Criminal Appeal No.241-DB of 2000 v. Jai Narain

HON'BLR MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE NAWAB SINGH Mr. H.S. Gill, Sr. Advocate with Mr. R.K. Dhiman, Advocate. Mr. Pardeep S. Punia, Addl. AG Haryana, for State of Haryana. Mr. Kapil Kumar, Advocate, for the complainant. NAWAB SINGH J. This judgment would dispose of Criminal Appeal No.241-DB of 2000 filed by accused and Criminal Revision No.1386 of 2001 filed by the complainant arising out of a judgment of conviction dated May 16th, 2000 and order of sentence dated May 20th, 2000 passed by Additional Sessions Judge, Rewari, whereby, Criminal Appeal No.241-DB of 2000. 2 Sajan Singh and Joginder Singh were convicted under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.50,000/- each, with default stipulation. Sajjan Singh accused-appellant was also convicted under Section 27(i) of the Arms Act and sentenced to undergo Rigorous Imprisonment for three years and to pay fine of Rs.5000/- with default stipulation.

2. By judgment dated May 16th, 2000 passed by Additional Sessions Judge, Rewari, Jai Narain, Kehar Singh, Desh Raj, Bhim, Suraj Bhan, Dharam Pal, Satya Prakash, Prabha and Vinod were acquitted in complaint case instituted by Ravinder alias Ravi, who was one of the accused in the State case. By filing Criminal Appeal No.58-DBA of 2001, the said judgment of acquittal has also been impugned.

3. Since both the appeals and the revision relate to the same occurrence, they are being decided by this common judgment.

4. The prosecution story unfolded by Jai Narain (PW1) is :- On March 18th, 1993 at about 10.30 AM, Sajjan Singh armed with a gun, Joginder Singh armed with iron rod along with five others including Sajjan Singh's wife Savitri started demolishing the structure raised on the plot purchased in the name of wife of Jai Narain-complainant (PW1) and Kehar Singh in equal share situated in Shiv colony, Rewari. Jai Narain was informed by a few residents of the Colony that Sajjan Singh and others were demolishing the structure. Jai Narain along with Kehar Singh, Raghbir Singh, Bihari Lal, Suraj Bhan, Jawala alias Ram Kishan (deceased), Rajinder (deceased) and Ram Ratti reached there. On seeing Sajjan Singh armed with the gun, Jai Narain raised his hands and asked him not to fire but Sajjan Singh fired a shot which hit Jawala alias Ram Kishan saying satirically that he would give him (Jai Narain) the plot. Meanwhile, Joginder gave a blow with the iron rod on the head of Rajinder. Apprehending danger at the hands of the assailants, Jai Narain and his family members also caused injuries to Ravinder, Babu Lal and Surender with a piece of wood. The occurrence was Criminal Appeal No.241-DB of 2000. 3 witnessed by Umrao Singh and Amar Singh. Jawala alias Ram Kishan and Rajinder were brought to Civil Hospital, Rewari. The Medical Officer declared Jawala alias Ram Kishan brought dead and referred Rajinder to All India Institute of Medical Sciences, New Delhi where he succumbed to his injuries on March 19th, 1993. Dr. Ram Avtar Gupta (PW-10) sent information (Exhibit PG) to the Station House Officer, Police Station, Rewari that Ram Kishan was brought dead in the hospital on March 18th, 1993 at 11.35 AM. On receipt of information, Ram Kumar, Station House Officer, Police Station Rewari reached the hospital and recorded the statement of Jai Narain. He proceeded to the spot and conducted proceedings under Section 174 of Code of Criminal Procedure.

5. The bone of contention was the plot where the occurrence took place. The complainant party claimed that the plot was purchased by them on September 14th, 1989 from Mange Ram, attorney of Charanjit Lal and the same was in their possession whereas accused claimed that the plot belonged to them because they had a civil decree in their favour suffered by Ajay Kumar Goel. In order to settle the dispute, Sajjan Singh accused called Jai Narain on June 17th, 1993, a day prior to the occurrence. He told him that plot belonged to him but Jai Narain claimed that the plot belonged to him and he was in possession of the same. The revenue record, that is, mutation girdwari and jamabandi were also in his favour and to settle the issue, Sajjan Singh should file a suit in the Civil Court. Sajjan Singh replied that he did not care about any Civil Court and he would take the possession of the plot within one or two days.

6. Sajjan Singh was arrested on the same day, that is, March 18th, 1993. He was interrogated. During interrogation, he made a disclosure statement (Exhibit PT) that he had kept concealed his gun in his tubewell and could get the same recovered. Pursuant thereto, he got recovered the gun which was taken into possession vide recovery memorandum (Exhibit PT/1). On March 24th, 1993, Joginder Singh accused was arrested. He was also interrogated. He got recovered iron rod lying under the fodder in his fields in Criminal Appeal No.241-DB of 2000. 4 pursuance to his disclosure statement (Exhibit PB).

7. On completion of investigation and other formalities, the accused were arraigned for trial.

8. The accused-appellants were charged under Sections 148, 302 and 323 read with Section 149 of Indian Penal Code. Sajjan Singh accused-appellant was also charged under Section 27 of the Arms act. They pleaded not guilty and claimed trial.

9. In support of its case, prosecution examined Jai Narain (PW-1), Suraj Bhan (PW-2), Krishan Kumar (PW-3), Parkash Chand (PW-4), Daya Nand (PW-5), Kartar Singh (PW-6), Randhir Singh (PW-7), Narender Singh (PW-8), Dr. Y.P. Singh (PW-9), Dr. Ram Avtar Gupta (PW-10), Mahender Singh (PW-11), Inder Singh (PW-12), Ram Kumar (PW-13), Dr. L.C. Gupta (PW-14), J.K. Jain (PW-15) and Dr. S.K. Gupta (PW-16).

10. In their examination recorded under Section 313 of the Code of Criminal Procedure, the accused-appellants denied the allegations. Sajjan Singh accused-appellant stated that he was owner in possession of the plot in question. Complainant party wanted to take possession forcibly. On the day of occurrence, Ram Kishan, Rajinder, both deceased along with Jai Narain, Kehar, Raghbir, Des Raj, Bhim, Bihari, Suraj Bhan, Dharampal, Satparkash, Prabhu and Vinod armed with lethal weapons viz iron rods, lathies and jallies came to the plot and caused injuries to Surinder, Babu Lal, Savitri and Ravinder. He caused the injuries to the complainant party in self-defence. After the occurrence, he had gone to the Police Station to lodge the report but the Police did not record the First Information Report. He filed a criminal complaint against the complainant party. Joginder accused-appellant has stated that he was not present at the spot and he was falsely implicated for causing the murder of Rajinder Singh.

11. In defence, accused-appellants examined sixteen witnesses viz Sri Ram, Raman Sharma, Ajit Singh and Om Parkash (DWs1 to 4) prove that there was litigation pending between the Criminal Appeal No.241-DB of 2000. 5 parties at Civil Court, Rewari. Gajender Singh, Head Clerk, Railway (DW-5) was examined to prove that on March 16th, 1993 Sajjan Singh was on official duty at Bikaner. B.R. Batra (DW-6) proved medical certificate (Exhibit D-2) issued by Safdarjang Hospital, New Delhi. Rajbir (DW-7) proved the complaint (Exhibit D-3) titled Rajinder vs. Jai Narain. Gurdial Singh, Patwari (DW-8) proved Rapt (Exhibit D-4). Dr. Dhirender Srivastva (DW-9) medically examined Surender and proved that he received three fractures on his person viz left zygomatic arch, mandible left parasysmphysis and left subcondyle region. Dr. Ajay Gupta (DW-10) deposed that he did not examine Ravinder. Bijender Singh, Clerk Lok Nayak Hospital, Delhi (DW-11) produced the record. Jai Singh Yadav (DW-12) produced the summoned record. Ganga Ram (DW-13) also proved that on March 16th, 1993 Sajjan Singh was on official duty at Bikkaner. Dr. N.K. Sharma (DW-14), radiologically examined Babu Lal and found fractures on his both bones, distal phalanx, fracture of terminal distal phalanx of the index finger and fracture of neck of scapula. He also examined Savitri and found fractures on radius left side. He proved the record (Exhibit D-10 and 11). Sri Ram, Record Keeper, DC Office, Rewari (DW-15) tendered the file titled Bholu Ram vs. Ramji Lal. Ved Parkash, Clerk of an Advocate (DW-16) proved the plaint (Exhibit D-12).

12. On conclusion of trial, Sajjan Singh and Joginder were convicted as detailed in the opening paragraph of this judgment. Ravinder, Savitri, Babu Lal, Vijay Parkash and Surender were acquitted.

13. During the pendency of appeal, Sajjan Singh died. Application under Section 394 of Code of Criminal Procedure was filed by his son Bhim Singh seeking leave to continue the appeal. Leave was granted by this Court vide order dated September 21st,

2004. The appeal has thus not abated on the death of Sajjan Singh accused.

14. In this case, the occurrence is admitted. The only argument advanced by the learned counsel for the accused- Criminal Appeal No.241-DB of 2000. 6 appellants was that Sajjan Singh fired shot from his gun which hit Jawala alias Ram Kishan and Joginder Singh caused blow with iron rod on the head of Rajinder (deceased) in self-defence to protect themselves, their family members and the property. The same is the stand taken by Joginder Singh in his statement recorded under Section 313 Cr.P.C. The complainant party's case is that they caused injuries to Ravinder, Babu Lal and Surender with a piece of wood after the accused party fired upon them and caused injuries with iron rod in their self-defence. In this scenario, the question arising for consideration is as to whether the accused caused injuries to the members of the opposite party while exercising the right of self defence to protect themselves and the property or not ?

15. There are series of judicial pronouncements on the point as to in what cases, the accused can avail the benefit of acting in right of self-defence. This Court would like to refer to two authorities of the Hon'ble Supreme Court on this point:-

16. In Laxman Sahu vs. State of Orissa 1988 Crl.L.J. 188 (1), it was held that the right of private defence is available only to one who is suddenly confronted with immediate necessity of averting an impending danger and not of his creation. The necessity must be present, real or apparent.

17. In State of U.P. vs. Ram Swarup and another 1974 Crl.L.J. 1035, a Full Bench of the Hon'ble Supreme Court held as under:- “The right of private defence is a right of defence, not of retribution. It is available in face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage- manages a situation wherein the right can be used as a shield to justify an act of aggression. If a person goes with a gun to kill another, the intended victim is entitled to act in self-defence and if he so acts there is no right in the former to kill him in order to prevent him from acting in self-defence. Criminal Appeal No.241-DB of 2000. 7 While providing for the right of private defence, the Penal Code has surely not devised a mechanism whereby an attack may be provoked as a pretence for killing.”

18. Let the facts of this case be examined on the touchstone of the law laid down in the aforesaid authorities. The facts of the case reveal that on the fateful day, that is, March 18th, 1993 at about 10.30 AM, the accused party armed with gun and other lethal weapons viz iron rod etc. were present on the spot and demolishing the structure. A few residents of the locality informed Jai Narain (PW- 1) and Suraj Bhan (PW-2). The plot was purchased by wife and nephew of Jai Narain in equal shares in the year 1989 vide sale-deed (Exhibit P3). The complainant party reached the spot. Jai Narain with his raised hands asked Sajjan Singh not to fire but Sajjan Singh fired a shot which hit Jawala alias Ram Kishan (deceased). Joginder Singh caused a blow with iron rod on the head of Rajinder Singh who also died next day, that is, March 19th, 1993. When the occurrence took place, Sajjan was accompanied by his sons Joginder Singh accused-appellant, Ravinder Singh, his wife Savitri Devi and three others. A day prior to the occurrence, Sajjan Singh accused called Jai Narain and told him that plot belonged to him but Jai Narain told him that he was in possession of the plot and the entire revenue record, that is, mutation, girdawari and jamabandi (Exhibits P-1, PBB/5 and PBB/4 respectively) were in his favour but Sajjan Singh retaliated that he would take the possession of the plot in a day or so, which he tried to take next day, that is, March 18th, 1993. To prove all these facts, Jai Narain (PW-1) and Suraj Bhan (PW-2) have been examined by the prosecution. They were cross-examined but no discrepancy could be pointed out in their testimony to disbelieve them. The plot is situated in the town of Rewari. There was no point for Sajjan Singh and his son Joginder Singh to go to the plot with double barrel gun and iron rod etc. It speaks for itself that they went to the spot for taking the possession of the plot. Otherwise too, the question of carrying gun and the lethal weapons by the accused was Criminal Appeal No.241-DB of 2000. 8 not justified. It has also been proved by the ocular testimony of Jai Narain and Suraj Bhan that Sajjan Singh firstly fired shot upon the complainant party which hit Jawala alias Ram Kishan without any overt or provoking act on the part of the complainant party and thereafter, Joginder Singh caused a blow with iron rod on left parietal occipital region as was found by Dr. L.C. Gupta (PW-14).

19. Above being the factual and legal position, it clearly emerges that it were the appellants who were the aggressors. Sajjan Singh and Joginder Singh along with other family members had gone to the plot armed with double barrel gun and iron rod respectively to take the possession of the plot forcibly. Sajjan Singh fired shot upon Jawala alias Ram Kishan and Joginder Singh gave blow with iron rod on the head of Rajinder causing death of both. Jai Narain (PW-1) and the deceased had the right of private defence of property and person. The injuries caused by them to the family members of Sajjan Singh were on account of their self-defence. The accused party was not suddenly confronted rather they had gone to the spot with preparation. In view of this, the defence of accused- appellants is nothing but a ruse. The question formulated is answered accordingly.

20. In view of what has been stated above, the impugned judgments do not suffer from any infirmity and are, therefore, upheld. Resultantly, both appeals and the revision being devoid of merit are dismissed.

21. Sajjan Singh has expired during the pendency of the appeal. Joginder Singh accused-appellant is on bail. His bail/surety bonds are cancelled. He be arrested and sent to jail to undergo the remaining part of sentence. Learned trial Judge is directed to comply with this order forthwith under intimation to this Court.

20.7.2010 SN (ASHUTOSH MOHUNTA) (NAWAB SINGH) JUDGE JUDGE