Crl. Appeal Nos. D-783-DB of 2009 and other cases -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision :
31. 1.2014. Crl. Appeal No.D-783-DB of 2009 Surjit Singh and others ........ Appellants Versus State of Punjab .... Respondent Crl. Appeal No.D-790-DB of 2009 Kartar Singh and others ........ Appellants Versus State of Punjab .... Respondent Crl. Appeal No.D-815-DB of 2009 Gurpal Singh @ Hargopal Singh ........ Appellant Versus State of Punjab .... Respondent Crl. Appeal No.D-931-DB of 2009 Labh Singh and others ...... Appellants Versus State of Punjab .... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE KULDIP SINGH Present:- Mr. Vinod Ghai, Senior Advocate, with, Mr. Simranjeet Singh, Advocate, for the appellants, in CRA No.D-783-DB of 2009. Mr. D.S. Brar, Advocate, for the appellants, in CRA No.D-790-DB of 2009. Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -2- Mr. Manvinder Singh Sidhu, Advocate, for the appellant, in CRA Nos. D-815-DB of 2009 and D-931-DB of 2009. Mr. P.P.S. Thehti, Additional Advocate General, Punjab, for the respondent-State. Mr. T.S. Sangha, Senior Advocate, with, Mr. H.S. Sangha and Mr. Dinkar Sharma, Advocates, for the complainant. KULDIP SINGH, J.
By this single order, Crl. Appeal Nos. D-783-DB of 2009, D- 790-DB of 2009, D-815-DB of 2009 and D-931-DB of 2009 filed by accused Surjit Singh, Hardeep Singh, Sukhwinder Singh alias Sodhi, Balbir Singh, Jaswinder Singh alias Kala, Baljit Singh, Kartar Singh, Kaur Singh, Gagandeep Singh alias Babli, Gurpal Singh alias Hargopal Singh, Labh Singh, Pardeep Singh, Sukhwinder Singh son of Malagar Singh and Bachittar Singh alias Bhinder Singh will be disposed of, which are arising out of the same judgment and order dated 31.8.2009, passed by learned Additional Sessions Judge, Patiala. The prosecution case is that Sher Singh Panch, son of Sardar Pala Singh is resident of village Dugal Khurd, Police Station Patran, District Patiala. He is having 3 acres of land. Another piece of land measuring 4¾ acres on the upper side of his land is that of Bhagwan Singh son of Jagroop Singh, resident of village Burrar, which was purchased about 4 months back by Labh Singh (accused) son of Kartar Singh, resident of village Dugal Kalan. Another piece of jumla malkan land measuring 1½ acres, which was in possession of Bhagwan Singh, as per girdawari, was delivered by Bhagwan Singh to Labh Singh alongwith 4¾ acres land. About two months back, Sher Singh had got the sale deed executed from Harjeet Kaur regarding the said jumla malkan land. The Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -3- mutation was also sanctioned in favour of Sher Singh. Sher Singh had sown paddy in the said land. On 1.7.2006, Sher Singh alongwith Sarovar Singh (since deceased), Rai Singh @ Lakha son of Ram Singh, Ginder Singh Bhagat son of Jagir Singh, resident of Dugal Khurd, Bhola Singh son of Bhaja Singh, resident of Kheri, Jassi Singh son of Birbal Singh, resident of Dugal Khurd and Dial Singh son of Sadhu Singh, resident of village Dugal Khurd was working in the fields. At about 1:30 PM from the side of village Daftriwala, one tractor Sonalika being driven by Kala Singh son of Beera Singh, resident of Dugal Kalan came there. Soni Singh, brother of Kala Singh, was sitting with him on the said tractor. Behind the said tractor, 4 Sumo vehicles, in which Labh Singh son of Kartar Singh, Mangu Singh son of Labh Singh, Sita (also known as Surjit Singh) son of Kartar Singh, Hardeep Singh, Rajwinder Singh sons of Sita Singh, Balbir Singh son of Kartar Singh, Kartar Singh himself and Jelly Singh, residents of village Dugal Kalan alongwith 15/20 more persons came. Labh Singh, Sita Singh and Balbir Singh were having three rifles and remaining assailants were armed with dandas and sotas. They came there raising exhortations and forcibly started ploughing tractor in the paddy. Immediately on their arrival, the assailants fired in the air. Thereafter, all the said three persons, namely, Labh Singh, Sita Singh and Balbir Singh fired towards the complainant party. Fire hit Sarovar Singh, Rai Singh, Bhola Singh, Jassi Singh, Ginder Singh Bhagat and injured them. At that time, Sher Singh (complainant) was working in the land purchased by him from Gurdeep Singh son of Gamdoor Singh. Sher Singh claimed that all the said persons have assaulted them with intention to kill them. In the meanwhile, Randhir Singh @ Billu son of Baldev Singh, Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -4- resident of Dugal Kalan came on the bank of railway track from Patran side and raised exhortation, on which all the accused ran away with their vehicles from the spot. The motive for the crime is that there was a dispute regarding girdawari of about 1½ acres mushtarka malkan land. It was further stated that injured have been removed to Patiala. SHO, Police Station Patran, on receiving the intimation about land dispute visited the spot. DSP Patran was also called. Sher Singh Panch, Randhir Singh @ Billu and other several persons were present at the spot. Sher Singh got recorded his statement Ex.PA. The SHO made his endorsement Ex.PO/1 and sent the same to Police Station Patran for registration of the case at 3:30 PM on the same day. During the course of investigation, the statements of witnesses were recorded. Sarovar Singh succumbed to injuries at Amar Hospital, Patiala. The accused were arrested. The vehicle used in the crime was taken into possession. Accused were chargesheeted under Sections 302, 307, 148 and 149 IPC alongwith Sections 25 and 27 of the Arms Act, to which accused did not plead guilty and claimed trial. In support of its case, prosecution examined Rai Singh (PW1), HC Nishan Singh (PW2), Sher Singh, complainant (PW3), Dr. Harish Tulli, wrongly numbered as PW3 (PW4), Pawan Kumar, Clerk, office of DTO, Sangrur, wrongly numbered as PW4 (PW5), ASI Ajaib Singh, wrongly numbered as PW5 (PW6), SI Jagbir Singh, wrongly numbered as PW6 (PW7), SI Dharam Dev (PW7), C-II Ravinder Singh (PW8), Pawan Kumar, Patwari (PW10), Sanjay Goyal, Clerk, DC Office, Patiala (PW11), Dr. Parminder Singh (PW12), Ashwani Sharma, Clerk, DC Office, Patiala (PW12 wrongly numbered) and closed the evidence. Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -5- When examined under Section 313 Cr.P.C., accused pleaded that they are innocent and have been falsely involved in this case. Accused did not lead any evidence in defence. After hearing the learned prosecution, learned defence counsel and going through the evidence, the learned Additional Sessions Judge, Patiala, convicted accused Labh Singh, Surjit Singh and Balbir Singh under Section 302 IPC and sentenced them to undergo imprisonment for life and a fine of ` 2,000/- each, in default thereof, to further undergo rigorous imprisonment for one year each. Accused Kartar Singh, Pardeep Singh, Hardeep Singh, Sukhwinder Singh son of Balbir Singh, Jaswinder Singh, Bachittar Singh, Gurpal Singh, Sukhwinder Singh son of Malagar Singh, Kaur Singh, Gagandeep Singh and Baljit Singh have been convicted under Sections 302/149 IPC and sentenced them to undergo imprisonment for life and a fine of ` 2,000/- each, in default thereof, to further undergo rigorous imprisonment for one year each. Accused Labh Singh, Surjit Singh and Balbir Singh have also been convicted under Section 307 IPC and sentenced them to undergo rigorous imprisonment for seven years and a fine of ` 1,000/- each, in default thereof, to further undergo rigorous R.I. for six months each. Accused Kartar Singh, Pardeep Singh, Hardeep Singh, Sukhwinder Singh son of Balbir Singh, Jaswinder Singh, Bachittar Singh, Gurpal Singh, Sukhwinder Singh son of Malagar Singh, Kaur Singh, Gagandeep Singh and Baljit Singh have also been convicted under Sections 307/149 IPC and sentenced them to undergo R.I. for seven years and a fine of ` 1,000/- each, in default thereof, to further undergo rigorous imprisonment for six months each. All the accused have also been convicted under Section 148 IPC and sentenced them to undergo Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -6- rigorous imprisonment for three years and a fine of a fine of ` 500/- each, in default thereof, to further undergo rigorous imprisonment for three months each. Accused Labh Singh, Surjit Singh and Balbir Singh have also been convicted under Section 27 of the Arms Act and sentenced them to undergo R.I. for seven years and a fine of ` 1,000/- each, in default thereof, to further undergo rigorous imprisonment for six months each. Accused Bachittar Singh and Sukhwinder Singh son of Malagar Singh have also been convicted under Section 30 of the Arms Act and sentenced them to undergo rigorous imprisonment for six months and a fine of ` 200/- each, in default thereof, to further undergo rigorous imprisonment for 15 days each. All the sentences are ordered to run concurrently. The said judgment has been challenged by the accused through separate appeals mentioned above. We have heard learned counsel for the accused/appellants, learned Additional Advocate General for the State, learned senior counsel for the complainant and have carefully gone through the records. First of all, it is necessary to examine injuries suffered by deceased Sarovar Singh. As per statement of Dr. Parminder Singh (PW12), when the post mortem of the dead body was conducted, following injuries were detected :- 1. Rounded wound 0.4x0.4 cm was present on the left side of the chest. It was 9 cm down ward and lateral ward from left nipple. It was at the level of 5 cm below the left nipple. On dissection it was found in the left ventricle of the heart. After penetrated through chest wall, lung of left side and then pericardium and left wall of left ventricle. Pericardium was of full of blood.
2. Pallet wound 0.4. x 0.4 cm was present 5 cm below the level Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -7- of first wound and was found in the left lung, after penetrating through chest wall and left lung tissue. Left lung cavity contain 100 ml of blood.
3. Two pallets wound were present on the left side of pelvis, one at the upper end of pelvis and second 8 cm below first wound.
4. 17 pallet wound 0.4 cm x 0.4 cm were present on the whole anterior aspect of right thigh. There were corresponding holes in the clothes of the deceased. The cause of death was injuries No.1 and 2, which ruptured heart and the lung. Now, coming to the injuries of remaining injured, namely, Rai Singh, Bhola Singh and Jasbir Singh, Dr. Harish Tulli (PW3) medico legally examined the aforesaid injured persons and found the following injuries on the person of Rai Singh :- 1. About 7 pallet injuries on front of left thigh.
2. About 14 pallet injuries on front of abdomen and chest.
3. About 20 pallet injuries on left upper limb. Dr. Harish Tulli (PW3) on the same day medico legally examined injured Bhola Singh and found the following injuries on the person of Bhola Singh :- 1. 6 pallet injuries on left lower and upper arm. 5 on the back of lower arm and one on front of upper-arm.
2. 3 pallet injuries on front of left auxiliary fold.
3. 1 pallet injury on left flank 15 cm below left axilia. Dr. Harish Tulli (PW3) on the same day medico legally examined injured Jasbir Singh @ Jassi and found the following injury on the person of Jasbir Singh :- 1. About 4 pallet injuries on middle and outer aspect of left thigh. Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -8- Now in the light of these injuries, the statements of witnesses are to be examined. In order to prove its case, the prosecution has examined only injured Rai Singh (PW1) as well as complainant Sher Singh (PW3). The first information by Sher Singh (Ex.PA) shows that Sher Singh named following persons in the crime :- Jaswinder Singh @ Kala Singh, Soni Singh son of Balbir Singh (Sukhwinder Singh), Mangu son of Labh Singh (Pardeep Singh), Sita Singh (Surjit Singh) son of Kartar Singh , Hardeep Singh, Rajwinder Singh sons of Sita Singh (Surjit Singh), Balbir Singh son of Kartar Singh, Kartar Singh himself and Jelli son of Teja Singh alongwith 15/20 unknown persons. They were having three rifles. The allegations against the accused were that all the three persons having rifles first fired in the air and thereafter, they fired on the complainant party. Complainant party was consisted of Sher Singh (complainant), Sarovar Singh, Rai Singh, Bhola Singh, Jassi Singh and Ginder Singh Bhagat i.e. 6 persons. The complainant party is not alleged to be armed with weapons. While appearing in the Court, Sher Singh (complainant) stated that on 1.7.2006 at about 1:30 PM from the side of village Daftariwala, accused Kala Singh came driving a Sonalika tractor. Soni Singh was sitting by his side. It was followed by 4 Sumo vehicles. Kartar Singh, Labh Singh, Mangu, Beera son of Kartar Singh, Sita son of Kartar Singh, Raju son of Sita, Hardeep son of Sita, Sukhwinder Fauji of Dayalpura, Sukhwinder of Bishanpura, brother-in-law (Sandu) of Labh Singh, Baljit of Dayalpura, brother-in-law (Sala) of Sita, Bachittar Singh of Rai Singh Wala, Gurmukh of Rai Singh Wala, Gurpal Singh of Rai Singh Wala, Kaura of Daftriwala and Babli son of Kaura of Daftriwala came there. According to Sher Singh, Labh Singh, Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -9- Sita Singh and Balbir Singh were armed with rifles. Mangu and Baljit Singh were armed with gandasas. Bachittar Singh was armed with takua, again said, Bachittar was armed with barcha. Others were armed with sticks and hockey sticks. All of them raised lalkaras. He further stated that Labh Singh fired at Sarovar Singh, hitting him on the abdomen. Beera Singh fired at Rai Singh, hitting him on the left arm, chest and abdomen. Sita Singh fired at Bhola, hitting him on the left arm and abdomen. Then, it is stated that Baljit Singh took the rifle from Sita and fired at Jassi Singh, hitting him on the left arm and thighs. Labh Singh also fired at Rai Singh, hitting him on left arm and chest. He further stated that Ginder Singh Bhagat also sustained injuries from gandasa and sticks from all the other accused. However, it is to be noted that Ginder Singh Bhagat was not medico legally examined nor he was examined in the Court. Therefore, case qua him is not proved. The other injured/eye-witness Rai Singh, while appearing as PW1, stated that accused came from the side of village Daftriwala. They were on Sonalika tractor, a Qualis vehicle, two Sumo vehicles and one Maruti car. While naming the accused, he named Kartar Singh and his sons Labh Singh, Balbir Singh and Surjit Singh alongwith Pardeep Singh @ Mangu son of Labh Singh, Hardeep Singh and Rajwinder Singh @ Raju sons of Surjit Singh, Jaswinder Singh @ Kala and Sukhwinder Soni sons of Balbir Singh. According to him, Jaswinder Singh @ Kala was driving the tractor and Soni was sitting by his side. Kaur Singh resident of village Daftriwala and Gagandeep @ Babli son of Kaur Singh, Sukhwinder Singh resident of Bishanpura, Baljit Singh resident of village Dayalpura, Sukhwinder Singh Fauji resident of Dayalpura, Bachittar Singh resident of Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -10- Rai Singh Wala, Gurpal Singh resident of village Rai Singh Wala and Gurmukh Singh resident of Rai Singh Wala had also come there. All of them came running towards their side giving them abuses. They were raising exhortations. Labh Singh, Surjit Singh and Balbir Singh were carrying 12 bore double barrel guns. Remaining accused were carrying dandas, sotas and gandasas. Rai Singh also maintained that Labh Singh fired from his gun, which hit the chest of Sarovar Singh. Balbir Singh and Surjit Singh also fired towards them. The fire hit his chest up to waist. Labh Singh again fired, which hit his left arm and left side of the waist. Some of the pallets of fire of Labh Singh also hit Jasbir Singh @ Jassi and Balbir Singh @ Bhola. Then, he further stated that Baljit Singh caught hold of gun of Surjit Singh and fired towards them, which hit all of them. Some of the assailants carrying dandas and sotas also assaulted Ginder Singh Bhagat and he received blatant injuries on the knee joint and on the ribs. He claimed that Labh Singh was carrying the gun of his brother-in- law Bachittar Singh and Surjit Singh was carrying the gun of Sukhwinder Singh. He also mentioned about the motive of the crime as stated in the complaint. Learned counsel for the accused/appellants has argued that in this case, there is delay in recording the First Information Report (in short 'FIR'). Occurrence allegedly took place on 1.7.2006 at 1:30 PM. The police reached the spot and stated to have recorded statement of Sher Singh at 3:30 PM on 1.7.2006 itself. However, the FIR was registered at 4:10 PM. Special report was received by Judicial/Duty Magistrate on the same day at 8:30 PM. It shows that the complainant got sufficient time to name some other persons, whereas there are injuries only with gun shot Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -11- and there is no other injury caused with gandasa or lathi. It has been further argued that the statement of Rai Singh (Ex.DA) was recorded on 21.7.2006 though, he was found conscious by the doctor at the time of medico legal examination. In this way, 20 days delay in recording the statement of Rai Singh gave him opportunity to target some other important persons of the accused party. In his statement for the first time, Rai Singh named Baljit Singh by alleging that he has snatched the gun from Surjit Singh and fired towards them. Other accused were stated to be giving abuses. In this way, the gun fire shots are only alleged to have been fired by the accused Surjit Singh son of Kartar Singh, Balbir Singh son of Sukhdev Singh and Labh Singh son of Kartar Singh. Qua Baljit Singh accused, there is improvement in the first version given by Sher Singh. Sher Singh has not alleged that anybody caught hold of gun of the co- assailant and gave any injury. In the first version, it is stated by Sher Singh that accused were riding on Sonalika tractor and 4 Sumo vehicles. However, Rai Singh has introduced a Qualis vehicle as well as one Maruti car. Infact, one Maruti car was also taken into possession in this case, vide recovery memo Ex.PV/3 from Rajwinder Singh @ Raju. Surprisingly, one motor-cycle allegedly used in the crime was taken into possession, vide memo Ex.PV/2 though, it is not alleged to have been used in the crime. Dangs were recovered from Labh Singh, Surjit Singh, Kartar Singh, Pardeep Singh, Hardeep Singh and Sukhwinder Singh, vide memo Ex.PT/1 though, it is alleged that Labh Singh and Surjit Singh were carrying 12 bore double barrel guns. Therefore, they could not carry dangs. Admittedly, there is some delay in recording FIR and the same reaching the Illaqa Magistrate. Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -12- Once it is found that the complainant party improved its version and the recording of statement of Rai Singh was deliberately delayed, the Court was put on its guard to scrutinize the prosecution of greater caution, so as to exclude the possibility of coloured version being put-forth and roping in of the innocent persons. When this principle is applied, it comes out that the gun shots, which caused the injuries, are attributed to Surjit Singh, Labh Singh and Balbir Singh. The role attributed to Baljit Singh is an improvement over the original version and has to be discarded. Remaining accused were stated to be carrying gandasas, sotas and lathis. However, these weapons are not alleged to have been used in the crime. In this way, the overt act attributed to the remaining accused, except Labh Singh, Surjit Singh and Balbir Singh, is suspicious. It is also doubtful whether they were present or not and if present, whether they were present as spectators or whether they actually took active part in the crime?. On account of delay, the roping in of as many as members of the opposite party also cannot be ruled out. In these circumstances, except Labh Singh, Surjit Singh and Balbir Singh, all the remaining accused, who are alleged to be present at the time of crime, namely, Hardeep Singh son of Surjit Singh, Sukhwinder Singh @ Sodhi, Jaswinder Singh @ Kala sons of Balbir Singh, Baljit Singh son of Baldev Singh, Kartar Singh son of Hazara Singh, Kaur Singh son of Ishar Singh, Gagandeep Singh @ Babli son of Kaur Singh and Pardeep Singh @ Mangu are entitled to benefit of doubt. It is proved that Sukhwinder Singh and Bachittar Singh owned the guns, which were used in the crime. The report of Forensic Science Laboratory (in short 'FSL') Ex.PGG shows that 12 bore double barrel guns Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -13- belonging to Sukhwinder Singh and Bachittar Singh bearing Nos. 26807/05 and 12678-04 were used in firing. Said accused are relations of the main accused and they belong to different villages, namely, village Bishanpura and village Rai Singh Wala. Accused Balbir Singh, Surjit Singh and Labh Singh belong to village Dugal Kalan. It follows that said Sukhwinder Singh and Bachittar Singh lent their arms to accused Surjit Singh, Balbir Singh and Labh Singh in violation of the terms and conditions of the licence, which prohibits lending of the arms. Therefore, it will follow that Sukhwinder Singh and Bachittar Singh are liable under Section 30 of the Arms Act. However, their role in the main occurrence is not proved. Therefore, they are not liable under Section 302 read with Section 149 IPC. It is to be further noted that Section 149 IPC envisages the liability of the every member of unlawful assembly, if any crime is committed by any member of the unlawful assembly. Unlawful assembly is defined in Section 149 of the Indian Penal Code, which reads as under :-
“149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”
. In the present case, no overt act to the remaining accused of the unlawful assembly is proved. Nor any object mentioned in Section 141 IPC on the part of other accused is proved. Rather, the possibility of their false implication cannot be ruled out. Therefore, as discussed above, Sharma the Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -14- remaining accused, except Labh Singh, Surjit Singh and Balbir Singh, are not liable for the occurrence regarding murder of Sarovar Singh. Learned counsel for the accused/appellants has vehemently argued that even Labh Singh, Balbir Singh and Surjit Singh are not liable for the offence and if at all, they are held liable that has to be for the reduced offence as they exceeded the right of private defence. In this regard, it has been argued that accused Labh Singh by purchasing possessory title 4¾ acres land from Bhagwan Singh also got power of attorney regarding land measuring 12 kanals 18 marlas bearing khasra No.89//1/2(4-9), 2(8-9). As the land was jumla mushtarka land, Bhagwan Singh, who was in possession of the same, transferred the possession to Labh Singh and executed power of attorney in this regard. The copy of power of attorney dated 29.6.2006 shows that Bhagwan Singh had merely given power of attorney for said 12 kanals 18 marlas land to Labh Singh to collect lease/chakota money and do some other acts. The copy of the civil suit filed by Bhagwan Singh through Labh Singh Ex.D1 shows that Bhagwan Singh through his attorney Labh Singh obtained stay order against Sher Singh and Harjeet Kaur regarding sale deed dated 30.5.2006, executed by Harjeet Kaur in favour of Sher Singh (complainant). The Court, vide order dated 30.6.2006, restrained the defendants from interfering or taking forcible possession of the suit land till 10.7.2006. It makes the things clear. The said deed by Harjeet Kaur in favour of Sher Singh (complainant) was earlier in date and power of attorney obtained by Labh Singh accused was of subsequent date i.e. 29.6.2006. Immediately, after obtaining the stay order on 30.6.2006, Labh Singh apparently tried to assert his right over the said land. The land was admittedly jumla Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -15- mushtarka land and Labh Singh was asserting his right over the same. The copies of jamabandi Ex.PDD and Ex.PDD/1 show that for the year 2005- 06, it was recorded in possession of Bhagwan Singh, but after the occurrence, the Khasra Girdawari was changed in favour of Sher Singh, vide rapot No.491/14.8.2006. The said change is to be ignored. However, the site plan prepared by the Patwari makes the things very clear. The site plan Ex.PAA shows that occurrence took place in land bearing khasra No.89/9 and not in khasra No.89//1/2 and 2, which was bone of contention between the parties. The said disputed land is just adjoining khasra No.9. It is also established law that right of private defence is the defence to protect some right and cannot be used as offence to get illegal gain. The site plan makes it clear that Labh Singh, Surjit Singh and Balbir Singh carrying 12 bore double barrel guns and accompanied by some other persons assaulted Sher Singh and his party members when they were working in their fields and were unarmed. They first fired in the air and then fired straight towards the complainant party, resulting in death of Sarovar Singh and injuries to three others. It goes to show that it was out and out aggression by Labh Singh, Surjit Singh and Balbir Singh with their double barrel guns, two of which were borrowed from their relations, namely, Sukhwinder Singh and Bachittar Singh, who belong to different villages. In this way, they came well prepared with the borrowed guns to shoot anybody coming in the way to secure the possession of the said jumla mushtarka land. The complainant was assaulted, though he was not present in the said jumla mushtarka land bearing khasra No.89//1/2 and 2. In view of the foregoing discussion, we are of the view that Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -16- accused Labh Singh, Balbir Singh and Surjit Singh did not act in self- defence, rather they were aggressors. They borrowed two of the double barrel guns from their relations, namely, Sukhwinder Singh and Bachittar Singh, belonging to different villages and caused the death of Sarovar Singh and injuries to Rai Singh, Bhola and Jasbir Singh with their double barrel guns. The FSL report and the report of the doctor confirmed the injuries with the shots fired from said 12 bore double barrel guns. Therefore, from the foregoing discussion, we come to the conclusion that accused Surjit Singh, Balbir Singh and Labh Singh committed the offence under Section 302 IPC as well as under Section 307 IPC. They also committed offence under Section 27 of the Arms Act. Accordingly, the conviction and sentence of accused Surjit Singh, Balbir Singh and Labh Singh under Sections 302, 307 IPC and 27 of the Arms Act is maintained. The remaining accused, namely, Hardeep Singh son of Surjit Singh, Sukhwinder Singh @ Sodhi, Jaswinder Singh @ Kala sons of Balbir Singh, Baljit Singh son of Baldev Singh, Kartar Singh son of Hazara Singh, Kaur Singh son of Isher Singh, Gagandeep Singh @ Babli son of Kaur Singh, Pardeep Singh @ Gangu, Sukhwinder Singh son of Malagar Singh, Gurpal Singh @ Hargopal Singh son of Bant Singh and Bachittar Singh @ Bhinder son of Gurdev Singh are acquitted of the offence under Sections 302 read with Section 149 and 307 read with Section 149, 148 IPC by giving them benefit of doubt. The conviction of Sukhwinder Singh son of Malagar Singh and Bachittar Singh @ Bhinder son of Gurdev Singh under Section 30 of the Arms Act is maintained. In this way, Crl. Appeal Nos. D-783-DB of 2009 and D-931-DB of 2009 are partly allowed, whereas Crl. Appeal Nos. D-790-DB of 2009 and D-815- Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal Nos. D-783-DB of 2009 and other cases -17- DB of 2009 are allowed. Accused Surjit Singh and Balbir Singh are stated to be on bail. They be arrested and sent to jail to undergo remaining part of the sentence. (SATISH KUMAR MITTAL) (KULDIP SINGH) JUDGE JUDGE311.2014 sjks Whether referred to the Reporter or not ?. : Yes / No Sharma Sanjiv Kumar 2014.02.20 16:48 I attest to the accuracy and integrity of this document Chandigarh