Amrik Singh vs State of Haryana

A.P. Chowdhri, J.—Amrik Singh (24), his brother Jaswinder Singh (23), one Sharam Singh (47) and his son Manmohan Singh (22), were convicted by the learned Additional Sessions Judge, Ambala, under Section 148 of the Indian Penal Code. Amrik Singh was substantively convicted under section 307 of the Indian Penal Code and under section 27 of the Arms Act and sentenced to RI for five years and one year respectively. He was also sentenced under section 323 with the aid of section 149 of the Indian Penal Code and awarded six months'' RI. The accused named above were given one year''s RI under section 148, two years'' RI under section 307 with aid of section 149 and a fine of Rs. 500/ each, and to a further RI for six months in default. They were also convicted under sec. 323 and sentenced to RI for six months. One Amarjit Singh, who was serving in the Army at the relevant time, was not tried. Amrik Singh etc. appellants on the one hand and Balbir Singh PW4 and Kuraria Ram PW5, on the other hand had lands adjoining each other at village Mihanpur. P.S. Naraingarh. On December 5, 1984, at about 6 a.m. Balbir Singh, his brother Kuraria Ram, Ruldu Ram PW5, Sarpanch. Sadhu Ram son of Jeona and his son Gurdial has gone to the field of Balbir Singh etc to cut sugarance crop. Amrik Singh armed with his licensed gun and the coaccused armed with a dang each, came there. Amrik Singh raised a Lalkara that Kuraria Ram etc. be taught a lesson for having passed through his Eucalyptus field Saying so, Amrik Singh fired a shot from his gun hitting Kuraria Ram on the back of his thigh and right hip. The coaccused caused three simple injuries to Balbir Singh PW4, one simple injury to Sadhu Ram, one simple injury to Ruldu Ram, three injuries to Daulti, mother of Kuraria Ram, and one simple injury to Raghbir, another brother of Kuraria Ram and Balbir Singh with their Lathis. The injured raised alarm, which attracted Sadhu Ram and his son Gurdial PW8. The accused persons then went away together.

The prosecution put forward Balbir Singh PW4, Kuraria Ram PW5, Ruldu Ram Sarpanch PW6 and Gurdial PW8 to prove the prosecution version.

Dr. K.C. Marwaha PW1 Xrayed Kuraria Ram and found multiple radio opaque shadow in his right thigh and hip indicating the presence of pellets. Kuraria Ram was also medically examined. The clothes worn by him had corresponding holes. They were taken into possession and produced in the case. He remained admitted to the hospital at Ambala from 5.12.1984 to 19.1.1985. He was operated upon on 6.12.1984. Some pellets were removed during operation. Some more pellets were, however, allowed to remain inside as it was not possible to remove them. On the basis of the bed head ticket and notes of the operation Dr. S.K. Gupta PW7 gave the opinion that the injury suffered by Kuraria Ram could prove fatal but for the medical treatment including the operation carried out on him.

The plea of the accused was that Kuraria Ram etc. were stealing sugarcane from his field which he was cultivating as Mukhtiar of Leel Singh alias Lal Chand. They were asked not to do so, but they did not stop. They in fact attacked Amrik Singh and Jaswinder Singh and gave them a beating. In private defence of his person and property, Amrik Singh and his brother caused injuries to the aofresaid people. After some time Kuraria Ram, his brothers Raghbir and Balbir Singh, Sadhu son of Kundan, Joginder and Daulti came to the house of Amrik Singh and wanted to set the same on fire in order to kill him. The above named persons were armed with Lathis and Kulharis. Amrik Singh felt danger to his life and property and fires a shot from his licensed gun to scare them away. Amrik Singh went to the police station to lodge a report giving his version but the police turned him away. He had made an application to the Dy. S.P. Naraingarh, who held an enquiry and found the above version to be correct. The plea of Sharam Singh and his son Manmohan Singh was that they were not present at the time of the occurrence, as they were busy in the Kirya ceremony of the death of mother of Sharam Singh that day. Amrik Singh and Jaswinder Singh examined Sucha Singh DW1 to support their version. Leel Chand DW3 was produced to show that Amrik Singh was cultivating his land as his attorney. DW4 Constable Om Parkash and DW 5 Devi Dayal Head Constable produced record from the officer of S.P. Ambala. The record showed that Ruldu Ram Sarpanch PW6 had made a complaint to S.P. Ambala before the occurrence describing Amrik Singh as an extremist. DW6 who was Dy S.P. Naraingarh at the relevant time did not remember having held any such enquiry at the instance of Amrik Singh nor was any such record available from the office of Dy. S.P. Naraingarh or S.P. Ambala even though repeated attempts to obtain such a record were made. The other set of accused, namely, Sharam Singh and Manmohan Singh examined Shingara Singh PW2 Granthi to prove that the Bhog ceremony in connection with the death of mother of Sharam Singh was held at the house of Avtar Singh, brother of Sharam Singh, on the day of the occurrence where Sharam Singh and his son remained present since morning.

The learned trial Court accepted the evidence of the prosecution witnesses, rejected the defence version and held various offences proved as stated in the opening part of this judgment.

The learned counsel for the appellants raised the following contentions :

(i) Section 149 is not applicable. The accused are liable only for their individual acts.

(ii) Sharam Singh and Manmohan Singh did not take part in the occurrence.

(iii) The offence disclosed was under section 326 and not 307 of the Indian Penal Code in so far as Amrik Singh appellant is concerned.

I have given my anxious consideration to the contentions of the learned counsel and have carefully perused the record with their assistance.

The admitted case of the parties is that the field of Balbir Singh, Kuraria Ram etc. is adjoining the field which was under cultivation of Amrik Singh and his brother. The motive alleged by the prosecution against Amrik Singh is that Kuraria Ram had trampled upon some Eucalyptus plants by walking through his field where those plants had been freshly planted. It does not appeal to reason that for walking through a field and thereby damaging a few Eucalyptus plants Amrik Singh would use his licensed gun and fire at Kuraria Ram. The above motive also fails to explain how seven persons came to be injured including Smt. Daulti, mother of Kuraria Ram. The nature of the injuries suffered by Kuraria Ram on the one hand and the remaining six injuried persons on the other hand shows that besides gun some blunt weapons were also used in the occurrence. Having regard to the number of persons injured further indicate that the number of assailants was also large. The FIR was lodged with promptitude and in the absence of any background of any enmity whatsoever it is difficult to see that the accused could be falsely implicated. In all probability, therefore, the genesis of the quarrel was that something happened when the two parties came face to face, which resulted in the aforesaid occurrence. In such a situation of sudden mutual fight, there was no question of invoking the aid of section 149 for the purpose of imposing constructive liability on the accused. The accused in such a case can be convicted only for the injuries caused by him by his individual acts (See Puran Singh v. State of Rajasthan, AIR 1976 SC 912).

The next question which falls for consideration is whether Sharam Singh and his son Manmohan Singh took part in the occurrence. Neither Sharam Singh not Manmohan Singh was able to show that they were falsely implicated in this case. The FIR was lodged without delay and definite role was attributed to Sharam Singh and Manmohan Singh. Sharam Singh is maternal uncle of Amrik Singh. Manmohan Singh being son of Sharam Singh is his first cousin. They belong to the same village Mihanpur. The evidence of Kirya ceremony produced in this case is of the type which can be easily procured. The trial Court was thus right in rejecting the plea of alibi put forward by Sharam Singh and Manmohan Singh.

The evidence of Dr. S.K. Gupta PW7 on the basis of the record of the hospital and notes of the operation as also the findings of the Xray showed that Kuraria Ram had been fired upon from his back side and but for the operation and other medical treatment carried out in time, the injuries would have proved fatal. The offence disclosed is thus clearly under section 307 of the Indian Penal Code.

Shri Amarjit Markan, learned counsel for Sharam Singh and Manmohan Singh submitted that Sharam Singh is an employee of the Haryana Marketing Board and Manmohan Singh is working as a conductor in a Roadways. In the event of conviction, Shri Amarjit Markan submitted, they were likely to lose their service. The accused other than Amrik Singh used Lathis to cause only simple injuries to various P.Ws. mentioned in the earlier part of this judgment. The occurrence took place way back in December 1984 and the accused are first offenders. In view of these facts and circumstances, the conviction and sentence under section 307 of Amrik Singh are affirmed. The conviction and sentence of the remaining accused are set aside. Instead the appellants, namely, Sharam Singh, Manmohan Singh and Jaswinder Singh are convicted under Section 323 of the Indian Penal Code, and instead of awarding any punishment to them, it is directed that he shall be released on probation on their undertaking to appear and receive sentence within a period of one year from the date of the undertaking, to be furnished within one month of the receipt of copy of this order by the Chief Judicial Magistrate, Ambala, and in the meanwhile to keep the peace and be of good behaviour. It is further directed that the aforesaid three appellants (being released on probation) shall pay Rs. 2,000/ each as compensation under section 5 of the Probation of Offenders Act. On being realised the aforesaid amount shall be paid to Kuraria Ram a compensation. If the said appellants fail to pay the amount of compensation, the same shall be realisable as fine in accordance with the provisions of section 5 (2) of the said Act.

Appeal disposed