1. Dalip Singh and his brother Ranjit Singh have been convicted of murder of Toto Singh and have been sentenced to imprisonment for life. The occurrence is of 13-7-1955.
2. The house of Tota Singh deceased was quite close to the house of the accused. The deceased had an illicit connection with Mst. Parsini, the mother of the accused which the accused resented. According to the statement of Jhanda Ram P. W. 7 which is most favourable to the accused, on the morning of the date of the incident Ranjit Singh accused came out of his house with his buffalo and was leading it to the diggi (pool). When Ranjit Singh reached near the manure heap he asked. Tota Singh to stop his liaison with Mst. Parsini but Tota Singh refused to do any such thing.
Both Tota Singh and Ranjit Singh were at that time empty handed and they grappled with each other but they were separated. Tota Singh left in a threatening mood. He went to his house and returned with a gandasi, Exhibit P. 1, Ranjit Singh also returned accompained by his brother Dalip Singh who had a kirpan, Exhibit P. 5, in his hand which was in a scabbard. When they reached near the manure heap Tota Singh abused Dalip Singh who returned the abuse and then Tota Singh aimed a gandasi blow at Dalip Singh which the latter warded off with his kirpan and then Tota Singh aimed another blow but this was also warded off with the kirpan as a result of which the scabbard of the kirpan got broken.
Ranjit Singh then caught hold of Tota Singh and felled him on the ground arid snatched the gandasi, Exhibit P. 1, from Tota Singh but Tota Singh got himself freed, got up and caught hold of Dalip Singh and felled him on the ground and he himself also fell down. Dalip Singh got on the top of Tota Singh and gave him three or four blows but Tota Singh got up and ran towards the house of the accused both of whom followed him and overtook him near their house and caused him further injuries and this was witnessed by Mit Singh and Bakhtawar Singh P. Ws. who came from one direction and JagtarSingh and Ganga Singh P. Ws. who came from another direction. Tota Singh then died.
3. The first information report was made by Mit Singh who is a first cousin of Tota Singh deceased. The eye witnesses are Mit Singh P. W. 3, Bakhtawar Singh P. W, 4 Jagtar Singh P. W. 5 and Ganga Singh P. W. 6. All these witnesses have supported the story of the prosecution and they have stated that they saw Dalip Singh and Ranjit Singh causing injuries to Tota Singh near the turning in the lane and close to the house of Mehar Singh. Tota Singh according to their evidence, fell down in their presence and was at that time empty handed whereas Dalip Singh had a Kirpan and Ranjit Singh had a gandasi.
4. The case of the defence as stated by Dalip Singh in his statement was that there was an altercation between Tota Singh and himself on the morning of the occurrence. He had asked Tota Singh not to pass in front of their house as he used to abuse them and use provocative gestures but Tota Singh said that he would not discontinue passing that way also threatened him (Dalip Singh) with murder.
On the morning of the incident when Dalip Singh was returning from the water pool Tota Singh raised a lalkara from behind and he (Dalip Singh) wanted to run away but Tota Singh caught him up and attacked him (Dalip Singh) with the gandasi with which he was armed but he warded off the three blows which were aimed at him and then gave blows to Tota Singh and then while he (Dalip Singh) was trying to run away Tota Singh again caught him up and gave injuries to him. This does not explain how such a large number of injuries was caused on the deceased and the statement exonerates Ranjit Singh altogether.
5. The evidence of Jhanda Ram P. W. 7shows as to how the quarrel originated on that particular day and his statement as well as thestatements of the other four witnesses show that when Tota Singh was unarmed Ranjit Singh and Dalip Singh caused him injuries which according to the medical evidence are thirteen in number four of which had cut the skull bone and injured the brain matter underneath.
6. Counsel for the appellants contends that the accused had the right of private defence and even though the deceased might have been disarmed the right of private defence continued but this is contrary to Section 102, Penal Code, which specifically provides that the right continues as long as the apprehension of danger to the body continues. But submits counsel that even though an assailant may have been disarmed and there may be no danger to the person from him, theright of private defence continues to this extent that if within a very short period of time after the discontinuance of the danger a death is caused, it would still fall within Section 100, and he relies upon a Division Bench judgment of the Lahore High Court in Saddu Amir v. Emperor, AIR 1939 Lah 393 (A), but in that case the facts were totally different.
There, after an assault which resulted only in slapping, the party of the complainants went to remonstrate with the party of the accused which resulted in exchange of abuse. This was followed by the accused going to their houses and arming themselves with hatchets and dangs, and the party of the complainants also arming themselves, which was followed by a general fight in the course of which one man was killedand others ran away chased by the accused. At a little distance one of the men who had run away and one of the accused were also killed.
It was in these circumstances that the fight of defence of person was held to exist, but the facts before us are totally different. Although the deceased started the attack he was soon disarmed and Ranjit Singh picked up the gandasi which was in the hands of the deceased and thus both of them were armed and there could possibly be no right of private defence in this case, particularly when the deceased had started running away from the place. In my opinion, the accused have been rightly convicted of murder. In the circumstances the learned Sessions Judge has given transportation for life and I would therefore dismiss this appeal.
7. I agree.