Dara Singh and Another vs The State

Bedi, J.—This judgment will dispose of Criminal Revisions No. 579 and No. 858 of 1963, which are against the order of Additional Sessions Judge, Ferozepore, dated the 17th of April, 1963. Criminal Revision No. 579 of 1963 is by the convicts against their conviction and sentence, while Criminal Revision No. 858 of 1983 is by the complainant seeking enhancement of the sentence imposed upon the convicts and praying for award of more compensation to him.

The two Petitioners in Criminal Revision No. 579 of 1963, Dara Singh and Gurcharan Singh, were sent up for trial u/s 326 read with Section 34, Indian Penal Code. The trial was held by Shri Hari Ram, Magistrate 1st Class, Fazilka, who found the charge proved against both of them, convicted them accordingly and sentenced each of them to rigorous imprisonment for two years and a tine of Rs. 200/-. In default of payment of fine they were to further undergo rigorous imprisonment for four months. In case the fine was recovered a sum of Rs. 300/- was to be made over to Sardara Singh injured by way of compensation, vide his order dated the 31st of December, 1982.

The Petitioners went up in appeal in the Court of Session, while the complainant went up in revision. Both the appeal and the revision were, however dismissed by Shri C.S. Tiwana, Additional Sessions Judge, Ferozepore, by his order, dated the 17lh of April, 1963.

The facts of this case briefly are as under. Dara Singh Petitioner and Sardara Singh complainant are brothers and have their fields close to each other. In the morning of the 6th of May, 1962 Gurcharan Singh and his father Dara Singh were in possession of canal water and were irrigating their fields. Their turn was to terminate the same morning at 9.26 a. m. At that time Sardara Singh, accompanied by his son, Inder Singh aged 13, approached his brother, Dara Singh, and asked him to hand over the canal water to them. The Petitioners, however, were reluctant to hand over the water and, it is said, assaulted Sardara Singh with the help of spades in their possession. Dara Singh gave the first injury on the head of Sardara Singh and then the rest of the injuries were inflicted by the Petitioners to the victim. The Petitioners then left the spot. Sardara Singh was removed to Fazilka, at a distance of 13 miles from there, in a bullock-cart, where he was examined by Dr. Kuldip Sethi at 12.30 p. m. The doctor immediately informed the police and in response the police arrived in the hospital and recorded the statement of Sardara Singh at 3 p. m. and registered the case against the Petitioners. Nahar Singh and Ajit Singh were also mentioned as eye-witnesses in this case alongwith Inder Singh and Sardara Singh.

The medical examination of Sardara Singh revealed as many as eight injuries on his person on all parts of the body, including two injuries on the head. All these injuries were caused by a sharp-edged weapon. According to the opinion of the doctor injuries Nos. 1, 3, 4, 5, 6 and 7 were grievous, while Nos. 2 and 8 were simple.

The Petitioners when examined u/s 342 of the Code of Criminal Procedure stated that on the day of occurrence Sardara Singh came to their field at 8 a. m. and started diverting the water from their field into his own at 8.30 a. m. It was Sardara Singh who assaulted Gurcharan Singh in his field and they caused injuries to him with their kassis in detence of their performs and property. In support of their contention they examined a number of witnesses, including Balbir Singh Sarpanch D.W. 1 and Harbans Singh, member Panchayat, D.W. 2, who have supported the defense version, and Kirpal Singh, member Panchayat, D.W. 3, who has stated that Sardara Singh P.W. was in the habit of picking up quarrels in the village and that he takes liquor and raises lalkaras in the village. D.W. 1 and D.W. 2 stated that on the 6th of May, 1962 there was a meeting of their Panchayat in the baithak of Balbir Singh, where Harbans Singh and Mohinder Singh, members of the Panchayat, were present besides the Secretary, and that at about 8. 45 a. m. Dara Singh and Gurcharan Singh Petitioners came there, at that time Gurcharan Singh was having an injury on his back with hassi. They told the Panchayat that their turn of water was to last till 9.30 a. m., but Sardara Singh P.W. came and wanted to take the turn forcibly at 8 30 a. m. On objection he gave a kassi blow to Gurcharan Singh Petitioner and the Petitioners also caused some injuries in self-defense to Sardara Singh P.W. The eye-witnesses in this case examined by the prosecution were only Sardara Singh and his son Inder Singh. The Learned Counsel for the Petitioners submitted that the Petitioners in this case were in fact the aggrieved party and it were they who were assaulted by Sardara Singh, who was a man of quarrelsome nature and was a drunkard. In support of his contention he also relied on another fact, which was that Gurcharan Singh appeared before Dr. Sethi on the same day got himself medically examined. Dr. Sethi examined Gurcharan Singh on the 6th of May, 1962 at 11 a.m., i. e., 1 1/2 hours before he examined Sardara Singh. The doctor found one inciseo wound and one abrasion on his person. The former was an incised wound with flap 2 1\\2 skin deep on the left side of the back, horizontal and was situated in the lumber region and the latter was an abrasion 3 1/2" "1/2" on the left forearm and back of the hand. Both these injuries according to the doctor, were of simple nature and were caused by a sharp-edged weapon. The learned Sessions Judge was of the view that injury No. 1, found on the back of Gurcharan Singh, was probably self-suffered with the intention of chalking out the defence, but no such question was put to the doctor whether an injury of this type could be self-suffered. It appears that this was only a conjecture on the part of the Sessions Judge.

As stated above, the direct evidence in this case consists of Sardara Singh and his son Inder Singh. These eye-witnesses do not explain the injuries on Gurcharan Singh and evidently they are suppressing the part played by them. The presence of the non-explained injuries on the person of Gurcharan Singh, coupled with the statements of D.W. 1 and D.W. 2 shows that Gurcharan Singh Petitioner did receive injuries in this assault. The question, therefore, which now requires determination is whether the Petitioners in this case have not exceeded the right of private defense. The prosecution case is that after the receipt of the. first two injuries on the head Saradra Singh fell. Under the circumstances there was no occasion for the Petitioners, to continue the assault on the poor victim. As already observed, there are eight injuries on Sardara Singh. Six out of them were grievous. The injuries are of a severe type. The Learned Counsel for the AIR 1934 748 (Lahore) . It was a judgment written by Din Mohammad, J., in which the learned Judge has observed that if a person is armed with a hatchet and disables his adversary by the infliction of one blow on his head, it cannot be urged that he has any reasonable apprehension left that if he did not repeat his below grievous hurt will be the consequence. Another case cited before me was AIR 1941 45 (Lahore) . In that case there was an altercation between the accused and the deceased, who were armed with a hatchet. The accused first wrested the hatchet from the hands of the deceased and then, while the other accused held the deceased, stabbed him to death. It was held in that case that once the weapon had been seized from the deceased the apprehension of danger did not continue and, when there-after other accused held the deceased and the first accused repeatedly stabbed him in the abdomen, they were not acting in the exercise of the right of private defense but committed murder. Yet another case was cited before me. This was a Division Bench judgment of our own High Court written by Falshaw and Kapur, JJ., reported as Ranjit Singh and Another Vs. The State, . In that case the deceased had started the attack but was soon disarmed and one out of the two accused picked up the gandasi, which was in the hands of the deceased, and both the accused then armed with weapons, one with the gandasi and the other with a kirpan, assaulted the deceased. In these circumstances it was held that there could be no right of private defense in such a case, particularly when the deceased had started running away from the place. Section 102 of the Indian Penal Code is also quite clear. It lays down that the right of private defense of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as such apprehension of danger to the body continues. These were the principles laid down by the authorities, and instructions quoted above as to whether in particular circumstances an accused person has the right of private defense or whether he has exceeded the same. In the present case we find that Sardara Singh after the first two blows on the head on the very start fell on the ground. The rest of the injuries were caused to Sardara Singh thereafter. Under the circumstances there could have been no apprehension on the part of the Petitioners that Sardara Singh would cause them any injury or would be able to do them any harm. In the circumstances it is a clear case in which the Petitioners have exceeded the right of private defense allowed to them by law. They have already served a sentence of about one month each. In my opinion the sentence already undergone plus the fine imposed on them would under the circumstances meet the ends of justice. I order accordingly. With this modification in the sentence, both the criminal revisions stand dismissed.