IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 635 of 2001 (Old No. 1224 of 1992) Sri Man Singh S/o Sri Pooran Singh R/o Village Shyam Nagar No. 7 P.S. Galenpur, District Nainital. …………..…Revisionist. Versus 1. Gurbachan Singh, S/o Dayal Singh 2. Santokh Singh, S/o Gurbachan Singh 3. Sailendra Singh, S/o Gurbachan Singh 4. Subheg Singh, S/o Gurbachan Singh 5. Manjeet Singh, S/o Santokh Singh 6. Daljeet Singh, S/o Santokh Singh 7. State of U.P. ……….Respondents. Shri Chetan Joshi, Advocate for the revisionist. Shri A.S. Gill, Advocate for respondents No. 1 to 6. Shri Prabhakar Joshi, Brief Holder for respondent No. 7. Hon’ble Prafulla C. Pant, J. This revision, is directed against the judgment and order dated 30.05.1992, passed by Special Judge/Additional Sessions Judge, Nainital, in Sessions Trial No. 368 of 1989, whereby said court has acquitted the respondents No. 1 to 6, namely Gurbachan Singh, Santokh Singh, Sailendra Singh, Subeg Singh, Manjeet Singh and Daljeet Singh from the charge of offences punishable under Sections 148, 302, 307/149 of Indian Penal Code, 1860 (for short I.P.C.). 2. Heard learned counsel for the parties and perused the lower court record. 2 3. Brief facts of the case are that the revisionist is a complainant, who lodged First Information Report dated 23.06.1989 (Ext. A-1), which was registered as crime No. 230 of 1989, relating to offences punishable under Sections 147, 148, 149, 307 and 302 I.P.C. against accused/respondents Gurbachan Singh, Santokh Singh, Sailendra Singh, Subeg Singh, Manjeet Singh and Daljeet Singh. Prosecution case in brief is that complainant’s father Pooran Singh (one of the deceased), owned 11 bighas of land in Village Lalpur, within limits of P.S. Kiccha but about some 20 years before the date of incident (23.06.1989), he was ousted with family by accused/respondents. On 23.06.1989, said Pooran Singh along with Gurmukh Singh, Gurbaj Singh, Satnam Singh, Balbir Singh (complainant), Man Singh and Jeet Kaur came to Village Lalpur to erect their hut on the land from which they were ousted. When they made an attempt to erect their hut over the land, at about 6:00 a.m., accused respondent Gurbachan Singh, armed with BALLAM (a long rod with arrow shaped point), accused/respondent Santokh Singh and Sailendra Singh, armed with swords, accused/respondent Daljeet Singh, armed with BALLAM, came there and asked complainant and his other family members to leave the place. Accused/respondent Gurbachan Singh also came there and asked the above mentioned accused to attack the complainant and his family members. Accused/respondent attacked the complainant and his family members, on which they tried to save their lives but meanwhile accused/respondents 3 Subeg Singh, started firing at them, from his gun. He killed Pooran Singh (father of the complainant), Gurbaj Singh and Gurmukh Singh (both brothers of complainant). All the three succumbed to the injuries. Balbir Singh and Satnam Singh also suffered injuries. In the incident accused/respondent Gurbachan Singh and his sons also suffered injuries on their side. It appears that cross cases were registered on the complaint of the rival parties. Crime No. 230 of 1989, was investigated by Station House Officer Surendra Kumar Sharma, who rushed to the spot, took the dead bodies of Pooran Singh, Gurbaj Singh and Gurmukh Singh in his possession. He prepared inquest reports and sent bodies for post mortem examination. The post mortem examination was conducted on the dead bodies of the three deceased by P.W. 3 Dr. B.D. Nariyal, who prepared the post mortem reports (Ext. A-12, Ext. A-13 and Ext. A- 14). Also, the injuries of the injured Balbir Singh were examined by P.W. 4 Dr. A.K. Rana. Injuries on the person of Man Singh (P.W. 1)-complainant, were examined by P.W. 6 Dr. K.P.S. Chauhan. After interrogation of the witnesses and completion of investigation, charge-sheet (Ext. A-34) was filed by Investigating Officer against all the six accused/respondents, for their trial in respect of offences punishable under Sections 147, 148, 149, 307 and 302 I.P.C. 4. The Magistrate after giving necessary copies to the accused, appears to have committed the case to 4 the court of Sessions for trial. Learned Additional Sessions Judge, after hearing the parties, framed charge of offences punishable under Sections 148, 302 and 307/149 I.P.C. against accused Subeg Singh, and a separate charge relating to offences punishable under Sections 148, 302 read with Section 149 and 307 read with Section 149 I.P.C. was framed against accused/respondents- Gurbachan Singh, Santokh Singh, Sailendra Singh, Manjit Singh and Daljit Singh. All the accused/respondents, pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Man Singh (injured complainant), P.W. 2 Jeet Kaur (wife of the complainant), P.W. 3 Dr. B.D. Nariyal (who conducted post mortem examination), P.W. 4 Dr. A.K. Rana (who examined injuries on the person of Balbir Singh), P.W. 5 Head Constable Mohan Singh (who registered the case at the police station and prepared the check report- Ext. A-6 and made entry in the General Diary), and P.W. 6 Dr. K.P.S. Chauhan (who examined injuries on the person of Man Singh). The defence counsel admitted genuineness of the documents, site plan, inquest reports, and other papers on record. The trial court put the oral and documentary evidence to the accused under Section 313 Cr.P.C. in reply to which the accused/respondents pleaded that the complainant Man Singh (P.W. 1) and others came over the land in occupation of the accused/respondents and attacked Santokh Singh and Sailendra Singh with swords on which Gurbachan Singh, in private defence, fired shots. In 5 defence, injury report of Bachan Singh (Ext. B-1), copy of cross First Information Report (Ext. B-2), copy of General Diary (Ext. B-3), cross First Information Report (Ext. B-4), injury report of Sailendra Singh (Ext. B-5), injury report of Santokh Singh (Ext. B-6) and X-ray report of Bachan Singh (Ext. B-7), were filed. The trial court after hearing the parties accepted the plea of private defence, taken by accused/respondents and acquitted them of charge of offences punishable under Sections 148, 302, 307/149 I.P.C. Aggrieved by said judgment and order dated 30.05.1992, passed by Special Judge/Additional Sessions Judge, Nainital, in Sessions Trial No. 368 of 1989, this revision is filed by the complainant. 5. Learned counsel for the revisionist argued that the trial court has committed grave error of law in acquitting the respondents No. 1 to 6 in a case of TRIPLE MURDER. It is pleaded on behalf of the revisionist that from the statement of the injured witness read with post mortem reports, proved by P.W. 3 Dr. B.D. Nariyal, charge of offences punishable under Sections 148, 302, 307/149 I.P.C., stood proved against the accused/respondents No. 1 to 6. It is also contended that under the garb of right of private defence, accused had no right to kill any number of persons. 6. On the other hand, on behalf of respondents No. 1 to 6, reference is made to cases of Darshan 6 Singh Vs. State of Punjab 2010 (1) Supreme 138, and James Martin Vs. State of Kerela 2004 Supreme Court Cases (Criminal), 487, and it is argued that right of private defence is an important right of citizen and when there is no time to approach public authority, citizens do have right to protect themselves and their property. It is contended on behalf of accused/respondents No. 1 to 6 that it has come on the record that the land over which the complainant and his family members attempted to encroach upon and erect a hut was in possession of the accused/respondents No. 1 to 6. It is pointed out that there are injuries on both the sides. It is also submitted that since the complainant and deceased along with others came from a place far away from the place of incident, which was in possession of the accused/respondents, it is clear that the complainant and the deceased were aggressors. It is also pleaded that it has come on the record that they proceeded from their home in wee hours to reach place of incident at 6:00 a.m. It is also pointed out that gun used by accused Gurbachan Singh was his licensed gun. 7. Having considered submissions of learned counsel for the parties, and after perusal of the lower court record, this Court finds that it is true that plea of self defence was taken by accused/respondents. It is also found that there were reasons for the trial court to believe that since admittedly complainant’s father Pooran Singh was 7 ousted from the land in question, twenty years before the date of the incident, and from the order of the revenue authorities also, it was apparent that the accused/respondents were in possession of the land, as such, the trial court has committed no error of law in accepting the plea of private defence after it found that the complainant, deceased and their associates were the aggressors. But the vital question, which appears to have been ignored by the trial court is that whether the accused/respondents No. 1 to 6 have exceeded right of private defence, or not. This Court, is of the view that though every citizen has a right of self defence of his person and property but this right is only defensive right not retributive right. It is settled principle of law that right of self defence commences as soon as reasonable apprehension arises to the person and property and it is co-terminus with the duration of such apprehension. The moment the apprehension goes, right of self defence cannot be exercised. What has been done in the present case is that not one but three persons have been killed by Gurbachan Singh with other co-accused. This Court, in its revisional jurisdiction cannot reassess the evidence and impose its conclusion in the matter-whether or not the right of private defence has been exceeded. But it can set aside the order passed by the trial court on the ground that said court has failed to examine the issue, whether the right of private defence has been exceeded or not. 8 8. Exception 2 to Section 300 of I.P.C., provides that culpable homicide is not murder if the offender exercises in good faith of right of private defence of a person or property, and exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of private defence, without premeditation and without intention of doing more harm than is necessary for the purposes of such defence. A culpable homicide not amounting to murder is punishable under Section 304 I.P.C. It is pertinent to mention here that post mortem reports on the record, suggest that fire arm injuries have been caused to all the three deceased on their vital parts i.e. chests. In the circumstances natural question arises that was it necessary for the accused to aim vital part of all the three persons killed? 9. For the reasons, as discussed above, this revision is allowed. Impugned judgment and order dated 30.05.1992, passed by Special Judge/Additional Sessions Judge, Nainital, in Sessions Trial No. 368 of 1989, acquitting the accused/respondents No. 1 to 6, namely Gurbachan Singh, Santokh Singh, Sailendra Singh, Manjit Singh and Daljit Singh from the charge of offences punishable under Sections 148, 302, 307/149 I.P.C., is hereby set aside. The case is remanded back to the Sessions Judge, Nainital for examining the evidence on record afresh, in the light of the observation, made by this Court, as above. The parties to the revision are directed to appear before 9 the Sessions Judge, Nainital on 12.04.2010 and the trial court shall proceed further and conclude trial expeditiously. Registry is directed to send back immediately the lower court record to Sessions Judge, Nainital, for necessary action. (Prafulla C. Pant, J.) Dt:19.03.2010 Sweta