State of Haryana vs Karan Singh

V.K. Bali, J.

This appeal against the order of acquittal has been filed by the State of Haryana with an obvious prayer to set aside the order, acquitting the respondents herein and to hold them guilty of an offence under section 302 read with section 34 of the Indian Penal Code for having intentionally caused the death of Dilbagh Singh.

The only question that needs to be determined in this appeal is as to whether the respondents had a right of defence of their person and as to whether in exercise of their said right that they killed Dilbagh Singh. Before, however, the sole question mooted out is answered one way or the other a brief resume of the facts deserves necessary mention.

Jai Bhagwan Singh PW6 got his statement recorded to Azad Singh A.S.I. of Police Station Kharkhoda on 15th of March, 1989 at 6.30/6.45 P.M. on the basis of which formal F.I.R. came into being at 10.45 P.M. on the same day at Police Station, Kharkhoda. Jai Bhagwan stated that his real grandfather Lipti and one Shiba son of Shiv Ram were cousins. Shiba was his grandfather in his relation and he (Shiba) had five daughters. Out of them Chander, his father'' sister (Bhua) and Nimbo were married with Durga Parshad and Ram Singh respectively. His grandfather Shiba had no male issue and as such his (Shiba''s) land was partitioned among his five daughters being cosharers. His father''s sister''s husband (Phupha) Ram Singh and Durga Parshad had been residing in their village since long. His father''s sister (Bhua) Giano daughter of his grandfather Shiba was married with Tale son of Prabhu. The land falling in the share of Giano measuring 45 Kanals and 16 Marlas was purchased by the members of his family. His father''s sister''s husband (Phupha) Durga Parshad had filed a preemption suit through his father''s sister (Bhua) regarding the said land. His father''s sister (Bhua) Chander had since died. So his father''s sister''s (Bhua) sons, namely, Mohinder Singh, Karan Singh and Siri Bhagwan sons of Durga Parshad were contesting the said case and the case was fixed for hearing on 24th of March, 1989. The turn of irrigating this land out of canal water started form 7.43 to 8.51 P.M. On the last turn of water they had taken (borrowed) water from Karambir Singh Lambardar son of Tarif Singh of their village. Today they had to return canal water to Karambir Singh Lambardar who had come. The said water was meant for irrigating land in dispute and at about 6.30 P.M. he alongwith Lakhmi, Dilbagh son of Tale Ram and Karambir son of Tarif Singh went to their fields known as Orddarwala in order to return the water to Karambir. Mohinder son of Durga Parshad armed with a double barrel gun came to them and started saying to Dilbagh, "We have won the preemption suit in respect of the land in dispute, the water whereof you want to give to Karambir Lambardar. We have taken the possession of the said land and the mutation entries have also been made in our favour today." At this Dilbagh replied, "The case is still pending and therefore, you have not succeeded in the case." In the meanwhile, Durga Parshad and Siri Bhagwan son of Durga Parshad both armed with lathis came there and started saying, "We will take water and will not allow Karambir to take the same." They continued saying that they (informant and his companions) would give water definitely for the reason that they had purchased the land and further said that the case was still pending. In the meanwhile, Mohinder Singh fired a shot from his double barrel gun. However, the shot did not hit any one. On hearing the reporting of fire shot, Randhir son of Harkishan, Dalip Singh son of Goli Ram and Harkishan son of Goli Ram, also reached there. In the meanwhile, Mohinder Singh fired another shot from his gun. Persons from their side snatched the gun and bandolier containing cartridges from Mohinder Singh. In the meantime, Karan Singh son of Durga Parshad armed with a double barrel gun, Ram Bhaj resident of village Kiloi with whom his cousin Krishna daughter of his father''s sister (Bhua) was married armed with a lathi came there and within their sight Karan Singh fired a shot which hit Dilbagh Singh. As a result thereof, Dilbagh Singh fell down on the spot and died. They also inflicted injuries to them in their self defence. As soon as Dilbagh Singh died, all the five persons fled away from the spot. Leaving Lakhmi, Harkishan and Randhir Singh to guard the dead body of Dilbagh Singh, he went to lodge the report when Azad Singh ASI met him. It has further been recited in the First Information Report that there were criminal cases between Mohinder Singh and them previously also. During the quarrel Siri Bhagwan gave a lathi blow on his right shoulder. Lakhmi and Harkishan had also received injuries in the fight. The gun and the bandolier containing cartridges belonging to Mohinder Singh were in possession of Randhir Singh son of Harkishan. The special report with regard to the incident reached Judicial Magistrate Ist Class, Sonepat at 1.00 P.M. at night.

In order to prove the case against the respondents herein the prosecution examined PW6 Jai Bhagwan, PW7 Hari Kishan and PW11 Lakhmi, who as per the prosecution version witnessed the occurrence. Randhir Singh and Dalip Singh PW9 and PW10 respectively even though said to be present at the scene of occurrence were not examined and were only tendered for crossexamination. The eyewitnesses examined in this case Jai Bhagwan, Hari Kishan and Lakhmi have broadly supported the prosecution version. There are other witnesses who were also examined but there is no need to mention about their deposition made before the Court as the occurrence leading to death of Dilbagh Singh has been admitted by the respondents although the way and manner in which the occurrence took place as per the prosecution version has been denied. The case of respondents as is clearly made out from their statements under section 313 of the Code of Criminal Procedure was that the occurrence did not take place in the manner mentioned by the complainant party. In fact on 15th March, 1989, they were in physical possession of the land in dispute as they had obtained the physical possession thereof in execution of the preemption decree. Mohinder Singh, Siri Bhagwan and Durga Parshad had gone to the fields on that evening at about 3.00 P.M. or so. Mohinder Singh had diverted the canal water to irrigate the land whereas Durga Parshad and Siri Bhagwan were in the fields nearby. In the meanwhile, at about 4 or 4.30 P.M., Lakhmi, Jai Bhagwan, Hari Kishan, Dalip, Randhir Singh and Dilbagh Singh deceased armed with lathi each reached there and they started diverting the canal water forcibly. Mohinder Singh prevented them from doing so whereupon they attacked him. At that time Mohinder Singh was having licensed double barrel gun and his bandolier and cartridges were with him. When they attacked him, he fired two gun shots in the air to deter them, feeling imminent danger to his life. He had sustained injuries on his hand and other parts of his body. His double barrel gun, bandolier and cartridges had fallen on the ground which were picked up by the complainant party. On hearing noise, Siri Bhagwan armed with a lathi and Durga Parshad armed with double barrel gun reached the spot and when they intended to rescue him, the complainant party also attacked and started assaulting them with lathis. In order to save himself and Siri Bhagwan, Durga Parshad fired a gun shot which hit Dilbagh Singh and Siri Bhagwan inflicted some lathi blows to the injured PWs. Thereafter, Mohinder Singh, Siri Bhagwan and Durga Parshad went to Medical College and Hospital, Rohtak on that very evening where they were medically examined and were admitted. The police did not record their version and acted on information of other side and involved them in this case falsely to save the complainant party. Since the land of Shiba had been mutated in favour of Smt. Chandro, Smt. Giano etc. his daughters and they had also won the preemption suit, the complainant party was feeling annoyed and they were feeling danger to their life at their hands and that is why they had taken the guns to their fields when they had gone to irrigate their land. Karambir PW was not present at the place of occurrence. The deceased and the complainant party formed one group and they were intimately connected with each other. The respondents also led evidence in defence to show that it was their turn of water as also by the dint of decree obtained by them in pre emption suit, they had obtained possession of the land in dispute prior to the date of occurrence. Out of the two versions, one given by the prosecution and the other given by the defence, the learned trial Judge after discussing the evidence threadbare came to a firm conclusion that the respondents herein had acted in the right of their self defence and were, thus, not guilty of the charges framed against them.

Mr. Vijaypal Singh, the learned Assistant Advocate General, Haryana, in support of the appeal preferred by the State, however, contends that while returning the finding on the crucial issue as to who was in possession of the land in dispute, the Sessions Judge completely ignored Ex. PV an interim order passed by Shri P.C. Narial, Additional District judge, Sonepat on 21st of April, 1989 in Appeal bearing No. 9 which was instituted on 25th of February, 1989 by Bisal Singh and others, against order dated 15th June, 1988 passed by Shri R.C. Godara, Addl. Senior Sub Judge, Sonepat. Vide order aforesaid, the respondents were restrained so as not to disturb the complainant party from the possession of the land measuring 45 Kanals 16 Marlas. While so ordering it was mentioned by the learned Additional District Judge that respondents had not taken possession of the land subject matter of the preemption suit and in fact, they had taken possession of some other land. If this document was taken into consideration by the learned Sessions Judge, the result of the case would have been entirely different, contends the learned Counsel. His alternative contention, if his first contention is not to be accepted, is that, in any case, respondents herein did not have the right to kill and therefore, they had certainly exceeded their right of self defence.

After hearing the learned Counsel for the parties and with their assistance going through the records of the case, we find no substance whatsoever in this appeal preferred by the State of Haryana. Before, however, we discuss the points raised by the learned State Counsel, we would like to mention the injuries suffered by the respondents. It may be recalled that even the complainant party admits having caused injuries to the respondents and that the respondents were actually injured in the same incident in which Dilbagh Singh died is otherwise also proved from the records of the case. On 16th March, 1989 at 12.15 A.M. DW1 Dr. Sanjay Narula had medically examined Mohinder Singh respondent and found the following injuries on his person :

There were lacerated wounds over scalp. One transverse wound over parietal region across sagital suture in midline .5 cms in length. Another wound 3 cms in size vertical lacerated wound 2 cms anterior to previous wound. There were two transverse lacerated wounds over occipital region 3 cms and 5 cms in length. Fresh bleeding present. X ray skull were advised.

There was swelling and deformity of left wrist joint. Tenderness present. Advised Xray examination. Patient was advised surgical opinion and orthopaedics surgeon opinion.

Both the injuries were caused by blunt weapon within probable duration of 12 hours. Both the injuries found on the person of Mohinder Singh were grievous in nature. The first injury as per description given above is on the parietal region across sagital suture in the mid line. The same very doctor examined at 12.30 A.M. on the same date Durga Prashad also and found the following injuries on his person :

Lacerated wound over the scalp 8 cms in length left parietal region. Fresh bleeding present. Xray skull advised.

Lacerated wound over midline of scalp extending from parietal to occipital region. Fresh bleeding was present. 5 cms x 2 cms in size. Xray skull advised.

Two lacerated wounds over the occipital region 5 cms and 4 cms in length and extended upto right parietal region. Fresh bleeding present. Advised Xray skull.

There was 3 cms long lacerated wound over right leg in midline. Fresh bleeding present. Advised Xray.

Tenderness present over left shoulder. Advised Xray examination.

Tenderness over lower back in midline. Advised Xray examination.

In the opinion of the doctor skull injuries were grievous in nature. On the same day at 3.10 A.M. the same very doctor medically examined Siri Bhagwan and found the following injuries on his person :

1.5 cms long lacerated wound over left eye brow. Fresh bleeding present.

3 cms long lacerated wound over left parietal region. Fresh bleeding was present.

There was an abrasion over the right side of back.

There were multiple abrasions over right shoulder.

There were multiple abrasions over left shoulder.

After going through the opinion of the Ragdiologist, doctor opined that all injures were simple in nature. Mohinder Singh was also examined by Dr. K.K. Dua DW. 2. After Xray examination doctor found fracture of the radius on the left side and ulna on the right side. From the medical evidence led by the defence it, thus, transpires that whereas Mohinder Singh had two injuries on his person, both his arms and head were fractured, Durga Parshad had six injuries on his person out of which injuries Nos. 1, 2 and 3 were on the skull and were grievous. Siri Bhagwan had five injuries out of which injury No. 2 was on the scalp. Coming now to the twofold contention of the learned Counsel for the State, we find from the records of the case as also from the findings recorded by the Addl. Sessions Judge that respondents had taken possession of the land in dispute before the date of occurrence. The respondents examined the police officer through whom possession was taken in execution of the pre emption decree. It may be mentioned here that since the respondents were apprehending resistance, police help was sought from the court which was so provided and it was through police only that the possession of the land subject matter of preemption suit was taken. The respondents have also produced Khasra Girdwaris depicting their possession on the land subject matter of preemption suit prior to the date of occurrence. The interim order referred to above by the learned State Counsel was at the most a prima facie expression of opinion and had not assumed finality. That apart, even if it is assumed that the respondents in pursuance of the execution of the preemption decree had so far not taken possession, the result of this case would not change. It is admitted position that the sale of land was of a share belonging to the vendor and the remaining land in the Khewat was already in occupation of the respondents. Even as per the prosecution version, the real cause resulting into fight between the two parties in which number of persons were injured and even one died was with regard to turn of water and it has been overwhelmingly proved from the evidence led in this case that it was the turn of respondents to irrigate their land. If that besso, the whole prosecution version, that it is the complainant party which was wanting to irrigate their land, it being their turn to do so and that the respondents prevented them from irrigating the fields would be false resulting into rejecting the same, and consequently we hold that the occurrence had not taken place in the way and manner as suggested by the prosecution. If the defence version is more probable that the respondents were attacked for preventing them from irrigating their fields by the complainant party and it is they i.e. complainant party which opened the attack and injured the respondents, the right of self defence would still be available to the respondents despite the fact that they were not in possession of land subject matter of preemption suit. PW6 Jai Bhagwan has stated that the land which Risal Singh etc. had purchased was irrigated by canal water and they had turn of water on every Wednesday from 7.43 P.M. to 8.51 P.M. night. The occurrence in this case had taken place at 6.30/6.45.PM even as per the prosecution version and as per the case of the defence it was their turn of water at that time. From the statement of PW6 Jai Bhagwan it is, thus, proved that their turn was only form 7.43 P.M. to 8.51 P.M. Jai Bhagwan has also stated that he had stated before the police in Ex. PF that when they had reached the place from where they were to divert the water, they found Mohinder Singh, Durga Parshad and Siri Bhagwan accused taking water in their land. This statement made by him really clinches the issue with regard to the turn of water and as to who was taking the water and who was preventing. PW7 Hari Kishan in crossexamination stated that the accused and they used to take water for the land from the same water course and that they had separate Khal from that water course for irrigating their fields and that they were preparing the Khal. He further stated that they were working three killas away from the place of occurrence. He also stated that before Dilbagh Singh had received the firearm injury, he, Jai Bhagwan, Lakhmi and accused Mohinder Singh, Durga Parshad and Siri Bhagwan had already sustained injuries prior in point of time. That further supports the defence version that it is only when the things were getting out of hand that they had no choice but to fire a shot at Dilbagh Singh. We have absolutely no hesitation in straightaway rejecting the alternative contention of the learned Counsel representing the State that the respondents herein had exceeded the right of self defence. Mere apprehension of a grievous hurt clothes a citizen to cause death and in the present case there was not only a mere apprehension but two of the respondents at least had actually sustained grievous hurt. The injuries to two of them are on scalp and one of the injuries on the scalp had been found to be grievous. From the perusal of the evidence led in this case, we are of the firm view that the respondents acted in right of their self defence and have been, therefore, rightly acquitted by the learned Additional Sessions Judge.

Finding no merit in this appeal, we dismiss the same.