PAWAN Vs. STATE OF HARYANA

JUDGEMENT

(1.) CRIMINAL Appeal No. 261 -DB of 1997 and Criminal Appeal No. 581 -DBA of 1997 shall be decided by the same judgment as they arise out of a common order delivered by the Sessions Judge, Gurgaon. 3. Criminal Appeal No. 261 -DB of 1997 has been field by Pawan and Harkesh against the judgment of Sessions Judge, Gurgaon, whereby he convicted them under Sections 302/34 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 10,000/ - each. In default of payment of fine, to further undergo rigorous imprisonment for two years. Criminal Appeal No. 581 - DBA of 1997 has been filed by the State of Haryana against the acquittal of Ishwar son of Ran Singh. 4. The prosecution case is unfolded by the statement (Ex. PC) of Ranbir Singh given to S.I. Ram Parkash at Gohana Bus -stand on 31.8.1994 at 10.00 A.M. On the basis of his statement, FIR (Ex. PA) was recorded on 31.8.1994 at 10.20 A.M. Special report reached the Chief Judicial Magistrate, Rohtak on the same day at 1.15 P.M. Ranbir Singh stated that he is a resident of Gadi Khedi. He dealt in the business of cement. His cousin (father's younger brother's son) Jagdish had constructed a house near 132 KV Khokhar Khod Power House. Jagdish was practising as an Advocate. Jagdish had also constructed a shop in Hanuman Colony near T.B. Hospital. This shop had been rented to Pawan and Ishwar. It had been got vacated on 30.8.1994. At the time of vacation of the shop, Pawan and Ishwar had threatened Jagdish that they would teach him a lesson. On 31.8.1994 at about 9.30 A.M., Ranbir Singh alongwith Jagdish both on their respective scooters started for the shop. Jagdish had brought Ranbir Singh to clean the shop. Jagdish, after leaving Ranbir Singh at the shop, set out to go to the Court on his scooter. He had hardly gone 10/15 paces that Pawan, Ishwar and Harkesh came from the opposite direction. They were carrying swords and knife in their hands. They attacked Jagdish with their swords and knife. Pawan gave a sword blow on the right side of the chest of Jagdish. He gave another blow with the sword on the chest of Jagdish. Harkesh gave a sword blow on the left flank of Jagdish. Thereafter, Ishwar Singh gave a knife blow on the left side of the head of Jagdish. Thereafter, all the three persons gave sword and knife blows on the various parts of the body of Jagdish. Ranbir Singh shouted for help but no one from the locality came. The three accused, after inflicting injuries, ran away. 5. The prosecution, to prove its case, brought into the witness box ASI Inder Singh as PW -1, Ranbir Singh complainant as PW -2, Azad Singh as PW -3, Dr. Manu Arora as PW -4, Jagbir Singh as PW -6, Kashmiri Lal Draftsman as PW -7 and Ram Parkash SI as PW -8. 6. Learned counsel for the appellants has argued that there are material discrepancies in the statements of the alleged eye witnesses, Ranbir Singh complainant (PW -2) and Azad Singh (PW -3). Name of Azad Singh (PW -3) does not figure in the FIR nor is he a witness to the inquest proceedings (Ex. PP), nor is he a witness in the site plans (Ex. PO) and (Ex. PM) prepared by Kashmiri Lal Draftsman (PW -7) and Ram Parkash SI (PW -8) respectively. Azad Singh (PW -3) belonged to village Kulassi, which was 40 Kms. away from the place of occurrence. He has been introduced as a witness at a later stage. He did not witness the occurrence. His statement was recorded on 2.9.1994. The reason given by Azad Singh (PW -3) of his statement being recorded after two days, was that, he went to Delhi to call Jagbir Singh (PW -6), the brother of the deceased, is not believable. Learned counsel has drawn our attention to judgment (Ex. -DE) delivered by the Sessions Judge, Rohtak in FIR No. 129 dated 2.4.1991 titled State v. Azad Singh and Jagdish. Both were charged under Sections 302/34 IPC. From the judgment (Ex. DE), it is clear that deceased Jagdish and Azad Singh (PW -3) were partners in illegal activities. 7. Ranbir Singh complainant (PW -3) is the cousin brother of deceased Jagdish. He lives in village Gadi Khedi. He belongs to a village, which is at a distance of 6 Kms. from the place of occurrence. He did not have any reason to accompany the deceased at the time of the occurrence. As per his statement, Ishwar Singh accused caused head injuries with knife (Ex. P -8). Dr. Manu Arora (PW -4) has opined, in her post mortem report (Ex. PH), that the injuries on the head of Jagdish deceased were lacerated wounds. Ranbir Singh complainant (PW -2) has stated, in his testimony before the Court, that the shop was forcibly got vacated from the appellants and it is thereafter, that the appellants removed the goods of hardware and iron stored in the shop. This witness has further stated that the shop in dispute belonged to Jagbir Singh (PW -6) and not to the deceased. 8. Learned counsel has further argued that the occurrence could not have taken place on 31.8.1994, as the appellants would not have allowed the deceased to take the possession of the shop forcibly. The goods of hardware and iron could also not have been removed by the appellants quietly and without any resistance from the appellants. If the appellants had voluntarily surrendered the possession on 30.8.1994, then what was the need for them to come on 31.8.1994 to take revenge. In fact it is on 31.8.1994 at 9.30 A.M. that Jagdish deceased tried to have the shop vacated forcibly and it is then that appellants Pawan and Harkesh resisted. It is thereafter, when the appellants got injured in the process of resisting to take over the shop by deceased Jagdish, that the appellants inflicted injuries on the deceased in their right of self -defence and in defence of protecting their property. It was in fact deceased Jagdish, who trespassed into the shop of the appellants. The appellants are clearly covered under Sections 100 and 103 of the IPC. Possession of the shop was with appellants Pawan and Harkesh. This has been conceded by Ranbir Singh complainant (PW -2) and Jagbir Singh (PW -6). Jagbir Singh (PW -6) is no other person than the owner of the shop and the real brother of deceased Jagdish. It is strange that the Investigating Officer Ram Parkash SI (PW -8) did not enquire from the locality or neighbourers or from the other shop keepers, as to who was in physical possession of the shop in dispute at the time of occurrence. Learned counsel has finally argued that at the most, it could be a case, where appellants Pawan and Harkesh exceeded their right of private defence to body and property, they are at the most liable under Section 304 Part 1, I.P.C. 9. Learned counsel has argued that as per the prosecution version, the presence of accused Ishwar is not established. All the accused were arrested on 1.9.1994. The clothes of appellants Pawan and Harkesh were found to be blood -stained. These blood stains could have been because of the injuries inflicted on their person by the deceased or when the appellants inflicted injuries on Jagdish deceased. The clothes of Ishwar accused were not blood - stained nor did he suffer any injury in the scuffle. Appellants Pawan and Harkesh suffered injuries. They were examined by Dr. Jangsher Singh (DW -2) and as per his reports (Ex. DC) of Harkesh and (Ex. DD) of Pawan, there were injuries on their persons. These injuries have not been explained by the prosecution. Appellants Pawan and Harkesh have stated, in their statements under Section 313 Cr.P.C., that they caused injuries to deceased Jagdish in their right of private defence and in defence of their property. Ishwar accused has denied his presence. 10. Learned counsel for the State has argued that knife (Ex. P -8) recovered from Ishwar accused, as per FSL report (Ex. PN), had human blood. He has further stated that the lodging of the FIR (Ex. PA) promptly goes a long way in proving the case of the prosecution. Occurrence had taken place on 31.8.1994 at 9.30 A.M. FIR (Ex. PA) was recorded at 10.20 AM. and the special report reached the safe hands of the Chief Judicial Magistrate, Rohtak at 1.15 P.M. Names of the accused, weapons of offence and injuries inflicted by the appellants on deceased Jagdish have been clearly stated by Ranbir Singh complaint (PW -2) in his statement Ex. PC. Draftsman Kashmiri Lal (PW -7) has stated that, when he made site plan (Ex. PM), he saw the dead body of deceased Jagdish lying 60 feet away from the shop. This itself clearly shows that deceased Jagdish was going to the Court to attend to his cases and had told his cousin Ranbir Singh complainant (PW -2) to clean the shop. The appellants attacked Jagdish not in the shop but on the road. Learned State counsel has further argued that non -mentioning of the name of Azad Singh (PW -3) in the FIR does not dwindle the truthfulness of Azad Singh (PW -3). Azad Singh (PW -3) had seen the occurrence and it was natural for him to go and inform first Jagbir Singh (PW -6), the brother of the deceased and it is, thereafter, when he came back from Delhi, that the police recorded his statement. In the judgment (Ex. DE), both Azad Singh (PW -3) and Jagdish deceased had been falsely implicated, they were acquitted by the Sessions Judge, Rohtak. The plea of self -defence cannot be taken by the appellants as it were the appellants, who attacked the deceased 60 feet away from the shop in dispute. The previous day i.e. on 30.8.1994 it was the appellants, who had given possession of the shop in dispute and had quietly taken away the goods from the shop. It is on the next day in the morning i.e. on 31.8.1994 that the appellants planned the murder of Jagdish and assaulted him in front of the disputed shop, which they had vacated a day earlier. Appellants now cannot take the plea of right to private defence and defence of their property. 11. We have heard the learned counsel for the parties and perused the record with their assistance. 12. Occurrence in this case has been admitted by appellants Pawan and Harkesh. In their statements under Section 313 Cr.P.C., both have stated that a false case has been foisted upon them. The witnesses are related and interested. The shop in dispute was in possession of the appellants. It was never vacated. On the day of occurrence, deceased Jagdish along with other persons armed with knife and lathi came to the shop to take forcible possession. On the appellants refusing to give possession, Jagdish along with his companions attacked both the appellants Pawan and Harkesh. This attack was resisted. Acting in self -defence, they caused injuries to Jagdish. Ishwar was not present. Ranbir Singh complainant (PW -2) and Azad Singh (PW -3) were not present at that time and did not witness the occurrence. Shop in question was never vacated by them and it remained in their occupation throughout. 13. Ranbir Singh complainant (PW -2) is the first cousin of the deceased. In this testimony before the Court, he had stated that he along with Azad Kulassi witnessed the occurrence. He has stated that deceased Jagdish had got appellants Pawan and Harkesh forcibly vacated and an altercation had taken place over eviction. At the time of taking forcible possession, he (Ranbir Singh PW -2) was present. Further, he has stated that after exchange of hot words between Jagdish deceased, Pawan and Ishwar, the appellants removed the goods lying in the shop. The shop had spare parts and hardware. It is clear from the statement of Ranbir Singh (PW -2) that the possession of the shop was taken forcibly by the deceased. It was this forcible taking of possession of the disputed shop that infuriated appellants Pawan and Harkesh, who had no other alternative but to resist. In their defence of their right to person and in their right of defence of their property, they inflicted injuries on Jagdish. Jagbir Singh (PW -6), the real brother of the deceased, has stated, in his testimony before the Court, that the accused remained in occupation of the shop in dispute for about six months. He had asked them after about 5/6 months to vacate the shop. He (Jagbir Singh PW -6) had not filed any suit against Pawan and Ishwar accused to vacate the shop. He (Jagbir Singh (PW -6) could not say that Jagdish deceased had taken over possession of the shop or not. Jagbir Singh (PW -6) is no other person than the real brother of Jagdish and he is also the owner of the shop. It is clear from the statements of these witnesses i.e. Ranbir Singh complainant (PW -2) and Jagbir Singh (PW -6) that appellants Pawan and Harkesh were in possession of the shop in dispute. Taking over the possession of the shop by the deceased was not done on 30.8.1994 as set out by the prosecution, but it was on 31.8.1994 at 9.30 A.M. when the shop was opened by appellants Pawan and Harkesh, that deceased Jagdish along with some other persons, came to take forcible possession and it is thereafter a fight flared up and in the process, appellants Pawan and Harkesh inflicted injuries on the person of Jagdish deceased. Appellants Pawan and Harkesh also suffered injuries in this occurrence. 14. Copy of the judgment (Ex. DE) delivered in FIR No. 129 dated 2.4.1991 shows that Azad Singh (PW -3) and deceased Jagdish were arrayed as accused in that case under Section 302/34 IPC. Deceased Jagdish seems to be a person of criminal bent of mind. Rarely does a practising Advocate get involved in serious cases like murder. 15. Azad Singh (PW -3) is an implanted witness. He did not see the occurrence. His village Kulassi is 40 Kms. away from the place of occurrence. His name does not figure in the FIR (Ex. PA) nor in the statement (Ex. PC) of Ranbir Singh complainant (PW -2). He was not a witness to the inquest proceedings, nor is witness to the site plan (Ex. PM), prepared by Kashmiri Lal (PW -7) and site plan (Ex. PO), prepared by Ram Parkash SI (PW -8). It is strange that the Investigating Officer recorded the statement of this witness after two days of the occurrence, i.e. on 2.9.1994. This itself shows that Azad Singh (PW -3) was introduced as a witness. He did not witness the occurrence. 16. Learned counsel for the appellants has argued that the appellants are covered by the right of self -defence and property under Sections 100 and 103 of the IPC. At the most, offence under Section 304 Part -1, IPC could be made out. It has been established by the prosecution witnesses i.e. Ranbir Singh (PW -2) and Jagbir Singh (PW -6) themselves, that possession of the shop was with the appellants. Appellants inflicted injuries on the person of the deceased in the right of self -defence to person and property. This argument of the learned counsel does not cut much ice. By going through the nature of injuries as shown in the post mortem report Ex. PH, appellants exceeded their right of self -defence. The injuries inflicted on the person of the deceased far exceed the force, which was necessary to protect themselves and their property. The body of the deceased was completely mutilated by inflicting grievous swords wounds. Not less than 13 injuries were inflicted all over the body of the deceased. 17. As per Section 99 of the Indian Penal Code, right of private defence does not extend the inflicting of more injuries than it is necessary for the purpose of defence, which is reproduced as under : -