LexBHAJAN SINGH versus STATE OF PUNJAB
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-l BHAJAN SINGH v. STATE OF PUNJAB August 31, 1978 [JASWANT SINGH AND P. S. KAILASAM, JJ.] 527 Evidence-Appreciation of evidence in ca.ses of Statutory appeals u1lder s. 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisd1ct1on) Act, 1910 by the Supreme Court-Supreme C,ourt i.SJ a court of appeal under the Act and has got to go into all the questions of fact and law and decide cases on merits, unlike its jurisdiction under Art. 136 of the Constitution. Right of private defence of property-Onus to prove right of private defence is on the, defence-S. 97, Secondly read wit ii s. 99i of the Penal Code 1860 (Act XLV), Penal Codes. 149 scope of. Eight accused including th_e five "'PPellants in this appeal were charged and A B c tried for various offences punishable under the Penal Code, for rioting being armed with deadly weapons and for causing the death of one Pakhar Singh by D inflicting grievous hurt and simple hurt to Pritam Kaur (PW-3), his wife. Tho case of the prosecution as to the motive was that Pakhar Singh, the deceased filed on 28-10-69 a declaratory suit claiming certain lauds as his, while his sister also claimed the said lands as hers and; that on the dat.e of the incident the suit was pending and an interim order was passed to the effect that the parties hnd agreed in respe.ct of the question of possession that Matus quo will be main- tained; and that an exparte injunction was issued in favour of the deceased; E that the accused by the strength of numbers wanted to conclude the litigation by taking forcible possession and therefore with weapons hidden in the field <;aused grievous injuiies to Pak.har Singh out of which injury No. 1 was opined by the doctor as sufficient to cause death in the ordinary course of nature. The Additional Sessions Judge, Patiala found the accused not guilty of the various o!lences and acquitted them all. But the High Court in appeal by the State against the acquittal maintained the acquittal in reSPOCt of three accused but F reversed the order of acquittal of the appellants and convicted them under s. 302/ 149, 325/149, 323 /149 aod IPC aod sentenced them to imprisonment for life aod a fine of Rs. 1,000/- each for an offence under s. 302/149, They were also sentenced to rigorous imprisonment for 2 years, 1 year and six months for the offences under s. 325/149, 148 aod 323/149 respectively. Hence tho statutory appeal under s. 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction), Act 1970. G Allowing the appeal partly the Court HELD : (1) By s. 2(a) of the Supreme Court (Enlargement of Criminal Appell>te Jurisdiction) Act, 1970 any accused who has been acquitted by tho trial court, but, on appeal by the State convicted and sentenced by the High Court, as specified in the section is entitled, as of right, to appeal to the SUpreme Court. As a Court of appeal, the Supreme Court has got to go into all the questions of fact and law and decide the case on its merits. The question, therefore, whether the High Court rightly interfered on sufficient grounds or • H A B c 528 SUPREME COURT REPORTS [1979] 1 S.C.R. not in a State appeal against acquittal will not be material. A right of appeal has been provided under s. 2(a) of the Act and this Court has to decide the case on its merits. The decisions regarding the scope of appeal against an acquittal the powers of the High Court to interfere in an apeal against acquittal by the State, which may be relevant when the Supreme Court is acting under Art. 136 are not material in deciding an appeal by person whose acquittal bas been set aside by the High Court and who is entitled to prefer an appeal to the Supreme Court. [537 B·E] (2) Though the Court would be entitled, on the material on record to decide whether the question of right of private defence has been established or not it is the duty of the defence to make the necessary material available. [535 B·CJ In the instant case, the plea of right of private defence of property has to be negatived since the accused failed to produce any order vacating the stay (as claimed by them) or any record to show that they bad raised the \Vheat crop. This circumstance and Ex. PE & PF extracts of Khasra Girdwari also probabilise the prosecution case. Three were 8 persons on the field haorvesting the crop l&nd having the necessary weapons to repel any protest by the deceased. If the accused w
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