Full Judgment Text
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1670 OF 2010
[ARISING OUT OF SPECIAL LEVE PETITION (CRL.) NO. 3244 OF 2009]
KAMAL SINGH ..... APPELLANT
VERSUS
STATE OF HARYANA ..... RESPONDENT
O R D E R
1. Leave granted.
2. Ten persons in all, Kamal Singh the appellant
herein and his brothers, Randhir Singh, Attar Singh &
Baljeet Singh, Anees, son of Attar Singh, Ramrati wife
of Kamal Singh, Maya wife of Attar Singh and Urmila
wife of Baljeet Singh along with two others were
brought to trial for offences punishable under
Sections 148, 302, 307, 149 for the first eight
persons and for the other two under Sections 420, 467,
468, 471, 120B and 200 of the IPC. Of the ten persons
aforesaid, only Kamal Singh, the appellant was armed
with a licensed shot gun which is the alleged murder
weapon. As per the prosecution story, Wazir Singh,
P.W. 7, resident of Village Khatiwas had two sons Phul
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Kumar deceased and Anil Kumar, whereas Sumer Singh,
Rakesh and Chhatar Singh were the brothers of Wazir
Singh. A piece of shamlat land in front of the house
of Rakesh, Ramesh and Sumer Singh, was being used by
the latter to tether his cattle. Kamal Singh's house
th
was also close by. On the 9 of May, 2002, Manti,
wife of Rakesh was tethering her cattle in this plot
of land when Ramrati accused hit a buffalo with a
stick and also warned Manti not to tie the cattle at
that place. A quarrel soon ensued but the matter was
th
ultimately settled. On the 10 of May, 2002 i.e., on
the very next day, at about 6:00p.m. the appellant
armed with his .12 bore licensed gun along with the
other accused climbed up to the roof of his house and
started abusing the complainant party. Wazir Singh,
Sumer Singh, Abhimanyu son of Sumer Singh, Phul Kumar,
Maya Ram and Chhatar Singh attempted to pacify him
but without success. On the contrary, Randhir Singh,
Baljeet Singh and Attar Singh raised a lalkara calling
upon the appellant to sort out the other party once
and for all. The appellant thereupon fired a shot at
Phul Kumar into the left side of his chest on which he
fell down and as Randhir Singh and Chhattar Singh came
forward to assist Phul Kumar, the appellant again
fired two shots hitting them as well. All the accused
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also hurled brick bats and caused several injuries to
the witnesses and as Maya Ram, Indrawati and Phulwati
came forward to rescue the injured, the appellant
again fired from his gun hitting them as well. On
hearing the sound of the gun shots a number of persons
rushed to the spot on which all the accused came down
from the roof and ran away. They also found that Phul
Kumar and Maya Ram had died of their injuries.
Chhattar Singh and Indrawati were, however, shifted
to the PGI, Rohtak whereafter Wazir Singh PW 7, lodged
a report at police station Sadar, Dadri. Chhattar
Singh also died a short time later. The accused were
arrested over several days and on the statement made
by the appellant, the weapon of offence i.e., his
licensed shot gun along with some catridges was taken
into possession. On the completion of the
investigation, the accused were brought to trial. The
trial court relying primarily on the statements of
P.W. 7-Wazir Singh and PW 16 - Indravati and PW 17 –
Ravinder, injured and PW - 18 Umed Singh convicted
and sentenced eight of the accused viz., Kamal Singh,
Randhir Singh, Baljeet Singh, Attar Singh, Ramrati,
Mayaram, Urmila and Anil for offences punishable under
Sections 148, 302, 307 read with Section 149 of the
IPC and also for the offence punishable under Section
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27 of the Arms Act with respect to the appellant.
Urmila, Dr. Surya Prakash Singh and Ram Chander were,
however, given the benefit of doubt and were acquitted
of all charges levelled against them.
3. An appeal was thereafter taken to the High
Court. The High Court acquitted all but the present
appellant on the plea that no injuries had been caused
by any of them which revealed that their common object
was not to cause the death of anybody and it also
appeared that the entire family of the appellant had
been implicated for reasons of enmity. The plea
raised by the appellant that his case fell within
Exception II to Section 300 was repelled for the
reason that there was no evidence to show that the
conduct of the complainant party had resulted in some
apprehension in his mind of serious injury at their
hands and the story that he had been first attacked
with brick bats and lathis could not be believed as he
had no injuries on his person.
4. Mr. Sushil Kumar, the learned senior counsel,
has confined his submission only to the plea that the
appellant had exceeded the right of private defence
although it has also been submitted that as there was
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no charge under Section 302 simplicitor against the
appellant, he could in fact claim an outright
acquittal. The learned counsel has submitted that in
the circumstances he would not go into the
technicalities of the matter and confine himself only
to the benefit of Exception II to Section 300. The
learned counsel has brought to out notice the findings
of the trial court in this matter which we reproduce
hereunder:
“Moreover, defence taken by accused
Kamal Singh quits fanciful imaginary and
without any basis. His defence is that
when he was coming back to his house and
was passing in front of the house of PW
Ramesh, he was encircled by the
complainant party. Phul Kumar (since
deceased) tried to inflict lathi blow to
him and other PWs gave him beatings, then
in order to save himself, he fired a shot
upon Phul Kumar from his gun, then he
rushed inside his house, closed the door
and went up stairs. The complainant
party then broke open the door of the
house and broke his window panes then he
fired shots only to scare them away. But
accused Kamal singh was not having even a
scratch on his person. All the three
deceased persons and other three injures
Pws, were quite empty handed. There is
nothing to presume that any one of them
was having any lathi or that Phul Kumar
tried to inflict lathi blow to Kamal
Singh. In the circumstances, how Kamal
Singh would have right to kill Phul Kumar
by firing a shot from his licensed gun.
Even if, he was tried to be inflicted
lathi blows, he could have used his gun
lathiwise from its butt side. There is
also nothing on record to prove or to
presume that doors or window panes of his
house were broken. Moreover, had door of
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his house been broke open then, in all
probabilities he would not have gone
unhurt. Certainly he would have been
thrashed very well by so many persons.
Further, if he had gone to safe place,
then he had no right of self defence to
fire shots to kill other two accused
persons and to cause serious fire shot
injuries to other Pws. Certainly,
accused Kamal Singh had no right of
private defence. Even if he was having,
he had certainly exceeded the same, as he
fired shot for killing as many as three
accused persons and for causing fire shot
injuries to other PWs.”
It has been pointed out that even as per the findings
of the trail court a case of exceeding the right of
private defence was clearly made out and the
appellant, was therefore, liable to be convicted and
sentenced under Section 304 Part I of IPC and not
Section 302 thereof.
5. Mr. Rao Ranjit, the learned counsel for the
State has however, pointed out that the very basis of
the argument made by Mr. Sushil Kumar was lacking as
there was no evidence to indicate that any attack had
been made on the appellant as there were no injuries
on his person and the story that the door of his house
had been broken by the complainant party was
fallacious as there was no evidence to that effect.
He has, further, submitted that the appellant had,
without any basis and without any apprehension of
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injury, caused the death of three persons.
6. We have heard and considered the arguments
advanced by the the learned counsel.
7. As per the appellant's defence given in his
examination under Section 313 Cr.P.C. he was returning
from Siwani i.e. his place of employment and was going
towards his house carrying his licensed gun and as he
was passing by the house of Ramesh, he had been
encircled by the complainant party and at that time
Phul Kumar had tried to give him a lathi blow on which
he had fired one shot from his gun killing him. He
further stated that he had then run to his own house
and closed the door but the complainant party had
attempted to break open the door on which he had
rushed to the roof and fired several shots in self
defence resulting in two deaths and some injuries to
the witnesses as well.
8. In this situation we are called upon to examine
which of the two theories is correct.
9. We notice that there are three deceased in this
matter. As per the admitted position the injury on
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Phul Kumar had been inflicted from a very short range
whereas the injuries to the others had caused from the
roof of the house which would be 8 to 10 feet high.
This fact is verifiable from the medical evidence as
well. The post mortem examination of Phul Kumar’s
body revealed a rat hole injury 1” X .75” with
inverted margins and tattooing and lacerations around
it. It is evident from this injury that the pellets
had entered the body enmasse and had exited from
injury no.2 on the rear side of the body as the
margins were everted. The premise that the injury had
been caused from virtually point blank range is
supported by the observations made in Modi’s Medical
Jurisprudence and Toxicology, Twenty Third Edition,
under the Chapter 'Injuries by Mechanical Violence'
at pp.722:-
“The effects produced by small
shot fired from a shotgun vary according
to the distance of the weapon from the
body, and choking device. A charge of
small shot, fired very close to, or
within a few inches, of the body enters
in one mass like a single bullet making
a large irregular wound with scorched
and contused edges, and is followed by
the gases of the discharge which greatly
lacerate and rupture the deeper tissues.
Particles of unburn power expelled from
the weapon behind the missile are driven
to some distance through the wound, and
some of them are found embedded in the
wound and the surrounding skin, which is
also singed and blackened by he flame
and smoke of combustion. The exit wound
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of a close range shot may show greater
damage of tissues that he entrance
wound, the margins are everted, but
there is no evidence of blackening of
singeing. At a distance of one to three
feet, small shots make a single aperture
with irregular and lacerated edges
corresponding in size to the bore of the
muzzle of the gun, as the shot enter as
one mass, but are scattered after
entering the wound and cause great
damage to the internal tissues. The skin
surrounding the wounds is blackened,
scorched and tattooed, with unburnt
grains of powder. On the other hand, at
a distance of six feet, the central
aperture is surrounded by separate
openings in an area of about two inches
in diameter made by the few pellets of
the shot, which spread out before
reaching the mark. The skin surrounding
the aperture may not be blackened or
scorched, but is tattooed to some
extent. At a distance of 12 feet, the
charge of the shot spreads widely and
enters the body as individual pellets
producing separate openings in an area
of five to eight inches in diameter
depending on the choke, but without
causing blackening, scorching or
tattooing of the surrounding skin.”
10. We further see that PW 12 Dr. U.S. Sisodia who
had performed the post mortem examination on the dead
body also opined that in that the injury No. 1
appeared to have been caused by a single projectile
from a very close range. It is nevertheless the
admitted position that the weapon used by the
appellant was his licensed shot gun is even otherwise
proved as pellets had been recovered from the dead
body of Maya Ram. The doctor, therefore, obviously
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mistook a shot fired from point blank range, as being
from a single projectile. When a comparison of the
injuries on Phul Kumar's body with those on the dead
bodies of the other two victims ie. Chhattar Singh and
Maya Ram is made it stands revealed that they had been
shot from a distance of 10 to 12 feet which is the
appellant's defence. Admittedly, in the case of
Chhattar Singh also there appears to be blackening
around the wounds but the distance is definitely much
greater than that in the case of Phul Kumar as the
dispersal of pellets would show. Likewise, in the
case of Maya Ram, there were multiple pellet injuries
but no blackening or scorching and on dissection
several pellets had been located. To our mind,
therefore, the story projected by the appellant that
the injury caused to Phul Kumar was at ground level
and from a very short distance when he had been
attacked by him and that the injuries to the others
had been caused when he had fired from the roof, is
supported by the medical evidence. There is yet
another circumstance which to out mind goes to the
root of the matter. The positive finding of the High
Court is that the story that the accused party had
gone to the roof and thrown brickbats at the
complainant party was incorrect and it is on that
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basis that seven of the accused had been given the
benefit of doubt and acquitted. The photographs which
have been produced on record by the prosecution,
however, clearly show the presence of a large number
of brick bats lying around the house belonging to the
appellant. The prosecution story, therefore, with
regard to the brick bats having been disbelieved, the
possibility that the story projected by the appellant
could be the correct one, cannot be ruled out. We
also notice from the record including, the FIR that
there is no reference whatsoever to the pelting of
stones by the accused.
11. In a matter relating to the right of private
defence or exceeding the right of private defence
some element of guess work based on common experience
has indeed to come into play and it is for that reason
that the Courts have gone so far as to rule that even
though an accused may not stake a claim to the right
of private defence, the Court can still give the
benefit if it emanates from the evidence. In the case
of a claim to the benefit of Exception II we feel that
it is impossible to accept that a person who has been
attacked, and in this case by several persons to know
exactly where and when to stop and to use a hackneyed
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expression, the evidence cannot be weighed in golden
scales. The claim to this Exception is also perhaps
the most risky and tenuous for an accused, although it
is often the most appropriate one. The advice
tendered by an experienced defence counsel is
invariably ignored in favour of that of the co-
prisoners who act as untrained legal advisors and warn
an accused against taking such a plea. The defence
version given by the appellant is that he had been
attacked by half a dozen persons and he had managed to
save himself as he was carrying his gun which he had
used with telling effect. The trial court has given a
somewhat unusual explanation by saying that though it
could be a case of exceeding the right of private
defence but the benefit could not be given to the
appellant, the suggestion being that the gun ought to
have been used not as a weapon but as a lathi. With
great respect, to the learned judge, this observation
belies logic and is absurd. It cannot be ignored that
the appellant was a Commando and an ex-member of the
National Security Guard and had been trained in the
use of weapons, and was at the relevant time employed
as a security guard in a bank premises and to expect a
person like him when attacked, and that too by six or
seven persons, to cover in fear and to use the weapon
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as a lathi, cannot be countenanced.
12. We are, accordingly, of the opinion that Mr.
Sushil Kumar's plea that the appellant had exceeded
the right of private defence must be accepted. We
make an order in the above terms and allow the appeal
to this limited extent. We also direct that the
conviction against the appellant be modified from one
under Section 302 to 304 Part I and the sentence is
also modified from life to ten years rigorous
imprisonment; all other parts of sentence being
maintained as it is.
..........................J
[HARJIT SINGH BEDI]
.........................J
[CHANDRAMAULI KR. PRASAD]
NEW DELHI
JULY 29, 2010.