GURDIP SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) This appeal is by Gurdip Singh who has been convicted under section 307 of the Indian Penal Code and sections 25/27 of the Arms Act, by the Sessions Judge, Kamal. Though he was initially tried along with five others for offences under sections 307/ 149/ 447/ 148, Indian Penal Code, and for the offences under the Arms Act yet stands acquitted of the charges under sections 148 and 447, Indian Penal Code. Section 149 of the Indian Penal Code was obviously held to be not applicable to the facts of the case in view of the acquittal of the other five accused.

(2.) What was alleged against the appellant by the prosecution was that on 22-7-1984 at about 6-00 p.m., he along with his co-accused came to the field of Jarnail Singh, father of injured P.W. 7 Joga Singh, in the area of village Ruksana. They also brought two tractors driven by Baldev Singh and Gurbaz Singh. At that time, the appellant was armed with a. 12 bore gun, Exhibit P. 4, and the other accused too were armed with weapons such as gandasis and lathis. When Baldev Singh and Gurbaz Singh started ploughing the land, Kamir Singh, injured P.W. 6, asked Iqbal Singh, one of the accused, as to why they were ploughing the land of his Taya, (uncle) Jarnail Singh, Iqbal Singh raised a lalkara and, immediately thereafter, the appellant fired a shot, which hit Kamir Singh P.W.6, causing 8 lacerated injuries on his person. When Joga Singh P. W. 7 proceeded towards Kamir Singh P. W. 6, the appellant fired another shot causing two pellet injuries on the person of Joga Singh P.W.7. Jasbir Singh P.W. 8 and Sher Singh were also nearby and on an alarm having been raised by them along with the injured P.Ws. all the accused mcluding the appellant fled away on their tractors. As a result of the investigation that followed, the appellant along with his coaccused was sent up for trial with the result as already indicated in the opening part of the judgment.

(3.) The primary submission of Shri R.S. Cheema, learned counsel for the appellant, is that in the face of the findings recorded by the trial Court itself, the conviction of the appellant under section 307, Indian Penal Code, cannot be sustained. In this regard, he draws my attention to the following finding which appears in paragraph 22 of the judgment under appeal It is, therefore, established on the basis of the revenue record that Jarnail Singh, father of Joga Singh P.W. 7 and uncle of Kamir Singh P.W. 6, was not in possession of either of these two fields, nor any of these two P. Ws. was in possession of any portion of fields Nos. 43/4 and 43/5 on the date of occurrence, i.e., 22-7-1984. So, if the accused arrived and stated ploughing these two fields, they could not be held guilty under section 447, Indian Penal Code, nor can it be said that, at that time, they formed an unlawful assembly because, to start with, their object was to plough the land which was definitely in possessions of Mansa Singh, father of accused Nos. 1 to 4, Amrik Singh and Kamir Singh (other than P. W. 6). This firm finding which is otherwise not assailed by the State counsel, to my mind, completely knocks the bottom out of the prosecution case. If the evidence of P.Ws. 6 and 7 and P.W. 8 Jasbir Singh on whose evidence alone the finding about the guilt of the appellant is based, is not accepted with regard to the factum of possessions of the disputed land, then the said evidence obviously is unacceptable or unbelievable with regard to the origin or genesis of the whole prosecution version. For relying on the evidence of these witnesses to convict the appellant under section 307, Indian Penal Code, the trial Court has primarily depended on the falsity of the version pleaded by the appellant in defence. This appears to me to be a wholly wrong approach. As has repeatedly been laid down by this Court and the apex Court, an accused is not required to establish his defence firmly. He has only to probabilise it to earn an acquittal. The version of the defence is that the P. Ws. along with three others, who concededly were facing a trial under section 326, Indian Penal Code, prior to the date of occurrence, for causing injuries to the prior to the date of occurrence, for causing injuries to the brother of the appellant, namely, Baldev Singh, had come to the spot armed with deadly weapons and, in all probability, to wreak vegeance for the prosecution that had been launched against them. It was in that situation that the appellant apprehended danger to his life and property and had used the gun in his possession and, as per his own stand, to scare away the aggressors. It is firmly established in the light of the siteplen Ex. PH prepared by Telu Ram Patwari P.W. 3 and the akshajra Exhibit, DA, that the place from where the appellant fired and the place where P.Ws. Nos. 6 and 7 were hit, were within the area of Khasra Nos. 4 and 5 of Rectangle No. 43, which, as per the finding of the trial Court, were in possession of the father of the appellant. The rough site-plan, Exhibit PD, prepared by the investigator ASI Chandgi Ram P. W. 10, also corresponds to Exhibit PH. It is, therefore, patent that the gun was used by the appellant only when the injured P.Ws. had entered the fields which were in his/his fathers possession. In view of the background, i.e., the pendency of the criminal prosecution of the P.Ws. about which the appellant has deposed. In his statement under section T313 Code of Criminal Procedure, it can reasonably be accepted that he did apprehend an assault at the hands of the P.Ws. and, therefore, he fired from his gun. It deserves to be noticed that by that time these persons had already committed criminal trespass by entering the area of the field, which were in possession of the appellant or his father. In any case, the above noted finding, as already pointed out, shakes the prosecution case to its foundation. Therefore, the conviction of the appellant under section 307, Indian Penal Code, deserves to be set aside. I order accordingly.