Brief facts which are necessary to dispose of this appealare recapitulated as under:-The dispute is between very close and intimate familymembers.Deceased Gurcharan Singh was the brother ofBakhtawar Singh and uncle of Darshan Singh.He was thefather of Gurdish Singh, PW7, the informant.The agriculturefields of both brothers, Gurcharan Singh and BakhtawarSingh were situated adjoining to each other.According to theprosecution, on 15.7.1991 at about 8 a.m. Gurdish Singh,PW7 and his father, Gurcharan Singh were irrigating theiraforesaid fields and were also mending its ridges and at thattime Gurdev Singh, PW8 and Ajit Singh were also presentthere.In the meantime, Darshan Singh and Bakhtawar Singhcame there from the side of their fields raising lalkaras andabused the complainant party.Darshan Singh, accused wasarmed with D.B.B.L. gun and his father Bakhtawar Singh was 3carrying a Gandasa and they were saying that they wouldteach a lesson to the complainant party for cutting the ridges.According to the further story of the prosecution,Bakhtawar Singh gave a Gandasa blow causing injuries on thechest of Gurcharan Singh.Gurcharan Singh was also havinga Gandasa with him and in order to save himself he alsocaused injury on the head of Bakhtawar Singh.Thereafter,Darshan Singh fired two shots from his licensed gun which hitGurcharan Singh in the chest and some of the pellets hitGurdish Singh PW7 on his left upper arm and Gurdev Singh,PW8 on his left thigh.Gurcharan Singh fell down and died atthe spot.Gurdish Singh and others retraced their steps inorder to save themselves.Both the accused in order to savethemselves ran towards their respective houses.GurdishSingh, PW7 left the dead body of Gurcharan Singh andproceeded to the police station to lodge a report.GurdevSingh PW8 also accompanied him.They met Om Prakash, ASIat about 9 a.m. at Barnala crossing where Gurdish Singh PW7gave his statement.It was then read over and explained tohim who signed the same admitting the contents thereof to becorrect.Om Prakash, ASI made his endorsement (Ex. N/1) 4and forwarded the statement to the police station, Rajkot andon the basis of which the case was registered against both theaccused.Om Prakash, ASI accompanied Gurdish Singh andGurdev Singh to the place of occurrence.He prepared inquestreport in respect of the dead body of Gurcharan Singh andthen sent the dead body for post-mortem examination throughConstable Milkha Singh and Head Constable Pargat Singh.Om Prakash, ASI lifted blood stained earth from the placewhere dead body of Gurcharan Singh was lying and took thesame into possession after preparing the recovery memo.Onegandasa and an empty cartridge of 12 bore were found lyingnear the dead body.The gandasa and the empty cartridgewere also taken into possession.The Investigating Officerprepared visual site plan of the place of occurrence withmarginal notes.The factum of the incident has not been denied bythe accused and they claimed right of private defence.According to the prosecution, the motive of the crime wasdispute regarding partition of land between both brothersBakhtawar Singh and Gurcharan Singh.One year prior to thepresent incident, the village Panchayat had got the disputecompromised by a written agreement.There was a commonwell situated in the adjoining land.As a result of thecompromise, the well along with a small piece of land attachedto it was given to Gurcharan Singh and the land of commonpathway leading to the well was given to the accused party.The compromise was not accepted by the accused party andthey wanted repartition of the land attached to the well.Dalveer Bhandari, J.Both Darshan Singh and Bakhtawar Singh wereacquitted by the Sessions Court, Ludhiana.The said judgmentof acquittal was set aside by the High Court of Punjab &Haryana at Chandigarh.3. Darshan Singh and Bakhtawar Singh filed appeal againstthe said judgment before this court.During the pendency ofthis appeal, Bakhtawar Singh died and consequently theappeal filed by him abated.Gurdish Singh and Gurdev Singh's injurystatements were also prepared and sent for medico legalexamination.Dr. Mukesh Gupta PW4 conducted post-mortemexamination on the dead body of Gurcharan Singh on 515.7.1991 at 4.30 p.m. On the same day at 5.50 p.m. Dr.Gupta also conducted medico legal examination of GurdevSingh and found one abrasion on his left thigh.Dr. Guptafound a superficial abrasion on Gurdish Singh on his elbow.Thisgrievance led to this unfortunate incident.The prosecution examined 11 witnesses.Dr. MukeshGupta, PW4 who conducted the post-mortem examinationfound the following injuries on the dead body of GurcharanSingh:-There were 14 wounds in an area of 20 cm x 18 cm on left side of the chest above the nipple.One of the wounds which was above the nipple was having inverted margins.A wad was recovered from this wound.This wound was 1 cm x 1 cm.The 9 wounds which measured 0.75 cm x 0.75 cm which were on the chest and shoulder also had inverted margins.Out of these wounds 6 were found to entering chest cavity and 6 pellets were recovered from the chest cavity.The remaining 3 wounds were having everted margins.These were near the axilla and each wound measured 1 cm x 1 cm.One of the 14 wounds which measured 0.75 cm x 1.5 cm was having inverted margins.It was skin deep and was on the shoulder, upper part of humerous and clavicle bones were found to be fractured.4th and 5th rib of the left side of the chest were also found to be fractured.There were 7 wounds in an area of 20 cm x 8 cm on the upper part of the chest on its right side above the nipple.Out of these wounds 3 wounds measuring 0.75 cm x 1 cm each was having inverted margins, these were skin deep.2 wounds were having everted margins having a dimension of 1 x 1 cm each near the axilla.A pellet was recovered from near the axilla.The remaining 2 wounds were near the top of right shoulder measuring 0.75 x 1.5 cm each with inverted margins.These were skin deep.An incised wound 8 cm x 0.5 cm skin deep on the left side of chest 3 cm above the nipple.It was horizontally placed."Dr. Mukesh Gupta found following injury on the personof Gurdev Singh:-"An abrasion measuring 1 cm x 0.5 cm on the front and inner side of left thigh.It was a superficial abrasion reddish in colour, over the junction of upper 1/3rd and lower 2/3rd of the thigh.There was damage to the pajama corresponding to the injury."According to the doctor, the injury was simple in natureand was caused within 24 hours.Doctor also found injury onGurdish Singh to be superficial.The same reads as under:-"A very superficial abrasion 1 cm x 0.5 cm on the upper side of left upper arm 12 cm above the elbow.It was reddish in colour."It may be relevant to mention that Dr. M.S. Gill, PW5,who conducted the medical examination of Bakhtawar Singhfound the following injuries on his person:-An incised wound 7 cm x 0.5 cm on the parietal region of the right side of head.It was placed anterior posteriorly.The wound was bone deep and 4 cm above the right pinna.Clotted blood was present."According to doctor, this injury was caused by sharp-edged weapons.Both Gurdish Singh, PW7 and Gurdev Singh, PW8 arethe eye-witnesses who gave detailed description of theoccurrence.After examining the prosecution evidence, thefollowing statements of Darshan Singh and Bakhtawar Singhwere recorded under section 313 Cr.P.C.. The relevant portionof the statement of Darshan Singh reads as under:-"I am innocent.In fact the complainant party had gone back from the agreement got effected by the Panchayat one year prior to the occurrence.In accordance with the said compromise we had ploughed the land which was earlier under common pathway.One day prior to the occurrence we had irrigated that portion of the land.On the day of occurrence when we went to the fields, Gurcharan Singh (deceased) along with 3-4 outsiders came to our field and remarked that we would be taught a lesson for irrigating the land.Immediately thereafter Gurcharan Singh gave a gandasa blow hitting my father Bakhtawar Singh on the head as a result of which he fell down.I felt that my father had been killed.Gurcharan Singh then advanced towards me holding the gandasa.I apprehended that I too would be killed and I then pulled the trigger of my gun.Gurcharan Singh fell to the ground and his companions took to their heels.I then took Bakhtawar Singh in injured condition to Govt. hospital, Sudhar.Police came to the hospital at about 5 p.m. We were kept under guard and brought to the police station on the next day after getting my father discharged.We have been falsely implicated in this case.Bakhtawar Singh (accused) pleaded as under:-"I am innocent.It was the complainant party who had resiled from the compromise got effected by Panchayat about a year before the occurrence.We had ploughed the land which had fallen to our share and one day prior to the occurrence we had irrigated the same.On the day of occurrence when we went to the fields Gurcharan Singh (deceased) along with 3-4 outsiders came to our field and remarked that we would be taught a lesson for irrigating the land.Immediately thereafter Gurcharan Singh gave a gandasa blow on my head as a result of which I fell down.Gurcharan Singh then advanced towards Darshan Singh holding his gandasa whereupon Darshan Singh fired a shot from his gun.I was taken to Government hospital, Sudhar by Darshan Singh.Police came there on the same day at about 5 p.m. and took us to the police station after getting me discharged.I have been falsely involved in this case."According to the versions of the accused Darshan Singhand Bakhtawar Singh, Gurcharan first gave Gandasa blowhitting Bakhtawar Singh on the head and the injury caused onBakhtawar Singh was an incised wound of 7 cm x 0.5 cm.onthe parietal region of the right side of head.The wound wasbone deep and 4 cm above the right pinna and clotted bloodwas present and after receiving these injuries in order to savehimself, Darshan Singh fired at Gurcharan Singh and as aresult of which he died.According to the accused, the entireact is covered by the right of private defence.According to theprosecution, Bakhtawar Singh gave first injury on the chest of 10Gurcharan Singh whereas according to the defence the firstinjury was given by Gurcharan Singh to Bakhtawar Singh.The appellant Darshan Singh fired only after the seriousincised wound by a Gandasa was inflicted on his fatherBakhtawar Singh and at that time in order to save his life hefired 2 shots which hit the deceased Gurcharan Singh leadingto his death.The point for determination is the place where theunfortunate incident had taken place.According to BhupinderSingh Patwari, PW3, point `A' in site plan Ex.According to Bhupinder SinghPatwari, Point `E' is in Khasra No.10 from where DarshanSingh had allegedly fired at Gurcharan Singh.According tothe site plan prepared by Bhupinder Singh Patwari, Point `F' isthe place where the dispute took place with Bakhtawar Singh.According to the Patwari, this point `F' is in Khasra No.10 at a 11distance of 5 karms which is equivalent to 27.5 feet from theaforesaid pathway and point `A' is at a distance of 7 karmsfrom point `F'.Thus, from this evidence it is evident that theoccurrence took place inside Khasra No.10 which was inpossession of Bakhtawar Singh accused.Gurcharan Singhcovered a distance of about 7 karms which is equivalent to37.5 feet.The trial court came to the conclusion that the presenceof Gurdev Singh and Gurdish Singh at the time of allegedoccurrence is highly doubtful.Dr. Mukesh Gupta also statedthat injuries on the person of Gurdev Singh and GurdishSingh could be caused by friendly hands and can be selfsuffered.He further stated in the cross examination thatduration of the injuries was less than 6 hours.As per theprosecution case, the injuries were allegedly received by themat about 8 a.m. No pellet was recovered from the injuries ofthese witnesses namely, Gurdev Singh and Gurdish Singh.According to the trial court, the possibility of these injuries ontheir person having been fabricated at a later stage cannot beruled out.The trial court also held that there was no mentionof the injuries received by Gurdish Singh and Gurdev Singh in 12the inquest report whereas this fact finds mention in the firstinformation report.According to the prosecution, GurdishSingh suffered pellet injury on the left upper arm whereas,Gurdev Singh was hit on his left thigh.If it was so, therewould have been mention of this fact in the inquest report orthe investigating officer must have prepared their injurystatement, but neither any such injury statement wasprepared at the spot nor their medical-examination wascarried out.Om Prakash, ASI, in his cross-examination hasadmitted that he came to know about the injuries of GurdishSingh and Gurdev Singh only when they gave theirsupplementary statements at the bus stand.According to thefindings of the trial court, their injury statement was preparedat the spot and they were medically examined by Dr. MukeshGupta.Thus, according to the trial court the injuries werefabricated with connivance with the investigating officer just inorder to make Gurdish Singh and Gurdev Singh stampwitnesses.The trial court after discussing the entire evidence cameto the conclusion that two counter versions of the case havebeen presented and, in the view of the trial court, the defence 13version is more probable and nearer to the truth for thefollowing reasons:(i) The delay in lodging the FIR impells the court to scrutinize the evidence of witnesses regarding the actual occurrence with greater care and caution.(ii) The crucial point to be decided in this case was that who was the aggressor or which of the parties can have the motive to open the attack?The trial court held that "if the accused were already cultivating the land as per compromise, then it does not appeal to reason as to why they would feel aggrieved.On the other hand there was strong motive for Gurcharan Singh to assault the accused person as he has resiled from the compromise."(iii) The next crucial point according to the trial court was as to where the incident took place? According to the trial court the incident had taken place in the field of the accused.Gupta stated that the injuries on Gurdev Singh and Gurdish Singh could be caused by friendly hands and can be self suffered.(v) No pellet was recovered from the injuries of the prosecution witnesses namely, Gurdev Singh and Gurdish Singh.The possibility of the injuries on their persons having been fabricated at a later stage cannot be ruled out.The trial court found that, in the instant case, it appeared that the inquest report was prepared first and the FIR was prepared at some later stage because there was no mention about the injuries of Gurdev Singh and Gurdish Singh in the inquest report, whereas this fact is mentioned in the FIR.According to the prosecution case, Gurdish Singh suffered a pellet injury on his left upper arm whereas, Gurdev Singh was hit on his left thigh.This was so mentioned in the FIR.If it was so, this fact would have been mentioned in the inquest report or the Investigating Officer must have prepared their injury statement, but no such injury statement was prepared at the spot nor their medical examination was got done.In the cross-examination, Om Prakash ASI had admitted that he came to know about the injuries of Gurdish Singh and Gurdev Singh only when they gave their supplementary statements at the bus stand.The finding of the trial court is that the injuries were fabricated with the connivance of the Investigating Officer just in order to make Gurdish Singh and Gurdev Singh stamp witnesses.(vi) Gurdish Singh P.W.7 had admitted that his father Gurcharan Singh was face to face when Bakhtawar Singh gave Gandasa blow from above to downward vertically on the chest of Gurcharan Singh.However, Dr. Mukesh Gupta contradicted him and stated that injury no.3 on the person of Gurcharan Singh was skin deep and was horizontally placed and was possible by a fall on a sharp edged weapon.From this it can safely be concluded that it was not Bakhtawar Singh who gave Gandasa blow to Gurcharan Singh in the manner as suggested by the prosecution.It is most likely that Gurcharan Singh suffered injury no. 3 by a fall on his own Gandasa and this was the reason that the wound was only skin deep.The story put forth by the prosecution that 16 Gurcharan Singh was cutting weeds of ridges with Gandasa is not believable.Gurdish Singh stated that he was collecting the cut weeds.They were not having any Kassi or Khurpa and it was not possible to cut weeds of ridges with Gandasa.(vii) The trial court came to a clear conclusion that Bakhtawar Singh was injured at point `F' as shown in the site plan at the hands of Gurcharan Singh (deceased).Gurcharan Singh after causing that injury forwarded towards Darshan Singh armed with Gandasa and at that point Darshan Singh had no option but to open fire and Gurcharan Singh died of that firearm injury.

Relevant sections: Section 313 in The Indian Penal Code