Ms. Savita Kumari Vs. Union of India and Anr.
EmailAppeal: Writ Petition (Criminal) No. 322 of 1988
(with R.P. (Crl.) No. 134/89 in S.L.P. (Crl.) No 970/85)
(with R.P. (Crl.) No. 134/89 in S.L.P. (Crl.) No 970/85)
Petitioner: Ms. Savita Kumari
Respondent: Union of India and Anr.
Apeal: Writ Petition (Criminal) No. 322 of 1988
(with R.P. (Crl.) No. 134/89 in S.L.P. (Crl.) No 970/85)
(with R.P. (Crl.) No. 134/89 in S.L.P. (Crl.) No 970/85)
Judges: K. JAYACHANDRA REDDY & S.P. BHARUCHA, JJ.
Date of Judgment: Feb 04, 1993
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860:
Sections 302 and 304 Part I – Injuries on the accused – Plea of self defence – Right exceeded – Appellant convicted under section 304 Part I instead of section 302.
Practice and Procedure
Criminal law – Review petition – Self defence – Question is one of law and fact – Such a question can be examined if the court is satisfied. (Para 5)
Criminal law – Plea of self defence – Accused need not prove the same beyond reasonable doubt – The Court has to examine the probabilities in appreciating such a plea. (Para 4)
JUDGEMENT:
K. JAYACHANDRA REDDY, J. :
1. One Sham Lal alias Sham Sunder alongwith two others were tried for offences punishable under Sections 302, 302/34 and 307/34 I.P.C. and the trial court convicted all the three of them and sentenced each one of them to undergo imprisonment for life and also other terms of imprisonment and to pay some fine. The sentences were directed to run concurrently. They preferred an appeal to the High Court and the High Court agreeing with the findings of the trial court dismissed the appeal. Questioning the same they preferred S.L.P. (Crl.) No. 970/85 in this Court but the same was dismissed by this Court by an order dated 18.11.85. It appears that during the pendency of the appeal before the High Court, Sham Lal filed a petition to take action under the Punjab Borstal Act, 1926 but the same was dismissed. Against that order, it appears that a different S.L.P. was filed but that was also dismissed and we are not concerned with that at this stage. As against the order dismissing S.L.P. (Crl.) No.970/85, Review Petition No. 134/89 was filed. Writ Petition No. 322 of 1988 was filed under Article 32 of the Constitution of India questioning the vires of the provisions of the Punjab Borstal Act on the ground that they are inconsistent with and are violative of Articles 14 and 21 of the Constitution. We will first take up Review Petition No. 134/89 filed by Sham Lal, A-2.
Review Petition No.134/89 in
S.L.P. (Crl.) No. 970/85
2. Sham Lal was convicted under Section 302 I.P.C. and sentenced to imprisonment for life and to pay a fine of Rs.3,000/- in default of payment of which to undergo further R.I. for 1-1/2 years, under Section 307 I.P.C. to undergo five years R.I. and a fine of Rs. 2,000/- in default of payment of which to undergo further R.I. for one year and also under Sections 307/34 I.P.C. to undergo three years R.I. and a fine of Rs. 1,000/- in default of payment of which to undergo further R.I. for one year. These convictions and sentences are confirmed by the High Court. As against that, he alongwith other two convicted accused filed S.L.P. (Crl.) No. 970/85 which was dismissed by this Court and the present Review Petition is filed against the dismissal order in S.L.P. (Crl.) No. 970/85 by Sham Lal alone. It may be mentioned here that notice has already been ordered on this review petition. From the contents of the review petition it can be seen that the petitioner sought review not only on the ground of legality of the conviction but also on the question of sentence namely that he should have been sent to the Borstal School as he was aged only 21 years then. To appreciate these contentions we shall state a few facts which led to the filing of this review petition as well as the writ petition.
3. The petitioner alongwith other two accused were tried for causing the death of one Kashmir Singh on 30.4.82 and also attempting to cause the death of Balbir Singh and Bishan Singh. This occurrence took place because of a land dispute. On the day of occurrence the deceased and the two injured witnesses were returning to the village after harvesting the crop in a tractor to which a trolley was attached. The deceased was driving the tractor. Balbir Singh, P.W.7 and Bishan Singh P.W.8 were sitting on the mud-guard and Dalip Singh, P.W.6 was sitting in the trolley. When they reached near the Karyana Shop in the grain market they found all the accused there. Tek Chand, A-1 was carrying a double-barrel gun and the petitioner Sham Lal was carrying a revolver and Tilak Raj was carrying a stick. It is alleged that Tilak Raj raised a lalkara. Thereupon Tek Chand fired his gun causing injury to Bishan Singh, P.W. 8 and the petitioner Sham Lal fired at Kashmir Singh deceased and he also caused injury to Balbir Singh, P.W.7 on the left leg. During the same occurrence Tilak Raj, A-3 also was seriously injured. People gathered there and the accused are alleged to have run away. During the post-mortem conducted on the dead body of Kashmir Singh, the Doctor P.W.3 found two wounds, one entry wound and another exit would which could have been caused by single gun shot. On Balbir Singh, another Doctor, P.W.4 found one punctured wound and on Bishan Singh, he found only two abrasions. Tilak Raj was also admitted in the hospital. The petitioner in his statement stated that on 30.4.82 about 8.30 P.M. Tilak Raj and farm servant went in a tractor trolley loaded with grains for marketing. He and his father Tek Chand started in their matador van and overtook their tractor near the turning in the market. Near that point they saw a tractor driven by Dalip Singh, P.W.6 coming from the opposite direction and in the trolley of that tractor, Bishan Singh, Balbir Singh, Shingara Singh P.Ws and Kashmir Singh deceased were riding. They tried to dash against the trolley driven by the petitioner and his father. Thereupon Dalip Singh hurled abuses. The petitioner got down and fired into the air. Thereafter they went into the market and they were sitting on a cot lying in front of the shop. At that time Bishan Singh armed with a Karai, Kashmir Singh armed with a dang fitted with iron patti and Balbir Singh, Shingara Singh armed with dangs chased them. Bishan Singh tried to snatch the gun from Tek Chand, father of the petitioner. This Tilak Raj tried to resist. Thereupon the deceased gave a dang blow on the head of Tilak Raj and other witnesses also gave blows to Tilak Raj who became unconscious. The petitioner’s father Tek Chand also received injuries. The petitioner also was attacked by the deceased and others and caused him injuries. At that juncture, the petitioner took out a revolver and fired two shots in the air but the deceased and other P.Ws did not desist from attacking. Then in order to save himself, his father and Tilak Raj the petitioner fired at Kashmir Singh and Balbir Singh. From the above stand taken by the petitioner, it can be seen that the petitioner specifically pleaded self-defence. The Doctor, D.W.2 who examined Tek Chand found as many as 14 contusions all over the body and injury no 13 was an incised wound on the leg. The same Doctor also examined the petitioner and on him he found one incised wound and two contusions. On Tilak Raj, the other accused there were very serious injuries and he was examined by a Doctor, P.W.4 who examined other P.Ws also. The Doctor found on Tilak Raj one lacerated wound 1.5cm x .25 cm vertical on the forehead bleeding. There was another lacerated wound 3 cm x .5 cm and vertical limb was 4.5 cm x .5 cm on the left side of the head in front of parietal region. The Doctor also stated that Tilak Raj was in semi conscious condition. The Doctor further opined that injury no. 2 was grievous as it resulted in the fracture of the frontal parietal bone. It is important to note that the prosecution has not come forward with a plausible and acceptable explanation for the presence of these injuries on the accused. The High Court has not considered the importance of this aspect in a proper perspective.
4. In view of these injuries present on all the three accused the plea of self defence put forward by them particularly by the petitioner was an important question. But the High Court took the view that the prosecution version as given by P.Ws gets corroborated by the medical evidence and that the injuries on Tek Chand and Sham Lal could be self-inflicted. The observation reads like this: “It was not difficult for them to create injuries on their persons and got themselves medically examined”. The High Court also observed that whole of defence version is a concoction and there are some of the police officers who supported them by their acts of commissions and omissions. Some of the observations made in the judgment are to the effect that the police tried to help the accused and in that process the injuries also could have been got self-inflicted. This view of the High Court does not appear to be correct especially when we examine injuries on Tilak Raj and Tek Chand. One of the injuries on Tilak Raj even resulted in the fracture of parietal bone and could have even resulted in his death but luckily he survived. The Doctor found that Tilak Raj was in a stupor at the time of medical examination. But the High Court rejected the plea of defence making the above mentioned observations. When the accused has taken a specific plea of self defence he need not prove the same beyond all reasonable doubt. The Court has to examine the probabilities in appreciating such a plea. In this context we must also bear in mind the nature of the injuries found on the deceased and P.Ws 7 and 8. On the deceased there were two wounds, one entry wound and another exit wound, which could have been caused by single gun-shot. On P.W.7 there was only one injury and on P.W.8 there were only two abrasions. Having regard to the nature of the injuries on all the three accused, P.Ws and the deceased, we find that the plea taken by the petitioner that he acted in self-defence to save himself, his father and Tilak Raj appears to be probable and the view taken by the High Court that the injuries could have been self-inflicted is unreasonable particularly in the light of serious injuries received by Tilak Raj.
5. In S.L.P.(Crl.) No. 970/85 as well as in this Review Petition a specific ground on this aspect has been taken by the petitioner supported by details. But S.L.P. (Crl.) No. 970/85 was dismissed. Later in the Review Petition again this aspect was urged along with the question of age of the petitioner and his being sent to Borstal School instead of jail. A Bench of this Court ordered notice. We are aware that in review petition, an error of substantial nature only can be reviewed. When a plea of self-defence is taken and if the court is satisfied that it is probable and there is basis for the same and if the benefit is to be given to the accused, then the legality of the conviction itself is involved. The question of self-defence is one of both law and fact. In a review petition such a question can be examined if the court is satisfied.
6. Learned counsel appearing for the State and also the learned counsel appearing for the complainant submitted that the question is limited only to the age and there is no other point which can be considered in the review petition. There is no such indication both in the S.L.P. as well as in the review petition. On the other hand the plea of self-defence also has been put forward. When once notice is ordered in the review petition without limiting the same to any specific point, the Court can look into and consider the plea of self-defence which is also a point specifically urged.
7. Having given our careful consideration, we are of the opinion that the appellant is entitled to the right of self-defence but he has exceeded the same inasmuch as he caused more than one fire-arm injury to the deceased and also to Balbir Singh. In this view of the matter the conviction of the petitioner under Section 302 I.P.C. and sentence of imprisonment of life are set aside. Instead he is convicted under Section 304 Part I I.P.C. and a sentenced to seven years R.I. The other convictions and sentences are confirmed. The Review Petition is accordingly allowed to the extent indicated above.
Writ Petition (Crl.) No. 322/88
8. In this Writ Petition the provisions of the Punjab Borstal Act, 1926 have been challenged on the ground that they are inconsistent with and are violative of Articles 14 and 21 of the Constitution by Ms. Savita Kumari, on behalf of her brother Sham Lal, accused in Review Petition No. 134/89 (in SLP(Crl.) No. 970/85). This question can be gone into provided we are satisfied about the age of Sham Lal. We have examined all the documents which would reveal that there is any amount of dispute about his age. Since the same is a highly disputed question of fact we can not decide his age. In this view of the matter it may not be necessary for us to consider the question of the validity of the provisions of the said Act since the petitioner can not claim any relief under the provisions of the said Act. The Writ Petition is dismissed accordingly.
1. One Sham Lal alias Sham Sunder alongwith two others were tried for offences punishable under Sections 302, 302/34 and 307/34 I.P.C. and the trial court convicted all the three of them and sentenced each one of them to undergo imprisonment for life and also other terms of imprisonment and to pay some fine. The sentences were directed to run concurrently. They preferred an appeal to the High Court and the High Court agreeing with the findings of the trial court dismissed the appeal. Questioning the same they preferred S.L.P. (Crl.) No. 970/85 in this Court but the same was dismissed by this Court by an order dated 18.11.85. It appears that during the pendency of the appeal before the High Court, Sham Lal filed a petition to take action under the Punjab Borstal Act, 1926 but the same was dismissed. Against that order, it appears that a different S.L.P. was filed but that was also dismissed and we are not concerned with that at this stage. As against the order dismissing S.L.P. (Crl.) No.970/85, Review Petition No. 134/89 was filed. Writ Petition No. 322 of 1988 was filed under Article 32 of the Constitution of India questioning the vires of the provisions of the Punjab Borstal Act on the ground that they are inconsistent with and are violative of Articles 14 and 21 of the Constitution. We will first take up Review Petition No. 134/89 filed by Sham Lal, A-2.
Review Petition No.134/89 in
S.L.P. (Crl.) No. 970/85
2. Sham Lal was convicted under Section 302 I.P.C. and sentenced to imprisonment for life and to pay a fine of Rs.3,000/- in default of payment of which to undergo further R.I. for 1-1/2 years, under Section 307 I.P.C. to undergo five years R.I. and a fine of Rs. 2,000/- in default of payment of which to undergo further R.I. for one year and also under Sections 307/34 I.P.C. to undergo three years R.I. and a fine of Rs. 1,000/- in default of payment of which to undergo further R.I. for one year. These convictions and sentences are confirmed by the High Court. As against that, he alongwith other two convicted accused filed S.L.P. (Crl.) No. 970/85 which was dismissed by this Court and the present Review Petition is filed against the dismissal order in S.L.P. (Crl.) No. 970/85 by Sham Lal alone. It may be mentioned here that notice has already been ordered on this review petition. From the contents of the review petition it can be seen that the petitioner sought review not only on the ground of legality of the conviction but also on the question of sentence namely that he should have been sent to the Borstal School as he was aged only 21 years then. To appreciate these contentions we shall state a few facts which led to the filing of this review petition as well as the writ petition.
3. The petitioner alongwith other two accused were tried for causing the death of one Kashmir Singh on 30.4.82 and also attempting to cause the death of Balbir Singh and Bishan Singh. This occurrence took place because of a land dispute. On the day of occurrence the deceased and the two injured witnesses were returning to the village after harvesting the crop in a tractor to which a trolley was attached. The deceased was driving the tractor. Balbir Singh, P.W.7 and Bishan Singh P.W.8 were sitting on the mud-guard and Dalip Singh, P.W.6 was sitting in the trolley. When they reached near the Karyana Shop in the grain market they found all the accused there. Tek Chand, A-1 was carrying a double-barrel gun and the petitioner Sham Lal was carrying a revolver and Tilak Raj was carrying a stick. It is alleged that Tilak Raj raised a lalkara. Thereupon Tek Chand fired his gun causing injury to Bishan Singh, P.W. 8 and the petitioner Sham Lal fired at Kashmir Singh deceased and he also caused injury to Balbir Singh, P.W.7 on the left leg. During the same occurrence Tilak Raj, A-3 also was seriously injured. People gathered there and the accused are alleged to have run away. During the post-mortem conducted on the dead body of Kashmir Singh, the Doctor P.W.3 found two wounds, one entry wound and another exit would which could have been caused by single gun shot. On Balbir Singh, another Doctor, P.W.4 found one punctured wound and on Bishan Singh, he found only two abrasions. Tilak Raj was also admitted in the hospital. The petitioner in his statement stated that on 30.4.82 about 8.30 P.M. Tilak Raj and farm servant went in a tractor trolley loaded with grains for marketing. He and his father Tek Chand started in their matador van and overtook their tractor near the turning in the market. Near that point they saw a tractor driven by Dalip Singh, P.W.6 coming from the opposite direction and in the trolley of that tractor, Bishan Singh, Balbir Singh, Shingara Singh P.Ws and Kashmir Singh deceased were riding. They tried to dash against the trolley driven by the petitioner and his father. Thereupon Dalip Singh hurled abuses. The petitioner got down and fired into the air. Thereafter they went into the market and they were sitting on a cot lying in front of the shop. At that time Bishan Singh armed with a Karai, Kashmir Singh armed with a dang fitted with iron patti and Balbir Singh, Shingara Singh armed with dangs chased them. Bishan Singh tried to snatch the gun from Tek Chand, father of the petitioner. This Tilak Raj tried to resist. Thereupon the deceased gave a dang blow on the head of Tilak Raj and other witnesses also gave blows to Tilak Raj who became unconscious. The petitioner’s father Tek Chand also received injuries. The petitioner also was attacked by the deceased and others and caused him injuries. At that juncture, the petitioner took out a revolver and fired two shots in the air but the deceased and other P.Ws did not desist from attacking. Then in order to save himself, his father and Tilak Raj the petitioner fired at Kashmir Singh and Balbir Singh. From the above stand taken by the petitioner, it can be seen that the petitioner specifically pleaded self-defence. The Doctor, D.W.2 who examined Tek Chand found as many as 14 contusions all over the body and injury no 13 was an incised wound on the leg. The same Doctor also examined the petitioner and on him he found one incised wound and two contusions. On Tilak Raj, the other accused there were very serious injuries and he was examined by a Doctor, P.W.4 who examined other P.Ws also. The Doctor found on Tilak Raj one lacerated wound 1.5cm x .25 cm vertical on the forehead bleeding. There was another lacerated wound 3 cm x .5 cm and vertical limb was 4.5 cm x .5 cm on the left side of the head in front of parietal region. The Doctor also stated that Tilak Raj was in semi conscious condition. The Doctor further opined that injury no. 2 was grievous as it resulted in the fracture of the frontal parietal bone. It is important to note that the prosecution has not come forward with a plausible and acceptable explanation for the presence of these injuries on the accused. The High Court has not considered the importance of this aspect in a proper perspective.
4. In view of these injuries present on all the three accused the plea of self defence put forward by them particularly by the petitioner was an important question. But the High Court took the view that the prosecution version as given by P.Ws gets corroborated by the medical evidence and that the injuries on Tek Chand and Sham Lal could be self-inflicted. The observation reads like this: “It was not difficult for them to create injuries on their persons and got themselves medically examined”. The High Court also observed that whole of defence version is a concoction and there are some of the police officers who supported them by their acts of commissions and omissions. Some of the observations made in the judgment are to the effect that the police tried to help the accused and in that process the injuries also could have been got self-inflicted. This view of the High Court does not appear to be correct especially when we examine injuries on Tilak Raj and Tek Chand. One of the injuries on Tilak Raj even resulted in the fracture of parietal bone and could have even resulted in his death but luckily he survived. The Doctor found that Tilak Raj was in a stupor at the time of medical examination. But the High Court rejected the plea of defence making the above mentioned observations. When the accused has taken a specific plea of self defence he need not prove the same beyond all reasonable doubt. The Court has to examine the probabilities in appreciating such a plea. In this context we must also bear in mind the nature of the injuries found on the deceased and P.Ws 7 and 8. On the deceased there were two wounds, one entry wound and another exit wound, which could have been caused by single gun-shot. On P.W.7 there was only one injury and on P.W.8 there were only two abrasions. Having regard to the nature of the injuries on all the three accused, P.Ws and the deceased, we find that the plea taken by the petitioner that he acted in self-defence to save himself, his father and Tilak Raj appears to be probable and the view taken by the High Court that the injuries could have been self-inflicted is unreasonable particularly in the light of serious injuries received by Tilak Raj.
5. In S.L.P.(Crl.) No. 970/85 as well as in this Review Petition a specific ground on this aspect has been taken by the petitioner supported by details. But S.L.P. (Crl.) No. 970/85 was dismissed. Later in the Review Petition again this aspect was urged along with the question of age of the petitioner and his being sent to Borstal School instead of jail. A Bench of this Court ordered notice. We are aware that in review petition, an error of substantial nature only can be reviewed. When a plea of self-defence is taken and if the court is satisfied that it is probable and there is basis for the same and if the benefit is to be given to the accused, then the legality of the conviction itself is involved. The question of self-defence is one of both law and fact. In a review petition such a question can be examined if the court is satisfied.
6. Learned counsel appearing for the State and also the learned counsel appearing for the complainant submitted that the question is limited only to the age and there is no other point which can be considered in the review petition. There is no such indication both in the S.L.P. as well as in the review petition. On the other hand the plea of self-defence also has been put forward. When once notice is ordered in the review petition without limiting the same to any specific point, the Court can look into and consider the plea of self-defence which is also a point specifically urged.
7. Having given our careful consideration, we are of the opinion that the appellant is entitled to the right of self-defence but he has exceeded the same inasmuch as he caused more than one fire-arm injury to the deceased and also to Balbir Singh. In this view of the matter the conviction of the petitioner under Section 302 I.P.C. and sentence of imprisonment of life are set aside. Instead he is convicted under Section 304 Part I I.P.C. and a sentenced to seven years R.I. The other convictions and sentences are confirmed. The Review Petition is accordingly allowed to the extent indicated above.
Writ Petition (Crl.) No. 322/88
8. In this Writ Petition the provisions of the Punjab Borstal Act, 1926 have been challenged on the ground that they are inconsistent with and are violative of Articles 14 and 21 of the Constitution by Ms. Savita Kumari, on behalf of her brother Sham Lal, accused in Review Petition No. 134/89 (in SLP(Crl.) No. 970/85). This question can be gone into provided we are satisfied about the age of Sham Lal. We have examined all the documents which would reveal that there is any amount of dispute about his age. Since the same is a highly disputed question of fact we can not decide his age. In this view of the matter it may not be necessary for us to consider the question of the validity of the provisions of the said Act since the petitioner can not claim any relief under the provisions of the said Act. The Writ Petition is dismissed accordingly.
