta) Chowkidar and Kartar Singh arrived at the scene of occurrence when he left the place to call Dr. Harbhagwan. At the trial he denied that he had made any such statement before the police. At the trial, this witness seems to have deliberately omitted to refer to the arrival of Bhagwana Chowkidar and his visit to Darshandass Sarpanch as both these witneeses supported the defence version whereas he had definitely stated before the police that Bhagwana (Bhagta) Chokidar did arrive at the place of occurrence and he contacted the Sarpanch and informed him about his "brother having received spear blows. Gurdial Singh is not only highly interested because of his being brother of the deceased and because of the hostility between the appellant and him but also has clearly deviated from truth by effecting improvements at the stage of trial and given a go-by to the stand in respect of the prosecution, which he adopted in course of investigation. The above-referred to material contradictions brought out in course of his cross-examination make his presence highly improbable. He seems to be a got-up eye-witness.

The plea pertaining to the right of private defence adopted by the appellant is supported by Darshandass Sarpanch P.W. 6 produced by the prosecution and also by Bhagta Chowkidar D.W. 1, Darshandass Sarpanch P.W. stated that the appellant told him at 8.00 a.m. on June 9, 1966 that he had given blows with spear to Hardial Singh because he was seen by him lying with his brother''s wife and that he gave Hardial Singh first blow in his belly while he was lying with her and that he struck second blow with the spear on his back when he had got up and went away. Bhagta Chokidar D.W. 1 stated that while he was sleeping on the night of the occurrence the deceased shouted to him for help and that when he went to him, he was lying near water-pump and there was no cot, that Hardial Singh asked him to inform his brother Gurdial Singh so that he might attend to him and that he saw no assailant close by at that time, that he went to the house of Gurdial Singh and gave him the information that his brother had been struck with spear and that he was lying near water-pump and that he went with Gurdial Singh to the house of Dr. Harbhagwan and the Sarpanch, The appellant admits that he caused injury with his spear when he found the deceased assaulting the wife of his brother sleeping on a coat closely. There is every justification for the attack on the part of the appellant and to cause injury with the spear in the abdomen of the deceased when he found the deceased grappling with Smti. Gejo or making an assault for commission of rape with her. The fact of Bhagta Chowkidar having been attracted to the spot of occurrence was admitted by Gurdial Singh in his statement before the police although he denied his presence at the trial. Similarly, Gurdial Singh resiled from his statement, which he made before the police admitting the fact of his visit after the occurrence to the house of Darshandass. In the face of this portion of the statement made by Gurdial Singh before the police, there could be no doubt about Bhagta Chowkidar D.W. having been attracted to the scene on the cries of the deceased:

No blood-stained earth was recovered from the spot where the deceased was sleeping nor there was noticed any trail of blood from the place where the deceased was sleeping on the cot to the water-pump where it is alleged that the deceased was carried on his cot for quenching his thirst because of his demand for water. It is strange that instead of water being brought from the water-pump, the deceased should have been carried along with the cot to the water pump. In any case, the suggestion that injuries were caused to him while sleeping on his cot and he was carried after injuries had been caused to him to the watet-pump is not tenable inasmuch as no blood was found either underneath or near the cot and because of the absence of trial of blood from the place where the cot was lying up to the water pump. The presence of blood near the water-pump is admitted by the prosecution. According to the defence, the appelant after receiving one injury while on the cot of Smti. Gejo and second after leaving the cot ran towards the water-pump. It is very likely that as a result of the injuries so received by him, he fell down near the water pump. It is on account of that reason that he was near the water-pump and that is why bloodstained earth was recovered close to the water-pump. The water-pump is in the open space belonging to the appellant. It is close to his house.

It is quite probable that after receiving injuries at the hands of the appellants he fell down near the water-pump in the site of the appellant and that is why he was there.

Smti Gejo gave her statement before the police on June 9, 1966 soon after the arrival of Risal Singh. Assistant Sub-Inspector, She also produced blood-stained khes and gudri. They were sent for examination to the Chemical Examiner. By his report, Exhibit P.S., he found that they were stained with bood. Serologist, by his report Exhibit P.T. gave the opinion that the stains of blood on these bed-spreads were of human origin. The seizure of these two clothes soon after the arrival of police reinforces the plea of defence that injury was caused to the deceased on the bed of Smti. Gejo. The under-spreads would have been besmeared with blood in consequence of the receipt of injury by the deceased if the deceased could be present on the cot of Smti. Gejo as is stated by the appellant.

The defence version seems to be highly probable and very likely. In the absence of prosecution evidence to show how exactly the injuries came to be caused, there is no reason why the defence version supported by the evidence of Darshandass Sarpanch P.W. and Bhagta Chowkidar D.W. be not relied upon. It is a clear case in which the appellant is entitled to exercise right of private defence. His sister-in-law was assaulted for commission of rape. The deceased is said to have been actually grappling with her on her cot. On seeing this culpable and reprehensible conduct of the deceased in assaulting his sister-in-law in order to commit rape with her, there is every justification on the part of the appellant to cause injury with the spear which he gave in the belly of the deceased, which he admits he did. The second injury was caused by the appellant in the back of the deceased while he was trying to run back to his house. The trial Court has taken the view that there was no justification for the second injury being caused and the appellant had exceeded the limit of the right of private defence. Taking into consideration the medical evidence about the existence of the two injuries individually sufficient in causing death of the deceased, the view taken by the trial Court does not appear to be correct. Dr. K.L. Batra P.W. 1 who performed the post-mortem examination, stated that either of the injuries whether the one caused in the abdomen or that caused in the back, was sufficient in the ordinary course of nature to cause death. Thus according to the opinion of the doctor, the appellant would have succumbed to the injury caused in the abodmen even if the second injury would not have been caused to him in the back. It is not denied by the trial Court that the first injury caused in the abdomen could justifiably be caused by the appellant to the deceased in exercise of right of private d fence. The trial Court has taken the view that he exceeded that right when he caused the second injury while he was running away. If he had right to cause the first injury in the abdomen in exercise of right of private defence because of the offence of assault with the intention to commit rape sought to be committed by the deceased as covered by Thirdly of Section 100 of the Indian Penal Code, that right of private defence on the body and in the present case that of Smt. Gejo sister-in-law of the appellant did extend to the voluntary causing of death or to any other harm to the assailant if he was out to commit the offence of assault with the intention to commit rape. Thus, the case of the appellant clearly falls within the scope of Section 100. Thirdly as he was entitled to cause the first injury in exercise of right of private defence under the circumstances detailed above and that the first injury, according to the medical opinion, could cause and did cause the death of the deceased. It could not be held that the appellant had committed offence of culpable homicide not amounting to murder within the scope of Section 304 (Part I).

In the result, I allow the appeal, set aside the conviction and sentence of the appellant and direct that he be acquitted.