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CASE NO.:

Appeal (crl.) 1430-1431 of 2003

PETITIONER:

Bishna @ Bhiswadeb Mahato & Ors.

RESPONDENT:

State of West Bengal

DATE OF JUDGMENT: 28/10/2005

BENCH:

S.B. Sinha & R.V. Raveendran

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

Bhadsa is a small village situate at a distance of 12 kms. from the

district headquarters known as Purulia in the State of West Bengal. On

1.12.1982, Prankrishna, deceased and Chepulal (PW-14) heard some sounds

coming from the side of their Shivatara land situate in the said village. They

informed their brother Nepal Mahato (PW-25) about the same. They also

informed Haradhan Mahato (PW-2) and who in turn informed Subhas

Mahato (PW-13). When the three brothers were proceeding towards their

land, Sambhu Mahato (PW-1) met them on the road. When they reached

near the land in question, being Plot No. 550, they found some persons were

engaged in cutting of paddy therefrom. Nilkantha, Bhiswa alias Bishna,

Manmatha alias Mathan, Kalipada, Bulu, Patal, Lalbas, Haralal, Ramanath,

Majhi, Chinbas alias Srinibas (Accused Nos.1 to 11 respectively) were

standing on the ail (Ridge on the agricultural land). The accused persons

were variously armed. They were asked not to cut paddy but did not pay

any heed thereto. Altercations started. All of a sudden, Bulu (Appellant No.

3) threw an arrow which struck Nepal Mahato (PW-25). They also exhorted

shouting "Marsaladiga". The complainant party retreated to some extent.

They were chased near the bed of tank called 'upper bundh'. Nepal Mahato

(PW-25) was surrounded by the accused. He was hit on his left leg with

tabla by Mathan whereas Haralal hit him with a tabla on his back. Bhiswa

(Appellant No. 1) assaulted on his head with a lathi. He fell down on the

ground whereupon Patal struck him with a sword causing injury on his hand.

Ramanath and Nilkantha assaulted him with lathi. Prankrishna, deceased

rushed to save his younger brother whereupon he was assaulted by Mathan

on his right leg with tabla and Bhiswa with lathi. Sambhu Mahato protested

to such assault on the deceased whereupon Lalbas assaulted him with a lathi.

Kalipada (Appellant No. 2) and Nilkantha and Bhiswa (Appellant No. 1)

exhorted that he should be finished whereupon Ramanath took a tabla from

Haralal and struck the deceased at his neck. The deceased succumbed to his

injuries. Further, Bulu threw arrow which struck Chepulal at his head and

Kalipada gave order to finish him whereupon Nilkantha assaulted Sambhu

(PW-1) and Chepulal (PW-14) with lathies in their hand.

Sambhu Mahato (PW-1) came to the district town of Purulia to hire a

vehicle for shifting the injured persons to Purulia Sadar Hospital. In the

meantime, the officer-incharge (PW-28) of the Police Station, Purulia

received a telephonic message that some incident had taken place in the

village. He entered the said information in the diary being G.D. Entry No.

17. He thereafter reached the village round about at 11.40 a.m. and noticed

the dead body of Prankrishna, deceased lying at eastern extremity of the said

tank. J.L. Pahari, a sub-inspector of police who accompanied the officer-

incharge held the inquest on the dead body. Nepal Mahato (PW-25), who

was lying unconscious, was brought to Purulia Hospital in the hired vehicle.

He was accompanied by Chepulal Mahato. Nepal Mahato was admitted in

the said hospital. Sambhu Mahato and Chepulal thereafter went to the police

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station and lodged a first information report.

Upon completion of the investigation, 11 persons named in the first

information report were chargesheeted for commission of various offences.

It is also not in dispute that one of the accused, namely, Mathan also

sustained injuries on his person. The defence of the Appellants and other

accused was that they were the owner of the plot No. 550 of the said village

wherein as one of them was attacked and sustained injuries, they exercised

the right of private defence.

The learned Trial Judge acquitted the Appellants and others for

commission of all offences except one under Section 148 of the IPC inter

alia holding that : (i) the eye-witnesses cannot be relied upon as injury of

Mathan (Accused No.3) had not been explained by the prosecution; (ii) and

there was no evidence of any overt act by Kalipada; and (iii) the prosecution

had failed to fix the responsibility for the death of Prankrishna and injuries

to Nepal, Chepulal, Siju and Sambhu, on any particular accused.

Consequently the Trial Court sentenced all the accused to undergo rigorous

imprisonment for 3 years under Section 148 IPC.

The appeals were preferred thereagainst both by the State of West

Bengal as also by all the accused (except Ramanath, who it is stated has

absconded). The High Court in its impugned judgment, on the other hand,

held that there is no reason to disbelieve the evidence of the eye-witnesses

and in particular the injured witnesses. Lalbehari Mahato (PW-16) and

Ramdulal Mahato (PW-19) came immediately after the occurrence and as

such their presence at the scene of the occurrence cannot be disputed.

Incitement by Kalipada was found to be existing and there was sufficient

evidence in support thereof.

The High Court allowed the State's appeal. In addition to upholding

the conviction and sentencing of all the accused under Section 148 IPC, the

High Court convicted the Appellant Kalipada under Section 302 read with

Section 109; Mathan, Bhiswa and Ramanath under Section 302 read with

Section 34; and sentenced the four of them to undergo rigorous

imprisonment for life. Mathan, Haralal, Ramanath and Patal were convicted

under Section 326 read with Section 34 of the IPC and were sentenced to

undergo rigorous imprisonment for five years. Bulu was convicted under

Section 324 read with Section 34 and was sentenced to undergo rigorous

imprisonment for two years. Lalbas was convicted for commission of an

offence under Section 325 of the IPC and was sentenced to undergo

rigorous imprisonment for three years. Patal was convicted of an offence

under Section 324 and was sentenced to undergo rigorous imprisonment for

two years. The appeal preferred by the Accused from the judgment and

conviction under Section 148 of the IPC was dismissed. In retard to Mahji

and Chinibas, the decision of the Trial Court was not disturbed.

The accused Nilkantha passed away during the pendency of the appeal

before the High Court. After the judgment of the High Court, Mathan has

also died. Ramanath did not prefer any appeal against the judgment of the

trial Court or the High Court, nor did Mahji and Chinibas.

Bishna, Kalipada, Bulu, Patal, Lalbas and Haralal (Accused Nos. 2,

4, 5, 6, 7 & 8) who have been convicted by the High Court are before us.

Before adverting to the rival contentions, we may notice the admitted

facts, which are:

Plot No. 550 is situate in the village Bhadsa measuring 1.05 acres. It

belonged to Kartick Chodhury. Indisputably, 0.65 acres of the said land had

been purchased by the complainants party and they were in possession

thereof. In respect of balance 0.40 acres, the accused persons laid a claim

that they had been cultivating the same as bargadar of the original owner.

The said 0.40 acres of land was purchased by Neelakanta, Manmath and

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Bhiswa under a sale deed executed by Kartick Chodhury.

It is also not in dispute that proceedings under Section 145 of the

Code of Criminal Procedure (for short "the Code") was initiated before an

Executive Magistrate at the instance of the complainants and he had passed

an order that they were to continue in possession of the land in question. On

a criminal revision having been filed by one of the Appellants, the said order

was set aside and the matter was remitted for a fresh finding in accordance

with law.

The finding of fact arrived at by the courts below is that there was no

demarcation between the land purchased by the complainants and the land

purchased by the Appellants, which the complainants were claiming to have

been in their possession. The complainants cultivated the said land and grew

paddy thereupon.

Enmity between the two groups about the possession of the said land

is also not in dispute. A concurrent finding of fact has been arrived that the

allegations made against the Appellants under Section 148 of the IPC for

forming an unlawful assembly has been established.

Despite the same, Mr. Jaideep Gupta, learned senior counsel

appearing on behalf of the Appellants would submit that the said finding

should not be sustained by us as the place of occurrence had not been

established by the prosecution, as according to the Appellants the incident

had taken place in their own land, namely, plot No. 674 and 669.

Mr. Gupta would urge that the prosecution furthermore had not been

able to prove that Joyram, father of Prankrishna, Chepulal Mahato and Nepal

Mahato, was a bargadar in relation to the 40 decimals of land and cultivated

the same. Joyram has also not been examined as a witness.

We do not find any reason to arrive at a different finding that Joyram

and his sons were not in possession of the land in question as bargadar and

had cultivated the same.

In relation to commission of the offences under Section 302 and

Sections 323 to 326 of the IPC, Mr. Gupta would urge:

(i) The witnesses' account were unnatural insofar as their statements are

almost photographic in nature which should not be accepted as admittedly

they have run away from the place of occurrence being in a state of fear.

The description of the incident given by the witnesses is also suspect as

some of the statements made by them had not been disclosed to the

investigating officer as would appear from the evidence of the investigating

officer.

(ii) The prosecution having not explained the injuries of the accused

Mathan, adverse inference must be drawn against the prosecution in view of

the decision of this Court in Lakshmi Singh and Others Vs. State of Bihar

[(1976) 4 SCC 394].

(iii) The evidence of the Gandhi Mahatani (PW-22) suffering from serious

infirmities cannot be relied upon.

(iv) There is no sufficient evidence to show that Kalipada incited any

person to cause death of Prankrishna, deceased nor any evidence has been

brought out to establish that any assault took place in furtherance of a

common intention.

(v) The judgment of the High Court suffers from a serious infirmity

insofar as it held that before proving the contradictions it was necessary for

the defence to put the said statements to the prosecution witnesses while

cross-examining them particularly in view of the fact that a suggestion was

given that they had been deposing falsely. Section 145 of the Evidence Act,

in a situation of this nature, will have no application inasmuch as what was

sought to be established by the defence was that the witnesses had made

statements in the course of the trial which had not been stated by them

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before the investigating officer and, thus, the defence did not want to bring

on records any contradictions made by the witnesses.

(vi) The High Court further fell in error as it failed to take into

consideration that the prosecution witnesses approached the place of

occurrence from the eastern side whereas the accused were chasing them

from the western side, and as such they were attacked, they must have run

away towards the east but yet the deceased was found near the upper bundh

which admittedly was situated in the northern side of the paddy field. Our

attention in this behalf has been drawn to the statements of Sambhu Mahato,

Ambuj, Subhas Mahato who stated that they had been running towards

south.

(vii) A further infirmity has been committed by the High Court in arriving

at its finding without considering the fact that the injuries on the person of

Mathan had not been explained despite statements made in the first

information report to the effect that one or two members of the complainants

side had lathi with them and might have assaulted some of the aggressors in

order to save their lives, but the same could not have been relied upon

inasmuch as at the trial all the witnesses denied thereabout.

(viii) The seriousness of injury on the person of Mathan is evident from the

statements of the investigating officer that he was lying unconscious so

much so arrangements were made to record his dying declaration and in fact

a dying declaration was recorded by a Magistrate on the night of 1.12.1982.

A right of private defence, thus, could validly be exercised by the Appellants

and others.

(ix) So far as Kalipada is concerned, there is nothing on records to show

that he inflicted any blow on Prankrishna, deceased. He was not involved in

any land dispute between the parties and, thus, could not have derived any

benefit therefrom. There was no allegation that he had been leading the

group. He did not make any exhortation. At the first instance and the

exhortation "finish the salas" as ascribed to him by the eye witnesses did not

find place in the first information report. In any event, no blow appears to

have been struck on the deceased after Kalipada made the said exhortation.

(x) At all events, even if the entire prosecution evidence is accepted, the

conviction could have been only under Section 307 or 304 and not under

Section 302

(xi) So far the Appellant, Bhiswa, is concerned, the prosecution has

merely established that he inflicted a blow on Prankrishna on his leg which

was not the cause of his death and as such that no common intention could

have been formed at the spur of the moment by him and other accused as

regard murder of Prankrishna.

Mr. Tara Chandra Sharma, learned counsel appearing on behalf of the

State, on the other hand, took us through the evidence of the witnesses and

would contend that the reasonings given by the Trial Court in not relying

upon the eye-witnesses are based up conjectures and surmises as well as on

misreading of evidence on record inasmuch as:

(i) the prosecution witnesses are natural and truthful and they have given

the true version of the occurrence;

(ii) non-explanation of the injuries on the accused (Mathan alias

Manmath) by the prosecution by itself may not affect the prosecution case in

its entirety, particularly, when the evidence led by the prosecution is

absolutely clear and cogent;

(iii) the prosecution case is consistent with the facts disclosed in the first

information report. During investigation, the weapons of assault were

seized, blood-stained earth from the place of occurrence was recovered and

the evidence of the doctors who held the autopsy as also those who

examined the injured eye-witnesses, namely, PW-1, PW-14, PW-18 and

PW-25 fully supported the prosecution case;

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(iv) the Trial Court wrongly excluded the evidence of Sambhu Mahato

(PW-1), Subhas Mahato (PW-13), Chepulal Mahato (PW-14), Siju Mahato

(PW-18) and Nepal Mahato (PW-25) in arriving at a finding that Kalipada

did not incite any person to cause the death of the deceased which is

perverse in nature. It was submitted that before the evidence of the

prosecution as regard improvements made by them from the statements

made under Section 161 of the Code of Criminal Procedure can be

challenged, it was incumbent upon the defence to confront the prosecution

witnesses therewith in view of Section 145 read with sub-section (3) of

Section 155 of the Evidence Act. As Kalipada was carrying a gun whereas

other accused persons were armed with various deadly weapons, namely,

lathi, tabla, bow, arrows and sword and as such the judgment of the High

Court be faulted.

The basic fact of the matter is not in dispute. Presence of all the

prosecution witnesses except PW-22 is not seriously disputed. The only

criticism levelled against the eye-witnesses including injured witnesses is :

(i) that of graphic description of the incident has been given by them; and

(ii) that they retreated towards east and the incident took place towards

south of the plot in dispute.

It is also not in dispute that as regards injury on the person of accused

Mathan, a counter-case was filed. Strangely enough, the defence had not

brought the said first information report on record. The said counter-case is

said to be pending trial. The prosecution in this case examined 32

prosecution witnesses. PW-1, PW-14, PW-18 and PW-25 are injured eye-

witnesses whereas PW-2, PW-3, PW-13 are eye-witnesses. As the

testimony of PW-22 is disputed on the ground that she could not have been

an eye-witness, it may not be necessary to the consider the same.

The death of Prankrishna and the injuries sustained by the prosecution

witnesses have indisputably been proved by Dr. D.L. Kar, who examined

Chepulal Mahato (PW-14), Dr. S. Chatterjee, who conducted post mortem

on the body of Prankrishna. Dr. Ajoy Kumar Pakrashi (PW-31) who was on

emergency duty on that day examined Nepal Mahato (PW-25). He

indisputably was admitted as an indoor patient in Purulia Sadar Hospital,

under the supervision of Dr. Amal Kumar Ghosh, from 1.12.1982 and was

discharged from the hospital on 24.12.1982. Dr. Amal Kumar Ghosh could

not be examined as after he left the government service his whereabouts

were not known. Dr. S. Chatterjee (PW-6) proved the handwritings of Dr.

Pakrashi and Dr. Amal Kumar Ghosh from the records of the hospital.

Sambhu Mahato (PW-1) gave a categorical statement inter alia to

prove the prosecution case in the following terms:

"The alleged / incident took place on 1.12.82 at about

8/8.30 A.M. in Mouza Bhadsa within Purulia (M) P.S. I

was present in the vegetable field near my house at

Bhadsa. I heard a cry coming from the western side of

our village. I came to village road. I met Nepal,

Prankrishna and Chepulal on the road. I heard from them

that Nilkantha Mahato and some other persons were

cutting paddy in their barga land. They requested me to

protest against it. Accordingly, I accompanied them to

their barga land mouza Bhadsa. I found many persons

cutting paddy in the barga land of Joyram Mahato. I

found there Nilkantha Mahato, Mathan Mahato, Bhisma

Mahato, Haralal Mahato, Ramanath Mahato, Patal

Mahato, Srinibash Mahato. Lalbas Mahato, Kalipada

Mahato, Bulu Mahato and Majhi, Sahis being armed with

lathi, tabla, arrows etc. present near the barga land.

Nilkantha, Bishma, Srinibash, Ramanath Majhi Sahis had

lathi is in their hand. Haralal and Mathan had tabla.

Patal had sword. Bulu had bow and arrows, Kalipada

Mahato had gun. Some labourers were cutting paddy. I

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cannot say their names. We protested against such

cutting of paddy. An altercation started. Then Bulu

threw arrow. It struck Nepal. He was then standing on

the barga land. The arrow struck the mouth of Nepal.

Blood was coming out from the mouth of Nepal. Then

all persons named above, shouted 'maro saladiga'. These

persons then chased us. We retreated to some extent.

There is a tank namely 'uppar bundh' contiguous to the

barga land. Nepal was gheraoed at the bed of the tank by

these persons. Mathan then struck Nepal with a tabla

causing injury at his leg. Nepal fell down on the ground.

Patal struck Nepal with a sword causing injury at his

hand. Haralal struck Nepal with a tabla. Ramanath

assaulted Nepal with a lathi. Prankrishna, the brother of

Nepal, came to the rescue of Nepal. Prankrishna was

assaulted by Mathan with tabla at his leg. Bhishma

assaulted Prankrishna with lathi. I protested against the

assault on Prankrishna but Lalbas assaulted me with lathi

on my head causing bleeding injury therein. Bulu threw

arrow. It struck Chepulal at his head. Kalipada gave

order to finish him. Nilkantha assaulted Chepulal with

lathi on his head. Prankrishna died at the spot due to

head injury. I returned home. On my way I met

Lalbehari, Nabin and others. I narrated the incident to

them. Then, I again returned to the spot with Lalbehari,

Nagen and others. I noticed injury on leg and neck of

Prankrishna, who was found dead. Nepal was lying

unconscious."

Chepulal Mahato (PW-14) was son of Joyram, who was a bargardar of

plot No. 550. Joyram died during trial and as such he was not examined. He

had lodged a first information report as the accused persons had cut away the

paddy from their barga land on the previous day. He stated:

"My father, Jairam died during the pendency of this case.

He died due to old age. Tangi is also known to us as

tabla. Prankrishna was my elder brother. Prankrishna

had been murdered. The incident took place on 15th

Agrahayan. 5/6 years ago at about 8 a.m. On the day of

incident, at morning I accompanied my brother, Nepal, to

our paddy field in Sibotoor land in Mouza, Bhadsa to

inspect as to what extent the paddy of that land had been

cut by Nilkantha and others on the previous day. It was

then 6 am. We returned to our home from the field. I

heard a hulla while I was in the house I saw from our

kitchen garden that many persons were present in our

Sibottor land which was cultivated by us as bargadar.

These persons were cutting paddy. I informed the matter

to Nepal and Prankrishna. I came out of the house with

my brothers and met Digam, Ambuj, Dashrath,

Haradhan. My brothers asked these persons to go to our

barga land as paddy was being cut there. While we are

proceeding to the field we met Subhas. Subhas also

accompanied us on our request. My uncle, Sibu also

followed us. We reached our field. Nilkantha, Biswa

and other were cutting paddy. We asked them not to do

so. The paddy was being cut by hired labourers while

Nilkantha Biswa and others were on the ail on the land.

We asked the labourers also not to cut paddy. An

altercation started. Then Bulu Mahato threw arrow

towards us which struck mouth of Nepal. Nepal was then

on our land. Nilkantha and others then shouted "Mar

Salake". We retreated, but Nilkantha and his

companions threw arrows towards us. Nilkantha and

others gheraoed us on the bank of Uppar Bundh. Mathan

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struck Nepal with tabla on his leg. Patal struck Nepal

with sword. Nepal fell down on the ground. Haralal

struck Nepal with sword. Biswa assaulted Nepal with

lathi and so also Nilkantha. Prankrishna left to rescue

Nepal. But Mathan struck Prankrishna with tabla at his

right leg. Biswa assaulted Prankrishna with lathi on left

leg. Kalipada was present. Prankrishna fell down on the

ground. Kalipada gave order to finish. Ramanath took a

table from Haralal and struck Prankrishna at his shoulder.

I came to the rescue of my brothers, but Nilkantha

assaulted me with lathi on my head. Bulu threw an arrow

to me. It struck my hand. Sambhu also protested against

the assault. But, Lalbas assaulted Shambhu with an iron

rod. Patal, struck Siju with sword. We retreated to some

extent due to this assault. After assault, the accused fled

away."

The evidences of other two injured witnesses Siju Mahatao (PW-18)

and Nepal Mahatao (PW-25) are to the same effect.

It is noteworthy that Nepal Mahato in his cross-examination described

the history of the ownership of the land and/ or bargadarship of Joyram in

the following terms:

"In May, 1980 we have purchased the remaining portion

of plot no. 550 from Kartick Chowdhury. My father

applied for barga recording on 12.5.80. My father

applied for such recording in respect of plot nos. 669,

674 and entire of 550.

*** *** ***

These three plots are contiguous\005In 1980 we three

brothers and father were in the same mess. Nagen

Mahato, Paresh Sahis are aware of the fact that we grew

paddy on these three plots in 1980.

*** *** ***

Not a fact that the incident did not take place on plot no.

550. Not a fact that accused were cutting paddy on their

purchased land on plot nos. 669 and 674 on the day of

alleged incident. Not a fact that on the day of incident

we forcibly resisted the accused as the accused cut paddy

on our barga land on previous day. Not a fact that we

went to the case land with prearranged plan."

The fact that evidence of other independent witnesses also points out

the overt acts played by each one of the accused is also not in dispute.

Nothing has been brought to our notice to show that the presence of the eye-

witnesses who were independent witnesses are wholly unreliable. Two of

the injured witnesses were sons of Joyram.

Besides the eye-witnesses, two more witnesses, namely, Lalbehari

Mhato and Ramdulal Mahato, were examined by the prosecution being

PWs.16 and 19. Tthey came to the place of occurrence immediately after

the incident had taken place and found the dead body of Prankrishna and

injured Napal in an unconscious state. Lalbehari Mahato (PW-16) found the

mother of Prankrishna and Nepal weeping as also Chepulal and Shambhu

present there. He heard about the entire incident from Chepulal including

the role played by each of the Appellants and others. PW-19 also

corroborated the testimonies of the prosecution witnesses. He heard about

the incident from Subhas Mahato.

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The evidence of these two witnesses corroborate the evidence of the

prosecution witnesses as also the allegations made in the F.I.R. Their

evidence is admissible in terms Section 6 of the Indian Evidence Act. The

evidence of other independent witnesses who are not inimically disposed of

towards the accused is sufficient to concur with the findings of fact arrived

at by the High Court.

Mr. Gupta made strong criticism as regard the following findings of

the High Court :

"From the evidence discussed above we have seen

that almost all the eye-witnesses have named Mathan and

Bishma as having assaulted Prankrishna with tabla and

lathi respectively. So far as the accused, Ramanath, is

concerned, the PWs. 2, 3, 13, 14, 18, 22 and 25 have

stated that when Prankrishna fell down on being

assaulted by Mathan and Bishma, the accused Ramanath

took a table (Tangi or spear is called Tabla by these

people) from Haralal and assaulted Prankrishna on his

shoulder (some say "shoulder", some say "neck")

causing bleeding injury there. It is to be noted that in the

cross-examination of the PWs. 2, 13, 14 & 18, against

such statements of them they have been asked if they

made such statements to the I.O., when all of them have

answered in the affirmative. But as against such positive

statements no further cross-examination has been made.

What is done by the defence is putting the same question

to the I.O. when he has said that no such statement was

made by these witnesses to him. But this answer of the

I.O. will not have any legal effect in favour of the

defence, because in such a case the legal requirement is

that the defence should have to cross-examine this

statement by first giving a suggestion to such a witness to

the contrary effect that he has not made any such

statement to the I.O. and then would put the question to

the I.O. and take his answer. Otherwise the statement

made by the witnesses concerned in his cross-

examination in positive from will confirm to be taken as

admitted. But, what is more in support of the prosecution

in this regard is the fact that the evidence of P.W.3,

Ambuj, P.W.22, Gandhi Mahatani, and P.W.25 Nepal

Mahato, on this point has not been challenged in the

lest\005"

Section 145 of the Indian Evidence Act is attracted when a specific

contradiction is required to be taken; but we may point out that in certain

cases omissions are also considered to be contradictions [See Shri Gopal &

Anr. Vs. Subhash & Ors. [JT 2004 (2) SC 158]; Sekar alias Raja Sekharan

vs. State Represented by Inspector of Police, T.N.; and State of Maharashtra

vs. Bharat Chaganlal Raghani and Others [ (2001) 9 SCC 1, para 51]

But It is not necessary for us to dilate on the said question in this case.

The High Court noticed that the evidence of PW-3. Ambuj, and PW-25,

Nepal Mahato, had not been put to test of cross-examination, in that behalf.

It found that Ambuj has not been subjected to any cross-examination at all

in regard to his statement that Ramanath took a tabla from Haralal and with

it hit the deceased. As we have not placed any reliance on the statement of

PW-22, we need not refer to her statement, although even her statement in

this behalf was not challenged. As regard PW-5, the High Court noticed that

it had only been put to the I.O., PW-28 in the cross examination, stating :

"\005P.W.25 did not state before me that Kalipada issued

orders for finishing the complainant's party prior to

Ramanath assaulted Pran Krishna with tangi on his

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shoulder".

When an incident takes place in a village in the morning and that too

at the harvesting time, presence of the villagers and in particular those who

claim right, title, ownership as well as possession of the land in question is

not unnatural. An occurrence took taken place on the previous day. The

witnesses did not say that they had run away from their land to some other

place. They merely said that they retreated to some extent and thereafter

they were chased. The assault on the deceased as also other prosecution

witnesses took place almost at the same place. The investigating officer

found the dead body of Prankrishna as also Nepal Mahato in an unconscious

condition near about the same place.

The presence of the accused with deadly weapons at the place of

occurrence and the fact that they had been harvesting the paddy grown by

the complainant being not in dispute, there is absolutely no reason as to why

the account of the prosecution witnesses should be discarded particularly

when sufficient material have been brought on record to show that despite

the fact that they retreated to some extent, they were chased and caused

death to Prankrishna and injuries to others which would lead to only one

conclusion that the said act was in furtherance of their common intention.

It is not, therefore, possible to accept the submission of Mr. Gupta

that we should ignore the testimonies of all the eye-witnesses including the

injured witnesses.

Considered as a whole, we find the evidence of the prosecution

witnesses to be clear and cogent. They are consistent and creditworthy.

Some of the witnesses, as noticed hereinbefore, are independent and

disinterested. There may be certain omissions on their part but if considered

as a whole and in particular with the medico-legal evidences, we do not find

any reason to disbelieve the same.

First Information Report, it is well settled, need not be an

encyclopedic one. It need not contain all the details of the incident.

Furthermore, little bit of discrepancies or improvement do not

necessarily demolish the testimony. [See Arjun and others Vs. State of

Rajasthan AIR 1994 SC 2507]. Trivial discrepancy, as is well-known,

should be ignored. Under circumstantial variety the usual character of

human testimony is substantially true. Similarly, innocuous omission is

inconsequential.

The testimony of an injured witness vis-`-vis improvement and

inconsistencies in their evidence as regard part played by each of the

accused may not itself be a ground to disbelieve the witnesses when having

regard to prove injuries on them it would have been impossible to give a

detail ground of the incident. [See Navganbhai Somabhai and others Vs.

State of Gujarat AIR 1994 SC 1187]

It has been established that even when the first protest was made,

Nilkantha shouted "Mar Salake" whereupon the prosecution witnesses

retreated and different accused persons chased them with respective

weapons. Once again, Kalipada gave an order to finish all whereupon

Ramanath took a tabla from Haralal and struck Prankrishna and Prankrishna

succumbed to his injuries. Subhas Mahato (PW-13) also deposed to the

similar effect that Ramanath took a table from Haralal and assaulted the

deceased on his shoulder whereupon Prankrishna fell down. PW-14 is also

an injured witness. PW-14 stated:

"Nilkantha and others then shouted, 'mar salaki'. We

retreated, but Nilkantha and his companions threw

arrows towards us. Nilkantha and others gheraoed us on

the bank of Uparbunds. Mathan struck Nepal with tabla

on his leg. Patal struck Nepal with sword. Nepal fell

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down on the ground. Haralal struck Nepal with sword.

Biswa assaulted Nepal with lathi and so also Nilkantha.

Prankrishna left to rescue Nepal, but Mathan struck

Prankrishna with tabla at his right leg. Biswa assaulted

Prankrishna with lathi on left leg. Kalipada was present.

Prankrishna fell down on the ground. Kalipada gave

order to finish. Ramnath took a table from Haralal and

struck Prankrishna at his shoulder."

Siju Mahato (PW-18) who was also an injured witness categorically

stated that Kalipada was present with a gun and Bikal and Kalipada gave

order to finish whereupon Ramanath took a table from Haralal and assaulted

Prankrishna at his neck. In his cross-examination, Siju Mahato also

categorically stated that Kalipada and Bikal gave order to finish.

Another injured witness was Nepal Mahato (PW-25). In his

deposition before the court he corroborated the prosecution case stating:

"Then Mathan came and struck me at my left leg

with a tabla from back side. Simultaneously Haralal

struck me with a tabla on my back. Bhiswa assaulted me

with a lathi on my head. I fell down on the ground.

Thereafter Nilkantha assaulted me with lathi. My elder

brother Prankrishna tried to save me. While he was

trying to come near me, Mathan struck Prankrishna at his

right leg with tabla. Bhiswa assaulted Prankrishna with

lathi at his left leg. Prankrishna fell down on the ground.

Kalipada, Nilkantha, Bishwa shouted to finish.

Thereafter, Ramanath took a table from Haralal and

struck Prankrishna at his neck. I was thereafter assaulted

and lost my senses. Prankrishna succumbed to his

injuries. I regained my senses at hospital after 5/6 days.

I was examined by police later on. I narrated the incident

to police. I was detailed at the hospital for about 24

days."

Thus, about incitement by Kalipada, five witnesses, namely, Sambhu

Mahato (PW-1), Subhas Mahato (PW-13), Chepulal Mahato (PW-14), Siju

Mahato (PW-18) and Nepal Mahato (PW-25), categorically stated the role

played by Kalipada whereafter only Ramanath took a tabla from Haralal and

assaulted Prankrishna at his neck.

Sambhu Mahato (PW-1), Chepulal Mahato (PW-14), Siju Mahato

(PW-18) and Nepal Mahato (PW-25) categorically stated that all the accused

persons shouted "marosaladiga".

The depositions of the said witnesses clearly establish that the accused

persons armed with deadly weapons went to the plot of complainant party

with a common object to harvest the paddy and when asked not to do so they

were attacked and when they retreated to some extent they chased and

caused injuries to the deceased and other witnesses. This clearly establishes

that the said act was in furtherance of a common intention.

As the Appellants herein and other accused persons were aggressors,

no right of private defence could be claimed by them particularly when it has

been proved beyond any reasonable doubt that the prosecution witnesses

were first chased and then assaulted.

The prosecution evidences further clearly establish that the land was

in possession of Joyram, who was bargadar of Kartick Chodhury.

The First Information Report, it is well-settled, need not be

encyclopedia of the events. It is not necessary that all relevant and irrelevant

facts in details should be stated therein. In the First Information Report, it

has been specifically stated that Kalipada Mahato was standing behind

armed with a gun and when they objected, all the accused persons attacked

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the prosecution witnesses saying 'Maro Saladigokay' (assault the salas).

The prosecution witnesses in their statements before the court had

categorically stated that Kalipada Mahato also exhorted more than once. It

may be true that he had no axe to grind. He was not claiming ownership of

the plot in question; but there are materials on record to show that the

complainant party and the accused belong to two rival political groups.

Thus, Kalipada Mahato might have a political score to settle, as otherwise it

is difficult to accept that although those claiming the ownership of the land

in question would go there with lathis, he would be present at the spot with

a gun.

It must be taken note of that the exhortation by Kalipada Mahato

might be general in character. From the evidence of the witnesses, it appears

that Kalipada Mahato has used the word 'finish' only after Prankrishna fell

down having been assaulted by the other accused persons, named by them.

For the purpose of attracting Section 149 and/or 34 IPC, a specific

overt act on the part of the accused is not necessary. He may wait and watch

inaction on the part of an accused may some time go a long way to hold that

he shared a common object with others.

Mr. Gupta laid emphasis on the fact that serious injuries on the

accused Mathan have not been explained. We may, at this juncture, only

notice that in the first information report, Sambhu Mahato (PW-1) stated:

"Amongst us, some one might have assaulted some

of the aggressors with lathi in order to save life."

The witnesses indisputably in their cross-examinations did not accept

the said fact presumably because they were accused in the counter-case,

presumably on the premise that if they admitted the same, they would have

accepted their guilt. It is now well-settled that it is not imperative to prove

the injuries on the person of the accused irrespective of the facts and

circumstances of the case including the admitted facts. Normally such a plea

is entertained when the right of self defence is accepted by the court.

The fact as regard failure to explain injuries on accused vary from

case to case. Whereas non-explanation of injuries suffered by the accused

probabilises the defence version that the prosecution side attacked first, in a

given situation it may also be possible to hold that the explanation given by

the accused about his injury is not satisfactory and the statements of the

prosecution witnesses fully explain the same and, thus, it is possible to hold

that the accused had committed a crime for which he was charged. Where

injuries were sustained by both sides and when both the parties suppressed

the genesis in the incident, or where coming out with the partial truth, the

prosecution may fail. But, no law in general terms can be laid down to the

effect that each and every case where prosecution fails to explain injuries on

the person of the accused, the same should be rejected without any further

probe. [See Bankey Lal and others Vs. The State of U.P. AIR 1971 SC 2233

and Mohar Rai Vs. The State of Bihar [AIR 1968 SC 1281]

In Lakshmi Singh (supra), whereupon Mr. Gupta placed strong

reliance, the law is stated in the following terms:

"\005It seems to us that taking the entire picture of the

narrative given by the witnesses, in the peculiar facts of

this case, the contention cannot be said to be without

substance. The most important fact which reinforces this

conclusion is that the accused headed by Jagdhari Singh

had absolutely no motive, no reason and no concern with

the deceased or their relations and there was absolutely

no earthly reason why they should have made a common

cause with Ramsagar Singh and Dasrath Singh over what

was a purely domestic matter between Dasrath Singh and

his cousins. It seems to us that having regard to the

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serious enmity which PWs 1 to 4 had against the

appellants headed by Jagdhari Singh, they must have

made it a condition precedent to depose in favour of the

prosecution or support the case only if Dasai Singh PW 6

would agree to implicate the appellants Jagdhari Singh

and others and to assign them vital roles in the drama

staged so that the witnesses could get the best possible

opportunity to wreak vengeance on their enemies. In fact

the prosecution evidence itself shows that to begin with a

dispute started only between Dasrath Singh and

Ramsagar Singh on the one hand and Chulhai Singh and

Brahmdeo on the other and the other accused persons

appeared on the scene later on. This dramatic appearance

of the other accused persons seems to have been

introduced as an embellishment in the case at the instance

of PWs 1 to 4. There are other infirmities in the

prosecution case also which throw a serious doubt on the

prosecution case."

In Dashrath Singh Vs. State of U.P. [(2004) 7 SCC 408], it was stated:

"19\005 It is here that the need to explain the injuries of

serious nature received by the accused in the course of

same occurrence arises. When explanation is given, the

correctness of the explanation is liable to be tested. If

there is an omission to explain, it may lead to the

inference that the prosecution has suppressed some of the

relevant details concerning the incident. The Court has

then to consider whether such omission casts a

reasonable doubt on the entire prosecution story or it will

have any effect on the other reliable evidence available

having bearing on the origin of the incident. Ultimately,

the factum of non-explanation of injuries is one

circumstance which has to be kept in view while

appreciating the evidence of prosecution witnesses. In

case the prosecution version is sought to be proved by

partisan or interested witnesses, the non-explanation of

serious injuries may prima facie make a dent on the

credibility of their evidence. So also where the defence

version accords with probabilities to such an extent that it

is difficult to predicate which version is true, then, the

factum of non-explanation of the injuries assumes greater

importance. Much depends on the quality of the evidence

adduced by the prosecution and it is from that angle, the

weight to be attached to the aspect of non-explanation of

the injuries should be considered. The decisions

abovecited would make it clear that there cannot be a

mechanical or isolated approach in examining the

question whether the prosecution case is vitiated by

reason of non-explanation of injuries. In other words, the

non-explanation of injuries of the accused is one of the

factors that could be taken into account in evaluating the

prosecution evidence and the intrinsic worth of the

defence version."

In Shriram Vs. State of M.P. [(2004) 9 SCC 292], it was observed:

"8. We shall next deal with the aspect relating to injuries

on the accused and the question of right of private

defence. The number of injuries is not always a safe

criterion for determining who the aggressor was. It

cannot be stated as a universal rule that whenever the

injuries are on the body of the accused persons, a

presumption must necessarily be raised that the accused

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persons had caused injuries in exercise of the right of

private defence. The defence has to further establish that

the injuries found were suffered in the same occurrence

and that such injuries on the accused probabilise the

version of the right of private defence. Non-explanation

of the injuries sustained by the accused at about the time

of occurrence or in the course of altercation is a very

important circumstance. But mere non-explanation of the

injuries by the prosecution may not affect the prosecution

case in all cases. This principle applies to cases where the

injuries sustained by the accused are minor and

superficial or where the evidence is so clear and cogent,

so independent and disinterested, so probable, consistent

and creditworthy, that it far outweighs the effect of the

omission on the part of the prosecution to explain the

injuries. (See Lakshmi Singh v. State of Bihar1.) A plea

of right of private defence cannot be based on surmises

and speculation. While considering whether the right of

private defence is available to an accused, it is not

relevant whether he may have a chance to inflict severe

and mortal injury on the aggressor. In order to find

whether the right of private defence is available to an

accused, the entire incident must be examined with care

and viewed in its proper setting\005"

Such is not the position here.

We have furthermore noticed the concurrent finding of both the courts

that the accused were guilty of commission of an offence under Section 148

of the IPC. The fact that they were aggressors and initiated the attack on the

deceased and other witnesses on the land in question and thereafter at the

bed of the tank, thus, stands established.

At this juncture, we may notice some of the decisions relied upon by

Mr. Gupta.

In Mohar Rai (supra) the prosecution case is that the Appellant therein

was chased and caught and at that time he was having revolver in his hand.

The defence plea was that no shot was fired from his revolver and in fact he

having been seriously injured was not in a position to fire any shot from the

revolver. The reports of the ballistic expert examined by the prosecution and

defence were contradictory in nature. He was also acquitted under the

provisions of the Arms Act. In that situation, it was observed:

"6. The trial court as well as the High Court wholly

ignored the significance of the injuries found on the

appellants. Mohar Rai had sustained as many as 13

injuries and Bharath Rai 14. We get it from the evidence

of PW 15 that he noticed injuries on the person of Mohar

Rai when he was produced before him immediately after

the occurrence. Therefore the version of the appellants

that they sustained injuries at the time of the occurrence

is highly probablised. Under these circumstances the

prosecution had a duty to explain those injuries. ..."

In Amar Malla and Others Vs. State of Tripura [(2002) 7 SCC 91],

this Court held:

"9\005 It is well settled that merely because the prosecution

has failed to explain injuries on the accused persons, ipso

facto the same cannot be taken to be a ground for

throwing out the prosecution case, especially when the

same has been supported by eyewitnesses, including

injured ones as well, and their evidence is corroborated

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by medical evidence as well as objective finding of the

investigating officer."

The said decision runs counter to the submissions of Mr Gupta.

In Subramani and Others Vs. State of T.N. [(2002) 7 SCC 210] again

a positive case of exercise of right of private defence was made out. Therein

the question was as to whether the accused persons exceeded the right of

private defence. They were held to have initially acted in exercise of their

right of private defence of property and in exercise of the right of private

defence of person, observing :

"21\005 In the instant case we are inclined to hold that the

appellants had initially acted in exercise of their right of

private defence of property, and later in exercise of the

right of private defence of person. It has been found that

three of the appellants were also injured in the same

incident. Two of the appellants, namely, Appellants 2 and

3 had injuries on their head, a vital part of the body.

Luckily the injuries did not prove to be fatal because if

inflicted with more force, it may have resulted in the

fracture of the skull and proved fatal. What is, however,

apparent is the fact that the assault on them was not

directed on non-vital parts of the body, but directed on a

vital part of the body such as the head. In these

circumstances, it is reasonable to infer that the appellants

entertained a reasonable apprehension that death or

grievous injury may be the consequence of such assault.

Their right of private defence, therefore, extended to the

voluntarily causing of the death of the assailants."

Dharminder Vs. State of H.P. [(2002) 7 SCC 488] was also a case

where a plea of right of private defence as regard property was put forward.

Although in view of a decision of this Court in Takhaji Hiraji Vs. Thakore

Kubersing Chamansing [(2001) 6 SCC 145], it was observed that the

prosecution is under duty to explain the injuries on the accused persons but

the court noticed the following observations in paragraph 17 thereof:

"Where the evidence is clear, cogent and creditworthy

and where the court can distinguish the truth from

falsehood the mere fact that the injuries on the side of the

accused persons are not explained by the prosecution

cannot by itself be a sole basis to reject the testimony of

the prosecution witnesses and consequently the whole of

the prosecution case."

Despite a serious injury on the person of the accused and despite the

fact that the factum of injury has not been disclosed in the first information

report but only in the statement under Section 161 of the Code of Criminal

Procedure by one of the witnesses, the court held that the factum of the

accused was not improper. The said decision also is of no assistance to the

prosecution.

In Raghunath Vs. State of Haryana and Another [(2003) 1 SCC 398],

this Court did not rely upon only two witnesses having regard to the fact that

the nature of injuries sustained by the complainants party would clearly

suggest that such injuries could only be caused in a melee which is the

version of the defence that injuries sustained by the deceased and other

members of the complainant party have been caused by a mob consisting of

300-350 people while trying to rescue accused No. 1. It was further held:

"32\005Considering the nature of the injuries sustained by

the complainant party it is quite probable that they

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sustained injuries accidentally while being involved in a

mob fight\005"

For the purpose of attracting Section 149 of the IPC, it is not

necessary that there should be a pre-concert by way of a meeting of the

persons of the unlawful assembly as to the common object. If a common

object is adopted by all the persons and shared by them, it would serve the

purpose.

In Mizaji and another Vs. The State of U.P. [(1959) Supp 1 SCR 940],

it was observed:

"\005Even if the offence committed is not in direct

prosecution of the common object of the assembly, it

may yet fall under Section 149 if it can be held that the

offence was such as the members knew was likely to be

committed. The expression 'know' does not mean a mere

possibility, such as might or might not happen. For

instance, it is a matter of common knowledge that when

in a village a body of heavily armed men set out to take a

woman by force, someone is likely to be killed and all

the members of the unlawful assembly must be aware of

that likelihood and would be guilty under the second part

of Section 149. Similarly, if a body of persons go armed

to take forcible possession of the land, it would be

equally right to say that they have the knowledge that

murder is likely to be committed if the circumstances as

to the weapons carried and other conduct of the members

of the unlawful assembly clearly point to such knowledge

on the part of them all\005"

In Masalti Vs. State of U.P. [(1964) 8 SCR 133], a contention on the

basis of a decision of this Court in Baladin Vs. State of Uttar Pradesh [AIR

1956 SC 181] stating that it is well-settled that mere presence in an assembly

does not make a person, who is present, a member of an unlawful assembly

unless it is shown that he had done something or omitted to do something

which would make him a member of an unlawful assembly, that an overt act

was mandatory, was repelled by this Court stating that such observation was

made in the peculiar fact of the case. Explaining the scope and purport of

Section 149 of the IPC, it was held:

"\005What has to be proved against a person who is

alleged to be a member of an unlawful assembly is that

he was one of the persons constituting the assembly and

he entertained long with the other members of the

assembly the common object as defined by Section 141

IPC Section 142 provides that whoever, being aware of

facts which render any assembly an unlawful assembly

intentionally joins that assembly, or continue in it, is said

to be a member of an unlawful assembly. In other words,

an assembly of five or more persons actuated by, and

entertaining one or more of the common object specified

by the five clauses of Section 141, is an unlawful

assembly. The crucial question to determine in such a

case is whether the assembly consisted of five or more

persons and whether the said persons entertained one or

more of the common objects as specified by Section 141.

While determining this question, it becomes relevant to

consider whether the assembly consisted of some persons

who were merely passive witnesses and had joined the

assembly as a matter of idle curiosity without intending

to entertain the common object of the assembly\005"

It was further observed:

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"In fact, Section 149 makes it clear that if an offence is

committed by any member of an unlawful assembly in

prosecution of the common object of that assembly, or

such as the members of that assembly knew to be likely

to be committed in prosecution of that object, every

person who, at the time of the committing of that offence,

is a member of the same assembly, is guilty of that

offence; and that emphatically brings out the principle

that the punishment prescribed by Section 149 is in a

sense vicarious and does not always proceed on the basis

that the offence has been actually committed by every

member of the unlawful assembly."

Yet again in Bhajan Singh and Others Vs. State of Uttar Pradesh

[(1974) 4 SCC 568], it was held:

"13. Section 149 IPC constitutes, per se, a substantive

offence although the punishment is under the section to

which it is tagged being committed by the principal

offender in the unlawful assembly, known or unknown.

Even assuming that the unlawful assembly was formed

originally only to beat, it is clearly established in the

evidence that the said object is well-knit with what

followed as the dangerous finale of, call it, the beating.

This is not a case where something foreign or unknown

to the object has taken place all of a sudden. It is the

execution of the same common object which assumed the

fearful character implicit in the illegal action undertaken

by the five accused."

In Shri Gopal & Anr. Vs. Subhash & Ors. [JT 2004 (2) SC 158], it

was stated:

"15. The essence of the offence under Section 149 of the

Indian Penal Code would be common object of the

persons forming the assembly. It is necessary for

constitution of the offence that the object should be

common to the persons who compose the assembly, that

is, that they should all be aware of it and concur in it.

Furthermore, there must be some present and immediate

purpose of carrying into effect the common object. A

common object is different from a common intention

insofar as in the former no prior consent is required, nor a

prior meeting of minds before the attack would be

required whereas an unlawful object can develop after

the people get there and there need not be a prior meeting

of minds."

Sections 149 and 34, however, stand on some different footings

although application of both the sections may be held to be mandatory.

In Ram Tahal and Others Vs. The State of U.P. [(1972) 1 SCC 136], a

Division Bench of this Court noticed:

"\005A 5-Judge Bench of this Court in Mohan Singh v.

State of Punjab has further reiterated this principle where

it was pointed out that like Section 149 of the IPC

Section 34 of that Code also deals with cases of

constructive liability but the essential constituent of the

vicarious criminal liability under Section 34 is the

existence of a common intention, but being similar in

some ways the two sections in some cases may overlap.

Nevertheless common intention, which Section 34 has its

basis, is different from the common object of unlawful

assembly. It was pointed out that common intention

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denotes action in concert and necessarily postulates a

pre-arranged plan, a prior meeting of minds and an

element of participation in action. The acts may be

different and vary in character but must be actuated by

the same common intention which is different from same

intention or similar intention..."

It may be true that the right of private defence need not specifically be

taken and in the event the court on the basis of the materials on records is in

a position to come to such a conclusion, despite some other plea had been

raised that such a case had been made out, may act thereupon.

In Laxman Singh Vs. Poonam Singh and Others [(2004) 10 SCC 94],

this Court observed:

"7\005 But mere non-explanation of the injuries by the

prosecution may not affect the prosecution case in all

cases. This principle applies to cases where the injuries

sustained by the accused are minor and superficial or

where the evidence is so clear and cogent, so independent

and disinterested, so probable, consistent and

creditworthy, that it far outweighs the effect of the

omission on the part of the prosecution to explain the

injuries. (See Lakshmi Singh v. State of Bihar) A plea of

right of private defence cannot be based on surmises and

speculation. While considering whether the right of

private defence is available to an accused, it is not

relevant whether he may have a chance to inflict severe

and mortal injury on the aggressor. In order to find

whether the right of private defence is available to an

accused, the entire incident must be examined with care

and viewed in its proper setting\005"

Yet again in Chacko alias Aniyan Kunju and Others Vs. State of

Kerala [(2004) 12 SCC 269],

"7\005 Undisputedly, there were injuries found on the body

of the accused persons on medical evidence. That per se

cannot be a ground to totally discard the prosecution

version. This is a factor which has to be weighed along

with other materials to see whether the prosecution

version is reliable, cogent and trustworthy. When the

case of the prosecution is supported by an eyewitness

who is found to be truthful as well, mere non-explanation

of the injuries on the accused persons cannot be a

foundation for discarding the prosecution version.

Additionally, the dying declaration was found to be

acceptable."

In Vajrapu Sambayya Naidu and Others Vs. State of A.P. and Others

[(2004) 10 SCC 152], whereupon Mr. Gupta placed strong reliance, is

distinguishable on facts. Therein a finding of fact was arrived at that not

only the complainant's decree for eviction was obtained against the

informant, actual delivery of possession was also effected and accused No.

13 came in a possession of land. In the said factual backdrop, this Court

observed that the complexion of the entire case changes because in such an

event the Appellants cannot be held to be aggressors. The fact of the present

case, however, stands on a different footing.

Once it is established that the complainant party were in possession

of the land in question as also cultivated the same and grew paddy thereupon

the question of the Appellant's exercising of right of private defence as

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regard property does not arise. Such a right could only be claimed by the

complainant. So far as the purported right of private defence of a person is

concerned, it has been proved beyond any shadow of doubt that the accused

were the aggressors. They came to the land in question to harvest paddy

through hired labourers. They were armed fully when they were asked not

to harvest paddy, they chased and assaulted the prosecution witnesses. In

this situation the Appellants were not entitled to claim right of private

defence.

SELF-DEFENCE

'Right of private defence' is not defined. Nothing is an offence in

terms of Section 96 of the Indian Penal Code, if it is done in exercise of the

right of private defence. Section 97 deals with the subject matter of private

defence. The plea of right of private defence comprises the body or

property. It, however, extends not only to person exercising the right; but to

any other person. The right may be exercised in the case of any offence

against the body and in the case of offences of theft, robbery, mischief or

criminal trespass and attempts at such offences in relation to property.

Sections 96 and 98 confer a right of private defence against certain offences

and acts. Section 99 lays down the limit therefor. The right conferred upon

a person in terms of Section 96 to 98 and 100 to 106 is controlled by Section

99. In terms of Section 99 of the Indian Penal Code, the right of private

defence, in no case, extends to inflicting of more harm than it is necessary to

inflict for the purpose of defence. Section 100 provides that the right of

private defence of the body extends under the restrictions mentioned in the

last preceding section to the voluntary causing of death or of any other harm

to the assailant if the offence which occasions the exercise of the right be of

any of the descriptions enumerated therein, namely, "First \026 Such an assault,

as may reasonably cause the apprehension that death will otherwise be the

consequence of such assault; Secondly \026 Such an assault as may reasonably

cause the apprehension that grievous hurt will otherwise be the consequence

of such assault". To claim a right of private defence extending to voluntary

causing of death, the accused must show that there were circumstances

giving rise to reasonable grounds for apprehending that either death or

grievous hurt would be caused to him. The burden in this behalf is on the

accused.

Sections 102 and 105 IPC deal with commencement and continuance

of the right of private defence of body as well as property. It commences as

soon as a reasonable apprehension of danger to the body arises from an

attempt, or threat, to commit the offence, although the offence may not have

been committed, but not until there is reasonable apprehension. In other

words, the right lasts so long as the reasonable apprehension of the danger to

the body continues.

So far as exercise of right of private defence of property extended to

causing death is concerned, the same is covered by Section 103 of the Indian

Penal Code. Such a right is available if the offence, the commission of

which, or the attempting to commit which, occasions the exercise of the

right, be an offence of any of the descriptions enumerated, viz., robbery,

house-breaking by night, mischief by fire committed on any building, theft,

mischief or house-trespass. The said provision, therefore, has no

application.

Section 104 provides that in relation to the offences as enumerated in

Section 103, the right of private defence can be exercised to the voluntary

causing to the wrong-doer of any harm other than death. Section 105

provides for commencement and continuance of the right of private defence

of property which reads as under:

"105. Commencement and continuance of the right of

private defence of property \026 The right of private defence

of property commences when a reasonable apprehension

of danger to the property commences.

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The right of private defence of property against

theft continues till the offender has effected his retreat

with the property or either the assistance of the public

authorities is obtained, or the property has been

recovered.

The right of private defence of property against

robbery continues as long as the offender causes or

attempts to cause to any person death or hurt, or wrongful

restraint or as long as the fear of instant death or of

instant hurt or of instant personal restraint continues.

The right of private defence of property against

criminal trespass or mischief continues as long as the

offender continues in the commission or criminal trespass

or mischief.

The right of private defence of property against

house-breaking by night continues as long as the house-

trespass which has been begun by such house-breaking

continues."

Section 105 of the Indian Evidence Act casts the burden of proof on

the accused who sets up the plea of self-defence and in the absence of proof,

it may not be possible for the court to presume the correctness or otherwise

of the said plea. No positive evidence although is required to be adduced by

the accused; it is possible for him to prove the said fact by eliciting the

necessary materials from the witnesses examined by the prosecution. He

can establish his plea also from the attending circumstances, as may

transpire from the evidence led by the prosecution itself.

In a large number of cases, this Court, however, has laid down the law

that a person who is apprehending death or bodily injury cannot weigh in

golden scales on the spur of the moment and in the heat of circumstances,

the number of injuries required to disarm the assailants who were armed

with weapons. In moments of excitement and disturbed equilibrium it is

often difficult to expect the parties to preserve composure and use exactly

only so much force in retaliation commensurate with the danger

apprehended to him where assault is imminent by use of force. All

circumstances are required to be viewed with pragmatism and any hyper-

technical approach should be avoided.

To put it simply , if a defence is made out, the accused is entitled to be

acquitted and if not he will be convicted of murder. But in case of use of

excessive force, he would be convicted under Section 304 IPC.

A right of private defence cannot be claimed when the accused are

aggressors, when they go to complainant's house well prepared for a fight

and provoke the complainant party resulting in quarrel and taking undue

advantage that the deceased was unarmed causes his death. It cannot be

inferred that there was any sudden quarrel or fight, although there might be

mutual fight with weapons after the deceased was attacked. In such a

situation, a plea of private defence would not be available [See Preetam

Singh and Others vs. State of Rajasthan \026 (2003) 12 SCC 594]

In Sekar alias Raja Sekharan vs. State Represented by Inspector of

Police,T.N. [(2002) 8 SCC 354], a Bench in which one of us was a member,

observed :

"10. In order to find whether right of private defence

is available or not, the injuries received by the accused,

the imminence of threat to his safety, the injuries caused

by the accused and the circumstances whether the

accused had time to have recourse to public authorities

are all relevant factors to be considered."

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In Laxman Singh (supra), this Court opined:

"6\005Where the right of private defence is pleaded, the

defence must be a reasonable and probable version

satisfying the court that the harm caused by the accused

was necessary for either warding off the attack or for

forestalling the further reasonable apprehension from the

side of the accused. The burden of establishing the plea

of self-defence is on the accused and the burden stands

discharged by showing preponderance of probabilities in

favour of that plea on the basis of the material on

record\005"

In Gpttipulla Venkatasiva Subbarayanam and Others vs. The State of

Andhra Pradesh and Another [(1970) 1 SCC 235], Dua, J. speaking for the

Bench stated the law thus :

"\005Section 100 lays down the circumstances in which the

right of private defence of the body extends to the

voluntary causing of death or of any other harm to the

assailants. They are: (1) if the assault which occasions

the exercise of the right reasonably causes the

apprehension that death or grievous hurt would otherwise

be the consequence thereof and (2) if such assault is

inspired by an intention to commit rape or to gratify

unnatural lust or to kidnap or abduct or to wrongfully

confine a person under circumstances which may

reasonably cause apprehension that the victim would be

unable to have recourse to public authorities for his

release. In case of less serious offences this right extends

to causing any harm other than death. The right of private

defence to the body commences as soon as reasonable

apprehension of danger to the body arises from an

attempt or threat to commit the offence though the

offence may not have been committed and it continues as

long as the apprehension of danger to the body continues.

The right of private defence of property under Section

103 extends, subject to Section 99, to the voluntary

causing of death or of any other harm to the wrongdoer if

the offence which occasions the exercise of the right is

robbery, house-breaking by night, mischief by fire on any

building etc. or if such offence is, theft, mischief or house

trespass in such circumstances as may reasonably cause

apprehension that death or grievous hurt will be the

consequence, if the right of private defence is not

exercised. This right commences when reasonable

apprehension of danger to the property commences and

its duration, as prescribed in Section 105, in case of

defence against criminal trespass or mischief, continues

as long as the offender continues in the commission of

such offence. Section 106 extends the right of private

defence against deadly assault even when there is risk of

harm to innocent persons."

[See also State of M.P. vs. Ramesh (2005) 9 SCC 705]

Private defence can be used to ward off unlawful force, to prevent

unlawful force, to avoid unlawful detention and to escape from such

detention. So far as defence of land against trespasser is concerned, a person

is entitled to use necessary and moderate force both for preventing the

trespass or to eject the trespasser. For the said purposes, the use of force

must be the minimum necessary or reasonably believed to be necessary. A

reasonable defence would mean a proportionate defence. Ordinarily, a

trespasser would be first asked to leave and if the trespasser fights back, a

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reasonable force can be used.

Defence of dwelling house, however, stand on a different footing.

The law has always looked with special indulgence on a man who is

defending his dwelling against those who would unlawfully evict him; as for

"the house of every one is to him as his castle and fortress".

In Hussey [(1924) 18 Cr. App. Rep. 160], it was stated it would be

lawful for a man to kill one who would unlawfully dispossess him of his

home.

Private defence and prevention of crime are sometimes

indistinguishable. Such a right is exercised because "there is a general

liberty as between strangers to prevent a felony". The degree of force

permissible should not differ, for instance, the in the case of a master

defending his servant from the case of a brother defending his sister, or that

of a complete stranger coming to the defence of another under unlawful

attack.

In Kenny's 'Outlines of Criminal Law' by J.W. Cecil Turner, it is

stated :

"It is natural that a man who is attacked should

resist, and his resistance, as such, will not be unlawful. It

is not necessary that he should wait to be actually struck,

before striking in self-defence. If one party raise up a

threatening hand, then the other may strike. Nor is the

right of defence limited to the particular person assailed;

it includes all who are under any obligation, even though

merely social and not legal, to protect him. The old

authorities exemplify this by the cases of a husband

defending his wife, a child his parent, a master his

servant, or a servant his master (and perhaps the courts

would now take a still more general view of this duty of

the strong to protect the weak)."

The learned author further stated that self-defence, however, is not

extended to unlawful force :

"But the justification covers only blows struck in sheer

self-defence and not in revenge. Accordingly if, when all

the danger is over and no more blows are really needed

for defence, the defender nevertheless strikes one, he

commits an assault and battery. The numerous decisions

that have been given as to the kind of weapons that may

lawfully be used to repel an assailant, are merely

applications of this simple principle. Thus, as we have

already seen, where a person is attacked in such a way

that his life is in danger he is justified in even killing his

assailant to prevent the felony. But an ordinary assault

must not be thus met by the use of fire-arms or other

deadly weapons\005."

In Browne [(1973) NI 96 at 107], Lowry LCJ with regard to self-

defence stated :

"The need to act must not have been created by conduct

of the accused in the immediate context of the incident

which was likely or intended to give rise to that need."

As regard self-defence and prevention of crime in 'Criminal Law' by

J.C. Smith & Brian Hogan, it is stated :

"Since self-defence may afford a defence to

murder, obviously it may do so to lesser offences against

the person and subject to similar conditions. The matter

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is now regulated by s. 3 of the Criminal Law Act 1967.

An attack which would not justify D in killing might

justify him in the use of some less degree of force, and so

afford a defence to a charge of wounding, or, a fortiori,

common assault. But the use of greater force than is

reasonable to repel the attack will result in liability to

conviction for common assault, or whatever offence the

degree of harm caused and intended warrants.

Reasonable force may be used in defence of property so

that D was not guilty of an assault when he struck a

bailiff who was unlawfully using force to enter D's

home. Similar principles apply to force used in the

prevention of crime."

The case at hand has to be considered having regard to the principles

of law, as noticed hereinbefore. We have seen that in what circumstances

and to what extent the right of private defence can be exercise would depend

upon the fact situation obtaining in each case.

CONCLUSION :

Except the Appellants, the other accused have not preferred any

appeal.

In view of our findings aforementioned, ordinarily we would have

upheld the conviction of the Appellants under Sections 302/109 and 302/34

IPC, but the High Court has found the accused guilty as under :

i) Mathan, Bhishwa and Ramanath Mahato under Section 302/34 IPC

for committing the murder of Prankrishna Mahato;

ii) Kalipada Mahato under Section 302/109 IPC;

iii) Mathan, Haralal, Ramanath and Patal Mahato under Section 326/34

IPC for causing grievous hurt to Nepal Mahato;

iv) Bulu Mahato under Section 324 IPC for causing hurt to Nepal and

Chepualal Mahato;

v) Lalbas Mahato under Section 325 for causing grievous hurt to

Shambhu Mahato; and

vi) Patal Mahato under Section 324 IPC for causing hurt to Siju Mahato.

It is difficult to reconcile this part of the judgment of the High Court.

If common object/common intention of an offence under Section 149 or 34

IPC was to be invoked, the same should have been invoked against those

who shared common object/intention. The High Court has also not assigned

any reason as to why Mathan, Bhiswa and Ramanath Mahato have been

found guilty under Section 302/34 IPC and not under Section 302/149 IPC.

Furthermore, although in this case right of private defence was not

exercisable; having regard to the peculiar facts and circumstances of the

case, we are of the opinion that the possibility of the Appellants committing

the crime without any intention to cause death cannot be ruled out.

We are, therefore, of the opinion that keeping in view the peculiar

facts and circumstances of this case, the Appellant Nos. 1 and 2 should be

convicted for an offence under Section 304 Part I read with Section 34 IPC

instead of Section 302/34 and 302/109. They are directed to undergo a

sentence of rigorous imprisonment for seven years. The conviction and

sentence of Appellant Nos. 3, 4, 5 and 6 by the High Court is not disturbed.

The judgment of conviction and sentence of the Appellants under Section

148 is upheld. All the sentences shall run concurrently.

The appeals are allowed to the extent as mentioned hereinabove.