(SUPREME COURT OF INDIA)
Kulwant Sing and Ors.
Vs
State of Punjab
HON'BLE JUSTICE DORAISWAMY RAJU AND HON'BLE JUSTICE S. B. SINHA
23/01/2004
Criminal Appeal Nos. 947 of 1997
JUDGMENT
The Judgment
was delivered by S.B. SINHA, J.
S.B. Sinha, J.:
1. The appellants who are three in number with their father, Virsa Singh
(Accused No. 1) and brother Tara Singh (Accused No. 3) [since deceased] were
charged for commission of an offence under Sections 148/302/323/149 of the
Indian Penal Code.
2. The incident took place at about 10.30 a.m. on 13.6.1987. Admittedly, the
family of the deceased and the appellants belong to the same village. they have
agricultural lands. The parties had disputes both as regard boundaries of their
agricultural land as also as regard irrigation of their respective field. On
the day of the incident, Kartar Kaur (deceased) brought food for her sons Avtar
Singh and Balkar Singh (PW 5 and PW 6) who were working in their agricultural
field. When they finished taking their meals, Virsa Singh (Accused No. 1) armed
with 'Takwa', Kulwant Singh (Appellant No. 1) and Tara Singh (Accused No. 3)
armed with 'Kirpan' each, Sahiba Singh (Appellant No. 2) armed with 'Barchha'
and Darbara Singh (Appellant No. 3) armed with 'Kappa; came near the informant
and the deceased from the side of their tubewell. Virsa Singh, allegedly,
exhorted the complainant and the deceased to be read as they had come to teach
them a lesson for scrapping the boundaries of the fields; whereupon the first
informant Partap Singh, since deceased, and Balkar Singh along with their
mother got up. It is contended that Sahina Singh gave one Barchha blow to
Partap Singh in his abdomen and another blow just below his right shoulder in
the chest, whereas Virsa Singh assaulted Partap Singh with Takwa on the back of
his right hand. Kartar Kaur, mother of the informant, who had tucked her salwar
as the waded through the water, came forward and she was given a blow with
Kirpan by Kulwant Singh on the back of her left leg, whereupon she fell down.
Even thereafter Tara Singh is said to have given Kirpan blow on her left thigh
and Virsa Singh gave two Takwa blows on her both wrists.
3. Avtar Singh and Balkar Singh who examined themselves as PW 5 and PW 6
respectively came forward to rescue their mother and brother whereupon Sahiba
Singh is said to have given Barchha blow in the abdomen of Avtar Singh (PW 5)
and another blow on his left thigh. Accused No. 1 allegedly gave blunt side
Takwa blow on Balkar Singh (PW 6) on the back of his right hand. 4. It stand
admitted that in the aforementioned incident, Darbara Singh and Virsa Singh
also suffered injuries which are said to have been inflicted on them by the
complainant and his brother purported to be in their self-defence.
5. The accused persons thereafter ran away with their respective weapons
whereafter Avtar Singh (PW 5) went to the village and informed his cousin
Hardip Singh about the occurrence. A tractor was brought from the village in
which Partap Singh and Kartar Kaur were brought to the hospital at Ferozepur.
The lady breathed her last on the way whereas Partap Singh was admitted to the
Civil Hospital, Firozepur.
6. The motive for commission of the said offence on the part of the accused
persons is said to be a dispute which took place a day prior to the day of the
occurrence between the complainant party and Virsa Singh Allegedly on the
ground that the complainant party scrapped the boundaries of the fields.
However, it is said that the matter had been settled at the instance of one Maura
Singh, a resident of the same village.
7. The doctor attending on Partap Singh informed the Police whereupon the
S.H.O. of the Police Station came to the Hospital. The statement of Partap
Singh, who was seriously injured could not be taken by the police and only at
about 4.30 p.m., the first information report was lodged by Avtar Singh.
8. It is not disputed that Partap Singh was medico-legally examined at 12.30
p.m. on 13.6.1987 by Dr. A.S. Mann (PW 2) and the following injuries were found
on his person:
"1. Oblique incised wound 10 cms. x 1/2 cm. and depth varied from
muscle deep to bone deep on back of right hand starting from base of index
finger and going upwards and medially with bleeding.
2. Incised wound 3 cms. x 1 cm. (at centre) oblique on front and right side of
abdomen 5 cms. medial at the level of right anterior superior iliac spine with
bleeding. Omentum and a small leap of intestine was coming out of the wound.
Abdomen was tender and tense.
3. Incised wound 1.5 cms. x 1/2 cm. oblique in direction on front and upper
part of right chest just below the outer half of right clavicle."
Injury no 1 was kept under observation for X-ray examination and injury No. 3
was kept under observation for surgical report and injury No. 2 was declared
dangerous of life. In this regard Dr. Mann gave his report Ex. Ph and also
prepared pictorial diagram Ex. PH/1 showing the seats of injuries. PW2 Dr. A.S.
Mann sent ruqa Ex. PJ to the Station House Officer, Police Station Sarad,
Ferozepur, regarding the death of Kartar Kaur and arrival of Avtar Singh
(Injured)." *
9. The statement of Partap Singh on a certificate issued by the doctor that he
was fit to make a statement was recorded on 18.6.1987. Partap Singh, however,
succumbed to his injuries 26.6.1987.
10. Dr. J.S. Dalal (PW 3) who conducted the post-mortem on the dead body of
Partap Singh found the following injuries on his person:
"1. Under the bandages of both ankles vene section wounds were present
medially over both ankles.
2. On removing bandage of right hand there was an oblique healed wound except
in its middle one third. It was 10 cms. long on the back of right hand starting
from base of index finger and going upwards and medically. The unhealed wound
was pale and on opening it frank pus came out. There were corresponding cuts in
the third and fourth metacarpal bones.
3. Horizontal healed wound 1.5 cms. long just below outer half of right
clavicle.
4. An oblique wound with clean cut margins 8 cms. x 3.5 cms. muscle deep of the
right side of abdomen starting 5 cms. medically and above the right anterior
superiod iliac spine and going downwards and medically. The floor of this wound
contained plough and on dissection of surrounding tissues frank pus oozed out.
5. A stitched wound 20 cms. long on right side of abdomen just lateral tomid
line. On removing stitches there was corresponding out in the perticotniu with
stitches. The mesentery had been repaired at many places and small gut at two
places. The abdominal cavity contained about 300 grams of chocolate colored
foul smelling fluid. *
11. Autopsy examination of Kartar Kaur was held about 6.45 p.m. on the same day
by Dr. Tirath Goel (PW 1), which disclosed the following injuries on her dead body:
i. Incised wound 5 cms. x 2 cms. on the front and lower part of left thigh.
ii. Incised wound 10 cms. x 3 cms. on the back of left leg. Underlying vessels
and muscles were cut and bones were fractured.
iii. Incised wound 5 cms. x 2 cms. on the back of right writ joint. Under lying
bones were cut through and through.
iv. Incised wound 4 cms x 1 cm. on the back of left leg just below injury No.
2. *
v. Incised wound 3 cms. x 1 cm. on the back of left writ joint."
*
12. Accused Darbara Singh was also medico-legally examined by PW 2, Dr. A.S.
Mann, at about 1.30 p.m. on the same day and the following injuries were found
on his person:
"1. Incised would 11 cms. x 2 cms. oblique in palm of right hand on
lower part 2 cms. deep with bleeding.
2. Incised wound 2 cms. x 1/2 cm. on palmer aspect of right index finger on the
prominal phallanx with bleeding. Injury was 1 cm. deep.
3. Reddish abrasion 1/3 cm. x 1/4 cm. on back and upper and of right hand
little finger.
4. Raddish abrasion with over lying lacerated wound 1.5 cm. x 1/4 cm. Oblique
on back of right and ring finger on proximal phallanx. Injury was 1/3 cm. deep
with bleeding.
5. Lacerated wound 1/2 cm x 1/4 cm x 1/3 cm. on back of right hand middle
finger on proximal phallanx with bleeding.
6. Incised wound 2.5 cm. x 1/2 cm, on palmer aspect of left hand index finger
on the distal phallanx with bleeding, 1 cm. deep.
7. Incised wound 3 cms. x 1/2 cm. on outer side of root of left thumb with
bleeding 1.5 cms. deep.
8. Incised wound 20 cms. x 7 cms. slightly oblique and almost vertical on back
of right abdomen crossing the mid line. Depoth could be easily traced upto 10
cms.
9. Incised wound 3 cm. x 2 cms. x 2.5 cms. oblique on posters medial side of
left thigh in middle one third with bleeding." *
13. Accused No. 1, Virsa Singh, was also medico-legally examined by the same
doctor at about 2.20 p.m. on that day and following injuries were found on his
person.
"1. Incised wound 5 cm. x 1/2 cm. and bone deep on right side of skull,
oblique in direction 6.5 cms. vertically behind the middle of right eye brow
with bleeding.
2. Lacerated wound 1 cm. x 1/3 cm. and bone deep in mid line and centre of
forehead.
3. Incised wound 8 cms. x 1/2 cm. starting from the tip of nose and going
transversally over the right cheek varying in depth from 1/2 cm to 1 cm. Right
ala of nose was cut through and through with bleeding.
4. Incised wound 3.5 cms. x 1.5 cms. transverse in mid line and front of neck 5
cms. below the thyreid cartiledge with bleeding. The depth could be easily
traced upto 2 cms. *
5. Lacerated wound 1/2 cm. x 1/3 cm. x 1/3 cm. on palmer surface of left
hand in the we space of thump and Index finger with bleeding." *
14. The statement of PW 6 was recorded by the police at 8.10 p.m. on 14.6.1987.
15. Despite the fact that two of the accused persons were in the hospital
itself, they were not arrested immediately as they were undergoing treatment.
Accused Nos. 2, 3 and 5 were arrested on 20.6.1987; whereas Accused Nos. 1 and
4 were arrested on 29/30.6.1987.
16. PW 5 and PW 6 who are also said to have suffered minor injuries in the said
incident were examined by Dr. Tirath Goel and Dr. A.S. Mann respectively on
13.6.1987 at 5.30 p.m. and on 14.6.1987.
17. The injuries on the person of Avtar Singh as found were as under:
"1. Lacerated wound 1 cm. x 1 cm. superficial on the front and lower
part of left thigh. Fresh bleeding was present on touching.
2. Abrasion 1 cm. x 1 cm. on the right side of abdomen 5 cms. above the
umlicus." *
18. The following injuries were found on the person of Balkar Singh:
"a blush contusion 3 cms. x 3 cms. on back of left hand index finger
over the meta carpe phallangeal joint with overlying partially scabbed brownish
abrasion 1.5 cms. x 1/4 cm." *
19. Upon completion of the investigation, the accused persons were
charge-sheeted. The learned Sessions Judge, Ferozepur disbelieving the
prosecution case acquitted the accused persons by a judgment and order dated
26.8.1988. The State of Punjab aggrieved thereby and dissatisfied therewith
preferred on appeal there against before the Punjab and Haryana High Court
which was marked as Criminal Appeal No. 402-DB of 1989.
20. By reason of the impugned judgment, the High Court disagreeing with the
view of the learned Sessions Judge came to the conclusion that the accused
persons were guilty of commission of the offences under Section 302 and 302/149
IPC and sentenced them to undergo the rigorous imprisonment for life and passed
the following sentences:
Name of the accused
Offence committed
Sentence
Kulwant Singh
U/s 302 IPC for committing murder of Kartar Singh
He shall undergo life imprisonment and pay a fine of Rs. 10,000/- and in default thereof shall further undergo rigorous imprisonment for the term of one year.
Virsa Singh, Tata Singh Darabara Singh and Sahiba Singh
U/s 302/149 IPC
They shall undergo life imprisonment and pay a fine of Rs. 10,000/- each and in default thereof shall further undergo rigorous imprisonment for a period of one year each.
Virsa Singh, Kulwant Singh, Tara Singh, Darbara Singh
U/s 302/149 IPC for committing the murder of Partap Singh
They shall undergo imprisonment and pay a fine of Rs. 10,000/- each and in default thereof shall further undergo rigorous imprisonment for a period of one year each.
Sahiba Singh
U/s 323 IPC for causing injuries to Avtar Singh
He shall undergo rigorous imprisonment for six months and pay a fine of Rs. 1,000/- and in default thereof shall further undergo rigorous imprisonment for one month..
Virsha Singh, Kulwant Singh, Tara Singh and Darbara Singh
U/s 323/149 IPC
They shall undergo rigorous imprisonment for six months and pay a fine of Rs. 1,000/- each and in default thereof shall further undergo rigorous imprisonment for one month each.
Virsa Singh
U/s 323 IPC for causing injuries to Balkar Singh
He shall undergo rigorous imprisonment for six months and pay a fine of Rs. 1,000/- and in default therefor, undergo rigorous imprisonment for one month..
Kulwant Singh, Tara Singh, Darbara Singh and Sahiba Singh
U/s 323/149 IPC
They shall undergo rigorous imprisonment for six months and pay a fine of Rs. 1,000/- each and in default thereof, shall further undergo rigorous imprisonment for one month each."
21. All the substantive sentences awarded to the respective accused persons
were directed to run concurrently. It was further directed that the fine, if
recovered, shall be paid by way of compensation to the hairs of the respective
deceased in equal shares.
22. Mr. U.U. Lalit, learned counsel appearing on behalf of the appellants would
submit that the High Court committed a manifest error in passing the impugned
judgment insofar as it failed to take into consideration that in the facts and
circumstances of this case, the appellants, their brother and father should
have been held to have exercised their right of private defence having regard
to the nature of injuries suffered by Accused Nos. 1 and 4.
23. Mr. Lalit would submit that the nature of injuries on the person of the
said accused are pointers to the fact that the complainants were the
aggressors. The learned counsel would contend that the alleged immediate cause
leading to the occurrence was that Harnam Singh's field used to be irrigated
through the water drawn from the tubewell of the complainant and when Darbara
Singh was cleaning the water channel, Partap Singh came whereupon the verbal
altercation ensued; whereafter they came being armed with weapons and attacked
Darabara Singh. According to the learned counsel, Harnam Singh was armed with
'Khund', a hard and blunt weapon whereas Partap Singh came with a sharp-edged
weapon and while he was attacked Darbara Singh tried to ward away the attack
with his both hands, as a result whereof he suffered as many as five injuries
on his two palms.
24. The learned counsel would point out that Darbara Singh was evidently
working in the field as he had been found by the doctor to be bare chested. It
was contended that only upon noticing Darbara Singh being assaulted with
'Khund', a blunt weapon, Virsa Singh came to his rescue and he had also been
attacked and only in the said scenario Virsa Singh exercised his right of
private defence. Kartar Kaur, however, who had come in the meanwhile at the
place of occurrence unfortunately suffered injuries resulting in her death.
25. Mr. Lalit would urge that had the complainant been not aggressors, there
was no reason as to why PW 5 and PW 6 would suffer only minor injuries.
Sufferance of such injuries by the said witnesses, Mr. Lalit would contend, is
Doubtful, as in the opinion of the doctor they could be self-inflicted. Mr.
Lalit would further argue that there is nothing on records to show that except
Darbara Singh and Virsa Singh, any of the other three accused persons was
present at the place of occurrence and participated therein. According to Mr.
Lalit, only in the aforementioned fact situation, the trial court found the
presence of PW 5 and PW 6 at the place of occurrence to be doubtful and
furthermore held that having regard to the injuries on the persons of Darbara
Singh and Virsa Singh, they were entitled to exercise their right of private
defence. In that view of the matter, the learned counsel would argue, that the
High Court should not have interfered with the judgment of acquittal passed by
the learned Sessions Judge having regard to the fact that the said defence had
been raised from the very beginning of the trial.
26. Mr. Lalit would further submit that the statements of Partap Singh in the
facts and circumstances of the case, should not have been treated to be a dying
declaration.
27. So-called dying declaration of Partap Singh in effect and substance, Mr.
Lalit would submit, was a statement under Section 161 of the Code of Criminal
Procedure and the same was not reliable in view of the fact that Partap Singh
did five days thereafter.
28. The learned counsel would urge that the High Court failed to consider the
nature of the injuries suffered by the accused persons which having regard to
the materials brought on records would clearly prove that the accused persons
exercised their right of private defence. Mr. Lalit would further submit that
the prosecution failed to prove that the injuries caused to the accused persons
by PW 5 and PW 6 were by way of exercise of their right of private defence as
merely a bald statement had been made in the first information report to the
said effect and furthermore PW 5 and PW 6 also did not elaborate thereabout in
their depositions before the Sessions Court.
29. Mr. Lalit would argue that as the judgment of acquittal passed by the
learned Sessions Judge in the aforementioned situation was reasonable, the High
Court should not have interfered therewith.
30. Mr. OK Khullar and Mr. Arun Kumar Sinha, learned counsel appearing on
behalf of the State and the complainant, on the other hand, would submit that
from the site plan prepared by the investigating officer, it would appear that
the occurrence took place in the field of the first informant. The learned
counsel would contend that as the date and place of occurrence as also the
nature of offence stand admitted, it was for the accused persons to prove that
the informant party were the aggressors and they exercised their right of
private defence. The learned counsel would contend that even if the contention
of the appellants is accepted, no explanation has been offered as to why Kartar
Kaur was done to death. It was pointed out that from the materials on records,
it would appear that she was subjected to assault despite falling down on the
field.
31. The principal questions which arise for consideration in this appeal, in
view of the rival submissions made by the learned counsel for the parties are:
(i) whether the accused persons were entitled to exercise their right of
private defence;
(ii) in any event whether they exceeded the same in doing so;
(iii) Whether the statement of Partap Singh recorded on 18.6.1987 should be
construed to be a dying declaration?
32. before adverting to the rival contentions, as noticed hereinbefore, it may
be noticed that Accused Nos. 1 and 3 have since died.
33. It is not dispute that the deceased Kartar Kaur and the injured Partap
Singh were brought to the hospital by PW 5, Avtar Singh. According to the
prosecution, Balkar Singh had gone to his maternal uncle's place to inform him
about the incident and as such he was examined by the police on the next day of
occurrence. the materials on records further show that the investigating
officer having been informed about the incident by Dr. Mann wanted to record
the evidence of Partap Singh as he was an injured witness but as he was not
declared fit to make a statement, the statement of PW 5 was recorded and the
same was treated as the first information report.
34. We may at the threshold examine the question as to whether the statement of
Pratap Singh could be treated to be a dying declaration.
35. Section 32 of the Indian Evidence Act, 1872
nowhere states that the dying declaration must be recorded in the presence of a
Magistrate or in other words no statement which has not been recorded before
the Magistrate cannot be treated to be a dying declaration. The fact that the
investigating officer from the beginning intended to take the statement of
Partap Singh is not in dispute. The endorsement made by the doctor in Ex. PQ/1
and Ex. PR/1 would clearly show that he had not been found fit to make such
statement. Only on the fifth day i.e. 18.6.1987, the statement of Partap Singh
could be recorded.
36. Section 32 of the Indian Evidence Act also does not state that a dying
declaration should be made only in expectation of death and in that view of the
matter the fact that Partap Singh died on 26.6.1987 after a period of one week
is of no consequence. Explanation-I appended to Section 32 specifies that when
the statement is made by a person as to the cause of his death, or any of the
circumstances of the transaction which resulted in his death where cause of
death of that person's death comes into question would be a relevant factor. #
37. PW-9, the investigating officer Hukam Singh was proved the statement of
Partap Singh. He deposed that he was fully conscious when he made the
statements which were read over to him. In that view of the matter the said
statements are admissible under Section 32 of the Indian Evidence Act.
38. The statement of PW-1 in no unmistakable terms shows that the condition of
Partap Singh was very serious.
39. In Ramawati Devi vs. State of Bihar ], this Court observed:
"...A statement, written or oral, made by a person who is dead as to
the cause of his death or as to any of the circumstances of the transaction
which resulted in his death, in case in which the cause of that person's death
comes into question, becomes admissible under section 32 of the Evidence Act.
Such statement made by the deceased is commonly termed as dying declaration.
There is no requirement of law that such a statement must necessarily be made
to a Magistrate. What evidentiary value or weight has to be attached to such
statement must necessarily depend on the facts and circumstances of each
particular case. In a proper case, it may be permissible to convict a person
only on the basis of a dying declaration in the light of the facts and
circumstances of the case. In the instant case, the dying declaration has been
properly proved..." *
40. In Tehal Singh and Others vs. State of Punjab ], this Court negatived
the contention that a dying declaration should be made only in expectation of
death, stating:
"...We do not also see any force in the suggestion of Dr. Chitale that
the statement of Harmel Singh was not made in expectation of death and was,
therefore, not entitled to weight. Apart from the fact that Section 32 of the
Evidence Act does not require that a statement should be made in expectation of
death, it is clear from the evidence that the condition of Harmel Singh was
serious at that time. In the requisition made by the Medical Officer to the
Police it has been clearly mentioned that the condition of Harmel Singh was
serious. the very circumstance that Dr. Pasricha advised that Harmel Singh
should be removed to Bhatinda Hospital for better treatment clearly indicates
that the condition of Harmel Singh was serious..." *
41. In that view of the matter, the statement of Partap Singh, in our opinion,
would be admissible under Section 32 of the Indian Evidence Act.
42. The prosecution case as emerging from the first information report would
clearly show the respective parts played by the accused persons. The
allegations made in the first information report and the statements made before
the court by PW 5, Avtar Singh and PW 6, Balkar Singh, who were the eye-witness
as also the dying declaration of Partap Singh clearly indicate the manner in
which the offence had been committed and injuries had been inflicted upon the
deceased.
43. the autopsy report of Kartar Kaur further demonstrates that injury No. 2
inflicted on her, an incised wound of 10 cms. x 3 cms. on the back of left let
as a result whereof underlying vessels and muscles were cut and bones were
fractured, was in the opinion of the doctor, sufficient to cause death in the ordinary
cause of nature.
44. the injury report of Partap Singh also would clearly show that injury no. 2
suffered by him which was an incised wound 3 cms. x 1 cm. (at center0 oblique
on front and right side of abdomen 5 cms medial, was in the opinion of the
doctor was dangerous to his life, which came to be true.
45. The injuries caused on the deceased Kartar Kaur and Partap Singh were found
to have been caused within six hours. The boundary dispute between the parties
as also a dispute with regard to irrigation of the accused field from the water
taken from the tubewell of the complainant are admitted.
46. The statement of Partap Singh is also material. He was seriously injured
and was examined by Dr. Tirath Goel (PW-1). he, continuously for days was not
found fit to make any statement and endorsement to the said effect was made by
the said doctor to the investigating officer in Ex. PQ/1 and Ex.PR/1. Only
on the fifth day, he was found fit to make a statement as would appear from the
endorsement marked as Ex.P.5/1 made by the Dr. Goel whereupon only a statement
was recorded by the investigating officer. # The statement of Partap Singh
marked as Ex. P00 was recorded on 18.6.1987 by ASI Hukam Singh.
47. The appellants did not dispute the aforementioned facts; neither the
statements of PW-1 and PW-9 in this behalf were put to test in
cross-examination.
48. It is not essential that a dying declaration should be made only before
a Magistrate.
#
49. We would deal with the question of admissibility of the statement made by
Partap Singh, a little later but suffice it to point out at this juncture that
the statements of Partap Singh stand corroborated by the evidence of Avtar
Singh (PW-5) and Balkar Singh (PW-6). Even if the evidence of Balkar Singh is
held not to be reliable, as has been submitted by Mr. Lalit, was find no reason
to disbelieve the statements of Avtar Singh (PW-5). He categorically stated
that when they were working in the field, their mother had come with food and
when they just finished taking the same, the accused persons came and Virsa
Singh gave a 'lalkara' whereupon accused persons inflicted blows on Partap
Singh, Kartar Kaur and PW-5 and PW 6. The sufferance of minor injuries by PW-5
and PW-6 at the hands of the accused persons appears to be more probable as by
the time they realised their position and went to the actual place of
occurrence upon collecting their weapons and assaulting Darbara Singh and Virsa
Singh therewith, the accused persons might have realised that they had already
inflicted fatal blows on Kartar Kaur and Partap Singh and in the meanwhile they
had also suffered injuries at the hands of the informant party. Partap Singh
suffered two Barchha blows at the hands of Sahiba Singh, one in the abdomen and
another in the chest whereas Virsa Singh appears to have inflicted a Takwa
blow. These injuries are corroborated by medical evidence.
50. Similarly, the statements made in the first information report as also
before the court by PW-5 as regard nature of injuries suffered by Kartar Kaur
also stands corroborated by medical evidence. The presence of PW-5 and PW-6 at
the place of occurrence cannot be disbelieved only on the ground that the
injuries found on their persons were found to be simple in nature. They might
have suffered simple injuries because they might have collected their arms so
as to make counter attacks after seeing unarmed Kartar Kaur and Partap Singh
having been seriously injured.
51. Chapter IV of the Indian Penal Code provides for the general exceptions.
Sections 96 to 106 which occur in the said chapter deals with the right of
private defence. Section 96 says that nothing is an offence which is done in
exercise of the right of private defence. This right, however, is available to
a person who is suddenly confronted with immediate necessity of averting an
impending danger which is not his own creation. The necessity must be present,
real or apparent. It is preventive and not retributive. # [See Laxman Sahu
vs. State of Orissa, ].
52. The question, whenever a right of private defence is claimed, must be
judged from the nature of occurrence, the circumstances in which it had
occurred and whether the person claiming such right has acted legitimately.
attending circumstances would also be relevant for judging the same.
53. It is well-settled that the burden to prove the same is on the person who
raises such plea. For the purpose of proving the same, the accused my rely upon
the materials on records brought by the prosecution in addition to examining
the witnesses and adducing positive evidences, if any. A person has a right of
private defence of body under Section 97 and in the event it is found that he
was entitled to exercise the same, he necessarily must be held to have a right
to cause death in terms of Section 100 of the Indian Penal Code, if there was a
reasonable apprehension that death or grievous hurt would be caused.
54. For arriving at a finding as to the whether the accused persons had
legitimately exercised their right of private defence, it is necessary to pass
the question as to who had started the assault.
55. The place of occurrence is the agricultural field of the informant. It
will, therefore, be safe to presume that the accused persons trespassed into
the property of the informant. The fact that at least two of the accused
persons were armed with sharp-edged weapons like Kirpan or Kappa is not
disputed. If they had trespassed into the agricultural field of the informant
with deadly weapons, it is difficult to presume in absence of any material on
record that the initiation of the assault was from the side of the informant.
It stands admitted that the Accused Darbara Singh was cleaning the water
channel which passes through the field of the informant. There is also no
reason to disbelieve the statements of PW-5 and PW-6 as also the dying
declaration of Partap Singh that their mother had brought food for them and
they had taken the food and incident took place immediately thereafter. As
noticed hereinbefore, the injuries inflicted on deceased Kartar Kaur is not
disputed. She was not and could not have been armed with any weapon. She did
not take any part. She ever did not incite her sons to assault the accused
persons. If The informant party was the aggressor, there was no reason as to
why she would run towards the place where the fight was taking place, resulting
in causing of injuries on the person of Partap Singh. She apparently tried to
intervene seeing her sons being assaulted with sharp cutting weapons. She had
been inflicted with as many as five sharp-cutting injuries, three on the leg
and two on the wrist. There does not appear to be any reason as to why an aged
lady was done to death. The impact of the blows on her person would be evident
from the autopsy report. Apart from the cumulative effect of five injuries
inflicted on her person, as noticed hereinbefore, injury No. 2 was sufficient
to cause death in ordinary course of nature. It defies common sense, if the
prosecution story is accepted that PW-5 and PW-6 were not present at the place
of occurrence, that the deceased Partap Singh alone would single handedly
attack the accused persons who were five in number and variously armed.
56. Virsa Singh himself and his four sons are said to have taken part in the
occurrence. There were five male members of the side of the accused whereas
three were there on the side of the informant. The nature of the weapons used
in the commission of offence also suggests that they are not ordinarily
required to be carried on their persons, even on religious ground.
57. It may be true that Darbara Singh suffered five injuries out of nine
injuries on both palms but only because he might have tried to ward off the
assault of the blows which were inflicted on him by themselves cannot be
conclusive that he was attacked first. Another factor which deserves attention
of this Court is that the occurrence which had taken place at about 10.30 a.m.
on 13.6.1987 whereafter, PW-5 went back to the village to inform his cousin,
brought a tractor and took the injured Kartar Kaur and Partap Singh to
hospital. The distance between the place of occurrence and the hospital is said
to be about 9 k.m. On the way Kartar Kaur died and Partap Singh was examined at
12.30 p.m. It is not in dispute that they were brought to the hospital by PW-5
and in that view of the matter his presence at the place of occurrence appears
more probable. On the other hand, the injured Darbara Singh and Virsa Singh
were brought to the hospital by Kulwant Singh at least one hour thereafter.
Presence of Kulwant Singh also, thus, appears to be probable. Despite suffering
such injuries why they were not rushed to hospital has not been explained.
Furthermore, Dr. A.S. Mann (PW-2) immediately informed the officer incharge
about the incident. The police came to the hospital, the first information
report was lodged at 4.30 p.m. If the informant and his brothers were the
aggressors, it was expected, that the injured Darbara Singh and Virsa Singh or
the Appellant No. 1, Kulwant Singh, would have made such statements before the
police officer giving details as to the mode and manner in which the incident
had happened and as to how Virsa Singh and Darbara Singh suffered such grievous
injuries, particularly when PW 2 in his evidence categorically stated that
Virsa Singh was fully conscious and could talk clearly.
58. the records also reveal that weapons of attacks were recovered at the
instance of both Kulwant Singh and Sahiba Singh. The spear and kirpan which
were recovered were found to be blood-stained. We therefore, are of the opinion
that there does not exist any legal infirmity in the findings of the High
Court.
59. For the reasons aforementioned, we are of the opinion that the accused
persons have not been able to discharge their onus of proof that they had
killed the deceased in exercise of their right of private defence. #
60. The appeal being devoid of any merit is dismissed.