2004 Supreme(SC) 93

2004(2) Supreme 93
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Doraiswamy Raju & S.B. Sinha, JJ.
Kulwant Singh and Ors. -Appellants
versus
State of Punjab -Respondent
Criminal Appeal No. 947 of 1997
Decided on 23-1-2004
Counsel for the Parties :
For the Appellants : U.U. Lalit, Ms.Indra Sawhney, Advocates.
For the Respondent : O.K. Khullar, R.C. Kohli, Arun Kr. Sinha, Rakesh Singh, Advocate for Bimal Roy Jad, Advocates.

IMPORTANT POINT
When the accused persons trespassed into the property of the informant with deadly weapons, it is difficult to presume in absence of any material on record that the initiation of the assault was from the side of the informant to plead right of private defence.

Headnote:(i) Indian Penal Code, 1860-Sections 302, 302/149, 323/149-Murderous assault causing death of two-Boundary dispute-Family of deceased and appellants belong to the same village, both having agricultural lands-On the day of incident, deceased mother brought food for her sons (PW 5 and PW 6) who were working in their agricultural field-When they finished their meals, A1 armed with Takwa , A2 and A3 armed with kirpan each and appellant 2 and 3 armed with Barchha and Kappa came near the informant and started assaulting-Deceased mother and injured P brought to the hospital-Statement of P recorded as dying declaration-Statements made in first information report as also before the court by PW 5 stand corroborated by medical evidence-Presence of PW 4 and PW 5 at place of occurrence established-Accused having trespassed into the agricultural field of informant with deadly weapons-Their plea of private defence held not sustainable-High Court was right in convicting three appellants of the offences-No legal infirmity in findings of High Court.

       Held : The statements of Partap Singh stand corroborated by the evidence of Avtar Singh (PW-5) and Balkar Singh (PW-6). Even if the evidence of Balkar Singh is held not to be reliable, as has been submitted by Mr. Lalit, we find no reason to disbelieve the statements of Avtar Singh (PW-5). He categorically stated that when they were working in the field, their mother had come with food and when they just finished taking the same, the accused persons came and Virsa Singh gave a lalkara whereupon accused persons inflicted blows on Partap Singh, Kartar Kaur and PW-5 and PW-6. The sufferance of minor injuries by PW-5 and PW-6 at the hands of the accused persons appears to be more probable as by the time they realized their position and went to the actual place of occurrence upon collecting their weapons and assaulting Darbara Singh and Virsa Singh therewith, the accused persons might have realized that they had already inflicted fatal blows on Kartar Kaur and Partap Singh and in the meanwhile they had also suffered injuries at the hands of the informant party. Partap Singh suffered two Barchha blows at the hands of Sahiba Singh, one in the abdomen and another in the chest whereas Virsa Singh appears to have inflicted a Takwa blow. These injuries are corroborated by medical evidence. Similarly, the statements made in the first information report as also before the court by PW-5 as regard nature of injuries suffered by Kartar Kaur also stands corroborated by medical evidence. The presence of PW-5 and PW-6 at the place of occurrence cannot be disbelieved only on the ground that the injuries found on their persons were found to be simple in nature. They might have suffered simple injuries because they might have collected their arms so as to make counter attacks after seeing unarmed Kartar Kaur and Partap Singh having been seriously injured. (Paras 49 and 50)

       The records also reveal that weapons of attacks were recovered at the instance of both Kulwant Singh and Sahiba Singh. The spear and kirpan which were recovered were found to be blood-stained. We, therefore, are of the opinion that there does not exist any legal infirmity in the findings of the High Court. For the reasons aforementioned, we are of the opinion that the accused persons have not been able to discharge their onus of proof that they had killed the deceased in exercise of their right of private defence. (Paras 58 and 59)

       (ii) Indian Penal Code, 1860-Sections 96 to 106-Private Defence-Plea of-Onus of proof-Place of occurrence was agricultural field of informant-Accused trespassed into the agricultural field of informant with deadly weapons PW 5 and PW 6 were taking food which their mother, deceased had brought there-Mother of PW 5 and PW 6 received injuries in the incident and died-She had been inflicted with as many as five sharp-cutting injuries, three on legs and two on the wrist-There were five male members on the side of accused while three were there on the side of informant-Nature of weapons used in commission of the offence suggested that they were not ordinarily required to be carried on their persons-Whether accused persons were able to discharge their onus of proof that they had killed the deceased in exercise of their right of private defence-(No).

       Held : Chapter IV of the Indian Penal Code provides for the general exceptions. Sections 96 to 106 which occur in the said chapter deals with the right of private defence. Section 96 says that nothing is an offence which is done in exercise of the right of private defence. This right, however, is available to a person who is suddenly confronted with immediate necessity of averting an impending danger which is not his own creation. The necessity must be present, real or apparent. It is preventive and not retributive. (Para 51)

       The question, whenever a right of private defence is claimed, must be judged from the nature of occurrence, the circumstances in which it had occurred and whether the person claiming such right has acted legitimately. Attending circumstances would also be relevant for judging the same. It is well-settled that the burden to prove the same is on the person who raises such plea. For the purpose of proving the same, the accused may rely upon the materials on records brought by the prosecution in addition to examining the witnesses and adducing positive evidences, if any. A person has a right of private defence of body under Section 97 and in the event it is found that he was entitled to exercise the same, he necessarily must be held to have a right to cause death in terms of Section 100 of the Indian Penal Code, if there was a reasonable apprehension that death or grievous hurt would be caused. (Paras 52 and 53)

       The place of occurrence is the agricultural field of the informant. It will, therefore, be safe to presume that the accused persons trespassed into the property of the informant. The fact that at least two of the accused persons were armed with sharp-edged weapon like Kirpan or Kappa is not disputed. If they had trespassed into the agricultural field of the informant with deadly weapons, it is difficult to presume in absence of any material on record that the initiation of the assault was from the side of the informant. It stands admitted that the Accused Darbara Singh was cleaning the water channel which passes through the field of the informant. There is also no reason to disbelieve the statements of PW-5 and PW-6 as also the dying declaration of Partap Singh that their mother had brought food for them and they had taken the food and incident took place immediately thereafter. As noticed hereinbefore, the injuries inflicted on deceased Kartar Kaur is not disputed. She was not and could not have been armed with any weapon. She did not take any part. She ever did not incite her sons to assault the accused persons. If the informant party was the aggressor, there was no reason as to why she would run towards the place where the fight was taking place, resulting in causing of injuries on the person of Partap Singh. She apparently tried to intervene seeing her sons being assaulted with sharp cutting weapons. She had been inflicted with as many as five sharp-cutting injuries, three on the leg and two on the wrist. There does not appear to be any reason as to why an aged lady was done to death. (Para 55)

       (iii) Evidence Act, 1872-Section 32-Dying Declaration-It is not essential that a dying declaration should be made only before a Magistrate-Section 32 also does not state that a dying declaration should be made only in expectation of death-Investigating Officer from the beginning intended to take statement of P - P had not been found fit to make such statement-Only on fifth day statement of P could be recorded- P died after a period of one week-Whether statement of P could be treated to be a dying declaration-(Yes). (Paras 35 to 41)