IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 857-SB of 1997 Date of decision: 22nd January, 2010 Gurmit Singh and others … Appellants Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sandeep Wadhawan, Advocate for Mr. Vikram Chaudhary, Advocate for the appellants. Mr. Mehardeep Singh, Deputy Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present appeal has been filed by Gurmit Singh and Arsal Singh two brothers and Kulwant Singh son of Gurmit Singh. They all are resident of village Thathi Khara, Police Station Tarn Taran, District Amritsar. They were nominated as accused in case FIR No.47 dated 03.06.1994 registered at Police Station City Tarn Taran under Sections 307, 326, 325, 324/34 IPC. The trial Court vide impugned judgment dated 24th October, 1997 convicted and sentenced the appellants as under: Name of the Convict Nature of the offence Sentence awarded Fine imposed Sentence in default of payment of fine Gurmit Singh u/s 307 IPC RI for 5 years Rs.500/- To further undergo RI for 6 months Criminal Appeal No.857-SB of 1997 u/s 326 IPC RI for 2 years Rs.200/- To further undergo RI for 2 months u/s 325/34 IPC RI for one year Rs.200/- To further undergo RI for two months u/s 324/34 IPC RI for 6 months only. Rasual Singh @ Arsal Singh u/s 307/34 IPC RI for 3 years Rs.500/- To further undergo RI for 6 months u/s 326/34 IPC RI for 2 years Rs.200/- To further undergo RI for 2 months u/s 324 IPC RI for six months only u/s 325/34 IPC RI for one year. Rs.200/- To further undergo RI for two months Kulwant Singh u/s 307/34 IPC RI for 3 years. Rs.500/- To further undergo RI for six months u/s 326/34 IPC RI for two years. Rs.200/- To further undergo RI for 2 months u/s 325 IPC RI for one year. Rs.200/- To further undergo RI for two months u/s 324/34 IPC RI for six months only. In the present appeal, appellants have challenged their conviction and sentence recorded in the impugned judgment by the trial Court. The law was set into motion against the appellants on a statement made by Surinder Singh PW-1 at Civil Hospital, Tarn Taran on 3rd June, 1994 at 3.30 p.m. The statement was recorded by ASI Didar Singh, In charge of Police Post, Daburji, who had gone there after receipt of medico legal report of the complainant Surinder Singh and his father Sadhu Singh. In the statement, Surinder Singh stated that on 3rd June, 1994 at about 7.00 a.m. he had accompanied his father Sadhu Singh son 2 Criminal Appeal No.857-SB of 1997 of Gurbax Singh on a tractor to cultivate his fields. When they reached in front of the house of Gurmit Singh in the fields, Gurmit Singh armed with Kirpan Arsal Singh armed with Gandasi and Kulwant Singh alias Laddu armed with Dang came out of their farm house, stopped the tractor and said that the complainant be taught lesson for ploughing the fields as they had purchased the fields despite having been restrained to purchase the same, and accused will not allow complainant party to cultivate the fields. Gurmit Singh gave a blow from Kirpan in his hand to Sadhu Singh, which hit on the back side of head of Sadhu Singh. Sadhu Singh fell down from the tractor. While Sadhu Singh had fallen, Kulwant Singh gave a push from his Dang on the left side of chest of Sadhu Singh. Gurmit Singh gave another blow from his Kirpan which hit Sadhu Singh on his right arm. Surinder Singh complainant jumped from the tractor and came ahead to save his father. Then Arsal Singh gave a Gandasi blow on the left hand of the complainant Surinder Singh. Kulwant Singh gave a Dang blow which hit on his left arm. Complainant raised noise of ‘Mar Dita Mar Dita’. The entire occurrence was witnessed by Lachman Singh son of Natha Singh, Baljit Singh son of Piara Singh and Baldev Singh son of Assa Singh. They came forward to rescue the injured, when accused decamped from the spot along with their weapons. The complainant and his father were brought to Civil Hospital, Tarn Taran by Sukhwinder Singh Sarpanch, where father of the complainant was medico-legally examined and they were given first aid. The father of the complainant due to injuries on the head was unconscious. The cause of grudge was dispute over the fields. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted. The Court of Additional Sessions Judge, Amritsar charged the appellants on 9th February, 1995. Gurmit 3 Criminal Appeal No.857-SB of 1997 Singh was charged for causing substantive injury falling within the ambit of section 307 IPC, whereas Arsal Singh and Kulwant Singh were charged with aid of section 34 IPC. Secondly, Gurmit Singh was charged for causing grievous hurt to Sadhu Singh by means of Kirpan, an offence punishable under Section 326 IPC and other accused with aid of section 34 IPC. Kulwant Singh was charged for causing grievous injury with blunt weapon to Surinder Singh under section 325 IPC and others with aid of section 34 IPC. Arsal Singh was charged for causing simple hurt to Surinder Singh by means of a Gandasi falling within the ambit of section 324 IPC and other accused with aid of section 34 IPC. Appellants pleaded not guilty and claimed trial. Before the evidence led by the prosecution and the defence is noticed, it will be pertinent to mention that in the present case, from the side of complainant, Sadhu Singh and Surinder Singh suffered injuries, whereas Gurmit Singh accused, as proved by the defence, had also suffered serious injuries. This Court has been called upon the determine whether Gurmit Singh had a complete right of self-defence or it is a case of sudden fight or free fight. Therefore, medical evidence will be of vital consideration. Thus, the same will be considered in the later part of the judgment, as this Court proceeds to notice ocular version at first instance. Surinder Singh complainant injured appeared as PW-1. He reiterated the version given in his statement Ex.PA and on the basis of which, the formal FIR Ex.PA/2 was registered. However, in examination in chief, the complainant further stated as under: “We did not cause any injury to the accused because we were empty handed.” In cross examination, This witness stated that Balbir Singh and Piara Singh were his uncles. Gurmit Singh accused was cultivating 4 Criminal Appeal No.857-SB of 1997 land belonging to his mother’s parents. However, this witness further admitted that Gurmit Singh is residing in the village since the birth. He admitted that the land measuring 5 killas was purchased by Balbir Singh from Harjit Kaur, who was living in Hong Kong. The witness stated that it is not in his knowledge that Prem Singh was maternal grandfather of Gurmit Singh. However, this witness stated that Harjit Kaur was not related to Prem Singh. This witness further stated that when they were proceeding to their fields on tractor Sadhu Singh was sitting on the mudguard and he was wearing Parna. This witness further stated that Gurmit Singh was standing on the ground, when he inflicted injury to Sadhu Singh and Gurmit Singh had stopped the tractor by standing in front of it. Sadhu Singh, father of complainant Surinder Singh, appeared as PW-2 and corroborated the testimony of Surinder Singh PW-1. Didar Singh ASI appeared as PW-3. He stated that on receipt of medico legal report of Surinder Singh and Sadhu Singh, he along with police party reached the Hospital, recorded statement Ex.PA of Surinder Singh complainant, made endorsement Ex.PA/1 and had sent the same to Police Station, on the basis of which formal FIR Ex.PA/2 was recorded by Kabal Singh Moharrir Head Constable. In cross examination, this witness stated as under: “It is correct that I also received the MLR of Gurmit Singh on 6.6.94 at 5 p.m. from Balbir Kaur wife of Gurmit Singh in P.P. Daburji. It is correct that place of occurrence is at distance of half KM from the PP. I did not record the statement of Balbir Kaur. It is wrong to suggest that Balbir Kaur had also given her own occurrence and that I intentionally did not record her statement and version. I went to Civil Hospital, Tarn Taran. I went to Civil Hospital, Asr. in 5 Criminal Appeal No.857-SB of 1997 the company of Balbir Kaur and recorded statement of Gurmit Singh. I did not take action against the other party.” PW-4 Rishi Ram, Draftsman proved scaled site plan of the spot Ex.PW4/A. Sukhwinder Singh, Sarpanch of the village appeared as PW- 5. He got the injured admitted in the hospital. This witness further stated in the examination in chief that: “I saw a fight going on near the farm house of Gurmit Singh. The accused now present in the Court were there.” He further stated that he had witnessed the occurrence and corroborated the testimony of PW-1 Surinder Singh. This witness further stated that farm house of Sadhu Singh comes first, then comes farm house of Gurmit Singh from the village and the distance between both the farm houses is 2 killas. In cross examination, this witness admitted as follows: “When I reached the spot, fight was going on between Gurmit Singh and Sadhu Singh.” Balwinder Singh Head Constable was examined as PW-7. He is witness to disclosure and recovery of Kirpan from the appellant Gurmit Singh. Disclosure statement was exhibited as Ex.PR and the recovery memo as Ex.PS. Arsal Singh accused also got recovered Gandasi and suffered disclosure statement Ex.PG and recovery memo recorded was Ex.PK. Kulwant Singh accused got the Dang recovered. His disclosure statement was Ex.PH and recovery memo Ex.PL. Now it is time to notice medical evidence. 6 Criminal Appeal No.857-SB of 1997 Sadhu Singh was medico-legally examined on 3rd June, 1994 at Civil Hospital, Tarn Taran by PW-6 Dr.Paramjit Singh. There were following injuries on the person of Sadhu Singh: “1. Incised wound 4 cm x 1 cm present on the parieto-occipital region of scalp. Bleeding was present. Bone deep. The general condition of the patient was BP/140/90 disoriented, confused, pupils equal and reacting to light. Kept under clinical observation. 2. Incised wound 5 cm x 5 cm present on the left dorsum of hand. Wound starts from the radial styloid process runs distally to the head of the 2nd metacarpal and then curves towards and near the head of the 5th metacarpal. The underlying tissues were cut and the extensor tendons to the index middle ring and little finger were cut. Patient was unable to extend his wrist and fingers. The transverse ligaments were cut. 3. Diffuse swelling present on the left lateral aspect of chest. 8 cm x 5 cm tenderness present.” Injury No.1 was declared dangerous to life, injury No.2 was grievous and injury No.3 was simple. Injuries No.1 and 2 were caused by incised weapon and injury No.3 by blunt weapon. This witness further stated that the right arm of injured Sadhu Singh was already amputated and due to injury caused on the left hand of Sadhu Singh in the present occurrence, his left ring finger and little finger could not be extended fully and he had suffered handicap of his left hand. On 3rd June, 1994 at 8.00 p.m. this witness had examined Surinder Singh PW-1 and found following injuries on his person: “1. Incised wound 2 cm x ½ cm present on the dorsum of the left hand. Bleeding was present and was fascial deep. 2. Diffuse swelling around the left elbow and left fore-arm. Abnormal mobility was present. Invagition was 7 Criminal Appeal No.857-SB of 1997 possible just above the elbow. Tenderness present underlying olecranon process fractured.” Injury No.1 was declared simple and injury No.2 grievous. Injury No.1 was caused by sharp edged weapon and injury No.2 by blunt weapon. In cross examination, this witness stated that injury No.3 on the person of Sadhu Singh is possible by fall against a hard surface and possibility of injury No.1 and 2 on the person of Surinder Singh being self suffered cannot be ruled out. A perusal of above injuries will show that injury No.1 and 2 suffered by Sadhu Singh are attributed to Gurmit Singh appellant and injury No.3 is attributed to Kulwant Singh appellant. Whereas, Injury No.1 on the person of Surinder Singh has been attributed to Gurmit Singh appellant and injury No.2 to Kulwant Singh appellant. Appellants were examined and their statements under Section 313 Cr.P.C. were recorded. Gurmit Singh denied the same and gave following version: “I am innocent. My chakoor birlds strayed into the fields of Sadhu Singh and Surinder Singh which were lifted by them and with the intervention of Gulzar Singh Ex-Panch, the chakoor birlds were got released. The complainant party was aggrieved and on the day of alleged occurrence, Surinder Singh with kasi, Baljit Singh armed with dang and Sohan Singh empty handed abused and caused injuries to me. I caused injuries to Sadhu Singh and Surinder Singh with gandasi in self defence.” Arsal Singh and Kulwant Singh denied their presence at the spot. In defence, Dr.Vajinder Singh Bajwa was examined as DW- 1. He stated that he medico-legally examined Gurmit Singh at Civil 8 Criminal Appeal No.857-SB of 1997 Hospital, Amritsar on 3rd June, 1994 at 10.00 a.m. and had found following injuries on his person: “1. Incised wound 3.5 cm x 4 cm on right side of skull starting 2 cm from hair line and extending backward for 3.5 cm. Fresh blood was oozing from the lesion. The wound, on examination was reaching upto the bone and the under- line bone was partially cut. 2. A reddish contusion 7 cm x 1 cm was present on anterosuperior aspect of right shoulder. 3. Diffuse swelling 5 cm x 3 cm was present on the antero medial aspect of middle third of right thigh. 4. Diffuse swelling 3 cm x 2 cm on the front of lower third of left thigh was present.” Injury No.1 was declared grievous and other injuries simple in nature. Injury No.1 was caused by sharp edged weapon and injuries No.2, 3 and 4 by blunt weapon. The trial Court held that the right of self defence will not accrue to the appellants as the occurrence had taken place in the Kacha Path in between the fields of the complainant and accused party. The following observation of the trial Court is required to be noticed: “17. The circumstances of the case show that the occurrence took place on the kacha path in between the fields of the complainant and the accused party. … … … ” Mr. Sandeep Wadhawan, appearing for the appellants, has submitted that according to the prosecution, occurrence had taken place on 3rd June, 1994 at 7.00 a.m. It is further submitted that in the statement Ex.PA it has been stated that the complainant party was passing in front of the farm house of the accused and there the occurrence had ensued. Counsel has further submitted that Gurmit Singh had suffered four injuries. Injury No.1 was on the head. There was a fracture of the skull, as 9 Criminal Appeal No.857-SB of 1997 on clinical examination, doctor had found that the bone was partially cut and at that time fresh blood was oozing. Counsel has further submitted that appellant Gurmit Singh was examined on 3rd June, 1994 at 10.00 a.m. and injury on the head and cut of the skull bone could not be self suffered. Therefore, appellant Gurmit Singh suffered injuries in the occurrence. Counsel has further stated that the prosecution has suppressed the origin and genesis of the occurrence and no implicit reliance can be placed upon the testimony of Surinder Singh PW-1, as he in categoric terms stated that they had not caused any injury to the accused, because they were empty handed. Counsel has also drawn my attention to the testimony of PW-3 Didar Singh ASI, who in cross examination, had stated that he had also received MLR of Gurmit Singh, but he had not recorded the statement of Balbir Kaur wife of Gurmit Singh. Counsel has further submitted that non-explanation of the serious injuries suffered by the appellant Gurmit Singh is fatal to the prosecution and complete right of self defence accrue to the appellants. Therefore, they deserve acquittal. Mr. Mehardeep Singh, Deputy Advocate General, Punjab, has drawn my attention to the observations made by the trial Court where it is stated that injury No.1 suffered by Gurmit Singh was not grievous as no X-ray was conducted inspite of the advice of the doctor to this effect, therefore, for the simple injuries suffered by Gurmit Singh, prosecution witnesses are not bound to furnish any explanation. I have given my thoughtful consideration to the rival submissions made. From the circumstances and reading of the evidence, it is apparent that Gurmit Singh had suffered injuries in the same occurrence in which Sadhu Singh and Surinder Singh suffered injuries. The prosecution witnesses, PW-1 Surinder Singh and PW-2 Sadhu Singh were examined at Civil Hospital, Tarn Taran. They were examined at 7.45 10 Criminal Appeal No.857-SB of 1997 a.m. and 8 a.m. respectively. Gurmit Singh was examined at further distance at Amritsar at 10.00 a.m., therefore, Gurmit Singh has suffered injuries in the same occurrence. Injury No.1 is quite serious, bone of the skull was partially cut, from clinical observation injury was grievous, thus, the prosecution witnesses ought to have explained the same. It is not a case where no explanation is coming forward. PW-5 Sukhwinder Singh, who was Sarpanch of the village and was independent witness, had stated in examination in chief and in cross examination that he saw the fight going on near the farm house of Gurmit Singh. He further stated in cross examination, that when he reached the spot fight was going on between Gurmit Singh and Sadhu Singh. It can be noticed that injuries suffered by Gurmit Singh have been caused by two weapons. Therefore, at least two person have caused injuries to Gurmit Singh. Sadhu Singh and Surinder Singh were present at the spot. Therefore, they have participated in the occurrence. The Investigation Officer also stated that he received the MLR of Gurmit Singh. Thus this Court can safely place implicit reliance upon the testimony of Sukhwinder Singh, Sarpanch PW- 5. There was already dispute pending over the field between Gurmit Singh and complainant party. From the cross examination, it can be safely inferred that Gurmit Singh was cultivating land of his maternal grandfather, which as per the evidence of prosecution witnesses, has been sold by Harjit Kaur to Balbir Singh, uncle of Surinder Singh PW-1. Therefore, the parties were asserting their right over the possession. Thus as per the findings of the trial Court, occurrence had taken place in the Kacha Path between the fields when parties came in front of each other and had a fight to assert their right. Thus, it can be safely held that it is a case of free fight. In ‘Gajanand and others v. State of U.P.’ AIR 1954 Supreme Court 695, Hon’ble Apex Court held as under: 11 Criminal Appeal No.857-SB of 1997 “A free fight is “when both sides mean to fight from the start, go out to fight and there is a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders.” It was further held that in case of free fight, each accused is responsible for his own act and can only be convicted for individual liability. In ‘State of Haryana v. Chandvir and others’ (1996) 8 Supreme Court Cases 678, Hon’ble Apex Court held that in case of free fight, liability of each accused has to be considered independently. This view was further followed in ‘Kanbi Nanji Virji and others v. State of Gujarat’ AIR 1970 Supreme Court 219. In ‘Kashi Rai and others v. State of Bihar’ 1994 SCC (Cri) 416, the settled legal position was further reiterated and it was held that assailants should be held liable for their individual acts. Further, reliance can be placed upon ‘Pundalik Mahadu Bhane and others v. State of Maharashtra’ (1997) 11 Supreme Court Cases 567. In view of the discussion held above, Gurmit Singh is held liable for offence under Section 307 IPC, Arsal Singh for offence under Section 324 IPC and Kulwant Singh for offence under Section 325 IPC. In the present case, occurrence had taken place in year 1994. More than 15 years are going to elapse. All the appellants have suffered mental agony and pain of protracted trial. At the time of occurrence, as per the judgment of the trial Court, Gurmit Singh, Arsal Singh and Kulwant Singh were aged about 40, 27 and 18 years respectively. It has been submitted that after the present occurrence, appellants have committed no other offence. Taking into consideration the protracted trial, age and antecedents of the appellants, sentence awarded upon Gurmit Singh 12 Criminal Appeal No.857-SB of 1997 under Section 307 IPC is reduced from five years to three years rigorous imprisonment. However, sentence of fine is enhanced to Rs.25,000/-, failing which Gurmit Singh shall further undergo rigorous imprisonment for one year. Kulwant Singh was also aged 18 yeas at the time when occurrence took place and he had been substantively sentenced under Section 325 IPC. Kulwant Singh is ordered to be released on probation under Probation of Offenders Act for a period of one year. He shall furnish personal/surety bonds to the satisfaction of Chief Judicial Magistrate, Amritsar with undertaking that he shall maintain peace, good conduct and behaviour for a period of one year, failing which he will be called upon to serve the sentence of one year. Cost of litigation is assessed as Rs.20,000/-. Arsal Singh has been held individually liable for offence under Section 324 IPC. He is also ordered to be released on probation under Probation of Offenders Act for a period of one year. He shall also furnish personal/surety bonds to the satisfaction of Chief Judicial Magistrate, Amritsar with undertaking that he shall maintain peace, good conduct and behaviour for a period of one year, failing which he will be called upon to serve the sentence of one year. Cost of litigation qua Arsal Singh is assessed as Rs.15,000/-. Cost of litigation and sentence of fine, so deposited, shall be disbursed proportionately to Sadhu Singh and Surinder Singh. With the modifications in conviction of offences and sentence, noticed above, present appeal is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE January 22, 2010 rps 13