Sardar Singh alias Sardari and others vs State

Bhawani Singh, Chief Justice

We propose to dispose of these two appeals by a common judgement since they arise out of judgement dated 19.11 1992 passed by Sessions

Judge, Kathua in file No 149 Session for offence under sections 307/ 326/447/325/323/147/148/149 RPC and section 4/27 Aims Act, Criminal

Acquittal appeal No. 10/1993 has been preferred by the state against acquittal of all accused for offence under sections 307 RPC and others for

this offence as well as 326 RPC etc with prayer to sentence them for the same and enhance the sentence. Criminal appeal No. 24/1992 is at the

instance of accused for the setting aside the judgement of Trial court and acquit them of the charge The prosecution case may he mentioned briefly.

On 17,04.1991, Prem Singh and Hans Raj were fencing their land in ward No.7 Kathu. Accused, armed with deadly weapons, came there on

a tractor at 12.30 p.m and uprooted the fencing with the Tractor and asualted with intention to cause their death. Hans Raj and Prem Singh were

injured seriously by the accused by using Toka, Dah, Swords and Drats. They were shifted to hospital at Kathu where statement of Prem

singh(pw) was recorded by the police and case was registered thereon. During the course of investigation, Dah and a sword were recovered by

the police on the basis of discfousre statment by Sardar Singh and Kuldeep Singh accused.

Consequently, all the accused were charged for offences like 307/326/325/ 324/323/447/148/149 RPC. Kuldeep Singh and Sardar Singh

were also charged for offence under section 4/27 Arms Act All the accused pleaded not quality of the charge and claimed trial. Therefore,

prosecution sought to prove the case against them by producing as many as ten witnesses. On completion of prosecution evidence, the accused

were examined under section 324 Code of criminal procedure. They have denied the prosecution allegations against them, however, no other

evidence in defence has been produced by them.

Ultimately, the trail court convicted and sentenced the accused for various terms of imprisonment and fine recorded in the (sic) penultimate

paragraph of the impugned judgment.

Heard Learned Counsel for the parties, perused the evidence on record.

It was contended that prosecution evidence is full of contradictions, therefore, no reliance could the place thereon. However, the Trial court

committed great error by depending on this kind of .evidence for convicting the accused. Evidence clearly points out that the occurrence did not

take place in the manner suggested by the prosecution. Although, they stated that lethal weapons were used but the medical evidence does not

suggest such a use. Rather, the injuries could be caused by blunt objects. The prosecution failed to prove the accused are alleged to have

restrained the complainant, from fencing the same. Rather, it can be found from the evidence that the case of prosecution as to possession of the

land was false(sic). Similarly, the conclusion of Trial court that they were not entitled to right of defence to self and property since they failed to

lead evidence in support of the plea, is completely erroneous according to learned counsel for the accused since the burden is still on the

prosecution to prove the guilt against the accused irrespective of the plea raised by the accused. Evidence pointed out possession of accused over

the land in question is in unmarried terms. Khasra Girdawari for the year 199091 showed the possession of Vakilu father of Kuldeep Singh

accused but no attention was paid to it by the Trial Court though copy of this document forms part of the record, therefore, right of defence to self

and property was available to the accused. In any case, there was one bonafide dispute with respect to the property in question and the accused

were not liable to be convicted, therefore, they deserved to be acquitted.

Grievance of the State against the judgment is that as per the statement of witnesses the accused had intention to kill the complainant and with

this intention they tresspassed into the land of the complainant while they were inflicted on the vital part of the body, therefore, trail court should

have convicted the accused of offence under section 307 RPC and 326 RPC and awarded life imprisonment or 10 year imprisonment, but lenient

view has been taken causing miscarriage of justice.

With a view to appreciate the respective submission of learned counsel for the parties, record has been perused carefully.

Prem Singh (pwl) was injured in this incident. He states that on April 17,1991 he was fencing the land alongwith his brother Hans Raj when

accused came there on tractor, armed with Toka, Dah, Sword and uprooted the fence. He and his brother were assaulted by the accused. Sardar

Singh inflicted injury on his left arm with a toka, Niki accused on his left leg with a dah and he fell down. Sardar Singh inflicted two more blows

with a toka on his right leg. Other accused inflicted injuries on Hans Raj with sword, Toka and dah. His statement was recorded by the police

{expw ps). due to these injuries, his leg was fractured and has become useless. During crossexamination, he states that the land was being fenced

by them was about two kanals but bearing Khavet No. 119 in joint ownership of the parties. On April 13,1991, the accused also uprooted the

fencing and he reported the matter to the police at police station where accused party was also called by the station house officer and the matter

was compromised was witnessed by Kartar Singh, Amar Singh and Prem Singh.

Hans Raj (pw2) is the brother of Prem Singh {pwl). His version is not similar to Prem singh (pwl) so far as it relates to the nature and number

of injuries inflicted by the accused. Further, injuries inflicted by Narinder Singh accused have not been described by Prem Singh (pwl). He and

Prem Singh raised hue and cry upon which the ""accused ran away, there is further variation between this witness and Prem Singh (pw 1) did not

insist on taking action against them. He denies the suggestion that Prem Singh intended to grab the land by fencing it. He states that the accused

wanted to take forcible possession of this land, according to him, the land is in their separate possession. No such version has been given by Prem

Songh (pwl).This witness has not said that disputed land forms part of land measuring about 600 kanals in khasra no. 119 jointly owned by the

parties as stated by Prem Singh (pw 1).

Amar Singh (pw 3) states that he saw Pritam Singh and Hans Raj fencing their land situated in Kathu a Khud. Accused came there on Tractor

and uprooted the fence with it. Thereafter, they assaulted Hans Raj and Prem Singh. Kuldeep Singh and Narinder Singh inflicted injuries with Toka

and Sword. Other accused also inflicted injuries to Hans Raj. They were armed with swords. Many other people were attracted to the scene of

occurrence on hearing hue and cry of the complainants. The accused persons ran away on the Tractor. This witness poses himself to be an eye

witness to the occurrence but narration of incident by him is materially opposed to what has been said by the other two witnesses discussed above.

There is serious doubt about his presence at the spot, therefore, his statement can not be believed. Further, in cross examination, the possession of

the land that was being fenced by the complainants party at the time of occurrence (sic). The accused party did not declare at that time that the

land was in their possession.

12) Prem Singh (pw 4) also states that Prem Singh and Hans Raj were fencing their iand when accused came on tractor and gave beatings to them

and thereafter they ran away. He admits that near this land, land of Kuldeep Singh accused was situated. Apart from giving a fault version of the

incident, the statement of this witness is also contradictory to the statement of other witnesses. Statements of Kulbhushan {pw 5) and Omkar

Chand (pw6)as to recovery does not inspire confidence. Firstly, there is serious doubt about the use of these weapons, Seconciiy they could not

have been kept at the place of their recovery. Statement of Dr. Anju Jamwal (pw7) and Dr. K.K.Sethi (pw 8) relate to the injuries found on the

person of Hans Raj and Prem Singh. According to Dr. Anju Jamwal (pw7), both the injuries on Hans Raj were simple in nature. Injury1 was

caused by sharp weapon, injury2 was by blunt object. On Prem Singh, injuries1 and 2 were grievous in nature. Injury1 was by sharp weapon and

injury2 by blunt object. Again, injury3 was simple in nature caused by blunt object. Injury on Hans Raj could be caused by sword (exp1) and

Prem Singh by Exp2. According to Dr.K.K. Sethi (pw8). Xray examination of Prem Singh revealed as follows:

Fracture upper third shaft of (It) tibia, communited fracture upper and of (It) fibula and chip fracture lower and of (It) humrous detected.

Perusal of medical reports further demonstrate that the injuries inflicted are not of serious nature. In case the accused intended to cause the death

of complainants as alleged by lethal weapons, the nature of injuries could be otherwise. These injuries throw serious doubt about (sic) being the

position, the recovery aspect of prosecution case also receives a serious set back. Other evidence is not of much relevance therefore, that need not

be discussed.

From the aforesaid discussion of the matter, certain material features of the case may be distinctly reiterated in support of our conclusion that,

the prosecution has not been able to substantiate the case against the accused.

The Prosecution has miserably failed to establish the ownership as well as the possession of land. It transpires that both the parties owned the

land in question and there is no evidence of separate possession by either of them nor led by any of them. Therefore, it can he legitimately

concluded that the complainant wanted to take possession of this piece of land from the accused and scuffle followed. Complainant has stated on

April 13,1991, the accused had also destroyed their fencing. If that was so , there existed bonafide dispute between the parties with respect to the

possession of land hut none thought of taking recourse to law court for establishing entitlement to the land. This is one aspect of the matter. The

other aspect is the explanation of accused stating that the land in question was owned and possessed by Vakil father of Kuldeep Singh accused as

per Khasra Girdawari for the year 199091. Thus, both the parties are claiming possession of the land in question (sic). Therefore, the claim of

accused for exercise of right of private defence to property can not be ruled out. It is well settled that accused may not raise plea of this nature

straightway in clear cut terms but the same can be taken from the manner of suggestions put to the prosecution witnesses. We have seen from the

evidence that the accused have suggested to prosecution evidence that this land was possessed by them and complainants were trying to take

possession thereof by fencing the same. This is enough to show that accused were pleading right of private defence to property and with a view to

protect it, used reasonable force against the trespasser. Till the property is jointly owned by the parties subjected to partition, every inch thereof is

owned by all, unless it is proved by clear evidence that parties were in respective possession of the land for some time to the knowledge of other

share holders. This has not been done in the present case. Apart from this, we find that prosecution witnesses are relations, interested in the

property. They have given contradictory versions of the incident, weapons used and the injuries inflicted already discussed above. Therefore, much

reliance can not be placed on what they have stated. Further, they are not supported by medical evidence to the hilt. Recoveries are

undependable. The case has not been investigated properly with the result that it is not possible to establish clearly who was responsible for the

occurrence in question. It is well settled that the duty of the prosecution is to substantiate the case against the accused beyond all reasonable

doubts. It has failed to do so.

Therefore, in the aforesaid background, we are of the opinion that Criminal appeal No. 24/1992 deserved to be allowed. Consequently, it is

allowed, In view of the aforesaid conclusion in Criminal appeal No. 24/1992, Criminal acquittal appeal No. 10/1993 is dismissed.