K. Jayachandra Reddy, J.
1. Criminal Appeals Nos. 525-26 of 1983 are taken on board as they are connected matters. Criminal Appeal No. 450/82 is filed by one Kulwant Singh who was found guilty by the High Court under Section 304, Part I, I.P.C. and sentenced to undergo 10 years' R.I. Criminal Appeals Nos. 525-26/83 are filed by one Jasbir Singh, the complainant in the case.
Criminal Appeal No. 450/82:
2. The appellant in this appeal along with six others was tried for offences punishable under Sections 148, 302, 307 read with Section 149, I.P.C. and Section 27 of the Arms Act. The trial Court acquitted Gurdial Singh (A-2), Bal-winder Singh son of Deva Singh (A-3), Balwinder Singh son of Hans Singh (A-7) and convicted the remaining four. All the convicted four persons preferred an appeal to the High Court. The High Court convicted Kulwant Singh under Section 304, Part I, I.P.C. as stated above and acquitted the other three. Kulwant Singh has preferred this Criminal Appeal No. 450/ 82. Questioning the acquittal of Kulwant Singh of the murder charge and complete acquittal of the other three namely A-4, A-5 and A-6 the complainant Jasbir Singh has filed Crl. A. Nos. 525-26 of 1993.
3. The prosecution case is as follows:
The accused, the deceased Arjan Singh and the material witnesses, some of them who are injured, belong to village Fathudhinga in Kapurthala District. One Fauja Singh was killed in his in-law's village Rodewala in Patiala district in the year 1966 and three of the persons belonging to that village were prosecuted and they all were convicted on the basis of the evidence of Amar Singh, P.W. 12 in the present case. The daughter of P.W. 12 was married to P.W. 10 an advocate at Kapurthala. One Sucha Singh P.W. 11 (sic) came on long leave on 9-5-1981. He and his brother Arjan Singh, the deceased and the former's son Sukhdev Singh P.W. 13 went to meet Amar Singh P.W. 12 on 10-5-1981 at about 8.00 p.m. At that time P.W. 10 also came there. All five of them started for their farm-house to have dinner and they were intercepted on the way by the seven accused near the house of Kulwant Singh. All the seven accused were differently armed. Kulwant Singh, the appellant was having his licenced 12 bore gun with him and the others-were armed with lathis and gandasas. Kulwant Singh gave a lalkara. Then there was a clash during which the PWs received injuries. Then Makhan Singh A-5 exhorted Kulwant Singh to shoot. Accordingly Kulwant Singh opened fire and Sukhdev Singh received injury on his chest. When Sucha Singh P.W. 11 intervened, he was beaten with gandasa and Gurdial Singh A-2 gave a blow on the head of P.W. 11. A-7 is also alleged to have given a blow with a gandasa from its blunt side. When the deceased Arjan Singh tried to intervene, he was hit in his chest by a shot fired by Kulwant Singh and he fell down and died. Kulwant Singh fired one more shot. Thereafter all the accused lifted the body of the deceased to the house of Kulwant Singh. The injured, P.W. 11, P.W. 12 and P.W. 13 were carried in a tractor to Civil Hospital at Kapurthala. Jagdish Singh who is the driver of Jasbir Singh P.W. 10 went to police station on his scooter at mid-night and gave a report to the ASI P.W. 16 who reached the spot and held the inquest on the dead body of Arjan Singh which was laid inside the house of Kulwant Singh and despatched the dead body for post-mortem. He proceeded with the investigation and got the injured witnesses examined and arrested the accused. The doctor, who conducted the post-mortem on the body of the deceased Arjan Singh, found several lacerated wounds and he opined that the first eight injuries out of the ten were caused by fire-arm and the rest by a blunt weapon. He also extracted about 20 pellets from the body of the deceased. He opined that the death was due to shock and haemorrhage caused by multiple injuries. He also examined Sukhdev Singh (P.W. 11), Sucha Singh (P.W. 12) and Amar Singh (P.W. 13) (sic) and found several lacerated wounds and contusions on their persons and opined that these injuries could have been caused by a blunt weapon. Some recoveries were effected at the instance of some of the accused and after completion of the investigation, charge-sheet was laid. The four of the accused, namely, A-l, A-4, A-5 and A-6 had some contusions which were found to be simple. The prosecution mainly relied on the evidence of the injured witnesses. When examined under Section 313, Cr.P.C. the accused pleaded not guilty. Kulwant Singh A1, however, gave a statement to the effect that on the day of occurrence the PWs and the deceased attacked Makhan Singh A5 in front of his house and on this, he, A4 and A6 went for his rescue and there they were injured by the PWs and the deceased, and that he and others inflicted injuries on them in exercise of their right of private defence. After inflicting injuries on them, the four accused went back to the house of Kulwant Singh, but they were followed by the injured witnesses and the deceased Arjan Singh throwing a challenge to kill them and it was then the appellant Kulwant Singh made use of his licenced gun and fired shots by which the deceased Arjan Singh and Sukhdev Singh P.W. 13 (sic) were hurt. The trial Court taking the overall picture of the case acquitted three of the accused as already mentioned. The High Court taking the defence plea set up by Kulwant Singh into consideration and also having regard to the fact that some injuries were found on the four of the accused, observed that the prosecution has not come out with the whole truth and in that view of the matter acquitted the other three accused, but coming to the case of Kulwant Singh, the High Court taking into consideration his admission as well as the other surrounding circumstances, held that the offence committed by him would be one punishable under Section 304, Part I, I.P.C. and sentenced him to 10 years' R.I. as already stated.
4. Mr. Lalit, learned senior counsel appearing for the appellant Kulwant Singh' in Crl. A. No. 450/ 82 submitted that the specific plea for right of self-defence has been set up by the appellant and the prosecution has not come out with the true version as to the genesis of the occurrence and the way the dead body was found in his house would go to show that the appellant had the right of self-defence. Therefore, under those circumstances, the appellant had rightly exercised his right of self-defence because he had reasonable apprehension that grievous hurt or death could be caused to him. Consequently he has not exceeded the right of private defence and he ought to have been acquitted. The learned Counsel appearing for the State submits that the injuries that were found on four of the accused were all simple and superficial and from the case, it is clear that they received those injuries earlier and even if assuming that the deceased and the three witnesses had just gone to the house of the appellant he had no right to shoot at them because he could not have had a reasonable apprehension that the deceased and three injured witnesses could have caused grievous hurt or death in any manner.
5. Having given our earnest consideration to these submissions and having considered the evidence and the injuries found on the deceased and the three injured witnesses and also the accused, we agree with the High Court that the appellant had a right to exercise of right of self-defence. But the circumstances would go to show that he had exceeded the same. The circumstances do not indicate that there was a reasonable apprehension that the complainant party would cause death or grievous injuries. In appreciating the right of self-defence in the given situation the Court has to take several circumstances into consideration. A mere apprehension is not enough, it should be a reasonable apprehension and to attract the general exception there should be material to show that death or grievous hurt could otherwise have been the result: we are of the view that there is no such apprehension in this case, as to cause the death of the deceased and causing injuries to another person by firing two shots. Therefore, he has been rightly convicted under Section 304, Part I, I.P.C. Now coming to the sentence, the occurrence is said to have been taken place on 10-5-1981 and further the shooting took place because of a clash, as it has been put forward by the prosecution. Therefore, the ends of justice would be met if the sentence is reduced to 7 years' R.I. Subject to this modification of sentence the appeal is dismissed. The appellant is on bail. He shall surrender and serve out the sentence.
Crl. A. Nos. 525-26/1983:
6. These appeals as mentioned above are filed by the complainant against the acquittal. The learned senior counsel submits that on the findings of the trial Court as well as that of the High Court Kulwant Singh ought to have been convicted for the offence of murder and acquittal of three other accused/respondents is wrong. For the reasons recorded in the judgment in Crl. A. No. 450/82, we do not think, we should consider this submission for the same reasons. We are satisfied that the High Court has given good reasons for acquitting the other three accused and convicting Kulwant Singh under Section 304, Part I, I.P.C. We see no grounds to interfere. Consequently the appeals are dismissed.