CRLA/120/2007 of NIRVAIL SINGH AND ANOTHER Vs STATE on 31 December 2012

JUDGMENT

Coram : Hon’ble Barin Ghosh, C. J.Hon’ble U.C. Dhyani, J.

Per: U.C. Dhyani, J.

Criminal Appeal No. 120 of 2007 was preferred by the appellants Nirvail Singh and Indrajeet Singh against the judgment and order dated 02.04.2007, passed by learned Sessions Judge, Udham Singh Nagar in Sessions Trial No. 147 of 2003, whereby accused-appellants were convicted and sentenced for the offences punishable under Section 302 of IPC read with Section 34 of IPC and Section 324 of IPC read with 34 of IPC. Criminal Appeal No. 129 of 2007 was preferred by the appellants Dalvir Singh and Daljit Singh against the judgment and order dated 02.04.2007, passed by learned Sessions Judge, Udham Singh Nagar in Sessions Trial No. 211 of 2003, whereby accused-appellants were convicted and sentenced for the offences punishable under Section 324 of IPC read with Section 34 of IPC.

2) Criminal Revision No. 107 of 2007 was filed by the revisionist Indrajeet Singh against the judgment and order dated 02.04.2007 (passed in S.T. No. 211 of 2003) complaining inadequacy of sentence and for enhancement of sentence awarded to the convicts Dalvir Singh and Daljit Singh. Criminal Revision No. 115 of 2007 was filed by the revisionist Harjeet Singh against the judgment and order dated 02.04.2007 (passed in S.T. No. 147 of 2003) whereby accused-respondent Harjinder Singh @ Bagga was acquitted of the charge of offences punishable under Section 302 of IPC read with Section 34 of IPC, Section 307 of IPC read with Section 34 of IPC, Section 324 of IPC read with Section 34 of IPC, Section 323 of IPC read with 34 of IPC, Section 504 of IPC and Section 506 of IPC.

3) Since the genesis of all the cases is the same, therefore, they are being discussed and decided by this common judgment and order.

4) One Harjeet Singh wrote a complaint (Ext. Ka-1) to Station Officer, Police Station Sitarganj, District Udham Singh Nagar on 11.04.2003, enumerating the facts contained therein that a litigation was going on between him and his uncle Balwant Singh. On 11.04.2003, at 06:00 A.M., informant Harjeet Singh, his brothers Daljit Singh and Dalvir Singh alongwith their father Pritam Singh were working in the sugarcane field. In the meantime, Nirvail Singh and Indrajeet Singh came to the field. They were armed with spear and swords.

They inflicted blows of the armaments on the brothers of informant. Daljit Singh and Dalvir Singh sustained grievous injuries. The motive to commit the crime was attributed to the dispute over land. On the basis of said complaint, chik FIR (Ext. Ka-8) was lodged by the police on 11.04.2003, at 09:50 A.M. A Case Crime No. 124A of 2003 in relation to offences punishable under Sections 307, 324 and 506 of IPC was initially registered against the accused persons. After the death of Pritam Singh, offence punishable under Section 302 of IPC was also added. After interrogating the witnesses and on completion of investigation, a charge sheet (Ext Ka-18) was submitted by the Investigation Officer against Nirvail Singh, Indrajeet Singh and Harjinder Singh alias Bagga in relation to the offences punishable under Sections 302, 307, 324, 323, 504 and 506 of IPC.

5) In Sessions Trial No. 147 of 2003, prosecution relied upon the evidence of PW1 Harjeet Singh, PW2 Dalvir Singh (injured), PW3 Daljit Singh (injured), PW4 Dr. S. Anwar, PW5 Dr. S.S. Dugtal, PW6 S.I. Man Singh, PW7 S.I. Suresh Chand Joshi and PW8 S.O. R.C. Lohni. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C. DW1 Dr. P.C. Pandey was examined in defence. After considering the evidence on record, learned trial court convicted Nirvail Singh and Indrajeet Singh for the offences punishable under Section 302 of IPC read with Section 34 of IPC and Section 324 of IPC read with Section 34 of IPC. Both the accused were sentenced to undergo imprisonment for life alongwith a fine of `20,000/- in connection with offence punishable under Section 302 of IPC read with Section 34 of IPC and three years’ rigorous imprisonment in connection with offence punishable under Section 324 of IPC read with Section 34 of IPC. Harjinder Singh alias Bagga was however given benefit of doubt and was exonerated of the charges levelled against him. Aggrieved against said judgment and order, Criminal Appeal No. 120 of 2007 was preferred by the convicts Nirvail Singh and Indrajeet Singh.

6) Criminal Revision No. 115 of 2007 was filed by the complainant Harjeet Singh against acquittal of Harjinder Singh alias Bagga.

7) As a cross case, informant Indrajeet Singh also lodged a report (Ext. Ka-1) at Police Station, Sitarganj, enumerating the facts contained therein that on 11.04.2003, at 06:00 A.M., Dalvir Singh, Daljit Singh and Pritam Singh fired upon Indrajeet Singh with country made pistol with the intention to kill him. Indrajeet Singh sustained injury on the upper part of his leg with the gunshot fired by Daljit Singh. Pritam Singh exhorted his sons to kill Indrajeet Singh and Nirvail Singh and, consequently, Daljit Singh also assaulted Nirvail Singh with dagger on his leg. The incident was witnessed by Balbir Singh and Jeet Singh. On raising the alarm, the assailants fled away from the place of occurrence. On the basis of said complaint, chik FIR (Ext. Ka-6) was lodged by the police on 11.04.2003, at 09:05 A.M. A Case Crime No. 124 of 2003 in relation to offences punishable under Sections 307, 324 and 323 of

IPC was registered against the three accused persons. After interrogating the witnesses and on completion of investigation, a charge sheet (Ext Ka-11) was submitted by the Investigation Officer against Dalvir Singh and Daljit Singh in relation to offences punishable under Sections 307, 324 and 323 of IPC.

8) In Sessions Trial No. 211 of 2003, prosecution relied upon the evidence of PW1 Indrajeet Singh, PW2 Nirvail Singh, PW3 Dr. P.C. Pandey, PW4 Balbeer Singh, PW5 S.I. Man Singh and PW6 Suresh Chand Joshi. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that they were falsely implicated in the crime due to enmity. No evidence was adduced in defence. After considering the evidence on record, learned trial court convicted the accused Dalvir Singh and Daljit Singh for the offences punishable under Section 324 read with Section 34 of IPC. Both the accused were sentenced to rigorous imprisonment for a period of three years. Aggrieved against said judgment and order, Criminal Appeal No. 129 of 2007 was preferred by the convicts. Criminal Revision No. 107 of 2007 was filed by the complainant Indrajeet Singh against inadequacy of sentence awarded to Dalvir Singh and Daljit Singh and for enhancement of the same.

9) Even a glance at the above noted description would reveal that cross FIRs were lodged against each other by rival factions. It may be pointed out at the very outset that since these appeals and revisions arise out of the judgments and orders in cross cases, therefore the facts are admitted to both the sides, in as much as, the quarrel, dispute, altercation, use of armaments and consequential injuries etc. were admitted to the rival parties. Shorn of unnecessary details, we would like to focus briefly, in the background of facts narrated hereinbefore, on the role assigned to the accused persons on both the sides, vis-à-vis, the evidence in support thereof, in order to ascertain as to who was the aggressor and who inflicted injuries on the other side in exercise of his (or their) right to private defence. Also, whether he (or they) exceeded their right to private defence, which ultimately resulted into free fight between them?

10) It was evidenced by Daljit Singh and Dalvir Singh that Nirvail Singh, Indrajeet Singh and Harjinder Singh came at the scene of occurrence on 11.04.2003 at around 06:00 A.M, and inflicted blows on them with the armaments, which they (accused) were carrying. Daljit Singh and Dalvir Singh’s father Pritam Singh died. On the contrary, it was also evidenced by Indrajeet Singh and Nirvail Singh that Dalvir Singh and Daljit Singh came at the place of occurrence on 11.04.2003 at around 06:00 A.M., whereupon Daljit Singh fired a shot with country made pistol, which hit Indrajeet Singh on the upper part of his leg. Daljit Singh also inflicted blow of dagger on the person of Nirvail Singh and thereby caused injury to him. Members of both the groups were injured. Thus, it was established that the rival factions were present on the place of occurrence on 11.04.2003, at around 06:00 A.M. Thus it was amply clear that the rival factions contributed to the injuries sustained by the other side with the full knowledge that if such armaments, as they were carrying on the scene of occurrence, were used, the other side will certainly sustain grievous injuries, which may ultimately cause the death of the other side. Thus, although the same was not pleaded, but it was evidenced that both the sides exceeded their right to private defence and inflicted injuries on the other side with the intention of killing each other.

11) It is a case of free fight in which both the sides sustained injuries. The intention of both the sides was to harm the other side. The blows were intended on the vital parts for the purpose of killing each other.Learned counsel for appellants Nirvail Singh and Indrajeet Singh submitted that whereas the other side, namely, Dalvir Singh, Daljit Singh and Pritam Singh (since deceased) fired upon Nirvail Singh and Indrajeet Singh, his clients Nirvail Singh and Indrajeet Singh resorted to mild counter attack in self defence. We are unable to subscribe to the argument of learned counsel appearing for Nirvail Singh and Indrajeet Singh, in as much as, their side would have killed Dalvir Singh and Daljit Singh also (other side) had they (Nirvail Singh and Indrajeet Singh) not been resisted by firing (by the other side). Their side was prevented from causing further damage by the intervention of bullet. Despite that it could not deter Nirvail Singh and Indrajeet Singh from inflicting blows on Dalvir Singh, Daljit Singh and Pritam Singh. In other words, despite receiving injury, Indrajeet Singh continued to inflict injuries on the other side. But at the same time it has surfaced on record that it was the result of sudden and grave provocation committed in the heat of passion. Premeditation was not evidenced. In the given circumstances, the offence complained of against Nirvail Singh and Indrajeet Singh fell within the purview of Section 304 Para II (or Part II) of IPC. Therefore, we hold that although the appreciation of evidence in Criminal Appeal No. 120 of 2007 was correct, but keeping in view the fact that the accused-appellants Nirvail Singh and Indrajeet Singh committed culpable homicide not amounting to murder, and therefore they should be convicted for the offence punishable under Section 304 Para II of IPC. We accordingly direct that they be sentenced to undergo rigorous imprisonment for a period of five years alongwith a fine of `20,000/- each. (The fine as was awarded by learned court below).

12) At no point of time accused-appellants Dalvir Singh and Daljit Singh took plea of self defence. The quantum of force applied by them exceeded the force which was necessary for them to repel the affect of the force applied by the other side. When the fire was shot, the accused-appellants could not be said to be having no knowledge that the same will cause death of the other side and that is the reason that although offence punishable under Section 307 of IPC read with Section 34 of IPC was made out against Dalvir Singh and Daljit Singh in Criminal Appeal No. 129 of 2007, but since no Government Appeal was preferred against the same, therefore, we are not inclined to interfere with the conviction and sentence which was awarded to accused-appellants Dalvir Singh and Daljit Singh by order under appeal and revision. The conviction and sentence awarded to accused-appellants Dalvir Singh and Daljit Singh in respect of offence punishable under Section 324 of IPC read with Section 34 of IPC will therefore remain intact.

13) We don’t find any illegality in the judgment and order passed by learned court below in holding that it was a case of free fight.Accordingly, we are not inclined to interfere with the conviction (and not the sentence) of Nirvail Singh and Indrajeet Singh in Criminal Appeal no. 120 of 2007 and conviction of Dalvir Singh and Daljit Singh in Criminal Appeal No. 129 of 2007. Since, learned counsel for the Revisionists in Criminal Revision no. 107 of 2007 and Criminal Revision no. 115 of 2007, did not seriously press their revisions, therefore, neither the enhancement of the sentence nor reduction thereof is called for. The same was also not the requirement in the circumstances enumerated above.

14) Accused-appellants Nirvail Singh and Indrajeet Singh (in CRLA No. 120 of 2007) are acquitted of the charge of offence punishable under Section 302 of IPC read with Section 34 of IPC. The sentence of imprisonment for life, awarded to them by learned court below, is also set aside. Instead, they are convicted of the offence punishable under Section 304 Para II of IPC and accordingly, Nirvail Singh and Indrajeet Singh are sentenced to undergo five years’ rigorous imprisonment on said count, and a fine of `20,000/-, in default of payment of which, they shall undergo further imprisonment for a period of six months. Conviction and sentence recorded by learned court below against accused-appellants Nirvail Singh and Indrajeet Singh in respect of offence punishable under Section 324 of IPC read with Section 34 of IPC is hereby maintained. The sentences awarded to Nirvail Singh and Indrajeet Singh in respect of offences for which they were convicted by the court below (except for substitution of Section 304 Para II of IPC read with Section 34 of IPC with Section 302 of IPC read with Section 34 of IPC) shall run concurrently.

15) Criminal Revision No. 107 of 2007 filed by the complainant Indrajeet Singh against inadequacy of sentence awarded to Dalvir Singh and Daljit Singh and for enhancement of the same as well as Criminal Revision No. 115 of 2007 filed by the complainant Harjeet Singh against acquittal of Harjinder Singh alias Bagga are dismissed.

16) Accused-appellants Nirvail Singh and Indrajeet Singh (in CRLA No. 120 of 2007) and accused-appellants Dalvir Singh and Daljit Singh (in CRLA No. 129 of 2007) are on bail. Their bail is cancelled. They are directed to surrender before the court concerned to serve out the sentence as above. The period already undergone by them during trial and during the pendency of this appeal shall be set off.

17) Let the lower court record be sent back to the court below alongwith a copy of this judgment for ensuring compliance as above.

(U.C. Dhyani, J.) (Barin Ghosh, C.J.)

Dt. December 31, 2012. Negi