IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 431 of 2001 (Old No. 2805 of 1998) 1. Ranjeet Singh (since deceased) S/o Shri Darshan Singh 2. Jagir Singh S/o shri Darshan Singh 3. Malkeet Singh S/o Shri Darshan Singh 4. Gurdeep Singh S/o Shri Darshan Singh All R/o Ghera Farm Dhusari police station Nanakmata district Udham Singh Nagar. 5. Har Bhajan Singh S/o Shri Balwant Singh R/o village Dudhi police station Nanakmata district Nainital ……............... Appellants Versus State of U.P(Now State of Uttarakhand) ……….... Respondent Smt Pushpa Joshi, Advocate, present for the appellants Shri B.S.Parihar, Brief Holder, present for the State. Hon’ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 04.12.1998 passed by Special Judge/Additional Sessions Judge, Nainital, in Sessions Trial No. 480 of 1995, whereby said court has convicted the appellants Ranjeet Singh, Jagir Singh, Malkeet Singh and Harbhajan Singh under section 147, 323/149, 324/149 2 Indian Penal Code 1860,(for short I.P.C.) and accused/appellant Gurdeep Singh under section147, 323/149 and 324 I.P.C.. Each of the convicts has been sentenced to rigorous imprisonment for a period of six months under section 147 I.P.C rigorous imprisonment for a period of six months under section 323/149 I.P.C and rigorous imprisonment for a period of two years under section 324 I.P.C. (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story, in brief, is that one Surendra Kaur who was sister of the present appellants Ranjeet Singh, Jagir Singh, Malkeet Singh and Gurdeep Singh, got married to Jagdish Singh(PW4) in the year 1992. Due to some matrimonial dispute she was living in her parental house. On 13.04.1993 at about 1.30p.m in 'Baisakhi Mela' in Tapeda, within the limits of Police Station Nanakmata accused/appellants Ranjeet Singh, Jagir Singh, Malkeet Singh, Gurdeep Singh and Harbhajan Singh met complainant Mehar Singh (PW1), Balvinder Singh (PW2), Amarjeet Singh (PW3) and Jagdish Singh (PW4). It is alleged that the above accused/appellants who were armed with hocky and rods assaulted the aforesaid witnesses namely PW2 Balvinder Singh and PW4 Jagdish Singh. First Information Report (exhibit A-1) was got lodged by PW1 Mehar Singh at police station Nanakmata on the 3 very day i.e. 13.04.1993 at 14.30 hours which was registered as crime no 96A of 1993 relating to offences punishable under section 147 and 323 I.P.C against five accused namely Ranjeet Singh, Jagir Singh, Malkeet Singh, Gurdeep Singh and Harbhajan Singh. PW7 Sub Inspector Bhagat Singh Rawat investigated the crime. The injury were got medically examined at Primary Health Center Nanakmata. The Investigating Officer after interrogating the witnesses submitted chargesheet against all the five accused/appellants for their trial in respect of offences punishable under section 147, 323 and 324 I.P.C. (4) The Magistrate on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 of Cr.P.C., appears to have committed the case to the court of Sessions. (Earlier Tehsil Khatima was part of district Nainital). Additional Sessions Judge/Special Judge, Nainital to whom the case was transferred , after hearing the parties, on 01.05.1998 framed charge of offences punishable under section 147, 323/149 and 324 I.P.C., against all the five accused namely Ranjeet Singh, Jagir Singh, Malkeet Singh, Gurdeep Singh and Harbhajan Singh, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Mehar Singh (complainant) , PW2 Balvinder Singh (injured), PW3 Amarjeet Singh( eye witness), PW4 Jagdish Singh(injured), PW5 Harbhajan Singh (eye witness), 4 PW6 Dr. S.K.Tyagi(who medically examined the injuries on the person and the injured), PW7 Sub Inspector Bhagat Singh Rawat (Investigation Officer). Oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which they alledged the same to be false. However, no oral evidence in defence appears to have been given. The trial court after hearing the parties found all the five accused guilty of charge of offences punishable under section 147, 323/149 and 324/149 I.P.C. Accused Gurdeep Singh was convicted under section 324 I.P.C., without the aid by 149 I.P.C.. After hearing the parties on sentence each one of the convicts was sentenced to rigorous imprisonment for a period of six months under section 147 I.P.C., rigorous imprisonment for a period of six months under section 323/149 and rigorous imprisonment for a period of two years under section 324/149 I.P.C..(Gurdeep Singh was awarded rigorous imprisonment for a period of two years under section 324 I.P.C.). Aggrieved by said judgment and order dated 04.12.1998 passed by Special Judge/Additional Sessions Judge, Nainital, in Sessions Trial No. 480 of 1995, this appeal was filed before Allahabad High Court on 15th of December 1998 where it was admitted on 16.12.1998. The appeal is received by this court under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. (5) Before further discussion this court thinks it just 5 and proper and mention here that the present case is infact cross case of crime no. 96 of 1993 registered at police station Nanakmata got registered by the appellant Gurdeep Singh. In said crime no. 96/1993 PW1 Mehar Singh (present PW1), Balvinder Singh (present PW2), Jagdish Singh (present PW4) were the accused in respect of offence punishable under section 307 I.P.C., and Jagdish Singh was also accused in respect of offence punishable under section 25 Arms Act. In said case Mehar Singh (PW1) Balvinder Singh (PW2) and Jagdish Singh (PW4) were acquitted of the charge framed against them. It is also relevant to mention here that the First Information Report lodged by appellant Gurdeep Singh against the above three witnesses was prior to the First Information Report lodged by PW1 Mehar Singh. Since said case was triable by court of Sessions, that is why the triable of the case in question was not done by Magistrate, and both cases were tried by same court. (6) From the injury report (exhibit A-2) it appears that three lacerated wounds one haematoma and three bruise wounds were suffered by Jagdish Singh, and one lacerated wound and one abrasion mentioned in Exhibit A-3 were suffered by Balvinder Singh as stated by PW6 Dr. S.K.Tyagi. On behalf of appellant attention of this court is drawn to the First Information Report (exhibit A-1) lodged by Mehar Singh (PW1) in which it is admitted that the accused/appellants took Mehar 6 Singh and the above two injured to police station beating them on the way. It is important to note that according to the prosecution case itself accused/appellants took the injured and the complainant to police station beating them on the way . This fact itself indicates that there had been some incident from the side of the PW1 Mehar Singh, PW2 Balvinder Singh and PW4 Jagdish Singh, accused/appellants else they could not have taken to the police station beating them on the way. From the cross examination of the above three witnesses it is clear that defence of the present accused/appellants was that incident stated when Jagdish Singh (present PW4) fired shot at the appellant which did not hit them (but hit Balvinder Singh PW2) and in an reaction to it, in self defence, they took the complainant and the above two injured, to the police station, beating them on the way. In view of the cross case of which First Information Report was lodged prior to the report lodged in respect of the present case registered as crime no. 96A of 1993, is suggestive of the fact that the injuries (except fire arm injury on the injured suffered by Balvinder Singh) are caused in self defence by the accused/appellant. As to the fire arm injury on the finger of Balvinder Singh it is conteded on behalf of the learned counsel of the accused/appellant that he suffered said injury from the fire shot by Jagdish Singh (PW4) as is apparent from the cross case filed against Mehar Singh, Jagdish Singh and Balvinder Singh. In support of above arguments, 7 attention of this court is drawn on behalf of the accused/ appellants to the First Information Report (exhibit A-1) relating to this case wherein there is not a single word that accused/appellants had fired the shot. (7) In view of the above discussion it can not be ruled out that all the injuries suffered by Jagdish Singh and the injuries suffered by Balvinder Singh (except the fire arm injury in the finger) were caused in self defence by the accused/appellants who took them to police station and lodged First Information Report against them. Fire arm injury suffered on the finger by Balvinder Singh can not be ruled out to have been caused by the fire said to have allegedly shot by Jagdish Singh. Section 96 of I.P.C., provides that nothing is an offence which is done in the exercise of the right of private defence. Section 97 of I.P.C provides that every person has a right, subject to the restrictions contained in section 99 to defend his person or the body of another person or his property or the property of another person. From the facts and circumstances, of the present case it appears that act on the part of the accused/appellants is not violative of any provision contained and section 99. (8) For the reasons as discussed above, this court is of the view, that the act the committed by the accused/appellants is covered under general exception of right of private defence provided in I.P.C. Therefore, the accused/appellants can not be held guilty of charge 8 of offences punishable under section 147, 323/149, 324/149 I.P.C. Accordingly, the appeal is allowed. Conviction and sentence recorded by the trial court against the appellants are set aside. Appellants Jagdish Singh, Malkeet Singh and Harbhajan Singh are acquitted to the charge of offences punishable under section 147, 323/149, 324/149. Accused/appellant Gurdeep Singh is acquitted to the charge of offences punishable under section 147, 323/149 and 324 I.P.C. They are on bail, they need not to surrender. The appeal of accused /appellant Ranjeet Singh stands abated as he had died during the pendency of this appeal. Lower court record be sent back. (Prafulla C. Pant, J.) Dt.28.07.2010 N.P