PETITIONER:
GURMIT SINGH & ORS.
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT29/09/1995
BENCH:
NANAVATI G.T. (J)
BENCH:
NANAVATI G.T. (J)
RAY, G.N. (J)
CITATION:
1995 SCC Supl. (4) 146 JT 1995 (7) 171
1995 SCALE (5)630
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
NANAVATI,J.
This appeal arises out of a common judgment of the
Punjab and Haryana High Court in Criminal Appeal No.778-DB
of 1983 and Criminal Appeal No.653-DBA of 1984. Criminal
Appeal No.778-DB of 1983 was filed by Gurmit Singh who was
convicted by the Sessions Court, Amritsar fori the offence
punishable under Section 302 IPC and Sections 25 and 27 of
the Arms Act. The other appeal was filed by the State
against the order of acquittal of the three co-accused.
Briefly stated, the prosecution case is that on 12.7.83
at about 7.30 P.M. when Sadhu Singh (P.W.10) and his son
Parkash Singh (P.W.12) were returning from their field to
their house, Accused Gurmit Singh, Puran Singh, Joginder
Singh and Kashmir Singh met them on the way. At that time,
Puran Singh was carrying a kirpan, Joginder Singh was armed
with a single-barrel .12 bore gun and Kashmir Singh was
carrying a gandhali. On seeing Sadhu Singh (P.W.10) and
Parkash Singh (P.W.12) the accused started uttering abusive
words. Sadhu Singh and his son requested them with folded
hands not to do so but after proceeding a little ahead they
told the accused that they would come back with Bawa Singh
to lodge a protest. After reaching their house Sadhu Singh
narrated to Bawa Singh what had happened on the way.
Meanwhile Duman Singh (P.W.13) who was passing by their
house was also informed about the incident. Thereafter Baba
Singh (the deceased), Sadhu Singh (PW 10), Parkash Singh
(PW12), Duman Singh (P.W.13) and Karam Singh (PW11) went
towards the house of accused Gurmit Singh to lodge a
protest. Bawa Singh and Sadhu Singh were carrying lanterns
in their hands, Karam Singh and Parkash Singh had sticks and
Duman Singh had a kirpan with him. When they were a little
away from the house of accused Gurmit Singh all the four
accused carrying the weapons which they had earlier carried
came from the opposite direction. Accused Puran Singh then
raised a Lalkara to the effect that Bawa Singh should not be
spared. He then gave a kirpan blow on the right elbow of
Parkash Singh. One more blow was given by Puran Singh.
Accused Joginder Singh gave a blow with the butt of his gun
on the chest of Sadhu Singh. Accused Gurmit Singh took the
gun of Joginder Singh and fired with the result that Bawa
Singh received injuries on his face and chest. Accused
Kashmir Singh gave a blow with the stick portion of his
gandhali on the right shoulder of Bawa Singh as a result of
which Bawa Singh fell down. He also gave another blow with
the stick portion of gandhali on the back of Sadhu Singh
(PW10). Accused Joginder Singh picked up the stick of
Parkash Singh (PW12) and gave one blow with it to Karam
Singh (PW11). Bawa Singh had already died as a result of the
injuries received by him. So, Sadhu Singh, Parkash Singh and
Karam Singh remained by the side of the dead body during the
night as they apprehended that the accused would otherwise
remove the same. Next day morning at about 6.30 A.M. Sadhu
Singh went to the Police Post at Sultanwind falling under
Police Station Sadar Amritsar and lodged the first
information report.
On these allegations all the accused were charged for
commission of offences under Section 302 read with Section
34 IPc and Sections 25 and 27 of the Arms Act. At the trial
the prosecution mainly relies upon the evidence of the three
eye-witnesses namely Sadhu Singh (P.W.10), Parkash Singh
(P.W.12) and Duman Singh (P.W.13). Karam Singh (P.W.11) was
not examined but was offered for cross examination. He was
not cross-examined by the accused. As the learned Sessions
Judge found the evidence of the eye-witnesses consistent and
reliable as regards accused Gurmit Singh he convicted
accused Gurmit Singh for the offence punishable under
Section 302 IPC and Sections 25 and Section 27 of the Arms
Act. He acquitted the other accused as he was of the opinion
that participation by the other accused as stated by the
eye-witnesses was doubtful in view of the nature of injuries
alleged to have been caused by the said accused and the
medical evidence on record.
Aggrieved by the order of conviction and sentence
accused Gurmit Singh filed and appeal in the High Court and
aggrieved by the order of the acquittal the State filed an
appeal against the remaining three accused. The High Court
believing the evidence of the eye-witnesses maintained the
conviction of accused Gurmit Singh, set aside the acquittal
of the remaining accused and convicted them for the offences
punishable under Section 302 read with Section 34 and
Sections 25 and 27 really not injured during that incident
but they had caused those injuries themselves in order to
create evidence against the accused. He further submitted
that for all these reasons the conviction of the accused
deserved to be set aside.
We have carefully gone through the evidence of Sadhu
Singh (P.W.10), Parkash Singh (P.W.12) and Duman Singh
(P.W.13) and also the medical evidence on record. Both Sadhu
Singh and Parkash Singh have referred to the incident which
had taken place at 7.30 P.M. Therefore, there was no
justification for the learned Public Prosecutor who appeared
in the Sessions Court to give a go by to that incident. Be
that as it may, the learned Sessions Judge did not
disbelieve the witnesses on this ground and did not record
any finding one way or the other. As there was no
justification for the said concession made by the learned
Public Prosecutor, the High Court rightly considered that
part of the evidence of the eye-witnesses and came to its
own conclusion. The defence had not suggested to Sadhu Singh
and Parkash Singh in their cross-examination that such an
incident had not taken place. We, therefore, do not find any
substance in the contention raised in this behalf. The
evidence of the three eye-witnesses is quite consistent and
it does not suffer from any serious of the Arms Act.
What was contended by Mr. B.K. Mehta, learned senior
counsel appearing for all the appellants was that as the
learned Public Prosecutor had given a go by to the earlier
incident which had taken place at 7.3 P.M. the whole version
of the eye-witnesses became doubtful because in absence of
that incident there was no reason for the appellants to
attack Bawa Singh and others accompanying him. He submitted
that in view of this concession made by the learned Public
Prosecutor the High Court should not have relied upon that
part of the evidence of the eye-witnesses and taken a
contrary view. He also contended that the version of the
eye-witnesses that they remained near the dead body for the
whole night is not consistent with natural conduct and it
was an attempt to explain the delay in lodging the first
information report. He also contended that even though Sadhu
Singh had stated to the police that he had received injuries
during the incident no injury statement was prepared at that
time and he was not sent for medical examination soon
thereafter. Both Sadhu Singh (P.W.10) and Parkash Singh
(P.W.12) were sent for medical examination on the next day
after about 11 O’clock and that would go to show that they
were infirmity. Except bringing out minor omissions the
defence was not able to take out anything in their cross-
examination which would raise any doubt regarding
truthfulness of their evidence. examination. The High Court
has dealt with each and every reason given by the trial
court for not accepting their evidence with respect to Puran
Singh, Joginder Singh and Kashmir Singh. In our opinion, the
High Court was quite right in re-appreciating the evidence
and coming to its own conclusion in as much as the reasons
given by the trial court for acquitting those appellants
were not proper and sufficient. Their evidence clearly
establishes that it was appellant Gurmit Singh who had fired
the gun and caused injuries to Bawa Singh which had caused
his death. Their evidence also clearly establishes that
appellants Puran Singh and Karam Singh were with appellant
Gurmit Singh at the time of the incident and had taken part
therein, as deposed by the eye-witnesses. The conduct of the
eye-witnesses in remaining with the dead body for the whole
night cannot be said to be unnatural in view of the
possibility of the appellants removing the dead body in
order to cause disappearance of the evidence against them.
Once this explanation given by the witnesses for not
approaching the police earlier is accepted, it cannot be
said that there was any delay in lodging the first
information report.
It was next contended by Shri Mehta that in any case
the appellants could not have been convicted under Section
302 read with Section 34 as they were acting in exercise of
their right of private defence: and, at the highest they can
be said to have exceeded that right. In view of the evidence
on record it is not possible to accept this contention also.
The evidence discloses that seeing the party of Bawa Singh
approaching them the appellants also armed with weapons
proceeded in that direction and did not remain near the
house. the evidence further discloses that Sadhu Singh and
Parkash Singh had while going away earlier proclaimed that
they would come with Bawa Singh in order to lodge a protest.
After reaching their house and narrating the incident to
Bawa Singh they had all started for the house of the
appellant armed with sticks and a kirpan. That would
indicate that they were not going there for lodging a simple
protest. It clearly appears to us that both the sides had
pre-determined to fight and the incident wherein Bawa Singh
came to be killed happened as a result of that pre-
determination. Thus this was a case of free fight between
the two groups. This aspect has not been considered by the
High Court. In view of our finding that his was really a
case of free fight the conviction of appellants for the
offences punishable under Sections 302, 326 and 323 all read
with Section 34 IPC will have to be set aside and they will
have to be convicted for the offence committed by them
individually.
The evidence clearly establishes that Appellant No.1,
Gurmit Singh caused the death of Bawa Singh. He has been
convicted under Section 302 and, therefore, we maintain his
conviction and also the order of sentence passed against him
for that offence. His conviction for the offences punishable
under Sections 326 and 323 both read with Section 34 is set
aside. Therefore, the sentence imposed upon him for those
offences is also set aside. The conviction of Appellant
No.2, Puran Singh under Section read with Section 34 and
also under Section 323 read with Section 34 and the order of
sentence passed against him for those offences is set aside.
The evidence against him establishes that he had given two
kirpan blows to Puran Singh but it is not established that
he caused grievous hurt to Puran Singh. Therefore, he will
have to be convicted under Section 324 IPC. For the said
offence he is sentenced to undergo rigorous imprisonment for
two years. The conviction of Kashmir Singh, Appellant No.3,
under Sections 302 read with Section 34, 326 read with 34
and 323 read with 34 is set aside and so also the order of
sentence passed against him for those offences. His
conviction under Section 323 for causing injuries to Bawa
Singh and Sadhu Singh is maintained. The order of sentence
passed against him for the offence punishable under Section
323 is also maintained. So far as Appellant No.4, Joginder
Singh is concerned his conviction under Sections 302, 326
and 323 all read with Section 34 is set aside and also the
order of sentence passed against him for those offences.
However, his conviction under Section 323 for causing
injuries to Sadhu Singh is maintained. The order of sentence
passed against him for that offence is also maintained.
The appeal is thus partly allowed. It is allowed to the
aforesaid extent only. It appears that Appellant Nos. 2.3
and 4 have been released on bail. They are ordered to
surrender to jail custody for serving out the sentence
imposed upon them if they have not by now served out the
same.