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NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal  No(s).  1817 OF 2009

MANPHOOL SINGH & ORS.                              Appellant(s)

                               VERSUS

THE STATE OF HARYANA                 Respondent(s)

WITH  

Criminal Appeal No. 332 OF 2009

THE STATE OF HARYANA                              Appellant(s)

                               VERSUS

PAWAN & ORS.                          Respondent(s)

J U D G M E N T R. BANUMATHI, J.

Criminal Appeal NO.1817 of 2009 :

(1) Being aggrieved by the conviction under Sections 302 r/w

149  I.P.C.  and  the  sentence  of  life  imprisonment,  the

appellants have preferred this appeal.

(2) During the pendency of the appeal, it is stated at the Bar

that appellants no.1-Manphool Singh (A-1), No.2-Rattan Singh

(A-2)  and  No.4-Zile  Singh  (A-6)  have  died  and  the  only

contesting appellant i.e. appellant no.3-Surender Singh (A-5)

is alive.

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(3) Summary of the case and details are briefly stated.  Case

of  the prosecution  is that  due to  previous enmity,  on 14th

March, 1994 when deceased no.1, Gopi Chand, and deceased no.2,

Mahabir, were sitting at the house of Harpal, appellants and

other co-accused (since acquitted) are alleged to have attacked

the complainant  party.  Due to the said attack Gopi Chand (D-

1) and Mahabir (D-2) died.  Accused, Surender Singh, Zile Singh

and Rattan Singh are said to have attacked Gopi Chand (D-1)

with lathis and accused-Manphool Singh fired at Mahabir (D-2)

with a gun.

(4) To bring home the guilt of the accused before the trial

court, the prosecution has examined three witnesses, namely,

Harpal (PW-9), Manphool (PW-10) and Mahendra (PW-11) who have

all stated that the accused have formed unlawful assemble on

the fateful day and that Surender Singh (A-5), Zile Singh (A-6)

and Rattan Singh (A-2) attacked Gopi Chand (D-1) with lathis

and Manphool (A-1) fired at Mahabir (D-2).  Their evidence to

some extent is also corroborated by the medical evidence. Based

on the evidence of the eye-witnesses, the recovery of weapons

and  the  medical  evidence,  the  trial  court  convicted  the

appellants under Sections 302 r/w 149 and 307 r/w 149 I.P.C.

The trial court also convicted other accused Narender (A-3),

Pawan  Kumar  (A-4)  and  Vijay  (A-7)  by  invoking  Section  149

I.P.C.  On appeal, the High Court confirmed the conviction of

the  appellants  herein  but  acquitted  the  accused,  namely,

Narender  (A-3),  Pawan  Kumar  (A-4)  and  Vijay  (A-7).   Being

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aggrieved of the acquittal of the said accused, the State has

preferred Criminal Appeal no.332 of 2009.

(5) We  have  heard  Mr.  Rishi  Malhotra,  learned  counsel

appearing for the appellants and Mr. Arun Bhardwaj, learned

Additional Advocate General appearing for the respondent-State.

The main contention urged by learned counsel for the appellants

is that the occurrence was at the night time and the evidence

of the eye-witnesses, as to overt act of each of the accused,

is not believable.  It is further submitted by learned counsel

that the defence put fourth by the accused in exercise of the

private defence by Manphool (A-1) and others in the occurrence,

was not properly appreciated by the courts below.  In this

regard, learned counsel has drawn our attention to the evidence

of Dr. P.K. Jain (PW-5), Dr. K.C. Kajal (DW-1) and Dr. P.K.

Anand (DW-2) who have issued wound certificate regarding the

injuries sustained by the appellant-Manphool (A-1).  It was

submitted that on the night of the occurrence when Manphool (A-

1) was coming home he was intercepted by the complainant party

and attacked and Manhool (A-1) has reacted in private defence

which aspect was not properly considered by the courts below.

(6) We have carefully gone through the rival submissions, the

materials on record and the impugned judgment.

(7) No doubt eye-witnesses Harpal (PW-9), Manphool (PW-10) and

Mahendra (PW-11) have stated about the occurrence and the overt

act of the accused, the only question falling for consideration

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is whether the accused-party acted in self-defence.  In his

questioning  under  Section  313  Cr.P.C.,  Manphool  (A-1)  has

stated that on the date of occurrence when he reached near the

house of Pirthi Singh at about 9 p.m., deceased-Gopi Chand (D-

1)  subjected  him  and  questioned  him  about  his  sons  and

subsequently Manphool (A-1) was given a lathi blow on his head

by Gopi Chand (D-1) along with Tara Chand and Lal Chand; and

that  Gopi  Chand  (D-1)  was  having  a  gun  at  that  point.

Appellant-Manphool has stated that having seen Gopi Chand (D-1)

armed with the gun, he has to necessarily act in self-defence

in order to protect himself.  It is pertinent to point out that

in the occurrence, appellant-Manphool has sustained as many as

ten injuries, as may be seen from the evidence of Dr. P.K. Jain

(PW-5) and Exhibit PN issued by him referring to the injuries

sustained  by  the  appellant-Manphool.   On  perusal  of  the

evidence  of  Dr.  P.K.  Jain  (PW-5),  it  is  seen  that  the

appellant-Manphool  has  sustained  six  lacerated  wounds  and;

contusion  and  abrasion  on  the  body  including  the  lacerated

wound  on  the  parietal  region  and  left  forearm  etc.  The

discrepancy  in  the  medical  evidence  has  not  been  properly

explained by the prosecution.

(8)   Seemingly  there  appears  to  be  a  contradiction  in  the

medical evidence made on the person of the deceased-Gopi Chand

who sustained the fatal injuries.  As per the evidence of Dr.

M.D.  Sharma  (PW-4)  who  issued  post-mortem  certificate,  the

deceased-Gopi Chand (D-1) had only one single injury on his

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head.  However, Dr. D.S. Dangi (PW-8) who examined the deceased

Gopi Chand (D-1) has stated that the said deceased had two

lacerated  wounds  on  the  left  side  of  the  scalp  and  six

fractured  wounds  on  his  scalp.  The  contradiction  about  the

number of injuries sustained by the deceased-Gopi Chand (D-1)

has not been explained by the prosecution.

(9) Whenever  accused-party  sustains  injuries  in  the  same

occurrence and when the injuries are grievous in nature it is

incumbent upon the prosecution to explain the injuries on the

person of the accused.  In the present case, the prosecution

has  not  chosen  to  explain  the  injuries  sustained  by  the

appellant-Manphool (A-1), meaning thereby that the real genesis

of the occurrence has not been placed before the Court.  Non-

explanation of the injuries, which are ten in number, on the

person  of  the  appellant-Manphool,  raises  a  doubt  about  the

sequence of occurrence, as projected by the prosecution.  After

having  considered  the  nature  of  injuries  sustained  by  the

appellant-Manphool  (A-1),  there  is  a  possibility  that  the

appellant-Manphool  (A-1)  has  acted  in  self-defence  and  the

defence plea cannot be rejected in toto.  It may be noted that

the appellant-Manphool (A-1) has exceeded his limit in private

defence  by  firing  at  the  deceased-Mahabir  (D-2)  and  also

causing head injuries on the person of the deceased-Gopi Chand

(D-1).  Considering  the  defence  plea  and  the  nature  of  the

injuries  sustained  by  the  appellant-Manphool  Singh  (A-1),

conviction of the appellants under Section 302 I.P.C. cannot be

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sustained.   In  our  considered  view  the  conviction  of  the

appellants has to be modified under Section 304 I.P.C.

(10) Considering the fact and circumstances of the case, and

that the accused had acted in self defence which is proved to

have exceeded, the conviction of the appellants under Section

302 I.P.C. has to be modified.  As the occurrence happened in a

free  fight  between  both  the  parties,  conviction  of  the

appellants under Section 302 I.P.C. is modified to Section 304

Part II I.P.C.

(11) It is stated that the only surviving appellant-Surender

(A-5) has already undergone imprisonment of 8-9 years.  In

these circumstances, sentence of the appellant-Surender Singh

is  reduced  to  the  period  already  undergone  by  him  however

conviction is upheld, as above.

(12) The appeal is accordingly allowed.

(13) The appellant-Surender Singh is on bail.  His bail bonds

shall stand discharged.

Criminal Appeal NO(s).332 of 2009 :

Insofar as this appeal is concerned it is preferred by the

State challenging the acquittal of Pawan Kumar (A-4), Vijay

Singh  (A-7)  and  Narender  (A-3).   Since  the  High  Court  has

acquitted them by invoking Section 149 I.P.C., we do not find

any good ground to interfere with the order of acquittal of the

respondents.

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The appeal is accordingly dismissed.

..........................J.                 (R. BANUMATHI)

..........................J.         (VINEET SARAN)

NEW DELHI, AUGUST 16, 2018.