Sadhu Singh vs State Of Punjab

Sadhu Singh ..Appellant

versus

State of Punjab ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Punjab and Haryana High Court upholding the conviction of the appellant

for offence punishable under Section 302 of the Indian Penal Code, 1860 (in

short the `IPC') and Section 27 of the Arms Act, 1959 (in short `Arms Act'). Three persons faced trial for commission of murder of Jagdev Singh

(hereinafter referred to as the `deceased'). Sadhu Singh, Wazir Singh and

Harjinder Singh faced trial for alleged commission of offences punishable

under Sections 302, 323 read with Section 34 IPC and Section 27 of the

Arms Act. The trial Court held that the appellant was guilty of offence

punishable under Section 302 IPC while the other two were guilty of

offence punishable under Section 323 IPC. Additionally, appellant was

found guilty of offence punishable under Section 27 of the Arms Act.

3. Prosecution version in a nutshell is as follows:

On November 12, 1996 Bachittar Singh (PW-3) along with his sons

Sukhdev Singh (PW) and Jagdev Singh (hereinafter referred to as

`deceased') were returning to their village at about 9.00 p.m. on a tractor

which was being driven by Bachittar Singh while his two sons were sitting

on it and when they were about 5-7 Karams short of the house of accused

Sadhu Singh they saw the three accused standing in Sadhu Singh's

doorway. At that time Sadhu Singh was armed with a 12 bore SBBL gun

while Wazir Singh and Harjinder Singh alias Pappa were empty handed.

Wazir singh and Pappa walked upto the tractor and stopped it. Thereafter,

2 Wazir Singh raised a lalkara that Bachittar Singh and others should be

taught a lesson for cultivating the land coming in their father's share and

thereupon Sadhu Singh fired a shot at the deceased and Pappa Singh started

throwing bricks. Bachittar Singh and others raised alarm and the accused

retreated to their house. When Bachittar Singh and Sukhdev Singh came

down from the tractor they saw that Jagdev Singh had died. Bachittar Singh

left Sukhdev Singh near the dead body and drove the tractor to his house

from where he collected Baljinder Singh (brother-in-law of the deceased)

and met S.I. Satwant Singh S.H.0., Police Station, Saddar (P.W.6), near the

canal bridge within Bir Behman and narrated the occurrence to S.I. Satwant

Singh who recorded his statement Ex. P. D. This statement was sent

through Constable Chhinder Pal to Police Station Saddar for registration of

the case after recording proceedings Ex. P D/2) by M.H. C. Sikandar Singh.

The Investigator took up investigation. The doctor found various

injuries on the body of the deceased.

After completion of investigation charge sheet was filed. As the

accused persons pleaded innocence, trial was held. In order to further its

version the trial Court primarily relied on the evidence of PWs 1, 3 and 4. It

did not accept the plea of right of private defence as set up by the accused

3 persons. In appeal, the stand before the trial Court was re-iterated but the

High Court found that there was no question of exercise of right of private

defence.

4. Learned counsel for the appellant submitted that the trial Court has

relied primarily on the statement recorded under Section 313 of Code of

Criminal Procedure, 1973 (in short the `Code'). The factual scenario shows

that the complainant was returning after ploughing the land in front of the

house of the accused but correct genesis of the situation has not been

brought on record. The deceased was about to hit the accused with a spear.

The trial Court and the High Court proceeded on the basis as if the accused

had time to go into his house and on that he picked up a gun. It was

nobody's case that the accused went inside and brought a gun. The trial

Court makes out a third case. It was pointed out that the claim that the

accused persons came and attacked the deceased and PWs is not established.

In fact the trial Court and the High Court have not recorded any positive

finding regarding the deceased and the PWs travelling in a tractor as on

bullet marks were found on the tractor.

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5. Learned counsel for the respondent-State on the other hand supported

the judgment of the High Court.

6. A plea of right of private defence cannot be based on surmises and

speculation. While considering whether the right of private defence is

available to an accused, it is not relevant whether he may have a chance to

inflict severe and mortal injury on the aggressor. In order to find whether

the right of private defence is available to an accused, the entire incident

must be examined with care and viewed in its proper setting. Section 97

deals with the subject-matter of right of private defence. The plea of right

comprises the body or property (i) of the person exercising the right; or (ii)

of any other person; and the right may be exercised in the case of any

offence against the body, and in the case of offences of theft, robbery,

mischief or criminal trespass, and attempts at such offences in relation to

property. Section 99 lays down the limits of the right of private defence.

Sections 96 and 98 give a right of private defence against certain offences

and acts. The right given under Sections 96 to 98 and 100 to 106 is

controlled by Section 99. To claim a right of private defence extending to

voluntary causing of death, the accused must show that there were

circumstances giving rise to reasonable grounds for apprehending that either

death or grievous hurt would be caused to him. The burden is on the

5 accused to show that he had a right of private defence which extended to

causing of death. Sections 100 and 101, IPC define the limit and extent of

right of private defence.

7. Sections 102 and 105, IPC deal with commencement and continuance

of the right of private defence of body and property respectively. The right

commences, as soon as a reasonable apprehension of danger to the body

arises from an attempt, or threat to commit the offence, although the offence

may not have been committed but not until that there is that reasonable

apprehension. The right lasts so long as the reasonable apprehension of the

danger to the body continues. In Jai Dev v. State of Punjab (AIR 1963 SC

612), it was observed that as soon as the cause for reasonable apprehension

disappears and the threat has either been destroyed or has been put to rout,

there can be no occasion to exercise the right of private defence.

8. The above position was highlighted in Rizan and Another vs. State of

Chhattisgarh, through the Chief Secretary, Govt. of Chhattisgarh, Raipur,

Chhatttisgarh (2003 (2) SCC 661), Sucha Singh and Anr. v. State of Punjab

6 (2003 (7) SCC 643) and Bihari Rai v. State of Bihar (SLP (Crl.) No.862 of

2007 disposed of on 26th September, 2008)

9. When the factual scenario is examined it becomes crystal clear that

even if it is accepted for the sake of arguments that the accused persons

were at some point of time exercising the right of private defence it was

exceeded. That being so, the plea regarding exercise of right of private

defence cannot be sustained. However, the appropriate conviction would be

under Section 304 Part I IPC. The conviction is altered accordingly.

Custodial sentence of 10 years would meet the ends of justice.

10. The appeal is allowed to the aforesaid extent.

............................................J. (Dr. ARIJIT PASAYAT)

.............................................J. (ASOK KUMAR GANGULY) New Delhi, March 31, 2009

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