1. This is an appeal on behalf of the State against an order of, acquittal. The respondents Kartar Singh, Dona Singh, Gaura Singh, Mohan Singh and Latkan Singh were charged under Ss. 148 and 302/149, I. P. C., for offences alleged to have been committed by them on the 12th of December 1952, in a farm in tahsil Bazpur, district Nainital,
The learned Sessions Judge of Kumaun acquitted them of all the charges holding that it was not proved that the accused persons formed an unlawful assembly or that they had any common object either of injuring Dayal Singh or his companions or of doing anything unlawful, holding further that in the circumstances disclosed by the prosecution, the charge under Section 302/149, I. P. C., was not at all established.
2. Kartar Singh, Respondent, has a farm in tahsil Bazpur in the district of Nainital which is known as Badripur Farm. Adjacent to it, there is another farm belonging to one Chandra Singh. A water channel separates the two farms. The channel bifurcated into two branches one of which goes into the farm of Kartar Singh and the other goes into another farm known as Fatehpur Farm belonging to one Dayal Singh. The place, where the two branches of this channel bifurcate, is known as the Nakka.
The position of the channel is such that if it is blocked at the point of bifurcation towards either side, the entire water will flow into the farm of the one without permitting any water to get into the farm of the other. The prosecution contended that Since the 10th of December 1952, water through the channel had been flowing into the farm of Dayal Singh and he had been irrigating his crops. On the 12th of December 1952, early in the morning Dayal Singh, it is alleged, found that the flow of the water had been obstructed.
He, therefore, started with his brother Charan Singh and his nephew Tara Singh towards the point of bifurcation to find out the cause of the impediment. It is said that all these three persons went there empty-handed and unarmed. When they reached the point of bifurcation or the Nakka, they found Kartar Singh present there with his rifle. There were 15 or 16 persons with him some of whom were armed with lathis and others with Kirpans or swords. Amongst those there were the other four accused persons, namely, Done Singh, Gaura Singh, Mohan Singh and Latkan Singh and also one Chain Singh who was said to have been armed with a 12 bore gun. On reaching the point of bifurcation, Dayal Singh asked Kartar Singh as to why he had blocked the channel.
An altercation then ensued between Dayal Singh and Kartar Singh. It is said that this altercation led to abuses. It is further Said that Kartar Singh fired three shots at Dayal Singh with his rifle and Dayal Singh fell down dead. Some of the helpers of Kartar Singh then crossed the channel and began to assault Charan Singh and Tara Singh with lathis and kirpans.
Charan Singh and Tara Singh got injuries and began to run. The men of Kartar Singh's party followed them. While this was going on Chain Singh, it is said, fired shots from his gun but these shots unfortunately hit three persons of Kartar Singh's own party namely, Dona Singh and Mohan Singh accused and one Jogendra Singh. Kartar Singh's residential huts are situate in his farm at a distance of about 250 paces from the Nakka. The prosecution contended that some of the members of the party of Kartar Singh fetched a cot from his hut on which they put the dead body of Dayal Singh and took the dead body towards the hut. It was thrown under a tree near the hut.
Goma Singh and two other men of Kartar Singh's party then caught hold of Charan Singh and took him to the hut. Two other men of the party forced Tara Singh under threats of being shot down, to walk to the hut. When all these persons had reached the hut, it was suggested that if Charan Singh and Tara Singh were left alive, they would be witnesses against Kartar Singh and the men of his party who had been the aggressors and who had committed the crime.
The prosecution contended that Latkan Singh then gave three or four blows with his kirpan on the head of Charan Singh and killed him, whilst two of the companions of Kartar Singh, hit Tara Singh on the head with their kirpan and killed him also. Kartar Singh took out his tractor and went to police station Bazpur, where he lodged a report at about 8-30 a.m. Station Officer Shri P.D. Sewak at once proceeded to the place of the occurrence accompanied by Kartar Singh on the same tractor and found the dead bodies of Dayal Singh, Charan Singh and Tara Singh lying near the hut of Kartar Singh. He also found Jogendra Singh, Mohan Singh and Dona Singh lying injured. When Kartar Singh had made the report at the thana, he had handed over his own rifle and a parcha granted by the canal authorities which, according to him, had been given to him entitling him to take the water of the gul from the 10th of December to the 19th of December 1952. Sub-Inspector P.D. Sewak during the course of the investigation prepared inquest reports in respect of the dead bodies and sent them for post mortem examination.
The three injured persons were sent to the hospital for the examination of their injuries. At the hospital Jogendra Singh succumbed to his injuries and subsequently his body was also Sent for post mortem examination. When the inquest over the dead body of Dayal Singh was being made, an empty cartridge case, a misfired cartridge and several live cartridges were recovered from the pocket of Dayal Singh along with currency notes of the value of Rs. 720 and certain other papers.
When the investigation over the report of Kartar Singh had been in progress at the farm of Kartar Singh, the wife of Dayal Singh deceased reached the thana at about 3-30 p.m., and she lodged a report saying that her husband with two of his relations Charan Singh and Tara Singh had proceeded towards the Nakka in the early morning to see why the water in the gul had diminished, that since then they did not return home, that she had waited upto 11 a.m., and then she proceeded to Bazpur where she had learnt that a dispute had taken place near the Nakka in which some persons had been killed.
She charged Kartar Singh and his party men with having murdered Dayal Singh, Charan Singh and Tara Singh. Shri P.D. Sewak continued the investigation and on the following morning, he recovered from near the Nakka an empty cartridge case and a lock of hair. He also recovered a Single barrel gun from the house of Dayal Singh. The investigation of the case was subsequently taken over by Circle Inspector Shri Hari Singh, who after completing it challaned the five accused under Ss, 143 and 302/149, I. P. C.
3. The accused denied the charges that were levelled against them. Their case was that the Jamadar, who had the authority to permit the taking of water from the channel, had permitted Kartar Singh to take water to his farm irom the 10th of December 1952 to the 19th of December 1952, that in accordance with that permission Kartar Singh had started irrigating his field on the 10th of December 1952, that on the 11th December, Dayal Singh forcibly stopped water going to Kartar Singh's farm and took it to his own farm, that Kartar Singh made a complaint about it to the Naib Tahsildar, who directed the Jamadar to make a report and to let the person entitled to have the water, take it; that Kartar Singh could not, however, find the Jarnadar and could not hand over the order to him; that on the evening of the 11th December 1952, Kartar Singh blocked the Fatehpur branch of the channel and the entire water of the gul began to flow into his own farm; that the irrigation work was being carried on by two of his men, namely Mohan Singh Rai Sikh and Ram Singh in the early morning of the 12th of December and Kartar Singh himself had gone out to look after his fields and, as usual, he had with him his rifle; that Dayal Singh, Tara Singh and Charan Singh, with ten or twelve men of their party then arrived at the Nakka, Dayal Singh having been armed with a gun and the others armed with lathis and'Tara Singh had a spade in his hand; that on coming to the Nakka and having found that the branch of the gul had been blocked and the entire water was flowing through the other branch of the gul, Tara Singh began to cut the bund under orders of Dayal Singh, that thereafter Mohan Singh Rai Sikh stopped Tara Singh and caught hold of his spade, that Charan Singh then attacked Mohan Singh Rai Sikh with a kirpan.
Ram Singh, who was armed with kirpan, retaliated by hitting Charan Singh with his own kirpan., The cry that was raised attracted Mohan Singh accused and Jogendra Singh. who ran to the place from the hut of Kartar Singh. As soon as they approached, Dayal Singh fired a shot at Mohan Singh accused hitting him. On hearing the gun-shot, Dona Singh accused, who was at that time going towards the hut of Kartar Singh, also proceeded towards the spot. Dayal Singh shot him too and Dona Singh fell down. Dayal Singh then fired a third time aiming at Jogendra Singh, who was at that time getting Ram Singh and Mohan Singh Rai Sikh released from the other men of Dayal Singh who were fighting with them.
Jogendra Singh fell down on account of the gun-shot injury. By that time, Kartar Singh also reached the spot and when he was at a distance of about ten yards from Dayal Singh, Dayal Singh fired at him. Kartar Singh avoided being hit by lying down flat on the ground. Dayal Singh proceeded towards him intending to fire at him again but before he could do so, Kartar Singh stood up and fired at Dayal Singh with his own rifle. Kartar Singh's shot hit Dayal Singh and he fell down dead. Kartar Singh then went to his hut, took out his tractor and proceeded to the thana where he made the report and brought forth the police.
When he came back, he found Dayal Singh, Charan Singh and Tara Singh lying dead near his hut and he also found that his adversaries had taken away the gun and other weapons with which the men of Dayal Singh's party were armed. In short, the case of the accused was that the aggressors had been Dayal Singh and his men and that whatever was done by Kartar Singh and his men was done in the exercise of right of self defence.
The other accused denied having caused any injuries to Dayal Singh, Tara Singh and Charan Singh and according to them, the prosecution story that Charan Singh and Tara Singh were brought to the hut of Kartar Singh while alive and had been killed there so that they may not be able to give evidence, was totally false.
4. A number of witnesses were examined on the side of the prosecution, out of whom, three, namely, Mohd. Amin, P.W. 1, Sukhdeo, P.W. 2 and Ujjagar Singh, P.W. 3 were produced as eye-witness of the occurrence. The other witnesses were of a formal character, some of them having figured as witnesses were of the recovery of the gun of Dayal Singh and of other formal matter. On the side of the accused two witnesses were examined namely Khaliq Raza Khan, the jamadar of the Canal Department and Bishambar Dayal, his chaprasi to prove that Kartar Singh had been allowed to take water from the 10th to the 19th of December 1952.
5. The post mortem examination of the four dead bodies was held by Dr. Daulat Singh. Dr. Gurmukh Singh examined Jogendra Singh, Mohan Singh and Dayal Singh, when they were admitted to the hospital. Dayal Singh's post mortem examination revealed that he had a gun-shot wound with lacerated skin 2' x 1-1/2' muscle deep on the inner and outer side of the left fore-arm 1/2' above wrist, and another gun-shot wound of entrance 1-1/2' x 1-1/4' coming into abdomical cavity on the left-side of the abdomen 4' above and left to the umblicus. Pieces of omentum were coming out, the bullet passing down and lacerating the left lobe, liver and kidney breaking the third lumber vertebrae. Death of Dayal Singh, according to the medical evidence, was due to syncope caused by bleeding and shock produced by his injuries.
6. Charan Singh had six injuries on his body at, the time of the post mortem; five of them were cut wounds and the sixth was a contusion. In his case the death was due to syncope caused by bleeding and shock produced by his injuries.
7. Tara Singh had four injuries on his body and they were all cut wounds. The medical evidence disclosed that his death was due to coma and shock caused by the injuries.
8. The post mortem examination of Jogendra Singh revealed that he had three gun-shot wounds of entrance and three gun-shot wounds of exit -- on vital parts of his body. The liver was ruptured, the rupture measuring 6-1/2'' x 3/4' x 3/4:'. His death was due to syncope and shock on account of these injuries. These injuries were in front and not the back and their margins were scorched.
9. Mohan Singh appellant had three gunshot wounds and a dislocation of right elbow joint; and Dona Singh appellant had five gunshot wounds, as also a fracture of the right humerous at the junction of the upper and middle one-third.
10. The injuries that were proved by the medical evidence, established beyond doubt that Dayal Singh was shot at most probably only once and the cartridge used was one containing a bullet. It is no doubt true that in the post mortem -report, Ext. P-12, Dr. Dauiat Singh has mentioned two gun-shot wounds, the first on the left-fore-arm and the second on the abdomen. In describing the first one, however, he used the word 'scratched'; and in the Plindi version of the statement he has not used the words 'jhulsi hui' in respect of this wound as he has used in respect of the second wound.
The first wound had no corresponding wound of exit and the bullet was found embedded in the second wound. It, therefore, appears that the bullet first struck the forearm, was then deflected towards the abdomen and after passing through the liver and kidney, it broke the third lower vertebra and got embedded in the body of the vertebra. There can further be no doubt that two weapons were used in causing injuries to Charan Singh one was the nature of a sharp-edged weapon and the other in the nature of some blunt weapon like lathi.
There can further be no doubt that all the injuries of Tara Singh were cut wounds and were caused by some sharp-edged weapon. There can also further be no doubt that the cartridge used against Jogendra Singh had small pellets in it and had no bullet. The position of the injuries also indicates that he must have been Shot at from the front. Two weapons must have been used in causing the injuries to Dona Singh and Mohan Singh. One must have been a gun from which cartridges having pellets were fired, and the other must have been Some blunt weapon.
It was further established beyond doubt that the cartridge which was recovered at the place of the incident, as well as the cartridge which was recovered from the pocket of Dayal Singh at the time of inquest, were fired from the gun of Dayal Singh that was recovered from his house. A mis-fired cartridge was also recovered from the pocket of Dayal Singh at the time of the inquest. All the three cartridges mentioned above- were sent to the Arms Expert of the Criminal Investigation Department of the Govt. The expert Shri Shyam Narain who examined them, came definitely to the conclusion that the spent-up cartridge that was found in the pocket of Dayal Singh and the cartridge that was recovered from the place of occurrence, had been fired from the gun of Dayal Singh that was recovered from his house.
He was further of the opinion that the data in respect of the mis-fired cartridge found in the pocket of Dayal Singh, was not sufficient tc enable him to arrive at any finding about the gun from which it was fired. The report of the Arms Expert had been received when the case was pending before the committing Magistrate. The prosecution did not, however, think it necessary to produce the Arms Expert as a witness before the committing Magistrate.
The Arm's Expert was, therefore, examined before the Sessions Judge under the provisions of Section 540 of the Code. The finding of the Arms Expert that the spent up cartridge that was found lying at the spot and the Spent up cartridge that was found in the pocket of Dayal Singh when the inquest was made were fired from the gun of Dayal Singh that was recovered on the subsequent day from his house, apparently went against the prosecution case on a very crucial aspect. There can be no doubt whatsoever that that was the reason why the prosecution did not examine the Arms Expert as a witness. The story advanced on behalf of the prosecution that Dayal Singh had gone empty-handed to the spot and was not carrying his gun at the time, was totally false.
If he was not carrying his gun and had not fired any shot from it, there was no explanation on the side of the prosecution as to how the two cartridges fired from that gun were found, one on the spot and the other in the pocket of Dayal Singh soon after the incident. It appears from the judgment of the learned Sessions Judge that the explanation that was attempted on behalf of the prosecution during the course of argument in regard to this matter was that the Investigating Officer, who was investigating the case on 12th and 13th of December, 1952 planted these two cartridges, one into the pocket of Dayal Singh and the other on the spot after firing them from the gun of Dayal Singh after having recovered it and that he did so in order to help the defence.
This suggestion was, on the face of it, unconvincing and fantastic. The investigating Officer was examined as a witness on behalf of the prosecution and no suggestion was made to him when he was in the witness-box that he had acted in the way stated above. The spent-up cartridge had been recovered from the pocket of Dayal Singh on 12th December immediately after the Station officer arrived at the scene of occurrence and it was forthwith entered in the list prepared on that date. The gun of Dayal Singh was recovered on the subsequent date, i.e. 13th December, 1952.
It was, therefore, absolutely impossible for the investigating officer to obtain the spent-up cartridge Ext. 34 a day earlier to the recovery of the gun, if he really intended mischief and if he had intended to damage the prosecution case and help the defence.
11. The evidence led on behalf of the prosecution in the testimony of the three-eyewitnesses, namely, Mohd. Amin, Sukhdeo and Ujjagar was full of inconsistencies improbabilities and untruth's. According to the prosecution case the incident happened in two shifts. The first part happened near the Nakka and the second part happened near the hut of Kartar Singh. What is said to have taken place in the first 'shift is that in the night between 11th and 12th of December, 1952, Kartar Singh had wrongly blocked that branch of the canal that flowed towards the farm of Dayal Singh and had diverted the entire water towards his own farm.
Discovering that the water had stopped flowing to his own farm, Dayal Singh with his brother Charan Singh and his nephew Tara Singh proceeded towards the Nakka on the morning of 12th to see what the matter was. According to the prosecution case, all these persons were empty-handed and unarmed. The three persons went to the Nakka and found that Kartar Singh was there armed with his rifle along with 15 or 16 of his companions inclusive of the co-accused. Dona Singh, Gaura Singh, Mohan Singh and Latkan Singh. Jogendra Singh was also there, as also Chain Singh with a double barrel gun.
The proseciition contended that Dayal Singh asked Kartar Singh why he had stopped water from flowing into his farm and Kartar Singh 'said that he had done so rightfully as he had been allowed by the authorities to take water. The prosecution further contended that an altercation then ensued between Dayal Singh and Kartar Singh in which there was an exchange of abuses. The prosecution also contended that Kartar Singh then fired three shots in quick succession from the rifle he was carrying killing Dayal Singh instantaneously.
Charan Singh and Tara Singh, it is said then began to run. The other men of Kartar Singh's party followed them and attacked them with lathis and Kirpans. While this was going on, Chain Singh fired from his gun and it is said that though he intended to injure Tara Singh, bis shots unfortunately injured Jogendra Singh, Mohan Singh and Dona Singh. Charan Singh and Tara Singh got several injuries and sat down, at the place. This, in short, was the first part of the incident. The evidence that was produced to prove this part of the case, consisted of the statements of two witnesses Sukhdeo and Ujjagar. Smt. Raghuvendra Kaur widow of Dayal Singh was also examined to support the case that Dayal Singh, Tara Singh and Charan Singh had proceeded towards the Nakka empty-handed.
The learned Sessions Judge was right, upon a careful consideration of the evidence produced on behalf of the prosecution on that part of the case, in coming to the conclusion that the evidence was not at all reliable and was not worthy of acceptance. The contention of the witnesses that Dayal Singh had gone empty-handed and was not carrying his gun when he went towards the Nakka was, for reasons stated above, false. The prosecution version did not fit in with the medical evidence. If Dayal Singh and his companions were unarmed, there was no explanation as to how Dona Singh and Mohan Singh got injuries from a blunt weapon, though in respect of their gun-shot wounds, the prosecution version was that they were caused by Chain Singh who fired by his double barrel gun.
In respect of the shooting of Dayal Singh, Sukhdeo Singh stated that Kartar Singh fired three shots at him in quick succession and Ujjagar Singh says the same thing. The medical evidence, however, was that only one shot, was fired at Dayal Singh. Three persons Jogendra Singh, Mohan Singh and Dona Singh who were on the side of the accused, admittedly received gun-shot injuries and Jogendra Singh succumbed to his injuries. The prosecution story that injuries to these persons, were caused by Chain Singh, a man of Kartar Singh's party who was armed with a double barrel gun and who really wanted to shoot Tara Singh and Charan Singh, was not at all acceptable. The defence version that these person's were shot at by Dayal Singh, was more natural and probable.
12. The second part of the story related to what is said to have happened at the hut of Kartar Singh. It is said that after Dayal Singh was dead and Charan Singh and Tara Singh had been found injured, Kartar Singh asked some of his men to remove the dead body of Dayal Singh to his hut and the dead body was put on a cot and was taken to a tree near the hut and was thrown there. It is further said that three of the men of Kartar Singh's party including Gaura Singh accused caught hold of Charan Singh and took him from the place of incident to the hut of Kartar Singh.
Kartar Singh then asked Tara Singh to walk up to bis hut and threatened to shoot him, if he did not do so. Accompanied by three men of Kartar Singh's party Tara Singh walked up to the hut and sat down there. At that stage a suggestion was made by some body that if Tara Singh and Charan Singh were allowed to remain alive, they might give evidence against Kartar Singh and his men. It was contended that it was then that under the behests of Kartar Singh Latkan Singh accused gave a few blows to Charan Singh and two other persons belonging to the party of Kartar Singh. who are not among the present accused, hit Tara Singh with a Kirpan and an axe and he too expired.
This part of the prosecution story was tried to be supported by the solitary testimony of Mohd. Amin witness. This story suffers under various inherent defects. The absence of blood-marks at any place near the hut of Kartar Singh renders this 'story false and improbable. The investigating officer stated that he did not find any blood near the hut though he reached the place within an hour of the incident, He also did not find any signs of blood having been removed or washed. At the stage of investigation by the police, Sukhdeo Singh and Ujjagar Singh claimed to be witnesses of the second part of the incident as well; but in Court they stated that they had not witnessed that part of the matter.
There was a difference between the witnesses as to who had suggested that Tara Singh and Charan Singh be killed so that they may not be able to give evidence. Mohd. Amin appears to be an absolutely chance witness and what he said during investigation was materially different from what he had disclosed in Court. All these discrepancies are apparent on the face of the record and most of them have been noticed by the learned Sessions Judge, Mohd. Amin was, therefore, not a witness of truth and no reliance could be placed upon his testimony.
13. An argument was advanced before the learned Sessions Judge, which has been repeated in this Court as well, viz. that even if the prosecution evidence and the prosecution story be held unreliable in certain respects, if it is considered in the light of certain admissions made by the principal accused Kartar Singh in his first information report it would make out a case where the two parties must be held to have had a free fight in accordance with a pre-arranged plan; and in that case there could be no question of any party acting in the exercise of right of private defence.
If the evidence produced by the prosecution in Support of the story set up by the prosecution be held unreliable and untrue, the prosecution cannot be permitted to claim that because of certain things stated by Kartar Singh in his first information report, case ought to be built up against Kartar Singh on its basis and the matter against the other accused should also be founded upon it and judged on the same basis. The report made by Kartar Singh is not substantive evidence by itself, and no finding can be based upon it.
It could only be used for the purpose of corroboration or contradiction, if the person, who made it, was examined as a witness. It could further be used against him as an admission; but in using it as an admission the principle has got to be kept in mind that if it is taken as an admission, it must be considered as a whole and not in part. It would not be permissible to take a part of it and to reject the rest.
If the report Ext. P-4 made by Kartar Singh is read in the light of the above considerations it will amply bear out that it does not corroborate the prosecution evidence in any important particular. On the contrary what was said in that report, was quite consistent with the case for the defence.
14. As has been observed by the Supreme Court in Gajanand v. State of Uttar Pradesh, AIR 1954 SC 695 (A), a free fight is
'when both sides mean to light from the start, go out to fight and there is a pitched battle and the question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders.'
There could be no question of a free fight when there was a clear finding of the learned Sessions Judge, with which we concur, that it was Dayal Singh's party which had been the aggressor. It was Dayal Singh who had opened fire on Kartar Singh's party.
It was thereafter that Kartar Singh and men on his side retaliated in self defence. The right to take water on the date of occurrence vested in Kartar Singh and he was in the enjoyment of that right. If Kartar Singh went there armed with a rifle on having been apprehensive of the fact that the other party would reach there with arms and reinforcement, he was perfectly justified to wait there in readiness to defend his property or the right from the expected aggression from the other side.
It was not a case where the enjoyment of a right was not to be protected or defended; nor was it a case where Kartar Singh and his party-men can be said to have gone to the spot to measure their Strength, and the protection of property or right was a mere pretext. The possibility of Kartar Singh's fighting for the protection of his property or the enjoyment of his right cannot at all be excluded.
Consequently we unhesitatingly come to the conclusion that the story that was set out on behalf of the prosecution was not the true story and that since Dayal Singh and his party-men happened to be the aggressors and since Dayal Singh had opened out the attack with his gun and it was then that Kartar Singh and his men retaliated, the learned Sessions Judge was right in coming to the conclusion that no offence was made out against the respondents.
15. In dealing with an appeal from acquittal on a matter of fact this Court has got full power to review at large the evidence, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. There is no limitation upon that power. But in exercising the power the Court should and will always give proper weight and consideration to such matters as the views of the trial Court as to the credibility of the witnesses, the presumption of innocence in favour of the accused which is strengthened by the acquittal, the right of the accused to the benefit of any doubt, and the slowness of an appellate Court in disturbing a finding of fact arrived at by the trial Court which had the advantage of seeing the witnesses.
Judged by all these standards, and judged in the circumstances of the case and by the evidence on the record, we are of opinion that the learned Sessions Judge was perfectly justified in acquitting the respondents.
16. There is no force in this State Appeal,and it is accordingly dismissed. The respondents are on bail; their bail bonds are discharged.