Criminal Revision No. 896 of 2002 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 896 of 2002 Date of Decision: July 08, 2010 Bakhtaur Singh and Others …Petitioners Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. A.P.S. Deol, Senior Advocate with Mr. Davinder Bir Singh, Advocate for the petitioners. Mr. J.S. Bhullar, Assistant Advocate General, Punjab, for the respondent. Kanwaljit Singh Ahluwalia, J. The present revision petition has been preferred by Bakhtaur Singh, Harbans Singh, Hardesh Singh, Harmander Singh, Tota Singh sons of Jaswinder Singh, Resham Singh and Jagtar Singh, all residents of village Bhai Rupa. They were tried in a case FIR No. 9 dated 11.1.1991, registered at Police Station Dialpura, under Sections 326, 324, 323, 148 and 149 IPC, by the Court of Judicial Magistrate Ist Class, Phul. The trial Court, vide its judgment dated 11.9.1999, held the petitioners guilty for the offence under Sections 323, 324, 326, 148 and 149 IPC and vide a separate order of even date, sentenced them as under:- Criminal Revision No. 896 of 2002 2 S. No. Name of Accused Offence under Section Sentence awarded 1 All the accused- petitioners 326 read with Section 149 IPC Rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- each, in default whereof, to further undergo rigorous imprisonment for a period of three months each. 324 read with Section 149 IPC Rigorous imprisonment for a period of one year and to pay a fine of Rs.200/- each, in default whereof, to further undergo rigorous imprisonment for a period of two months each. 148 IPC Rigorous imprisonment for a period of one year and to pay a fine of Rs.200/- each, in default whereof, to further undergo rigorous imprisonment for a period of one month each. 323 read with Section 149 IPC Rigorous imprisonment for a period of six months and to pay a fine of Rs.100/- each, in default whereof, to further undergo rigorous imprisonment for a period of one month each. All the sentences were ordered to run concurrently. Aggrieved against the judgment of conviction and order of sentence, the petitioners had filed an appeal. The Court of Additional Sessions Judge, Bathinda, vide its judgment dated 3.5.2002, upheld the conviction of the petitioners and reduced their sentence, for the offence under Section 326 read with Section 149 IPC, from two years to one and a half years and to pay a fine of Rs.500/- each. However, the remaining sentences were kept intact. Hence the present revision petition. Criminal Revision No. 896 of 2002 3 Briefly stated, the facts of the instant case are that a statement Ex.P1 of PW.2 Darshan Singh was recorded on 11.1.1991 by Ramesh Kumar, Assistant Sub Inspector, wherein he stated that he was a resident of village Bhai Rupa and was residing in a house built in the fields along with his brothers Major Singh, Jaswinder Singh and Mander Singh. Mander Singh was employed in Home Guard. On 11.1.1991, their turn of water had to commence at 7.48 A.M. and they had to take the same from Tota Singh. The complainant along with his brothers Major Singh and Jawinder Singh had gone to their fields in order to take their turn of water from the outlet of Dalip Singh, whose land had been taken on lease (theka) by Tota Singh. At that time, petitioners Bakhtaur Singh son of Jaswinder Singh, Jagtar Singh and Resham Singh, sons of Tota Singh were irrigating their fields, whereas petitioners Hardesh Singh, Harmander Singh and Harbans Singh were working in the fields and Tota Singh was standing near the kikkar trees. When the complainant intended to take his turn of water, he was restrained by petitioner Bakhtaur Singh and told him that his turn had not yet arrived at. The complainant replied that he was going to take turn of water in time, upon which Tota Singh exhorted to catch hold of complainant and his brothers for taking their turn of water and they be taught a lesson. Saying this, Tota Singh came near to the complainant and gave a kirpan blow which hit on the back side of his head. Bakhtaur Singh gave gandhali blow to the complainant which hit on his left leg. He again gave gandhali blows, for five times, to the complainant, which hit on his left ankle, two on his left thigh, left knee and bicep of left arm. When Major Singh and Jaswinder Singh came forward to rescue the complainant, Criminal Revision No. 896 of 2002 4 then Tota Singh gave a kirpan blow, which hit above the left eye of Major Singh, due to which he fell down. While he was lying fallen on the ground, Hardesh Singh gave a blow of gandasi, in his hand, which hit on the head above the ear of Major Singh. Hardesh Singh also gave two gandasi blows, from its reverse side, to Major Singh, which hit on his left elbow and left hand. While Major Singh was lying fallen, Resham Singh also gave three gandasa blows, from its reverse side, which hit on his back and wrist of left arm. When Jaswant Singh made an attempt to run away from the spot, then Harmander Singh gave two gandasa blows, from its reverse side, which hit on his back. Jagtar Singh gave three blows from the reverse side of his gandasa to Jaswinder Singh, which hit on both of his arms. On a hue and cry raised, mother of complainant Kartar Kaur, his sisters Amarjit Kaur and Ranjit Kaur were attracted to the spot. They were also caused injuries. Tota Singh gave a gandasa blow, from its sharp side, to Ranjit Kaur while she was laying down to save the complainant. Bakhtaur Singh also gave a gandhali blow to Ranjit Kaur in her head. Harbans Singh gave a gandasa blow thrice to the mother of complainant, which hit her on both arms and back. Harmander Singh gave two gandasa blows, from its reverse side, on the legs of Amarjit Kaur. In self defence, the complainant had also caused injuries to the accused. Thereafter, all the accused fled away from the spot along with their weapons. After arranging for the conveyance, Kaka Singh brought all the injured to the hospital. The cause of grudge was that Tota Singh had taken a land on lease from Dalip Singh at higher price and this land adjoins the land of complainant. Tota Singh had forcibly restrained the complainant party from taking their turn of water. Criminal Revision No. 896 of 2002 5 From the above said FIR, the following facts have emerged:- A) The turn of water of the complainant had to commence from 7.48 A.M., which they had to take from the accused-petitioners. B) When the complainant intended to take his turn, after the time of accused was over, the accused did not allow them to do so and tried to prevail upon him as if might is right. C) From the complainant side, not only three male persons but three ladies Kartar Kaur, mother of the complainant and his two sisters Ranjit Kaur and Amarjit Kaur had also received injuries. D) In self defence, the injuries were also caused to the accused-petitioners by the complainant party. On the basis of evidence, led by the prosecution, this Court has to find origin and genesis of the occurrence and also whether any party can be held aggressor or not. For doing so, it will be necessary to advert to the prosecution evidence. PW.1 Dr. Avtar Singh, on 11.1.1991 at about 12.10 P.M., had medicolegally examined Darshan Singh son of son of Hakam Singh and found the following injuries on his person:- “1. An incised wound measuring 8 cm x ¾ cm on the back of the left side of the head, underline bone is completely cut (both sides). It is 13.5 cms from pinna of left ear and 10.5 cms from the posterior hairline of Criminal Revision No. 896 of 2002 6 head, vertical in direction and about 1.5 cms to the left of midline, bleeding on touch present. 2. A lacerated wound 2 cms x 0.75 cm x 0.75 cms on the posterio lateral side of the right side leg, 11 cms above the ankle joint, bleeding on touch. 3. A reddish bruise 13 cm x 2 cms over the outer side of left thigh with two parallel abrasions of the same length and 0.75 cms apart, oblique in direction and 7 cms above the knee joint. 4. A reddish bruise 9 cms x 2 cms over the outer side of left thigh and 10 cms above the injury No.3. 5. Reddish bruise 12 cms x 2 cms on the outer side of left thigh. It was across injury No.3 and its lower limit was touching injury No.3. 6. A reddish swelling 3.5 cms x 3.5 cms on the outer side of left leg, 4 cms above the ankle joint. Tenderness was present. Movements of the leg were painful and restricted. Advised X-ray. 7. An abrasion 6.5 cms x 1 cm over the outer side of left upper arm 9.5 cms above the Criminal Revision No. 896 of 2002 7 elbow joint. No scab formation seen”. Injury No.1 was on the back of the left side of the head and underline bone was completely cut from both sides. The cut was 13.5 cm wide. Injury No.1 was declared as dangerous to life as it was a compound fracture. On the same day, PW.1 Dr. Avtar Singh had medicolegally examined Major Singh and found the following injuries on his person:- “1. An incised wound 2 cms x 0.3 cms on the left side of the forehead, superficial, vertical in direction. Almost in the middle of left supra or vital margin. Lower margin of the wound was touching the eyebrow. Bleeding on touch was present. 2. A lacerated wound measuring 5.5 cms x 5 cms x 0.3 cms on the right side of the head. 9.5 cms from the right eyebrow and 6.5 cms from the pinna or right ear. Bleeding on touch was present. Advised X-ray skull. 3. A reddish bruise 6 cms x 2 cms on the right side of the back of the chest, 8 cms below the angle of scapula and 4.5 cms from the midline. 4. Reddish bruise 5 cms x 2.5 cms on the left side of the back 5 cms to the left of midline and 10 cms above the iliac crest. Criminal Revision No. 896 of 2002 8 5. Reddish swelling 10 cms x 6 cms on the back of left forearm in its middle 1/3rd. Tenderness was present. Movements of the forearm was painful and restricted. Advised x-ray. 6. Reddish bruise 5 cms x 3.5 cms on the outer side of left elbow joint. Movements were painful and restricted. Advised X-ray. 7. A reddish bruise 6 cms x 6 cms over the base of left thumb. Tenderness was present. Movements of the thumb were painful and restricted. Advised X-ray”. Injuries No. 1 and 2 were on the head. Lower margin of injury No.1 was touching the eye brow. Injuries No.5 and 7 were declared as grievous. On the same day, PW.1 Dr. Avtar Singh had medicolegally examined Jaswinder Singh and found the following injuries on his person:- “1. An abrasion reddish in colour 5 cms x ¾ cms on the posterio medial aspect of left forearm. Almost in its middle part. No scab formation was seen. 2. Reddish bruise 7 cms x 2 cms over the back of left upper arms, 3 cms above the left elbow joint. Tenderness was present. 3. Reddish bruise 17.5 cms x 7 cms over the Criminal Revision No. 896 of 2002 9 back of left scapula. Oblique in direction. 4. A reddish bruise 4 cms x 2 cms over the back of right scapula. 5. A reddish abrasion 2 cmx x 0.5 cms on the back of right forearm. 2.5 cms below the right elbow joint. No scab formation seen”. All the injuries were declared as simple. Ranjit Kaur was also examined by PW.1 Dr. Avtar Singh on the same day and the following injuries, were found on her person:- “1. A lacerated wound 3 cms x 0.5 cms on the head. Almost in the midline and 9 cms from the root of the nose. Slightly bleeding on touch. Advised X-ray skull. 2. An incised wound 6.5 cms x 1 cm above none deep over the top of the head. Horizontal in direction, 15 cms from pinna of right ear and 11 cms from the pinna of left ear. Bleeding on touch was present. Advised X-ray”. Both the injuries were on the head. Kartar Kaur was also medicolegally examined on the same day by PW.1 Dr. Avtar Singh, who had suffered the following injuries:- “1. Reddish bruise 8 cms x 6 cms on the posterio lateral aspect of the right upper arm. 5 cms above the elbow joint. Tenderness was present. Movements of Criminal Revision No. 896 of 2002 10 the arm were painful. 2. Reddish bruise 4 cms x 7 cms over the left upper arm over the posterio lateral aspect and 7 cms from the elbow joint. 3. Complained of pain over the back of the chest, but there was no external wound discolouration”. Lastly, Amarjit Kaur was also medicolegally examined by PW.1 Dr. Avtar Singh and the following injuries were found on her person:- “1. Reddish bruise 4 cms x 1 cm on the back of the right knee joint. Tenderness was present. Movements of the injury were painful. 2. Complained of pain on both arms and back, but there was no external wound or discolouration was present”. On the same day, PW.1 Dr. Avtar Singh had medicolegally examined accused-petitioner Bakhtaur Singh, who had suffered two injuries. Injury No.1 was on the head, whereas injury No.2 was pain. He had also medicolegally examined petitioner Jagtar Singh and found three injuries on his leg. All the injuries were simple in nature. Accused- petitioner Resham Singh was also medicolegally examined by PW.1 Dr. Avtar Singh, who had suffered two injuries. Injury No.1 was on the left index finger and injury No.2 was a complaint of pain over the sole of feet. No bruise or external wound was received. Criminal Revision No. 896 of 2002 11 Darshan Singh, complainant, appeared as PW.2 and reiterated as to what was stated in his statement Ex.P1. In cross- examination, he admitted that for causing injuries to Bakhtaur Singh, Jagtar Singh and Resham Singh, a cross case was registered against him and his brothers Major Singh, Jaswinder Singh, sister Amarjit Kaur, sister-in-law Ranjit Kaur and mother Kartar Kaur, under Sections 323, 324 and 34 IPC. He further admitted that the turn of water of Dalip Singh, from whom Bakhtaur Singh etc. had taken the fields on theka (lease), was from 6.50 A.M. to 7.48 A.M. He further admitted that they had purchased four acres of land from Kanshi alias Maghar Singh. His remaining land was with them on lease. The total holding of Kanshi alias Maghar Singh was in their possession and Tota Singh had purchased four acres of land from Kanshi alias Maghar Singh. Before the occurrence, the accused had obtained the said land on mortgage. Learned counsel for the petitioners has laid much emphasis on the following lines of cross-examination of complainant PW.2:- “...It is correct that our turn of water was to start from 7.48 A.M. to 8.21 A.M., volunteered the said turn is of our ancestral property and not of Jaila Singh's property. We had gone to take turn of water at 7.00/7.15 A.M. It is wrong to suggest that Bakhtaur Singh asked me that 18 minutes of his turn of water are pending”. Jaswinder Singh, other injured, appeared as PW.3 and corroborated the testimony of PW.2 Darshan Singh. The statements of accused-petitioners were recorded under Criminal Revision No. 896 of 2002 12 Section 313 Cr.P.C. Petitioner Bakhtaur Singh stated that his turn of water was from 6.50 A.M. to 7.48 A.M. and the complainant party intended to take their turn from 7.30 A.M. They were restrained to do so and the occurrence had ensued. At that time, Major Singh gave a gandasa blow on his head. Sukhmander Singh gave a gandasa blow in his hand and they had caused injuries to the complainant party in their self-defence. The trial Court came to a conclusion that no party had a right of self defence and it was a case of free fight. The following well reasoned and emphatic finding is required to be affirmed by this Court:- “...From the evidence on record it is amply established that the occurrence took place all of sudden when both the parties were present, in their fields for irrigating their land. The accused were already irrigating their fields and the complainant party was to take their turn after the accused and in order to take turn they reached the place of occurrence at about 7/7.30 A.M. The turn of water of the accused was upto 7.48 A.M. The complainant party tried to take their turn just when a minute of the accused party's still remained to be used. The accused were seven in number while the complainant party were six in numbers. The statements of prosecution witnesses reveals that all the accused persons as well as complainant party fought with each. Since both the parties come Criminal Revision No. 896 of 2002 13 armed with determination to measure their strength and to settle a dispute by force and in the ensuring fight both sides received injuries therefore no question of right of private defence arises. In such a case of free fight both parties are aggressors and none of them can claim right of private defence”. Now the question arises that when it is a case of free fight, then as to whether Section 149 IPC can be applied. This Court, in Criminal Appeal No.771-SB of 1997 titled as “Jaspal Singh and Others v. State of Punjab” (decided on 19.1.2010), relying upon various judgments of the Hon'ble Apex Court, held that in case of free fight, Section 149 IPC is not attracted. In the above said case, it was held as under:- “It was held by Hon'ble the Apex Court in Kanbi Nanji Virji and Others v. State of Gujarat AIR 1970 Supreme Court 219 that in case of free fight, each accused is responsible for his own act. Therefore, a mandate of law was laid that only those persons, who are proved to have caused injuries, can be held guilty for the injuries caused by them. This view was further reiterated in Kashi Raj and Others v. The State of Bihar 1994 Supreme Court Cases (Criminal) 416. It was concluded that in case of a free fight, it is not safe to convict all the accused applying Section 149 IPC for offence of murder. In Abdul Hamid and Others v. State of U.P. (1991) Criminal Revision No. 896 of 2002 14 1 Supreme Court Cases 339, this view was also reiterated”. This view was further followed in case of Gurmit Singh and Others v. State of Punjab (Criminal Appeal No. 857-SB of 1997, decided on 22.1.2010), wherein this Court had observed as under:- “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 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 Criminal Revision No. 896 of 2002 15 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 Criminal Revision No. 896 of 2002 16 1954 Supreme Court 695, Hon’ble Apex Court held as under: “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.” In view of the settled legal position, conviction of the petitioners, for the offence under Section 148 IPC is liable to be set aside and no petitioners can be convicted with the aid of Section 149 IPC. Therefore, each petitioner will be responsible for his own role. Injury No.1 on the person of PW.2 Darshan Singh was on his head and underline bone was completely cut. This injury was attributed to petitioner Tota Singh. Thus, he is held liable for the offence under Section 326 IPC. Injuries No.5 and 7, on the person of Major Singh, were grievous in nature. Injury No.5, on the person of Major Singh, was a fracture of left forearm. This injury was attributed to Hardesh Singh and Resham Singh. They had caused injuries from the reverse side of gandasa and gandhali. They are substantively held liable for the offence under Section 325 IPC. Ranjit Kaur had suffered incised injury on the top of her head. This injury was attributed to Jagtar Singh, who is held responsible for the offence under Section 324IPC, whereas the other petitioners are held responsible for the offence under section 323 IPC. Criminal Revision No. 896 of 2002 17 The sentence of one and a half year rigorous imprisonment as awarded by the Additional Sessions Judge for the offence under section 326 IPC to petitioner Tota Singh along with a fine of Rs.500/-, is maintained. Petitioners Resham Singh and Hardesh Singh, had caused injuries falling within the ambit of section 325 IPC. They are sentenced to undergo rigorous imprisonment for a period of one year and three months and to pay a fine of Rs.500/- each. Jagtar Singh had caused injury, which falls under section 324 IPC. The sentence of one year's rigorous imprisonment, awarded to him by the trial Court, under section 324 IPC is maintained along with fine and default clause. The sentence, along with the default