Crl. Appeal No.99-DB of 1999 -1- ... IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. …. Crl. Appeal No.99-DB of 1999 Decided on: 27th February, 2008. Santokh Singh. … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE S. D. ANAND Present:- Mrs. Baljit Mann, Advocate for the appellant. Mr. A.S. Jattana, Addl. Advocate General, Punjab for the respondent. … S.D. ANAND, J. Appellant Santokh Singh is in appeal against his conviction at the hands of the learned Trial Judge under Section 302 IPC . His wife Gurjit Kaur was tried along with him but she earned a verdict of acquittal. Though the factum of impugned occurrence is beyond the pale of controversy, in view of the defence offered by the appellant, a reference to the facts would enable better appreciation of controversy. Mukhtiar Singh son of Mangal Singh has three sons, namely, Gopal Singh, Joginder Singh and Santokh Singh, the last indicated being the youngest of the trio and presently appellant before this Court. He retired from the Army in the rank of a Major few years ago and is Amritsar based thereafter; while his two other brothers, namely, Gopal Singh and Joginder Singh reside in the village to look after their agricultural Crl. Appeal No.99-DB of 1999 -2- ... holding. Makhan Singh had given his agricultural holding to his three sons in equal shares, though they have a joint account inter-se. Initially, there indeed was some problem between them which was sorted out with the intervention of respectables of the village. Appellant Santokh Singh was given land near his tubewell. That land is situated towards the land owned by Gurdip Singh deceased. On 22.6.1996, Gurdial Singh first informant was proceeding towards his tubewell when he spotted the appellant ploughing the land under reference by a tractor which he had taken on hire from Ladi son of Gurmeet Singh. Gurdip Singh came over there and forbade appellant Santokh Singh from ploughing that land which he claimed to be his. In the light of that conversation, Ladi took away his tractor towards the village. It was followed by a scuffle between Santokh Singh appellant and Gurdip Singh. After they had been separated, Gurdip Singh came home, took his tractor to the land and started ploughing it. Gurdial Singh PW watched Gurdip Singh ploughing while standing on the track. Then, appellant Santokh Singh along with his wife Gurjit Kaur appeared on the scene and told Gurdip Singh to desist from ploughing that land. The appellant, in the meanwhile, took out his pistol and fired a shot at Gurdip Singh, while the latter was in the process of getting down from the tractor. The shot fired by the appellant felled Gurdip Singh on the ground. In the meantime, Satnam Singh, a brother of Gurdip Singh, came from the village and caught hold of the appellant from latter’s rear side. In the meantime, Gurdial Singh also raised a Raula. Satnam Singh, with a view to dis-able the appellant from firing another shot, twisted latter’s right arm. During the period the arm stood twisted towards his rear side, Crl. Appeal No.99-DB of 1999 -3- ... Santokh Singh kept on firing and one of the shots hit him on the right side of hip bone and the ribs. He, too, fell down upon the ground and handed over his pistol to Gurdial Singh. In order to ensure that there was no further blood shed, Gurdial Singh fired shots in the air in order to ensure that the revolver did not stay loaded. Thereafter, Gurdial Singh and Joginder Singh transported Gurdip Singh to Guru Nanak Dev Hospital, Amritsar, where the latter was initially hospitalized. While notifying the offence to the police on 23.6.1996, Gurdial Singh first informant handed over one 32 bore pistol (which had earlier been given to him by appellant Santokh Singh) and six empty cartridges of 32 bore to the police. Gurdip Singh succumbed to the injuries on 24.6.1996. The prosecution presentation is, thus, to the effect that it was the appellant who fired the fatal shot at Gurdip Singh, since deceased. The prosecution version was testified on oath at the trial by PW 1 HC Surain Singh, PW 2 Dr. Kulwant Singh, PW3 Dr. Gurmanjit Rai, PW 4 Gurdial Singh, PW5 Dr. Vijay Kumar Sethi, PW6 Joginder Singh, PW 7 Satnam Singh, PW 8 Jagjit Singh Patwari, PW 9 ASI Jagdev Singh, PW 10 Reserver Inspector Raghbir Singh, PW10A HC Baljinder Singh, PW11 C. Kashmir Singh , PW 12 ASI Santokh Singh, PW13 Constable Rajinder Kumar and PW14 Constable Dharam Singh. PW 1 HC Surain Singh, then posted at Police Station, Majitha, had taken the dead body of Gurdip Singh for post-mortem examination. After the post-mortem examination had been conducted, the Medical Officer handed over two parcels to him which he passed on to ASI Jagdev Singh. PW 2 Dr. Kulwant Singh, then a Post Graduate Student at Guru Nanak Dev Hospital, Amritsar, produced the original Crl. Appeal No.99-DB of 1999 -4- ... Bed Head Ticket of Gurdip Singh and proceeded to testify that on police application dated 23.6.1996 (Ex.PF), he declared (vide his endorsement Ex.PF/1 at 7.29 AM) that Gurdip Singh was unfit to make a statement. PW 3 Dr. Gurmanjit Rai, Lecturer, Forensic Medicines, Medical College, Amritsar had conducted post-mortem examination on the dead body of Gurdip Singh and found the following injuries on his person:- “ 1. A lacerated wound 1 xd 1 cm on front of the right side of the chest, 8 cms medial to nipple at 2.30P clock position. The margins were found inverted. Abrasion colar was present. 2. Hospital chest tube wound 4 cm in length with 4 stitches intact. 12 cms below axillary tip in the mid acillary line. 3. 4 cms long stitched wound present in right iliac region with three stitches intact, hospital drain was present in the wound. On dissection of injury No.1 anterior chest wall, right pleura, right lung, (middle lobe), right lobe of liver mesentery, small intestines and large intestines were found lacerated. A metallic bullet 1.5 cms long was recovered from the pelvic cavity. Petionotial cavity was having about 900 CC of hemragic fluid mixed with chymean facel matter. Right pleura cavity was having about 400 CC of fluid and clotted blood. Left lung was found pale on cut section.” He further opined that all the injuries were ante mortem in nature and that death had occurred due to shock and haemorrhage as a result of Crl. Appeal No.99-DB of 1999 -5- ... injury No.1 which was sufficient to cause death in the ordinary course of nature. PW 5 Dr. Vijay Kumar Sethi, then posted at Civil Hospital, Amritsar, had medically examined Gurdip Singh at Guru Nanak Dev Hospital on 23.6.1996 at about 7.39 AM and found the following injury on his person:- “ 1. A lacerated wound 1 x 1 cm on front of the chest on right side, 9 cms from right nipple. X-ray and operation notes were advised.” He further found that the patient was conscious and oriented. He had also opined on police request (Ex.PQ) that injury No.1 on the person of Gurdip Singh had been caused by a fire arm. After going through the Ultra sound report at the trial, he opined that the injury on the person of Gurdip Singh was dangerous to life. He had also medico legally examined Santokh Singh appellants on that day and had found the following injuries on his person:- “1. Two lacerated wounds 0.8 cm x 0.5 cm and 1 cm x 0.8 cm on back in lumber region, 8 cms, part. There was surrounding area of contusion, measuring 15 cms x 7 cms. X-ray and operation notes were revised. 2. He was complaining of pain on head. No external injury was seen.” On receipt of operation notes, injury No.1 was declared simple and fresh one, caused by a fire arm. He further found that the exit wound was posterior to the entry wound. PW4 Gurdial Singh had witnessed the impugned occurrence and he is the first informant. PW6 Joginder Singh reached the spot Crl. Appeal No.99-DB of 1999 -6- ... immediately after the impugned occurrence and saw Gurdip Singh lying upon the ground with a pellet injury on the right side of his chest. PW7 Satnam Singh had also witnessed the impugned occurrence and had tried to avert further blood shed by taking Santokh Singh appellant in to his grip and by twisting his right arm. It was in that posture that the appellant is averred by PW 7 Satnam Singh to have continued firing and hurt himself. PW 8 Jagjit Singh, Patwari, had prepared scaled site plan (Ex.PR) of the place of occurrence on 9.8.1996. It is also in his testimony that that the original Khasra Girdawari entries in respect of the land under reference were in the name of Makhan Singh (since 1991 till Kharif 1995). That the entries were changed to the name of Santokh Singh appellant in Rabi 1995 by Circle Kanungo Vaishno Dass, though there was no order on the basis whereof that change was made, was stated by him. It is also in his testimony that Vaishno Dass aforementioned was placed under suspension on the basis of an enquiry conducted by the then Assistant Collector II Grade concerned. PW 9 ASI Jagdev Singh had investigated this case. PW 10 Reserve Inspector Raghbir Singh had also partly investigated this case inasmuch as he had recorded statements under Section 161 Cr.PC of MHC Baljinder Singh, C. Dharam Pal, C. Kashmir Singh and Jagjit Singh Patwari. Further, it is he who had filed the report under Section 173 Cr.PC in this case on 4.8.1996. PW 10-A HC Baljinder Singh, PW 11 C. Kashmir Singh gave testimony in the form of affidavits Ex.PX and Ex.PY respectively. PW12 ASI Santokh Singh, then posted in Police Station, Majitha, had arrested appellant Santokh Singh in this case on 10.7.1996. PW 13 Constable Rajinder Kumar had delivered the special report to the Illaqa Crl. Appeal No.99-DB of 1999 -7- ... Magistrate. PW 14 Constable Dharam Singh had carried the sealed parcel containing one 32 bore revolver to the Forensic Science Laboratory, Chandigarh. The report, obtained by him from the Forensic Science Laboratory, was handed over to the MHC. Ex.PAA (report of the Chemical Examiner), Ex.PBB (report of the Serologist) and Ex.PCC (report of the Forensic Science Laboratory) were tendered into evidence. In the course of his statement under Section 313 Cr.PC, the appellant pleaded as under:- “ I am innocent. This case against me is totally false. Gurdip Singh deceased was of highly aggressive nature. His father also used to instigate him against me and my family members. He had got links with bad elements. I am heart patient and was discharged from the Army on medical grounds and thereafter I started cultivating my land. I used to reside at Amritsar. The land in question fell in my share and I was cultivating the same. On the day of occurrence Gurdip Singh deceased came in aggressive mood with a view to pick up a quarrel with me. He was armed with a pistol. He caught hold me from my long hair and fired at me hitting at my flank and pushed me and I was just in the process of falling down and he again pointed pistol at me with a view to kill me. I immediately took out my pistol and fired in my self-defence. I appeared before the police and also got myself medically examined. I gave my version to the police. Since the deceased party was continuously living in the area and have got influence in the area, they Crl. Appeal No.99-DB of 1999 -8- ... influenced the police and got false case registered upon me and my version was suppressed by the police. The President of Patwari Union has also relations with the deceased and they also tried to help the deceased’s party. I am totally innocent. I have acted in right of my private defence. The deceased’s party never relished my cultivating the land after my retirement. I also remained admitted in the military hospital. I handed over my weapon to the police.” The learned trial court placed implicit reliance upon the prosecution presentation. It discarded the appellants plea, quoted in an earlier part of the judgment. Ms. Baljit Mann,learned counsel appearing on behalf of the appellant, very fairly argued that in view of the conceded position with regard to the impugned occurrence having indeed taken place, the adjudicatory exercise to be undertaken by us is confined to a decision about whether the appellant did or did not act in private defence, of property and his person, in having fired a shot at deceased Gurdip Singh. The prosecution version is that the land under reference i.e. place of occurrence was in possession of deceased Gurdip Singh and appellant Santokh Singh entered into forcible possession thereof by ploughing it with a tractor. As against it, the appellant’s plea is that it was he who was in possession of that land and the boot was on the other leg i.e. it was Gurdip Singh, who was trying to forcibly dis-possess him by ploughing it. Crl. Appeal No.99-DB of 1999 -9- ... It would, thus, be in order to first have a glance at the record based testimony of PW8 Jagjit Singh Patwari, Halqa Verka-II. He testified that Makhan Singh was in actual physical possession of the land comprised in Khasra No.21//5 min, as per the entries in the Jamabandi for the period 1991-92. It is also in his testimony that no subsequent Jamabandi had been prepared thereafter (till he was examined at the trial on 3.4.1998). It is further in his testimony that, as per the Khasra Girdawari record, the Girdawari entries with regard to the land comprised in Khasra No.21//5 Min are in the name of Makhan Singh since the year 1991 till Kharif 1995 and that those entries were changed by a Circle KanungoVaishno Dass in the name of appellant Santokh Singh in Rabi 1995. He conceded “there is no order in the revenue record on the basis of which this change was made. Kanungo cannot change the Khasra Girdawari till there is some order from the A.C.I or II Grade. Enquiry is pending against Vaishno Dass, Circle Kanungo for making the above said change in the Khasra Girdawari. On 8.8.1996, Smt. Vinay Kumari, A.C. II Grade made enquiry and she found Gopal Singh in possession of Khara No.21//5 Min. Said Vaishno Dass was placed under suspension after the enquiry made by Smt. Vinay Kumari. When I visited the said Khasra number on 9.8.1996 I found that Gopal Singh had sown paddy crop in the said khasra number. ” Faced with the predicament, evident from the above quoted record based testimony made by Jagjit Singh Patwari, learned counsel for the appellant argued that the enquiry conducted by A.C. II Grade is without any significance in view of the fact that this witness stated in the course of cross-examination that those proceedings were notified to the Crl. Appeal No.99-DB of 1999 -10- ... appellant only by affixation of a notice at a conspicuous place of the village and that no separate notice had been issued to the appellant for the purpose aforementioned. It is apparent from the cross-examination of Jagjit Singh Patwari that the appellant does not appear to have been properly served by the AC II Grade before she gave her report. This inferential observation we make on the basis of the statement made by the witness to the effect that “the place on which the notice was affixed in the village has not been mentioned specifically in the entry in Roznamcha Wakiati. It has been merely mentioned that the notice was affixed at thoroughfare.” Our attention was also invited by the learned counsel for the appellant to another part of the cross-examination in the course whereof, the witness conceded, as correct, a suggestion that it is the appellant who is recorded to be in possession of the land comprised in Khasra No.21//5 and 6/1 since Kharif 1994. In spite of the reservations which we may have about the propriety of the procedure adopted by the AC II Grade in making a report about the possession of the land comprised in Khasara No.21//5-1, there can be no dispute that the Kanungo had effected the change aforementioned without there being any order whatsoever in that regard. It follows therefrom that the revenue entries ought to have continued to show the pre-change possession which would have been advantageous to the interest of the complainant party. In fact, the Apex Court held in Vishal Singh v. State of Madhya Pradesh, 1998 (1) RCR (Criminal) 804 that right of private defence would not be available to even a person in actual possession if it was found that the person in possession has Crl. Appeal No.99-DB of 1999 -11- ... used fire arms or any other weapon which could cause death of other persons who even inclined to trespass over that land. In that case, the following observations having the relevant bearing on the controversy before us may be reproduced as under for facility of reference:- “ No doubt the entry in the revenue record was made in favour of the appellants and their men but such an entry could only give rise to a rebuttable presumption. xxxx xxx 5. Even assuming for the sake of argument that actual possession was with the appellants that would not enable the appellants to contend that they could use fire arms or such other weapons which could cause death to other persons even if such other persons were about to trespass on the land. The High Court has found that there was no evidence on record to prove that the deceased and the members of their party were armed with guns and such other weapons. It is also found that there is no evidence on record to prove that the deceased had fired in the first instance.” Having noticed the position about the possession of the land in controversy, we proceed to deal with the aspect of the defence raised by the appellant. Learned counsel for the appellant argued that it was Gurdip Singh deceased who first fired a shot at the appellant and the latter only returned the fire in exercise of right of private defence of property and person. Learned counsel argued that the prosecution version (about Satnam Singh having twisted the arm of the appellant and a shot from the revolver of the appellant in that posture having caused Crl. Appeal No.99-DB of 1999 -12- ... injury on his person) is not acceptable because in the averred posture, the shot fired by the revolver of the appellant could not have caused that injury on his back side. We have not been able to persuade ourselves to accept the plea on behalf of the appellant. As is apparent from the material obtaining on the file, Gurdip Singh deceased and appellant Santokh Singh were face to face with each other immediately before the occurrence. Gurdip Singh was in the process of alighting from the tractor when appellant Santokh Singh fired the fatal shot at him,thereby felling the latter upon the ground. There was, thus, no occasion for Gurdip Singh deceased to fire a shot at the appellant. Apart from the complete want of reliable evidence to prove that Gurdip Singh was carrying a firearm, there is no way he could have fired a shot on the rear of the appellant. In fact, the clincher in the adjudicatory exercise is the Forensic Science Laboratory report (Ex.PCC), as per which all the shots (including the shot which injured appellant Santokh Singh) had been found to have been fired by the revolver bearing No.ACE 1124. As per the evidence available on the file, appellant Santokh Singh had handed over revolver to Gurdial Singh PW after the former fell down upon the ground on sustaining the injury. Gurdial Singh testified on oath that he fired shots in the air in order to ensure that no cartridge stayed in the chamber of the revolver and further blood shed was avoided and that he handed over the revolver (and the empties) to the Investigating Officer. That statement had been owned by the Investigating Officer. It is only the arms licence pertaining to that revolver which was produced by the Crl. Appeal No.99-DB of 1999 -13- ... wife of appellant Santokh Singh to the Investigating Officer. The defence has not, at all, tried to falsify the averment made by Gurdial Singh in the relevant behalf. The appellant, as already noticed, was a former Army Officer. He could understand the significance of a licenced fire arm falling in the hands of a non-licensee. If the statement made by Gurdial Singh to the above effect was not correct, we would have expected the appellant and/or his wife to raise a deafening hue and cry which they are not even alleged to have done in this case. There is no evidence to prove that Gurdip Singh was carrying a firm arm or that the firm arm injury actually found on the person of appellant Santokh Singh is relatable to any fire arm possessed by deceased Gurdip Singh. As is apparent from the tenor of cross-examination (directed at the witnesses produced by the prosecution) and the statement under Section 313 Cr.PC, the appellant did allege that he presented his version to the police. The appellant being an army officer could very well have taken up the matter with the higher authorities on finding that there was no acceptability of his version and that he was being held accountable in spite of he himself having been wronged/injured at the hands of deceased Gurdip Singh. The material obtaining on the file indicates that neither Gurdip Singh deceased nor Satnam Singh or Gurdial Singh were carrying any fire arm or any other weapon. As against it, there is adequate evidence to prove that the appellant was carrying a licenced firm arm with which he is proved to have fired the fatal shot at the deceased. In that view of things, there is hardly any justification for the appellant to raise a plea of private defence. Crl. Appeal No.99-DB of 1999 -14- ... Before concluding, we must notice and deal with the various judicial pronouncements relied upon by the learned counsel appearing on behalf of the appellant. Ranbaj Singh v. State of Punjab, 2007 (1) RCR (Criminal) 27 was a case in which the Court recorded a finding that the assailant had been assaulted by the deceased party. It was in view of that finding of fact that the Apex Court held that the accused had been proved to have exercised the right of private defence. In Dharam and others v. State of Haryana, 2007(1) RCR (Criminal) 291 too, the Apex Court held that the right of private defence is a defensive right; that it is neither a right of aggression nor of reprisal and that there is no right of private defence where there is no apprehension of danger. It further held that the right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger.That case was also based on entirely different facts and circumstances which have no relatability to the facts of the case before this Court. We find, on the other hand, that the learned Trial Judge had placed implicit reliance upon the prosecution version for recorded and valid reasons. Likewise,the appellant’s plea was also correctly discarded. We fully concur with the manner of appreciation of the evidence at the hands of the Trial Court. In the light of the foregoing discussion, the appeal is held to be devoid of merit and is ordered to be dismissed. ( S. D. ANAND ) JUDGE February 27, 2008. ( ADARSH KUMAR GOEL )