1. This is an appeal by Ajit Singh son of Achhar Singh aged 17/18 years who has been convicted by the Sessions Judge, Ferozepore, under Section 302, Indian Penal Code, and sentenced to undergo imprisonment for life for having intentionally caused the death of Harnam Singh. Achhar Singh father of the appellant was also tried along with him but only a lalkara was attributed to him and the trial Judge found such an allegation to be uncertain basis for holding that he had participate in committing murder of the deceased, and consequently acquitted him.
2. The prosecution case is an under. Achhar Singh accused (since acquitted), his son Ajit Singh appellant and Harnam Singh deceased have their houses near one another in the colony of Mazhabis in village Fatehpur Manian, District Ferozepore. On 15th of June, 1966, at about sunset time, Harnam Singh was present in his house with his daughter Maya who is married and had come to her parents from another village some 14/15 days earlier. Smt. Shamo P. W. 3, widow of Harnam Singh was also present. They all heard Achhar Sing accused raising changars in a state of drunkenness in the open space in front of their house near the door way. Harnam Singh asked Achhar Singh not raise changars in front of their house but the latter instead of accepting the advice started abusing and did not stop changars. Smt. Maya and Smt. Shamo asked Harnam Singh not to worry when Achhar Singh was so shameless in raising changars opposite their house. At that time Harnam Singh had a dang in his hand. An altercation was going on when Revel Singh Sarpanch, P. W. 4, also arrived there. Ajit Singh rushed to the spot with a spear from the direction of his house and was abusing Harnam Singh. He stepped for want towards Harnam Singh with a spear when the latter struck a dang blow on his left forearm. At this stage, it is alleged that Achhar Singh shouted a lalkara to his son Ajit Singh appellant asking him to strike Harnam Singh with a spear and finish him. Ajit Singh is then stated to have plunged his spear in the chest of Harnam Singh who immediately fell on the spot and an alarm was raised by Smt. Maya and Smt. Shamo P. W. 3, but the appellant and his father Achhar Singh fled away. Harnam Singh was then put on a cot, but he was found dead. Anup Singh P. W. 6, too reached the spot and the appellant confessed to him that he killed Harnam Singh with his spear. Smt. Maya and Ravel Singh remained with dead body while Smt. Shamo widow of the deceased along with Harcharan Singh Lambardar went to the Police Station Lambi, which is at a distance of 10 miles from the village and made the report, Exhibit P. 7 at 11 p. m. to Bakhshi Krishen Lal, Station House Officer. P. W. 12, S. I. Krishen Lal reached the village at 3 a.m. and collected the blood stained earth from the spot which was made into a sealed parcel. Ajit Singh was produced before the Sub-Inspector on the morning of 16th June, 1966, and his injury statement was prepared. Achhar Singh was also put under arrest at that time.
3. Post-mortem on the body of the deceased was performed by Dr. H. S. Mahal, in charge Civil Hospital, Gidderbaha, who found one incised wound 4 cm. x 1.5 cm. on front of chest- 8 cm. below and inner to left nipple and 12 cm. below sternal notch. In the opinion of the doctor, the injury was caused by sharp-edged stabbing weapon and was sufficient in the ordinary course of nature to cause death.
4. After investigation both Achhar Singh and Ajit Singh were challenged and later committed by a Judicial Magistrate to stand trial in the Court of Session at Ferozepore under Section 304 read with Section 34, Indian Penal Code, but at the trial the charge was amended to one under Section 302 read with Section 34, Indian Penal code, Achhar Singh denied altogether participation in the incident and pleaded alibi. The appellant, on the other hand, gave a definite version as to how the occurrence had taken place. It was stated by him that he was coming from his fields after doing days' work and he had a spear with him. Harnam Singh deceased being drunk was misbehaving by hurling abuses near the ahata of Dyal Singh. The appellant remonstrated with him telling him not to behave like this as women-folk were living in the houses there. He abused the appellant as well but the latter returned the abuse. On this, Harnam Singh gave a dang blow which hit the appellant on his left arm and when he raised dang to give another blow, the appellant apprehending danger to his life gave a spear blow to Harnam Singh. The presence of the alleged eye witnesses was denied by the appellant and it was stated that his father had gone to village Chhapianwala on that day.
5. The ocular account was given by Smt. Shamo (P.W. 3) wife of the deceased whereas Reval Singh Sarpanch (P.W. 4) and Harcharan Singh Lambardar (P.W. 5) who had reached the spot soon after the incident corroborated the eye-witnesses' account inasmuch as they deposed that Smt. Shamo told them that Achhar Singh was in a state of drunkenness and was abusing in front of their house. Harnam Singh went to prevent Achhar Singh from abusing. When abuses were exchanged, Ajit Singh appeared on the scene and gave spear blow to Harnam Singh deceased. There is then the evidence of Anup Singh, P.W. 6 who produced the appellant before the Police and to whom the appellant is said to have made a statement that on receipt of dang blow from the deceased he struck him with a spear. The other evidence more or less is of formal nature except the statement of S. I. Krishan Lal who conducted the investigation. The trial Judge believed the testimony of eye-witnesses and rejected the plea of self-defence advanced by the appellant. The conviction was thus recorded against the appellant under S. 302, Indian Penal Code.
6. We have been taken through the entire evidence by the learned counsel, Mr. B. S. Shant, who appeared as amicus curiae. There can be no manner of doubt and it is indeed admitted by Ajit Singh appellant himself that he caused the death of Harnam Singh with a spear. The sole question that arises for determination is whether the appellant, who was admittedly beyond doubt first given a dang blow by the deceased, can be said to have exercised his right of private defence of body in the circumstances of the instant case. The version as given in the first information report was certainly improved at the trial. Smt. Shamo (P.W. 3)wife of the deceased, who is an unsophisticated lady, stated all truth when she deposed that she and her daughter tried to persuade her husband to let Achhar Singh raise changars and he should not worry. It appears that he was determined to stop changars by Achhar Singh and carried dang for that purpose. The appellant whose house was quite nearby came running with a spear in his hand from the direction of his house. Harnam Singh gave a dang blow which hit the appellant on the back of the left forearm. Smt. Shamo P. W. stated at the trial that Ajit Singh was abusing Harnam Singh when he came with a spear in husband and stepped forward to give blow with the same when Harnam Singh struck the appellant with dang on his left arm. It was then stated that a lalkara was raised by Achhar Singh and on that a spear blow was hurled at Harnam Singh by the appellant. this version is a clear improvement on the narrative as given in the first information report. She had very plainly stated that Ajit Singh came with barchha in his hand and he started abusing her husband at which the latter gave a dang blow to Ajit Singh. There is no suggestion that the appellant ever stepped forward to make an attack on the deceased and what is mentioned is that the gave an abuse. If the intention was to commit murder of Harnam Singh, where was nothing to prevent the appellant from straightway giving the barchha blow. Harnam Singh was in such a state of anger, may be on account of misconduct of Achhar Singh, that he could not be cooled down in spite of persuasions of his wife and daughter. The appellant never made an attack first and it was the deceased who gave a dang blow. Even at this stage when the appellant could reasonably apprehend danger to his life or grievous hurt being likely to be caused because of the determination of Harnam Singh to give blows with his dang. Ajit Singh gave only one spear blow. He must, in the circumstances, be held to have acted in the exercise of right of private defence of body. If he had a right of defending his person after the blow was given by Harnam Singh deceased, it made no difference that Achhar Singh raised a lalkara when there was real danger to his life. The right of private defence arises subject to the restrictions contained in Section 99, Indian Penal Code, as soon as an assault which occasions the exercise of that right reasonably causes the apprehension of death or of grievous hurt and when that right had accrued to the appellant; the mere fact that simultaneously Achhar Singh gave a lalkara could not deprive him of the exercise of that right. We do not agree with the trial Judge that Harnam Singh in giving a dang blow was himself acting in the exercise of any such right. He had no such right when we find that he was not in a mood to listen to his wife or daughter. There was determination on his part to use the dang that he carried whereas Achhar Singh was unarmed. Ajit Singh appellant came from the direction of his house, of course, armed with a spear but he did not straightway cause any injury. It was only when abuses were exchange between him and Harnam Singh and the latter gave a dang blow to the appellant, that the appellant gave a spear injury to the deceased. In such a situation, the appellant had a right of private defence, his act falls under S. 100, Indian Penal code, an he committed no offence.
7. For the foregoing reasons, the appeal is allowed. Conviction and sentence of the appellant are set aside and he is directed to be set at liberty forthwith.
A.D. Koshal, J.
8. I agree.
9. Appeal allowed.