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TMI Blog1962 (7) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... ere members of an unlawful assembly, they had another common object of committing the murders of Hukma, Jai Narain, Jai Dev, Amin Lal, Mst. Sagroli and Mst. Dil Kaur and that in pursuance of the said common object, the said persons were murdered. Dhanpat Singh killed Hukma, Sajjan Singh attacked Hukma, Yudhbir Singh shot at Amin Lal, Jai Dev shot at Mst. Sagroli and victim Jaidev, and Hari Singh shot at Jai Narain and Parbhati killed Mst. Dil Kaur. It is the murder of these six victims which gave rise to the charge against the six accused persons under s. 302/149 of the Indian. Penal Code. An assault made by the members of the said assembly on Rama Chander, Jug Lal, Mst. Chan Kaur, Sirya, Murti and Murli gave rise to a similar charge under s. 326/149. At the same trial along with these six persons, Basti Ram was tried on the charge that he had abetted the commission of the offence of murder by the members of the unlawful assembly and thus rendered himself liable to be punished under s. 302/109 of the Indian Penal Code. The case against these seven accused persons was tried by the learned Addl. Sessions Judge, Gurgaon. He held that the charges against Parbhati and Basti Ram had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other. One of the principal points which fell to be considered in the courts below was : who was in possession of the said field at the material time ? The appellants pleaded that they were in possession of the field and were cultivating the field at the time of the incident, whereas the prosecution contends that the complainants' party was in possession of the field and the appellants virtually invaded the field and caused this massacre. The prosecution case is that between 9 and 10 A.M. on the date of the offence, the appellants and, their brothers Ram Pat and Basti Ram came to the field with their tractor and started ploughing the bajra crop which had been sown by the villagers who were tenants in possession. Jug Lal, Amin Lal, Ram Chander, Sunda, Jai Dev, Hukma and others remonstrated with the appellants that the crops raised by them should not be destroyed. Dhanpat Singh who was driving the tractor was armed with pharsi while the appellants were standing armed with rifles. Yudhbir Singh had a pistol. Sajjan Singh and Parbhati had phars is and Ram Pat had a bhalla. Thus all the appellants were armed with deadly weapons and three of them had fire-arm. According to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged with abetment of the principal offences denied his presence, while the six other accused persons admitted their presence on the spot and pleaded self-defence. The prosecution sought to prove its case by leading oral evidence of the witnesses who were present at the scene and some of whom had received injuries themselves. It also relied on documentary evidence and the evidence of the Investigating Officer. Soon after the incident, First Information Report was filed by the appellant Jai Dev in which the version of the accused persons was set out and a case was made out against the villagers. In fact, it was by resson of this F.I.R. that the investigation originally commenced. Subsequently, when it was discovered that on the scene of the offence six persons on the complainants' side had been killed and six injured, information wag lodged setting out the contrary version and that led to two cross- proceedings. In one proceeding the members of the complainants party were the accused, whereas in the other proceeding the appellants and their companions were the accused persons. since the trial ended in the conviction of the appellants and their companions, the case made out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to accept the finding of the trial Court on the question of possession. In its judgment, the High Court has referred in detail to the disputes which preceded the commission of these offences in regard to the possession of the land. It appears that this land was given as a charitable gift by the proprietary body. 'of the village Ahrod to one Baba Kanhar Dass many, years ago. Thereafter, it continued in the cultivation of Amin Lal, Jug Lal, Charanji Lal and Duli Chand as tenants. Kanhar Dass subsequently sold the entire piece of land to the appellants and their brothers Basti Ram and Ram Pat on May 30, 1958, for a sum of ₹ 25,000/-. These purchasers belonged to the village Kulana and so, the villagers of Ahrod treated them as strangers and they were annoyed that the land which had been gifted by the villagers to Kanbar Dass by way of a charitable gift had been sold by him to strangers. In their resentment, the proprietary body of Ahrod filed a declaratory suit challenging the sale-deed soon after the sale-deed was executed. When that sent failed, two pre- emption suits were filed but they were also dismissed. The appellants and their two brothers then filed a suit for pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jai Dev and Hari Singh, the High Court has held that at the time when these two appellants caused the deaths of Jai Dev and Jai Narain respectively, there was no apprehension of any danger at all. As soon as Amin Lal was shot dead, all the villagers who had come to the field ran away and there was no longer any justification whatever for using any force against the running villagers. Since at the relevant time the property had been saved form the trespass and the assailants bad been completely dispersed, the right of private defence ceased to exist and so, the appellants who were proved to have caused the two deaths could not claim protection either of the right of private defence or could not even plead that they had merely exceeded the right of private defence; so, they are guilty of the offence of murder under s. 302. That is how the appellants have been convicted of the said offence and have been ordered to be hanged. The question which the appeal raises for our decision thus lies within a very narrow compass. The findings of fact recorded by the High Court in favour of the appellants would be accepted as binding on the parties for the purpose of this appeal. In other wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably prehended and should not exceed its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious. There can be no doubt that in judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. Ile is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in his mind would be toward off the danger and to save himself or his property, and so, he would naturally be anxious to strike a decisive blow in exercise of his right. It is no doubt true that in striking a decisive blow, he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force is used than is necessary or than was justified by the prevailing circumstances, it would be inappro, priate to adopt tests of detached objectivity which would be so natural in a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of 70 paces from the place of the tractor, but it was discovered that it had been dragged from a place at a longer distance where Jai Dev stood when he was fired dead. From that place to the place where his dead holy was actually found there was a trail of blood which unambiguously showed that Jai Dev fell down at a more distant place and that he was dragged nearer the scene of the offence after he fell down. This statement is corroborated by the memo prepared on September 14, 1960 (item No. 104). Blood-stained earth was taken from both these spots. Roughly stated, the spot where Jai Dev was shot at can be said to be about 300 paces away from the tractror where the appellant Jai Dev stood. It is true that Gurbux Singh made no express reference to the trail of blood in rough site plan which he had prepared on the day of the offence. But iten 8 in the plan, we were told, does refer to the dragging and that is enough corroboration to the evidence of Gurbux Singh. Besides, in considering the effect of the omission to mention the trail of blood in the rough plan, we cannot ignore the fact that at that time Gurbux Singh's mind was really concentrated on the F. I. R. received by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he,, had said so because subsequently after the occurrence,, he saw the dead body of Jai Dev near the scene of the offence. Therefore, in our opinion, having regard to the evidence on the record, the High Court was right in coming to the conclusion that Jai Dev deceased was standing at a fairly long distance from the scene of the offence when he was shot at. That takes us to the case of the victim JaiNarain. Jai Narain was in fact not in the Inamwala field at all. According to the prosecution, he was on the machan in the adjoining field which he was cultivating and it was whilst he was in his own field that the appellant Hari Singh fired at him. The distance between the appellant and the victim has been found to be about 400 paces. Now this conclusion is also supported by evidence on the record. Jai Narain's mother, Chand Kaur (P.W. 10) says that she saw her son falling on the ground from the machan, and that clearly means the machan in the field of which Jai Narain was in possession. The position of this field is shown in the rough plan and sketch prepared by the Sub- Inspector (P.A.J.). The evidence of Hira Lal (P.W. 5) supports the same conclusion, and Gurbux Singh swea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary conclusion on that point, it became necessary for the High Court to examine the case against each one of the accused persons before it, and so, it would not be accurate to say that the High Court has believed the witnesses whom the trial court had entirely disbelieved. That is the first answer to Mr. Anthony's contention. The second answer to the said contention is that even if the trial Court had disbelieved the evidence, it was open to the High Court, on a reconsideration of the matter, to come to a contrary conclusion. It is true that in dealing with oral evidence a Court of Appeal would normally be reluctant to differ from the appreciation of oral evidence by the trial Court, because obviously the trial Court has the advantage of watching the demeanor of the witnesses; but that is not to say that even in a proper case, the Appeal Court cannot interfere with such appreciation. Besides, the criticism made by the trial Court is not so much in relation to the demeanour of the witnesses as in regard to their partisan character and the over. statements which they made as partisan witnesses are generally apt to do. Therefore, we see no justification for contending that the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the village abadi . Similarly, the statement of Mst. Sarian (P. W. 12) would seem to show that when the victim Jai Dev was fired at, he had run away. On the probabilities, it is very easy to believe that when the villagers found that the appellants and their friends were inclined to use their firearms, they must have been frightened, even the large number of the villagers would have meant nothing. The large number would have merely led to a large number of deaths that is about all. Therefore, as soon as fire-arms were used for the first time killing Amin Lal on the spot, the villagers must have run away. That is the evidence given by some of the witnesses and that is the conclusion of the High Court. It is in the light of this conclusion that we have to deal with the point raised by Mr. Anthony. If, at the time when the two appellants used their rifles against their respective victims standing at considerable distances from them, all the villagers had run away, there was obviously no threat continuing and so, the right of private defence bad clearly and unambiguously come to an end. That is why we think the High Court was right in holding that the appellants were guilty of murd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o him, either the trial in vitiated or his conviction is rendered bad. The examination of the accused person under a. 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers under s. 342, the Court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and broad questions to the accused, for by adopting such a course the accused may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the Court should put to the accused person detailed questions which may amount to his cross examination. The ultimate test in determining whether or not the amused has been fairly examined under a. 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. It is obvious that no gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same before the Polio') Investigating Officer. On the other hand, according to Gurbux Singh, it was the accused Sajjan Singh who after his arrest produced the pistol and two live cartridges before him. It would thus appear that the revolver had been produced by one of the accused persons on the allegation that it was carried by Amin Lal and had been used by Yudhbir Singh in self-defence after it had fallen down from Amin Lal's hands. It has not been the prosecution case that it is this revolver which had been used by Yudhbir Singh. It may well be that the revolver has been deliberately surrendered by the accused in order to introduce complications in the case. We think, in such a case it is difficult to understand for what purpose the prosecution was expected to examine the expert. Therefore, in our opinion, the decision in the case of Mohinder Singh v. The State (A. I. R. 1953 S. C. 415.) has no application to the case before us. In the result, we agree with the High Court in holding that the two appellants are guilty of murder under s. 302. The only question which now remains to be considered is one of sentence. Mr. Bindra for the State has left this question to us s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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