L. S. MEHTA, J. -
(1.) APPELLANT Baltejsingh has been convicted by learned Sessions Judge, Ganganagar, under sec. 304 (Part II), IPC and sentenced to five years rigorous imprisonment. The other appellant Tek Singh has been convicted under sec. 324, IPC and sentenced to 1-1/2 years rigorous imprisonment.
(2.) ORIGINALLY four accused Baltejsingh, Tek Singh and Darshansingh were tried for the offence of murder of Malkiat Singh. Jeet Singh and Darshan Singh were acquitted of the charge under secs. 302/34, IPC, by the Sessions Judge. The State Government has filed an appeal against the acquittal of Darshansingh as also for not convicting Baltejsingh under sec. 302 and Teksingh under sec. 302/34 IPC.
The parties are admittedly the descendants of common ancestor Uttam Singh. The following genealogical table will show the relationship between the parties - Uttamsingh Harbans Singh Kehar Singh Atma Singh Thakur Singh Hari Singh Dhanna Singh Kaur Singh (P. W. 5) Malkiatsingh (Deceased) Jeet Singh (Accused) Baltej Singh (Accused) Tek Singh (Accused) Balbir Singh Sarjeet Singh Darshan Singh (Accused) The occurrence took place in Killa No. 23 Chak Javalsinghwalan, as shown in the site plan Ex. P-2. The fields of the two parties i. e. of Malkiat Singh, and Kaur Singh and all the accused are near each other.
The murder of Malkiat Singh, as frequently happens, was the result of a petty quarrel over the diversion of water by the accused towards his field. It is hardly necessary to recount in detail what had happened. Suffice it to say that according to the prosecution story Malkiat Singh and Kaur Singh started watering their field at about 8. 30 in the night of 13-12-62. The accused Baltejsingh is alleged to have diverted a portion of water towards his field. Thereupon Malkiat Singh and Kaur Singh proceeded to the field of the accused and there was wordy quarrel. Malkiat Singh struck his 'kassi' on the nullah to stop the flow of water in the accused's field, and to divert the same to the water channel connecting his field. Soon after Baltej Singh inflicted an injury to Malkiat Singh with his 'sela', which struck on the left side near the neck in the region of clavicle. Malkiatsingh fell down. Teksingh then gave one 'gandasi' blow on the right thigh of Malkiat Singh. Baltejsingh took out his 'sela' from the neck of Malkiat Singh and again inflicted two more blows with it on his left thigh. Malkiatsingh died on the spot instantaneously. Kaur Singh, brother of Malkiat Singh, wanted to intervene, but he was prevented from doing so by Darshan Singh. Darshansingh, while running behind Kaursingh, got himself entangled in his 'chaddar', as a result of which he fell down. He left his shoe Ex. 10 and his 'safa' Ex. 7, on the spot. Meanwhile Jeetsingh, who was carrying the gun, aimed his weapon towards Malkiat Singh with a view to kill him, but he was stopped from doing so through the intervention of Dhanna Singh (PW 1 ). Later on, all the four accused had run away from the scene of the incident. Baltejsingh left one shoe Ex. 14, as also his 'kassi' Ex. 8. Kassi Ex. 9 belonging to Teksingh was also recovered on the spot. All these articles were taken possession of by the police in the course of investigation. It is also alleged that Harisingh (P. W. 4) and some other persons came to the place of the occurrence soon after the incident and they saw the accused going away towards the north along with their weapons. Harisingh found Malkiatsingh lying dead there. Later on Dhanna Singh went to the Police Station, Hanuman-garh, and lodged first information report Ex. P. l, at about 1 a. m. , on 14-10-62. Dr. Om Prakash, Medical Officer, I/c Government Dispensary, Hanumangarh, conducted post-mortem examination of the dead body of Malkiat Singh and the following injuries were found thereon - External Injuries - 1. Punctured wound 1-1/2" x 3/8" thorax cavity (torn) margins sharply cut, entero-lateral aspect of neck, lip side, lower portion, going downwards and little backwards. 2. Incised wound 1-3/4" x 3/4" left thigh, anteromedinal aspect, upper portion - Direction down cut. 3. Incised wound, vertical 2-1/2" x 1" x 1/2" front of right thigh, upper portion. 4. Horizontal incised wound 3" x 1-1/2"x 1" front of right thigh, upper portion. Internal Injuries - 1. Punctured wound 5/8" x 1/3" x 1" on the outer aspect of apex of left lung. This injury is corresponding to external injury No. 1. The left pleural cavity containing about 15 ozs. of bloody fluid and blood clots, also. According to the doctor, Malkiat Singh died of shock and haemorrhage from the injury on the left lung, which was sufficient in the ordinary course of nature to cause death. Learned Sessions Judge, Ganganagar, in his judgment exhaustively discussed the evidence. He found it difficult to accept any part of the testimony of the eye witnesses to connect Jeet Singh and Dasthan Singh with the crime. He however, found ample material on the record to convict the accused Baltej Singh and Tek Singh, as stated above.
In the appeal filed by the two accused learned counsel, Shri C. L. Agar-wal, drew our attention to the evidence of 3 witnesses viz. Dhanna Singh (PW 1), Nikuram (PW 3) and Kaur Singh (PW 5 and contended that their evidence was unsatisfactory. He submitted that this was not a fit case for the conviction of the two accused. Learned Deputy Government Advocate on the other hand urged that the prosecution evidence fully established the guilt against the two appellants. He further urged that the trial court committed an error in not convicting the accused Baltej Singh under sec. 302, IPC and in not applying sec. 34, IPC to the case of Tek Singh. Government counsel also challenged the acquittal of Darshan Singh. We shall now deal with the above aspects of the arguments.
Malkiat Singh received four injuries as stated above. Injury No. 1 was grievous and was a punctured wound near the clavicle. The rest of the injuries Nos. 2 and 3 were on the left thigh and injury No. 4 was on the right thigh of the deceased. These were simple in nature. There is nothing inherently improbable in the direction of the injuries which can be said to controvert flatly the evidence of the eye witnesses, Dhanna Singh (PW 1) and Kaur Singh (PW 5 ). The injuries were such as could be inflicted on the person of the deceased and no inference against the testimony of the eye witnesses can be drawn. It must be remembered that Malkiat Singh was in possession of Kassi Ex. 1, which was found on the spot. Baltejsingh left behind one shoe Ex. 1 and a Kassi Ex. 8 bearing his name engraved on it. Kassi Ex. 9 was also left on the spot by Teksingh having his name engraved on it. Darshan Singh also left behind a pair of shoes (Ex. 10) and a 'safa' (Ex. 7 ). All these articles have been identified by PW 1 Dhanna Singh and PW 5 Kaur Singh. It is a pity that clothes on the body of Malkiat Singh were not sent to the Chemical Examiner and the Serologist, but we do not think that an adverse inference can be drawn from this circumstance. The evidence of the eye witnesses Dhanna Singh (PW 1) and Kaur Singh (PW 5) is consistent. The incident took place near about the field of the accused and the articles were left on the spot by the accused make sure that they were present on the spot. The first information report was lodged almost at once and the names of the assailants and the eye witnesses were mentioned in it. We have had the evidence of the eye witnesses read to us and after careful consideration we are satisfied that this is consistent, convincing and credible. Learned counsel for the accused has argued that the 2 eye witnesses are closely related to the deceased and, therefore, their evidence should not be relied upon. In this connection suffice it to say that the two witnesses are also near relations of the accused. It may be made clear that there is hardly any possibility in small village communities, where some kind of relationship cannot be established between witnesses and the victim and where some petty quarrel might not have taken place in the past between some of the witnesses and the accused. To decide a case on the basis of such circumstances unless they are of significant importance is to place reliance on unimportant circumstances appearing at the expense of direct evidence. In the present case, the evidence of the eye-witnesses as we have already observed above is clear and cogent. The minor discrepancies in the statements of the two witnesses are not of any consequence. The occurrence took place on October 13, 1962. Thereafter the accused appellants ran away and they could be arrested on October 22, 1962. We, therefore, accept the findings of the trial court duly supported by the evidence of sufficient probative force. The appeal filed by the two accused Baltej Singh and Tek Singh has no substance.
We now take up the arguments advanced by learned Deputy Government Advocate. The first point which he stressed was that the trial court was wrong in not applying section 302 and in applying sec. 304, Part II, IPC to Baltejsingh. It has not been established by the prosecution that Malkiat Singh and Kaur Singh had been watering their field prior to the occurrence, The only evidence worth the name in this connection is that of Nikuram (PW 3 ). This witness has stated even in his examination-in-chief that he started watering his field at 12 in the noon and continued to do so next day upto 9 a. m. , and thereafter he gave the turn of watering to Kaur Singh. Later on he changed his version and deposed that Kaursingh and Malkiat Singh started watering their field at 8. 30 in the night. The witness has also said that his journey expenses had been paid by Thakursingh for the time being. There is also a material omission of the exact time, when Malkiat Singh and Kaur Singh started irrigating their field, in his police statement Ex. D-5. The witness is, therefore, not worthy of credence,
The accused had taken the plea that they were in fact watering their field at the time of the incident. It is true that under sec. 105, Evidence Act, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code is upon the accused. Here the accused have pleaded that Malkiat Singh and Kaur Singh did not start irrigating their land upto the time of the occurrence. In the face of such a prima facie excuse it was for the prosecution to rebut this fact, and not for the accused to establish innocence. The prosecution has, however, failed to prove beyond reasonable doubt that the deceased had already started watering his field prior to the incident. From the circumstances of the case it can be inferred that water at the time of the occurrence was in fact flowing in the land of Baltej Singh, and his brothers.
A person in possession of a particular property is protected by sec. 103. Under the restrictions mentioned in Sec. 99, I. P. C. if he causes death in safeguarding his property when there is reason to apprehend that the person whose death has been caused was about to commit one of the offences mentioned therein. It is not the law that an original owner in peaceful possession must run away, if there is an actual invasion of his right. He is, on the other hand, entitled to defend himself and his property by force, if he sees an actual invasion of his right, which invasion amounts to an offence under the Penal Code.
In the instant case when Malkiat Singh trespassed into the land of Baltej Singh and made an attempt to divert water of his field, Baltej Singh had a right to prevent the deceased from doing so in exercise of the right of private defence of his property. But he was not entitled to cause death of Malkiat Singh as it was not proved that Baltej Singh was committing any of the offences mentioned in sec. 99, Indian Penal Code. It may be that in the circumstances of the case he may be taken to have acted without pre-meditation without any intention of doing more harm than was necessary for the purpose of the defence of his right. The trial court has rightly given benefit of exception II to sec. 300 of the Indian Penal Code to Baltej Singh. He has, therefore, exceeded his right of private defence. Under the circumstances of the case the proper section under which the accused ought to have been convicted was sec. 304 (Part I) and not sec. 302 or sec. 304 (Part II) of the Indian Penal Code.
Learned counsel for the accused cited Sadhu vs. Emperor (1) in support of his contention that the case of Baltej Singh at the most is covered by sec. 304 (Part II) and not by sec. 304 (Part I) IPC. In that case the choice of weapon was fortuitous and was not one which indicated any real intention to kill or to cause serious injury. The accused, a young man, had seen his father grappling with another man and to that extent there was provocation to him to commit the act that he did. These extenuating circumstances, which do not exist in the present case, formed the basis for punishing the accused under part II of section 304, Penal Code. Another case cited by the counsel is Re Kudumla vs. Maha Nandi Reddi (2 ). It has been observed in that case that recourse cannot be had directly to the first part of sec. 304 unless it is a prima facie case of a murder to which some exception applies, and that the injury caused was not of a higher degree of likelihood, covered by the expression "sufficient in the ordinary course of nature to cause death" but was of a lower degree of likelihood. In the present case when the accused inflicted fatal blow on the vital part of the body of the deceased the only irresistible inference would be that the accused knew well that he would be causing such bodily injury as was likely to cause death and therefore this authority is of no assistance to the accused. Another case referred to by the learned counsel for the accused is Gokaran Singh vs. Emperor (3 ). In that case the accused was caught red handed in the act of stealing gram and they had taken to their heels. They were obstructed by Sheoraj and Kishori and what they did was not intended to seriously injure, much less to kill the deceased Kishori. The court held that it was manifest that there was no intention to kill and sentenced the accused under sec. 304, Part II, IPC. The facts of the Allahabad case are manifestly distinguishable from those of the present case. In the Allahabad case when the accused was stealing gram from a field belonging to Sheoraj, Sheoraj raised an alarm. Thereafter Sheoraj and Kishori gave a chase and after a short chase, accused Gokaran Singh hit Kishori with a spear. Under that circumstance, the only inference that could be drawn was that Gokaransingh committed the crime not with the intention to seriously injure Kishori but only to facilitate the theft. Learned counsel for the accused also drew the attention of the Court to Farida vs. Emperor (4 ). In that case abusive language was exchanged between the deceased and the accused and the accused administered a blow in a sudden quarrel without any deliberate intention and without the appellant having taken undue advantage or having acted in a cruel or unusual manner. As soon as the deceased fell down the convict refrained from inflicting another injury upon him which is not the case here,, and, therefore, the Lahore Authority convicting the accused under sec. 304, Part I Indian Penal Code, cannot come to the rescue of the accused-appellant.
The controversy now no to more subsists in view of the decision reported in Inder Singh vs. State of Pepsu (5), wherein it was observed that if the accused knew that he would be causing such bodily injury as was likely to cause death, the offence committed by him would fall under sec. 304, Parti, Indian Penal Code. The reason is that obviously the accused must be deemed to have intended to cause such an injury. That being the position, the trial court fell into error in applying sec. 304 Part II and and not Part I of the Indian Penal Code to the offence committed by Baltej Singh.
I now switch on to the applicability of sec. 34, Indian Penal Code. It is urged by learned Deputy Government Advocate that Tek Singh inflicted 'kassi' blow on the right thigh of the deceased after the latter fell down as a result of the 'sela' injury, which had already been dealt with by Baltej Singh on the neck near the clavicle. According to learned Deputy Government Advocate the only legitimate inference that would be drawn from this act of Tek Singh is that there was a common intention to put an end to the life of Malkiat Singh. It is well established that a common intention pre-supposes pre-concert. It requires a pre-arranged plan because before an) accused person can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. What is necessary is that there must be direct proof of the prior concert, or proof of circumstances which necessarily lead to that inference. To put the matter in different words, in cases where there is no premeditation, some kind of pre-concert or prior action or previous design have to be established. In support of this pro-postion reliance is placed on Anda vs. State of Rajasthan (6), wherein it has been observed that for the applicability of sec. 34, I. P. C. one has to look for a common intention that is to say some prior concert and what that common intention is where the occurrence is sudden and it engages the attention for the action of a person or persons present on the spot, it would be a difficult task to discover whether they had a common intention. The mere fact that some persons took part in the crime, in the absence of a common intention, is not sufficient to convict them of that crime.
(3.) IN this case Tek Singh inflicted a simple hurt with a sharp edged weapon to Malkiat Singh. But there is no evidence worth the name that Tek Singh had a common intention of doing a particular criminal act and in furtherance of that common intention he joined hands with Baltej Singh. Sec. 38, I. P. C. provides that where several persons are engaged in the commission of a criminal act, they may be guilty of different offences by means of that act. IN the circumstances of the case and in the absence of any evidence regarding prior concert or pre-arranged plan, each person has to be found guilty of the particular offence committed by him. Thus, the argument regarding the applicability of sec. 34, I. P. C, to the case of accused Tek Singh, is devoid of substance.
As for the offence alleged to have been committed by the accused Darshansingh, it may be pointed out that the two eye witnesses Dhanna Singh (P. W. 1) and Kaursingh (P. W. 5) have stated that he did not cause any injury to any person, much less to the deceased. The only allegation against him is that he chased Kaursingh, when he was running away. There is also no evidence worth the name to suggest that there was any prior concert or any pre-arranged plan between the other accused persons and Darshan Singh before the actual incident. Therefore, Darshan Singh cannot be vicariously convicted for the criminal act of others. In that view of the matter the trial court was right in acquitting the accused Darshan Singh of the offence under sec. 302 read with sec. 34 of the Indian Penal Code.
In the result, we allow the appeal of the State Government to this extent that the accused Baltejsingh's conviction under section 304, Part II, I. P. C, will be converted to that under sec. 304, Part I, I. P. C. and the sentence of five years' rigorous imprisonment is enhanced to one of seven years' rigorous imprisonment. The conviction and sentence of 1-1/2 years rigorous imprisonment, awarded to the accused Teksingh under sec. 324, I. P. C. , by the trial court, as also the acquittal of the accused Darshansingh under section 302/34, I. P. C, are maintained. The appeal filed by the accused stands dismissed. .;