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NAFE SINGH & ORS versus STATE OF HARYANA

High Court of Punjab and Haryana, Chandigarh

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Nafe Singh & Ors v. State of Haryana - CRA-D-87-DB-2005 [2007] RD-P&H 899 (25 January 2007)

Cr.A.No.87-DB of 2005 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Crl. Appeal No. 87-DB of 2005

Date of decision : 25-1-2007

Nafe Singh & others ... Appellants.

Versus.

State of Haryana ... ... Respondent

CORAM:- HON'BLE MR. JUSTICE MEHTAB S.GILL
HON'BLE MR. JUSTICE ARVIND KUMAR

Present: Mr. R.S.Ghai, Sr. Advocate,

with Mr. Vinod Ghai, Advocate,

for the appellants

Mr.Kulvir Narwal, Addl. AG Haryana

...

ARVIND KUMAR, J :

This judgment shall dispose of Criminal Appeal No.87- DB of 2005 preferred by the accused(appellants herein) and Criminal Revision No.474 of 2005 filed by the complainant Kanwar Singh, having arisen out of a common judgment.

Criminal Appeal No.87-DB of 2005 is directed against judgment and order dated 12.1.2005/14.1.2005 passed by the Additional Sessions Judge, Panipat, whereby in case FIR No. 38 dated 30.5.2002 u/s 302/324/323/34 IPC, Police Station Bapoli, District Panipat, the accused- appellants have been convicted under Section 302 read with Section 34 IPC, for having committed the murder of Bhanwar Singh and have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- and in default of payment of fine, to further undero rigorous imprisonment for three years. Accused have also been convicted for committing offence under Section 324 IPC and have been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/- Cr.A.No.87-DB of 2005 2

and in default of payment of fine, to further undergo rigorous imprisonment for three months. The accused have further been convicted for committing offence under Section 323 IPC and have been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- and in default of payment of fine, to further undergo rigorous imprisonment for 45 days. All the substantive sentences were, however, directed to run concurrently. It was further directed that 4/5th of the amount of fine on

realization was to go to the legal heirs of Bhanwar Singh, injured Mukesh and Vinod in the ratio of Rs.15,000/-, Rs.2750/- and Rs.2750/- respectively.

Further, the period of detention already undergone by the accused during enquiry and trial was ordered to be set-off while calculating the total period of sentence. It was also ordered that the case property i.e. Ballam, Gandasi and Lathi be confiscated to the State and disposed of as per rules after the period of expiry of period of appeal/revision.

In brief, the facts of the case are that on 30.5.2002, Kanwar Singh(PW4)-complainant along with his brother, namely, Bhanwar Singh(since deceased) was working in the fields known by the name of Yamuna belt. Ram Phal son of Sugna,Gujjar, resident of Goela Khurd, was also ploughing his fields. Besides, the sons of the complainant, namely, Vinod and Mukesh, were also working in the field. At about 12 noon, Nafe Singh son of Shoran Singh armed with a Ballam, Dheeraj armed with a Gandasi and Angrej Singh armed with a Lathi, came to their fields and raised a Lalkara that Bhanwar Singh be taught a lesson for ploughing the fields, whereafter Nafe Singh gave a Ballam blow to Bhanwar Singh on the right side of his chest on its lateral side lower part, while Dheeraj gave a Gandasi blow on his left knee and Angrej gave a Lathi blow to him. Upon this, Bhanwar Singh cried 'Mar Diya Mar Diya' and on hearing his noise, Vinod and Mukesh went to rescue their uncle Bhanwar Singh but they were also inflicted injuries by the above-three accused with their respective weapons. When Kanwar Singh-complainant along with Ram Phal intervened, the accused along with their respective weapons fled away from the spot. Accused Nafe Singh while leaving told them that his brothers Sahab Singh and Iqbal Singh has lot of money and can manage the affairs.

Kanwar Singh,complainant, along with Ram Phal went to the spot and found his brother Bhanwar Singh lying dead. Thereafter, Hari Singh son of Cr.A.No.87-DB of 2005 3

Phula Singh and his wife Kiran Sarpanch who were coming from the fields along with Jhota-Buggi took the injured to village and subsequently, to Civil Hospital,Panipat. Complainant Kanwar Singh made statement Exhibit PB before ASI Randhir Singh in regard to the occurrence which led to registration of formal FIR Exhibit PB/1 after making an endorsement Ex.PB/2. After commencement of investigation, both the injured, Mukesh and Vinod, were got medico-legally examined and their medical reports Exhibits PE and PF were obtained. The police then moved an application Ex. PG for recording their statements and vide endorsement Ex.PG/1 the injured were declared fit to make statement. The police also moved an application Exhibit PH/3 for conducting post-mortem on the body of Bhanwar Singh deceased and post-mortem report, Exhibit PH, was given.

Thereafter, a rough site plan, Exhibit PN, of the place of occurrence was prepared. The dead-body of Bhanwar Singh was got photographed and photographs Ex.P3 to Ex.P6 along with their negatives Ex.P7 to Ex.P10 were collected. A scaled site plan of the place of occurrence Ex.PC was got prepared. Blood-soaked earth was also collected from the place of occurrence and taken into possession vide seizure memo. Ex.PD.

Thereafter, proceedings uunder Section 174 Cr.P.C. were conducted. All the three accused, named above, were arrested out of whom accused Nafe Singh made a disclosure statement Exhibit PQ on the basis of which he got recovered Ballam, Exhibit P-2, which was taken into possession vide recovery memo. Ex.PQ/2 after preparing its rough Khaka Ex.PQ/1. Further, the rough site plan of the place of recovery of the said weapon of offence, Exhibit PQ/3, was prepared. Later, the other two accused, namely, Dheeraj and Angrej Singh produced weapons of offence, i.e. Gandasi,ExP-1 and Lathi taken into possession vide recovery memos. Ex.PS and Ex.PS/1 after preparing their rough Khakas Ex.PR and Ex.PR/1 respectively. The police then moved an application Ex.PH/1 for getting opinion from the doctor about the nature of injuries caused to deceased Bhanwar Singh with Ballam and obtained report Ex.PH/2.

On presentation of challan, the accused-appellants were charge- sheeted under Sections 302/324/323 read with Section 34 IPC, to which they pleaded not guilty and claimed trial.

The prosecution, in order to prove the charge against the Cr.A.No.87-DB of 2005 4

accused-appellants, examined PW-1 Randhir Singh, ASI Sukhbir Singh as PW2, Rakesh Kumar Patwari as PW3, Kanwar Singh complainant, as PW4, Ram Phal as PW5, Dr.Arun Sehgal as PW6, Dr.K.L.Chopra as PW7, Mukesh as PW8, HC Jagat Singh as PW9, Head Constable Ram Phal as PW10, Head Constable Satbir Singh as PW11, Rajbir Singh as PW12, ASI Randhir Singh as PW13,ASI Bhagat Singh as PW14 and Inspector Bhullan Singh as PW15, besides tendering into evidence the report of FSL, Ex.PT and Ex.PT/1.

Accused-appellants in their statement under Section 313 Cr.P.C. took the plea of innocence and false implication with the plea of self-defence. Accused Nafe Singh took the plea that he along with his brother Sahab Singh and Iqbal Singh had purchased 25 kanals 12 marlas of land from Suno vide sale-deed dated 9.6.1980 and that she had also transferred her share in the Shamlat Deh situated near the Yamuna belt in his favour as also in favour of his brother and the said land including the land near Yamuna belt was being cultivated by him and his brothers. After one Ms.Kiran became Sarpanch of their village, the complainant party being related to her, wanted to usurp the said piece of land of Shamlat Deh which as in their possession and in order to take forcible possession in their possession, Bhanwar Singh(since deceased), Kanwar Singh, Vinod and Mukesh accompanied by some other persons trespassed into the said field armed with deadly weapons and caused serious injuries to him and co- accused when they were working in the fields. He stated that they also caused injuries to them in exercise of right of self-defence in order to save themselves. He further stated that the police was mixed up with the complainant party and after undue and prolonged deliberation, the police gave the present shape to the case falsely in order to help the complainant party and even did not take any action in regard to the injuries sustained by him and his co-accused, although they were examined in General Hospital,Panipat and remained there despite the ruqa sent by the concerned doctor to the police. Nafe Singh further stated that the investigation was tainted and one-sided and that the deceased Bhanwar Singh had never been in possession of any land in the vicinity. The other two accused, namely, Angrez Singh and Dheeraj in their respective statements had adopted the plea that was put forth by Nafe Singh accused in his statement. In defence Cr.A.No.87-DB of 2005 5

evidence, the accused-appellants examined as DW-1 Raj Kumar, Registration Clerk, office of Sub Registrar, Panipat, besides proving sale- deed Ex.DH.

On consideration of the entire evidence on record, the learned Additional Sessions Judge vide judgment and order dated 12.1.2005/14.1.2005 held the charge proved against accused-appellants and thus, convicted and sentenced them, as stated above. Hence, the present appeal by the accused-appellants.

Learned counsel for the parties have been heard.

In the present case, occurrence is not in dispute, so as the presence of the witnesses including PW-4 Kanwar Singh and PW-8 Mukesh. Accused-appellants also do not deny their presence. The argument is with regard to plea of right of self-defence. The very basis of this argument is that the accused-appellants had also received injuries on their person which had not been explained by the prosecution witnesses and this amounts to suppression of genesis of the occurrence. The contention is meritless. Merely because there was a quarrel and some of the accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death, as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary.

The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot also be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. Similarly, mere non-explanation of the injuries on the person of the accused persons by the prosecution may not affect the prosecution case, in all cases. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. It is well settled that to claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him.

However, in the instant case, no evidence, muchless cogent and credible, Cr.A.No.87-DB of 2005 6

has been adduced in this regard. No doubt, Nafe Singh, Angrez Singh and Dheeraj were having injuries on their person, numbering three injuries, one injury and nine injuries respectively, and they were medically-examined by PW-6 Dr.Arun Sehgal who had also examined injured witnesses, namely, PW-8 Mukesh and Vinod (not examined). However, a bare perusal of the injuries on the person of Nafe Singh, Angrez Singh and Dheeraj suggests that none of the injuries on their person was grievous but all were simple in nature; to say, that the apprehension was so grave necessitating them to have caused the death of Bhanwar Singh. Further, undoubtedly, PW-6 Dr.Arun Sehgal sent ruqa, Exhibit DE, about their admission and PW-13 ASI Randhir Singh did visit the hospital but if the accused-appellants were sure about their right of self-defence, they would have goe registered a cross-case against the complainant party giving the entire sequence of occurrence and if at all for any reason their version was not recorded by the police, they could redress their grievance to the higher Authorities or to file a private complainant giving their own version but inaction on their part in this regard and in back-drop of the simple injuries on their person, do not probabilise their version of right of self-defence. Further, the land where the occurrence had taken place is of Yamuna belt and was a Khadar land.

The claim of the accused-appellant Nafe Singh is that he and his brother Sahab Singh had purchased 25 kanals 12 marlas of land from Suno on 9.6.1980 and she had also transferred her share in the Shamilat Deh situated near Yamuna belt and the same were under their cultivation and Bhanwar Singh etc. wanted to take forcible possesion of the said land which had given rise to the said occurrence. No doubt, vide sale-deeed Exhibit DH, dated 9/10-6-1980, he along with his brother had purchased certain land but it has not been proved from the revenue record that the land where the occurrence had taken place, was in any manner in possesion of accused- appellant Nafe Singh and Sahab Singh; to say that in order to resist forcible possesion by the complainant party, they had exercised the right of self- defence and therefore, the accused-appellants have not been able to sucessfully establish their case of self-defence.

Counsel for the accused-appellants in all fairness has contended that if the accused-appellants are not proved to be owners in possesion of the land near Yamuna belt known as Khadar land, the Cr.A.No.87-DB of 2005 7

complainant party has also not been able to prove their ownership or possession, and has argued that in all probability, for the sake of exerting possession, the present case is of a free fight. There is force in this contention. PW-4 Kanwar Singh though has stated that the land where the occurrence had taken place was in their possession but admittedly without there being any revenue record to prove the possession. On the contrary, there has been an admission that they were not owners of the Khadar land and the said land in question was not having any identity in the manner of killa number or khasra girdawari entries. They though claim that there had been partition of the said Khadar land about 20 years back but again wikthout any record and proof. PW-5 Ram Phal in clear terms has stated that there is no entry in the revenue record in the name of persons who were cultivating the Khadar land. He also admitted in cross-examination that there had beeen a dispute regarding cultivation of Bhanwar Singh over the said land between Bhanwar Singh and accused persons and in this connection, both the parties were challaned under Section 107/151 Cr.P.C.

This clinches the issue that none of the parties was in settled possession of the said Khadar land and had been exerting their respective possession over the said land which obviously led to the present occurrence. It cannot also be lost sight of the fact that it was Nafe Singh, Angrez Singh and Dheeraj,accused-appellants, at first point of time,were admitted and medically examined by PW-6 Dr.Arun Sehgal even prior to the examination of Vinod and PW-8 Mukesh. PW-13 Randhir Singh upon reaching the hospital had moved an application Ex.PG/2 to the doctor to know whether the said Nafe Singh, Vinod and Mukesh weere fit to make statement, mentioning that they had been admitted after sustaining injuries in the fight and quarrel. It has also come in the statement of PW-13 Randhir Singh that during the course of investigation, it was revealed that Nafe Singh and other two accused had sustained injuries in that quarrel. Therefore, these factors indicate that there had been free fight between the accused party and the complainant party in which both received injuries resulting into the death of Bhanwar Singh. It i well settled that in a case of free right, each of the persons involved therein can be held liable for his individual act and not vicariously liable for the acts of others. In Vishvas v. State of Maharashtra, AIR 1978 414, it has been held that in a free fight, no right of private Cr.A.No.87-DB of 2005 8

defence is available to either party and each individual is responsible for his own acts. Similarly, in Bachan Singh v. State of Punjab, AIR 1993 SC 305, it has been held that in a free fight where both parties received injuries, each accused will be liable for the individual act attributed to the particular accused. In Boota Singh v. State of Punjab, (1996)2 SCC(Crl.) 622, it has been reiterated that in a free fight, the provisions of Sections 148 and 149 IPC cannot be invoked and each accused shall have to be dealt with and shall be individually liable for the act. The injury attributed to the appellant Dheeraj falls within the purview of Section 324 IPC and that of appellant Angrej under Section 323 IPC. Therefore, in view of the settled proposition of law, the conviction of both the appellants, i.e. Dheeraj and Angrej Singh under Section 302 and other charges with the aid of Section 34 IPC cannot, therefore, be sustained and thus, they are acquitted of the said charge.

However, their conviction and sentence under Sections 324/323 IPC respectively so as sentence of fine imposed by the trial court under aforesaid sections is maintained. With the above modifications, the appeal of appellant Dheeraj and Angrej Singh is allowed. At this juncture, it has been pointed out by the counsel for the accused-appellants Dheeraj and Angrej Singh that they have already served the sentence so imposed under Sections 324/323 IPC respectively. If that be so, they be set at liberty forthwith, if not required in any other case.

However, fatal injury i.e. injury No.1, caused with Ballam, which resulted into the death of Bhanwar Singh, has been attributed to accused-appellant Nafe Singh. This fact stands supported by medical evidence. He has also caused injuries to the witnesses. Therefore, his appeal stands dismissed. It is clarified that if any fine is recovered, the same shall be disbursed to the legal heirs of deceased Bhanwar Singh.

As regards Criminal Revision No.474 of 2005 filed by complainant Kanwar Singh praying for capital punishment, the same being without any merit is dismissed.

( ARVIND KUMAR )

JUDGE

January 25, 2007 ( MEHTAB S. GILL )

JS JUDGE

Cr.A.No.87-DB of 2005 9


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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