Jaswant Singh @ Trilok Singh @ Toka vs The State

Prafulla C. Pant, J.—This criminal appeal, preferred u/s 374(2) of the Code of Criminal Procedure, 1973 (for brevity hereinafter Cr.P.C), is directed against the judgment and order dated 15th June, 1984, passed in Sessions Trial No. 27 of 1983, by learned II Additional Sessions Judge, Nainital, whereby Appellant Jaswant Singh @ Trilok Singh @ Toka has been convicted u/s 307 of the Indian Penal Code, 1860 (for brevity hereinafter I.P.C.) and sentenced to undergo rigorous imprisonment for a period of five years.

This appeal was originally filed before the Allahabad High Court in the year 1984, from where it has been received by transfer to this Court u/s 35 of the U.P. Reorganization Act, 2000, for its disposal.

Heard learned Counsel for the parties and perused the entire record.

Prosecution story, in brief is that on 12-01-1982, Darshan Singh, father of Complainant Avtar Singh (P.W. 3) was returning to his home by his tractor along with Bawa Singh (P.W. 2) and Avtar Singh (P.W. 4) S/o Ratan Singh. At about 7:00 P.M., when they reached near field of Santa Singh in village Baria Daulat, P.S. Gadarpur, Appellant Jaswant Singh @ Trilok Singh @ Toka alongwith Harbans Singh (deceased) and Trilok Singh (another (deceased) S/o Lal Singh, asked Darshan Singh to stop the tractor. It is alleged that Harbans Singh was armed with gun and he was drunken. Darshan Singh, father of the complainant, shopped the tractor, but he did not permit the Appellant and his associates to drive the tractor. On this, Appellant Jaswant Singh @ Trilok Singh @ Toka shot fire from a gun at Darshan Singh, who got injured. The complainant Avtar Singh (S/o Darshan Singh) lodged the First Information Report (Ext. A-1) with police station Gadarpur, at about 8:35 P.M., on 12-01-1982. A check report (Ext. A-4) was prepared on the basis of said report and an entry in the general diary (copy of extract of which is Ext. A -7) was prepared by Head Constable Jai Prakash. P.W. 6 Laxmi Ram Arya, Station House Officer, investigated the crime. Meanwhile, Darshan Singh was medically examined by P.W. 5 Dr. H.V. Pant, at about 9:00 P.M., who recorded following injuries on the person of Darshan Singh:

i) Multiple punctured wound round in shape, some having lacerated margins and other having clear cut margins on the left cheek, 2 cm below the left end of left ear, involving whole of left chin area, left sub-mendibular region extending upto right angle of jaw and upper 1/4th of the next in front and on left side. Fresh blood oozing from the wounds.

ii) Multiple punctured wound on the back left scapular region involving whole of left scapula, round in shape, some having lacerated margins and some having clear cut margins. Fresh blood oozing from the wounds.

It appears, that the Investigating Officer interrogated the witnesses and prepared a site plan (Ext. A-6), and submitted charge sheet against the accused Jaswant Singh @ Trilok Singh @ Toka, for his trial for alleged attempt by him to commit murder of Darshan Singh.

The Magistrate on receipt of the charge sheet, it appears after giving necessary copies to the accused/Appellant, as required u/s 207 of Code of Criminal Procedure, committed the case to the court of Sessions for trial. The trial court on 06-07-1983, after hearing the parties, framed charge of offence punishable u/s 307 of I.P.C. against the accused/Appellant, who pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Darshan Singh (injured); P.W. 2 Bawa Singh (eyewitness); P.W. 3 Avtar Singh (S/o Darshan Singh); P.W. 4 Avtar Singh S/o Ratan Singh (eyewitness); P.W. 5 Dr. H.V. Pant (who medically examined injured Darshan Singh); P.W. 6 Station House Officer Laxmi Ram Arya (Investigating Officer); P.W. 7 Dr. R.H. Gokhale (Radiologist); P.W.8 M.L. Arya and P.W. 9 Dr. J.C. Arora.

The oral and documentary evidence was put to the accused by the trial court, in reply to which the accused/Appellant alleged that the evidence against him is false and it was specifically pleaded in the statement u/s 313 of Code of Criminal Procedure by the accused, that his brother Harbans Singh and his cousin Trilok Singh (S/o Lal Singh) were murdered by P.W. 1 Darshan Singh and P.W. 4 Avtar Singh S/o Ratan Singh, in the incident. In defence from the side of the accused, P.W. 1 Dr. D.K. Joshi, Medical Officer was got examined, who conducted the postmortem examination of the dead bodies of Harbans Singh and Trilok Singh (S/o Lal Singh), on 13-01-1982, at the Government Hospital. Kashipur.

From the injuries mentioned above, read with the statement of P.W.1 Darshan Singh and eyewitness P.W. 2 Bawa Singh and P.W. 4 Avtar Singh (S/o Ratan Singh), it is proved that accused/Appellant Jaswant Singh @ Trilok Singh @ Toka, assaulted and caused injuries on the person of Darshan Singh (P.W. 1). To that extent the trial court has rightly believed prosecution story, but it erred in law by holding that said act on the part of the Appellant constituted attempt to commit murder of Darshan Singh.

It is an admitted case that there were cross First Information Reports of the incident from both the sides. Both the First Information Reports were registered in the intervening night of 12/13th of January, 1982. In the First Information Report (Ext. B-1), which was lodged by the Appellant Jaswant Singh (a). Trilok Singh (a) Toka of the same incident, discloses commission of doubt murder by Darshan Singh (P.W. 1), Avtar Singh (P.W. 4) and one other. Not only mere First Information Report was lodged, but P.W. 1 Dr. D.K. Joshi has proved that he conducted postmortem examination on the dead bodies of these two persons and found that both of them died of the anti mortem fire arm injury on 12-01-1982, at about 6:30 P.M., which is the time of the incident in this case. Ignoring such a vital evidence by the trial court and discarding the same by merely saving that they might have been killed an hour after the incident, is against all norms of appreciation of evidence in law, particularly, when the Appellant had taken the plea of self defence and put the questions in cross-examination to the prosecution witnesses. From the above evidence on record, and the circumstances mentioned, it is clear case of self defence on the part of the Appellant which is covered u/s 96 of the I.P.C. which provides that nothing is an offence which is done in exercise of right of private defence and the same was not considered by the trial court.

For the reasons as discussed above, and in view of the fact that from the record it appears that the act of Appellant was covered u/s 96 of I.P.C. and it cannot be said that the charge of offence punishable u/s 307 of I.P.C. is proved against the Appellant. Therefore, the conviction and sentence recorded by the trial court against the Appellant, being bad in law, cannot be sustained. Accordingly, the appeal deserves to be allowed.

The appeal is allowed. Conviction and sentence of Appellant Jaswant Singh @ Trilok Singh @ Toka, u/s 307 of I.P.C. is set aside. He is acquitted of said charge. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.