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1993 Supreme(SC) 105
SUPREME COURT OF INDIA
K. layachandra Reddy & S.P. Bharucha, JJ.
Ms. Savita Kumari- Petitioner
versus
Union of India & Anr. - Respondents
Writ Petition (Cri) No. 322 of 1988 & Review
Petition No. 134/89 in SLP (Cr) No.970/85
Decided on 4.2.1993
Counsel for this parties:
For the petitioner: U.R. Lalit, Sr. Advocate, M.L. Verma, I.B. Gaur, Savita Prabhakar, R.S. Suri, & R.K. Agnihotri.
For the Respondents: S.S. Chadha, Sr. Chadha, Sr. Advocate Ms. Indra Sawhncy, Ms. Anita Gupta and Ms. Kamini Jaiswal.
AMITA GUPTA, I.B.Gaur, Indra Sawhney, KAMINI JAISWAL, M.L.Verma, R.K.AGNIHOTRI, R.S.Suri, S.S.Chadha, Savita Prabhakar, U.R.Lalit
IMPORTANT POINT
When a plea of self defence is taken and if the Court is satisfied that it is probable and if the benefit is to be given to the accused the legality of conviction itself is involved and in a review petition such a questions can be examined the Court is satisfied.
Headnote:(i) Review against the order dismissing S.L.P. in murder appeal - Plea of left defence was raised in S.L.P. as well in the review When a plea of self defence is taken and if the Court is satisfied that it is probable and if the benefit is to be given to accused, legality of conviction itself is involved - Question of self defence is one of both law and fact - Such question can be examined in review petition if the court is satisfied. (Para 5)
(ii) Right of self defence - Plea taken by accused need not be proved beyond all reason able doubt- Court has to examine the probabilities - One of the accused was found to have received 14 contusions and one incised wound Petitioner had also one incised wound and two contusions - No plausible and acceptable explanation from prosecution for these injuries of accused - Plea of accused of self defence appeals to be probable - View of the High Court that injuries could be selfinflictedis unreasonable. Petitioner however found to have exceeded the same when he fired shot a deceased - Conviction converted to 304 Part I I.P.C. and sentence of 7 years imprisonment awarded. (Paras 3, 4 & 7)
ORDER
K. Jayachandra Reddy, J. - One Sham Lal alis Sham Sunder alongwith two others were tried for offences punishable under Sections 302, 302/ 34, and 307/34 I.P.C. and the trial court convicted all the three of them and sentenced each one of them to undergo imprisonment for life and also other terms of imprisonment and to pay some fine. The sentences were directed to run concurrently. They preferred an appeal to the High Court and the High Court agreeing with the findings of the trial Court dismisses the appeal. Questioning the same, they preferred S.L.P. (Crl.) No. 970/85 in this Court but the same was dismissed by this Court by an order dated 18.11.1985. It appears that during the pendency of the appeal before the. High Court, Sham Lal filed a petition to take action under the Punjab Borstal Act, 1926 but the same was dismissed. Against that order, it appears that a different S.L.P. was filed but that was also dismissed and we are not concerned with that at this stage. As against the order dismissing S.L.P. (Cri.) No. 970/85, Review Petition No. 134/89 was filed. Writ Petition No. 322 of 1988 was filed under Article 32 of the Constitution of India questioning the vires of the provisions of the Punjab Borstal Act on the ground that they are inconsistent with and are violative of Articles 14 and 21 of the Constitution. We will first take up Review Petition No. 134/89, filed by Sham Lal, A-2. Review Petition No. 134/89 in S.L.P. (Crl) No. 970/85
2. Sham Lal was convicted under Section 302, I.P.C. and sentenced to imprisonment for life and to pay a fine of Rs. 3,000/- in default of payment of which to under go further RI for 1-1/2 years, under Section 307, I.P.C. to undergo five years RI and a fine of Rs. 2,000/- in default of payment of which 10 undergo further R.I. for one year and also under Sections 307/34, I.P.C. to undergo three years R.I. and a fine of Rs. 10,000/ - in default of payment of which to undergo further RI for one year. These convictions and sentences are confirmed by the High Court. As against that, he alongwith other two convicted accused filed S.L.P. (Crl.) No. 970/85 which was dismissed by this Court and the present Review Petition is filed against the dismissal order in S.L.P. (Cri) No. 970/85 by Sham Lal alone. It may be mentioned here that notice has already been ordered on this review petition. From the contents of the review petition, it can be seen that the petitioner sought review not only on the ground of legality of the conviction but also on the question of sentence namely that he should have been sent to the Borstal School as he was aged only 21 years then. To appreciate these contentions we shall state a few facts, which led to the filing of this review petition as well as the writ petition.
3. The petitioner alongwith other two accused were tried for causing the death of one Kashmir Singh on 30.4.1982 and also attempting to cause the death of Balbir Singh and Bishan Singh. This occurrence took place because of a land dispute. On the day of occurrence the deceased and the two injured witnesses were returning to the village after harvesting the crop in a tractor to which a trolley was attached. The deceased was driving the tractor. Balbir Singh P.W. 7 and the Bishan Singh P.W. 8 were sitting on the mud-guard and Dalip Singh P.W. 6 was sitting in the trolley. When they reached near the Karyana Shop in the grain market they found all the accused there. Tek Chand, A-1 was carrying a double barrel gun and the petitioner Sham Lal was carrying a revolver and Tilak Raj was carrying a stick. It is alleged that Tilak Raj raised a lalkara. Thereupon, Tek Chand fired his gun causing injury to Bishan Singh P.W. 8 and the petitioner Sham Lal fired at Kashmir Singh deceased and he also caused injury to Balbir Singh P.W. 7 on the left leg. During the same occurrence Tilak Raj, A-3 also was seriously injured. People gathered there and the accused are alleged to have run away. During the post-mortem conducted
