- (1.) FIVE accused Balkaran Singh, Gurcharan Singh, Udey Singh, Madha Singh and Hargovind Singh were tried by the learned Additional Sessions Judge, Bikener in connection with an occurrence which took place on August 28, 1973 at 9. 30 A M. near the culvert, on the outskirts of village Karad-wala. In the course of that occurrence, Jeeta Singh (since deceased) received fatal injuries and PW. 6 Balvinder Singh also sustained gun-shot wounds. The case of the defence is that in the same occurrence, appellant Balkaran Singh and his brother accused-appellant Gurcharan Singh also sustained injuries and they acted in exercise of the right of self-defence. The learned Additional Sessions Judge by his judgment dated May 15, 1975 held that the accused were aggressors and the first shot was fired by the accused He convicted the accused-appellants Balkaran Singh, Gurcharan Singh and Udey Singh under section 302/ 34 I. P. C. for causing the death of Jeeta Singh and sentenced each of them to life imprisonment. They were also convicted under section 26 of the Indian Arms Act and each of them was sentenced to two years' rigorous imprisonment. In Addition to that Gurcharan Singh was convicted under section 307. I. P. C. for the injuries caused to PW. 6 Balvinder Singh and was sentenced to three years' rigorous imprisonment. The remaining two accused Madha Singh and Hargovind Singh were acquitted of all the charges framed against them.
(2.) TERSELY speaking and shorn of unnecessary details, the prosecution story as revealed during the trial is: The appellants Balkaran Singh and Gurcharan Singh are real brothers. Their houses and fields are situated on the outskirts of village Karadwala near the culvert. Appellant Udey Singh is their uncle. PW. 6 Balvinder Singh is the brother-in-law of Jeeta Singh (deceased ). P. W. 20 Vichitra Singh is the fa*her of Jeeta Singh (deceased ). PW 27 Mst. Gurpal Kaur is the widow of Jeeta Singh (deceased ). There was a long standing quarrel between the families of Jeeta Singh (deceased) and Balkaran Singh and others, leading to various criminal cases between the parties. The occurrence relating to this case took place near the culvert on the out skirts of village Karadwala on the road leading from 'choraha', Sadul Sahar to Sangariya. On the right side of the road the field of Jeeta Singh (deceased) was situated and on the left side of the road near the culvert the field of accused-appellant Gurcharan Singh is situated vide site-plan Ex. P. 10. On the fateful day i. e. August 28, 1973, an aerial spraying party was working on the right side of the road. The labour was preparing the pesticide for spraying it by the helicopter on the crop, and the officer concerned P. W. 12 Shri P. K. Das, was engaged in putting lime for preparing a helipad. On August 27, 1973, P. W. 6 Balvinder Singh, resident of village Amar-garh, came to the house of his brother-in law to see his sister P. W. 27 Mst. Gurpal Kaur, wife of Jeeta Singh (deceased ). In the evening when Jeeta Singh was inside the house and P. W. 6 Balvinder Singh was sitting on the 'chowki', outside the house of Jeeta Singh, two persons came to enquire as to when Jeeta Singh was to go to Amargarh. In response to the enquiry, P. W. 6 Balvinder Singh informed them that Jeeta Singh was to go to Amargarh on the next day at 8 A. M. Jeeta Singh (deceased) and P. W. 6 Balvinder Singh started for Amargarh on August 28, 1973, at 9. 30 A. M on an International Tractor No. No. RJK 9496 When they reached near the 'choraha' of Sadul Sahar, they noticed that the accused party was sitting with various fire-arms on the left side of the road. Suspecting some trouble. Jeeta Singh (deceased) diverted his tractor towards his field but the aerial party which was preparing helipad, asked them not to pass by that way because a helicopter was to land shortly. There after, Jeeta Singh had to take a turn and took his tractor on the road leading to village Sangariya. At the relevant time the three appellants along with two other accused and D. W. 2 Mukhtiyar Singh were sitting in the field of appellant Gurcharan Singh, All the accused were armed with fire arms. The prosecution case is that when Jeeta Singh's tractor came on the road near the place where the accused persons were sitting the appellant Gurcharan Singh incited and exhorted them that the enemies had reached, and they should not be allowed to escape. The accused Udey Singh challenged Jeeta Singh in a tell-tale manner uttering the words ''tagda Hoja". At that stage Gurcharan Singh fired a shot which hit PW. 6 Balvinder Singh on his right hand, who cried in agony and jumped off the tractor, and rushed towards the 'gowar' crop and hid himself inside it to save his life. While running towards the field of 'gowar', he turned back his face towards the accused and saw all the fiive accused firing towards the tractor, Jeeta Singh sustained injuries at the hands of the accused and met an instantaneous death. After the accused had left the scene of occurrence, P. W. 6 Balvinder Singh came out of the place of his hiding, saw his brother-in-law lying dead in a 'khad', rushed to his sister's house and narrated the entire occurrence to his sister P. W. 27 Mst. Gurpal Kaur in the presence of her father-in law P. W. 20 Vichitra Singh, who went to the Police Station, Sadul Sahar, without any loss of time and lodged the first information report, which was reduced into writing by P. W. 7 Bhagwan Singh, A. S. I. The first information report has been marked as Ex. P. 11. The distance between the police station and the place of occurrence is two miles and a half. After registering the case under Ss. 302 and 307, IPC and S. 27 of the Indian Arms Act against the three appellants, PW. 7 Bhagwan Singh, ASI sent a telephonic message to PW. 27 Bhanwarlal, S. H. O. at Ganganagar. An entry to this effect has been made in the Roznamcha, a copy of which has been placed on the record of the case and has been marked Ex. P. 88. Thereafter, he reached the spot and deputed constables to guard the place of occurrence and went to the house of PW. 20 Vichitra Singh. The statement of PW. . 6 Balvinder Singh was recorded. His blood-stained clothes i. e. shirt and trousers, Arts. 1 and 2 respectively, were seized and sealed by him vide seizure memo Ex. P. 9, PW. 6 Balvinder Singh was then taken to the Government Hospital, Sadul Sahar where he was clinically examined by PW. 10 Dr. Jaswant Singh. He noticed two injuries caused by a fire-arm on the person of PW. 6 Balvinder Singh. The injury report is Ex. P. 46. On X-Ray, the injuries were found to be grievous. By the time ASI Bhagwan Singh again reached the spot, PW. 26 S. H. O. Sadul Sahar arrived on the spot and the investigation was resumed by him. Site-plan Ex. P. 10, index to the site-plan Ex. P 10-A, Panchnamas Ex. P. 12 and Ex. P. 13 were prepared. A 12 bore double barrel gun Art. 10 with one bandoleer Art. 11, containing 22 cartridges, were seized. On opening the gun, two empties, Arts. 12 and 13, in both the barrels of the gun, were found which were also seized and sealed vide Ex. P. 14 and Ex. P. 15. Blood stained earth, grass 'rodi' and sample of earth, taken from different places, were seized and sealed. One empty of N. P. bore, lying under the 'keekar' tree was also seized and sealed separately. The seizure memo is Ex. P. 17. One 'juti' was seized vide Ex. P. 18. The clothes of the deceased, i. e. shirt, 'chadder' and 'kachcha' were seized vide Ex. P. 20. A pair of 'chappals' of the deceased Jeeta Singh Art. 22 was also seized vide Ex. 21. The International Tractot No. RJK 9496, belonging to Jeeta Singh (deceased) was also seized vide Ex. P. 24. As there were marks of gun-shots on the left mud-guard of the tractor, the photograph of the tractor was taken and the left mud-guard was separately seized vide Ex. P. 26. The autopsy on the dead body of Jeeta Singh (deceased) was performed by PW. 10 Dr. Jaswant Singh on the spot where the dead body was lying. The doctor noticed eight external injuries and on dissection, he found multiple fractures of Parietal as as well as occipital bones. In the opinion of the doctor, the death was caused due to shock, haemorrhage and stopping of the vital functions due to injuries to the brain caused by the gun-shot. The post-mortem report of Jeeta Singh (deceased) is marked Ex. P. 47. Just after the occurrence, appellant Balkaran Singh was taken to the hospital at Abhore where PW. 9 Dr. P. K. mittal gave first aid to him. The wound was packed and dressed and the injured limb was immobilized and thereafter he was taken to Chandigarh. On the same day, at 5 45 pm. Balkaran Singh was admitted as indoor patient at Chandigarh Hospital. On 30-8-1973 at 9. 35 A. M. his wound was explored by Dr. B. S. Chima, who noticed six punctured wounds on the left outer thigh of appellant Balkaran Singh. The medico-legal report is Ex. P. 51. Balkaran Singh was arrested on August 29, 1973 vide Ex. P. 53. Accused Gurcharan Singh was also arrested along with his rifle and live cartridges on August 30, 1973, vide Ex. P. 27. Accused Hargovind Singh (acquitted by the trial court) was arrested on September 4, 1973 with a 12 bore double barrel gun and 41 live cartridges, vide Ex. P. 28. The rifles of Gurcharan Singh and Hargovind Singh along with cartridges and licence were seized. Accused Gurcharan Singh was clinically examined at Hanumangarh Junction Dispensary. His injury report is Ex P. 77 Later on, the investigation of the case was transferred to P. W. 28 Shri Kashi Prasad Shrivastava, Superintendent of police, Jhunjhunu, who made queries and sought information from the Medical Officers, Hanumangarh, Abhore and Chandigarh and also from the Ballastic Expert. He seized the gun recovered at the instance of the acquitted accused Madha Singh from the possession of Mukhtiyar Singh He also seized the gun of the appellant Udey Singh with its licence. The blood stained articles and the fire arms and the ammunitions were sent, in the course of investigation, for Expert's opinion. After completing the investigation, a charge sheet was presented against the four accused Balkaran Singh, Gurcharan Singh, Hargovind Singh and Madha Singh. As the aceused-appellant Udey Singh was found absconding, the proceedings under S. 512, Cr. P. C. were initiated against him. After commitment of the case, the appellant Udey Singh surrendered himself before the trial Court. Later on the case was transferred to the court of Additional Sessions Judge, Bikaner and as such all the five accused were tried by the learned Additional Sessions Judge, Bikaner under Secs. 302/149, 307, 149, 302/34, 307/34, 148 IPC and s. 27 of the Indian-Arms Act. The accused pleaded not guilty to the charge and the prosecution examined 28 witnesses in support of their case. The accused appellants in their statements recorded under S 313, Cr. P. C. admitted their presence on the scene of occurrence. The accused appellant Gurcbaran Singh raised the plea of self-defence to person and stated that the deceased Jeeta Singh was the aggressor. The first shot was fired by Jeeta Singh. as a result of which his (Gurcharan Singh's) brother appellant Balkaran Singh sustained severe gun-shot injury on bis left hip and thereafter, Jeeta Singh took an aim and fired a second shot. The pellets coming out of the fire by Jeeta Singh grazed his arm and passed away. At that stage he and the other accused Madha Singh lifted the rifles lying there and fired to wards Jeeta Singh. The firing at Jeeta Singh wa3 made by him to save his own life and catch hold of Jeeta Singh. He further stated that out of the three shots fired by him two were mis-fires. He admitted the presence of P. W. 6 Balvinder Singh at the time of occurrence, that after his firing the shot Balvinder Singh jumped from the tractor and went towards the field of 'gowar' and hid himself in the 'gowar'. Jeeta Singh also got down from his tractor with a gun in his hand and went into a ditch and took a lying position to fire at the accused. At that stage Madha Singh and Gurcharan Singh again fired towards Jeeta Singh, The accused goes on to state that as his brother Balkaran Singh was seriously injured and was groaning under pain he put him in the jeep and took him to the hospital at Abohre. Before leaving the scene of occurrence, he asked Udey Singh to go to the Police Station and lodge the first information report. After getting Balkaran Singh admitted at Chandigarh he surrendered himself to the police on August 30, 1973 with a report Ex. D. 3 Balkaran Singh and Udey Singh did not admit the firing of any shot but adopted the statement given by Gurcharan Singh. The accused in support of their defence, set up by them, examined D. W. 1 Prem Singh and D. W. 2 Mukhtiyar Singh. The suggestion of the prosecution that injuries sustained by the appellants Balkaran Singh and Gurcharan Singh were self-sustained and were the result of fabrication did not find favour with the learned Additional Sessions Judge. The learned Judge held that P. W. 6 Balvinder Singh was a partly reliable witness Gurcharan Singh was initially responsible for resorting to firing. Dhanna Singh or the Block Development Officer did not make any attempt to lodge the first information report on behalf of the accused regarding the occurrence and it was not believable that the report given on behalf of the accused was not deliberately recorded and was evaded by the Investigating Officer. Placing reliance on the statements of PW. 6 Balvinder Singh, P. W. 20 Vichitra Singh, P. W. 27 Gurpal Kaur and the first information report Ex. P. 11, and other evidence on record, the learned Judge convicted the three appellants and sentenced each of them as mentioned above. He, however, gave benefit of doubt to the two accused viz Madha Singh and Hargovind Singh as their names were not mentioned in the first information report amongst the assailants. Aggrieved with the aforesaid judgment, the convicted accused-appellants have challenged their conviction and sentence by this appeal. The appeal filed by the State against the acquittal of the two accused was dismissed in limine because it was barred by limitation.
(3.) IT cannot be disputed and has not rightly been disputed that Jeeta Singh (deceased) sustained gun shot wounds at the time and place mentioned by the prosecution and as a result of which he met an instantaneous death. IT has been proved beyond any shadow of doubt that P. W. 6 Balvinder Singh also sustained gun-shot injuries in the course of the same occurrence. In his ably marshalled arguments, Mr. Mukherjee appearing for the appellants presented the of the case accused with great clarily and fairness. We are grertly impressed with his eloquence and persuasiveness. He has urged that it is not clear what moved the accused to commit that dastardly act alleged by the prosecution, pending of cross cases do not explain the immediate cause of the incident. First information report was sent to the Magistrate on the next day which provides a legitimate basis to suspect that it was recorded after the Investigating Officer had returned to the Police Station after recording the statements of the witnesses. He further urged that the entire prosecution case was sought to be proved on the testimony of a solitary witness P. W. 6 Balvinder Singh, who is not a trustworthy witness and was an interested witness, who had no qualm of conscience in implicating falsely atleast two accused who have been acquitted by the trial court. There is considerable doubt about the truth of his testimony with regard to the initiation of the quarrel by the accused persons, and his seeing the five accused persons firing towards Jeeta Singh while he was running for his life in Gowar crop. His testimony stands contradicted by the testimony of the other witnesses as well as by circumstantial evidence. The prosecution has failed to examine the independent witnesses in this case, though their presence on the scene of occurrence has been admitted by the prosecution witnesses. The prosecution has further failed to explain the injuries sustained by the accused which have been proved to be not self sustained. The trial court has ignored the significance of the injuries found on the appellants Balkaran Singh and Gurcharan Singh. The failure of the prosecution to offer any explanation in that regard shows that the evidence of the prosecution witnesses relating to the incident is not true and further those injuries probablise the plea of self-defence taken by the appellants. Such a failure can led to two results: (i) the accused had inflicted the injuries on the members of the complainant party in exercise of the right of self-defence, and (ii) it makes the prosecution version of the occurrence doubtful, and the charge against the accused cannot be held to have been proved beyond reasonable doubt. The learned counsel urged that the two persons on the side of the accused were injured by gun fire and it was not possible for the appellants to weigh their blows in golden scales. Jeeta Singh was armed with a gun and the accused-party would have undoubtedly a reasonable apprehension that either death or grievous hurt may be caused to the appellants or one of them. This being the position, they were wholly justified in firing at Jeeta Singh. It is not the requirement of law that death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence in operation. The learned counsel urged that even if it is held that the accused persons failed to prove the right of private defence, the cardinal rule of administration of criminal justice is that the prosecution must prove the guilt of the accused beyond all reasonable doubt and that the accused need not prove any thing. He is entitled to stand on the presumption of innocence which the law imputed to him till it is displaced. The burden resting on the prosecution never shifts. The prosecution must establish beyond all reasonable doubt that no other alternative than the truth of the prosecution story will explain the facts. The prosecution has miserably failed to prove its case. This Court can not look to the plea of the accused and the evidence led by them to bolster up the case of the prosecution. The learned Government Advocate and Mr. Than Chand Mehta have supported the judgment of the trial court. ;