# l BHAJAN SINGH v. STATE OF PUNJAB

- **Citation:** [1979] 1 S.C.R. 527
- **Court:** Supreme Court of India
- **Decided:** 1978-08-31
- **Bench:** Jaswant Singh, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-bhajan-singh-v-state-of-punjab-7590
- **Pages:** 11

## Headnote

527
Evidence-Appreciation of evidence in ca.ses of Statutory
appeals
u1lder
s. 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisd1ct1on)
Act, 1910 by the Supreme Court-Supreme C,ourt i.SJ a court of appeal under the
Act and has got to go into all the questions of fact and law and decide cases on
merits, unlike its jurisdiction under Art. 136 of the Constitution.
Right of private defence of property-Onus to prove right of private defence
is on the, defence-S. 97, Secondly read wit ii s. 99i of the Penal Code 1860 (Act
XLV), Penal Codes. 149 scope of.
Eight accused including th_e five "'PPellants in this appeal were charged and
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tried for various offences punishable under the Penal Code, for
rioting being
armed with deadly weapons and for causing the death of one Pakhar Singh by
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inflicting grievous hurt and simple hurt to Pritam Kaur (PW-3), his wife. Tho
case of the prosecution as to the motive was that Pakhar Singh, the deceased
filed on 28-10-69 a declaratory suit claiming certain lauds as his, while his sister
also claimed the said lands as hers and; that on the dat.e of the incident the suit
was pending and an interim order was passed to the effect that the parties hnd
agreed in respe.ct of the question of possession that Matus quo will be maintained; and that an exparte injunction was issued in favour of the deceased;
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that the accused by the strength of numbers wanted to conclude the litigation
by taking forcible possession and therefore with weapons hidden in the field
<;aused grievous injuiies to Pak.har Singh out of which injury No. 1 was opined
by the doctor as sufficient to cause death in the ordinary course of nature. The
Additional Sessions Judge, Patiala found the accused not guilty of the various
o!lences and acquitted them all. But the High Court in appeal by the State
against the acquittal maintained the acquittal in reSPOCt of three accused but
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reversed the order of acquittal of the appellants and convicted them under
s. 302/ 149, 325/149, 323 /149 aod IPC aod sentenced them to imprisonment
for life aod a fine of Rs. 1,000/- each for an offence under s. 302/149, They
were also sentenced to rigorous imprisonment for 2 years, 1 year and six months
for the offences under s. 325/149, 148 aod 323/149 respectively. Hence tho
statutory appeal under s. 2(a) of the Supreme Court (Enlargement of Criminal

## Text

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BHAJAN SINGH
v.
STATE OF PUNJAB
August 31, 1978
[JASWANT SINGH AND P. S. KAILASAM, JJ.]
527
Evidence-Appreciation of evidence in ca.ses of Statutory
appeals
u1lder
s. 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisd1ct1on)
Act, 1910 by the Supreme Court-Supreme C,ourt i.SJ a court of appeal under the
Act and has got to go into all the questions of fact and law and decide cases on
merits, unlike its jurisdiction under Art. 136 of the Constitution.
Right of private defence of property-Onus to prove right of private defence
is on the, defence-S. 97, Secondly read wit ii s. 99i of the Penal Code 1860 (Act
XLV), Penal Codes. 149 scope of.
Eight accused including th_e five "'PPellants in this appeal were charged and
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B
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tried for various offences punishable under the Penal Code, for
rioting being
armed with deadly weapons and for causing the death of one Pakhar Singh by
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inflicting grievous hurt and simple hurt to Pritam Kaur (PW-3), his wife. Tho
case of the prosecution as to the motive was that Pakhar Singh, the deceased
filed on 28-10-69 a declaratory suit claiming certain lauds as his, while his sister
also claimed the said lands as hers and; that on the dat.e of the incident the suit
was pending and an interim order was passed to the effect that the parties hnd
agreed in respe.ct of the question of possession that Matus quo will be maintained; and that an exparte injunction was issued in favour of the deceased;
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that the accused by the strength of numbers wanted to conclude the litigation
by taking forcible possession and therefore with weapons hidden in the field
<;aused grievous injuiies to Pak.har Singh out of which injury No. 1 was opined
by the doctor as sufficient to cause death in the ordinary course of nature. The
Additional Sessions Judge, Patiala found the accused not guilty of the various
o!lences and acquitted them all. But the High Court in appeal by the State
against the acquittal maintained the acquittal in reSPOCt of three accused but
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reversed the order of acquittal of the appellants and convicted them under
s. 302/ 149, 325/149, 323 /149 aod IPC aod sentenced them to imprisonment
for life aod a fine of Rs. 1,000/- each for an offence under s. 302/149, They
were also sentenced to rigorous imprisonment for 2 years, 1 year and six months
for the offences under s. 325/149, 148 aod 323/149 respectively. Hence tho
statutory appeal under s. 2(a) of the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction), Act 1970.
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Allowing the appeal partly the Court
HELD : (1) By s. 2(a) of the Supreme Court (Enlargement of Criminal
Appell>te Jurisdiction) Act, 1970 any accused who has been acquitted by tho
trial court, but, on appeal by the State convicted and sentenced by the High
Court, as specified in the section is entitled, as of right, to appeal to the SUpreme
Court. As a Court of appeal, the Supreme Court has got to go into all the
questions of fact and law and decide the case on its merits.
The question,
therefore, whether the High Court rightly interfered on sufficient grounds or
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SUPREME COURT REPORTS
[1979] 1 S.C.R.
not in a State appeal against acquittal will not be material. A right of appeal
has been provided under s. 2(a) of the Act and this Court has to decide the
case on its merits.
The decisions regarding the scope of appeal against an
acquittal the powers of the High Court to interfere in an apeal against acquittal
by the State, which may be relevant when the Supreme Court is acting under
Art. 136 are not material in deciding an appeal by person whose acquittal bas
been set aside by the High Court and who is entitled to prefer an appeal to the
Supreme Court. [537 B·E]
(2) Though the Court would be entitled, on the material on record to decide
whether the question of right of private defence has been established or not
it is the duty of the defence to make the necessary material available. [535 B·CJ
In the instant case, the plea of right of private defence of property has to
be negatived since the accused failed to produce any order vacating the stay
(as claimed by them) or any record to show that they bad raised the \Vheat
crop. This circumstance and Ex. PE & PF extracts of Khasra Girdwari also
probabilise the prosecution case. Three were 8 persons on the field haorvesting
the crop l&nd having the necessary weapons to repel any protest by the deceased.
If the accused were in possession, it is most unlikely that the deceased and bis
wife alone would go into the field to disturb the possession. [534 F, 535 C-D]
(a) In determining what offences any accused is guilty of it is necessary to
consider the injuries that were inflicted on the deceased.
The doctor who con~
ducted the autopsy found that the
deceased had 8 injuries. According to the
doctor injury no. 1 was sufficient in the ordinary course of nature to cttuse death
and injuries 2 to 8 could not collectively normally cause the death of Pakhar
Singh. Whoever caused injury No. I would be guilty of an offence punishable
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under s. 302. [535 G, H, 536 A, B. CJ
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(b) In the background of the incident and all other circumstances it is clear
that the common object of the unlawful assembly was to cause grievous hurt
with dangerous weapons, an offence punishable under s. 326 IPC only. [536 D~
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(c) None of the appellants have been specificaJ.ly charged
for an offence
punishable under s. 302 and it cannot hi' held that they are guilty of causing
the injury which is "sufficient in the ordinary course of nature to cause death''.
The injury was not caused in prosecution of the common object of the assembly
or that the members of the assembly knew it likely to be caused in prosecution
of the con1mon object. [536 E-F]
(d) The prosecution has proved the case beyond all reasonable doubt and the
eye witnesses Vi'ere natural y,:itnesses and their testimony is acceptable. [534 B]
OBSERVATIONS:
[The Court set k:l.side the conviction and sentences under s. 323/149 and in
lieu of the conviction and sentence under s. 302/149 convicted them under
Section 326 r/w S. 149 and sentenced the appellants to 7 years rigorous imprisonment and a fine of Rs. l,000/- each. The conviction and sentence under the
counts under Section 325 r/w S. 149 and under S. 148 were, however, maintained.)
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BHAJAN SINGH v. PUNJAB (Kailasam, !.)
5 29
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 194
of 1975.
From the Judgment and Order dated 17-5-1975 of the Punjab and
Haryana High Court in Criminal Appeal No. 636 of 1971.
N. C. Talukdar (For appeJlants 1-4), A nil Kumar Gupta (for
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appellant No. 5) and Mr. Uma Datta for the AppeJlants.
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Hardev Singh and R. S. Sodhi for the Respondent.
The Judgment by the Court was delivered by
KAILASAM, J.
The five appcJlants have preferred
this
appeal
under section 2(a) of the Supreme Court (Enlargement of Criminal
AppeJlate Jurisdiction) Act, 1970, from the judgment and order of the
High Court of Punjab and Haryana in Criminal Appeal No. 636 of
1971.
The five appellants and three others were charged for various
offences, punishable under the Indian Penal Code for rioting armed
with deadly weapons and for causing the death of one Pakhar Singh
inflicting grievous and simple hurt to Pritam Kaur wife of Pakhar Singh
on 17-4-1970 at about 7.30 A.M. in the village Bassi of Nurpur Bedi
Police Station. The Additional Sessions Judge, Patiala, found the
accused not guilty of the various offences with which they were charged
and acquitted them.
The State of Punjab preferred an appeal to the High Court of
Punjab and Haryana against the order of a:cquittal. The High Court
maintained the acquittal of three accused, Nikha Singh, Binder Singh
and Jit Singh but reversed the order of acquittal of the appellants and
convicted them under section 302/149, 325/149 and 3231149 and
148 I.P.C. and sentenced them to imprisonment for life and a fine of
Rs. 1000/- each for an offence under section 302/149. They were
also sentenced to rigorous imprisomnent for 2 years, I year and 6
months for the offences under sections 325/149, 148 and 323/149
I.P.C. respectively.
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The case for the prosecution is that there was enmity between the
deceased Pakhar Singh and Nand Singh and his family due to the land
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in dispute. One Bhagtn, father of Pakhar Singh, was the owner of the
land in dispute in the village of Bassi. After his death, a dispute arose
over the property between the deceased Pakhar Singh and his step
sister Jaggir Kaur who is married to Nand Singh. Nand Singh and
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Bhajan Singh, appellants Nos. 1 and 2, are the sons of Dharam Singh,
the third appellant. Dharam Singh's nephew, Jhaggar Singh, is the
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fourth appellant. It is the admitted case of the parties that there was
a litigation between Pakhar Singh on the one side and Jaggir Kaur on
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[1979] 1 S.C.R.
the other relating to the title and possession of the land in dispute.
Proceedings were taken by the parties before the authorities for registration in the revenue records. On 28-10-1965, Pakhar Singh instituted
a suit in the court of Sub-Judge, 1st Class, Ropar for a declaration that
he is the sole owner of the land and that the defendant had no right
or interest in the land or in the alternative for possession of the land
as owner. On 27-12-1969, the Court passed an interim order on an
agreement between the parties in the following terms :-
"It is agreed in respect of the question of possession that
status quo will be maintained. Therefore ex-parte injunction
issued in favour of the plaintiff stands modified to the extent
that the parties will maintain status quo in respect of possession."
The prosecution also filed Ex. PF an extract from Khasra Girdawri,
relating to village Bassi which showed that the deceased Pakhar Singh
was the owner of the land and was cultivating it with wheat and gram
crop during the rabi crop for the year 1970. According to the prosecution, Pakhar Singh had sown wheat crop and he and his wife went
to the field at 7.30 A.M. on 17th April, 1970 to harvest the crop
where they found all the accused cutting and gathering the crop. The
deceased protested and tried to stop the accused from removing the
crop, but they did not listen. Pakhar Singh reminded them that the
court decision is in his favour but the accused took up the weapons
which they had concealed in the wheat crop and started heating !he
deceased. According to the prosecution, the five appellants were armed
with Kulharas, Bhajan Singh with a barchha and the three acquitted
accused with lathies. The accused attacked the deceased and during
the melee, Pritam Kaur, wife of the deceased, who is examined as
P.W. 3 in the case also sustained injuries. Hearing the noise, Arjun
Singh, P.W. 4 and Tota Ram, P.W. 5 who were harvesting their crops
in a nearby field belonging to them, came to the scene and saw the
beating df' the deceased by the accused. Soon after the occurrence, the
accused ran away. Pakhar Singh was taken to the road-side from where
he was put in a bus and carried at Nurpur Bedi. Pritam Kaur went to
the Police Station and lodged a report at 11 A.M. As no doctor was
available at Nurpur Bedi, the injured was carried in a taxi to Ropar
hospital but before medical aid could be rendered to him, Pakhar
Siμ.gh died.
The prosecution relied on the evidence of the injured eye-witness,
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P.W. 3, and two other eye-witnesses who came to the scene at the
time of occurrence, i.e., P.W. 4 and 5, Arjan Singh and Totit Ram.'
The trial court rejected the testimony of the eye-witnesses and acquit-
BHAJAN SINGH v. PUNJAB (Kailasam, J.)
531
ted the accused.
The High Court found that the evidence of P.W. 3,
4 and 5 is trustworthy and the trial court was in error in rejecting their
testimony. It found, the prosecution has established its case beyond
all reasonable doubt so far as the appellants are concerned and convicted them for various offences.
The question that arises for consideration in this appeal before us
is, whether the prosecution has succeeded in proving the case against
the appellant beyond all reasonable doubt.
P.W. 3 is the widow of the deceased, Pakhar Singh. The doctor,
Shrimati B. Kalra, Medical Officer, Civil Hospital, Ropar, who
examined Pritam Kaur, gave her the wound certificate which is marked
«S Ex. PB. She had 10 injuries on her person. The first injury is a fracture in the middle of the right index finger which is a grievous injury.
Injuries 2 to 10 are simple and were caused due to blunt weapon. The
injuries clearly show that P.W. 3 was present at the scene. The fact,
that immediately after the occurrence, she, along with P.W. 4 and
5, took the injured to the Police Station and lodged the First Information Report, establishes that the prosecution version was made available at the earliest possible time. The First In~ormation Report was
given at 11.20 AM. at the Police Station which is four and a hill miles
from the village. According to the First Information Report, when
P.W. 3 and her husband, Pakhar Singh, were going to harvest wheat
crop, the appellants and three others were already harvesting the
wheat crop from the same field. P.W. 3 asked them as to why they
were harvesting the wheat crop when a dispute regarding the . joint
khata was going on between them, and they had obtained a stay order
from the court and the wheat crop belonged to them as they were the
owners, the appellants started attacking Pakhar Singh.
The First
Information Report mentions that Gurnaib Singh dealt a Kulhara blow
to her on her right index finger and the appellants, Nand Singh, Bhajna,
Dharam Singh and Jhagar Singh dealt Kulharas, Lathis and barchha
blows on the head, eyes and both the legs of Pakhar Singh. The First
Information Report also mentions the presence of Tota Ram, P.W. 5
and Arjan Singh, P.W. 4 as having come there on hearing the noise
and rescued the witness and Pakhar Singh. The evidence of these witnesses was sought to be discredited by the trial court mainly on the
ground that her statement before the investigating officer belies the
prosecution version. According to the A.S.I., Bhagat Singh, who was
examined as P.W. 10, he recorded a statement from Pritam Kaur on
the 18th April 1970. According to the statement, only four persons,
Nand Singh, Dharam Singh, Bhajan Singh and Jhagar Singh were
named as the assailants. The story given in the statement is different
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from the prosecution case that was set up in the First Information
Report and at the trial, P.W. 3 vehemently denied ho.ving made any
statement on the 18th April 1970. It may be noted that after P.W. 3
gave the First Information Report, she was examined at the inquest.
There is no material on record to show that the statement, recorded
from P.W. 3 at the inquest, is at variance with the First Information
Report. The contention of the State is that P.W. 10, Bhagat Singh,
AS.I. had falsely introduced a statement with a view to help the culprits and spoil the prosecution case. The High Court accepted the plea
and found considerable merit in the contention of the learned counsel
for the State. The High Court pointed out that Pritam Kaur, having
named all the accused as assailants in the First Information Report and
having reiterated this position in her statement in the inquest proceedings, would not have given a different version to the Police Officer in
a supplementary statement recorded on the 18th. The
evidence of
P.W. 10 discloses that on the evening of the 17th, he prepared the
inquest report during which proceedings he examined
P.W. 3 and
recorded her statement Later, he left fm the scene, which he reached at
5.30 P.M. In cross-examination, the witness stated
that he had
recorded the statement of Pritam Kaur on 18th April which is marked
as Ex. DD. The version given by P.W. 3 in this supplementary statement is totally at variance with the prosecution case. It is difficult to
perceive, under what circumstances the police officer came to record
a supplementary statement. Though the statement of the case by the
· A.SJ. i' appended to the inquest report, the statement of Pritam Kaur
recorded at the inquest is not'made available. There is no difficulty
therefore, in coming to the conclusion that, the statement of Pritam
Kaur during the inquest was in accordance with the First Information
Report. We agree with the High Court that the supplementary statement, recorded by P.W. 10, is not entitled to any weight and that it
cannot be used for discrediting the testimony of Pritam Kaur. The trial
court was clearly in error in rejecting Pritam Kaur's evidence on the
basis of the supplementary statement alleged to have been recorded
from her by P.W. 10.
Another reason given for rejecting the testimony of P.W. 3 by the
trial court is that though P.W. 3's daughter, Ranjit Kaur, was present
and sustained injuries, that fact was concealed in the First Information
Report. In the Report appended by P.W. 10 to the Inquest Report,
he mentioned that Pritam Kaur had got entered the report at the police
station to the effect that when she and her daughter Ranjito went to
their field for harvesting the wheat crop, four accused inll'cted injuries
on her, her daughter and her husband. It is not disputed that the Fir~t
Information Report not only mentions the four accused but all the
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BHAJAN SINGH v. PUNJAB (Kailasam, J.)
533
others. It is again clear that in the First Information Report, there. is
no mention of the presence of her daughter, Ranjit Kaur or her sustaining any injuries. The High Court rightly observed that Pritam Kaur
had denied having made a statement to the Police that Ranjit Kaur
accompanied them and received injuries and that there was no reason
for her concealing it when she gave the First Information Report. As
the High Court rightly points out that if Ranjit Kaur was present and
sustained injuries, she would have been a very valuable eye-witness
and her presence would not have been omitted. We agree with the
conclusion of the High Court that the presence of Ranjit Kaur and
her sustaining injuries was introduced by the Police with a view to
damage the prosec11tion case. On a consideration of the evidence of
Pritam Kaur, we find that she is a thoroughly dependable witness.
It is only natural that she accompanied her husband to the field where
wheat crop had been raised. She had sustained several injuries and
there could be no difficulty in coming to the conclusion that she was
present and witnessed the occurrence during which she sustained the
injuries. Taking into account the fact that the First Information Report
was given with the utmost expedition and that all the relevant particulars such as the name of the accused, the weapons which were
used and the part they played haV'e all been mentioned, we see no
reason for rejecting her testimony. The fact that she had not mentioned
the details such as which accused caused which injuries does not affect
the credibility of her version. Her husband was in a critical condition
and it is too much to expect that the report she gave at that time should
contain all details about weapons and the. injuries that were caused by
the several accused.
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The evidence of the two other eye-witnesses, P. W. 4 and 5, Arjan
Singh and Tota Ram, was rejected by the trial court on the ground that
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their evidence was materially different from the statement made to the
Police as, in their statement to the Police, they had only named four
accused while in their evidence they would include three more persons.
We find that the statement, alleged to have been recorded by P.W. 10,
is not entitled to much weight. The evidence of these two witnesses was
attacked on the ground that the field, in which the two witnesses were
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supposed to be harvesting their wheat crops, was far away and that
they could not have witnessed the occurrence. It was also submitted
that there was a Gurdwara between their field and the field in which
the occurrence took place but the High Court considered the points
raised and found that there was no obstruction between the field
in
which they were working and the scene of occurrence. and that when
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the noise was heard they left their field and moved towards the scene
and that there could be no difficulty in accepting the testimony of
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SUPREME COURT REPORTS
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P.W. 4 and 5. According to P.W. 4, he and Tota Ram reached the
place of occurrence on hearing the accused and Pakhar Singh quarrelling. On the way they observed the accused, injuring Pakhar Singh and
Pritam Kaur. IJ is also clear that both the witnesses accompanied
Pritam Kaur and the injured as the First Information Report discloses
that the informant, Pritam Kaur came along with Arjan Singh and
Tota Ram and appeared at the Police station and got recorded the
First Information Report. On a consideration of the evidence of
P.Ws. 3, 4 and 5, the eye-witnesses, we are satisfied that they are
natural witnesses and that their testimony is
acceptable.
Agreeing
with the High Court we have no hesitation in finding that the prosecution has proved its case beyond all reasonable doubt.
The only question that troubles us in this appeal is about the possession of the wheat field at the time of the occurrence. If the accused
were in possession of the field and the deceased came to disturb that
possession, the case would take an entirely different complexion. It
is common ground that there were disputes regarding the land. Both
parties were trying to get the 'patta' registered in their n-ame. The
Commissioner of Patiala Division in the proceedings under the Punjab
Land Revenue Act found that, Jaggir Kaur and her mother Ram Kaur
were in possession for 20 years but, whether the suit land was nuder
consideration before the Commissioner is not very clear. A suit v.as filed
by Pakhar Singh, deceased, on 28-10-1969. On the date of the incident, the suit was pending and an interim order was passed to the
effect that the parties had agreed in respect of the question of possession that status quo will be maintained and therefore ex-parte injunction,
issued in favour of the deceased, stands modified to the extent that,
parties will maintain status quo in respect of possession. This would
indicate that, there was an agreement between the parties. as a result of
which the order a( injunction was modified but from this order it is not
clear as to who was in possession. Two material documents, that very
much support the prosecution case regarding possession, are Ex. PE
and PF. Ex. PE is an extract from Khasra Girdawri papers relating
to the land in question, Khasra 23/11/2, in the village of Bassi;
Pakhar Singh is entitled as co-sharer and it is stated that he has raised
kharif crop for the year 1963 and rabi crop for the year 1964. In
Ex. PF, an extract from Khasra Girdawri relating to the land, it is
entered that Khasra No. 23/11/2, the owner is Pakhar Singh and that
he is the cultivator and co-sherer and that he has raised wheat and
gram in the rabi crop for the year 1970. The occurrence was on 17th
April 1970 and the evidence of P.W. 3 on this point is that her husband
and she had raised the wheat crop. In fact she admitted that there was
a dispute between Pakhar Singh and Nand Singh about the land which
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BHAJAN SINGH v. PUNJAB (Kailasam, J.)
5 35
Pakhar Singh's father left. While she admitted that there was dispute
about the land, she stated that her husband had filed a
suit against
Jaggir Kaur and stay order had been granted by the court in favour of
Pakhar Singh. She denied that the stay order was vacated before the
occurrence or that the court had ordered that the party in possession
of the land should harvest the crops. We find that the evidence of
P.W. 3 that the. Civil Court had granted stay in favour of the plaintiff
and that they had raised the crop and went to the field in question for
agricultural operations stands unrebutted by the defence. Though the
court would be entitled, on the material on record, to decide whether,
the question of right of private defence has been established or not, it
is the duty of the defence to make the necessary material available.
They have failed to produce any order vacating the stay or any record
to show that they had raised the wheat crop. The circumstances also
probabilise the prosecution case. There were 8 persons on the field
harvesting the. crop and having necessary weapons to repel any protest
by the deceased. If the accused were in possession, it is most unlikely
that the deceased and his wife alone would come into the field to disturb the possession. On a close scrutiny of the material on record, we
are satisfied that there are no grounds for not accepting the conclusion
of the High Court that the possession of the deceased and his wife
were disturbed by the accused. In the result, the plea of right of private
defence of property has to be negatived.
The question now remains as to what are the offences for which
the accused could be convicted. The parties are closely related and
the dispute was actually between the brother and the sister, the brother,
claiming the property as his own, while the sister, supported by her
husband and his brothers claiming that it belonged to the sister. There
was litigation in various courts and there were disputes about the
actual possession.
Obviously, the accused, by strength of number,
wanted to conclude the litigation by taking forcible possession. There
could be no doubt therefore that, they trespassed into the land iihd
caused injuries to Pakhar Singh which ultimately resulted in his death.
Pritam Kaur was also injured. In determining what offences the
accused are guilty of, it_ is necessary to consider the injuries that were
inflicted on the deceased. The doctor, \'{ho was examined before the
Committing Magistrate and whose evidence was marked in the Sessions
Court, found that the deceased had eight injuries.
Injury No. 1 was
an incised wound 3" >s 1/2" x 3 / 4" on the right side of the scalp
4" above the left ear, almost vertical bone underneath cut and fractured; comminuted fra~ture of left parietal left temporal bone extending to frontal and occipital. Front parietal suture opened.
This
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[!979] [ S.C.R.
injury, according to the doctor, was sufficient in the ordinary course
of nature to cause death. The other injuries, 2 to 6 are contusions
:md 7 ~nd 8 are abrasions. Injuries 2, 3, 4 and 5 are helow
the
knee on the right knee cap. Injuries 2 to 5 are contused wounds
below the right knee injuring the bone. The bone was fractured to
pieces. Injuries 2 and 3 are on the right leg below the knee. Injuries
Nos. 4, 5 and 6 are contusions on the left leg below the knee. The
bone below the left knee and the right knee are factured into pieces.
Injury No. 7 an abrasion horizontal 2" left side of back at the
crest of the left iliac bone. The doctor was of the view that injuries
2 to 8 could not collectively normally cause the death of Pakhar
Singh. We agree with the doctor that the injury No. 1 is sufficient in
the ordinary course of nature to cause death and whoever caused the
injuries would be guilty of an offence punishable under section 302.
The other injuries are mainly below the knee on the right and the
left legs resulting in the fracture of the bones. In the background of
the incident, it is clear that due to the anxiety of the
accused
to
harvest the wheat crop the occurrence took
place.
Taking
into
account all the circumstances we find the common object of the unlawful assembly was to cause a grievous hurt. It has to be considered
whether all the accused should be found guilty of an offence punishable under section 302, 149, for the injury caused by one of the
members of the unlawful assembly which is found to be sufficient in
tbe ordinary course of nature to cause death. None of the appellants
has been specifically charged under section 302 and it is therefore not
possible to hold any one of the appellants guilty of
cansing the
injury which is sufficient, in the ordinary course of nature, to cause
death.
We are also not satisfied from the circumstances that the
injury was caused in prosecution of common object of the assembly
or that the members of the assembly knew it likely to be caused in
prosecution of the common object. On a consideration of all
the
circumstances we are satisfied that the common object of the unlawful assembly was to cause grievous injury with dangerous weapons,
an offence punishable under section 326. We, therefore, set aside the
conviction and sentence, imposed on the appellants, under section
302/149 but instead find them guilty under section 3261149 and
sentence them to seven years rigorous imprisonment and a fine of
Rs. 10001- each, and in default to undergo a simple imprisonment
for six months. The convictions under section 3251149,
regarding
the injuries caused to Pritam
Kaur,
P.W. 3, is
confirmed.
The
sentence of 2 years rigorous imprisonment,
imposed on tJ:e appellants, for an offence under section 325/149, for causing injuries to
P.W. 3, is confirmed but, as the prosecution has not established the
presence of the daughter, Ranjito, the conviction,
under
section
-\ ,._
BHAJAN SINGH v. PUNJAB (Kailasam, !.)
537
323/149 regarding the causing of injury to her, and the sentence
imposed for the offence, is set aside.
The conviction of the accused
~ndcr section 148 is confirmed.
Before concluding the judgment we would refer to the plea of the
accused that the High Court was in error in allowing the
appeal
against acquittal without substantial and compelling reasons. We do
not think, the decision of this Court, relating to the grounds on which
llJl Appeal against the acquittal could be allowed by the High Court,
is relevant, for, this appeal is under section 2(a) of the
Supr~me
Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.
By this section the accused, who has been acquitted by the
trial
court, but, on appeal by the State, convicted and sentenced by the
High Court, as specified in the section, is entitled, as of right,
to
appeal to this Court. As a court of appeal this Court has got to go
into all the questions of fact and law and decide the case on its merit.
After a right of appeal has been provided under the said section, the
question, whether the High Court interfered on sufficient grounds or
not, will not be material, as this Court has to decide the case on its
own merits. The decisions, regarding the scope of appeal against an
acquittal, the powers of the High Court to interfere in an
appeal
against acquittal by the State, which may be
relevant
when
the
Supreme Court is acting: under Art. 136, are not material in deciding
an appeal by a person, whose acquittal has been set aside by
the
High Court, and who is entitled to prefer an appeal to this Court.
S.R.
Appeal allowed in part.
A
B
c
D
E