SURESH SINGH AND ORS.versusSTATE OF HARYANA

A                           SURESH SINGH AND ORS.
                                      v.
                              STATE OF HARYANA
                                                                                       -
                                 MARCH 31, 1999

B                  [G.B. PATTANAIK AND M.B. SHAH, JJ.]


        Criminal Law-Right of Private Defence-Indian Penal Code Ss. 97,
  99, 302, 304 P,art I-Accused chased by deceased-Deceased done to death
  11 Om away from his house with sharp weapons r~sulting in five incised
C wounds-Held, accused exceeded their right of private defence; acquitted
  of charge of murder but convicted for culpable homicide not amounting to
  murder.

           Ten persons including the three appellants, (SS, MS and CP) were
    charged and tried for the offences of forming an unlawful assembly and
D   committing the murder of the deceased and injuring three others. The
    sessions Judge acquitted four of the accused persons. Of the remaining six
    persons, three more were acquitted by the High Court on appeal.
    However, the appellants SS and MS were convicted under s. 302 and sentenced
    to life imprisonment. Appellant CP was convicted under s. 304 Part I and
E   sentenced to 10 years RI.

          The appellants contended that seven out of ten of the accused having
    been acquitted, it would be unsafe to convict'the remaining three on the
    evidence of the witnesses, although injured. Further, since the High Court
    had found that one of the accused, R, who gave a lalkara, was being chased
F   by the deceased and at that point of time the three accused SS, MS and CP
    gave blows to the deceased, they would be entitled to plead the right of private
    defence.

          Partly allowing the appeal, this Court

G        HELD : The accused persons exceeded their right of private defence
    while giving blows on the deceased. However, in the circumstances, the
    conviction of SS and MS under s. 302 could not be sustained. They could be
    convicted under s. 304 Part I. The conviction ofCP is maintained and all the
    appellants are sentenced to seven years R.I. (295-F-G]

H         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
           .                              290
        SURESH SINGHv. STATEOFHARYANA [PATTANAIK, J.]                     291
336-37of1993.                                                                     A
     From the Judgment and Order dated S.11.92 of the Punjab & Haryana
High Court in Crl.A. Nos.137-DB and 144-DB of 1991.

      U.R. Lalit, Ms. Kanwaljit Kochhar and J.D. Jain for the Appellants.
                                                                                  B
      Prem Malhotra for the Respondent.

     The Judgment of the Court was delivered by

      PATTANAIK, J. The appellants Suresh Singh and Mohinder Singh have
been convicted under Section 302 IPC and have been sentenced to undergo           C
life imprisonment whereas the appellant Chander Pal has been convicted
under Section 304 Part I IPC and has been sentenced to undergo rigorous
imprisonment for 10 years by the High Court of Punjab & Haryana. These
three appellants and seven others were tried by the learned Additional Sessions
Judge, Rewari for offences under Sections 148/149/324/325/302/307 IPC,            D
for havjng formed an unlawful assembly and committing murder of Mahipal
as weltas having injured Chand Ram, Chander Deep and Rajbir, when they
came to rescue Mahipal. Learned Sessions Judge acquitted four of the accused
persons of all the charges after screening the prosecution evidence on a
finding that those accused persons were not present at the spot but they were
named later on to implicate as many persons as possible from the side of the      E
accused. The Sessions Judge also acquitted rest of the six accused persons
of the charge under Section 307 read with Section 149 IPC, but convicted
them under Sections 148/302/323/324/325 read with Section 149 IPC. The
convicted accused persons preferred an appeal to the High court and the
High Court by the impugned judgment acquitted three more accused persons
of all the charges levelled against them an4 acquitted the present three          F
appellants of rest of the charges and convicted only under Section 302 and
304 Part I IPC, as already stated and hence the present appeal.

      The prosecution case as unfolded in the first information report given
by PWS is that while deceased Mahipal was sitting on a cot in front of hi!. G
house on 13.9.89 at 5.30 P.M., all the accused persons armed with different
deadly weapons arrived there and accused Rameshwar having given a lalkara
that Mahipal should not be allowed to go, they gave different blows on
different parts of the body of Mahipal. Hearing the cries of Mahipal, when
his brothers Chand Ram, Chander Deep and Rajbir rushed to the spot, they
were also attacked and thereafter the accused persons left the scene of H
    292                    SUPREME COURT REPORTS                  (1998] 2 S.C.R.

A occurrence when the villagers had been collected at the spot. According to
  prosecution version the motive behind the occurrence was that Rameshwar
  was the Sarpanch of the village and on account of instigation from Mahipal
  when several members of the Punchayat did not atten~ the meeting, no
  meeting could be held on account of lack of quorum and it is on this score
  that Rameshwar and his people had a grudge against Mahipal and they avenged
B of the same by assaulting him on the fateful day. On the basis of the aforesaid
  report of PWS, the investigation proceeded and ultimately charge-sheet was
  subinitted and the accused persons stood their trial. The deceased Mahipal
  had sustained as many as 8 injuries on his person and the doctor PWl 7 who
  conducted autopsy over the dead body opined that the death was due to shock
C and haemorrhage due to the injuries which were ante-mortem in nature and
  were sufficient to cause death in the ordinary course of nature. This conclusion
  of the learned Sessions Judge based on the evidence of PWl 7 has not been
  assailed in any form. The defence put forth by the accused persons was a
  denial of prosecution allegation. The accused persons had taken the plea that
  it is Mahipal, Chand Ram, Chander Deep and Rajbir who were armed with
D lathi and sharp edged weapons and caused injuries to accused Chander Pal,
  Mohinder Singh and Parbati, who in self defence of their person have caused
  the injuries on Mahipal, Chander Deep, Chand Ram and Rajbir. The learned
  Sessions Judge came to the conclusion that accused Balbir, Ram Kishan and
  Ram Sarup were not present at the spot and they were named later on to
E falsely implicate them from the side of the accused. He also came to the
  conclusion that accused Ram Sarup an aged man of 90 years, hardly steady
  on his legs cannot be believed to have given jelly blow on Mahipal and,
  therefore, serious doubts exist on his presence at the time of occurrence
  and as such acquitted them of all the offences charged with. But
  notwithstanding the fact that the eye witnesses PWs 5, 6 and 7 had made
F improvement to their statements made before the Police under Section 161
  Cr.P.C., the learned Judge was of the opinion that such improvements do not
  go to the root of the prosecution story and as such are of :very minor nature·
  and consequently, the witnesses can be relied upon so' far as they deposed
  about the role played by the rest six accused persons. With these conclusions
G and having considered the evidence of the three eye witnesses and the role
  ascribed by them to the six accused persons, the six accused persons were
  convicted by him for the offences as already indicated.

         The High Court in appeal, re-appreciated the entire evidence on record
    and came to the conclusion that the motive alleged by the prosecution that
H   Sarpanch Rameshwar had a grudge against Mahipal, as he was the instrumental
         SURESH SINGHv.STATE.OF HARYANA [PATTANAIK, J.]                    293
  in not getting the quorum in the meeting of the Panchayat has not been           A
  established by the prosecution and on the other hand the defence version
  as given by the accused Chander Pal in his report to the Police at 7.30 P.M.,
  hardly two hours after the occurrence appears to be more probable and
  consequently the entire episode took place on account of annoyance created
  by Mahipal in indulging in abusing under the influence of liquor. Disagreeing    B
  with the learned Sessions Judge, the High Court came to the further
  conclusion that it was the bounden duty of the prosecution witnesses to
  explain the injury on the person of the accused. The High Court also was of
. the opinion that the occurrence did not take place in front of the house of
  Mahi pal as alleged by the prosecution but at a distance of 110 feet from the
  said place when the deceased had given a chase to accused Rameshwar. But         C
  the High Court further cam~ to the conclusion that even if accused Rameshwar
  was being chased by Mahipal and it is that point of time he inflicted the
  blows on the deceased, but they cannot claim a right of private defence of
  persons and exception 4 to Section 300 IPC applies, which is apparent from
  the nature of the injuries on the deceased. The High Court on an analysis of
  the evidence also was· of the view that in view of the sudden fight, the         D
  provisions of Sections 148/149 or Section 34 IPC could not be attracted.
  Besides the conviction of all accused under Sections 323, 324 and 325 read
  with Section 149 is not sustainable as the element of voluntariness is lost
  in case of sudden fight. Therefore, the High Court acquitted three of the
  accused persons and convicted the three appellants of the charge under Section   E
  302 IPC so far as appellant Suresh and Mohinder are concerned and convicted
  the appellant Chander. Pal under Section 304 Part I IPC.

      Mr. U.R. Lalit, the learned Senior Counsel, appearing for the appellants
contended before us that on the basis of the evidence of the eye witnesses,
major part of the prosecution case having been disbelieved, both with regard       F
to the motive as well as the sequence of event as unfolded through the
witnesses and seven out of 10 accused persons having been acquitted, it
would be unsafe to convict the three appellants on their evidence. Mr. Lalit
further contended that in view of the finding of the High Court that it is the
accused Rameshwar, who was being chased by the deceased Mahipal and at             G
that point of time the three appellants had inflicted the blows on the deceased,
the conclusion that the right of private defence will not be available is
erroneous. More so when each of the appellants have been stated to have
given one blow each on the deceased, Mr. Lalit also contended that,even if
the court comes to a conclusion that the accused appellants exceeded their
right of private defence by giving the blows on the deceased but taking into       H
    294                      SUPREME COURT REPORTS                   [1998] 2 S.C.R.,

A account. the sequence of events as accepted by the High Court and taking              -.
    into account the. number of blows alleged to have been given by the appellants,
    the conviction can only be under Section 304 Part I, IPC and for such
    conviction, sentence should not be more than seven ye~rs in any event.

           Mr. Prem Malhotra, learned counsel appearing for the respondent on
B   the other hand contended that it is no doubt true that six of the accused
    persons have been acquitted by now but their acquittal is on account of
    benefit of doubt having been given and the testimony of the eye witnesses
    cannot be totally ignored on that score, particularly when the witnesses
    themselves are injured. According to Mr. Malhotra, the injuries on the accused
C   persons are such that even if the prosecution has offered no explanation for
    the same, the prosecution case will not fall on that score. Mr. Malhotra
    further submitted that in view of the positive roie ascribed to these appellants,
    the High Court was fully justified in convicting them of the charges under
    Section 302 so far as the first two appellants are concerned and Section 304
    Part J, so far as the third appellant is concerned and there is no infirmity in
D   the same.

          Having considered the rival submissions at the bar and having
  scrutinised the impugned Judgment of the High Court and the findings
  recorded thereon, there is ample force in the submission of Mr. Lalit,
  appearing for the appellants. It was possible for the prosecution to argue that
E the conviction can be sustained on the evidence which have not been relied
  upon by the High Court but such a step has not been taken a~d Mr. Malhotra
  has not advanced any argument on that score. But at the same time, we
  cannot lose sight of the fact that some of the findings arrived at by the High
  Court on the face of it, is wh'olly unsustainable. But we are not examining
F the same in depth as there has been no appeal against the acquittal recorded
  by the High Court even as against the appellants of all other charges. This
  being the position, we have ourselves examined the evidence of the eye
  witnesses to find out whether the role ascribed by them to these three
  appellants of having given blows on the deceased can at all be accepted or
G the entire evidence has to. be discarded as contended by Mr. Lalit. Having
  scrutinised the same with utmost care and bearing in mind the medical evidence
  as unfolded through the doctor who has conducted the post-mortem
  examination on the dead body of the deceased Mahipal, which in our view
  corri,borates the ocular statements of the three eye witnesses, we are unable
  to persuade ourselves to agree with the submission of Mr. Lalit that the
H entire evidence should be discarded notwithstanding the fact that the role
                SURESH SINGH v.STATEOF HARYANA [PATTANAIK, J.]                     295

       ascribed as against other accused persons have not believed and seven A
       accused persons have been acquitted and even the motive alleged by them
       has not been believed. In our considered opinion, therefore, the ocular
       statement of the eye witnesses ascribing a particular role to the appellants in
       the matter of giving blows on the deceased by different weapons can be
       accepted and we find no infirmity in the impugned Judgment of the High
       Court in accepting the same. The question, further remains for consideration B
       is whether the accused can claim a right of private defence of person when
       their case has been believed by the High Court that while Rameshwar was
       being chased by Mahipal, the appellants who happened to be related to
       Rameshwar, came to the spot on hearing the Hullah, gave the three blows in
       question. In appreciating this contention one thing must be borne in mind . C
       that the theory of chasing may not-have much significance in view of the
       distance between the house of Mahipal and the accused persons, which is
       hardly 56 paces, but all the same the positive finding of the High Court that
       the occurrence did not take place in front of the house of Mahi pal as alleged
       by the prosecution witnesses cannot be lost sight of. As has been stated
       earlier, the injuries found on the person of the accused persons were not that D
       serious though the injury on _Mohinder was an incised wound and could not
       have been lost sight of by the prosecution witnesses. However for non
       explanation of such injuries on accused persons the entire prosecution case
       cannot be thrown out.
                                                                                          E
               The deceased, on the other hand had five incised wounds on his person
        on the front to parietal, temporal and tempro occipital region of the skull
        and two abrasions and a bruise. Even if we accept the finding of the High
        Court that the accused appellants assaulted the deceased while being chased
       .by the deceased Mahipal but in consideration of the injuries on the deceased,
        the conClusion is inescapable that the accused persons exceeded their right       F
        of private defence while giving the blows on the deceased. Having taken into
        consideration of all the aforesaid circumstance~ ,and the infirmities noted
,...    earlier, we are of the opinion that the conviction of the appellants Suresh and
        Mohinder under Section 302 IPC cannot be sustained. We, accordingly, acquit
        them of the charge under Section 302 IPC and instead convict them under           G
        Section 304 Part I ,IPC. The conviction of the accused appellant Chander Pal
        under Section 304 Part I is maintained and for such conviction, we sentence
        all of them to undergo rigorous imprisonment for seven years. This appeals
        are allowed to the extent indicated above.

       S.M.                                                         Appeals allowed.      H