HARDIAL SINGH AND OTHERS versus STATE OF PUNJAB

Citation: [1996] SUPP. 1 S.C.R. 114 · Decided: 09-04-1996 · Supreme Court of India · Bench: M.K. MUKHERJEE · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
HARDIAL SINGH AND OTHERS 
v. 
-
STATE OF PUNJAB 
APRIL 9, 1996 
B 
[M.K. MUKHERJEE AND G.B. PATTANAIK, JJ.] 
Indian Penal Code, 186(}-Sections 302, 326/149, 148, 326-Prosecutiofl 
• 
of 5 accused for offences under-Acquittal of two accuse~onviction of 
three acrnsed by applying Sec. 149 IPC-Wlzet11er sustainable-Held, Na-In-
c dividual ove1t acts of appellants to be considered. 
The three appellants alongwith the two acquitted accused were 
prosecuted for offences u/Ss. 148, 302/149 IPC on the allegation that they 
came armed with guns and rifles and fired ~t the deceased as well as the 
injured PW 5 and other members of the informant party who were cultivat-
D ing the land. All the five accused were related to each other. The Tuo 
accused were acquitted, giving them benefit bf doubt on a conclusion that 
the prosecution evidence did not prove the, charge against them beyond 
reasonable doubt. The three appellants wer~ convicted differently, He was 
convicted u/s 302, 148, 326/149 IPC, appellant u/s 148, 302/149 and 326 IPC 
E 
and appellant G u/s 148, 302/149 IPC. High Court confirmed their convic-
!ions. This appeal had been filed against the jndgment of the High Court. 
The appellants contended that five kn~wn persons being charged u/s 
302/149 !PC and two of them having been acquitted of the charge the 
conviction of the three appellants by taking recourse to Section 149 IPC 
F 
was unsustainable; that the entire prosecution case based on the evidences 
of PWs 4 and 5 should not be accepted in view of inherent inconsistencies 
accepted in their statements and their evidence being contrary to the 
medical evidence; that it being a case of free fight, the individual accused 
persons might thus be liable for their individual acts and could not be 
G made conjointly liable; that appellant H having sustained serious injuries 
in course of the incident, the only conclusion possible was that he had fired 
from his gun in private defence of his person and therefore, he could not 
be held liable for the offence of murder. 
I ' 
The respondent State submitted that in view of the acquittal of the 
H two accused persons, provision of Section 149 !PC could not be applied 
114 
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HARDIALSINGH v. STATE 
115 
and though under law it was possible for a court to convict the accuse.d A 
persons charged u/s 302/149 !PC by altering it to one u/s. 302/34 !PC but 
in this case on the evidence on record it being difficult to convict the three 
appellants u/s 302/34 !PC, the individual overt acts of the appellants had 
to be considered and that in view of the positive evidence of PWs 4 and 5 
conviction of appellant H u/s 302 !PC and of two other appellants u/s 326 B 
!PC was unassailable and could not be interfered with. 
Allowing the appeals in part, this Court 
· HELD : l.l. The death of deceased was on account of the gun shot 
injury on his chest which in turn had been caused on account of tiring C 
from the gun of appellant H. So far as the two other appellants were 
concerned, the gun shot from the appellant G had caused an injury on the 
right forearm of the deceased and the gun shot from the appellant U had 
caused an injury on the thigh of P.W. 5. The evidence of P.Ws. 4 and 5 had 
been believed by the two courts below and there was no ground to discard D 
that testimony. Appellant H had sustained one lacerated inl£t wound on 
the posterio medical aspect of right leg having a corresponding lacerated 
outlet wound, the injury was grievous in nature as the X-ray report 
indicated that the right fibula had been fractured. But that by itself cannot 
be basis to establish a claim of right of private defence of person. The land 
in question was admittedly in cultivation of the informant party and the E 
accused persons reached the place fully armed with guns and rifles. As 
stated by P.W. 4 when the informant party did not stop the ploughing, it 
was accused G who first tired which hit the right arm of the deceased and 
then in self defence P.W. 5 tired two shots from his gun and thereafter 
accused H tired from his gun which hit the chest of the deceased. Accused F 
U also had tired from his rifle which hit the left thigh of P.W. 5. It was the 
accused persons who must be held to be aggressor and the plea of right of 
private defence of person could not be available to them. It was the gun 
shot from two firings made by PWS in self defence which had caused the 
injury on accused H. When the accused persons came anned to the p

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