BHAOEL SINGH

SW ARAN SINGH AND ORS.

JANtJARX 22, 1992

{KULDIP SJNGH AND R.M. SAHA!, 11.]

 Jndlan Penal Codlt.1860.

Ss. JI, 302-Free fight between rival partles.,...-Two persons shot dead-"-Whether participants respo11Stble for their individual acts.

C Code of Criminal Proced11re, 1973.

S. 31 tatement of acC11Sed setting 11p a defencl!-Not supported by other e.vldence-Medtcal evidence-Contrary .to defence versioh--Credtbllity_of statement.

0 A dispute in respect of a drain to be dug thro"gb the fields of the appellant-complainant led to a quarrel between tlie complainant party 11nd the respondents no .. 1 to 4 (all brothers and arrayed as accused nos. 1 to 4 respectively, before the trial court) In which, according to the prosecution case, respondent no. 4 received minor Injuries whereas PW 14 on the complainant's side was seriously E injured; and . while he was being taken to the city hospital in a tractor trolly accused nos. 1 to 4, armed wiib rifle, kirpan; gun and .ma respectively, challenged the complainant party near the village

bus stop. Thereupon deceased-I with some others got down from the tractor and went forward to pursuade accused no. 1 to keep peace while the latter fired two successive shots hitting deceased I and .

F deceased-2 who died on the spot. Accused no. j fired two shots causing Injuries to two other persons of complainant party. Accused no. 3 11..ave kirpan blows to PW 16 as also to PW 15, who was in the grip of accused no. 4. In the incident, accused no. I also received Injuries. The case originated with the F.I., R lodged by lhe omplaln- . ant-appellant (PW II) and culminated In the trial of the four ac- . G cused.

The prosecution produced the complainant-appellant (PW II) and.the three Injured (PW 14-16) as eye-witnesses.

Accused no. 1 in his statement under s .. 313 Cr. P.C. set up a H defence plea stating that. there was a minor quarrel between the

 BHAGEL SINGH"· SW ARAN SINGH 339

-. par.ties in the fields in the presence of Sub-Divisional Officer and on A bis intervention they returned to the house. After some time when they came to know that the other party was causing injuries to accused no. 4, accused nos. 1 to 3 armed with rlOe, kirpan and gun respectively, went there in order lo rescue him but .PW 15 caught hold of accused no. 1 a.11d _ihe complainant started giving him Takwa bfows while deceased-2 gave him stick-blows and in this process the B . riOe went off. He further stated that accused nos. 3-4 also suffered injuries.

The trial court, accepting the eye-witness testim.ony and rejecting the "defence plea, held that the accused party was agressor and as such charges against them were proved beyond reasonable c doubt. It convicted a.ccused no. 1 under s. 302 IPC and each of accused llOs. 2, 4 under s. 302 read with s. 34 IPC, and sentenced all

of them to imprisonment for life. They were also awarded sentence of fine. The trial court further .convicted accused nos. 2 to 4 under s. 307 & 325 IPC, 326 IPC, and 323 IPC respectively, and also convicted all the accused under these sections with the aid of s. 34 D lfC. Accused nos. 1 and 3 were also convicted under the Arins Act.

On appeal, the High Court, accepting the defence version as more probable tha, n that of the prosecution, reversed the findings of the trial court,· silo.wed tbe appeal and acquitted all the accused.

Aggleved, the complainant preferred the appeal by special.leave to E this Court.

Accepting the appeal to the exle'!I of acquittal of accused no. 1 and setting it aside, thi.s Court,

HELi>: 1.1 The flildin11s of the High Court lhat-accused No.

~ ., 4 had been disabled by the time the inher accused, persons reached the spot and 11 such the accused party was justlfie~ in acting in selfdefence; accused nos. 1 was Injured by the complalnaiti party before h.e had actually l!Sed his rifle; and that accused nos. 1 and 3 fired from a close range-apart from being contrary to the eyea witness account, are belied by the medical evidence on retard ..

(345 GH; 346 C-D; 347A-B)

1.2 The doctor (PW 3) who examined respondent no. 4 found simple injuries on his person. He nowhere stated that the accused

J,, became disabled because of .the Injuries. The nature of the Injuries . H was such that the conclusion reached by the High Court .was with out any basis. (pp. 34S H; 346 A)

A 1.3. the injuries on the person of accused no. 1, including the one with a sharp edged weapon on the head, were much more serious than those of accused nos. 4. If accused no. I who was armed with a rifle could be given 12 injuries with different weapons at the . time when all the four accused persons were present on the spot, there was no reason why accused no. 4 could not have been given B injuries at the same time. (p. 346 BC)

1.4.Accused no. I in his statement unoer s. 313, Cr. P.C. spccific11lly stated that accused no. 4 suffered injuries at the hands of the other party which obviously means that he was given beating at the same time when accused no. I was injured. (p. 346 CJ

l.S. Looking at the nature of injuries and the opinion of the doctor it cannot be believed that accused no.I could have fired two shots killing deceased-I and deceased-2 after receiving the injuries.

The trial court was right in holding that after receiving 12 injuries and with his condition as opined by the doctor it was difficult to believe that accused no. 1 was in a position to fire the shots. He must have, therefore, used his gun before receiving the injuries. (p. 346 H; 347 Al

1.6. The doctor who conducted the post-mortem on the dead body of deceased-I stated that there was no blackening, scorching or tattooin~ which indicates that the shots were not fired from a close range. (p. 347 BJ

2.1 The defence version as given by respondent no. 1 does not inspire dnfidence. (p. 347 B-C)

2.2 If PW IS caught hold of accused no. I ancJ the appellant gave Takwa blow on his head he could not have posslbly fired two shots killing the two deceased. In any case, even. if he was in a position to fire the shots he would have first fired at the appellant who was the .main enemy and was hitting him with Takwa. It is highly improvable that in that situation he would have fired at the two deceased. Even otherwise, accused no. I had not stated how the rifle held. hy him went off. No evidence was produced to further clarify the defence version. (p. 347 CD]

2~3 The High Court, therefore, erred in accepting the defence version put forward hy accused no. 1 in his statement under s. 313, C_riminal Procedure Code. (p. 347 DJ

BHAGEL SINGH v. SW ARAN SINGH 341

3.1 The trial court was not right in holding that the accused party was the agrcssor. [p. 347 E[

3.2 There were bitter feelings between the parties and the tempers were high. The accused party was in favour of digging the drain , whereas the complainant party was against the proposal because the' drain was passing through their fields. On the day of occurrence the complainant party gave beating to accused no. 4 and thereafter the accused party injured PW 14 belonging to the complainant party.

Before the main occurrence took place sufficient heat had been generated between the parties and they were itching for a show-down. (pp. 347 E-F[

3.3 The only probable conclusion is:thafthc two parties came across each other and had a free fight as a csult of which both sides suffered injuries and two persons died. In such a situation the participants arc responsible for thcirindividual acts. (p. 347 G)'

4.1. Both the courts below, though giving conflicting verdicts, D have rightly come. to the conclusion that the two deceased were killed hy the gun shots fired by accused no. 1. who in bis statement under s. 313, Cr. P.C. stated that while injuries were being caused to him his rifle went off, (pp. 347 GH; 348 A) ·

4.2 Accused no. I is, therefore, guilty of causing murder of the E two deceased and is accordingly convicted under •.· 302; IPC and sentenced to imprisonment for life on the two counts. There is no evidence to prove the commission of any offence by the other participants beyond reasonable doubt. Accused nos. 2 to 4 arc, therefore, acquitted by giving them bcnfit of doubt. (p. 348 A-Bf

CRIMINAL APPELLATE JURff;:>ICTION' Criminal Appeal >fo. 302 of I !>80.

From the Judgment and Order dated the 2.11.1979 of the Punjab and Haryana High Court in Crl. A. No. 455 of 1978.

S.K. Jain for the Appellant.

R:S. Sodhi for the Respondents.

The Judgment of the Court was delivered by

A KULDIP SINGH, J. Swaran Singh and his brothers Avtar Singh, Ajmer Singh and Rajinder Singh were tried for the murder of Kandhar.\ Singh and Darbara Singh .. They were also tried for causing injuries to Tarlok Singh, Sadha Singh, Anokh Singh, Sukhdev Singh and Boor Singh.

Swaran Singh and Ajmer Singh were further tried under Arms Act. The trial court convicted Swaran Singh under Section 302, !PC and sentenced B him to imprisonment for life on two counts. Other accused were sentenced with the aid of Section 34, !PC to imprisonment for life. They were also awarded sentence of tine. Ajmer Singh, Avtar Singh and Rajinder Singh were further convicted under sections 307 and 325 !PC, 326 !PC and 323 !PC respectively. All the four accused were inter-se convicted under these Sections with the aid of 34, !PC. The High Court, on appeal, set aside the C. conviction and sentence of all the accused and acquitted them. This appeal by way of special leave is by the complainant against the jud8JT\ent of the High Court.

We may briefly notice the prosecution story as recorded in the first information report lodged by Baghel Singh PW 8. A drain was to be dug- D up through the village. It was to pass through the fields of Baghel Singh, Complainant Swaran Singh accused was the sarpanch of the village. He wanted the drain to be dug whereas Baghel Singh was opposed to it. On July 23, 1977 at about 5.15 p.m. the. Sub-Divisional Officer accompanied .4 by a police inspector visited the village in a Government jeep in order to inspect the site of the proposed drain. The jeep was parked at . some E distance from the site. The accused and the complainant parties were present. Swaran Singh accused was armed with a pistol, Ajmer Singh with a dang and Rajinder Singh was having a Neza. There was some altercation between the groups and Rajinder Singh received minor injuries at the hands of the compfainants. At the same time Swaran Singh, Ajmr Singh and Rajindet Singh accused caused injuries to Boor Singh P.W: 14 who F was standing by the side of the Governme1itjeep. Baghel Singh and others raised an alarm upon which the above named accused persons left Boor , i Singh and went away. Boor Singh who had suffered number of injuries on his person was brought to the village in the jeep of the Sub-Divisional Officer. Boor Singh was put in a tractor trolley for taking him to the .. hospital in Ferozepore city. Baghel Singh P.W. 8, Anokh Singh P.W.IS, G Sukbdev Singh P.W.16, Kandhara Singh. Darbara Singh and some others also sat in the trolley. When they reached near bus stand of the village, Swaran Singh accused armed with a rifle, Ajmer Singh accused armed.· with a gun, A vtar Singh accused armed with a Kirpan and Rajinder Singh armed with a s11a came running toward the trolley from the village side.

They were raising threats that they would not allow Baghel Singh and his H companions to go. The tractor was stopped and some of the occupants got

BHAGEL SINGH v. SW ARAN SINGH [KULDIPSINGH, J.J . 343

-i down. Kandhara Singh went forward and tried to persuade Swaran Singh A to keep peace. The latter, however, fired a shot which hit Kandhara Singh on the left side of chest and he fell down. Swaran Singh fired again hitting Darbara Singh who also fell down. Both Kandhara Singh, and Darbara Singh died on the spot. Ajmer Singh accused fired !Wo shots from his gun injuring Tarlok Singh and Sadha Singh. Avtar Singh gave a Kirpa~ blow to Anokh Singh' on his head. A vtar Singh also gave a Kirpan blow on the B right wrist of Sukhdev Singh. Rajinder Singh took Anokh Singh in his grip. Baghel Singh kept on raising alarm while standing near the tractor.

According to Baghe1 Singh "Swaran Singh etc. also received injuries from . . us in our self-defence". All the four accused thereafter went away from the place of occurrence. Baghel Singh went to the police station to lodge the first information report which was recorded at 7.30 p.m. c

Nine injuries were found on the person of Boor Singh which ineluded !Wo grievous injuries. The bones underneath left forearm were fractured.' Swaran Singh accused was examined by the doctor at 6.45 a.m. on July 24, 1977 who found 12 injuries on his person. The doctor opined that his condition was very serious. Five of the injuries were on the head.

D TI1ere was an incised wound 7 cm x 1. cm on the top of the head which . was bone deep. Rajinder Singh accused had ten simple injuries on his person. It is not necessary to note the injuries on the other nlembers of the accused or the complainant party.

The occurrence took place at about 5.25 p.m., the. FIR was lodged at E 7.30 p.m. and the special report reached the Magistrate at 11 p.m. the same day.

The prosecution produced Baghel Singh P.W. 8, Boor Singh P.W. 14, Anokh Singh P.W. 15 and Sukhdev Singh P.W. 16 as eye-witnesses.

Except Baghel Singh the other three were injured witnesses.

' Swaran Singh accused in his statement under section 313, Criminal Procedure Code set up the defence-plea as under:·

"S.D.O. came to the village to inspect the spot where the drain G was to be dug. There was minor quarrel in the fields. S.D.O. intervened'and separated the parties. We returned to the house.

After sometime, we came to know that the other party was causing injuries to my brother Rajinder Singh. Myself armed with a rifle, Ajmer Singh anned with a gun, and A vtar Singh .

-J,. anned with a ki17Jat1 went there to rescue Rajinder Singh. We H found Baghel Singh, Kandhara Singh, Darbara Singh, Anokh

Singh, Sukhdev Singh, Harbhej Singh, Tarlok Singh and Boor Singh, causing injuries to Rajinder Singh. lniervened to rescue Rajinder Singh, Anokh Singh caught hold of me. Bagliel Singh gave a takwa blow hitting on my head. Kandhara Singh started giving stick blows to me. When the injuries were being caused, the rifle went off, Avtar Singh and Rajinder Singh also suffered injuries in the meantime at the hands of the other party.

We were medically examined. My statement was recorded by the police in the hospital."

The trial court accepted the eye-witness testimony, rejected the defence-plea and came to the conclusion that the accused party was aggres- C sor and as such the charges against them were proved beyond reasonable doubt. The High Court without adverting to the testimony of the eyewitnesses reversed the findings of the trial court on the ground that the defence-plea was more probable than the prosecution version. The High Court accepted the defence-plea and acquitted the accused. The High Court accepted the defence version on the following reasoning : D

"According to the eye-witnesses, there was a minor altercation in the presence of the S.D.O. 'in which Rajinder Singh appellant had received some fist blows. They have also stated that Rajinder Singh appellant was armed with a s1ia when the main occurrence took place near the bus stand. Baghel Singh PW 8 has. however, admitted that this appellant did not wield his new at the time of the main occurrence. This is a tell-tale circumstance which goes to establish that probably by that time this appelllant had been disabled because of the injuries received by him at the hands of the complainant party. Otherwise. there appears to be no earthly reason for this appellant to have refrained from using the .ma when his real brother Swaran Singh was being seriously beaten, even though he was anned with a rifle. This circumstance goes a long way to make the defence version more probable. The type of injuries received by this appellant clearly show that he had been .attacked by 1nore than one preson who had been anned with lath is or taku1as which had been used from wrong side. This could only have happened if he had come across the complainant party in the absence of Swaran Singh. Avtar Singh and Ajmer Singh--his real brothers. It appears to us that while Boor Singh PW 14 was being taken on the tractor-trolley to the hospital. Rajinder Sint!h appellant happened to con1e across the1n when so1ne of the 1nen1bers of the cotnplainant party started giving: hirn a

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BHAGEL SINGH v. SW ARAN SINGH (KULDIP SINGH, J.J 345

beating. It matters little whether he was coming on a loaded or A an empty cart. On receipt of injuries he might have raised an . alarm which attracted the other three appellants who came there armed as suggested by the prosecution witnesses. Furthermore if Swaran Singh and Ajmer Singh appellants had entertained aggressive intentions from the very beginning, they would have fired from their respective fire-arms at the com- B plaint party from some distance. On the other harid, we find that Swaran Singh appellant had as many as 12 injuries on his person and Avtar Singh appellant had three injuries on his person. These injuries could have been inflicted upon Swaran Singh appellant before he had actually put his rifle to use. It is somewhat difficµlt to reconstruct the original scene but the C probabilities are that even when_ he came armed with a rifle on the spot he exercised discretion in the hope that the other party would perhaps leave his brother Rajinder Singh appellant on seeing him armed with a rifle. This, however, did not happen and on the other" hand he was also subjected to an attack. It was probably at that time that he fired two shots from his rifle D hitting both the deceased. He might have received some injuries before he fired the two shots and some injuries thereafter but that again is immaterial. Once it is held that Rajinder Singh appellant was being beaten by more than one person, this appellant did have the right to save his life and also his own life when he was attacked. Ajmer Singh appell:IJlt also E appears to have fired two shots from his gun when he saw that Swaran Singh appellant, in spite of his holding a rifle, had been disabled. In any event, the defence plea-is not of that type as can be dismissed on first sight. On the other hand, the circumstances enumerated by us show that it was somewhat more probable." F

We are of the view that the High Court reasoning is based on surmisea and conjectures. The main reason which weighed with the High Court was that Rajinder Singh accused had been disabled by the time other accused persons reached on the spot and as such they were justified in acting in self-defence. According to the High Court, had Rajinder Singh G not been disabled he would have come forward to help his brother Swara11 Singh who was being seriously beaten .. Apart from the eye-witnesses, the medical evidence belies the conclusion reached by the High Court. Rajiilder Singh was examined by the doctor at 1.00 a.m. on July 24, 1977 and found ten simple injuries on his person. Dr. Amarjit Singh who examined Rajinder Singh was.produced as OW 3. He was only asked to give lhe H details of the injur_ies. He nowhere stated. that Rajinder Singh became

A disabled because of the injuries received by him. The nature of the injuries is such that the conclusion reached by the High Court is without any basis. The High Court finding that the nature of injuries on the person of Rajinder Singh were such that the same could only be caused when the other three accused were not present is further based on conjectures. The injuries on the person of Swaran Singh were much more serious than. that B of Rajinder Singh. There were 12 injuries on the person of Swam Singh which included one grievous injury on the head with a sharp edged weapon.

If Swaran Singh who was armed with a rifle could be given 12 injuries with different weapons at the time when all the four accused persons were present on the spot there is no reason why Rajinder Singh could not have .been given injuries at the same time. In any case Swaran Singh in his C statement under section 313, Criminal Procedure Code reproduced above has specifically stated that Rajinder Singh suffere~ injuries at the hands of the.' other party which obviously means that Rajinder Singh was given beating at the same time when Swaran Singh was injured. The finding of the High Court that Swaran Singh accused was given injuries by the complainant party before he hiid actually used his rifle is contrary to the D medical evidence on the record. Admittedly there were 12 injuries on the person of Swaran Singh. Dr. Sandhu, Medical Officer, Civil Hospital, Ferozepore examined as DWZ stated as under :

"General condition.

Pulse 130 per minute. B.P.70/40 M. M. of MG. Respiratory rate 24 per minute. Pupils equal and reacted to light, the patient delirous and talked irrelevant. The general condition was very serious. Injuries No. I to 6 and 8 kept under observation.

Rest all simple. Injury No. I was caused by sharp edged weapon.

Rest were caused by a blunt weapon. The duration of the injuries was within 24 hours. I have brought the original medico legal report which is in my hands and bears my signatures.

Injury no. I was declared grevious after Xray report.

:XXXn.

Q .. Was the condition of the patient serious because of the injuries'!

A. Yes."

Looking at the nature of injuries and the opinion of the doctor it is difficult to believe that Swaran Singh could have tired two shots killing Kandhara Singh and Darbara Singh after receiving the injuries. We agree with the trial court that after receiving 12 injuries and with his condition

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RHAGEL SINGH v. SW ARAN SINCiH [KULDIP S[])JGH, J.] 347

as opined by the doctor it is difficult to believe that Swaran Singh was in A position to fire the shots. He must have, therefore, used his gun before receiving the injuries. The finding reached by the High Court that Swaran Singh and Ajmer Singh fired from a close range is again belied by the medical evidence. Dr. Birender Pal Singh PW3 who conducted the postmortem on the dead body of Kandhara Singh stated that there was no blackening, scorching or tattooing which indicates that the shots were not B fired from a close range.

The defence version as given by Swaran Singh to our mind does not inspire confidence. If Anokh Singh caught hold of Swaran Singh and Baghel Singh gave Takwa blow on his head he could not have possibly fired two shots killing Kandhara Singh and Darbara Singh. In any case, C even if he was in a position to fire the shots he would have first fired at Baghel Singh who was the main enemy and was hitting.him with Takwa.

It is highly improbable that in that situation he would have fired at Kandhara Singh who was holding a stick and Darbara Singh who was no where near Swaran Singh. Even otherwise Swaran Singh had not stated how the rifle. held by him went off. No evidence was produced to further clarify the D defence version. The High Court, therefore, erred in accepting the defence version put forward by Swaran Singh accused in his statement under section 313, Criminal Procedure Code.

While rejecting the plea of self-defence and setting aside the High Court verdict we are not inclined to agree with the trial court that the E accused party was the aggressor. There were bitter feelings between the parties and the tempers were high. Jhe accused party was in favour of digging the drain whereas the complainant party was against the proposal because the drain was 'passing through their fields. It is the prosecution case that on the day of occurrence the complainant party gave beating to Rajinder Singh accused and thereafter the accused party injured Boor F Singh belonging to the complainant party. Before the main occurrence took place at 5.25 p.m. suffici.ent hea'-_had been generated between the parties and they were itching for a show-down. The only probable conclusion is that the two parties came across each other and had a free fight as a result of which. both sides suffeicd injuries and two persons died. In such a situation the participants are responsible for their individual acts.

Both the courts below, though giving conflicting verdicts, have come to the conclusion that Kandhara Singh and Darbara Singh were killed by the gun shots fired by Swaran Singh. In his statement under section 313, C-rin1inal Procedure Code he stated that while injuries were being caused to hi1n the rifle with which he was am1ed went off. Swaran Singh is, H

348 Slll'REME COURT REPORTS

11992] I S.C.R.

A therefore, guilty of causing murder of Kandhara Singh and Darbara Singh. r- •·

We, therefore, convict him under section 302, !PC and sentence him to imprisonment for life on the two counts. So far as the other participants in the free fight are concerned there is no evidence to prove the commission of any offence by them beyond reasonable doubt. We, therefore, give them benefit of doubt and acquit them.

The appeal is, therefore. accepted to the extent that the acquittal of Swaran Singh by the High Court is set aside. We convict Swaran Singh under section 302, !PC and sentence him to life imprisotunent. The appeal is disposed of in these terms. Swaran Singh is on bail he shall surrender to C his bail-bonds and undergo the sentence of life imprisonment.

R.P. -Appeal disposed of.