Gurbachan Singh and Another vs The State of Himachal Pradesh

D.B. Lal, J.—This criminal appeal is directed against the decision of the Sessions Judge, Una in a case under Sections 907 and 447 of the Indian Penal Code, whereby the Appellants Gurbachan Siagh and Baldev Kaur have been convicted for the offences under Sections 324 and 323 road with Section 34 of the Indian Penal Code but released on probation of good conduct. The prosecution case was, that one Hukam Singh had two sons Gurbachan Singh accused and Hari Singh. Baldev Kaur if the wife of Gurbachan Singh while Kartar Kaur is the wife of Hari Singh. During the lifetime of Hukam Singh, he had. enemity with Hari Singh although the other aon Gurbachan Singh accused was obedient and faithful to him. In the year 1968 Hari Singh even starred a case u/s 107/151 of the Code of Criminal Procedure against Hukam Singh and Gurbachan Singh. During his life time Hukam Singh had gifted ten Kanals of land to Baldev Kaur and a mutation was effected in her name. There was some appeal filed by Hari Singh against that mutation. In this manner there was no love lost between the two brothers Hari Singh and Gurbachan Singh. The prosecution case was that on 1-8-1972 at about 4.30 p.m. one of the fields known as Laliwala comprising 10 kanals area gifted to Baldev Kaur was being ploughed by Hari Singh and Kartar Kaur was sprinking seed for maize crop. At that time Gurbachan Singh and Baldev Singh engaged by Hari Singh and Kartar Kaur was arrived and protested for the ploughing by Baldev Singh. Baldev Kaur gave and DANDA below to the bullocks of Baldev Singh and the said bullocks ran away. Upon that, as the prosecution story proceeds, Mulla Singh who is father of Baldev Singh protested and Baldev Kaur gave a DANDA blow to Mulla Singh. The prosecution case is that at that time Gurbachan Singh whipped out a knife and gave two blows to Mulla Singh. When Kartar Kaur protested she was also given a knife blow by Gurbachan Singh. Both Mulla Singh and Kartar Kaur went to the police station and the latter lodged the First Information Report. At that very time Baldev Kaur was also present and she had also received an injury which was also present and she had also received an injury which was a lacerated wound 1/2" x 1/14" on the left tempero parietal region. The three injured were examined by Dr. R.S. Nanda. The three injury found on the person of Kartar Kaur was also simple. These injuries were caused by a sharp judged weapon or by (SIC) weapon. The injury on the person of Beldev Kaur assumed was found simple and it was caused by a blunt weapon.

Upon these facts and allegations a case under Sections 307 and 447 of the Indian Penal Code was instituted against Gurbachan Singh and Baldev Kaur.

Baldev Kaur stated in her defence that Mulla Singh was ploughing her field at the instafnee of Kartar Kaur. When she objected Mulla Singh gave her a Danda blow. According to her Gurbachan Singh was not even present and he did not cause any injuries. The statement of Gurbachan Singh was also to a similar effect.

The prosecution produced several witnesses including the two injured Kartar Kaur (P.W. 1) and Mulla Singh (P.W. 3). Baldev Singh (P.W. 4) and Atma Ram (P.W. 5) were also produced as they had seen the occurrence. Hari Singh (P.W. 6) stated about the title for the field. Shankar Dass Patwari (P.W. 8) gave the statement about the revenue entries. Dr. R.S. Nanda (P.W.1) came to state about the injuries received by the two complainants and one-of, the accused.

The accused did not procedure any witness. The learned Session Judge disbelieved the case of the prosecution for Section 447 of the Indian Penal Code. His clear finding to that effect is in the following words:

The factum of the gift of 10 Kanals of land and its mutation having been sanctioned in her favour has been admitted by Hari Gurbachan Singh (P.W. 6). It is clean about she love fide believed herself to be the owener of this load and in any case had no intent to insult, intimidate or annoy.... Kartar Kaur or Hari Singh. The charge u/s 447, I.P.C. therefore, cannot be head to have been proved against the accessed.

With that observation the learned Sessions Judge acquitted, the two accused u/s 447 of the Indian Penal Code. Regarding Section 307 of the Indian Penal Code, the learned Sessions Judge obviotuly did not find the intention to commit murder of Mulla Singh and according to him Kartar Kaur and Hari Singh actually provoked the two accused, by ploughing their land and that is how the occurrence took place. Accordingly u/s 307 of the Indian Penal Code also the two accused were acquitted. However, both of them were them were convicted under Sections 324 and 323 of the Indian Penal Code. They have felt aggrieved of the decision and have preferred the present appeal.

There was decidedly a lacerated wound on the person of Baldev Kaur and the injury received by her was not explained by the prosecution witness. According to them she was never beaten by the complainant party. It is also manifest that she was present at the Police Station just at the time the two injured were brought. In fact all the three person were medically examined on one and the same date. As such the story regarding self infliction does not appear to hold any water. It was even admitted by Kartar Kaur (P.W. 1) before the committing Magistrate that she did see some injury on the person of Baldev Kaur. In the circumstances it was required of the prosecution witnesses to have explained the injury received by Baldev Kaur. If they failed to explain that injury the inference is that the prosecution witnesses have not spoken the whole truth and have played upon their imagination to a certain extent Admittedly there were other witnesses present, namely, a few young girls who witnessed the occurrence. None of them was cared to be certain examined in support of thest witness the occurrence. Mohar Rai and Bharath Rai Vs. The State of Bihar, , their Lordships held that version of the Appellants that they sustained injuries at the time of the occurrence, may be highly probabilised. Under those circumstances the prosecution has duty to explain the injuries received by the accused Appellants. Having not done so, there is a grave doubt as to the correctness of the prosecution version.

According to the finding of the learned Sessions Judge, the gift of 10 Kanals was already made in favour of Baldev Kaur. Laliwala field belonged to that area and admittedly the possession was with Gurbachan Singh and Baldev Kaur. If Hari Singh was getting the said field ploughed and Kartar Kaur was present according to the learned Session Judge, Baldev Kaur must have objected. According to prosecution version Baldev Kaur gave a Danda blow to the bullocks of Baldev Singh and those bullocks had run away. In that contingency what further remained to be done and both Gurbachan Singh and Baldev Kaur would have been satisfied. The aggression then came from the side of Hari Singh and Kartar Kaur. There is every probability that Mulla Singh owner of the bullocks gave a Danda blow to Baldev Kaur and this resulted in the Maar Pert which could be in self defence of the person and property. All the four injuries are simple and the two accused could not be stated to have exceeded their right of private defence. Baldev Kaur also went to the Police Station presumably to lodge the F.I.R and she was medically examined along with the other two persons. There could be no opportunity for self infliction of any injury. In fact the police brought the accused and the complainant party together for examination of their injuries. The recovery of knife at the instance of Gurbachan Singh was not believed by the learned Sessions Judge. The accused is a Government teacher and he must have acted only when provoked by the attack made on his wife. Regarding the Jamabandi entries, there does not appear to be any dispute. The entries might be in the name of Hari Singh but possession was with Baldev Kaur and Gurbachan Singh. This is so because of the gift of ten kanals in favour of Baldev Kaur. On that ground the learned Sessions Judge acquitted the two accused for the offence u/s 447 of the Indian Penal Code.

In this view of the matter there was a reasonable doubt and the two accused must not have committed any offence. They were wrongly convicted u/s 324 or 323 of the Indian Penal Code. The appeal is allowed and the conviction of the two Appellants and the order under the Probation of Offenders Act made in respect of them are set aside. In case the Appellants have paid any amount regarding compensation the same shall be refunded to them.