HARDIAL SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE three appellants being unsuccessful in the appeal filed by them in the High Court and their conviction and sentence passed by the learned Additional Sessions Judge, Amritsar, having been confirmed have approached this Court. These three alongwith the acquitted Amar Singh and Dalip Singh stood their trial in the Court of Additional Sessions Judge, Amritsar under Sections 148, 302/149, 326/149 I.P.C. on the allegation that they came armed with guns and rifles and fired at the deceased as well as the injured P.W. 5 and other members of the informant party who were cultivating the land belonging to Khazan Singh in village Rekh Jhitan. It is to be noted that all the five accused persons are related to each other, accused Dalip Singh being the father and the rest four are his sons. The learned Additional Sessions Judge acquitted accused Dalip Singh and Amar Singh giving them benefit of doubt on a conclusion that the prosecution evidence does not prove the charge against them beyond reasonable doubt. But so far as the three appellants are concerned, the learned Additional Sessions Judge convicted them and sentenced them differently. Appellant Hardial Singh was convicted under Section 302 IPC and was sentenced to imprisonment for life. He was also convicted under Section 148 I.P.C. and sentenced to R.I. to one year and under Section 326/149 I.P.C. was sentenced to R.I. for two years. Appellant Uttam Singh was convicted under Section 301/149 IPC and was sentenced to imprisonment for life. He was also convicted under Section 148 IPC and was sentenced to R.I. for one year and convicted under Section 326 IPC and was sentenced to R.I. for two years. Appellant Gurnam Singh was also convinced under Section 302/149 IPC and sentenced to imprisonment for life. He was also convicted under Section 148 I.P.C. and sentenced to R.I. for one year and convicted under Section 326/149 IPC and sentenced to R.I. for two years. The sentences of imprisonment of each of the appellants were ordered to run concurrently. They moved the High Court against the conviction and sentence in Criminal Appeal No. 388 of 1983 but the High Court dismissed the appeal and confirmed the conviction and sentence and, hence, the present appeal.

(2.) PROSECUTION case in nutshell in that a piece of land belonging to one Khazan Singh of village Rekh Jhitan was being cultivated by Kulwant Singh P.W. 4 and his father Gulzar Singh P.W. 10, Amar Singh and Harbans Singh for the last so many years. The appellants' family became interested in dispossessing Kulwant Singh and his father and apprehending forcible eviction by the appellants, said Gulzar Singh P.W. 10 filed a Civil Suit and had obtained an order of injunction on December 24, 1980. On the date of occurrence, on 31st of October, 1981 Kulwant Singh P.W. 4 had made arrangements for getting the land ploughed with a tractor and accordingly approached P.W. 9 who was also distantly related to Kulwant Singh. The further prosecution case is that the said P.W. 9, Jagir Singh the deceased, P.Ws. 4 and 5 were ploughing the land and P.W. 5 had brought his licensed gun as they were apprehending trouble from the accused persons. While the ploughing operation was going on the accused persons armed with rifles and guns appeared at the spot and Gurnam Singh gave a lalkara not to plough further. P.W.P. 4 Kulwant Singh, however, asked P.W. 5 Jagir Singh to continue ploughing operation. Gurnam Singh then told his other companions that the people should be taught a lesson for ploughing land. The appellants then took their position behind paddy straw ridge and Gurnam Singh fired from his rifle which hit P.W. 5 who was operating the tractor. Said P.W. 5 then rushed towards the boundary to pick up his. 12 bore gun and at that point of time appellant Uttam Singh fired a shot which hit P.W. 5 on his left thigh. P.W. 5 then fired two shots in his defence. Appellant Hardial Singh fired another shot which hit the deceased Jagir Singh on his chest and he fell down. Amar Singh and Dalip Singh also fired shots from their respective weapons and none of the shots hit any of the complainant party. The appellants and their companions then left the place with their respective weapons. Kulwant Singh P.W. 4 immediately went to Police Station Jandiala at a distance of 8 kms from the place of occurrence and lodged the FIR at 11 A.M. P.W. 15 the Investigating Officer recorded the First Information Report and left for the place for investigating into the offence. At the place of occurrence he prepared the Inquest Report and sent the dead body of deceased Jagir Singh for Post Mortem examination. The Investigating Officer also sent the injured P.W. 5 to Hospital at Amritsar for treatment and medical examination. The Investigating Officer collected some blood -stained earth from the place where the deceased Jagir Singh was lying and collected some empty cartridges from that place. From another place also he seized six empties and some live cartridges and recorded the statement of some of the witnesses under Section 161 of the Code of Criminal Procedure. On completion of investigation he finally submitted the charge -sheet and on being committed the accused persons stood their trial as already stated. In support of the prosecution case a large number of witnesses were examined of whom P.Ws 4 and 5 are the eye -witnesses to the occurrence. P.W. 2 is the Doctor who had examined the injured P.W. 5 as well as the injured accused Hardial Singh. The other Doctor examined as P.W. 1 had conducted the Post Mortem examination on the dead body of deceased Jagir Singh. Relying upon the statement of P.Ws 4 and 5 and being of the opinion that the medical evidence corroborates the ocular statement, the learned Additional Sessions Judge convicted the three appellants as already stated but since there was no prosecution evidence to establish that Dalip Singh and Amar Singh had fired any shot which hit any of the members of the prosecution party, they were given benefit of doubt and were acquitted. No appeal had been filed against the said order of acquittal of Dalip Singh and Amar Singh but the appellants' appeal against their conviction and sentence was dismissed by the High Court on a re -appreciation of the evidence of P.Ws 4 and 5 as well as the medical evidence.

(3.) MR . Kohli, the learned senior counsel appearing for the appellants contended that five known persons being charged under Section 302/149 IPC and two of them having been acquitted of the charge the courts below committed gross error of law in convicting the rest three accused persons by taking recourse to Section 149 IPC. He further contended that the entire prosecution case as unfolded through the evidences of P.Ws. 4 and 5 should not be accepted in view of inherent inconsistencies in their statements and in view of the fact that their evidence is contrary to the medical evidence. Mr. Kohli further urged that from the narration of facts it must be held that it was a case of free fight and, therefore, the individual accused persons may thus be liable for their individual acts and cannot be conjointly liable. According to Mr. Kohli, if the prosecution case is examined from this angle and taking into consideration the serious injuries which appellant Hardial had sustained in course of the incident, the only conclusion possible is that said Hardial had fired from his gun in private defence of his person and, therefore, he cannot be held liable for the offence of murder. Learned counsel appearing for the State fairly submitted that in view of the acquittal of the two accused persons provision of Section 149 IPC could not have been pressed into service and the courts below committed error on that score. He further stated that though under law it is possible for a court to convict the accused persons who were charged under Sections 302/149 I.P.C., if that charge fails by altering it to one under Sections 302/34 I.P.C., but in the case in hand on the evidence on record it will be difficult to convict the appellants Uttam Singh, Gurnam Singh and Hardial Singh under Section 302/34 IPC and necessarily therefore, the individual overt acts of the appellants have to be considered. According to the learned counsel for the respondent, in view of the positive evidence of P.Ws 4 and 5 conviction of appellant Hardial Singh under Section 302 IPC is unassailable and cannot be interfered with. So far as the two other appellants are concerned, according to him their conviction under Section 326 IPC remains unassailable. We find sufficient force in the submission of the learned counsel appearing for the State.