Pinder Singh & Ors. vs State Of Haryana

Manjari Nehru Kaul, J

The instant appeal has been preferred against the impugned judgment of conviction and order of sentence dated 19/20.03.2004 passed by Addl. Sessions Judge (FTC), Karnal vide which the accused-appellants were convicted and sentenced as under:

Name of Convict

Offence

Period of sentence

Fine imposed

Period of sentence in default of payment of fine

Pinder Singh

148 IPC

Rigorous imprisonment (RI) for two years

Palvinder Singh

Sukha Singh

Joga Singh

Gurbhajan Singh @ Harbhajan Singh

Lakha Singh

Ravi @ Harvinder

Pinder Singh

Palvinder Singh

307 read with Section 149 IPC

RI for years

five

Rs.500/-

each

RI for six months each

Sukha Singh

Lakha Singh

Ravi @ Harvinder

Joga Singh

Gurbhajan Singh @ Harbhajan Singh

307 read with Section 149 IPC

RI for years

three

Rs.500/-

each

RI for six months each

Pinder Singh

Palvinder Singh

325 read with Section 149 IPC

RI for years

three

Rs.500/-

each

RI for six months each

Sukha Singh

Joga Singh

Gurbhajan Singh @ Harbhajan Singh

Lakha Singh

Ravi @ Harvinder

Pinder Singh

Palvinder Singh

324 read with Section 149 IPC

RI for years

two

-

-

Sukha Singh

Joga Singh

Gurbhajan Singh @ Harbhajan Singh

Lakha Singh

Ravi @ Harvinder

Pinder Singh

Palvinder Singh

323 read with Section 149 IPC

RI for year

one

-

-

Sukha Singh

Joga Singh

Gurbhajan Singh @ Harbhajan Singh

Lakha Singh

Ravi @ Harvinder

Pinder Singh

25/54/49 of Arms Act

RI for year

one

Rs.500/-

RI for six months

All the sentences were ordered to run concurrently.

Prosecution case in brief as set up during the trial is that on 02.10.1999 at about 10.30 am the complainant Jodhbir Singh (PW-2) was returning to his village with Joga Singh (PW-3) and Sahab Singh, who had apparently come to purchase fodder from his dera. On reaching near the dera of appellant Harbhajan Singh, appellant Pinder Singh s/o Harbhajan Singh armed with a gun, appellant Palvinder Singh s/o Joga Singh armed with kirpan and appellant Sukha Singh s/o Joga Singh armed with a Neja, while appellants Joga Singh s/o Roor Singh, Harbhajan Singh s/o Surat Singh, Ravi s/o Harbhajan Singh, Lakha Singh s/o Swaran Singh armed with lathis came to the spot from the dera of appellant Gurbhajan Singh @ Harbhajan Singh. Appellant Joga Singh raised a lalkara to teach the complainant party a lesson on account of the injuries which had been caused to appellant Palvinder Singh by the complainant Jodhbir Singh earlier in time. Soon thereafter, appellant Palvinder Singh inflicted a kirpan blow on the head of the complainant Jodhbir Singh (PW-2), appellant Sukha Singh inflicted a neja blow on the right wrist of the complainant as a result of which he fell down on the ground. Thereafter, appellants Joga Singh, Gurbhajan Singh @ Harbhajan Singh and Lakha Singh started inflicting lathi blows on the complainant whereas appellant Ravi inflicted a lathi blow on the left hand of Sahab Singh. On the exhortation of appellant Harbhajan Singh, appellant Pinder Singh fired upon Joga Singh (PW-3) with his gun as a result of which PW-3 Joga Singh sustained several injuries. Amrit Pal Singh and Karnail Singh witnessed the occurrence and raised an alarm. All the accused then ran away from the spot towards their respective deras. The injured were removed to the General hospital, Karnal by Amrit Pal in his car. On the basis of this statement, FIR No.274 (Ex.PC/2) was registered under Sections 148, 323, 324, 326 and 307 read with Section 149 IPC and 25 of Arms Act against the accused. On the same day, a cross case was also registered under Sections 323, 324 and 506 IPC against the complainant party on the statement of Palvinder Singh s/o Joga Singh. Subsequently, the accused were arrested and recoveries of the weapons of offence were effected.

On completion of investigation, the accused-appellants were charged for offence under Sections 148, 307, 326, 324 and 323 read with Section 149 IPC to which they pleaded not guilty and claimed trial.

In support of their case, prosecution examined as many as 15 witnesses including Dr. Sham Wadhwa - PW-1, complainant Jodhbir Singh - PW-2, Joga Singh - PW-3, Dr. Sunil Kumar Midha - PW-6, SI Jagdev Singh - PW-14. Learned Public Prosecutor gave up the remaining witnesses including injured Sahab Singh and one Amrit Pal Singh, who had removed the injured to the hospital.

On the conclusion of the prosecution evidence, all the incriminating circumstances appearing against the accused-appellants in evidence were put to them under Section 313 Cr.PC to which they pleaded their innocence and false implication. Accused Pinder Singh stated that on the morning of the day of occurrence, the complainant Jodhbir Singh had teased appellant Palvinder Singh in front of their dera by twirling his moustaches, which led to a quarrel between the two. The said incident was witnessed by his father Gurbhajan Singh @ Harbhajan Singh and Kulwant Singh, who then intervened and separated them. His father appellant Gurbhajan Singh @ Harbhajan Singh thereafter took appellant Palvinder Singh to the latter's dera to leave him there. However, after sometime, complainant Jodhbir Singh along with 11 others including Joga Singh, Karnail Singh, Lal Singh, Lakha Singh, Gurcharan Singh, Raju, Sahab Singh, Angrez Singh, Bhajan Singh, Parkash Singh and Baljit Singh, armed with weapons were seen coming towards their dera. He, thereupon, telephonically informed his father, who at that time was still at the dera of appellant Palvinder Singh. Appellants Joga Singh s/o Roor Singh, his father Gurbhajan Singh @ Harbhajan Singh, Sukha Singh and Palvinder Singh s/o Joga Singh then came to the spot in a jeep. In the meanwhile, the complainant party comprising of 12 persons too had reached in front of their dera. The co-accused/appellants requested the complainant and his companions not to aggravate the matter any further. However, Joga Singh s/o Fateh Singh and his companions attacked appellant Palvinder Singh and others (from the accused party) and caused injuries to appellants Palvinder Singh, Joga Singh s/o Roor Singh, his father Gurbhajan Singh @ Harbhajan Singh with their respective weapons. On being so attacked, they too defended themselves and caused injuries to the complainant Jodhbir Singh. The gun of Joga Singh s/o Roor Singh was lying in their jeep and it was picked up by his son Sukha Singh. As the complainant party was causing injuries to appellants Gurbhajan Singh @ Harbhajan Singh, Joga Singh and Palvinder Singh, he took the gun from Sukha Singh and fired a shot to save them in the right of self defence. Had he not done so, his father Gurbhajan Singh @ Harbhajan Singh may have been killed by the complainant party. Due to the firing, the complainant party went away. Out of fear of the complainant party, his father Gurbhajan Singh @ Harbhajan Singh, Palvinder Singh and Joga Singh could not even go to the hospital as the complainant party had gone towards the village along with their licensed guns. Accused Ravi and Lakha Singh were not present there and had been falsely involved in the case.

On the basis of the evidence led, the trial Court convicted the accused on various counts and sentenced them as already detailed above.

Learned counsel for the appellants have vehemently argued that the learned trial court failed to appreciate that the enmity, if any, which existed between the parties was between co-accused Palvinder Singh and complainant Jodhbir Singh. No enmity had been alleged against any of the other accused. Hence, in this background, there was hardly any motive for the other accused to open the attack and cause injuries to the complainant Jodhbir Singh, PW-3 Joga Singh and Sahab Singh. Further, it was argued that the prosecution story of injured Joga Singh and Sahab Singh visiting the dera of the complainant to purchase fodder was a made up story and not supported by any evidence as admittedly the land from where the fodder was allegedly to be purchased by the injured witnesses already stood leased to some other person by the complainant Jodhbir Singh. Hence, there was no occasion for them, to visit the dera to purchase the fodder. It was further argued that the trial court failed to appreciate that the injuries on the accused had gone unexplained by the prosecution. It was also urged that Amrit Pal Singh, an eyewitness to the occurrence was a material witness but was not examined by the prosecution and given up as unnecessary. Out of the injuries suffered, the doctor had opined that only one injury could have been self inflicted. All this should have been appreciated by the trial Court by taking into account that the occurrence had taken place at the dera of the accused. Hence, the appellants were well within their right to save themselves by exercising the right of self defence. Even the right of private defence was not exceeded by the accused party as is evident from the fact that only one shot was fired and that too from a considerable distance. The medical evidence also supported the case of the accused-appellants qua this fact as the injuries were pellet injuries on injured Joga Singh and were confined to the lower portion of his body. So much so, no pellets were found beneath the injuries suffered by him. It was lastly submitted that in the given circumstances and the sequence of events leading to the occurrence, the ingredients of an offence under Section 307 IPC were not attracted at all because neither was there any intention nor any knowledge on the part of the accused-appellants to attempt murder of the injured witnesses.

Learned State counsel, on the other hand, strenuously argued that the prosecution evidence was not only consistent and cogent but stood fully corroborated with the medical evidence on record and prayed for dismissal of the appeal.

I have heard learned counsel for the parties besides going through the evidence and other material available on record.

In the case in hand, certain facts, which have not been disputed are:

(i) place of occurrence was the dera of appellant Harbhajan Singh;

(ii) there had been some quarrel between the complainant Jodhbir Singh and appellant Palvinder Singh a few months prior to the occurrence in hand in which the latter had sustained simple injuries and during the said altercation PW-3 Joga Singh and Sahab Singh had helped the complainant PW-2 Jodhbir Singh;

(iii) both the parties sustained injuries in the alleged occurrence.

However two versions with regard to the origin of the fight, which are at complete variance with each other have come to the fore. As per the complainant party, the accused party attacked them with lethal weapons when they were returning to the village as they were nourishing a grudge against the complainant Jodhbir Singh (PW-2) on account of a quarrel which had taken place a few months earlier due to a grudge which the accused were harboring on account of the purchase of some land by the complainant Jodhbir Singh. On the other hand, the version of the defence is that just a couple of hours prior to the occurrence in hand, there had been a verbal altercation between the complainant and the appellant Palvinder Singh in front of the dera of appellant Gurbhajan Singh @ Harbhajan Singh, who had then intervened and separated the two by taking appellant Palvinder Singh away to the latter's dera. In the meanwhile, appellant Pinder Singh on seeing the complainant party comprising of as many as 12 persons armed with weapons approaching his dera had telephonically informed his father appellant Harbhajan Singh, who was still at the dera of Palvinder Singh. As a result of which the accused party had rushed to the dera of Gurbhajan Singh @ Harbhajan Singh where they were then attacked by the complainant party. On seeing his father being attacked and fearing for his father's life, appellant Pinder Singh had then fired a shot from the gun of Joga Singh s/o Roor Singh in his right of self defence as a result of which complainant party had fled away from the spot.

In the light of these two distinct versions, the crucial question, which thus, needs to be answered is which out of the two, the one set up by the prosecution or the other as pleaded by the defence is more probable?

PW-9 Inspector Balbir Singh during his testimony in the court categorically deposed that as per Amrit Pal Singh, who was a witness to the occurrence, the complainant party too had inflicted injuries on the accused party. It came in the deposition of PW-14 SI Jagdev Singh that during investigation it came to light that the complainant party comprising of as many as 12 persons had gone to the dera of Gurbhajan Singh @ Harbhajan Singh armed with different weapons. Eyewitness Amrit Pal Singh who was not only a material but also an independent witness was given up as being unnecessary for reasons best known to the prosecution. He was in fact a star witness, who would have thrown considerable light on the sequence of events leading to the occurrence on the fateful day. Hence, in the absence of his deposition and after taking into account the testimonies of both PW-9 Inspector Balbir Singh and PW-14 SI Jagdev Singh a doubt does creep in about the authenticity of the prosecution version. Further, there seemed to be no occasion for the complainant Jodhbir Singh(PW-2) to go along with Joga Singh(PW-3) and Sahab Singh to his fields for purchasing fodder, which had already been leased out to another person. Not only this, it has also come in evidence that both PW-3 Joga Singh and Sahab Singh had their own fields. Hence, it does raise a question mark as to why they would still go to purchase fodder from another person. Further, assuming that the three persons had indeed gone to purchase fodder it does not appeal to reason as to why accused party, particularly the family of appellant Gurbhajan Singh @ Harbhajan Singh, whose son appellant Pinder Singh fired a shot at PW-3 Joga Singh, would attack them, as the motive, if any, was with the appellant Palvinder Singh and not with the family of appellant Gurbhajan Singh @ Harbhajan Singh.

In the case in hand, specially in the light of the depositions of PW-9 Inspector Balbir Singh and PW-14 SI Jagdev Singh, the complainant party seemingly aggravated the fight by its own conduct resulting in retaliation by the accused party in the face of imminent danger to appellant Gurbhajan Singh @ Harbhajan Singh. At best the occurrence appears to have emanated from a sudden fight between the parties for which both the parties more or less would have to share the blame. It need not be over- emphasised that self preservation is the fundamental rule of criminal jurisprudence and is a right inherent in every individual.

Use of lethal weapon to frighten away the adversaries would not be termed as being an offensive act in the facts and circumstances of the case. The admitted case of the prosecution is that only one shot was fired from a distance of about 66 feet, which resulted in injuries to PW-3 Joga Singh on non-vital parts of his body. It has also come in evidence that after the shot was fired at, at the complainant party, they fled away from the spot. The accused party too have admitted to the same though their case is that the same was in their right of private defence. The nature and seat of injuries on both the complainant and the accused party in fact throws considerable light on the genesis and manner of occurrence.

It would be relevant to reproduce the injuries suffered by the injured complainant party and as well as the accused party.

Injuries on Jodhbir Singh (PW-2):

Incised wound about 5 cm x 1 cm x .75 cm over the top of head in the mid line anterio posteriorly placed.

Abrasion over the right side of nose about 1 cm x .5 cm in size and red in colour.

Punctured wound .5 cm x .5 cm over the back of middle of right fore-arm with defused swelling around the wound.

Red contusion 12 cms x 6 cms over the outer aspect of right arm in its lower half.

Red contusion about 10 cms x 2 cms over the back of right fore-arm and elbow.

Lacerated wound 2 x 1 cm over the dorsum of middle of right index finger.

Lacerated wound 2 x 1 cm over the dorsum of middle of right thumb.

About 25 x 4 cms red contusion over the back of chest on left side obliquely placed.

Injuries on injured Joga Singh (PW-3):

A lacerated wound .25 x .30 cms on the right cheek in the middle. Slight blackening was present around the wound.

Lacerated wound .3 x .25 cm over the outer aspect of right arm in its upper ¼th. Slight blackening was present around the wound.

Dark red abrasion over the right supra scapular region outer aspect of size 1 x .5 cm.

Lacerated wound .3 x .25 cm over the right side of abdomen just below the chest. Blackening was present around the wound.

Lacerated wound .3 x .25 cm with slight blackening of skin around it over the right side of front of abdomen in the inguinal region about 3 cms from the right anterior, superior iliac spine.

Lacerated wound .25 x .25 cm over the left palm outer aspect in the middle. Slight blackening was present.

Lacerated wound .3 cm x .25 cm over the medial aspect of left thigh just above the knee, blackening of skin was present.

Lacerated wound .2 x .25 cm over the medial aspect of left knee. Slight blackening of skin was present.

Injuries on Sahab Singh

A defused swelling over the dorsum of middle of left hand 8 cms x 4 cms in size.

Injuries on Palvinder Singh:

There was incised wound of size 5.5 x 1.0 cm into muscle deep on left hand medial aspect. Fresh blood was present and on cleaning movements were painful.

Another lacerated wound of size 1.5 x 1 cm into muscle deep adjacent to injury No.1. Fresh blood was present.

Contusion of size 2.5 x 2 cms on right thumbs extensor (dorsal) aspect tenderness was present and movements were painful.

As far as injuries on Joga Singh (PW-3) is concerned, it is apparent that it was a single shot fired from the gun by the appellant Pinder Singh. As per PW-10 Dr.Sanjiv Grover, Medical Officer, General Hospital, Karnal, the spread of pellets on Joga Singh (PW-3) was approximately 33 inches in diameter which thus, leaves no manner of doubt and corroborates the testimony of both PW-3 Joga Singh as well as the plea of appellant Pinder Singh that the shot had indeed been fired from a long distance.

The injuries on accused persons on the other hand, have admittedly gone unexplained. No doubt, one injury according to PW-11 Dr. Abhinav could have been self suffered but qua the other injuries, which include grievous injuries suffered by the appellant Gurbhajan Singh @ Harbhajan Singh, Joga Singh s/o Roor Singh and Palvinder Singh, neither the doctor has opined them to be self suffered nor the same could by any stretch of imagination be said to be self inflicted.

After taking into account the totality of the circumstances as discussed above, I am of the considered view that the inability of the prosecution to explain the injuries on the person of the accused party, which include grievous injuries also does create a serious dent in the prosecution case.

Further, the probability of appellant Pinder Singh having fired a shot from the gun of Joga Singh s/o Roor Singh to fend off attack on his father Gurbhajan Singh @ Harbhajan Singh by the complainant party comes across as convincing. Had the intention been otherwise, appellant Pinder Singh would not have been content with just one shot but would have followed it up with more shots from the gun at the fleeing complainant party. It is thus, a fit case of giving benefit of doubt to the accused- appellants.

As a sequel to the above discussion, the present appeal is allowed and the impugned judgment and order of conviction dated 19/20.03.2004 is hereby set aside. The appellants Pinder Singh, Ravi @ Harvinder Singh, Palvinder Singh and Sukha Singh are consequently acquitted of the charges against them. They are on bail and accordingly, their bail bonds stand discharged.