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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1475      OF     2010   

Avtar Singh ….Appellant

VERSUS

State of Haryana                …Respondent

WITH

CRIMINAL     APPEAL     NO.     1476      OF     2010   

Kirpal Singh @ Pala & Ors. ….Appellant

VERSUS

State of Haryana & Ors.                …Respondent

J     U     D     G     M     E     N     T   

Fakkir Mohamed Ibrahim Kalifulla, J.

1. These two appeals arise out of the common judgment dated  

27.03.2009 passed in Criminal Appeal No.916-DB/2006 of  

the High Court of Punjab & Haryana at Chandigarh.  The  

second accused is the appellant in Criminal Appeal  

No.1475/2010.  Accused Nos. 4 to 9 are the appellants in  

Criminal Appeal No.1476 of 2010.  

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2. According to the case of prosecution, there was a civil suit  

pending as between Hansa Singh (PW-11) and Surjit Singh  

S/o Kundan Singh (DW-2) at Samana (Punjab), that there  

was also an interim order granted by the Civil Court in  

favour of Hansa Singh (PW-11) as against Surjit Singh,  

that after hearing was over on 09.04.2003 in the Civil  

Court, the complainant party returned back home and  

were present at the house of PW-10 Harmesh Singh s/o  

Amarjit Singh in the evening.  At that time, one Desa  

Singh, uncle of Harmesh Singh (PW-10) came and informed  

that some persons had gathered near the land with  

reference to which the litigation was pending in the Court  

at Samana and that they might harvest the crops  

belonging to Hansa Singh (PW-11).  On hearing the said  

information, Harmesh Singh (PW-10) along with his father  

the deceased Amarjit Singh, his uncle Hansa Singh, Ujagar  

Singh s/o Chuman Singh, Paramjit Singh s/o Surjit Singh,  

Karnail Singh s/o Phuman Singh, Surjit Singh s/o Atma  

Singh, Darshan Singh s/o Surjeet Singh, Teja Singh s/o  

Karta Singh, Ranjit Singh s/o Phuman Singh all residents  

of Bhatian village proceeded towards the field of Hansa  

Singh at about 7.30 p.m., that when they reached the  

bandh of Bhatian Dam near the lands of Darshan Singh,  

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the accused, namely, Kirpal Singh, Raminder Singh s/o  

Arjun Singh, Mitt Singh, Resham Singh with swords in  

their hands, Balbir Singh, Jagtar Singh, Fateh Singh  

armed with gandasis, Raghbir Singh, Avtar Singh armed  

with barchhis all residents of Dera Amritsaria, Shiv Majra  

and Kulwant Singh s/o Surjit Singh also with a sword  

rushed towards them raising a lalkara, that Kirpal Singh  

gave a sword blow upon the head of Amarjit Singh, father  

of Harmesh Singh (PW-10) while Raminder Singh gave a  

blow of sword on the left arm of the deceased Amarjit Singh  

and Kulwant Singh attacked the deceased on his feet and  

Balbir Singh,  Jagtar Singh and Fateh Singh also attacked  

the deceased with their weapons.  Raghbir Singh with his  

barchhi, Mitt Singh with his sword, Resham Singh also  

with a sword and Avtar Singh with a barchhi attacked  

Paramjit Singh, Ujagar Singh, Surjit Singh, Hansa Singh  

and Karnail Singh and inflicted injuries upon them. Due to  

the injuries the deceased Amarjit Singh fell down, that  

when the complainant went running towards the place of  

occurrence, the accused party fled away from the spot with  

their respective weapons. The deceased was stated to have  

been taken to the civil hospital where he was declared dead  

by the doctor. The other injured persons were also treated  

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at the very same hospital, and that the statement of PW-10  

was recorded at 10.35 p.m. which was forwarded to the  

police station at PHG, Guhla which came to be registered  

as FIR No. 51 dated 09.04.2003.  Thereafter PW-15 Sub-

Inspector took up the investigation, inspected the place of  

occurrence recorded the statement of witnesses, collected  

the opinion of doctors, prepared the draft sketch, collected  

blood stained earth from the place of occurrence, took  

steps for the arrest of the accused and based on the  

admissible portion of their confessional statement  

recovered the weapons and filed the final report before the  

Court. The case was committed to the Court of Sessions  

where the appellants along with three other accused came  

to be charge sheeted for the offences punishable under  

Sections 148, 302, 326, 325, 324,323 read with Section  

149 IPC.  

3. On the side of the prosecution as many as 16 witnesses  

were examined and 87 Exhibits were marked. In the 313  

questioning, the accused denied all the allegations against  

them. DWs-1 to 7 were examined on the defence side.  

Based on the evidence placed before the trial Court, all the  

accused were found guilty of the offences alleged against  

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them and they were convicted and sentenced to rigorous  

imprisonment for six months and pay a fine of Rs.1000/-  

each for the offences under Section 148 IPC and in default  

of payment of fine to undergo simple imprisonment for a  

period of two months each, life imprisonment for each for  

the offence under Section 302 IPC,  RI for three years and  

to pay fine of Rs.2000/- each and in default of payment of  

fine to undergo simple imprisonment for a period of three  

months for the offence under Section 326 IPC, rigorous  

imprisonment for a period of two years along with a fine of  

Rs.2000/- each and in default to undergo simple  

imprisonment for a period of two months each and for the  

offence under Section 325 IPC rigorous imprisonment for a  

period of one year along with a fine of Rs.2000/- each and  

in default to undergo simple imprisonment for a period of  

two months each. All the sentences were to run  

concurrently.

4. Aggrieved by the conviction and sentence imposed, all the  

appellants preferred an appeal and the High Court while  

confirming the conviction and sentence imposed on the  

appellants held that the offence alleged against Raghbir  

(A1), Mitt Singh (A-3) and Resham Singh (A-10) was  

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doubtful and on that ground acquitted them of all the  

charges levelled against them.  Being aggrieved of the  

above conviction and sentence imposed on the appellants  

and the confirmation of the same by the High Court, the  

appellants have come forward with this appeal.

5. Learned counsel at the very outset fairly submitted that  

the appellants go along with the story of the prosecution to  

considerable extent in the sense that the filing of the Civil  

Suit by PW-11 as against Surjit Singh in the Court at  

Samana was true, that it related to the lands in village  

Marori, that the suit was admittedly pending on the date of  

occurrence, namely, 09.04.2003, that on that evening the  

occurrence took place. Learned counsel also contended  

that the presence of three of the accused as well as Surjit  

Singh at the place of occurrence was true.  The said three  

accused were Kirpal Singh (A-4), Raminder Singh (A-5) and  

Kulwant Singh (A-9).  Learned counsel would, however,  

strongly urge that the prosecution tampered with the  

records inasmuch as in the complaint itself, which was  

preferred by PW-10, there was a specific reference to the  

presence of Surjit Singh, nevertheless there was no  

reference to him in the FIR and he was not charge-sheeted  

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and the injuries sustained by him were not specifically  

explained. According to the learned Senior counsel the Civil  

Suit preferred by PW-11 ended in a failure, that the name  

of Surjit Singh (DW-2) was duly recorded in the revenue  

records as owner of the lands in question and that the  

accused party were the sufferers at the hands of the  

complainant party and though a complaint was preferred  

at the instance of Surjit Singh (DW-2), the prosecution  

failed to take appropriate action in that regard.

6. According to learned Senior counsel, the accused party  

when tried to defend themselves from the attack of the  

complainant party they might have suffered the injuries  

and the prosecution failed to project the case in the proper  

direction. By referring to the non-examination of the other  

injured persons, namely, Jagtar Singh, Paramjit Singh,  

Surjit Singh and Karnail Singh, the learned senior counsel  

submitted that there was not enough evidence to support  

the case of the prosecution.  Learned senior counsel argued  

that when Harmesh Singh (PW-10) met Investigation officer  

PW-15 at the hospital at 9 p.m. when he was by the side of  

the dead body, there was no proper explanation for the  

registration of the FIR after 1 hour and 35 minutes,  

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inasmuch as, the police station is just across the hospital.  

Learned Senior counsel also contended that when there  

was no reference to the name of the accused, namely,  

Raghbir Singh (A-1), Mitt Singh (A-3) and Resham Singh  

(A-10) in the record and specific reference to Surjit Singh  

(DW-2) the inclusion of A-1, A-3 and A-10 in the FIR and  

non-arraying of DW-2 as the accused would only go to  

show that it is a clear case of tampering of the records and  

consequently the case of the prosecution should not be  

believed. Learned senior counsel ultimately submitted that  

it was a sudden fight without any pre-meditation, that in a  

group clash there were 11 persons on the side of the  

complainant party and six on the side of accused party in a  

heat of passion and as there was no cruel attack and in the  

circumstances when the above factors were proved or at  

least probabilized there is a great doubt whether Section  

149 would apply. The learned Senior counsel would  

contend that there was no pre-meditation and there was no  

motive and if at all there was any motive, it might be  

against PW-11 while the deceased Amarjit Singh was  

totally unconnected to the dispute relating to the land and  

any attack on the said deceased Amarjit was so sudden,  

there was no common object in the alleged murder of the  

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deceased Amarjit Singh. As far as the injuries caused on  

others are concerned, it was contended that those injuries  

were all minor injuries and in the circumstances, the  

conviction could at best be for an offence under Section  

304  Part I IPC as against Kirpal Singh (A-4) and under  

Section 323, IPC as against others.  Learned senior counsel  

would, therefore, contend that whatever sentence has been  

suffered by the appellants would be sufficient punishment  

and they are entitled to be released forthwith.

7. As against the above submissions learned counsel for the  

State pointed out that the names of Raghbir Singh (A-1),  

Mitt Singh (A-3), Resham Singh (A-10) do find a place in  

the record as could be seen from Page 3 Volume III, that  

rukka was written at 10.30 p.m. and FIR was registered at  

10.35 p.m. and, therefore, there was no question of false  

case or any delay in the registration of the FIR.  The  

learned counsel drew our attention to the order of the Civil  

Court extending the stay on 09.04.2003 available at pages  

207 to 213 of the original records to contend that the  

dispute with regard to the land and its right of possession  

was very much in controversy on the date of occurrence as  

between the parties and as per the version of PW-10 the  

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issue relating to the land was as between his uncle PW11  

and Surjit Singh who were fighting for the land in the Civil  

Court and the deceased Amarjit Singh being the father of  

Harmesh Singh (PW-10) was closely related to Hansa Singh  

(PW-11) and consequently he was also fully interested in  

the claim of Hansa Singh (PW-11) over the land in question  

and that the submission of the counsel for the appellant to  

the contrary cannot, therefore, be accepted.  Learned  

counsel for the State contended that immediately after the  

occurrence at 7.30 p.m. the deceased was taken to the  

hospital where he was declared dead by the doctor and the  

version found in the rukka was found in the FIR and,  

therefore, there was no question of any falsification in the  

case of the prosecution.  Learned counsel submitted that  

the case of the prosecution was supported by the injured  

eye witnesses and, therefore, it was not necessary for the  

prosecution to multiply witness when the eye witnesses  

fully supported the case of the prosecution. It was,  

therefore, contended that the non-examination of Desa  

Singh, the uncle of Harmesh Singh (PW-10) who gave the  

information that the accused party were proceeding  

towards the disputed land with an idea to harvest the  

crops never caused any dent in the case of the prosecution.  

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In other words, according to the learned counsel even in  

the absence of Desa Singh’s evidence, the case of the  

prosecution stood proved. Learned counsel further  

contended that the injuries inflicted upon the deceased as  

found proved based on the evidence of the doctor in the  

post mortem report established the intention of the  

accused to cause the death of the deceased and the  

injuries sustained by others were also severe though they  

survived the attack.  Learned counsel pointed out that  

none of the accused party sustained any injuries and,  

therefore, the theory of private defence was a futile stand.  

According to the learned counsel, the complainant party  

were unarmed while the accused were armed heavily, that  

the complainant party were not the aggressors while the  

accused party were found to be aggressors by the Courts  

below was true and in those circumstances when the plea  

of self defence failed, the charge under Sections 148 and  

149, IPC stood fully proved. He also contended that the  

very fact that the appellants were armed with deadly  

weapons and caused the death of the deceased, the offence  

under Sections 148 and 149 were made out and there was  

no requirement of pre-medication and pre-planning for the  

offence under Sections 148 and 149 to be made out. The  

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common object as made out on the spot was sufficient to  

support the conviction imposed on the appellants for the  

offence under Section 302 IPC as well as under Sections  

323, 324 and 325 read with Sections 148 and 149 IPC. The  

learned counsel, therefore, contended that no interference  

is called for.

8. Having heard learned counsel for the appellant as well as  

counsel for the State and having bestowed our serious  

consideration to the judgment impugned in these appeals,  

as well as, that of the trial Court and the material papers  

placed before us, at the outset, when we examine the whole  

edifice of the crime, we find that it related to the disputed  

land situated in village Marori (Punjab) as between Surjit  

Singh (DW-2) and Hansa Singh (PW-11). According to DW-

2 at the behest of PW-11 he purchased the property, that  

he has perfected the title over it, yet PW-11, under the  

guise of his continued right to possession was causing  

hindrance to the ownership of DW-2. As the issue was  

brewing over a considerable length of time, prior to the year  

2003, that on the fateful date it transpired that in the Civil  

Suit preferred by PW-11 in the Court of Samana, the  

interim order granted earlier in favour of PW-11 by way of  

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stay was extended by the Civil Court. As per the narration  

of events, it was disclosed that the parties returned back to  

their respective homes in the village in the evening while  

Harmesh Singh (PW-10), Hansa Singh (PW-11) and the  

deceased Amartjit Singh were discussing about the issue,  

one Desa Singh, the uncle of Harmesh Singh (PW-10)  

arrived there and gave the information that the accused  

party was proceeding towards the disputed land with the  

idea of harvesting the crops raised by Hansa Singh (PW-

11). Since there was an order of stay existing in favour of  

PW-11, it was quite apparent that the information  

furnished by Desa Singh prompted the complainant party  

to proceed towards the land in question with a view to  

protect their crops.

9. The said conduct displayed by the complainant party  

who were all related was quite natural.  Nowhere it was  

brought out in evidence that while they were proceeding  

towards the disputed land they were all armed with any  

dangerous weapons, except lathis in the hands of Teja  

Singh and Ranjit Singh as stated by PW-11 in his oral  

evidence. On the other hand, even according to Surjit  

Singh, DW-2 he along with his son Kulwant Singh and  

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other son Tarsem Singh, Amar Singh, cousin Kirpal Singh  

and other accused were going towards the said land and  

thereby admitted the factum of the correctness of the  

information alleged to have been received by the  

complainant party about their proceeding towards the land  

for harvesting the crops. He further went on to depose that  

when they had gone on Killa towards the West through the  

bandh, the complainant party pounced upon the whole lot  

of them but caused injuries only to him.  There is further  

admission to the effect that their party also caused injuries  

to the complainant party with the rider that such causing  

of injuries was by way of self defence.  He fairly admitted  

that while he received lot of injuries, the complainant party  

also received injuries.

10. A reading of the evidence of PWs-10, 11 and 13 read along  

with the version of DW-2 as regards the manner of  

infliction of injuries amply establish to a considerable  

extent the fact about the happening of the occurrence on  

the way to the disputed land in question near the bandh  

apparently referring to Bhatian bandh which has been  

specifically mentioned by the prosecution witnesses. While  

on the one hand, according to the prosecution, the  

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complainant party was proceeding towards the land with a  

view to protect the crops from being harvested by the  

accused party, as per the version of DW-2, at the point  

where both the parties met at Bhatian bandh, a clash  

occurred in which casualties were the death of the  

deceased Amarjit Singh apart from injuries sustained by  

Hansa Singh (PW-11), Jagtar Singh, Paramjit Singh Surjit  

Singh S/o Atma Ram, Karnail Singh and Harmesh Singh  

son of the deceased Amarjit Singh. The evidence of the  

doctor who attended on the injured witnesses PWs-10, 11  

and 13 as well as the other injured persons disclosed that  

everyone of them suffered cut injuries with the aid of  

dangerous weapon such as gandasa, kirpan and sword.  

This was the sum and substance of the manner in which  

the occurrence took place where Amarjit Singh was  

murdered while the other injured persons were inflicted  

with severe injuries.  In that process, none of the  

assailants suffered any injuries except DW-2 whose  

grievance was quite independent of the genesis of the crime  

alleged against the appellants.  

11. Learned counsel for the appellant in the forefront  

submitted that having regard to the specific reference made  

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in the rukka about the presence of Surjit Singh but yet not  

being made a party to the crime and non-consideration of  

the grievance of the said Surjit Singh with reference to the  

extent of injuries sustained by him which according to him  

were inflicted upon him by the complainant party, the  

prosecution case was not truthful, tampering of the whole  

case with a view to pin down the appellants and the other  

accused by fabricating the evidence. Learned counsel for  

the State in his submission, however, pointed out that  

there could not have been any false case fastened on the  

appellants inasmuch as the rukka which was prepared at  

10.30 p.m. at the hospital was received at the police station  

and thereafter the law was set in motion by registering the  

FIR without any loss of time. According to learned counsel,  

the rukka was written at 10.30 p.m. and the FIR was  

registered at 10.35 p.m. wherein the entire allegations  

brought out in the rukka were duly carried out and in the  

said circumstances, there was no basis at all for  

submission made on behalf of the appellants alleging false  

case foisted against the appellant. We find force in the said  

submission of learned counsel for the State. As far as non-

inclusion of Surjit Singh (DW-2) as an accused or as a  

witness is concerned, though in the first blush, it may  

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appear as though some deliberate attempt was made at the  

instance of the prosecution to suppress certain vital  

factors, on a close scrutiny, we find that except referring to  

the name of Surjit Singh in the rukka, there was no  

specific overt act alleged against him in regard to his  

participation in the actual crime of assault or inflicting of  

injuries or use of any weapon against either the deceased  

or any other person. Therefore, the non-inclusion of Surjit  

Singh in the array of accused by the prosecution cannot be  

taken so very seriously in order to doubt the whole genesis  

of the case alleged against the appellant and the other  

accused.

12. Learned counsel further submitted that though the  

prosecution would claim injuries on several persons of the  

complainant party, the other persons who were stated to  

have been injured or were present at the place of  

occurrence were not examined. In this context, it will be  

relevant to refer to the decision of this Court reported in  

Tej Prakash v. The State of Haryana [JT 1995 (7)  

SC 561] wherein this Court held that all the witnesses of  

the prosecution may not be called and it is sufficient if  

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witnesses who were essential to the unfolding of the  

narrative on which the prosecution is based must be called  

by the prosecution.  The legal position has been stated in  

paragraph 18 as under:

“18. In support of his contention that serious  prejudice was caused to the appellant by non- examination of Phool Singh who, had been cited by  the prosecution as one of the witness, Mr. Ganesh  relied upon Stephen Senivaratne v. The King, AIR  1936 P.C. 289, Habeeb Mohammad v. The State of  Hyderabad, 1954 (5) SCR 475 and the State of UP  and another v. Jaggo Alias Jagdish and others 1971  (2) SCC 42.  The aforesaid decisions can be of little  assistance to the appellant in the present case. What  was     held     by     the     Privy     Council     and     this     Court     was    that     witnesses     who     were     essential     to     the     unfolding     of    the     narrative     on     which     the     prosecution     is     based     must    be     called     by     the     prosecution     whether     the     effect     of    their     testimony     is     for     or     against     the     case     for     the    prosecution     and     that     failure     to     examine     such     a    witness     might     affect     a     fair     trial.     It     was     also     observed    that     all     the     witnesses     of     the     prosecution     need     not     be    called.      In     the     present     case,     the     witnesses     who     were    essential     to     the     unfolding     of     the     narrative     had     been    examined.”

(Emphasis added)

The law on this aspect can be succinctly stated to the effect  

that in order to prove the guilt of the accused, the prosecution  

should take earnest effort to place the material evidence both  

oral and documentary which satisfactorily and truthfully  

demonstrate and fully support the case of the prosecution.  

Where there were several persons stated to have witnessed the  

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incident and the prosecution examined those witnesses who  

were able to depose the nature of offence committed more  

accurately leaving no room for doubt about the involvement of  

the accused in the occurrence and the extent of their  

involvement with specific overt act and also were able to  

withstand the cross-examination by maintaining the sequence  

and the part played as originally stated, it will be wholly  

irrelevant and unnecessary to multiply the number of witnesses  

to repeat the same version.

13. As rightly pointed out by the trial Court as well as the High  

Court, if really the case sought to be pleaded at the  

instance of DW-2 as against the complainant party were  

true and he really suffered any injury at the hands of the  

complainant party, it was not known why he did not  

pursue his complaint of such a serious nature by taking  

appropriate recourse to law.  Though according to DW-2 as  

well as the doctor who is alleged to have examined him who  

was examined as DW-3, he suffered extensive injuries (viz)  

as many as five, of which one was an incised wound, we  

find considerable doubt and suspicion as regards the  

version spoken to by both the witnesses in particular about  

the nature of injuries sustained and its truthfulness. We  

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say so because admittedly while the occurrence had taken  

place on 09.04.2003 between 7 to 7.30 p.m. according to  

the doctor (viz) DW-3, DW-2 approached the hospital at  

Guhla only at 4.10 p.m. on 10.04.2003 where he stated to  

have subjected himself for medical examination. DW-3 in  

his evidence admitted that on 10.04.2003 he was posted at  

PHC, Guhla on emergency duty.  The photocopy of MLR is  

Exhibit DX along with X-ray dated 12.04.2003 by way of  

Exhibit DA and intimation alleged to have been sent to  

Guhla Police station on 10.04.2003 as Exhibit DY placed  

before the Court to support the claim of medical evidence.  

In the cross examination, DW-3 tacitly admitted that he  

had no document to show that he was on emergency duty  

at Guhla hospital on 10.04.2003. He, however, claimed  

that the assignment of duty by way of roster would be  

available in the office of SMO Guhla but no steps were  

taken at the instance of DW-2 or DW-3 to exhibit the said  

document in order to show that DW-3 was really on duty  

on 10.04.2003 at PHC Guhla which was not his regular  

place of duty as a doctor. Therefore, the cumulative  

consideration of the factum of DW-2 stated to have gone to  

the hospital only on the next day evening, namely,  

10.04.2003 at 4.10 p.m. the extent of doubt about the  

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factum of such medical examination held on the person of  

DW-2 by DW-3 rightly persuaded the Courts below not to  

give credence to the claim of DW-2 as regards the injuries  

alleged to have been sustained by him at the hand of the  

complainant party. Therefore, the submission made on  

behalf of the appellants by making reference to the said  

factor in order to doubt the case of the prosecution to hold  

that the whole case was fabricated by tempering the  

records does not appeal to this Court.

14. Once we steer clear of the said hurdle relating to the case  

projected against the appellants and the other accused and  

when we see the whole evidence read with the evidence of  

DW-2 himself, it only goes to show that the prosecution  

story as placed before the trial Court which was  

appreciated while finding the appellant guilty of the offence  

alleged against them is fully justified. In the result,  

therefore, the role played by the accused in causing the  

serious injuries on the deceased as well as on the other  

injured witnesses and other persons as found proved does  

not call for any interference.  

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15. If once that conclusion is irresistible, the only other  

question to be considered is the plea of self-defence which  

was argued on behalf of the appellant.  In this context, the  

conclusion of the trial Court in holding that it was the  

accused party who had attacked the complainant party and  

thereby the complainant party cannot be held to be  

aggressors was perfectly justified. The trial Court has also  

noted that the issue was relating to the land situated at  

place Marori. The trial Court also noted that when the two  

groups happened to clash and from among the two groups,  

the members of the group of the complainant party were  

only the sufferers inasmuch as several of them sustained  

injuries and everyone of them suffered cut injuries which  

injuries were demonstrated before the Court by the medical  

evidence in uncontroverted terms that they were caused by  

either gandasi or kirpan or sword and the injuries  

sustained by the deceased Amarjit Singh which was the  

cause for his death as opined by the medical evidence while  

at the same time none of the persons in the accused party  

sustained any injury, the ultimate conclusion of the Court  

below in holding the accused were squarely responsible  

and by calling them as the party who indulged in the  

aggression cannot be found fault with. The evidence of DW-

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2 was clear to the effect that the persons who accompanied  

him carried gandasi and sottas, that three were holding  

gandasis and three were holding sottas. He also admitted in  

categorical terms that none of the five persons who  

accompanied him received any injuries except himself.  

Therefore, even going by the version of DW-2 himself they  

were armed with dangerous weapons. Therefore, when they  

proceeded towards the disputed land with arms such as  

gandasi and kirpans it amply disclosed their mindset to  

deal with the complainant party sternly against whom they  

had a definite grudge relating to the land with reference to  

which the dispute was brewing for quite a long period of  

time prior to the date of occurrence, namely, 09.04.2003.  

More so, as established before the trial Court, the interim  

order passed against them by the Civil Court was extended  

on that very date, namely, 09.04.2003 which was a cause  

for prejudice against the complainant party.  

16. On the other hand, the very fact that there were extensive  

injuries sustained by the complainant party and the death  

of the deceased in the process of assault inflicted upon  

them only goes to show that the plea of self-defence was  

wholly a make a belief version which had no legs to stand  

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and was rightly rejected by trial Court as well as the High  

Court. We, therefore, do not find any substance in the said  

submission of the learned counsel.

17. Learned counsel was stressing to a very great extent that it  

is a case of extending self-defence and, therefore, the case  

would fall under first part of 304, that Section 149, IPC  

would not apply to any of the appellants while they may be  

liable for their individual offences.  

18. We have considered the plea of self-defence in detail and  

have found that there was no acceptable basis for the said  

claim and once the theory of self-defence stands rejected,  

we find no scope to apply the submission that the case  

would fall under Section 304 Part I and that too exclusively  

as against A-4 Kirpal Singh alone and not others. Having  

regard to our conclusion that the accused party was the  

aggressor and having regard to the possession of  

dangerous weapons it was amply demonstrated that the  

game play was preplanned to deal with the complainant  

party when they were proceeding towards the disputed  

land in question while meeting them at the bandh at  

Bhatian. The subsequent conduct of the appellants in  

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having inflicted the severe injuries and causing death of  

the deceased Amarjit Singh only go to show that it was a  

clear case of pre-meditation. The contention that it was a  

sudden fight and was without pre-meditation has,  

therefore, no basis at all. It is relevant to note that at least  

three types of dangerous weapons apart from Lathis were in  

the possession of the accused party.  The very fact that the  

death of the deceased Amarjit Singh was due to the cut  

injuries inflicted upon him and the other injuries as noted  

in the body of PWs-10, 11 and 13, as well as, other injured  

persons of the complainant party was clear proof of the fact  

that the accused party was present at the place of  

occurrence, namely, the Bhatian bandh fully prepared to  

attack the complainant party which they were able to  

successfully carry out. The admission of DW-2 that none of  

the accused party was injured also goes to show that  

everyone of the accused party was standing at the spot  

with a clear mindset to assault the members of the  

complainant party. Therefore, it is a futile attempt on the  

side of the appellants now to contend that it was a sudden  

fight without any pre-meditation. For the very same reason  

the contention that in a heat of passion in a group fight the  

injuries were inflicted cannot also be accepted. The further  

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contention that the accused party did not act in a cruel  

manner is again a fact contrary to the true state of affairs  

which prevailed at the place of occurrence. Therefore, it  

was too much for the appellants to expect and contend that  

the case would fall under Exception IV to Section 300 IPC.  

The said contention has to be stated only to be rejected.  

19. Once the claim of absence of pre-meditation is rejected,  

only other submission was that the appellants, if at all they  

were aggrieved, it was only against PW-11 Hansa Singh  

and the deceased Amarjit Singh unfortunately fell a prey in  

the process and, therefore, there was no common object  

involved in order to attract Section 149, IPC. Again this  

was a submission which was one in desperation. Even  

going by the submission of the learned counsel if the  

accused party had a motive as against Hansa Singh (PW-

11) that very fact was sufficient enough to bring the action  

of the accused party in having caused injuries on the  

witnesses and other persons as well as the cause for the  

death of the deceased Amarjit Singh to squarely rope them  

in the process of their common object. Section 149  

provides that if offence is committed by a member of an  

unlawful assembly in commission of the object of that  

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assembly then every person who at the time of committing  

of that offence is a member of that assembly would be  

guilty of that offence. In this context, it will be worthwhile  

to refer to the earliest decision on this subject reported in  

Mizaji and Anr. v. State of U.P. - AIR 1959 SC 572  

wherein this Court has held as under:-

“6. This section has been the subject matter of  interpretation in the various High Courts of India,  but every case has to be decided on its own facts.  The first part of the section means that the offence  committed in prosecution of the common object must  be one which is committed with a view to accomplish  the common object. It     is     not     necessary     that     there    should     be     preconcert     in     the     sense     of     a     meeting     of     the    members     of     the     unlawful     assembly     as     to     the     common    object;     it     is     enough     if     it     is     adopted     by     all     the     members    and     is     shared     by     all     of     them.      In     order     that     the     case    may     fall     under     the     first     part     the     offence     committed    must     be     connected     immediately     with     the     common    object     of     the     unlawful     assembly     of     which     the     accused    were     members.      Even     if     the     offence     committed     is     not    in     direct     prosecution     of     the     common     object     of     the    assembly,     it     may     yet     fall     under     Section     149     if     it     can    be     held     that     the     offence     was     such     as     the     members    knew     was     likely     to     be     committed  ………  ..  ”

(Emphasis added)

20. Therefore, applying the above said principle, it can be  

safely held that everyone of the members of the accused  

party must have been fully aware that having regard to the  

fact that dangerous weapons were in their possession, that  

they had an axe to grind against Hansa Singh (PW-11), that  

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there was every likelihood of the offence of that magnitude  

would be the ultimate outcome and the factum of such  

grave offence ultimately brought them within the four  

corners of the said Section and there was no escape from  

it. Therefore, the argument that there was no common  

object to murder Amarjit Singh also stands rejected. The  

manner of causing injury on the person of Amarjit Singh  

also goes to show that all of them were determinative of  

showing their might by ensuring that the deceased and  

other injured persons did not escape from their assault and  

the deceased ultimately succumbed to the injuries inflicted  

upon him. The assailants ensured that the deceased was  

hit on his head and every vital part of the body and the  

chopping of the torso of both the legs was only to ensure  

that there was no way to escape for the person from the  

gruesome attack. The totality of the manner in which the  

assailants acted at the place of occurrence while inflicting  

the injuries on the deceased as well as others only  

displayed their united mind and effort in the fulfillment of  

their objective at the spot and, therefore, there was no  

scope to individualize the conduct of the assailants in order  

to mitigate the gravity of the charges found proved against  

the appellants. Therefore, the submission made by learned  

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senior counsel that at best Kirpal Singh (A-4)  can alone be  

found guilty of the offence under Section 302, IPC or under  

Section 304 Part I while others may be guilty of the lesser  

offence falling under Section 323, IPC cannot be accepted.  

Having regard to the gravamen of the charges found proved  

against the appellants, we do not find any scope to bring it  

under Section 304 Part I IPC based on the submission  

made on behalf of the appellants.

21. As held by us earlier the offence found proved against the  

appellants squarely fall under Section 302, IPC and the  

punishment imposed on the appellants for the said offence  

as well as the other charges levelled against them was fully  

established, the conviction and sentence imposed on the  

appellants, therefore, do not call for any interference. The  

impugned judgment cannot be assailed, the appeals fail  

and the same are dismissed.

.......…..……….…………………………...J.             [B.S. Chauhan]

.....………….………………………………J.           [Fakkir Mohamed Ibrahim Kalifulla]

New Delhi; October 10, 2012

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