JUDGMENT A.N. Jindal, J. - Khushal Singh son of Kashmir Singh and Paramjit Singh @ Kishan Singh @ Pamma both residents of village Dhandi Kadim, faced trial under Sections 302/307/323 read with Section 34 IPC for committing murder of Kala Singh and causing injuries to Gurbax Singh and Dalip Singh. Consequently, they were convicted by the learned Sessions Judge, Ferozepur, vide its judgment dated 20.9.1997 and were sentenced as under :- Khushal Singh U/s 302 IPC : To undergo rigorous imprisonment for life and to pay fine of Rs.3000/- and in default of payment of fine to further undergo rigorous imprisonment for six months. U/s 307 IPC : To undergo rigorous imprisonment for five years and to pay fine of Rs.1000/- and in default of payment of fine to further undergo rigorous imprisonment for two months. Paramjit Singh U/s 302/34 IPC : To undergo rigorous imprisonment for life and to pay fine of Rs.3000/- and in default of payment of fine to further undergo rigorous imprisonment for six months. U/s 307/34 IPC : To undergo rigorous imprisonment for five years and to pay fine of Rs.1000/- and in default of payment of fine to further undergo rigorous imprisonment for two months. 2. However, all the substantive sentences were ordered to run concurrently. 3. The houses of Gurmeet Singh complainant (hereinafter referred to as ‘the complainant’) and the accused are adjacent to each other. The complainant party had purchased 4- ½ acres of land from Jangir Singh son of Buta Singh i.e. Khushal Singh’s father’s elder brother and his brothers and sisters, which they were cultivating. On 1.11.1995, at about 3.00 PM, the complainant was ploughing the said land and his father Dalip Singh, uncle Kala Singh and brother Gurbax Singh were also present in the said field. In the meanwhile, Khushal Singh armed with pistol, Paramjit Singh armed with datter (a sharp cutting instrument) Seema armed with kirpan came in the field. Paramjit Singh exhorted to teach them a lesson for ploughing the land. Seema also exhorted to catch them and not to allow them to go escape. Khushal Singh fired a shot from his pistol which hit Dalip Singh and also to his brother Gurbax Singh. Paramjit Singh exhorted to teach them a lesson for ploughing the land. Seema also exhorted to catch them and not to allow them to go escape. Khushal Singh fired a shot from his pistol which hit Dalip Singh and also to his brother Gurbax Singh. When Khushal Singh was in the process of reloading his pistol Kala Singh tried to catch hold of the pistol, at this, Khushal Sigh reloaded the pistol and fired shot at Kala Singh, as a result of which he fell down. Paramjit Singh accused also inflicted datter blow from its reverse side to Kala Singh. The injured raised hue and cry as a result of which, the accused fled away with their respective weapons. The injured were shifted to Civil Hospital, Jalalabad, where Kala Singh was declared dead and Dalip Singh and Gurbax Singh were referred to Civil Hospital, Ferozepur. 4. On the statement made by the complainant, at about 5.45 PM before SI Bhupinder Singh, FIR No. 286 dated 1.11.1995 Ex.P9/B was registered at Police Station Sadar, Jalalabad. On the same day, it reached the Illaqa Magistrate, at about 9.00 PM. SI Bhupinder Singh conducted the investigation; visited the place of occurrence; conducted inquest Ex.P7; recorded statements of the witnesses; prepared rough site plan Ex.PB; lifted blood stained earth and empties from the place of occurrence and took the same into possession vide memo Ex.P22. He again visited the hospital and recorded statement of Khushal Singh but his statement was found to be false. He also collected medico-legal report of Dalip and Gurbax Singh; arrested the accused; recovered weapons of offence and ultimately report under Section 173 Cr.P.C. was submitted against accused Khushal Singh and Paramjit Singh. The report against Seema was not submitted as she was juvenile and her matter was referred to the Juvenile Justice Board. 5. Formal charges under Sections 302, 307, 323 read with Section 34 IPC were framed against the accused to which they pleaded not guilty and claimed trial. 6. In order to seek conviction of the accused, the prosecution examined as many as 12 witnesses. 7. PW-1 Dr. Vikas Priya, deposed that on 3.11.1995 he radiologically examined Dalip Singh and Gurbax Singh and proved his reports Ex.P1 and Ex.P2 respectively. 8. PW-2 Dr. H.L. Garg, deposed that on 1.11.1995 he medicolegally examined Gurbax Singh and found the following injuries on his person :- 1. 7. PW-1 Dr. Vikas Priya, deposed that on 3.11.1995 he radiologically examined Dalip Singh and Gurbax Singh and proved his reports Ex.P1 and Ex.P2 respectively. 8. PW-2 Dr. H.L. Garg, deposed that on 1.11.1995 he medicolegally examined Gurbax Singh and found the following injuries on his person :- 1. Lacerated punctured wound .6 cm x .5 cm present in the right scapular region, margins inverted. No blackening was seen round the margins. It was 16 cms from the mid line and 12 cms below the right shoulder. Fresh bleeding was present. Advised x-ray. 2. Lacerated punctured wound 0.25 cm x 0.25 cm margins inverted, present on the right side of lower lip, bleeding was present. 3. Three lacerated punctured wounds measuring 0.25 cm x 0.25 cm present on the right side of the neck in an area of 10 cms 2.5 cms below the body of the mandible. Bleeding was present. No blackening was seen around the margins. Margins were inverted. X-ray was advised. 4. Lacerated punctured wound four in number present on the top of the shoulder, margins inverted. No blackening was seen around the margins. Bleeding was present and x-ray was advised. 5. Lacerated punctured wound four in number measuring 0.25 x 0.25 cm present on the outer aspect and upper part of the right arm. Margins were inverted. No blackening was seen around the margins. Fresh bleeding was present and x-ray was advised. 6. Lacerated punctured wound 0.25 cm x 0.25 cm present on the anterio lateral aspect of the middle of the right arm. Margins inverted. No blackening was seen around the margins. Fresh bleeding was present. A round hard foreign body simulating pallet was seen in the medial aspect and middle of right arm. It was 4.5 cms medially from the bone. X-ray was advised. 7. Lacerated punctured wound 0.25 cm x 0.25 cm in the front and lower part of right arm, margins inverted. No blackening was seen around the margins. Fresh bleeding was present. A hard, round foreign body simulating pallet was felt 3.5 cms away from the wound. Area was tender on touch. It was 3 cms above the cubical fosse. X-ray was advised. 8. Lacerated punctured wound 0.25 x 0.25 cm present on the outer aspect and upper part of right forearm, margins inverted. No blackening was seen around the margins. Fresh bleeding was present. Area was tender on touch. It was 3 cms above the cubical fosse. X-ray was advised. 8. Lacerated punctured wound 0.25 x 0.25 cm present on the outer aspect and upper part of right forearm, margins inverted. No blackening was seen around the margins. Fresh bleeding was present. There was diffuse swelling 6 cms x 5 cms present in the front and medial aspect of right forearm. It was 7 cms below the elbow joint. A hard, round foreign body simulating pallet was felt in the area. Surgical enthysema was present. X-ray was advised. 9. Lacerated punctured wound 0.25 x 0.25 cm present on the right side of chest at 11’0 clock position, margins inverted. No blackening was seen around the margins. Fresh bleeding was present. It was 11 cms from the mid line and 7 cms above the right nipple. X-ray was advised. 10.Lacerated punctured wound in the lower part of the chest at 6’0 clock position measuring 0.25 x 0.25 cm, margins inverted. No blackening was seen around the margins. It was 9.5 cms from the mid line and 6.5 cms below the right nipple. Fresh bleeding was present and x-ray was advised. 11.Lacerated punctured wound 0.25 x 0.25 cm present in the lower part of right chest at 7’o clock position, 14 cms from the mid line and 15.5 cms below the nipple. Fresh bleeding was present. No blackening was seen around the margins. Margins were inverted and x-ray was advised. 12.Lacerated punctured wound 0.25 x 0.25 cms in the right hypochondriac region, margins inverted. No blackening was seen around the margins. It was 6 cms from the mid line and 5 cms below the coastal margins. Fresh bleeding was present and x-ray was advised. 13.Lacerated punctured wound 0.25 x 0.25 cm present in the upper part of the left chest at 9’o clock position. It was 2 cms from the mid line and10.5 cms below the sternal end of the clavicle margins inverted. No blackening was seen around the margins. Fresh bleeding was present. X-ray was advised. 9. According to him the patient was conscious, BP was 140/84 MM of Hg and pulse was 110 PM. Corresponding holes were present in the shirt and that all the injuries were caused by fire arm. On the same day he also medically examined Dalip Singh and found the following injury on his person :- 1. X-ray was advised. 9. According to him the patient was conscious, BP was 140/84 MM of Hg and pulse was 110 PM. Corresponding holes were present in the shirt and that all the injuries were caused by fire arm. On the same day he also medically examined Dalip Singh and found the following injury on his person :- 1. Lacerated punctured wound 0.25 x 0.25 cm present on the anterio lateral aspect of the upper part of left forearm. It was 3 cms blow the elbow joint, margins inverted. No blackening was seen around the margins. Fresh bleeding was present. A round hard foreign body simulating pallet was felt in the upper part of the left forearm. It was 8.5 cms medially from the bones and 1.5 cms below the left elbow joint. Corresponding hole was present on the sleeve of the shirt. The area was tender on touch and x-ray was advised. 10. PW-3 Dr. I.M. Challana deposed that on 2.11.1995, at about 9.30 AM, he conducted postmortem examination on the dead body of Kala Singh and found the following injuries on his person :- 1. Lacerated punctured wound with inverted margins measuring .5 cm x .5 cm on the nose with collar of the abrasion present around slightly on right side, 1 cm above the nostrils. 2. Lacerated punctured wound with inverted margins .5 cm x .5 cm right side of face, collar of abrasion present around the wound. 3. A lacerated punctured wound with inverted margins .5 cm x . 5 cm and collar of abrasion around it on the neck slightly above and on the right side of hyoid bone. 4. A lacerated punctured wound with inverted margins .5 cm x . 5 cm with collar of abrasion around on the left shoulder joint. 5. Two lacerated punctured wounds each measuring .5 cm x .5 cm inverted margins and collar of abrasion present around at a distance of 1 cm from each other on right shoulder joint. 6. 14 lacerated punctured wounds with inverted margins each measuring .5 cm x .5 cm each and collar of abrasion a round each on the anterior part of the chest on both sides. 7. An abrasion 10 cms x 0.5 cm on the back of chest both sides crossing at 0-7 vertebras slightly oblique. 8. An abrasion 1 cm x 0.5 cm on left side of face horizontal. 9. 7. An abrasion 10 cms x 0.5 cm on the back of chest both sides crossing at 0-7 vertebras slightly oblique. 8. An abrasion 1 cm x 0.5 cm on left side of face horizontal. 9. A lacerated punctured wound .5 cm x .5 cm with inverted margins on lower lip right side. Collar of abrasion present around the wound. 11. The doctor opined that Kala Singh died due to hemorrhage and shock due to injuries to the heart and lungs which were sufficient to cause death in the ordinary course of nature and all the injuries were ante mortem in nature. He proved the autopsy report Ex.P6 and pictorial diagram showing the seats of injuries Ex.P6/A. 12. PW-4 Gurmit Singh is the complainant. 13. PW-5 Dalip Singh and Gurbax Singh PW6 are the injured witnesses. 14. PW-7 Swaran Singh Patwari proved the scaled site plan Ex.P10 and certified copy of khasra girdawri Ex.P11 and certified copy of jamabandi Ex.P12. 15. PW-8 HC Jaswant Singh and PW9 LC Darshan Singh tendered into evidence their affidavits Ex.P13 and Ex.P14. 16. PW-10 SI Jaswinder Singh had arrested the accused Paramjit Singh. 17. PW-11 Dalip Singh was the witness to the recovery of pistol in pursuance to the disclosure statement made by Khushal Singh accused. 18. PW-12 SI Bhupinder Singh was the Investigating Officer. 19. After tendering into evidence report of the Forensic Science Laboratory Ex.P27 and Ex.P28, the prosecution closed its evidence. 20. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Accused Khushal Singh further pleaded that he along with his co-accused was constructing the bricks of mud in their land. The complainant party along with deceased Kala Singh came there duly armed and attacked and caused injuries to them. He further pleaded that in his self-defence, he fired at the complainant party. Identical pleas had been taken by the accused Paramjit Singh. In defence, the accused examined Dr. Suman Sikri (DW-1). Ultimately, the trial ended in conviction. Hence this appeal. 21. We have heard Mrs. Baljeet Kaur Mann, learned counsel for the appellants, Mr. S.S. Bhinder, learned Additional Advocate General, Punjab and perused the records of this case with their able assistance. 22. In defence, the accused examined Dr. Suman Sikri (DW-1). Ultimately, the trial ended in conviction. Hence this appeal. 21. We have heard Mrs. Baljeet Kaur Mann, learned counsel for the appellants, Mr. S.S. Bhinder, learned Additional Advocate General, Punjab and perused the records of this case with their able assistance. 22. The facts which emerged from the evidence on the record and which need no further scrutiny are that Khushal Singh accused has not denied the occurrence. The parties are neighbours and there was a dispute over the land. Accused Khushal Singh has also not denied having fired shots with his pistol at the complainant party. However, he has set up a different version that he fired in his self defence. The pre-requisite to make available the right of private defence to the accused, two essential conditions are required to be determined and if the following conditions stand decided in their favour, then they could cross the hurdle and claim right of private defence of the property and body:- 1. who is in possession of the land; and 2. whether the accused Khushal Singh suffered injuries during the same occurrence and if so, whether the said injuries could be sufficient to provide him a right to kill Kala Singh and causing injuries to Dalip Singh and Gurbax Singh fire arms. 23. Now coming to the first essential, it is the definite case of the prosecution, as coming from the mouth of Gurmit Singh (PW4), Dalip Singh (PW5) and Gurbax Singh (PW6) that they had purchased the said land from the uncle of Khushal Singh and they were in possession of the same. The aforesaid ocular version given by the witnesses stands corroborated by the copy of Khasra Girdawari Ex.P11, which reveals that in the year 1991 one Buta Singh was in possession of the said land but Khushal Singh was recorded in possession and he remained as such up till the year 1993. Then, after mutation of sale was sanctioned in favour of the complainant party, Gurmit Singh (PW4) came in possession of the said land and he continued as such till the time of occurrence i.e. 1.11.1995. This documentary evidence could not be rebutted by any order of authority holding that the said entries were not correct. Then, after mutation of sale was sanctioned in favour of the complainant party, Gurmit Singh (PW4) came in possession of the said land and he continued as such till the time of occurrence i.e. 1.11.1995. This documentary evidence could not be rebutted by any order of authority holding that the said entries were not correct. This fact has also not been denied by the accused that the complainant party had not purchased this land or that Khushal Singh etc. had better title over the said land. No question was put to Swaran Singh Patwari (PW7) that the complainant party was not lawful owner of the said land. The accused tried to rebut the evidence regarding possession by producing on record copy of rapat roznamcha Ex.D1 to Ex.D3. On perusal of the said documents, it transpires that the civil Court had directed both the parties to maintain status quo regarding the possession of the suit property, as such these three documents are also of no help to the case of the accused so as to claim right of private defence over the said land. Even according to Khushal Singh accused, if they had placed some bricks over the land owned by the complainant party, even then it does not give the accused a right to protect the said property by playing a fire works. The accused being not in possession of the property in dispute, had no right to enter in the said property. As such, sufficient material on the record, as referred to above, lends us to hold that the complainant party was in possession of the land in dispute where the occurrence took place. 24. Now coming to the other factor, as to which party was the aggressor, before laying our hands to determine this question, we are setting to decide if the accused Khushal Singh suffered injuries during the occurrence. As per Dr. Suman Sikri (DW1), Khushal Singh was admitted in the Civil Hospital at 9.40 PM and he was examined at 10.20 PM and was found having suffered the following injuries :- 1. An incised wound 3.5 cms x 0.3 cm on the anterior hair line, left side of forehead 2 cms from anterior. 2. Lacerated wound measuring 1 cm x 0.5 cm situated on the posterior side of left forearm. 6 cms from the left elbow joint. An incised wound 3.5 cms x 0.3 cm on the anterior hair line, left side of forehead 2 cms from anterior. 2. Lacerated wound measuring 1 cm x 0.5 cm situated on the posterior side of left forearm. 6 cms from the left elbow joint. It was associated with swelling 8 cms x 6 cms slightly bluish in colour. 3. Complaining of pain in the right hip. 4. Swelling 6 cms x 3 cms bluish in colour situated on posterior lateral aspect of right side of forearm. It was hot tender and painful. 5. Abrasion 2.5 cms x 0.2 cm on dorsal aspect of right hand. 6. Abrasion 1.5 cms x 0.2 cm on postero medial side of index finger in its proximal 1/3rd. 25. He further opined that injuries No.3 and 4 are not observatory whereas the remaining injuries were simple in nature. The possibility of injuries No.2, 3 and 4 being on the non vital parts, having been self suffered could not be ruled out. It may further be observed that the majority of the injuries are in the shape of abrasions, complaining of pain or swelling. 26. Now the question arises, whether these injuries were suffered by the accused Khushal Singh in the said occurrence? It may be pointed out that the occurrence in this case took place at 3.00 PM; Civil Hospital, Jalalabad is at a distance of 8 kms only; the FIR in this case was registered at 5.55 PM and the special report reached the Illaqa Magistrate at 9.00 PM. The accused appears to have gone to the hospital only after the FIR reached the Illaqa Magistrate and the process of investigation commenced. No explanation has come forth in order to establish as to what permitted the accused to withhold himself or from stopping himself for medical examination for full 6 hours and then to abruptly go for medical examination after the case was registered. Obviously, that may be due to the result of due deliberations and consultations to make a false defence. In any case, the superficial injuries could not permit the accused to avail the right of self-defence by causing gun shot injuries to three persons especially when he had no right over the property for which he had developed the grudge. 27. Obviously, that may be due to the result of due deliberations and consultations to make a false defence. In any case, the superficial injuries could not permit the accused to avail the right of self-defence by causing gun shot injuries to three persons especially when he had no right over the property for which he had developed the grudge. 27. Assuming for the sake of arguments that Khushal Singh accused suffered injuries at the time of occurrence, even then on comparison of injuries, it transpires that Gurbax Singh suffered 13 injuries, Dalip Singh suffered one injury and Kala Singh suffered 9 injuries, whereas Khushal Singh accused suffered 6 injuries, which were virtually superficial. In order to seek the protection of right of self defence, he had to establish that he did not cause more harm then what he suffered. The injured were not armed with any fire arms, whereas the accused was armed with 12 bore pistol. As such, viewing the case from any angle, right of self defence is not available to the accused Khushal Singh. 28. Now coming to participation of Paramjit Singh accused. No doubt, he was present at the spot. He is stated to be armed with sharp cutting instrument i.e. datter, a blow of which could result a sharp edged injury, but he did not cause any such injury to the deceased or the witnesses. The part attributed to him is that he gave a blow of the datter from the blunt side on the person of the deceased, which is in the shape of abrasion. The deceased died of the fire arm injuries. Paramjit Singh did not cause any fatal injury to the deceased or to any of the injured i.e. Dalip Singh and Gurbax Sigh, therefore, he could not be said to have common intention with Khushal Singh in the commission of murder. Had he shared any intention with Khushal Singh then he would not have felt satisfied by causing simple injury that too from the blunt side of the datter. Had he shared any intention with Khushal Singh then he would not have felt satisfied by causing simple injury that too from the blunt side of the datter. Since the accused have admitted the presence of Paramjit Singh accused at the spot, therefore, we refrain from holding that he was not present at the spot, but at the same time we could well observe that Paramjit Singh having no common intention with Khushal Singh committed murder but he could be held guilty for the simple injuries given by him on the back of the chest of Kala Singh deceased. As such, offence if any committed by him falls within the purview of Section 323 IPC. In the wake of aforesaid discussions, we partly accept the appeal, set aside the impugned judgment qua accused-appellant Paramjit Singh and acquit him of the charge under Sections 302/307/34 IPC. However, he is convicted under Section 323 IPC and sentenced to the period already undergone by him. The appeal qua accused Khushal Singh stands dismissed. ——————————