JUDGMENT
A.L. Bahri, J.
1. Because of divergent opinion expressed by Hon’ble Judges constituting the Bench hearing the appeal, this appeal has now come up before me.
2. Sessions Judge, Sirsa, on February 6, 1989, convicted Swaran Singh appellant under Section 302 of the Indian Penal Code and sentenced him to imprisonment for life and to pay a fine of Rs. 500/- or in default of payment of fine to further undergo rigorous imprisonment for one year. Swaran Singh and Mewa Singh, appellants, were further convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 3 years each and to pay a fine of Rs. 500/- each or in default or” fine to further undergo rigorous imprisonment for one year. Mewa Singh accused was acquitted of the charge framed under Section 302 read with Section 34 of the Indian Penal Code.
3. As per prosecution case on October 21, 1987, at about 9.00 p. m. Bikkar Singh was coming to his house when Swaran Singh accused met him near the water tap in village Kumbthala. Swaran Singh accused raised a lalkara to teach him a leason for objecting to his visits to Nibal Singh’s house and inflicted a gandasi blow hitting Bikkar Singh on his head who fell down. Nachhattar Singh PW came forward. He also received gandasi blow from Swaran Singh on his head. Mewa Singh accused came from his house, situated nearby, and inflicted injuries on the person ©f Nachhattar Singh. In the meantime Harjodh . Singh brother of Nachhattar Singh was attracted to the spot and in order to save Nachhattar Singh and Bikkar Singh, he caused some injuries to the two accused-Swaran Singh and Mewa Singh. The accused managed to run away from the spot. The two injured Bikkar Singh and Nachhattar Singh were taken to hospital at Sirsa, from where Bikkar Singh was referred to Medical College Hospital, Rohtak, where he succumbed to his injuries. On the statement of Nachhattar Singh recorded by the police in Civil Hospital, Sirsa, case was registered.
4. During investigation of the case, both the accused were arrested and in pursuance of their disclosure statements, they got recovered gandase which were alleged to have been used in the occurrence PW-6 Nachhattar Singh PW 7 Dilbag Singh PW-11 Harjodh Singh gave the ocular account of the occurrence which has been briefly described above. PW-8 Nazar Singh deposed about the disclosure statements and in consequence thereof recovery of the gandase by the two accused. The medical evidence consists of the statement of PW-1 Dr. G. K. Kataria, who medically examined Mewa Singh and Swaran Singh accused on October 22, 1987 at 12.30 p.m. He gave the details of the injuries found. PW-2 Dr. Gurtej Singh conducted X ray of Naehhattar Singh and found fracture of frontal bone and fracture of middle phalanx of third toe. He also conducted X-ray on Mewa Singh and found fracture of both of the bones of left fore arm PVV-10 Dr J. S. Chhimpa medically examined Bikkar Singh on October 22, 1987 at about 12.25 a.m. He gave the description of the injuries found As stated above, Bikkar Singh was referred to Medical College Hospital, Rohtak, PW-12 Dr. O P. Dhania, Medical Officer, Midhut Dispensary, Model Town, Rohtak, conducted post mortem on the dead body of Bikkar Singh. According to his opinion the injury found on the scalp of the deceased was ante mortem and sufficient to cause death in the ordinary course of nature and the death was the result of the head injury. The drafts man as well as the Investigating Officer were also produced in this case.
5. While denying the allegations of the prosecution, the accused putforth their story of the occurrence. Swaran Singh was coming from the house of Nihal Singh when he was stopped by Bikkar Singh and Nachhattar Singh who were armed with stick and gandasi, respectively. They assaulted Swaran Singh whereupon Mewa Singh came there and inflicted injuries to the complainant party in defence of Swaran Singh accused. These accused tendered copies of the First Information Reports -Exhibits D. 1 to D. 3 and closed their evidence.
6. B.S. Nehra, J. in his judgment dated May 8, 1991 expressed the opinion that the two accused were rightly convicted by the Sessions Judge and recommended dismissal of the appeal. I. S. Tiwana, J., on the other hand, came to the opinion that it was the complainant party i e the deceased Bikkar Singh and Na”hhattar Singh who had a grouse against Swaran Singh, and noticing him passing in front of their houses, attacked him and Mewa Singh. The plea of the accused that they acted in the right of self-defence was upheld and thus they were not guilty of the offence and deserved to be acquitted.
7. I have heard counsel for the parties and have gone through the evidence produced with their assistance.
8. The prosecution has failed to establish any motive for the accused to commit the crime. The motive suggested is not considered otherwise sufficient for the accused to open the attack. According to PW-6 Naehhattar Singh, his maternal uncle had helped Swaran Singh accused to get married. Earlier their relations were cordial. Swaran Singh thus used to go to the house of Nihal Singh, the maternal-uncle. Since he used to visit Nihal Singh in a drunken condition and used to raise lalkaras (coughing), Nachhattar Singh and others requested the Sarpanch to tell the accused not to enter the house of Nihal Singh and the Sarpanch might have told Swaran Singh about it, PW-7 did not state anything on this subject. According to him Swaran Singh gave lalkara that he would teach a lesson to Bikkar Singh for stopping him from going to the house of his maternal-uncle, Nihal Singh. Similar statement was made by PW-11 Harjodh Singh, PW-6 Nachkattar Singh, during cross examination, admitted that he did not state in his statement -Exhibit PH (FIR) that the accused (Swaran Singh) used to go in a drunken condition to the house of his maternal-uncle or that he used to raise lalkaras or that he had reported the matter to the Sarpanch to ask Swaran Singh not to visit the house of Nihal Singh. He also did not state in Exhibit PH that Sarpanch might have told the accused about their grouse or that the accused might have nursed a grudge against them on that account. He denied having made improvements during the trial in this respect and the Sessions Judge made a note that the witness was taking unduly long time to answer the questions. Further the witness had no idea since how long Swaran Singh accused had been drinking otherwise they had no grouse against the marriage of Swaran Singh with the intervention of Nihal Singh. Nihal Singh got married—girl of the village to accused Swaran Singh. Nazar Singh (PW 8), who was Sarpanch, was cross-examined in this respect According to him Naehhattar Singh never complained to him that Swaran Singh used to lease him or that he used to go to the house of Nihal Singh He hastened to state that it was after the present occurrence that Nachhattar Singh complained him about it. In viaw of Nazar Singh’s statement aforesaid the question of Nazar Singh informing Swaran Singh accused regarding complaint of Nachhattar Singh thus would not arise. The prosecution has thus utterly failed to prove the suggested motive.
9. Proof of motive in a given case may lend corroboration to the prosecution story. However, non-proof of motive or absence of motive per se will not be sufficient to discard the prosecution story. Non-proof of the motive per se would not be sufficient to raise any presumption that the accused were aggressors or that they had the right of private defence. With regard to the occurrence the evidence of eye-witnesses and other circumstances are to be independently appraised.
10. The most important question for consideration in this case is as to who was the aggressor. In other words, how the occurrence originated, The factum of occurrence is not disputed. Each party had tried to put the blame on the other for attacking. Both the parties were armed with gandanse which are ordinary weapons, usually kept by the villagers with them No doubt, the occurrence has taken place near the houses of Nachhattar Singh and others, presence of Swaran Singh armsd with a gandasi in his own village at the relevant time is not unnatural. No presumption could be drawn from this fact alone that Swaran Singh had gone to the place of occurrence to attack the deceased Bikkar Singh or Naehhattar Singh. As per prosecution case Bikkar Singh was returning home after making enquiries about the oil from the house of Partap Singh son of Kishan Singh. Thus, Swaran Singh accused was not expected to know that Bikkar Singh would be found by him at the relevent time. Thus, it appears to be a cast where there was confrontation between the two sides suddenly.
11. It would be relevant at this stage to discuss as to whether the two accused; Swaran Singh and Mewa Singh had acted in pursuance of their common intention in the occurrence. Even if the prosecution version is accepted on its face value, it cannot be said that there was any pre-consultation between the two accused to attack or to participate in the occurrence. The house of Mewa Singh, as would be shown from the site plan prepared by the draftsman Exhibit PE is juts close to the place of occurrence it is only after the occurrence had already started that he came to spot and started participating therein without any instigation from Swaran Singh accused. The three eye-witnesses produced in this case did not state that Swaran Singh accused, at any stage either called for help or asked Mewa Singh accused to help or to attack. If on his own Mewa Singe on hearing comotion came out of his house armed with a gandasi and participated in the occurrence seeing that Swaran Singh accused was involved, at the most it can be said that he intended to either save Swaran Singh or to attack assailants of Swaran Singh. Incase he was having such an intention that would be nothing more than same intention as Swaran Singh had. There is marked difference between same intention and similar intention. The former will not attract the provision of Section 34 of the Indian Penal Code, whereas the latter would. Sessions Judge was, therefore, not correct in applying the provisions of Section 34 of the Indian Penal Code to the facts of the case even for the offence under Section 326 of the Indian Penal Code for causing grievous hurt to Nachhattar Singh. If provisions of Section 34, Indian Penal Code, are not applicable, part of each accused is to be independently considered to see what offence, if any, is committed. No one would be liable vicariously for the acts of others. As already stated above, there is no evidence and it is not the prosecution case that there was any pre-consultation between the two accused to commit the crime. Further there is no evidence that such similar intention was formed on the spot.
12. If on going through the evidence produced by the prosecution, a firm finding can be recorded that the accused was the agressor, there would be no difficulty in recording conviction of Swaran Singh under Section 302 of the Indian Penal Code However, if it is not so found and it is also not possible to give a firm finding that the prosecution witnesses were the agressors, the plea of the accused that they acted in exercise of the right of private defence, cannot automatically be accepted Such a rignt can only exist if it is established that the prosecution witnesses in fact were the agressors. No doubt, the accused are not supposed to prove their defence beyond reasonable doubt and if such a defence is reasonable and plausible, the same should be accepted. On perusal of the evidence and taking into consideration the circumstances of the present case I am of the view that the right of private defence was not available to the accused. No. firm finding can be recorded with respect to the origin of the fight and so to which of the parties was the agressor and in such circumstances the accused would be liable for the acts, done, Injuries to Bikkar Singh had already been caused when Mewa Singh accused came on the scene Thus, the injuries found on Swaran Singh and Bikkar Singh deceased are being noticed PW-1 Dr. G. K. Kataria, medically examined Swaran Singh accused on October 22, 1987 at 1.00 p. m. and found the following 8 injuries : –
1. A reddish abrasion 4 cms. X 1/2 cms. on the right frontal region just close to the hairy margin. Bleeding and tenderness was present.
2. A curved incised wound 2 cms. X 1/2cm. X bone deep on the back of right hand, in middle of second metacarpal bone. Bleeding and tenderness was present. Advised X-ray.
3. Abrasin 1 cm X 1 cm. on the outer aspect of right upper arm, just above the elbow joint. Tenderness was present. Advised X-ray.
4. An abrasion 1/2 cm. X 1/2 cm, on palmer aspect of bage of left thumb. Tenderness was present
5. An abrasion 1/2 cms 1/2 cm on back of inter-phalangeal joint of left ring finger. Tenderness was present.
6. An abrasion 8 cms. X 1/2 cm on the front of right knee. Tenderness was present
7. An abrasion 8 cm. X 1/2 cm. on the back in lect scapular region. Tenderness was present Advised X ray.
8. A raddish bruise 15 cm. X 5 cms. on leftside of back just below injury No. 7. Tenderness was present. X-ray was advised.
Injury No. 2 was caused with a sharp edged weapon and the other injuries were caused with a blunt weapon. Exhibit PB is the copy of the medico legal report. The duration of the injuries was stated to be 24 hours.
PW-2 Dr. Gurtej Singh deposed that on x ray being conducted on Swaran Singh accused, no fracture of any bone was found Thus all the injuries found on Swaran Singh accused were simple in nature.
PW-10 Dr. J. S. Chhimpa medically examined Bikkar Singh and found an incised wound 12 1/2 cms. X 1/2 cm. bone deep over left side of the scalp parallel to the mid-line antero-posteriorly. Fresh bleeding was present. On post-mortem on the dead body of Bikkar Singh the aforesaid injury was found along with surgical stitched wound. The death was due to the head injury which was sufficient to cause death in the ordinary course of nature. Copy of the post mortem report is Exhibit PW-12/B. Since all the injuries found on the person of Swaran Singh were . simple in nature, it cannot be held that he was incapacitated from causing injury to Bikkar Singh. However, it; is certain that Bikkar Singh after receipt of the head injury, as aforesaid, was not in a position to cause any injury. According, to PW- 6 Nachhattar Singh, Harjodh Singh (PW-11) inflicted injuries on the two accussed with his gandasi. PW-11 Harjodh Singh stated that he took the gandasi from Dilbag Singh and inflicted 2 or 3 injuries to each of the two accused. According to the statement of Swaran Singh accused recorded under Section 313 of the Code of Criminal Procedure, Bikkar Singh and Nachhattar Singh armed with gandase confronted him and they inflicted injuries on him. On his alarm Mewa Singh accused came to the spot and he also suffered injuries.
Nachhattar Singh was examined by PW10 Dr. J. S. Chhimpa and the following three injuries were found at i.50a m on October 22 1987 :-
1. Incised wound on the scalp 4 cms x 1/2 cm. bone deep, 10 cms. above glabella. Fresh bleeding present. X-ray was advised.
2. Incised wound 3 cms. X 1/2 cm. over dorsum of 3rd toe (right foot), it was bone deep and fresh bleeding was present. X-ray was advised.
3. Abrasion 3 cms. X 1/2 cm. over front of right shin of tibia starting from titial tuberosity.
Injuries Nos. 1 and 2 were kept under observation. Injury No. 3 was simple. Injuries Nos. 1 and 2 were caused by sharp edged weapon and injury No. 3 by a blunt weapon. Duration was 6 hours. Exhibit PN is copy of the report. On x-ray conducted on Nachattar Singh fracture of frontal bone and fracture of middle phalanx of third toe were noticed. Thus, injuries Nos. 1 and 2 were found to be grievous. Exhibit PD is the x-ray report. Since injury No. 1 was grievous and was on the head it could only be said that after receipt of such injury, Nachhattar Singh was not able to cause injuries to other. However’ with other two injuries, it could not be said that he could not cause injuries to Swaran Singh. Harjodh Singh PW 11 did not receive any injury in the occurrence, it is his own case that he caused injuries to the two accused. Since there is no cross-case involving Harjodh Singh for the injuries caused, much significance cannot be attached to his statement made in the Court. His house is, of course, near the place of occurrence and his presence on the spot may be natural but his partipation is the occurrence may be doubted as he did not receive any injury on his person. In order to lend corroboration to the prosecution case, he being closely associated to the deceased, was easily available to stand as a witness. His statement, thus, cannot be accepted on its face value more particularly with respect to the origin of the fight.
13. There being no motive or immediate cause for the occurrence and taking into consideration the evidence of the eye-witnesses circumstances of the case and the plea of the accused of self-defence being not accepted, the accused would be liable for their own actions. The fight took place all of a sudden when Swaran Singh accused per chance met Bikkar Singh in the street. A perusal of the plan prepared by the draftsman shows that Swaran Singh had already crossed the houses of the complainant party when the occurrence took place. There may be some cause for the complainants to stop Swaran Singh visiting the house of Nihal Singh that there was some quarrel between Bikkar Singh and Swaran Singh. Only one injury is attributed to Swaran Singh having been caused to Bikkar Singh on his head which ultimately proved fatal There was no intention on his part to commit murder of Bikkar Singh. When all of a sudden fight erupts it would be difficult to say that the accused also intended to cause such bodily injury which in all probabilities was likely to cause death. The possibility of inflicting the injury which ultimately caused the death in the heat of passion in a sudden fight cannot be ruled out and rather on the facts and circumstances of the present case this appears to be so This would take the case to fall under Exception 4 to Section 300 of the Indian Penal Code. It would be a case of homicide not amounting to murder. The offence committed would fall under Section 304 Part II of the Indian Penal Code. Swaran Singh was the wrongly convicted by the Sessions Judge under Section 302 of the Indian Penal Code. Reference in this context may be made to the decision of the Supreme Court in Jumman v. The State of Punjab, A. I. R. 1957 S. C. 469. In para 24 of the judgment it was observed that : –
“….. ………where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides ? We are of the view that such a situation does not permit of the plea of private defence on either side and Would be a case of sudden fight and conflict and has to be dealt with under Section 300, I.P.C., Exception 4 ”
Similar view was expressed by the Supreme Court in Ram Karan v. State of Uttar Pradesh , 1982 S. C. C. (Crl ) 386. The observations made in para 7 of the judgment may be noticed :-
“Taking an over all view of the situation, we find no evidence of any intention to kill the two deceased on the part of the accused because the occurrence itself had taken place suddenly when, to begin with, the entire episode started for the particular purpose of partitioning the land by the Commissioners who had visited the village. In these circumstances we are satisfied that Exception a to Section 300,1. P.C. is attracted and the offence of murder would be reduced to culpable homicide.”
14. Keeping in view the ratio of the decisions aforesaid and discussion of the evidence and the circumstances of the case, Swaran Singh accused is held guilty under Section 304 Part II of the Indian Penal Code, and not under Section 302, Indian Penal Code.
15. Since Section 34 of the Indian Penal Code was not attracted to the case in hand conviction under Section 326 read with Section 34 of the Indian Penal Code could not be recorded. On behalf of the complainant side only Nachhattar Singh PW was injured in the occurrence. Injuries found on his person have already been described above. Injuries Nos. 1 and 2 were found to be grievous whereas injury No. 3 was simple in nature Injuries Nos. 1 and 2 were caused with sharp edged weapon. Swaran Singh accused is alleged to have given gandasi blow hitting Nachhattar Singh on his head and Mewa Singh accused gave gandasi blow hitting Nachhattar Singh on his right little toe. Both these injuries were grievous in nature, therefore, both these accused would be guilty under Section 326 of the Indian Penal Code.
16. The other evidence produced in this case is not considered material for deciding the appeal; such as evidence of recovery of weapons etc. The net result is that Swaran Singh accused is held guilty under Section 304 Part II of the Indian Penal Code. He was arrested in November, 1987 and since then he is in custody. He has spent about more than 4 1/2 years in jail. The period of sentence already undergone, in the circumstances of the present case, is considered just. Thus, he is sentenced to rigorous imprisonment for the period already undergone and to pay a fine of Rs. 5,000/-. In default of payment of fine he would undergo rigorous imprisonment for one year. The fine, if recovered, would be paid to the next heirs of Bikkar Singh deceased. Swaran Singh accused is also convicted under Section 326 of the Indian Penal Code for causing grievous hurt to Nachhattar Singh and is sentenced to rigorous imprisonment for 3 years. No separate fine is imposed on this count. This period of sentence would run concurrently with the sentence awarded under Section 304 Part II of the Indian Penal Code.
17. Mewa Singh accused who has been held guilty under Section 326 of the Indian Penal Code for causing grievous hurt on the toe of Nachhattar Singh is on bail. He has suffered a protracted trial as well as the appeal for this period. Since the occurrence related to October 1987, after a lapse of such a period it is net considered appropriate to send him in jail. Thus, he is awarded the sentence already undergone by him and to pay a fine of Rs. 5,000/ . In default of payment of fine, he would undergo rigorous imprisonment for one year. The amount of fine, if recovered, would be paid to Nachhattar Singh PW.
18. With the above modification in the matter of conviction and sentence, the appeal stands disposed of.