DILIP SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 6-5-1980, passed by the Sessions Judge, Sri Ganganagar, by which the learned Sessions Judge convicted the appellant for the offence under Section 304, Part I, I.P.C. and sentenced him to undergo four years' rigorous imprisonment and a fine of Rs. 1000.00 and in default of payment of fine further to undergo six months' rigorous imprisonment. The appellant was also, convicted for the offence under Section 27 of the Indian Arms Act and was sentenced to undergo one year's rigorous imprisonment and a fine of Rs. 200.00 and in default of payment of fine further to undergo two months' rigorous imprisonment. Both the substantive sentences were directed to run concurrently.

(2.) Appellant Dilip Singh, along with his sons Baldeo Singh and Makkan Singh, was tried for the offences under Sections 302 and 323 I.P.C. and Section 27 of the Indian Arms Act, for committing the murder of Arjun Singh by firing a gun-shot and inflicted injuries to Balveer Singh. The case of the prosecution is that Arjun Singh and Dilip Singh's father Pasra Singh owned thirty-four Bighas of irrigated agricultural land which was entered in the Revenue Record in the name of Parsa Singh. Parsa Singh had five sons and, therefore, 6 1/4 Bighas of land came to the share of Arjun Singh. Arjun Singh left the village to earn his livelihood ten to twelve years before the date of the incident and handed-over the land of his share to Dilip Singh. He returned after two-three years and demanded the possession over his land but Labh Singh refused to re-deliver the land to him. The Panchayat was convened but all the efforts resulted in vain. Ultimately, a suit for possession and partition relating to the land in dispute was filed by Arjun Singh in the Court of the Sub-Divisional Officer, Sri Karanpur, which was transferred to the Court of the Collector, Sri Ganganagar, after two years, which resulted in favour of Arjun Singh. On 11-6-1979, in the morning, PW 8 Balveer Singh, along with his father Arjun Singh, went to the field bearing Kila Numbers 15, 16, 19 and 23 and cultivated the land. In the evening, also, at about 4.30 p.m., they again went to the field and started cutting the weeds. In the evening, at about 6.00 p.m., Dilip Singh, armed with a gun came on a tractor along with his sons Baldeo Singh and Makkan Singh. Baldeo Singh was driving the tractor while Makkhan Singh was having a Kassiya in his hand. They started cultivating the land of Kila Number 16. Dilip Singh and Makkhan Singh were following the tractor. PW 8 Balveer Singh and Arjun Singh, both, tried to prevent them from cultivating the land and requested them not to cultivate the land as the land belongs to them and, therefore, they would cultivate the land and would not permit them to cultivate the land. Thereafter Dilip Singh, in order to kill Balveer Singh, followed him. Balveer Singh took the shelter behind the tractor and thereafter Dilip Singh fired the gun towards Arjun Singh, which shot hit on his stomach and after receiving the fire-arm injury, Arjun Singh fell down and died instantaneously. Thereafter Balveer Singh caught hold of Dilip Singh and felled him down on the ground and on this Baldeo Singh came down from the tractor and inflicted injury on Balveer Singh by a Barchha which was warded-off by Balveer Singh by catching the Barchha and Balveer Singh felled Baldeo Singh down on the ground. Thereafter Makkhan Singh came with a Kassiya and inflicted two injuries with it on the head of Balveer Singh and when the Kassiya came-out from the handle, he inflicted the injuries with the handle of Kassiya to Balveer Singh. This incident was witnessed by Bacchan Singh (PW 10) and Harnam Singh (PW 13), but they did not come to their rescue and Balveer Singh, after getting himself rescued, went to B.S.F. Check-Post and informed the Incharge of the Check-Post about the incident. The Superintendent of Police, Sri Ganganagar was informed on telephone about the incident by the Incharge of the B.S.F. Check-Post, who, in his turn, informed the Station House Officer, Police Station, Sri Karanpur to go on the spot. Thereafter the police came at the scene of the occurrence and recorded the statements of PW 8 Balveer Singh (Ex. P. 10) and on the basis of this statement Ex. P. 10, the First Information Report was registered. The prosecution, in support of its case, examined fourteen witnesses. PW 3 Sunder Singh, PW 8 Balveer Singh, PW 10 Bacchan Singh, PW12 Gurjeet Singh and PW 14 Harnam Singh are the five eye witnesses of the occurrence, PW 8 Balveer Singh went to the place of the incident with his father and, also received injuries in the incident while the remaining eye witnesses, namely, Sunder Singh, Bacchan Singh, Gurjeet Singh and Harnam Singh had seen the occurrence from the nearby fields where they were cultivating their fields. PW 3 Sunder Singh has not supported the prosecution case and was declared hostile. PW 1 Virendrapal was the Sub-Inspector, B.S.F., who, on the relevant date, was posted at Manziwala Check-Post of the B.S. F., where Balveer Singh went after the incident and narrated the incident to him. Virendrapal gave information to the Company Commander and the Company Commander directed him to depute one Guard near the deadbody. PW 2 Mohammed Ramjan was working as the Revenue Clerk in the Office of the Sub-Divisional Officer, Sri Karanpur, who stated that a Revenue Dispute under Sections 188 and 212 of the R.T. A. Act was pending between Arjun Singh and Labh Singh with respect to the land in dispute. PW 4 Dr. M. P. Agrawal was the Medical Officer Incharge, Primary Health Centrel, Sri Karanpur, who conducted the autopsy on the dead body of Arjun Singh and, also, examined the injuries found on the person of Balveer Singh, Dilip Singh and Baldeo Singh. Balveer Singh had six injuries while Dilip Singh had four injuries by blunt weapon and Baldeo Singh had two injuries - one abrasion and one incised wound. PW 5 Sri Nand Singh was the Patwari of the area, who has stated that the land falls in the Patwar Circle where he was posted and the land was jointly entered in the names of Labh Singh, Arjun Singh, Harnam Singh, Ishar Singh and Khan Singh (sons of Parsa Singh) and six Bighas sixteen Bishwas out of this land of Kila Numbers 15, 16, 17, 23, 24 and 25 and siscteen Biswas of Kila Number 20 are the land belonging to Arjun Singh, but the crop on these lands were that of Dilip Singh, which is clear from the Girdawari and the possession over the land was in the name of Labh Singh and on the relevant date the land remained in the possession of Labh Singh. PW 6 Rehmat Ali was the Constable, who took the sealed articles for F.S.L. Examination to the State Forensic Science Laboratory, Jaipur. PW 7 Baldeo Singh, F.C., was posted at Police Station, Sri Karanpur, on 11-6-1979, who went to the place of the incident along with the Investigating Officer and the Investigating Officer recorded the statements of Balveer Singh (PW 8), which was handed-over to this witness for registering the case at the Police Station, which he took and delivered at the Police Station, on the basis of which the FIR No. 52 was recorded. PW 9 Smt. Bhirawa Bai is the mother of PW 8 Balveer Singh and widow of deceased Arjun Singh, who has stated that in the morning, her husband and son went to the field to clear-out the weeds. In the evening, Dilip Singh, who was armed with a gun, Makkhan Singh, who was sitting on the driver's seat on the tractor and Baldeo Singh, who was armed with a Kassiya went on the tractor towards her field. At that time Dilip Singh had stated that both the father and the son be put to death. She went to the field in the evening and saw her husband dead in the field. PW 11 Mukhtiar Singh is a Motbir witness, in whose presence the articles were seized and various Memos were prepared by the Investigating Officer. PW 13 Rameshwar Singh, A. S. I., is the Investigating Officer, who conducted the investigation, arrested the accused and presented the challan. The learned Sessions Judge, after trial, came to the conclusion that the land in question was in the possession of Labh Singh and the complainant party committed criminal trespass over the land and in the right of private defence of property the accused persons inflicted injuries to Balveer Singh and Arjun Singh but they exceeded their right of private defence while causing death of Arjun Singh. He, therefore, acquitted all the accused of the offences under Sections 302/34 and 323/34 I.P.C. but convicted appellant Dilip Singh for the offence under Section 304, Part I, I.P.C. as, according to the learned Sessions Judge, he alone exceeded in exercise of his right of private defence of property. The accused-appellant was, also, convicted for the offence under Section 27 of the Indian Arms Act and was sentenced for both these offences, as stated at the very out-set. It is against this judgment dated 6-5-1980, convicting and sentencing the accused-appellant that he has preferred this appeal.

(3.) It is contended by the learned counsel for the appellant that the complainant-party was the aggressor and they came armed with Kassiya on the land in dispute. As per the prosecution case itself, in the morning, the members of the complainant party cultivated the land which was not in their cultivatory possession and again, in the evening, they trespassed over the land armed with Kassiya and inflicted injuries to the accused-persons and the accused-party inflicted injuries to the members of the complainant party in their right of private defence of person and property and never exceeded in their right of private defence of person and the property as only one fire was made by accused appellant Dilip Singh and there was no repetition of any fire shot and, therefore, the appellant deserves to be acquitted. Learned counsel for the appellant has, also submitted that the sentence, passed by the learned trial Court, are excessive. The appellant is aged about seventy-five years and, therefore, the substantive sentence should be reduced to the period of imprisonment already undergone by him during investigation and trial and no useful purpose will be served in again sending him to jail. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned trial Judge.