Sada Ram vs The State

Gopal Singh, J.—This appeal by Sada Ram arises out of judgment of Shri Barman Lal, Sessions Judge, Jullundur dated June 28 1966. By that judgment Sada Ram''has been convicted u/s 302, Indian Penal Code and sentenced to imprisonment for life. His two brothers, Jhalman Singh and Swarna were proceeded against along with him for offence u/s 302 read with Section 34, Indian Penal Code. They were, however, acquitted.

The occurrence in the case is of January 23, 1966. It took place in village Shahbazpur in the district of Jullundur. The parties belong to that village There existed a dispute between Mohan Singh and his son Avtar Singh on the one hand and Sada Ram appellant and his brothers including Jhalman Singh and Swarna on the other. This dispute was over the right of passage along the footpath in front of the haveli of the appellant and his brothers. Mohan Singh and Avtar Singh asserted that they had a right to pass along that footpath. About a year prior to the occurrence, the appellant and his brothers enclosed the footpath and thus blocked the passage of Mohan Singh and his son. That footpath passing in front of the haveli of the appellant and his brothers was the shortest route from the direction of the fields of Mohan Singh and his son towards the haveli of the latter. Mohan Singh and Avtar Singh had repeatedly been raising objection against the blockade of that path. The appellant and his brothers had been resenting their objection to it. Thus the relations between the two parties became strained. The appellant and his brothers felt aggrieved and had been expressing resentment against the assertion of right of passage on the part of Mohan Singh and his son along the path and the repeated remonstrations made by the latter to the former. According to the case of the prosecution, the appellant and his brothers were on the look out for an opportunity to wreak vengeance upon Mohan Singh or his son.

On the date of the occurrence, at 5.30 p. m., Mohan Singh with his brother Charan Singh while sitting in cart being driven by them, passed along the street by the side of haveli of the accused. This passage of the street is different from the path referred to above. Avtar Singh was walking about 8/9 karams ahead of the cart. It is stated that the appellant with his two brothers Jhalman Singh and Swarna suddenly emerged from their haveli. Sada Ram was armed with a knife and the other two accused were armed with dangs. While coming close to Avtar Singh, Jhalman Singh gave a lalkara saying that the dispute which Avtar Singh was having over the right to use the path of haveli be settled once for all. On the exhortation of Jhalman Singh. Sada Ram opened the attack. He gave two stab blows in quick successions with his knife into the chest of Avtar Singh on its left side.

Thereafter, Swarna dealt a dang blow on the head of Avtar Singh. On the receipt of the third blow, Avtar Singh ran in the direction of his haveli situate at a distance of 60/70 kirams The accu5 :d give a chase to him. Mohan Singh and Charan Singh got down from the cart. They tried to intervene to save Avtar Singh from the clutches of the accused but before they could do so, the accused had already dealt three blows as detailed above. The alarm raised by Avtar Singh Mohan Singh and Charan Singh attracted Amar Chand Lambardar and Dhanni Singh to the scene of occurrence. They also followed Avtar Singh. The accused chasing Avtar Singh. Avtar Singh entered his haveli. On reaching the haveli, Avtar Singh dropped down and expired.

Leaving Amar Chand to guard the dead body of Avtar Singh inside the haveli, Mohan Singh left for Police Station Rahon at a distance of 31/2 miles from the place of occurrence to lodge the report, Exhibit P. O. is the first information report recorded at 7.30 p m. at the Police Station. After registration of the report, Santokh Singh Sub-Inspector proceeded to the place of occurrence. He prepared the inquest report Exhibit P. B. of the body of Avtar Singh lying on a cot in his haveli. He recorded the statements of Amar Chand and Charan Singh. He also took into possession blood-stained earth from the place in the haveli where the dead body of Avtar Singh was lying on a cot. He located the drops of blood from the place near the haveli of the appellant and his brothers along the path the deceased ran to his haveli where he reached and expired.

On January 24, 1966, Amar Chand Lambardar produced Sada Ram accused before Santokh Singh S. I. He took him into custody. At that time he was wearing blood-stained chadar Exhibit P. 5. He took it in possession. Its recovery memo is Exhibit P. J. Upon interrogation, Sada made disclosure statement which led to the recovery of blood-stained knife Exhibit P. 3 kept burried in the heap of bhusa lying in his haveli. Exhibit P. G. is its disclosure statement. Its recovery memo is Exhibit P. H. The other two accused were also taken in custody on that day.

Dr. Jagjit Singh performed post-mortem examination of Avtar Singh deceased at 3.0 p.m. on January 24, 1966. He found on his person the following three injuries:

Incised wound l"Xl/2* on the left side of the chest at the level of the left nipple 4 1/2 outer to it. It penetrated the chest cavity and was a stab wound in nature. Corresponding cut mark was present on his shirt.

Incised wound 1''X 1/2" on the front of the left chest 2" below and 1" inner to the left nipple penetrating the chest cavity and was stab wound in nature. Corresponding cut was present on his shirt.

Lacerated wound 1/2 X 1/4" bone deep on the right side of the head 5" above the right ear.

He found that the left side of the pleural cavity was also injured. It was full of blood. The left lung was injured. He found pericardium also injured and full of blood. The left ventricle of the heart was injured. In the opinion of the doctor, death was due to shock and haemorrhage on account of the damage to the vital structures of the chest caused by the above two injuries Nos. 1 and 2. He gave the opinion that injuries Nos. 1 and 2 had been caused by sharp-edged weapon whereas injury No. 3 was caused by blunt weapon. When questioned as to whether injuries Nos. 1 and 2 could be caused with knife Exhibit P. 3 recovered in the case, he replied that these two injuries could be the result of use of that knife. He also stated that injury No. 3 could be caused by lathi. According to him, injuries Nos. 1 and 2 were sufficient to cause death in ordinary course of nature individually as well as cumulatively. He opined that the probable duration between the time when the injuries were caused and the time when death occurred was few minutes.

The appellant and the other two accused were proceeded against for trial. The appellant was charged u/s 302 Indian Penal Code and also u/s 302 read with Section 34, Indian Penal Code where as Jhalman Singh and Swarna were charged for offence u/s 302 read with Section 84, Indian Penal Code.

The accused in their statements u/s 342, Criminal Procedure Code pleaded alibi and denied participation in the occurrence. The appellant also denied recovery of blood-stained knife Exhibit P, 3 in pursuance of disclosure statement made by him and recovery of bloodstained chadar Exhibit P. 5 from his person at the time he was produced by Amar Chand Lambardar before Santckh Singh, Sub-Inspector. The appellant further pleaded that he lived in village Shahpur and not in village Shahtazpur and that on coming to know about the occurrence, he reached the latter village in the morning on the day following the day of the occurrence and was informed that Avtar Singh had an altercation with Swarna accused, that Avtar Singh threatened Swarna that he would forcibly pass his bullock cart along the path going through their haveli, that Swarna obstructed him from so doing and that Avtar Singh attacked Swarna and in defence Swarna caused injuries to Avtar Singh. He added that according to the information supplied to him that incident was witnessessed by Gogan daughter of Jarnail Singh.

The prosecution case in the trial Court was supported by the evidence of the two eye-witnesses Mohan Singh P. W. 2 and Amar Chand P. W. 3, Charm Singh P. W. 4 was only tendered for cross-examination. Scrutrunising the prosecution evidence, the learned Sessions Judge expressed doubt about the participation in the occurrence of Jhalman Singh end Swarna accused and acquited them He, however, found the appellant guilty negativing the plea of defence. He disbelieved the defence evidence of Gogan D. W. 1 and Baghicha Sirgh D. W. 2 adduced on behalf of the accused

Shri M. R. Mahajan appearing on behalf of the appellant has raised the following contentions:

The existence of motive has not been established.

The evidence of the two eye-witnesses is not trustworthy,

The medical evidence does not support the ocular testimony.

Under the facts and circumstances of the case the appellant was entitled to exercise right of private defence and in any case the case in one of offence u/s 304 Part I and not of offence u/s 302, Indian Penal Code.

The existence of bad blood between Mohan Singh and his deceased son Avtar Singh on the one hand and the appellant and his brothers on the other has been deposed to by Mohan Singh P. W. 2. Even the appellant in his statement, which he made u/s 342, Criminal Procedure Code, admits the existence of the dispute. The appellant has clearly stated that Avtar Singh and his father had repeatedly been asserting their right of passage along the path passing in front of the haveli of the appellant and his brother whereas they had been resenting their claim of passage along the pith. Thus, both according to the prosecution as well as according to the defence, the resentment did prevail between the party of the accused and the party of the deceased. In the first information report, which was lodged within a couple of hours of the time of recurrence, the existence of motive receives specific mention It appears that the appellant and his brothers were ill at ease over the constantly asserted right of passage along the path in front of their haveli. At the time, the appellant and his two brothers came to attack Avtar Singh while he was trudging along the street in front of cart following him. Jhalman Singh while making exhortation to his brothers to launch an attack upon Avtar Singh gave vent to his feelings of resentment saying that Avtar Singh be done away with to settle once for all the dispute, which they had been raking up over the use of the path forming part of their haveli. This shows that in spite of their having enclosed the path and having stopped the deceased and his father from passing along the path, neither the deceased and his father had taken things lying and continued asserting their right of passage from time to time nor the appellant and his brothers stopped expressing their resentment against their assertion. It appears the cinder of grudge continued smouldering and its outbrust came on the date of the occurrence when they attacked the deceased. Thus, the prosecution have shown the existence of ill-will on the part of the appellant and his brothers against the deceased. This appears to be the actuating cause of the trouble of the attack by the accused on the deceased.

Apart from motive, the evidence of the two eye-witnesses, namely, Mohan Singh P. W. 2 and Amar Chand P. W. 3 leaves no doubt that the crime of murder of the deceased was committed by the appellant. The learned Counsel for the appellant attacked the evidence of Amar Chand Lambardar P. W. 3 on the ground that he happened to pass by the place of occurrence on the pretext that he had to contact Dhanna Singh, from whom he had to recover land revenue. It was pointed out that there is no land in the name of Dhanna Singh and the land is in the name of his father and that the house of Dhanna Singh was in the heart of village abadi away from the scene of occurrence. Amar Chand says that he came to know about the presence of Dhanna Singh in his fields and consequently he happened to pass along the street by the side of haveli on his way to those fields. The defence have not chosen to further cross-examine Amar Chand to show that there was no land in the name of father of Dhanna Singh and that the fields were not situate near about the place of occurrence. Amar Chand, who is a Lambardar and enjoys respectable statuts and importance in village life, has not been in any way proved to be partisan of the deceased or his father. Similarly, the defence have not been able to show that Amar Chand Lambardar was in any way inimically disposed towards them and consequently could not be telling the truth. The learned Counsel laid stress upon weakness of the eye sight of Amar Chand distinctly stated that he could see without difficulty up to a distance of 15/20 karams. Amar Chand P.W. was present at the time of occurrence at a point, which is at a distance of 16 karams from the place where blows were inflicted by the appellant and his companions to the deceased. Thus, there is no force in the point that Amar Chand was unable to see the occurrence and consequently could not have seen it with his own eyes. Another attack, which was levelled against the testimony of Amar Chand is that he did not tell the truth when he stated that it was not correct that he had appeared as a witness in a case u/s 107, Criminal Procedure Code against the appellant and the father of the appellant. Proceedings in that case were concluded 12 years prior to the date of the occurrence. Thus, there is nothing extraordinary in his statement to the effect that he did not appear as a witness in that case considering that the proceedings were concluded as long ago as a period of a dozen years. It is recollection which seems to have failed him.

The evidence of Amar Chand has been discarded by the trial Court on the ground that his presence at the place of occurrence for the purpose for which he was there is unlikely. As explained above, he could be there while on his way to contact Dhanrta Singh said to be present in his fields. He is an independent and respectable witness. There is no reason to doubt the veracity of what he has stated.

As regards the evidence of Mohan Singh P. W. 2, it was stated that being the father of the deceased, he was highly interested witness and his conduct of not rescuing his son prior to the causing of injuries to him suggests his absence rather than his presence in the cart at the time the appellant and his companion attacked his son. The occurrence took place at 5-30 p. m. on January 23, 1956. In winter months the farmers return to villages from their fields at about that time after having finished their day's work. There is nothing unlikely, rather it is natural for the son and the father being together in the fields and the father and the uncle of the deceased being in the cart and their return to village together at that time. As the evidence shows, the appellant and his two brothers suddenly emerged from the haveli, Jhalman Singh's quick exhortation made the appellant and his brother Swarna accused open the attack in quick succession leaving little time for Mohan Singh and his brother Charan Singh to intervene prior to the infliction of injuries by the accused to the deceased. It is in evidence that they jumped down from the cart and came to the rescue of the deceased but the assailants had already done their deed of causing injuries to the deceased. It was further stated that according to the statement given by Mohan Singh, he had not seen any trial of blood along the path from the place where injuries were caused to his" son to the haveli where Avtar Singh fell down and died. In his testimony, he states that the deceased pressed his wounds with his hands and that he did not then see falling down from his wounds any drops of blood. It appears that at the time his son was running in the direction of his haveli his attention was only directed towards the wounds and the safety of his son. At that time, he might not have minutely observed that blood drops were falling down and it is on account of that reason that he states that at that time he did not notice the falling down of blood drops from his wounds. In course of cross-examination, the defence did not ask any question whether in fact there existed any trail of blood along the route followed by the deceased soon after the occurrence. Santokh Singh S. I. P. W. 8, who visited the spot at 9.0 p. m. on the date of the occurence stated that there did exist a trail of drops of blood along that route. There is no reason why Mohan Singh father of the deceased should implicate false culprits and give up the real ones responsible for the murder of his son. 1 he evidence of these two eye-witnesses is not only corroborated by the existence of motive, but also by the medical evidence and the recoveries, the discussion of which follows.

Dr. Jagjit Singh, who examined the injuries on the person of the deceased, found two injuries on the left of the chest. Both the injuries are incised stab wounds. The doctor says that these injuries could be caused with sharp-edged weapon like knife Exhibit P. 3 shown to him in Court at the time his statement was recorded. Underneath these two injuries, which have proved fatal to the life of the deceased, pericardium, left lung and one of the ventricles of the heart have been cut. Similarly, the injury on the head, as stated by the doctor, could be caused by a lathi blow. Thus, the number and nature of injuries found on the person of the deceased is conformable to the weapons with which the appellant and his brothers were armed and the number of injuries described to have been caused with those weapons. While referring to the medical evidence, it was pointed out by the Counsel for the appellant that the doctor had stated that it was very likely that the deceased after receiving the injuries could not have run to his haveli for a distance of 60/70 karams. The language employed by the doctor while so saying is well guarded and caustious. His statement to that effect does not exclude the possibility or the likelihood of the deceased being able to run to that much distance. The occular evidence, which is quite consistent and convincing, and of witnesses who were undoubtedly present at the spot, shows that the deceased did as a matter of fact run that much distance. The existence of trail of blood from the place he was attacked to his haveli shows that in fact the deceased had so run that much distance and arrived at the destination of his haveli where he also reached the destination of his life.

Blood-stained chadar recovered from the person of the appellant in the morning on the day following that of occurrence and recovery of knife Exhibit P. 3 in pursuance of disclosure statement made by him link the appellant with the commission of the crime. These recoveries are attested by Amar Chand Lambardar P. W. 4. and Sansar Singh P.W. 6. Nothing has been pointed out to show that the recoveries made are not genuine. As per report of the serologist Exhibit P.T., both these articles were found to be stained with human blood.

Lastly, it was pointed out by the learned Counsel for the appellant that in the first place it is a case in which the appellant is legitimately entitled to claim right of private defence on the part of his brother Swarna when the deceased wanted to forcibly pass his cart along the enclosed passage forming part of their haveli. In cross-examination of the eye- witnesses, no attempt has been made to show that the deceased, who was walking in front of the cart in which his father and uncle were sitting, in any v ay moved in the direction of disputed path and attempted to pass over it. There is no doubt that the defence have led in support of that plea the evidence of young girl Gogan aged 10 years D.W.I and Baghicha Singh D.W.2. No test of power of understanding of Gogan was applied by the trial Court when her examination as a witness started. The evidence of these two defence witnesses does not inspire confidence and is parrot-like reproduction of the line of defence adopted by the appellant. The defence have deliberately chosen not to ask from the eye-witnesses any question pertaining to the plea of defence adopted by them through the evidence of the defence witnesses. They have thus failed to link the defence evidence with the prosecution case and to show that the deceased ever attempt d to pass along the disputed path or that he was armed with any weapon, that he was driving his cart and that he tried to pass his cart through the passage enclosed by the appellant and his brothers. It is not a case in which the plea of self-defence claimed by the appellant can fit in with the prosecution case and can be given any weight or importance.

As an alternative to the plea of self-defence; the learned Counsel for the appellant contends that the case of the appellant fell under Exception 2 of Section 300. Indian Penal Code and consequently was covered by Section 304 (Part I). In order that a case fall under Exception 2, it must be shown by the offender that he, in the exercise in good faith of the right of private defence of person or property, exceeded the power given to him by law and caused the death of the person against whom he exercised such right of defence without premeditation and without any intention of doing more harm than was necessary for the purpose of such defence. In the first place, as observed above, there is no evidence showing any facts and circumstances indicative of exercise in good faith of the right of private defence and, therefore, Exception will not apply. Secondly, even if it could be held that the facts and circumstances of the case did justify the exercise in good faith of the right of. private defence, for which there is no evidence, the offender has exceeded the limit of causing harm as could be necessary for him to do. The deceased was empty handed. He was just walking along the street. The appellant had no business to attack him and cause injuries with deadly weapon like knife Exhibit P. 3 cutting his heart, lung and pericardium resulting in his death soon after the injuries were caused. The appellant has thus been rightly convicted u/s 302, Indian Penal Code. The appeal fails and is disallowed. The conviction of the appellant is maintained and his sentence upheld.

Shamsher Bahadur, J.

I agree.