Ajit Singh vs State of Punjab

R.L. Anand, J. (Oral)

By this judgment I dispose of Criminal Appeal No. 603SB of 1986 titled Ajit Singh & others v. State of Punjab and Criminal Revision No. 126 of 1987 titled Mohan Lal v. Ajit Singh and others. Vide appeal No. 603SB of 1986 aforesaid Ajit Singh and others have prayed for their acquittal and in the criminal revision the prayer made by the petitioner is for the enhancement of the sentence. All the four appellants namely Ajit Singh, Hari Chand, Harjit Singh and Amar Singh were convicted and sentenced under the various offences. Ajit Singh was convicted under Section 304 PartI of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs. 2,000/. In default of payment of fine he was directed to further undergo rigorous imprisonment for one year. This appellant Ajit Singh was also convicted under Section 324 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 600/. In default of payment of fine he was directed to further undergo rigorous imprisonment for two months. Hari Chand appellant was convicted under Section 323 of the Indian Penal Code like his coaccused Harjit Singh and Amar Singh and each one of them was sentenced to rigorous imprisonment for nine months and to pay a fine of Rs. 500/ each and in default of payment of fine each one of these three appellants was directed to undergo further rigorous imprisonment for a period of two months. It may be stated that four appellants along with Joginder Singh, Gurmit Singh, Sharanjit Singh and Narinder Singh were tried for an offence under Sections 302, 324, 323, 148 and 149 of the Indian Penal Code in case F.I.R. No. 65 dated 1.4.1985, Police Station Dasuya and these four persons namely Joginder Singh etc. were acquitted by the trial Court vide impugned judgment dated 13.9.1986.

The complainants of this case also filed a separate Criminal Appeal No. 601SB of 1986 and they were also acquitted by the High Court vide judgment dated 20.3.1997 passed by Hon''ble Mr. Justice A.S. Nehra. In the opinion of this Court the present Criminal Appeal No. 603SB of 1986 ought to have been heard along with Criminal Appeal No. 601SB of 1986 as both the appeals have arisen from one occurrence which took place on 31.3.1985 at 11.00 P.M. at G.T. Road, Dasuya.

For the disposal of the present cases, the following facts can be incorporated :

The F.I.R. Ex. PJ was lodged by Mohan Lal PW5. According to the complainant, the complainant party deals in liquor. It takes liquor contracts of country made liquor in the name of M/s Ved Parkash & Co. and that of country made foreign liquor in the name of M/s Uppal & Co. and M/s Yagya Datt & Co. On 31.3.1985 the old contracts of excise were to come to an end and new contracts were to start functioning with effect from 12 midnight of 1.4.1985. The complainant party had obtained contracts of the country made foreign liquor and country liquor for the year 198485 in the name of the abovesaid companies. Mohan Lal, his elder brother Ved Parkash (deceased), Kewal Krishan, residents of Bhogpur and Subhash Uppal, resident of Dasuya were present in their country made liquor vend for doing accounts of the last year. At about 11.00 P.M. on 31.3.1985, the party of Narinder Singh, who had taken the contracts of country made foreign liquor for the year 198586 brought stock of liquor in a tempo. The party of Mohan Lal had also brought stock of liquor in a tempo and that was stored in a shop by Ravi son of Devinder Nath and Balkar Singh son of Jaswant Singh. Thereafter they came to Mohan Lal at the liquor vend and informed him that stock of liquor had been stored. Mohan Lal PW5 asked to put the lock and to go to the complainant party''s office. Ved Parkash, deceased, elder brother of Mohan Lal PW5, had just come out of the liquor vend. In the meanwhile, Gurmit Singh son of Narinder Singh (since acquitted) armed with an iron rod, Babby alias Ajit Singh son of Gurbax Singh armed with Datar, Mohinder Sigh alias Joginder Singh (since acquitted) empty handed and four other persons including Amar Singh appellant came there duly armed. Babby (Ajit Singh) aforesaid, according to the prosecution, gave a Datar blow on the head of Ved Parkash. After receipt of injuries, Ved Parkash, deceased, started running. Narinder Singh (since acquitted), who was a little behind, exhorted that Vedu should not be allowed to escape and he should be killed and he himself would see to it. Mohan Lal PW5, in the meanwhile, came out and he was taken in arms by Mohinder Singh alias Joginder Singh (since acquitted) and Gurmit Singh (since acquitted) allegedly gave a blow with iron rod on the head of Mohan Lal, as a result of which he fell down. While Mohan Lal was lying on the ground all the accused named in the F.I.R. allegedly caused injuries to him. The persons of the side of the party of Mohan Lal PW5 raised Lalkaras and asked Mohan Lal etc. to take courage. At this the appellants and their companions retraced their steps while hurling brickbats. It is the case of the prosecution that during the course of this occurrence Mohan Lal PW 5, Ravi Kumar PW6 and one Balkar Singh also received injuries besides Ved Parkash, deceased. After the occurrence Mohan Lal PW5 was taken to Civil Hospital, Dasuya by Sat Pal, where he was got admitted.

ASI Samund Singh PW9 went to Civil Hospital, Dasuya and took into possession six medicolegal reports of Amar Singh, Ajit Singh, Balkar Singh, Ravi Kumar and Hari Chand. He submitted application Ex. PQ/2 before the doctor in order to obtain his opinion whether Balkar Singh was fit to make a statement or not, but the doctor vide endorsement Ex. PQ/3 opined that injured was not fit to make a statement. On receipt of medicolegal report in respect of Mohan Lal PW5, ASI Samund Singh again went to Civil Hospital, Dasuya for recording the statement of Mohan Lal. The Investigating Officer submitted application Ex. PS/2 for obtaining the opinion of the doctor regarding the fitness of Mohan Lal. The doctor vide his endorsement Ex. PS/3 declared Mohan Lal fit to make a statement. The medicolegal report of Ved Parkash was also received by the said Thanedar, who submitted application Ex.PR/2 to the doctor and the doctor vide his opinion Ex.PR/3 said that Ved Parkash was not fit to make a statement. Resultantly, when Mohal Lal PW5 was declared fit to make a statement, ASI Samund Singh recorded his statement Ex. PJ and this statement was completed at 11.15 A.M. on 1.4.1985. The Thanedar made his endorsement Ex.PJ/1 and it was sent to police station for the registration of the case. Various applications were also made by the Investigating Officer seeking the doctor''s opinion regarding the fitness of the injured to make the statements on that day but they were declared unfit to make the statements.

Ved Parkash died on 1.4.1985 and it was so intimated to the police. SI Surjit Singh reached Civil Hospital, Dasuya and prepared inquest report Ex. PD on the dead body of Ved Parkash. Initially the offence was registered under Sections 308, 324, 323, 148 and 149 of the Indian Penal Code but after receiving the intimation about the death of Ved Parkash it was changed into Section 302 of the Indian Penal Code against the present appellants and their companions.

It may also be mentioned here that no separate F.I.R. was registered against the complainant party with respect to the injuries of Ajit Singh alias Babby, Hari Chand, Harjit Singh and Amar Singh appellants.

On the completion of the investigation of both the cases, two separate challans were put one against the present appellants and their four companions under Sections 302, 324, 323, 148 and 149 of the Indian Penal Code and the other against Mohal Lal, Ravi Kumar and others in the Court of Illaqa Magistrate, who supplied the copies of the documents to the accused and vide order dated 24.12.1985 committed the present appellants and their companions to the Court of Session in order to face the trial under Sections 302, 324, 323, 148 and 149 of the Indian Penal Code. The charges were framed against them under the above provisions by the trial court to which they pleaded not guilty and claimed trial.

In order to prove the case, the prosecution examined Dr. S. Tiwari as PW1. This witness conducted the post mortem examination on the dead body of Ved Parkash on 2.4.1985 and found the following injuries :

1) An abrasion over the left side of abdomen measuring 1 cm. x 10 cms. It was brown in colour.

2) An abrasion on the left side of forehead measuring 3 cms x 3 cms.

3) One lacerated wound present on the head. It was extending from right parietal region to left parietal region, measuring 7 cms x 1 cm 1 cm.

4) An abrasion 3 cms x 1 cm on the scalp which was stitched 4 cms behind the injury No. 3.

5) One contusion 15 cms x 2 cms present over back of left shoulder.

6) One bruise on the back of right shoulder lying obliquely and measuring 15 cms x 2 cms. Injury Nos. 5 and 6, the edges of the bruise are more demarcated than central portion.

7) One bruise on front of left knee measuring 4 cms x cm.

8) Four small bruises over the left leg on its front, size varying from 5 to 1.5 cm. linear abrasions.

In the opinion of the doctor the cause of death in this case was raised intracranial tension as a result of injury No. 3 (headinjury). All the injuries were antemortem in nature, caused by blunt weapon and were sufficient to cause death in ordinary course of nature.

PW7 Dr. R.P. Mehangi medically examined Balkar Singh (not examined) and found the following two injuries on his person :

1) An incised wound of size 7 cms x 2 cms over the anterior aspect of part of first wed space of left hand. Fresh bleeding present. Wound was muscle deep. Haematoma was present.

2) An abrasion of size 2 cms x 2.5 cms over the nose over bridge, pink in colour.

Five injuries were found on the person of Mohan Lal PW5 and his injuries are described as follows :

1) An incised wound of size 4 cms x .5 cm, scalp deep over the left parietal region, fresh bleeding was present.

2) An abrasion of size 2.5 cms diameter over the right first wed space, pink in colour.

3) A bruise of size 4 cms x 2 cms over the left forearm, pink in colour.

4) A bruise of size 4 cms x 2.5 cms over the right elbow.

5) A bruise of right knee, pink colour, size 4 cms x 4 cms.

On the person of Ravi Kumar seven injuries were noticed by the doctor, which are as follows :

1) An incised wound of size 5.5 cms x 1.6 cms over the lateral aspect of left thumb lying obliquely and transversely. It is muscle deep. Fresh bleeding was present.

2) Lacerated wound of size 1.5 cms x 5 cms below injury No. 1. Fresh bleeding was present. It was skin deep.

3) A lacerated wound of size .5 cm x .5 cm, skin deep on the medial aspect of right thigh. Fresh bleeding present.

4) A bruise of size 2 cms x 2 cms over the front of right knee.

5) An abrasion 1 cm x 1 cm over the front of the left knee.

6) An abrasion 4.5 cms linear over the front of left leg.

7) A bruise of size 10 cms x 2 cms on the right side of chest, pink in colour.

The injuries on the persons of the accused are also relevant for the adjudication of the present appeal. One bruise of size 5 cms x 5 cms on the back of left shoulder region was found on the person of Amar Singh. According to the doctor the movement of the left shoulder joint was painful and restricted. This injury was kept under observation and was declared grievous vide M.L.R. Ex. DA by the doctor on 1.4.1985. Ajit Singh appellant was also medically examined on 1.4.1985 and the following three injuries were found on his person :

1) An incised wound of size 3 cms x 1.5 cm on the posterior aspect of right thumb, bone deep. Swelling present.

2) An abrasion of size 1 cm x. 2 cms over the right finger outer aspect, pink in colour.

3) An abrasion of size 6 cms x 2 cms over the posterior middle aspect of left forearm, pink in colour.

Injury No. 1 was kept under observation while injuries Nos. 2 and 3 were declared simple in nature. According to the doctor, injury No. 1 was caused by sharp edged weapon, while injuries Nos. 2 and 3 were caused by blunt weapon. Injury No. 1 was declared grievous. On the body of Harjit Singh there were seven injuries which are described as under :

1) A bruise of size 8 cms x 2.5 cms over the left lumber region lying obliquely, pink in colour.

2) An abrasion of size 5 cms lying obliquely and vertically over the back of lumber region in mid line, pink in colour.

3) An abrasion of size 9 cms x 30 cms lying transversely over the right lumber region, pink in colour.

4) A bruise of size 5 cms x 2 cms over right shoulder region in the middle part, pink in colour.

5) A bruise of size 3 cms x 2.5 cms over the interior aspect of right forearm

6) Patient complained of pain and tenderness over right leg.

7) An abrasion on the right middle finger.

Injury No. 1 was kept under observation and after the xray examination it was declared as simple. On the body of Hari Chand also one incised wound was noticed on the right side of his forehead. His injury can be described in the following manner :

1) An incised wound of size 3.5 cms x 2.5 cms over the right side of fore head. Fresh bleeding was present. It was muscle deep.

It may be summed up that from the complainant side there were four injured namely Ved Parkash, deceased, Mohan Lal PW5, Ravi Kumar PW6 and one Balkar Singh, who was not examined in the trial Court. On the side of the accused (appellants) all the four appellants were injured whose injuries I have described above.

The prosecution in the trial Court also relied upon the affidavits of formal witnesses besides the report of the Chemical Examiner and that of the Serologist and closed the case in order to secure the conviction of the appellants.

The appellants were examined under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them. Amar Singh, Hari Chand and Harjit Singh appellants adopted the plea which was taken up by their coaccused Ajit Singh and the plea of Ajit Singh is as under :

"I am innocent. On the night of occurrence I along with my nephew Harjit Singh, employee Hari Chand and brother Amar Singh were present at our new English wine shop which Narinder Singh had taken from Surinder Singh through Mohinder Singh for the year. Narinder Singh and Gurmit Singh had left at about 9 PM for Jalandhar. After setting new shop in order, i.e. the English liquor vend, we were about to leave, when Ved Parkash, Satpal, armed with datar, Gopal Dass and Mohan Lal with rods, Bhim Sen, Ravi Kumar and Balkar Singh with dangs, Bippan Kumar and Subhash Chander attacked us in our new English wine vend and they caused injuries to us with their respective weapons. They also threw brickbats in our vend damaging the liquor bottles, refrigerator and furniture and the gate. We also threw brickbats at them in selfdefence. I was also wearing a small gatra kirpan with which I caused one each to Balkar Singh, Mohan Lal and Ravi Kumar. We also threw brickbats at the opposite party in our selfdefence and then they ran away. Ved Parkash did not receive any head injury in that incident and he had run away along with the others. Narinder Singh, Gurmit Singh, Sharanjit Singh and Joginder Singh were not present at the time of incident. Mohan Lal etc. was aggrieved against the opening of new English liquor vend by my bortherinlaw Narinder Singh as Narinder Singh had broken their monopoly by taking the liquor vend in auction. The complainant party was fully prepared to murder us and, therefore, we acted in right of private defence of person and property."

In defence the appellants examined Shri M.S. Bhullar, D.I.G. as DW1, Shri R.P. Joshi, D.I.G. (C.I.D.), Patiala Range as DW 2 and closed their case.

The learned trial Court vide judgment dated 13.9.1986 came to the conclusion that so far as Narinder Singh, Gurmit Singh, Sharanjit Singh and Joginder Singh are concerned, they did not participate in the occurrence and they were acquitted. With regard to the four appellants the trial Court gave the findings that they are guilty for the offence under Section 304 PartI, 324 and 323 IPC for which they deserve different sentences already quoted in the first para of this judgment. Aggrieved by the judgment of conviction and sentence the present appeal from the side of the four appellants and the criminal revision from the side of the complainant. No assistance has been given to me in the revision. However, I am disposing of the main appeal with the assistance rendered by Shri R.S. Cheema, Sr. Advocate, Shri D.P. Singh, Advocate, Shri Chattar Singh, Advocate appearing on behalf of the appellants and Shri J.S. Brar, the Deputy Advocate General, who is appearing on behalf of the State and he also supports the grounds of revision filed against the present appellants.

After hearing the learned counsel for the parties, I am of the considered opinion that the trial Court has not appreciated the factual and legal aspect of this case in a correct manner. The trial Court has itself come to the conclusion "it may be stated that the facts and circumstances of the case are so mixed up that it is difficult to find out as to which of the two parties had initiated the fight or was the aggressor". If this was so, it was none of the business of the trial Court to coin a new story either for the benefit of the prosecution or for the accused. If the genesis of the occurrence has been withheld by the prosecution and the trial Court is not in a position to come to know about the origin of fight, the new story could not be formulated by the trial Court for the benefit of the prosecution and detrimental to the interest of the present appellants. The trial Court had convicted the present appellants by holding "Once it is held that there was a sudden free fight, no right of private defence of person or property is available to any person". I am not in a position to concur with the findings of the learned trial Court because it would amount to making a new version for the benefit of the prosecution when it was none of the case of the prosecution that it was a case of free sudden fight. Otherwise also, I will presently show that no implicit reliance can be placed upon the testimony of Mohan Lal PW5 and Ravi Kumar PW6.

Before I proceed further, it may be mentioned here that injured witness Balkar Singh from the side of he complainant was given up by the prosecution in the trial Court. No independent witness had been examined to put the light on the facts as to how the occurrence had originated. It is also not clear from the evidence that the appellant party acted as an aggressor. Even the case of the trial Court itself is that the appellants did not act as an aggressor. Rather it was a case of sudden free fight and, therefore, each of the appellants is liable to be convicted for their individual acts. At the cost of repetition I may say that the trial Court has coined a case for the prosecution which was not even the case of the complainant party.

It is settled law that an aggressor has no right of private defence. If the appellant party had acted as an aggressor they are bound to be convicted for the offence under Section 302 read with Section 149 I.P.C. as they had allegedly committed the murder of Ved Parkash in prosecution of their common object. It is not the case of the trial Court nor even that for the prosecution before me. The second settled legal point is that minor and superficial injuries of the accused party are not supposed to be explained by the prosecution but grievous injuries if suffered by the accused party in the same occurrence has to be explained by the prosecution in a cogent and satisfactory manner and if this statutory duty is not discharged by the prosecution, the benefit of doubt has to go to the appellants for not proving about the origin of the fight.

Now it has to be seen what is the explanation on the part of the prosecution with regard to the injuries of the accused. A reference to Ex. PJ would show that Mohan Lal PW5 nowhere states that the complainant party acted in selfdefence or that they caused injuries to the accused party (present appellants). Also there is no explanation in Ex. PJ that at any point of time the complainant party picked up the arms for their right of private defence. If that was so, how the prosecution explains 12 injuries on the persons of the present appellants. Some of the injuries are grievous. Even some of the injuries are on the vital parts of the bodies. Doctors have testified that the injuries on the persons of the present appellants were of the same duration as that of the complainant party, meaning thereby that the injuries were suffered by the four appellants in the same occurrence. The point for determination is who caused the injuries and what is the explanation for the prosecution. I have just stated above that so far Ex.PJ is concerned, it is totally silent. At the trial Shri Mohan Lal PW5 has tried to give the explanation. Whether it is cogent is a point to be determined by me. In the examinationonchief Mohan Lal PW5 had stated on 28.4.1986 before the trial Court "Our people also returned the brickbats in their selfdefence". Is this explanation genuine or has been coined out ? This Court is well aware that every party would try to hide its own role because this is the human tendency. Everybody would try to mitigate his role. This is a broad human probability. Even all the allowance is given to the prosecution that what Mohal Lal PW5 is stating before the trial Court should be taken as true, the point again will arise whether his explanation is in consonance with the medical evidence and the probabilities. The considered answer of this Court is in the negative. Who were those persons who picked up the brickbats at the spot and threw them upon the appellant party ? Answer is nowhere. The statement of Mohan Lal PW5 on this point has to be treated as vague when he stated "our people". If the brickbats had been hurled upon the complainant party would it cause incised wounds, for which again there is no explanation from the side of the prosecution. What it appears to be that there was a clear motive on the part of both the sides on 31.3.1985 as both the parties were dealing in the trade of liquor. Both the parties perhaps wanted to settle their scores due to the nonvacation of the shop which at one point of time was in the possession of the complainant party. It is equally possible that the complainant party might have taken into their heads to show force qua the accused (appellants) so as to take forcible possession of the property which was not permissible on their part. The conclusion of this Court that the complainant party might have acted as an aggressor, it is fortified from the statement of PW9 ASI Samund Singh, who visited the spot on 1.4.1985 and came to the conclusion as follows :

"It is correct that inside the English wine shop of Narinder Singh accused, fridge, bottles and furniture etc. had been damaged and brickbats were also lying inside the shop and I have shown the same in the site plan. I had also got the place of occurrence photographed from Harbans Singh photographer. The photographer also took snaps regarding inner portion of the English wine shop of Narinder Singh, where the furniture etc. had been damaged."

What circumstances led to causing damage to the belongings of the shop which was in the occupation of Narinder Singh, the coaccused of the present appellants ? In the absence of any explanation it has to be held that the genesis of the fight which erupted under different circumstances had been withheld conveniently by the prosecution for which the benefit of doubt has to go to the present appellants. The learned Deputy Advocate General appearing on behalf of the State, though made an effort to establish that the findings of the learned trial Court quoted above are correct but this Court is of the opinion that the learned trial Court had exceeded its jurisdiction by making out a new case for the benefit of the complainant party. The approach on the party of the trial Court on the face of it was erroneous and illegal.

In nutshell this Court is of the opinion that the genesis of the occurrence has been withheld. The truth and falsehood rather was inter se mixed that even after applying the principle of law by separating the grain from the chaff, the truth cannot be arrived. Resultantly the benefit of doubt has to go to the present appellants. In view of the above discussion I allow Criminal Appeal No. 603SB of 1986 titled Ajit Singh & others. v. The State of Punjab and set aside the judgment and order of conviction and sentence qua the appellants and acquit them of the charges framed against them. With the acceptance of the criminal appeal, the Crl. Revision No. 126 of 1987 titled Mohan Lal v. Ajit Singh & others stands dismissed without any merit.