Full Judgment Text
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PETITIONER:
BHAGEL SINGH
Vs.
RESPONDENT:
SWARAN SINGH AND ORS.
DATE OF JUDGMENT22/01/1992
BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
SAHAI, R.M. (J)
CITATION:
1992 AIR 682 1992 SCR (1) 338
1992 SCC Supl. (2) 96 JT 1992 (1) 252
1992 SCALE (1)126
ACT:
Indian Penal Code 1860.
Ss. 34, 302-Free fight between rival parties-Two
persons shot dead-Whether participants responsible for
their individual acts.
Code of Criminal Procedure, 1973
S. 313-Statement of accused setting up a defence-Not
supported by other evidence-Medical evidence-Contrary to
defence version-Credibility of statement.
HEADNOTE:
A dispute in respect of a drain to be dug through the
fields of the appellant-complainant led to a quarrel between
the complainant party and the respondents no. 1 to 4 (all
brothers and arrayed as accused nos. 1 to 4 respectively,
before the trial court) in which, according to the
prosecution case, respondent no 4 received minor injuries
whereas PW 14 on the complainant’s side was seriously
injured; and while he was being taken to the city hospital
in a tractor trolley accused nos. 1 to 4 armed with rifle,
kirpan, gun and sua respectively, challenged the complainant
party near the village bus stop. Thereupon deceased-1 with
some others got down from the tractor and went forward to
persuade accused no. 1 to keep peace while the latter fired
two successive shots hitting deceased-1 and deceased-2 who
died on the spot. Accused no 3 fired two shots causing
injuries to two other persons of complainant party. Accused
no 3 gave kirpan blows to PW 16 as also to PW 15, who was in
the grip of accused no. 4. In the incident, accused no. 1
also received injuries. The case originated with the F.I.R.
lodged by the complainant-appellant (PW 8) and culminated in
the trial of the four accused.
The prosecution produced the complainant-appellant (PW
8) and the three injured (PW 14-16) as eye-witnesses.
Accused no. 1 in his statement under s. 313 Cr. P.C.
set up a defence plea stating that there was a minor quarrel
between the
339
parties in the fields in the presence of Sub-Divisional
Officer and on his intervention they returned to the house.
After some time when they came to know that the other party
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was causing injuries to accused no 4, accused nos. 1 to 3
armed with rifle, kirpan and gun respectively, went there in
order to rescue him but PW 15 caught hold of accused no. 1
and the complainant started giving him Takwa blows while
deceased-2 gave him stick-blows and in this process the
rifle went off. He further stated that accused nos. 3-4
also suffered injuries.
The trial court, accepting the eye-witness testimony
and rejecting the defence plea, held that the accused party
was aggressor and as such charges against them were proved
beyond reasonable doubt. It convicted accused no. 1 under
s. 302 IPC and each of accused nos. 2-4 under s. 302 read
with s. 34 IPC, and sentenced all of them in imprisonment
for life. They were also awarded sentence of fine. The
trial court further convicted accused nos. 2 to 4 under s.
307 & 325 IPC, 326 IPC, and 323 IPC respectively, and also
convicted all the accused under these sections with the aid
of s. 34 IPC. Accused nos. 1 and 3 were also convicted under
the Arms Act.
On appeal, the High Court, accepting the defence
version as more probable than that of the prosecution,
reversed the findings of the trial court, allowed the appeal
and acquitted all the accused. Aggrieved, the complainant
preferred the appeal by special leave to this Court.
Accepting the appeal to the extent of acquittal of
accused no. 1 and setting it aside, this Court,
HELD : 1.1 The findings of the High Court that-accused
No. 4 had been disabled by the time the other accused,
persons reached the spot and as such the accused party was
justified in acting in self-defence; accused nos. 1 was
injured by the complainant party before he had actually used
his rifle; and that accused nos. 1 and 3 fired from a close
range-apart from being contrary to the eyewitness account,
are belied by the medical evidence on record. [345 GH;346 C-
D; 347 A-B]
1.2 The doctor (PW 3) who examined respondent no. 4
found simple injuries on his person. He nowhere stated that
the accused became disabled because of the injuries. The
nature of the injuries was such that the conclusion reached
by the High Court was without any basis. [pp. 345 H; 346 A]
340
1.3 The injuries on the person of accused no. 1,
including the one with a sharp edged weapon on the head,
were much more serious than those of accused nos. 4. If
accused no. 1 who was armed with a rifle could be given 12
injuries with different weapons at the time when all the
four accused persons were present on the spot, there was no
reason why accused no. 4 could not have been given injuries
at the same time. [p. 346 BC]
1.4. Accused no. 1 in his statement under s. 313, Cr.
P.C. specifically stated that accused no 4 suffered injuries
at the hands of the other party which obviously means that
he was given beating at the same time when accused no. 1 was
injured. [p. 346 C]
1.5. Looking at the nature of injuries and the opinion
of the doctor it cannot be believed that accused no. 1 could
have fired two shots killing deceased-1 and deceased-2 after
receiving the injuries. The trial court was right in
holding that after receiving 12 injuries and with his
condition as opined by the doctor it was difficult to
believe that accused no. 1 was in a position to fire the
shots. He must have, therefore, used his gun before
receiving the injuries. [p. 346 H; 347 A]
1.6. The doctor who conducted the post-mortem on the
dead body of deceased-1 stated that there was no blackening,
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scorching or tattooing which indicates that the shots were
not fired from a close range. [p. 347 B]
2.1 The defence version as given by respondent no. 1
does not inspire confidence. [p. 347 B-C]
2.2 If PW 15 caught hold of accused no. 1 and the
appellant gave Takwa blow on his head he could not have
possibly fired two shots killing the two deceased. In any
case, even if he was in a position to fire the shots he
would have first fired at the appellant who was the main
enemy and was hitting him with Takwa. It is highly
improvable that in that situation he would have fired at the
two deceased. Even otherwise, accused no. 1 had not stated
how the rifle held by him went off. No evidence was
produced to further clarify the defence version. [p. 347 CD]
2.3 The High Court, therefore, erred in accepting the
defence version put forward by accused no. 1 in his
statement under s. 313, Criminal Procedure Code. [p. 347 D]
341
3.1 The trial court was not right in holding that the
accused party was the aggressor. [p. 347 E]
3.2 There were bitter feelings between the parties and
the tempers were high. The accused party was in favour of
digging the drain whereas the complainant party was against
the proposal because the drain was passing through their
fields. On the day of occurrence the complainant party gave
beating to accused no. 4 and thereafter the accused party
injured PW 14 belonging to the complainant party. Before
the main occurrence took place sufficient heat had been
generated between the parties and they were itching for a
show-down. [pp. 347 E-F]
3.3 The only probable conclusion is that the two
parties came across each other and had a free fight as a
result of which both sides suffered injuries and two persons
died. In such a situation the participants are responsible
for their individual acts. [p. 347 G]
4.1 Both the courts below, though giving conflicting
verdicts, have rightly come to the conclusion that the two
deceased were killed by the gun shots fired by accused no. 1
who in his statement under s. 313, Cr. P.C. stated that
while injuries were being caused to him his rifle went off.
[pp. 347 GH; 348 A]
4.2 Accused no 1 is, therefore, guilty of causing
murder of the two deceased and is accordingly convicted
under s. 302 IPC and sentenced to imprisonment for life on
the two counts. There is no evidence to prove the
commission of any offence by the other participants beyond
reasonable doubt. Accused nos. 2 to 4 are, therefore,
acquitted by giving them benefit of doubt. [p. 348 A-B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No
302 of 1980.
From the Judgment and Order dated the 2.11.1979 of the
Punjab and Haryana High Court in Crl. A. No. 455 of 1978.
S.K. Jain for the Appellant.
R.S. Sodhi for the Respondents.
The Judgment of the Court was delivered by
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KULDIP SINGH, J. Swaran Singh and his brothers Avtar
Singh, Ajmer Singh and Rajinder Singh were tried for the
murder of Kandhara Singh and Darbara Singh. They were also
tried for causing injuries to Tarlok Singh, Sadha Singh,
Anokh Singh, Sukhdev Singh and Boor Singh. Swaran Singh and
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Ajmer Singh were further tried under Arms Act. The trial
court convicted Swaran Singh under Section 302, IPC and
sentenced him to imprisonment for life on two counts. Other
accused were sentenced with the aid of Section 34, IPC to
imprisonment for life. They were also awarded sentence of
fine. Ajmer Singh, Avtar Singh and Rajinder Singh were
further convicted under section 307 and 325 IPC, 326 IPC and
323 IPC respectively. All the four accused were inter-se
convicted under these sections with the aid of 34, IPC. The
High Court, on appeal, set aside the conviction and sentence
of all the accused and acquitted them. This appeal by way
of special leave is by the complainant against the judgment
of the High Court.
We may briefly notice the prosecution story as recorded
in the first information report lodged by Baghel Singh PW 8.
A drain was to be dug up through the village. It was to pass
through the fields of Baghel Singh, Complainant Swaran Singh
accused was the sarpanch of the village. He wanted the
drain to be dug whereas Baghel Singh was opposed to it. On
July 23, 1977 at about 5.15 p.m. the Sub-Divisional Officer
accompanied by a police inspector visited the village in a
Government jeep in order to inspect the site of the proposed
drain. The jeep was parked at some distance from the site.
The accused and the complainant parties were present. Swaran
Singh accused was armed with a pistol, Ajmer Singh with a
dang and Rajinder Singh was having a Neza. There was some
altercation between the groups and Rajinder Singh received
minor injuries at the hands of the complainants. At the
same time Swaran Singh, Ajmer Singh and Rajinder Singh
accused caused injuries to Boor Singh P.W. 14 who was
standing by the side of the Government jeep. Baghel Singh
and others raised an alarm upon which the above named
accused persons left Boor Singh and went away. Boor Singh
who had suffered number of injuries on his person was
brought to the village in the jeep of the Sub-Divisional
Officer. Boor Singh was put in a tractor trolley for taking
him to the hospital in Ferozepur city. Baghel Singh P.W.8,
Anokh Singh P.W. 15. Sukhdev Singh P.W. 16, Kandhara Singh,
Darbara Singh and some others also sat in the trolley. When
they reached near bus stand of the village, Swaran Singh
accused armed with a rifle, Ajmer Singh accused armed with a
gun, Avtar Singh accused armed with a Kirpan and Rajinder
Singh armed with a sua came running toward the trolley from
the village side. They were raising threats that they would
not allow Baghel Singh and his companions to go. The
tractor was stopped and some of the occupants got
343
down. Kandhara Singh went forward and tried to persuade
Swaran Singh to keep peace. The latter, however, fired a
shot which hit Kandhara Singh on the left side of chest and
he fell down. Swaran Singh fired again hitting Darbara
singh who also fell down. Both Kandhara Singh and Darbara
Singh died on the spot. Ajmer Singh accused fired two shots
from his gun injuring Tarlok Singh and Sadha Singh. Avtar
Singh gave a Kirpan blow to Anokh Singh on his head. Avtar
Singh also gave a Kirpan blow on the right wrist of Sukhdev
Singh. Rajinder Singh took Anokh singh in his grip. Baghel
Singh kept on raising alarm while standing near the tractor.
According to Baghel Singh "Swaran Singh etc. also received
injuries from us in our self-defence". All the four accused
thereafter went away from the place of occurrence. Baghel
Singh went to the police station to lodge the first
information report which was recorded at 7.30 p.m.
Nine injuries were found on the person of Boor Singh
which included two grievous injuries. The bones underneath
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left forearm were fractured. Swaran Singh accused was
examined by the doctor at 6.45 a.m. on July 24, 1977 who
found 12 injuries on his person. The doctor opined that his
condition was very serious. Five of the injuries were on
the head. There was an incised wound 7 cm x 1 cm on the top
of the head which was bone deep. Rajinder Singh accused had
ten simple injuries on his person. It is not necessary to
note the injuries on the other members of the accused or the
complainant party.
The occurrence took place at about 5.25 p.m., the FIR
was lodged at 7.30 p.m. and the special report reached the
Magistrate at 11 p.m. the same day.
The prosecution produced Baghel Singh P.W. 8, Boor
Singh P.W. 14, Anokh Singh P.W. 15 and Sukhdev Singh P.W. 16
as eye-witnesses. Except Baghel Singh the other three were
injured witnesses.
Swaran Singh accused in his statement under section
313, Criminal Procedure Code set up the defence-plea as
under:
"S.D.O. came to village to inspect the spot where
the drain was to be dug. There was minor quarrel
in the fields. S.D.O. intervened and separated the
parties. We returned to the house. After
sometime, we came to know that the other party was
causing injuries to my brother Rajinder Singh.
Myself armed with a rifle, Ajmer Singh armed with a
gun, and Avtar Singh armed with a kirpan went there
went there to rescue Rajinder Singh. We found
Baghel Singh, Kandhara Singh, Darbara Singh, Anokh
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Singh, Sukhdev Singh, Harbhej Singh, Tarlok Singh
and Boor Singh, causing injuries to Rajinder Singh.
I intervened to rescue Rajinder Singh but Anokh
Singh caught hold of me. Baghel Singh gave a takwa
blow hitting on my head. Kandhara Singh started
giving stick blows to me. When the injuries were
being caused, the rifle went off, Avtar Singh and
Rajinder Singh also suffered injuries in the
meantime at the hands of the other party. We were
medically examined. My statement was recorded by
the police in the hospital".
The trial court accepted the eye-witness testimony,
rejected the defence-plea and came to the conclusion that
the accused party was aggressor and as such the charges
against them were proved beyond reasonable doubt. The High
Court without adverting to the testimony of the eye-
witnesses reversed the findings of the trial court on the
ground that the defence-plea was more probable than the
prosecution version. The High Court accepted the defence-
plea and acquitted the accused. The High Court accepted the
defence version on the following reasoning :
"According to the eye-witnesses, there was a minor
altercation in the presence of the S.D.O. in which
Rajinder Singh appellant had received some fist
blows. They have also stated that Rajinder Singh
appellant was armed with a sua when the main
occurrence took place near the bus stand. Baghel
Singh PW 8 has, however, admitted that this
appellant did not wield his neza at the time of the
main occurrence. This is a tell-tale circumstance
which goes to establish that probably by that time
this appellant had been disabled because of the
injuries received by him at the hands of the
complainant party. Otherwise, there appears to be
no earthly reason for this appellant to have
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refrained from using the sua when his real brother
Swaran Singh was being seriously beaten, even
though he was armed with a rifle. This
circumstance goes a long way to make the defence
version more probable. The type of injuries
received by this appellant clearly show that he had
been attacked by more than one person who had been
armed with lathis or takwas which had been used
from wrong side. This could only have happened if
he had come across the complainant party in the
absence of Swaran Singh, Avtar Singh and Ajmer
Singh-his real brothers. It appears to us that
while Boor Singh PW 14 was being taken on the
tractor-trolley to the hospital, Rajinder Singh
appellant happened to come across them when some of
the members of the complainant party started giving
him a
345
beating. It matters little whether he was coming
on a loaded or an empty cart. On receipt of
injuries he might have raised an alarm which
attracted the other three appellants who came there
armed as suggested by the prosecution witnesses.
Furthermore if Swaran Singh and Ajmer Singh
appellants had entertained aggressive intentions
from the very beginning, they would have fired from
their respective fire-arms at the complaint party
from some distance. On the other hand, we find
that Swaran Singh appellant had as many as 12
injuries on his person and Avtar Singh appellant
had three injuries on his person. These injuries
could have been inflicted upon Swaran Singh
appellant before he had actually put his rifle to
use. It is somewhat difficult to reconstruct the
original scene but the probabilities are that even
when he came armed with a rifle on the spot he
exercised discretion in the hope that the other
party would perhaps leave his brother Rajinder
Singh appellant on seeing him armed with a rifle.
This however, did not happen and on the other hand
he was also subjected to an attack. It was
probably at that time that he fired two shots from
his rifle hitting both the deceased. He might have
received some injuries before he fired the two
shots and some injuries thereafter but that again
is immaterial. Once it is held that Rajinder
Singh appellant was being beaten by more than one
person, this appellant did have the right to save
his life and also his own life when he was
attacked. Ajmer Singh appellant also appears to
have fired two shots from his gun when he saw that
Swaran Singh appellant, in spite of his holding a
rifle, had been disabled. In any event, the
defence plea is not of that type as can be
dismissed on first sight. On the other hand, the
circumstances enumerated by us show that it was
somewhat more probable."
We are of the view that the High Court reasoning is
based on surmises and conjectures. The main reason which
weighed with the High Court was that Rajinder Singh accused
had been disabled by the time other accused persons reached
on the spot and as such they were justified in acting in
self-defence. According to the High Court, had Rajinder
Singh not been disabled he would have come forward to help
his brother Swaran Singh who was being seriously beaten.
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Apart from the eye-witnesses, the medical evidence belies
the conclusion reached by the High Court. Rajinder Singh
was examined by the doctor at 1.00 a.m. on July 24, 1977 and
found ten simple injuries on his person. Dr. Amarjit Singh
who examined Rajinder Singh was produced as DW 3. He was
only asked to give the details of the injuries. He nowhere
stated that Rajinder Singh became
346
disabled because of the injuries received by him. The
nature of the injuries is such that the conclusion reached
by the High Court is without any basis. The High court
finding that the nature of injuries on the person of
Rajinder Singh were such that the same could only be caused
when the other three accused were not present is further
based on conjectures. The injuries on the person of Swaran
Singh were much more serious than that of Rajinder Singh.
There were 12 injuries on the person of Swaran Singh which
included one grievous injury on the head with a sharp edged
weapon. If Swaran Singh who was armed with a rifle could be
given 12 injuries with different weapons at the time when
all the four accused persons were present on the spot there
is no reason why Rajinder Singh could not have been given
injuries at the same time. In any case Swaran Singh in his
statement under section 313, Criminal Procedure Code
reproduced above has specifically stated that Rajinder Singh
was given beating at the same time when Swaran Singh was
injured. The finding of the High Court that Swaran Singh
accused was given injuries by the complainant party before
he had actually used his rifle is contrary to the medical
evidence on the record. Admittedly there were 12 injuries
on the person of Swaran Singh. Dr. Sandhu, Medical Officer,
Civil Hospital, Ferozpur examined as DW 2 stated as under:
"General condition.
Pulse. 130 per minute. B.P. 70/40 M.M. of MG.
Respiratory rate 24 per minute. Pupils equal and
reacted to light, the patient delirious and talked
irrelevant. The general condition was very
serious. Injuries No. 1 to 6 and 8 kept under
observation. Rest all simple. Injury no. 1 was
caused by sharp edged weapon. Rest were caused by a
blunt weapon. The duration of the injuries was
within 24 hours. I have brought the original
medico legal report which is in my hands and bears
my signatures. Injury no. 1 was declared grevious
after X-ray report.
XXXn
Q. Was the condition of the patient serious because
of the injuries ?
A. Yes."
Looking at the nature of injuries and the opinion of
the doctor it is difficult to believe that Swaran Singh
could have fired two shots killing Kandhara Singh and
Darbara Singh after receiving the injuries. We agree with
the trial court that after receiving 12 injuries and with
his condition
347
as opined by the doctor it is difficult to believe that
Swaran Singh was in position to fire the shots. He must
have, therefore, used his gun before receiving the injuries.
The finding reached by the High Court that Swaran Singh and
Ajmer Singh fired from a close range is again belied by the
medical evidence. Dr. Birender Pal Singh PW3 who conducted
the post mortem on the dead body of Kandhara Singh stated
that there was no blackening, scorching or tattooing which
indicates that the shots were not fired from a close range.
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The defence version as given by Swaran Singh to our
mind does not inspire confidence. If Anokh Singh caught
hold of Swaran Singh and Baghel Singh gave Takwa blow on his
head he could not have possibly fired two shots killing
Kandhara Singh and Darbara Singh. In any case, even if he
was in a position to fire the shots he would have first
fired at Baghel Singh who was the main enemy and was hitting
him with Takwa. It is highly improbable that in that
situation he would have fired at Kandhara Singh who was
holding a stick and Darbara Singh who was no where near
Swaran Singh. Even otherwise Swaran Singh had not stated how
the rifle held by him went off. No evidence was produced to
further clarify the defence version. The High Court,
therefore, erred in accepting the defence version put
forward by Swaran Singh accused in his statement under
section 313, Criminal Procedure Code.
While rejecting the plea of self-defence and setting
aside the High Court verdict we are not inclined to agree
with the trial court that the accused party was the
aggressor. There were bitter feelings between the parties
and the tempers were high. The accused party was in favour
of digging the drain whereas the complainant party was
against the proposal because the drain was passing through
their fields. It is the prosecution case that on the day of
occurrence the complainant party gave beating to Rajinder
Singh accused and thereafter the accused party injured Boor
Singh belonging to the complainant party. Before the main
occurrence took place at 5.25 p.m. sufficient heat had been
generated between the parties and they were itching for a
show-down. The only probable conclusion is that the two
parties came across each other and had a free fight as a
result of which both sides suffered injuries and two persons
died. In such a situation the participants are responsible
for their individual acts.
Both the courts below, though giving conflicting
verdicts, have come to the conclusion that Kandhara Singh
and Darbara Singh were killed by the gun shots fired by
Swaran Singh. In his statement under section 313, Criminal
Procedure Code he stated that while injuries were being
caused to him the rifle with which he has armed went off.
Swaran Singh is,
348
therefore, guilty of causing murder of Kandhara Singh and
Darbara Singh. We, therefore, convict him under section
302, IPC and sentence him to imprisonment for life on the
two counts. So far as the other participants in the free
fight are concerned there is no evidence to prove the
commission of any offence by them beyond reasonable doubt.
We therefore, give them benefit of doubt and acquit them.
The appeal is, therefore, accepted to the extent that
the acquittal of Swaran Singh by the High Court is set
aside. We convict Swaran Singh under section 302, IPC and
sentence him to life imprisonment. The appeal is disposed
of in these terms. Swaran Singh is on bail. He shall
surrender to his bail-bonds and undergo the sentence of life
imprisonment.
R.P. Appeal disposed of.
349