STATE Vs. KARTAR SINGH

JUDGEMENT

(1.) This is an appeal on behalf of the State against an order of, acquittal. The respondents Kartar Singh, Dona Singh, Gaura Singh, Mohan Singh and Latkan Singh were charged under Ss. 148 and 1302/149, I. P. C., for offences alleged to have been committed by them on the 12th of December 1952, in a farm in tahsil Bazpur, district Nainital, The learned Sessions Judge of Kumaun acquitted them of all the charges holding that it was not proved that the accused persons formed an unlawful assembly or that they had any common object either of injuring Dayal Singh or his companions or of doing anything unlawful, holding further that in the circumstances disclosed by the prosecution, the charge under Section 302/149, I. P. C., was not at all established.

(2.) Kartar Singh, Respondent, has a farm in tahsil Bazpur in the district of Nainital which is known as Badripur Farm. Adjacent to it, there is another farm belonging to one Chandra Singh. A water channel separates the two farms. The channel bifurcated into two branches one of which goes into the farm of Kartar Singh and the other goes into another farm known as Fatehpur Farm belonging to one Dayal Singh. The place, where the two branches of this channel bifurcate, is known as the Nakka. The position of the channel is such that if it is blocked at the point of bifurcation towards either side, the entire water will flow into the farm of the one without permitting any water to get into the farm of the other. The prosecution contended that Since the 10th of December 1952, water through the channel had been flowing into the farm of Dayal Singh and he had been irrigating his crops. On the 12th of December 1952, early in the morning Dayal Singh, it is alleged, found that the flow of the water had been obstructed. He, therefore, started with his brother Charan Singh and his nephew Tara Singh towards the point of bifurcation to find out the cause of the impediment. It is said that all these three persons went there empty-handed and unarmed. When they reached the point of bifurcation or the Nakka, they found Kartar Singh present there with his rifle. There were 15 or 16 persons with him some of whom were armed with lathis and others with Kirpans or swords. Amongst those there were the other four accused persons, namely, Done Singh, Gaura Singh, Mohan Singh and Latkan Singh and also one Chain Singh who was said to have been armed with a 12 bore gun. On reaching the point of bifurcation, Dayal Singh asked Kartar Singh as to why he had blocked the channel. An altercation then ensued between Dayal Singh and Kartar Singh. It is said that this altercation led to abuses. It is further Said that Kartar Singh fired three shots at Dayal Singh with his rifle and Dayal Singh fell down dead. Some of the helpers of Kartar Singh then crossed the channel and began to assault Charan Singh and Tara Singh with lathis and kirpans. Charan Singh and Tara Singh got injuries and began to run. The men of Kartar Singh's party followed them. While this was going on Chain Singh, it is said, fired shots from his gun but these shots unfortunately hit three persons of Kartar Singh's own party namely, Dona Singh and Mohan Singh accused and one Jogendra Singh. Kartar Singh's residential huts are situate in his farm at a distance of about 250 paces from the Nakka. The prosecution contended that some of the members of the party of Kartar Singh fetched a cot from his hut on which they put the dead body of Dayal Singh and took the dead body towards the hut. It was thrown under a tree near the hut. Goma Singh and two other men of Kartar Singh's party then caught hold of Charan Singh and took him to the hut. Two other men of the party forced Tara Singh under threats of being shot down, to walk to the hut. When all these persons had reached the hut, it was suggested that if Charan Singh and Tara Singh were left alive, they would be witnesses against Kartar Singh and the men of his party who had been the aggressors and who had committed the crime. The prosecution contended that Latkan Singh then gave three or four blows with his kirpan on the head of Charan Singh and killed him, whilst two of the companions of Kartar Singh, hit Tara Singh on the head with their kirpan and killed him also. Kartar Singh took out his tractor and went to police station Bazpur, where he lodged a report at about 8-30 a.m. Station Officer Shri P.D. Sewak at once proceeded to the place of the occurrence accompanied by Kartar Singh on the same tractor and found the dead bodies of Dayal Singh, Charan Singh and Tara Singh lying near the hut of Kartar Singh. He also found Jogendra Singh, Mohan Singh and Dona Singh lying injured. When Kartar Singh had made the report at the thana, he had handed over his own rifle and a parcha granted by the canal authorities which, according to him, had been given to him entitling him to take the water of the gul from the 10th of December to the 19th of December 1952. Sub-Inspector P.D. Sewak during the course of the investigation prepared inquest reports in respect of the dead bodies and sent them for post mortem examination. The three injured persons were sent to the hospital for the examination of their injuries. At the hospital Jogendra Singh succumbed to his injuries and subsequently his body was also Sent for post mortem examination. When the inquest over the dead body of Dayal Singh was being made, an empty cartridge case, a misfired cartridge and several live cartridges were recovered from the pocket of Dayal Singh along with currency notes of the value of Rs. 720 and certain other papers. When the investigation over the report of Kartar Singh had been in progress at the farm of Kartar Singh, the wife of Dayal Singh deceased reached the thana at about 3-30 p.m., and she lodged a report saying that her husband with two of his relations Charan Singh and Tara Singh had proceeded towards the Nakka in the early morning to see why the water in the gul had diminished, that since then they did not return home, that she had waited upto 11 a.m., and then she proceeded to Bazpur where she had learnt that a dispute had taken place near the Nakka in which some persons had been killed. She charged Kartar Singh and his party men with having murdered Dayal Singh, Charan Singh and Tara Singh. Shri P.D. Sewak continued the investigation and on the following morning, he recovered from near the Nakka an empty cartridge case and a lock of hair. He also recovered a Single barrel gun from the house of Dayal Singh. The investigation of the case was subsequently taken over by Circle Inspector Shri Hari Singh, who after completing it challaned the five accused under Ss, 143 and 302/149, I. P. C.

(3.) The accused denied the charges that were levelled against them. Their case was that the Jamadar, who had the authority to permit the taking of water from the channel, had permitted Kartar Singh to take water to his farm irom the 10th of December 1952 to the 19th of December 1952, that in accordance with that permission Kartar Singh had started irrigating his field on the 10th of December 1952, that on the 11th December, Dayal Singh forcibly stopped water going to Kartar Singh's farm and took it to his own farm, that Kartar Singh made a complaint about it to the Naib Tahsildar, who directed the Jamadar to make a report and to let the person entitled to have the water, take it; that Kartar Singh could not, however, find the Jarnadar and could not hand over the order to him; that on the evening of the 11th December 1952, Kartar Singh blocked the Fatehpur branch of the channel and the entire water of the gul began to flow into his own farm; that the irrigation work was being carried on by two of his men, namely Mohan Singh Rai Sikh and Ram Singh in the early morning of the 12th of December and Kartar Singh himself had gone out to look after his fields and, as usual, he had with him his rifle; that Dayal Singh, Tara Singh and Charan Singh, with ten or twelve men of their party then arrived at the Nakka, Dayal Singh having been armed with a gun and the others armed with lathis and'Tara Singh had a spade in his hand; that on coming to the Nakka and having found that the branch of the gul had been blocked and the entire water was flowing through the other branch of the gul, Tara Singh began to cut the bund under orders of Dayal Singh, that thereafter Mohan Singh Rai Sikh stopped Tara Singh and caught hold of his spade, that Charan Singh then attacked Mohan Singh Rai Sikh with a kirpan. Ram Singh, who was armed with kirpan, retaliated by hitting Charan Singh with his own kirpan., The cry that was raised attracted Mohan Singh accused and Jogendra Singh. who ran to the place from the hut of Kartar Singh. As soon as they approached, Dayal Singh fired a shot at Mohan Singh accused hitting him. On hearing the gun-shot, Dona Singh accused, who was at that time going towards the hut of Kartar Singh, also proceeded towards the spot. Dayal Singh shot him too and Dona Singh fell down. Dayal Singh then fired a third time aiming at Jogendra Singh, who was at that time getting Ram Singh and Mohan Singh Rai Sikh released from the other men of Dayal Singh who were fighting with them. Jogendra Singh fell down on account of the gun-shot injury. By that time, Kartar Singh also reached the spot and when he was at a distance of about ten yards from Dayal Singh, Dayal Singh fired at him. Kartar Singh avoided being hit by lying down flat on the ground. Dayal Singh proceeded towards him intending to fire at him again but before he could do so, Kartar Singh stood up and fired at Dayal Singh with his own rifle. Kartar Singh's shot hit Dayal Singh and he fell down dead. Kartar Singh then went to his hut, took out his tractor and proceeded to the thana where he made the report and brought forth the police. When he came back, he found Dayal Singh, Charan Singh and Tara Singh lying dead near his hut and he also found that his adversaries had taken away the gun and other weapons with which the men of Dayal Singh's party were armed. In short, the case of the accused was that the aggressors had been Dayal Singh and his men and that whatever was done by Kartar Singh and his men was done in the exercise of right of self defence. The other accused denied having caused any injuries to Dayal Singh, Tara Singh and Charan Singh and according to them, the prosecution story that Charan Singh and Tara Singh were brought to the hut of Kartar Singh while alive and had been killed there so that they may not be able to give evidence, was totally false.