1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
1. D.B. CRIMINAL APPEAL No. 29 of 1983
BACHAN SINGH & ORS. V/S STATE
2. D.B. CRIMINAL APPEAL No. 46 of 1983
AJMER SINGH & ANR. V/S STATE
Date of Judgment : 31st March, 2009
PRESENT
HON'BLE SHRI N.P.GUPTA,J.
HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J.
Mr. M.K.Garg & Mr. JR Choudhary, for the appellants.
Mr. AR Nikub, P.P.
BY THE COURT: (Per Hon'ble Gupta, J.)
These two appeals have been filed by
different accused persons against the common judgment
of the learned Additional Sessions Judge,
Raisinghnagar dt. 14.1.1983, convicting them as
under:-
Bachan Singh s/o Gurdayal Singh:- u/s.148, 307, 302,
323/149, 324/149 and 326/249 IPC.
Gurcharan Singh s/o Gurdayal Singh:- u/s. 148,
307/149, 302/149, 326 in the alternative 326/149, 324
in the alternative 324/149 and 323/149 IPC.
2
Ajmer Singh s/o Ramrakha :- u/s. 148, 307/149,
302/149, 326/149, 324/149 and 323/149 IPC.
Makhan Singh s/o Gurbachan Singh:- u/s. 148, 307/149,
302/149, 326/149, 324/149 and 323/149 IPC.
Gurdayal Singh s/o Jawala Singh:- u/s. 148, 307/149,
302/149, 326/149, 324/149 and 323/149 IPC.
And therefore, both these appeals are being decided by
this common order.
Appeal No. 29 has been filed by four accused
persons, being Bachan Singh, Gurcharan Singh, both
sons of Gurdayal Singh, Gurdayal Singh s/o Jawala
Singh, and Makhan Singh s/o Gurbachan Singh, while
Appeal No. 46 has been filed by two accused persons,
being Ajmer Singh and Harnam Singh. During pendency of
the present appeals accused Gurdayal Singh in Appeal
No. 29, and accused Harnam Singh in Appeal No. 46,
have died, which fact is not in dispute, consequently
the appeals of both these accused abate. Thus, the
appeals survive on behalf of only four accused
persons, being Bachan Singh, Gurcharan Singh, Makhan
Singh and Ajmer Singh.
Brief facts of the case are, that on 1.4.78
at about 10 past 6 in the morning Dharam Singh, P.W.1
lodged an oral report, to the effect, that he lives in
Chak 40 NP, separately from his parents, while his
parents and brother of the father lives in the Abadi
of Chak No. 41 NP. Similarly Pyaru Singh and his wife
3
are also living for the last 3 months in 41 NP. With
this, it was alleged, that some 7 days before the
report, there was a dispute between Pyaru Singh and
his wife Vidhya, and therefore, Vidhya left the
matrimonial home, and contacted Nata with the younger
brother of the informant, being Harnam Singh, and
started living there with him. Then two days before
the report, Panchayat was got convened by Pyaru Singh,
wherein it was resolved, that Vidhya would be handed
over back to Pyaru Singh. This was accepted by the
father of the informant, and she was to be returned on
the morning of the day of the report. Since Vidhya had
gone to her parental house, in the last evening she
was brought back to his father’s house, and the father
told the informant, that she is to be handed over to
Pyaru, then the informant went to his house. However,
at about 12.30 in the night, one tractor of Madho
Singh came to house of Kehar Singh in Chak 40 NP,
wherein some persons being resident of 41 NP were
there, which aroused suspicion, then after some time
he went to his father’s house, and saw that near their
house, Gurdayal Singh, Harnam Singh, Gurbachan Singh,
Ajmer Singh, Bachan Singh, Makhan Singh, Gurcharan
Singh @ Charni, Pyaru and younger son of Bachan Singh,
along with 2-3 more persons being Bawari r/o Chak 41
NP were collected. Bachan Singh was armed with double
barrel muzzle loading gun, while others were armed
with Lathis and Gandasi. On looking at them he told
his father, Bahnoi Gurdayal Singh and Santa Singh etc.
about this fact. Then, along with informant’s father
4
they came out. Informant’s father told Bachan Singh
etc. as to how they had come at this odd time.
Thereupon accused persons encircled them, and blocked
way of the house. Then, in order to save themselves,
they ran towards 40 NP, and after travelling about 2
killas the accused persons chased them, and at that
time Bachan Singh fired at the informant, which
fortunately did not hit. Then, his father and Bahnoi
Gurdayal Singh were caught from behind by the accused,
Gurdayal Singh and Harnam Singh etc., and injuries
were inflicted on him with Gandasi and Lathi. In the
meantime Bachan Singh also arrived, and he fired the
second shot on the informant’s father Arjun Singh,
which hit on the chest, who died on the spot. However,
he could be able to snatch the gun from Bachan Singh,
and at that time injuries were also inflicted on his
right hand, and head, with Gandasi and Lathi, then
looking many persons coming from towards 40 NP,
accused persons took to heals. Then, it started
raining, and on its stopping, he has come to lodge the
report. The dead body is lying in the field. On this
report a case under Section 302, 307, 326, 324, 323,
447, 147, 148, 149 IPC and 27 Indian Arms Act was
registered, and investigation was commenced. After
completing the investigation, challan was filed by the
police against nine accused persons, being Ajmer Singh
s/o Ramrakha, Bachan Singh s/o Gurdayal Singh,
Gurcharan Singh s/o Gurdayal Singh, Makhan Singh s/o
Gurbachan Singh, Pyaru @ Pyara Singh, Harnam Singh s/o
Sunder Singh, Bachan Singh @ Gurbachan Singh, Gurdayal
5
Singh s/o Jawala Singh, and Baldev Singh s/o Gurbachan
Singh.
Learned trial court framed charges against
the accused persons for different offences, inasmuch
as accused Bachan Singh was charged for the offence
under Section 148, 307, 302, 324 and in the
alternative 324/149, 323 and in the alternative
323/149, 326 and in the alternative 326/149 IPC and 27
of the Indian Arms Act, while all other accused
persons were charged for the offences under Section
148, 307/149, 302/149, 324 and in the alternative
324/149, 323 and in the alternative 323/149, 326 and
in the alternative 326/149 IPC. All the accused
persons denied the charges.
During trial the prosecution examined 14
witnesses, and tendered in evidence some 46 documents,
while the defence did not lead any evidence in
defence. In the statements under Section 313 Cr.P.C.,
the stand taken by some of the accused persons,
(specially the accused persons whose appeal survives,
except Makhhan Singh) was, that Bachan Singh along
with four more persons were sent by the Panchayat to
call Arjun Singh (deceased), whereupon five persons
went to the house of Arjun Singh, and conveyed that
Panchayat is calling them, at that time at the house
of Arjun Singh, apart from Gurdayal Singh four more
Gundas were there, while Dharam Singh was not there,
and those persons told them, that “पच यत क ज न क पत
6
हम दत ह”, and started giving beating. Accused Bachan
Singh also stated, that he and his companions started
rushing towards village, still he was beaten, and his
companions also tried to save, and in that process
Dhakka Mukki was done, and he does not know as to how
Arjun Singh died. Bachan Singh did not give name of
his other companions. However, the accused Gurcharan
Singh disclosed, that Panchayat had sent him, Bachan
Singh, Gurdayal Singh, Harnam Singh, and Ajmer Singh,
to call Arjun Singh. Regarding the other four accused
persons, stand was taken that they have been falsely
implicated, because they are taking side of Pyaru
Singh.
Learned trial court after completing the
trial acquitted the accused Pyaru @ Pyara Singh,
Gurbachan Singh s/o Krapa Ram and Baldev Singh s/o
Gurbachan Singh, while convicted the other six accused
persons as above. It may be observed here, that
accused persons, victim, and the prosecution witnesses
also some times bears the same name, and therefore, at
times, they would be referred to as the accused, or as
the witness.
Arguing the appeal, learned counsel for the
appellants submitted, that the prosecution is sought
to be rested on the evidence of the family members, or
near relations, apart from the fact, that three
witnesses P.W. 5, P.W. 6 and P.W.7, being Gurbachan
injured, Santa Singh, and Bhagwan Singh have not
7
supported the prosecution case. Then it was submitted,
that five of the accused persons, being Gurdayal
Singh, Ajmer Singh, Harnam Singh, Gurcharan Singh, and
Gurbachan Singh are also injured persons, as is proved
from their respective injury reports being Ex.P-40 to
Ex.P-44, which have been duly proved by the doctor
P.W. 13 Dr. Surendra Mohan Sharma, and a look at them
shows, that according to Ex.P-40 Gurdayal Singh had 5
injuries, according to Ex.P-41 Ajmer Singh had 2
injuries, according to Ex. P-42 Harnam Singh had 6
injuries, according to Ex.P-43 Gurcharan Singh had 3
injuries and according to Ex.P-44 Gurbachan Singh had
20 injuries, and out of that, there is a fracture of
7th rib, as is clear from X-Ray Report Ex.P-46. While
none of the prosecution witnesses have explained any
of these injuries, which are huge in number, which
clearly shows, that the prosecution has come up with
false case, and the real story is, as deposed by the
accused persons, in their statement under Section 313
Cr.P.C., and as deposed by P.W. 2 Gurdayal Singh, who
had been declared hostile, and all this clearly shows,
that the alleged act of the accused persons was
clearly covered by their right of private defence.
Then, elaborating the argument it was also submitted,
that the star witness P.W. 1 Dharam Singh, who claims
to be eye witness, is the son of the deceased Arjun
Singh, various infirmities in his statement have been
highlighted, by submitting, that even according to
this witness P.W.1, he had already gone to his house
at Chak 40 NP in the night, and thereafter there was
8
no occasion for him to go to Chak 41 NP, and he has
cooked up the occasion about tractor of Madho Singh
having come to house of Kehar Singh, wherein many
persons were travelling, but then, neither Madho Singh
nor Kehar Singh was examined by the prosecution, even
though they are also shown as Motbirs of various
memos. Then, even if it is assumed that he had gone,
the story about his seeing the accused persons,
identifying them, and conveying it to his father Arjun
Singh, is thoroughly discrepant, and at various places
varying versions have been given, viz. whether the
accused persons were sitting ambush the heaps of grass
(kumpa) which are scattered on the spot, or they were
outside the house, whether he identified them in the
torch light, and then informed the father, or only on
hearing that some people are camping in the field at
different places in suspicious circumstances, informed
this fact to his father, then he along with his
father, and other persons came out of the house, and
called the camping persons their object of being
there, and identified them in the torch light etc.
Then, it was also submitted that the place where the
dead body is lying is at a distant place from the
house, and two empties have been recovered from
different killas. Then, in the photograph a cloth
Potli is also visible, which also shows, that it is
the defence version, which is clearly correct, that in
the dead hour of the night the accused persons were
going to take away Vidhya at village 1-MD, and there
the trouble arose. Then, according to P.W.1 the gun
9
was fired from the close range, while according to
Doctor there is dispersion in the entry wounds. Then,
regarding gun also there are discrepancies, inasmuch
as according to the witness P.W.1 he had handed over
the gun in the police station before lodging the
report, while according to I.O. P.W.9 Prakash Chand,
he had recovered the gun from the witness P.W.1 Dharam
Singh. It was also submitted, that he clearly denies
to have seen any injuries on any of the accused
persons, which belies the fact of his being eye
witness. It was also submitted that the witnesses are
two brothers only, the other being Harnam Singh, with
whom Vidhya had contacted Nata, and who is physically
disabled. Thus, no reliance could be placed on this
witness, whereas the learned trial court had placed
implicit reliance on this witness P.W.1 Dharam Singh,
for finding six accused persons guilty, which is
clearly bad. It was also submitted, that occurrence is
said to have occurred at 1 in the night, and it is
stated that the whole night it rained, and report is
said to have been lodged at 10 past 6 in the morning,
but it reached the Magistrate at 15 past 5 in the
evening, which shows that F.I.R. was subsequently
manipulated. It was also submitted, that in the F.I.R.
there is no mention about there being any torch with
him. It was also submitted, that according to the
F.I.R. the accused persons had camped near the house,
while in the court statement he has deposed, that they
were camping behind the grass heaps. Admittedly no
occurrence had taken place at the house. It was also
10
submitted that despite it having rained all over the
night, the police had purported to collect the soil
smeared with blood. It was also submitted that
according to this witness, accused Harnam Singh and
Gurcharan Singh @ Charni had inflicted injuries on
him with Gandasi and Lathi, while according to Injury
Report Ex.P-39, he had sustained only two abrasions,
which are blunt weapon injuries. It was also submitted
that village 41 NP is having an Abadi of about 100
houses, but nobody came even to intervene, and no one
from the Abadi has been produced. Then, commenting
upon the conduct of the witness, it was submitted,
that after incident the witnesses have gone to the
house, and slept, while the deceased was allowed to be
kept lying at the place of incident itself. Regarding
non explanation of injuries on the accused persons,
learned counsel relied upon the judgments of the
Hon’ble Supreme Court, in Shiv Karan Vs. State of
Rajasthan reported in 1998 SCC(Cri.)-712, Lakhwinder
Singh Vs. State of Punjab reported in 2003 SCC(Cri)-
1426, and Balwan Singh Vs. State of Haryana reported
in (2006) 1 SCC (Cri) 108.
Learned Public Prosecutor, on the other hand,
supported the impugned judgment.
We have considered the submissions made by
the learned counsel for the appellant, and have gone
through the entire record very closely.
11
At the outset it may be observed, that
learned counsel for the appellant is right, when he
contends, that the statement of star witness P.W.1
Dharam Singh contains infirmities, and does contain
improvements, and is the son of the deceased, but
then, this require us to scan the statement of all the
material on record very closely, to find out as to
whether his evidence is to be discarded altogether, or
has rightly been relied upon by the learned trial
court.
We find, that out of the prosecution
witnesses examined P.W.1 Dharam Singh, P.W.2 Gurdayal
Singh, P.W.3 Harnam Singh, P.W.4 Vidhya, P.W.5
Gurbachan Singh, P.W.6 Santa Singh, P.W.7 Bhagwan
Singh, and P.W.11 Rajkaur have been produced as eye
witnesses/ material witnesses to substantiate the
prosecution case, while P.W. 13 and 14, Dr. Surendra
Mohan Sharma, and Dr. Ramlal Goyal are the doctors who
had examined the injuries of the injureds and the
deceased. Out of these eight important witnesses, as
noticed above, P.W.2 Gurdayal Singh, P.W. 5 Gurbachan
Singh, P.W. 6 Santa Singh, and P.W. 7 Bhagwan Singh
have not supported the prosecution, and therefore,
they have been declared hostile.
At this place we may also observe, that it is
of course established legal position, that the accused
persons are not bound to give out their version of the
incident, much less correctly. Their statement under
12
Section 313 are to be recorded for the purpose of
enabling them to explain the evidence and
circumstances appearing against them in the
prosecution case, but they are not bound to explain it
either, and even if they do not explain, any adverse
inference cannot be drawn on that account against
them, and the prosecution, of course, is bound to
project the case correctly, and prove it beyond all
reasonable doubt, in order to bring home guilt against
the accused. But then, it is also established legal
position, that if the accused persons offer
explanation in their statement under Section 313
Cr.P.C., that can be used in deciding the case, and
can be used against the accused persons as well.
Though it is the duty of the prosecution to
lead correct and truthful evidence, but then, if on
some aspects the witness chose to lie, or make
improvements, their entire evidence cannot be thrown
out altogether, as in criminal case “falsus in uno
falsus in omnibus” is not the principle applicable in
India.
Keeping in mind the above principles, we have
to appreciate the evidence of the prosecution, in
conjunction with the defence, with the explanation
given out by the accused persons, of the story
projected by them in the evidence, and find out, as to
whether from the reliable part of the evidence of the
prosecution, any offence is brought home to all, or
13
any of the appellants, whose appeal survives.
As noticed above, it was argued that the
prosecution has sought to rely, and rest its case on
the evidence of family members, and near relations
only. In our view, it is established legal position
that the testimony of witness cannot be thrown away
simply on the ground of his being a family member, or
near relation of the victim. The evidence of such
witness may be required to be examined, more
critically, which we shall do.
So far as three witnesses P.W.5, P.W. 6 and
P.W.7, having not supported the prosecution case is
concerned, we shall examine the case on the basis of
other evidence available on record.
Then, coming to the effect of injuries found
on the person of the accused, and the prosecution
having cooked up false case, and the real story being
the one, as deposed by the accused persons in their
statement under Section 313, and as deposed by P.W.2
Gurdayal, we shall consider this aspect later, after
appreciating the evidence of the two witnesses Dharam
Singh and Gurdayal, in conjunction with the statement
of the accused persons recorded under Section 313.
Obviously, at that time we shall also examine the
aspect, as to whether the act of the accused is
protected by their alleged right of private defence.
14
Since the learned trial court has relied upon
the evidence of Dharam Singh P.W.1, in convicting the
six appellants, we better stand advised to first of
all critically examine the evidence of this star
witness Dharam Singh.
Dharam Singh in his evidence has deposed,
that he lives in 40 NP, while his parents and brother
live in 41 NP. His Bahnoi Gurdayal Singh (P.W.2) lives
with his father (Arjun Singh). Then he stated that
some six months back Vidhya, the wife of Pyaru had
contacted Nata with his brother Harnam. Three days
thereafter Pyaru called a Panchayat, which decided,
that Vidhya should be handed over back to Pyaru, to
which his father agreed. Then, on the next day of
decision of Panchayat, Gurdayal Singh had gone to
fetch Vidhya from her parental house. Then, Gurdayal
Singh, Bachan Singh, Mst. Bhago and Santa Singh had
brought Vidhya from her parental house to his father’s
house, who reached at 6 in the evening, at which time
he was there at the father’s house. Then, he went to
his own house. Then, he stated that at about 12 in the
night, tractor of Madho Singh came from 41 NP to 40 NP
at the house of Kehar Singh, wherein 5-6 persons were
travelling, being Kehar Singh, Hajara Singh, Chanan
Singh, Madho Singh, and one more person, who were
telling, that at the house of Arjun Singh some Gundas
have come, thereupon he went to 41 NP to see his
father, he threw torch light and saw that 8-9 people
were camping near Kumpas, and identified them as
15
accused Bachan Singh s/o Gurdayal Singh, Charni s/o
Gurdayal Singh, Makhan Singh s/o Arjun Singh, Baldev
Singh s/o Bachan Singh, Harnam Singh s/o Sunder Singh,
Ajmer Singh, and some more persons were there, to whom
he had seen in the light of torch, he does not
remember. Then, he awakened his father, who asked all
the persons as to who they are, whereupon those
persons encircled them. Then, he, his father, Gurdayal
Singh and Bachan Singh s/o Gurdayal Singh ran away, at
that time accused Bachan Singh fired at him, which did
not hit, then all the accused persons came near them,
and then accused Bachan Singh fired shot at his
father, which hit on the chest, and the other accused
persons inflicted injuries with Lathis and Gandasies
on his father, and on him. Injuries were caused to
Gurdayal Singh also. He stated, that he was having a
Lathi, which was also wielded by him. Then, when
Bachan Singh was re-loading the gun, he snatched it,
which gun was double barrel muzzle loading gun, in the
meanwhile tractor of Madho Singh came, and seeing that
all the accused persons ran away, his father died on
the spot. Then, he has stated that Bachan Singh had
gun, Harnam Singh and Charni were armed with Gandasa,
Ajmer Singh was armed with Sela, and others were armed
with Lathis. Then, at 6 in the next morning he lodged
report at Police Station Raisinghnagar, and proved
Ex.P-1. Then, police people came with him and prepared
Inquest Report, and other Memos Ex.P-4 to P-9, which
he has proved to be bearing his signatures. Empties
were recovered from the spot. He had produced the gun
16
to the police, and soil was also collected from the
spot. This is the entire statement, in examination in
chief.
Then, in cross examination he has stated,
that there had been no enmity earlier with Gurdayal
Singh and his sons, though they were not on visiting
terms, but he was knowing them, though he did not know
entire family. He stated to be living in 40 NP for the
last 20-25 years. However, for the last 3 years he is
living in 41 NP, which is inhabited by around 40
houses, while Chak 41 NP has about 100 houses. He has
denied to be knowing accused Harnam Singh, being
Behnoi of Gurbachan Singh. According to him Pyaru and
Vidhya were residing in 41 NP for the last 3 months
before the incident, though they had no land or
property in 41 NP, and were living in the house of
Pratikaur. He had purchased a cow from Pyaru. Then, he
stated that Vidhya had gone with Gurdayal Singh to
Raisinghnagar for getting recorded her statement.
Gurdayal Singh is said to be Bahnoi of the witness,
and to be a witness in the case. Vidhya was deposed to
be resident of 16-O, and the way to that village is
through Raisinghnagar. Kehar Singh, Madho Singh, Bhag
Singh, Chanan Singh and Hajara Singh are not on
inimical terms with him. They were Panchas in
Panchayat, and witness was also present in the
Panchayat, where his father had stated, that Vidhya is
living voluntarily, and he has denied suggestion about
having denied to return Vidhya, rather they asked for
17
two days time to return her. He has stated that
Gurdayal had gone on foot to fetch Vidhya, and while
returning, they came in a jeep, along with many more
persons. He stated that in the F.I.R. he did not
mention about Gurdayal having been sent to fetch
Vidhya. Witness Gurbachan Singh was said to be Bahnoi
of witness’ Bahnoi. Then he stated, that after Vidhya
having come to his house he had gone to 40 NP after
about an hour, and his father did not arrange for meat
and alcohol. He stated, that distance between 40 NP
and 41 NP is 4 Murabbas. 40 NP is situated towards the
South, and the way is through his father’s Dhani. He
stated, that while going to his Dhani, he did not see
the accused. Then, some of his cross examination was
recorded in question answer form, wherein he stated,
that the accused persons were sitting at a distance of
20 paces from his house, behind Kumpas. The northern
portion of the Dhani is open, having no wall. However,
in the eastern side there is 30 ft. long wall, having
3 ft. height. It being summer all family members were
sleeping in the open Angan. He had admitted, that in
between Angan and Kumpa there is engine room, which is
12ft. wide and 20ft. long. Police had come twice,
first time at 8 in the morning, and second time it
came at 2 in the afternoon. He stated, that when the
police came to their Dhani, he did not show the cots,
which were being used for sleeping by the family
members, though cots were lying there, which were 4 to
5 in number. He has deposed that his father’s house is
adjacent to the Abadi of 41 NP. Kumpas were said to be
18
3, 2 being of height of 6ft. and 10ft wide, while one
was said to be of 4 ft. height and 8ft. wide, and
interse these Kumps there was gap of about one ft. He
has admitted, that his brother Harnam Singh is
physically disabled, and that they are only two
brothers. He had also admitted, that Harnam being
disabled, he was not married. He stated that Madho
Singh’s tractor had stopped at the house of Kehar
Singh, which is at a distance of 1½ Bighas from the
witness’ house, towards the south. In between there is
only one Chowk, and there is no other house. He stated
that in 40 NP he has no enmity with anybody. Then, he
has stated that while giving statement to police he
did not give out, that in the tractor Kehar Singh,
Madho Singh, Hajara Singh and Charan Singh were there.
He has also admitted, that while giving F.I.R. he did
not give out, that these persons, travelling in the
tractor, had told him, that Gundas are camping at the
house of Arjun Singh. He stated that on the day
following Panchayat, Gurdayal had gone to fetch
Vidhya, and had returned on the next day. He has also
stated, that on his reaching the eastern and southern
corner of the house, he had lighted the torch, the
accused persons were camping behind the Kumpas,
towards the North. He stated, that then he went to the
house, and told about location of the accused persons,
though he did not tell about the weapons with which
they were armed, as he did not see the weapons. He
entertained a suspicion, that the accused persons will
cause some damage in the Dhani of his father. There is
19
only one way from 41 NP to his house, he did not go to
the other inhabitants of 41 NP to inform, nor he
informed any of his relatives, who live in 41 NP. He
has also stated, that 40 NP and 41 NP, both the
villages are inhabited by Bawaries. Then he stated,
that while giving report he had told police, that he
had seen the accused persons in the light of torch,
and does not know as to why it is not mentioned in the
report. He also stated that he disclosed the names of
the accused persons to the police, but he did not
state that he did not know the name of Baldev Singh,
therefore, his name was not mentioned in the report.
In the report he does not remember as to whether he
has mentioned the name of accused Bachan s/o Gurdayal
Singh, Makhan Singh s/o Bachan Singh, Harnam Singh s/o
Santu Singh, and he stated, that he does not remember
as to why the names of the accused was not mentioned
in the first report. Then he stated that when they
ran, Arjun Singh was ahead of all. Then, Gurdayal
Singh was there, then other persons were there. He was
4-5 paces behind his father. Some accused followed
them, while some were lying ambush Bansathia bushes in
Killa No. 14, and therefrom first shot was fired at
him, and by coming out from Bansathia bushes one shot
was fired at his father, where his father had fallen
down. He stated, that in the report he had mentioned
that 2-3 more Bawaris of 41 NP were there. Bachan
Singh had fired at him from a distance of about 20
paces, which did not hit him. He had also stated, that
at the time when fire was made, his father was ahead
20
of him at a distance of 4-5 paces. Bansathia was at a
distance of 10 paces, at the place, where his father
was shot. At that time he was in Killa No. 14.
Bansathia belonged to them, which were lying in two
Killas, and was of the height of 4ft., and was lying
on the boundary of Killa no. 14, and in between Killa
no. 15 and 16, and they were lying in the area of 15
ft x 20 ft. He does not remember as to whether his
Bahnoi Gurdayal was there at the time when his father
was shot. Then, he reached near the dead body of his
father. His father’s face was downward. Then, he
stated that till arrival of police, the dead body was
not disturbed. Then, he stated that he does not
remember as to whether there was any Potli. Then, he
was shown photo Ex.D-2 and D-3, wherein Potli is
visible at point X. Then, he stated, that this Potli
contained blood smeared soil. When he was confronted
with portion A to B of his police statement Ex.D-4, he
deposed to have not given out that portion. Then, he
was confronted with portion C to D in the police
statement Ex.D-4, about his having seen the weapons in
the hands of accused persons, and he stated that, he
deposed that portion to police. In this portion it is
mentioned, that he saw in the torch light, that
accused Bachan Singh was armed with double barrel
muzzle loading gun, and Charni and Harnam Singh were
armed with Gandasi, and Ajmer Singh was armed with
Sela. Then, he stated that Gurdayal Singh received
injuries at the boundary of Killa no. 15 and 16, while
his father was shot in Killa no. 16. It was there
21
itself that at a distance of 7-8 paces therefrom
Gurdayal received injuries. Gurdayal Singh also bled.
Injuries were caused on his father near Bansathia,
before being fired. These injuries were also caused on
the boundary of Killa No. 16, the witness received
injuries on the boundary of Killa no. 14. He
maintained, that he received injuries on the hand by
Gandasi, which injuries were shown to doctor. Injuries
were shown to police also. Then he was confronted with
police statement Ex.D-4 portion E to F, about injuries
received by him, to which he stated to be not
remembering this part of the statement. He has
admitted, that he did not make any attempt to save his
father, and did not go near the dead body of the
father, as he snatched the gun from Bachan Singh, and
straight way ran away. He stated to have reached near
Bachan Singh, immediately after his having fired, at
that time Bachan Singh was re-loading the gun. He
stated, that it is not mentioned, that Bachan Singh
was re-loading the gun. He stated, that he was also
having a Lathi, which fact is not mentioned in the
police report. When Bachan Singh started to run away,
he snatched his gun. He stated that he did not give
gun in the police station. He has also stated, that
gun snatched by him from Bachan Singh was handed over
by him to the police at the house itself, before
lodging the report. Then, he stated, that on next day,
at about 2 in the noon, the gun was handed over to the
police. The police had come at 8 in the morning. He
does not remember as to whether the accused persons
22
were there at the police station, or not. Then, in the
evening at 4 he went to the police station, at that
time the accused persons were not there at the police
station. He stated, that Bachan Singh accused is also
known as Gurbachan Singh. Then, he has stated to be
not aware, as to whether the accused persons Gurdayal
Singh, Gurcharan Singh, Gurbachan Singh, Makhan Singh,
Ajmer Singh, Harnam Singh were having injuries, rather
he did not see those injuries. His father received
only one gun shot injury at the hands of Bachan Singh
from point blank range. His father did not hold the
barrel of the gun. He has also stated that it started
raining after death of his father. They did not bring
his father to the home. It rained all over the night.
He went to Mandi in the morning only. He had collected
some 10-20 persons, to whom he narrated about the
incident, which include Maka Singh, Panch Kehar Singh,
Bhagwan Singh etc. He had narrated the incident to
them at about 2 in the night itself. Then, on court
question he stated, that Bachan Singh fired at his
father while standing in Killa no. 16. Before that
Bachan Singh was sitting behind Bansathia. He has also
stated, that after seeing behind near Kumpa, he had
seen Bachna only when he fired. This is the whole
evidence of Dharam Singh.
Then, we come to the evidence of P.W. 2
Gurdayal Singh. He is son in law of the deceased Arjun
Singh, and was living with Arjun Singh, along with his
family. He has deposed that some 7 months ago when he
23
was in the Dhani at about 5-6 P.M., there was a
dispute between Pyaru and Vidhya, and Pyaru told
Vihdya to live with Arjun, then Vidhya went away with
the son of Arjun, being Harnam. Then Panchayat was
convened, by the villagers of village 41 NP, and in
the Panchayat it was decided that Vidhya should be
handed over to Pyaru. Then, at 6 P.M. Dharam Singh
brought four persons in a jeep, and left them at
Dhani, and went to 40 NP, and all the four persons and
Arjun Singh told, that they would take away Vidhya in
the night. Then, at 12-1 in the night, all the four
persons, along with Arjun Singh, Vidhya and the
witness, left the home for going to 1 MD, they started
towards Gharsana, and after travelling about 2 Killas,
five persons met them, being accused Gurdayal Singh,
Bachan Singh, Gurcharan Singh, Harnam Singh, and Ajmer
Singh. They asked as to where are they taking Vidhya,
thereupon Arjun told to hand over Vidhya to them.
Then, the four companions of the witness started
chasing Gurdayal Singh etc., the witness and the
persons were armed with Gandasi and Lathi, while
Gurdayal Singh etc. were also armed with Gandasi and
Lathi, and one of the companion of the witness was
armed with gun, who fired, which hit Arjun Singh.
Then, all the four persons ran away. Then, Panchayat
people came in a tractor, and they returned back to
Dhani. He has also deposed, that accused persons did
not give any beating to anybody. At this stage the
witness was declared hostile, and was cross-examined
by the Public Prosecutor, wherein he deposed, that in
24
the Panchayat his father-in-law had accepted to
handover Vidhya on the next day. He has denied the
suggestion, about Vidhya having gone to her parental
house, or he and his wife to have brought Vidhya from
her parental house. He was then confronted with
portion A to B of police statement Ex.P-10, which he
denied to have stated. He also denied the suggestion
to be deposing falsely, because he wants to have land
from sons of Arjun Singh, being Dharam Singh and
Harnam Singh. He has of course denied, that his
injuries were examined medically. Then, he was cross
examined on behalf of the accused persons, wherein he
stated, that when they started with Vidhya, Vidhya was
having a bundle of clothes, which was being carried by
his father-in-law. He has stated, that in the incident
they also chased accused persons, and inflicted
injuries on them. They also inflicted injuries on
Gurbachan Singh by chasing him, and caused injuries to
all the five accused persons. There were many persons
from villages 40NP and 41 NP. Then, he stated that he
does not know about his own injuries, as it was night.
He has then stated that the persons coming on the
tractor included Kehar Singh, Fagga Ram and others, to
whom also he narrated the incident. He has also stated
that Pyaru is grand son of accused Gurdayal Singh,
while Harnam is Behnoi of accused Gurbachan Singh, and
Bachan Singh s/o Gurdayal Singh is his brother’s son.
Thus, this witness purports to depose, of
course, as hostile witness, that Vidhya did not go to
25
her parental house, and in the night, she was being
taken to village 1-MD, and after travelling about 2
Killas, five accused persons met, and thereupon a
scuffle took place, wherein both sides received
injuries. He has of course, also stated that one of
his companions was having gun, which was fired, which
hit Arjun Singh. The five accused persons according to
this witness are Bachan Singh, Gurdayal Singh,
Gurcharan Singh, Harnam Singh and Ajmer Singh.
At this place we may refer to the statement
of the accused Gurcharan Singh, recorded under Section
313 Cr.P.C., and a look at that shows, that therein he
had stated, that Panchayat had sent this accused along
with Bachan Singh, Gurdayal, Ajmer Singh and Harnam
Singh, to call Arjun Singh. Thus, the prosecution and
defence are ad-idem, at least to the effect, that five
accused persons, being Gurbachan Singh @ Bachan Singh,
Gurdayal Singh, Gurcharan Singh, Harnam Singh and
Ajmer Singh were there in the incident. They claimed
to have received injuries also, as shown in Ex.P-40 to
Ex.P-44.
We need not discuss the other evidence of the
material witnesses produced by the prosecution, as we
are at one with their appreciation, as made by the
learned trial court, to the effect, that they had not
actually seen the accused persons causing specific
injuries to any of the victims, as they were inside
the house. However, we may add, that their evidence is
26
material, so far as it relates to the sequence of
things, prior to incident, and immediately thereafter.
We may invoke the theory of res-gastae in this regard.
In our view it can very safely be said that
it is not in dispute, that Arjun Singh died in the
incident, and died of the gun shot. Gun obviously
belonged to the accused Bachan Singh, and was his
licensed gun, which license has been recovered
pursuant to the information, and at the instance of
the accused Bachan singh being Ex.P-34 and Ex.P-35. Of
course, in the statement under Section 313 Bachan
Singh had stated, that the S.H.O. had taken the
license from his house, but then, the fact of gun
being his licensed gun, is not in dispute, and it has
not come in the evidence of any of the witness,
whether by way of cross examination, or otherwise, or
in the statement under Section 313, that at the time
of incident, apart from Bachan Singh’s gun, there was
any other gun.
In this background, if the statement of
P.W.1 Dharam Singh is critically examined, as noticed
above, that in some respects he has belied, in some
respects he has made improvements, and in some
respects he has made exaggeration also, but then, even
if that part of the statement is excluded, and even if
the material part of the statement of Gurdayal Singh,
the hostile witness is believed, in favour of the
defence, it does show, that in the night six persons,
27
including Gurdayal Singh and Arjun Singh were taking
away Vidhya to village 1-MD, and after travelling 2
Killas, the five accused persons being Bachan Singh,
Gurdayal Singh, Gurcharan Singh, Harnam Singh and
Ajmer Singh met. According to this witness P.W.2
Gurdayal Singh, both the parties were armed with
Gandasa and Lathi, while as appears from the evidence
of P.W.1, that Bachan Singh was armed with gun, though
this witness P.W.2 has attributed gun to one of his
companion, which cannot be believed, also for the
simple reason, that it has not been so suggested to
any other witness, nor has it been so stated in any of
their statement under Section 313, and at that place
the incident occurred, resulting into death of Arjun
Singh.
Obviously, we are not inclined to believe
the story of Dharam Singh, about Vidhya being at her
parental house, she having been brought in the evening
to Arjun singh’s house, then Dharam Singh coming to
his village 40NP, then learning from occupants of
tractor of Madho Singh, being Kehar Singh etc. about 9
persons being camping around the house of Arjun Singh,
then his having gone there all alone, and spotted the
accused persons in the torch light, and then to have
narrated their presence to his father, and then he
along with his father etc. having gone out, having
been encircled, and incident having occurred.
Rather it is clear, that the deceased and
28
his companions, including Dharam Singh, were taking
Vidhya to village 1-MD, and after travelling two
killas, the five accused persons, being Bachan Singh,
Gurdayal Singh, Gurcharan Singh, Harnam Singh and
Ajmer Singh intercepted them, obviously because,
according to both the sides the Panchayat had directed
that Vidhya be handed over to Pyaru, and either in
order to take away Vidhya from Arjun etc., or in order
to prevent them from taking her to village 1-MD,
incident was occurred. We are inclined to believe,
that instead of nine, and even instead of six, only
five persons, being Bachan Singh, Gurdayal Singh,
Gurcharan Singh, Harnam Singh and Ajmer Singh, were
there, who had received injuries, as are clear from
Ex.P-40 to Ex.P-44. So far Dharam Singh’s presence at
the time of incident is concerned, that cannot be
doubted, also for the simple reason, that he is also
one of the injured witnesses, and those injuries are
not alleged to have been received, otherwise at the
time of incident.
Thus, in our view, from the evidence of
Dharam Singh, Gurdayal Singh and other witnesses,
believed by the learned trial court, it is clearly
established, that the incident occurred at Killa no.
14 and 16, and was caused by five accused persons
only, being Bachan Singh, Gurdayal Singh, Gurcharan
Singh, Harnam Singh and Ajmer Singh, out of which
Bachan Singh was armed with gun, whose fire hit Arjun
Singh. Obviously, all these five persons were armed
29
with deadly weapons like gun, Gandasi etc., and their
object clearly was to commit an unlawful act, or even
purportedly committing lawful act did constitute
unlawful assembly, as the act was intended to be done
by unlawful means, and since at such dead hour of
night they were armed with deadly weapons, including a
double barrel muzzle loading gun, both barrels whereof
were also loaded, it does clearly show, that their
common object was not to say prayers, but to secure
Vidhya, or to prevent Vidhya from being taken to
village 1-MD, and for that purpose, even to cause
death by the firearm, of any-one who comes in between,
and in that process both the barrels were fired, one
of which did not hit Dharam Singh, and the other hit
Arjun Singh. Two empties have been recovered from the
spot, and before gun could be re-loaded, it was
snatched from Bachan Singh, by Dharam Singh, and after
committing the incident, accused persons went away,
looking other persons having come there.
There is, of course, some discrepancy in the
evidence of Dharam Singh on the aspect as to when did
he handover the gun to the police authorities, but
then that is not of much consequence, because the gun
is a licensed gun of Bachan Singh, which license has
been recovered vide Ex.P-34 and Ex. P-35, and which
license is undisputedly his one, and the factum of
snatching of gun by Dharam Singh has not been
successfully assailed in cross examination either.
30
We may then examine the aspect of non-
explanation of injuries on the accused persons. We
have gone through the three judgments cited by the
learned counsel for the appellant, and are of the
view, that so far as the principles propounded in
these judgments are concerned, that does not admit of
any dispute, but then the fact does remain, that the
effect of non explanation of injuries, depends upon
facts and circumstances of each case, including nature
of injuries. Here P.W.2 has clearly deposed, that both
the parties were armed with Lathis and Gandasis, and
both parties caused injuries to each other. Likewise
Dharam Singh has also deposed, that he was armed with
Lathi, and did wield Lathi. This, coupled with the
fact, that of course injuries on the accused persons
are good in number, but then, in Ex.P-40 all injuries
are abrasions of 1 cm. X 1 cm., or 1.5 cm. X ½ cm.,
and so on. Then, in Ex.P-41 also there are two
abrasions. Then, in Ex.P-42 again there are abrasions,
and linear abrasions. Then, Ex.P-43 there are
abrasions. Of course, in Ex.P-44 there is one fracture
of 7th rib, and there are two wounds of blunt weapon,
otherwise they are also all abrasions. It would
suffice to say, that in the sequence of things, as is
deposed by P.W. 2, where five persons on either side
are armed with deadly weapons, like Gandasi and Lathi,
and shower indiscriminate blows, these injuries
clearly stand explained.
31
Now, the only aspect, that remains to be
considered is, as to whether the alleged act of the
accused persons is covered by the right of private
defence, or not. In our view, a look at the cross
examination of Dharam Singh shows, that nothing was
suggested to him about the manner of happening of the
accident, or its beginning, so as to even give
indication about there being any right of private
defence available to the accused persons much less to
cause death of Arjun Singh. Be that as it may. This is
only one aspect of the matter. Then, if we were to
spell out the right of private defence, even de hors
the evidence of P.W.1, then the only possible material
in that regard is, the one stated by the five accused
in their statement under Section 313 Cr.P.C., and at
best, what has been deposed by P.W. 2 Gurdayal Singh,
the hostile witness. According to one part of the
story, being the one stated by the accused persons,
the five accused persons had gone to the house of
Arjun Singh to call him in the Panchayat, and Arjun
Singh told them that he would show the effect of
Panchayat, and then the accused persons were beaten.
Significantly they deliberately omitted to disclose as
to how Arjun Singh died, by specifically stating that
they did not know as to how Arjun Singh died. They
also do not disclose as to how they had gone to the
house of Arjun Singh at such odd time, duly armed with
deadly weapons like double barrel muzzle loading gun,
Gandasa, Sela etc. Then what is still more significant
to note is, that it has not come from any corner, or
32
material on record, that any incident of beating or
killing occurred, at, or just outside the house of
Arjun Singh. Obviously accused persons had no occasion
to go armed at the house of Arjun Singh at such odd
time, as it is not their case, that they were
apprehending any untoward incident at the house of
Arjun. Thus, the version given by the accused persons
in their statement under Section 313 does not provide
any right of private defence to them.
Then, considering the evidence of P.W.2
Gurdayal Singh also, taking the case as deposed by
him, at the highest, the occurrence occurred because
Arjun Singh etc. were taking Vidhya to village 1-MD.
It is not the case, that Vidhya was with the accused
persons, which was forcibly being taken away by Arjun
Singh etc., and was being taken away to village Chak
1-MD, so as to provide, or make available, any right
of private defence on person of Vidhya. Admittedly
Vidhya had already contacted Nata with Harnam Singh,
and according to prosecution, Panchayat had directed
Vidhya to be handed over to Pyaru. If that were so,
and if Arjun Singh was committing any act in
disobedience of the order of Panchayat, in taking away
Vidhya to village Chak 1-MD, it did not confer any
right of private defence on accused persons, to commit
these offences, either in order to forcibly acquire
possession of Vidhya, or for the purpose of preventing
prosecution persons from taking away Vidhya to village
1-MD.
33
Then, as the things appear on the face of it,
it is nowhere and nobody’s case, that at the place
where the incident occurred, being Killa No. 14 and
16, the prosecution party had opened the assault, nor
is it even suggested to any of them. Thus, simply
because the accused persons are also shown to have
received numerous injuries, even on that basis also,
it cannot be said that the accused persons had any
right of private defence to commit the offence as
charged against them.
Thus, considering the case from any stand
point, we do not find any error on the part of the
learned trial court, so far as it convicted the five
accused persons Bachan Singh, Gurdayal Singh,
Gurcharan Singh, Harnam Singh and Ajmer Singh, for the
various offence, as convicted. In our view, the
involvement of Makhan Singh is not established beyond
reasonable doubt. Out of five accused persons since
the accused Harnam Singh and Gurdayal Singh have
already died, their appeal is already abated.
Resultantly, Appeal No. 29 is partly allowed.
The accused Makhan Singh s/o Gurbachan Singh is
acquitted of all the charges. He is on bail, he need
not surrender, and his bail bonds stand cancelled.
However, the appeal No. 29 so far as it relates to
accused Bachan Singh and Gurcharan Singh, so also
34
Appeal No. 46, so far as it relates to appellant Ajmer
Singh, is devoid of any merit, and the same is
dismissed. The learned trial court is directed to take
necessary steps to have these accused persons
arrested, and commit them to custody for undergoing
remaining part of the sentence.
( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J.
/Sushil/