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CASE NO.:

Appeal (crl.) 1150 of 2004

PETITIONER:

Triloki Nath & Ors.

RESPONDENT:

State of U.P.

DATE OF JUDGMENT: 28/10/2005

BENCH:

S.B. Sinha & R.V. Raveendran

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL NOs. 1171, 1172 and 1173 OF 2004

S.B. SINHA, J :

These appeals arising out of a common judgment and order dated 22nd

April, 2004 passed by the High Court of Judicature at Allahabad in Crl.

Appeal No. 660 of 1981 and Crl. Appeal No.668 of 1981 were taken up for

hearing together and are being disposed of by this common judgment.

Criminal Appeal No.1150 of 2004 is by Triloki Nath, Krishna Chandra

Singh, Shashi Kant and Sahdev (Accused Nos.6, 5, 7 and 8 respectively).

Criminal Appeal Nos.1173, 1172 and 1173 of 2004 are respectively by

Kunwar Prahald Singh (Accused No.1), Jitendra alias Mister (Accused

No.2) and Gopal (Accused No.3). One of the eight accused namely,

Chhanga has not filed any appeal.

BACKGROUND FACT:

The residents of village Devanand Pur had been performing "Holika

Dehan" for a long time on Plot No. 399, which is said to be a banjar land.

Kunwar Prahlad Singh became the owner of the said plot. He tried to

enclose the said plot by a 'Mend'(Fence). An objection thereto was raised

by the villagers including Laxmi Shankar Srivastava (PW-3); a complaint

wherefor was made pursuant whereto an intervention was made by the

police.

FIRs RELATING TO INCIDENT:

On the Basant Panchami day, the villagers allegedly fixed 'Dhah' as

a symbol of Holi on the said plot and started collecting fuel wood thereupon.

On the said day at about 12 noon, Khuddey, PW-4 while going to the flour

mill found the Appellants herein removing the wood. The accused Jitendra

armed with a gun and the remaining accused armed with lathis were present.

Khuddey, PW-4, servant of Laxmi Shankar Srivastava, allegedly forbade

them from doing so whereupon he was chased. Near the Hata of Pran,

Laxmi Shankar Srivastava (PW-3), Sahjadey Jeevanlal (PW-2) Shabbir and

other persons of the village arrived. Laxmi Shankar Srivastava allegedly

had asked the accused as to why they have been chasing his servant. Triloki

Nath exhorted his companions saying 'Maro Sale Ko' whereupon Gopal

hurled a lathi blow on PW-3's head. Shashi Kant accused gave the second

lathi blow on his wrist. Kunwar Prahlad Singh and Sahdev also assaulted

him with lathis. Chhanga and Krishna assaulted Sahjadey. Khuddey (PW-

4) is said to have hurled lathi blow in defence of Laxmi Shankar Srivastava

(PW-3). He thereafter raised hue and cry which attracted Nanhe (the

deceased), and others. Nanhe raised alarm saying that Lala (thereby

meaning Laxmi Shankar Srivastava) was being killed whereupon Triloki

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Nath exhorted Jitendra asking him to kill him as he professes himself to be a

great helper of Laxmi Shankar. Responding thereto Jitendra fired a shot at

Nanhe. He fell down and died.

A First Information Report was lodged by Dinesh Kumar Srivastava

(PW-1) at about 2 p.m. on the same day.

A First Information Report was also lodged by Kunwar Prahlad Singh

Srivastava (Accused No.1) at about 4.30 p.m. against Shahjadey, Bansidhar,

Khuddey Chamar, Nanhe Chamar, Hira Passy, Shabbir and Laxmi Shankar

purported to be for commission of an offence under Section 147/323/352 of

the Indian Penal Code alleging that Dinesh Kumar under the pretext of

performing Holika Dahan placed some waste wood at Plot No. 399 and kept

on adding thereto. He went to the said plot along with his sons Mister alias

Jitendra and Gopal at about 11 a.m. and removed the said waste wood from

his land. When they were returning, Dinesh Kumar came on his motorcycle

with a child. He allegedly stopped his motorcycle and called his servant as

also Shahjaddey and Bansi Brahman and exhorted "Jane na paye, mar pit

low" whereupon they ran towards their house. On the way, Khuddey

Chamar, Nanhe Chamar, Hira Passi, Shabbir, etc. came from the side of the

east and south and surrounded him. The accused persons attacked Triloki.

Sahdev and other persons ran towards him for his rescue and when they had

been running to save their lives, they heard a sound of gun-fire from behind.

INJURIES ON THE ACCUSED:

Injuries suffered by Triloki Nath in the said incident are as under:

"(1) Lacerated wound, 6 cm x = cm x scalp deep on the

left side of scalp, 6 cm above ear.

(2) Abraded contusion, 6 cm x 3 cm on the back of right

shoulder."

Injuries suffered by Sahdev are as under:

"(1) Lacerated wound, 2.5 cm x = cm x scalp deep, 3 cm

behind left ear.

(2) Abrasion, 1 cm x 1.5 cm on the front of left knee."

Before we advert to the submissions made by the learned counsel for

the parties, we may notice some of the findings of the Trial Court and the

High Court respectively.

FINDINGS OF TRIAL COURT :

(i) "\005Kunwar Prahlad Singh accused had enough cause of

grievance against Laxmi Shanker Srivastava P.W.3 and

Dinesh Kumar Srivastava P.W.1. Undisputedly Kunwar

Prahlad Singh accused had his possession over plot No.

399 in dispute and the same had also been proved by the

Khasra entries for the period preceding the date of

occurrence, and such khasra entries show the crop also of

Kunwar Prahlad Singh accused in the plot in dispute."

(ii) "Thus, the defence case that the accused Triloki and

Sahdeo had also received injuries in the same occurrence

is also proved beyond doubt."

(iii) "As such, I find that the cause of grievance lay with the

accused and not with the prosecution and it is quite

probable that the accused Kunwar Prahlad Singh might

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have collected at the land in dispute fully armed with a

view to effectively remove the fuel wood of Holi on the

plot in dispute and to meet all resistance against it."

FINDINGS OF HIGH COURT :

(i) "From the very inception the only logical inference is

that those accused had gone well prepared with lathies

and fire arm to deal with the other side who were

resisting removal of holika woods and they knew well

that the consequences may be of death merely because

other accused did not have deadly weapon and except

lathi, which is also one of the deadly weapon and is

capable of causing death, it is none other was caused

death merely a chance or incident..."

(ii) "\005It was found that the plot No. 399 was in possession

of Kunwar Prahlad Singh on the preceding day of

occurrence and he had grudge against these people who

were acting against his interest by keeping Holika.

According to prosecution witnesses P.W.1 to P.W.4 it is

evident that fuel woods for Holi had been stocked on the

said plot. There cannot be any grievance of P.W.1 D.K.

Srivastava regarding this as neither P.W.1 nor P.W.3

claimed this land adversely against their personal rights.

Their only role was that P.W.1 D.K. Srivastava and

P.W.3 L.S. Srivastava were playing leading role in

burning of Holi. Therefore, it was the land-holder who

had felt aggrieved. There is also no suggestion that the

woods were stocked at the time of incident nor there is

any case that Laxmi Shankar Srivastava, P.W. 3 and his

associates had collected arms to resist such removal of

Holi. There is probability that the defence side had

collected arms to take revenue (sic) or with a view of

removal of fuel wood of Holi and to meet the resistance

against it."

(iii) "Learned trial court has held that if Nanhe was killed in

the occurrence and the same was in the light of private

defence, such contention of the learned counsel for the

accused is absolutely false firstly because there is no case

that the occurrence took place on or near the land in

dispute to take possession over it place of Holi or Nanhey

had gone near the land to take possession. Secondly, the

fight had taken place not at the plot in dispute but at a

place the distance of which has been stated by Khuddey,

P.W.4 by an uncontroverted testimony, at 300 paces

away from the disputed land. Thirdly, it comes out from

the evidence that Kunwar Prahlad Singh accused had

already thrown away fuel woods from the plot in dispute

before the occurrence took place and according to his

defence version he was proceeding from that place to his

house and, therefore, finding of the trial court has

sufficient reasons that the accused have not acted in their

self-defence."

Upon completion of the trial, Jitnedra with other seven accused were

found guilty of commission of the offence under Section 302/149 for

commission of murder of Nanhe, under Section 307/149 for causing injury

to Laxmi Shankar Srivastava and under Section 147 of the Indian Penal

Code for rioting

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The Trial judge by an order dated 17.9.1981 convicted and sentenced

the accused to imprisonment for life for the offence of murder. The said

judgment has been upheld by the High Court.

SUBMISSIONS:

Mr. S.R. Bajawa, learned senior counsel appearing on behalf of the

Appellants at the outset drew our attention to the fact that the injuries

received by Laxmi Shankar Srivastava and Sahjadey are more or less similar

to those received by Triloki Nath and Sahdev. Such injuries received by the

said Appellants, it was contended, must have given rise to an apprehension

in their minds that one of them may be killed and as such the accused had

rightly exercised their right of private defence. Exercise of such right of

private defence could not have been denied to the accused persons on the

reasonings of the High Court, it was submitted, in view of the fact that

although the place of occurrence was 300 paces away from the plot in

question, both the incidents of removal of trespass from Plot No. 399 as also

the occurrence in question took place as a part of the same transaction.

The learned counsel furthermore drew our attention to the post-

mortem report and submitted on the basis thereof that as blackening and

tattooing and scorching were found, the same could not have been caused

from a double barrel muzzle loaded gun which is said to be the weapon of

offence.

Mr. Bajawa would submit that the impugned judgments of conviction

of sentence are unsustainable as:

(i) Witnesses have come up with half truth.

(ii) The actual reason for putting the woods on the plot in question was

not disclosed. The land was not lying fallow as wheat crop was grown

thereon and, thus, the accused could not have been dispossessed

therefrom.

(iii) The complainants sent Khuddey to tease the accused and they had

been waiting at some distance.

(iv) The accused had a right to remove the wood piled on their land.

(v) They had no animus against Nanhe, deceased and, thus, they could

not have been convicted under Section 302/149 of the Indian Penal Code.

(vi) There was no triggering point for firing at Nanhe except his so-called

shouting that the accused persons would kill Lala meaning thereby

Laxmi Shankar Srivastava, which cannot be relied upon.

(vii) Only one shot was fired from the gun as of necessity, as two of the

accused persons were seriously injured.

(viii) PW-2, the only independent witness, is not at all reliable.

(ix) Admittedly, Khudday had also come with a lathi which established

that the complainant party was the aggressor.

(x) Khudday did not suffer any injury which shows that the accused

persons were not the aggressors.

(xi) Unless Khudday was assaulted, no unlawful assembly could have

been caused.

(xii) In any view of the matter, the entire incident took place at the spur of

the moment.

Mr. R.K. Kapoor, learned counsel appearing on behalf of the

Appellant in Criminal Appeal Nos. 1171 and 1172 of 2004 supplemented the

submissions of Mr. Bajawa urging:

(i) The accused persons were not having any grudge against the

deceased.

(ii) There was no motive for killing.

(iii) The complainants were only chased from the land, which by itself did

not constitute an offence.

(iv) Kunwar Prahlad Singh and Gopal did not give any exhortation for the

death of Nanhe and as such their conviction under Section 302/149 is

wholly unsustainable.

(v) The occurrence took place because of the interference with

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possession of the Appellants in plot in question by Khuddey. As the

entire incident took place within 2-3 minutes, there was hardly any

occasion to form an unlawful assembly and a common object on the

spot.

(vi) There was no intention to kill Nanhe and as such for his death, others

are not liable.

Mr. Vijay Singh, learned counsel appearing on behalf of Shashikant in

Criminal Appeal No. 1150 of 2004 drew our attention to the fact that he

allegedly gave a lathi blow on the left wrist of Laxmi Shankar Srivastava

whereas in his cross-examination he stated that such injury was caused by

Gopal and submitted that in that view of the matter he could not have been

held guilty. He further submitted that sufficient material had been brought

on records to show that an election dispute was going on between the

parties.

Mr. N.S. Gahlout, learned counsel appearing in behalf of the State, on

the other hand, submitted that : (i) having regard to the statements made in

First Information Reports lodged by both the parties, the time of occurrence

as well as the place of occurrence must be held to have been admitted; (ii)

the death of Nanhe and the injuries suffered by Laxmi Shankar Srivastava

and Sahjaddey being not denied and disputed, it was for the Appellants to

show that the defence version was probable; (iii) in view of the fact that both

Khuddey and Laxmi Kant Srivastava were injured witnesses, their presence

at the place of occurrence cannot be disputed and in that view of the matter

there is no reason as to why their testimonies should not be relied upon; and

(iv) that from the First Information Report lodged by Kunwar Prahlad Singh,

it would appear that the firing from a gun was admitted which being wholly

unnatural would lead to an inference that the Appellants were the aggressors.

Our attention in this behalf has also been drawn to setting up of another

story by the Appellants in paragraph 9 of the S.L.P. which reads as under:

"\005As an altercation ensued, Khuddey attacked petitioner

No. 1 and 4. Petitioner No. 1 and 4 wielded lathi in their

defence and a free fight ensued. Prahlad Singh tried to

escape by running away from the scene of occurrence but

from one side, Dinesh Kumar aimed his gun at Prahlad

Singh and from the other side, the brother of Khuddey

namely Nanhe confronted him. Prahlad Singh sat down

to avoid the bullet fearing a shot from the gun of Dinesh

Kumar and the bullet fired by Dinesh Kumar hit Nanhe

and Nanhe died on the spot."

It was submitted on the aforementioned premise that the

Appellants have raised defences which are mutually destructive.

Drawing our attention to the findings of the learned Trial Judge as

also the High Court, it was argued that it is apparent that the accused persons

were the aggressors and in that view of the matter they cannot claim any

right of private defence and in particular having regard to the fact that :

(i) from the plot in question, wood had already been removed.

(ii) place of occurrence is not the land in question but 300 paces away

therefrom.

(iii) If the version of the accused persons is to be accepted that somebody

has fired from behind, it cannot be said that they have done so in self-

defence.

(iv) Such statements being vague no positive case of self-defence has been

made out.

It was submitted that in villages normally the servants carry a lathi

and in that view of the matter it cannot be said that the accused persons came

heavily armed. Drawing our attention to the statements of Khuddey, PW-4

wherein he categorically admitted that Triloki and Sahdev received injuries

from the lathi which he used in defence, it was submitted that in that view of

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the matter it could be said that the prosecution did not come out with the

truth.

As regard, formation of common object, the learned counsel would

submit that the same can be formed on the spot.

ADMITTED FACTS:

The admitted facts are:

(i) That the plot in dispute was in possession of accused Kunwar Prahlad

Singh.

(ii) There are two factions in the village.

(iii) The complainants were piling up wood on the occasion of Holi which

was removed by the accused persons.

(iv) Two persons on the side of the accused, viz., Triloki Nath, Sahdev

suffered lacerated wound on their heads.The said injuries were simple

ones.

(v) Nanhe died out of a gun shot injury. Laxmi Shankar Srivastava and

Sahjadey also suffered lacerated wounds on their heads.

(vi) The complainant and others who were accused in the counter FIR

have been acquitted and the judgment of acquittal has been affirmed

upto this Court.

ANALYSIS:

The submissions of the learned counsel for the parties are required to

be considered in the backdrop of the aforementioned admitted facts.

The Appellants at no stage disputed the correctness or otherwise of

the autopsy report in respect of the deceased Nanhe and injuries sustained by

Laxmi Shankar Srivastava and Sahjadey.. The relevant portion of the

autopsy report reads as under:

" *** *** ***

(1) Multiple fire arm wounds of entry, in an area of 10

cm x 7 cm on the front of neck and upper part of chest in

middle, smallest being 2/10 cm x 2/10 cm and biggest

being > cm x > cm. Blackening and tattooing present

searching (sic) present.

*** *** ***

(c) Laryex, Trachea

and Broachi

Trachea and larvex

ruptured at places 4

pallets recovered.

(d) Right Lung

Ruptured at apex &

contains haematones 3

pallets recovered

(e) Left Lung

Ruptured atapex &

contains haematomes 3

pallets recovered.

*** *** ***

(h) Large vessels

Injuries on both sides

ruptured in neck.

Jugular weni on (L)

side ruptured 5 pellets

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recovered."

Laxmi Shankar Srivastava at the time of incident was about 74-75

years old. From the medico-legal evidence, it appears that he received a

lacerated wound 6 cm x = cm x bone deep on the top of skull, 12.5 cm

above nasion and he had a fracture on the outer side of forearm 2 cm above

wrist joint and abrasion on the front of left leg 10 cm above ankle.

Having regard to the nature of injuries suffered by Laxmi Shankar

Srivastava, a concurrent finding of fact has been arrived at that the

Appellants had an intention to murder him. There is no reason to differ

therewith.

Injuries said to have been suffered by Sahjadey, as would appear from

the medical report proved by PW-5 are as under:

"(1) Lacerated wound 5 cm x 1 cm x Bone deep on the

right side, 7 cm. above ear.

(2) Contusion, 8 cm x 1.5 cm over right lip."

Both PWs-3 and 4 were eye-witnesses. Both of them, even according

to the Appellants, were present at the time of occurrence. Laxmi Shankar

Srivastava (PW-3) was also an injured witness. Even in the first information

report lodged by Kunwar Prahlad Singh both of them had been named.

Their presence at the place of occurrence, therefore, cannot be disbelieved.

The said witnesses have fully supported the prosecution case.

Apart from some minor discrepancies like that at one place he stated

"May be that the lathi used by Khuddey hit Triloki" and immediately

thereafter he stated "I did not see Khuddey using lathi on Triloki. At the

time of occurrence I did not see Triloki and Sahdev getting injured or

bleeding. I did not see any lathi blow having been made on Sahdev",

nothing else has been pointed out to reject the testimony of PW-3. We

would notice hereafter the statements of PW-4 as regards the role played by

him. We do not find any infirmity in his evidence to discard the same. Both

of them are natural witnesses.

PW2 is also one of the named eye-witnesses. He is an independent

witness. His presence at the time of occurrence cannot be doubted as he was

cited at one of the witnesses in the First Information Report which was

recorded within one and half hour from the time of occurrence.

It may be true that there appears to be some contradictions in his

evidence as regard carrying of Laxmi Shankar on his back inasmuch as in

cross-examination he had stated Ram Shankar carried Laxmi Shankar on his

back, but that by itself may not be a ground to discard his evidence in

totality.

'Falsus in uno, Falsus in ombibus' is not a rule of evidence in criminal

trial and it is the duty of the court to disengage the truth from falsehood, to

sift the grain from the chaff.

The said First Information Report was lodged without any delay

whatsoever; particularly having regard to the fact that after the incident the

injured persons were required to be looked after and the distance of the

Police Station from the place of occurrence was about three kilometers.

SELF-DEFENCE

The law relating to self defence in view of a catena of decisions of this

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Court is now well-settled. A plea of right of private defence may be in

respect of property or a person. Section 99 of the Indian Penal Code,

however, mandates that the right of private defence, in no case, extends to

inflicting of more harm than necessary. Section 100 of the Code provides

that the right of private defence of the body extends under the restrictions

mentioned in Section 99 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. It is essential for an

accused to show that there were circumstances giving rise to reasonable

grounds for apprehending that either death or grievous hurt would be caused

to him, burden wherefor lies on him.

It is true that while exercising the right of private defence a person is

not expected to weigh in golden scales on the spur of the moment and in the

heat of circumstances, the number of injuries required to disarm the assailant

who is armed with weapons; but it is also true that the right of private

defence cannot be exceeded so as to cause more harm than necessary.

Circumstances, thus, are required to be viewed with pragmatism. It is also

well-settled that a right of private defnece is unavailable to the aggressor.

The need to act must not have been created by the conduct of the accused in

the immediate context of the incident which was likely or intended to give

rise to that need.

It is not necessary to dilate on the matter any further as in Bishna @

Bhiswadeb Mahato & Ors. vs. State of West Bengal [Criminal Appeal

Nos.1430-1431 of 2003], the issue has been discussed at some length.

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.

The Appellants being in possession of the disputed land, were entitled

to protect it but having regard to the past practice of performing Holika

Dahan on the land in question on the eve of Holi which takes place once in a

year, the complainants party evidently did not want to dispossess the

accused persons permanently. In law, however, the accused persons could

resist trespass. Even a trespass has been committed, in certain situations,

right of private defence can be used to eject the trespassers.

In this case, however, the incident took place 300 paces away from the

land in question. Laxmi Shankar Srivastava had gone to chakk. At the time

of occurrence he was coming back from his chakk. It is, therefore, not

correct to contend that he had sent the servant to the plot in question with a

view to tease the Appellants and was waiting at some distance with others.

He, therefore, could not have known any part of the occurrence which took

place till then.

According to the Appellants, they were attacked upon exhortation of

Laxmi Shankar Srivastava. As would be noticed from the discussions made

hereinafter that the said stand of the Appellants cannot be said to be correct.

It has not been shown that apart from Khuddey any other person was

carrying any weapon. On the other hand, all the Appellants were armed with

lathis except Jitendra who was carrying a gun. There is no material on

records to show that there had been any overt act on the part of the

complainant. In the above circumstances, it is unlikely that the complainant

would ask others to assault the Appellants.

Both the learned Sessions Judge and the High Court came to a

concurrent finding of fact that the incident took place after Khuddey was

chased. It is possible that as regard the right of the villagers to perform

Holika Dahan or because of old enmity, the incident occurred but it is

clearly not a case of free-fight amongst two groups of people, both being

armed with deadly weapons. Thus, no case of self-defence has been made

out.

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PW-4 categorically stated in his examination-in-chief that he used

lathi in defence only after Gopal and Shashikant assaulted Laxmi Shankar

Srivastava and Sahjaddey. In cross-examination, the said witness accepted

that Triloki and Sahjaddey received injuries from the lathi which he had

used in defence, stating :

"\005I was shielding against the attack of the accused on

my lathi and was also making the attacks.

Approximately, I shielded against 2-4 blows of lathi. In

defence I had attacked Triloki. I had given one lathi

blow. I had made one attack with my lathi on Sahdev

also..."

He further categorically stated that none other than him and the

accused had lathi/danda in their hands. We find no reason to disbelieve his

testimony.

The Trial Court and the High Court have found that the nature of

injuries on the person of Triloki Nath and Sahdev were too trivial. No case

has also been made out, as suggested, that Dinesh Kumar (PW-1) was armed

with a gun. He was in fact not present at the time of incident. No such

suggestion was given to him that he was present at the time of incident with

a gun. Such a suggestion had not been given also to any other witness.

Non-sustenance of any injury by Khuddey is also not of much significance.

He in his evidence, as noticed hereinbefore, has clearly stated as to why he

had to wield lathi and how he had been defending himself and had been able

to hit blows on Sahdev and Triloki Nath.

In the First Information Report lodged by Kunwar Prahlad Singh, it is

alleged that they had run away when a sound of gun fire was heard. It is

interesting to note that as regard the said incident, Dinesh Kumar was also

said to have lodged a First Information Report but the same was not brought

on record.

We have noticed hereinbefore that even in the First Information

Report it has been admitted that the accused persons had also received

injuries as a lathi was wielded. PW-3 although stated that he had not seen at

the time of occurrence Triloki or Sahdev getting injured but he accepted that

"May be that the lathi used by Khuddey hit Triloki". Merely a suggestion

was given to PW-3 on behalf of the Appellants that Triloki Nath and Sahdev

tried to mediate between the two groups and after they started beating

Triloki Nath and Sahdev with lathi and in the melee Triloki Nath and Sahdev

in turn assaulted others, but the same was denied.

ANALYSIS OF EVIDENCE

The prosecution has fully established that Khuddey while going to the

floor mill found the Appellants herein removing the wood, and asked them

not to do so. He was, of course, armed with a lathi. Khuddey at that time,

thus, was not causing any trespass. He did not physically prevent the

Appellants from removing the trees. He even did not prevent them from

reentering or otherwise obstructing them physically from possessing the

land. He was chased away. He came near the Hata of Pran which is about

300 paces away from Plot No.399. At that point of time in all probabilities

Laxmi Shankar Srivastava (PW-3) and Sahjadey, (PW-2), Shabbir and other

persons arrived there. Laxmi Shankar Srivastava had only asked the

Appellants as to why they had been chasing his servant, whereupon Triloki

Nath exhorted his companions to assault him resulting in the incident. If

Khoddey's evidence is believed, he had used his lathi to prevent assault on

his master. He had used his lathi both by way of defnece as well as

assaulting two of the accused parties. The right of private defence in the

aforementioned situation could not have been exercised for preventing

trespass into the property or for evicting the trespassers. By the time

Khuddey reached near the land, the Appellants were already in possession

of the land as they had removed the wood, which had been placed on the

land by the complainant party.

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The Appellants, therefore, were aggressors. The right of private

defence cannot, thus, be claimed by them. [See Munney Khan vs. State of

Madhya Pradesh (1971) 1 SCR 943]

In A.C.Gangadhar vs. State of Karnataka [AIR 1998 SC 2381], the

Appellant was said to have caused an injury with an axe on the head of PW-

5 when they protested against the accused from cutting the tree. The right

of private defence claimed by the accused was denied opining :

"3. The learned counsel for the appellant, however,

submitted that even if it is believed that A-1 had caused

grievous hurt, he could not have been held guilty either

under Section 326 or for any other offence as the said

injury was caused by him in exercise of the right of

private defence. Both the courts have come to the

conclusion that the accused and his companions were the

aggressors and had started the assault on the deceased

and his children and that too, because they protested

against the accused cutting the tree. Therefore, there was

no scope for giving any benefit of right of private

defence to the appellant. We, therefore, see no reason to

interfere with the order passed by the High Court\005"

In Rajesh Kumar vs. Dharamvir and Others [(1997) 4 SCC 496], it is

stated :

"20. Section 96 of the Indian Penal Code provides that

nothing is an offence which is done in the exercise of the

right of private defence and the fascicle of Sections 97 to

106 thereof lays down the extent and limitation of such

right. From a plain reading of the above sections it is

manifest that such a right can be exercised only to repel

unlawful aggression and not to retaliate. To put it

differently, the right is one of defence and not of requital

or reprisal. Such being the nature of right, the High Court

could not have exonerated the accused persons of the

charges levelled against them by bestowing on them the

right to retaliate and attack the complainant party."

Therein, the prosecution case was as under :

"3. According to the prosecution case on the same

day at or about 4.30 p.m. the five accused and Lachhi

Ram started demolishing the inner boundary wall of the

shop in order to make it a part of their own house. On

hearing the sound of pounding on the wall Yogesh went

to the lane in front of their house and asked the accused

not to demolish the wall. Immediately thereafter accused

Dharamvir, armed with a lathi, and the other four accused

and Lachhi Ram came out of the shop with knives and

started inflicting blows on Yogesh with their respective

weapons. On hearing the alarms raised by him when

Rajesh (PW 13), his father Dinesh Chander, and his

grandfather Suraj Bhan came forward to his rescue,

Subhash, Lachhi Ram and Suresh, assaulted Rajesh with

their knives. All the five accused persons and Lachhi

Ram also assaulted Dinesh Chander and Suraj Bhan

causing injuries on their person. At that stage, Dinesh

Chander fired a shot from his licensed gun, which hit

Lachhi Ram. In the meantime Krishna Devi (PW 14),

mother of Rajesh, had also reached the spot. Thereafter

the five accused persons ran away with their weapons.

Though Yogesh had succumbed to his injuries there, his

body was taken to the Local Primary Health Centre,

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where the injured Dinesh Chander, Suraj Bhan and

Lachhi Ram were removed for treatment. The injured

Rajesh however first went to Samalkha Police Station to

lodge the FIR."

The Trial Court recorded a finding relying upon the evidence of Rajesh

Kumar (PW-13) and his mother Krishna Devi (PW-14) that the entire

occurrence took place in the lane itself. The said finding was upset by the

High Court accepting the plea of right of private defence of person and

property raised by the accused persons in the manner as noticed supra.

This Court held :

"21. We reach the same conclusion through a

different route even if we proceed on the assumption that

the finding of the High Court that the accused party came

out in the lane and attacked the complainant party after

the latter had damaged the outer door of their house is a

proper one. The offence that was committed by the

complainant party by causing such damage would

amount to "mischief" within the meaning of Section 425

of the Indian Penal Code and, therefore, in view of

Section 105 of the Indian Penal Code the accused would

have been entitled to exercise their right of private

defence of property so long as the complainant party

continued in the commission of the mischief. In other

words, after the damage was done, the accused had no

right of private defence of property, which necessarily

means that when they attacked the complainant party in

the lane they were the aggressors. Consequently, it was

the complainant party \027 and not the accused \027 who was

entitled to exercise the right of private defence of their

persons; and their act of gunning down Lachhi after four

of them were assaulted by the accused party with deadly

weapons would not be an offence in view of Sections 96

and 100 of the Indian Penal Code\005"

In Mannu and others Vs. State of Uttar Pradesh [AIR 1979 SC 1230],

this Court held that when PW-1 and the deceased therein were going to the

market they had been waylaid and attacked by the Appellants, they cannot

claim the right of private defence. These decisions apply in all fours to the

facts of this case.

We may now consider some of the decisions relied upon by Mr.

Bajawa.

In Harish Kumar and Another Vs. State of M.P. [(1996) 9 SCC 667] a

finding of fact has been arrived at that the court had been deprived of a

truthful account of the first of the two occurrences which had taken place

and figuratively there was a first occurrence which led to the second one. It

was furthermore found as of fact that some unpleasantness had occurred

earlier wherefor some of the members of the complainant party had kept

being there and others had started assembling in the lane in which the house

of the appellants lay. In the aforementioned factual scenario, it was held:

"19\005As members of a faction, it is difficult to believe

that they would have come there unarmed and less in

number and be there for no cause, all the more knowing

fully well that amongst the appellants were 2 licensed

weapon-holders. It is alleged by the prosecution that it

was Harish Kumar, accompanied by his companions,

who first stepped forward towards the complainant party,

present near the stone gate. Here then was direct

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confrontation. In the circumstances therefore, the

possibility cannot be ruled out that Harish Kumar,

becoming apprehensive of danger to himself and his

family members chose to be defensive in becoming

offensive, because of the first incident; without having

the requisite intention to cause the murder of any

particular person. He therefore fired but only once and

the fire was not repeated. There was no indiscriminate

firing. His act would therefore, be termed as one in

exercise of the right of private defence of person entitling

him to acquittal..."

In Yogendra Morarji Vs. State of Gujarat [(1980) 2 SCC 218] the fact

situation obtaining was absolutely different. The accused \026 appellant, a

businessman, had purchased land in a nearby village and employed the

deceased and a few others to dig a well thereupon. A dispute regarding

payments due to the workers culminated in their collectively approaching

the accused when he visited the village and was staying in his Manager's

house. During course of their discussion, a heated altercation took place

which was resented by the workers. They collectively were standing on a

road and lingered near a field for about an hour. The accused started on his

return journey at about 9 p.m. and when his station-wagon reached near that

field, the deceased and his companions raised their hands signaling him to

stop the vehicle whereupon the accused slowed down the vehicle and fired

three rounds in quick succession from his revolver without aiming at any

particular person. He went to the police station and surrendered his

revolver. He was acquitted by the Trial Court but convicted by the High

Court for commission of an offence under Section 304 of the Indian Penal

Code. On appeal, this Court held that having regard to the fact that he had

fired three rounds, he must be held to have exceeded his right of private

defence.

In Moti Singh Vs. State of Maharashtra [(2002) 9 SCC 494], this

Court merely held that the right of private defence cannot be denied merely

because the accused adopted a different line of defence particularly when the

evidence adduced by the prosecution would indicate that they were put

under a situation where they could reasonably have apprehended grievous

hurt even to one of them.

In Mahabir Choudhary Vs. State of Bihar [(1996) 5 SCC 107], the law

has been laid down in the following terms:

"11. The emerging position is, you have the first degree

of right of private defence even if the wrong committed

or attempted to be committed against you is theft or

mischief or criminal trespass simpliciter. This right of

private defence cannot be used to kill the wrongdoer

unless you have reasonable cause to fear that otherwise

death or grievous hurt might ensue in which case you

have the full measure of right of private defence."

There cannot be any dispute as regard aforementioned proposition of

law.

In State of U.P. Vs. Ram Niranjan Singh [(1972) 3 SCC 66], this

Court in the facts and circumstances obtaining therein was of the opinion

that two incidents which have taken place on 7th December, 1965 were

integrated ones and, thus, the same right of private defence the Respondent

had for causing the death of the deceased No. 1 was available to him in

respect of the deceased No. 2. The said decision has no application in the

present case.

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

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

the question was as to whether the accused had exceeded their 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 later and in that factual backdrop, it was held:

"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."

The claim of right of private defence was, thus, not available to the

Appellants as : (1) occurrence had taken place 300 paces away from Plot

No.399 of Village Devanand Pur; (ii) The Appellants were aggressors; and

(iii) All of them were armed and in particular Jitendra was having a gun.

In fact Nanhe exercised and could in the facts and circumstances of

the case his right of private defence in assaulting Triloki Nath and Sahdev.

INJURIES ON THE ACCUSED:

Although the injuries suffered by Triloki Nath and Sahdev may be at

the same place on their persons as of Laxmi Shankar Srivastava and

Sahjadey but they are not similar. The injuries suffered by Triloki Nath and

Sahdev are simple in nature. Even in the first information report also

Section 323 was mentioned. The injuries suffered by Laxmi Shankar

Srivastava and Sahjadey, on the other hand, were grievous in nature. The

Appellants were not only charged under Section 326 of the Indian Penal

Code but also under Section 307 thereof. They have been found guilty of

commission of the said offences by both the courts.

It is not the law that prosecution case shall fail only because injuries

on the person of the accused have not be explained. There is a plethora of

decisions to show that to show that in certain situation it is not necessary to

explain the injuries on the person of the accused.

In Laxman Singh vs. Poonam Singh & Ors. [(2004) 10 SCC 94] , it

was 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 6.) 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

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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 Kashiram and Others Vs. State of M.P. [(2002) 1 SCC

71],whereupon Mr. Bajawa relied upon, a 3-Judge Bench of this Court was

satisfied that a case of private defence has been made out by the Appellants

therein. The High Court in that case did not record any specific finding.

The Court referred to its earlier decision in Dev Raj Vs. State of H.P. [1994

Supp (2) SCC 552] wherein it was held that where the accused received

injuries during the same occurrence in which the complainants were injured

and when they have taken the plea that they acted in self-defence, that

cannot be lightly ignored particularly in the absence of any explanation of

their injuries by the prosecution.

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

[(2004) 10 SCC 152] 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 question. In

that context, this Court observed that the complexion of the entire case

changes because in such an event the Appellants cannot be held to be

aggressors.

No decision relied upon by the Appellants lays down a law in absolute

terms that in all situations injuries on the persons of the accused have to be

explained. Each case depends upon the fact situation obtaining therein.

Detailed discussions on this question have again been made in Bishna

@ Bhiswadeb Mahato (supra) and in that view of the matter, it is not

necessary to dilate thereover.

We are of the considered opinion that the injuries on the accused have

sufficiently been explained and, thus, it was not necessary for the

prosecution to adduce any further evidence. [See Takhaji Hiraji vs. Thakore

Kubersing Chamansing and Others (2001) 6 SCC 145]

COMMON OBJECT

A concurrent finding of fact has been arrived at by both the courts.

Nothing has been pointed out to show as to why this Court should take a

different view. When a large number of persons assembled with a gun and

other weapons having in mind the dispute over the land in question, they

must be held to have found common knowledge that by reason of their act,

somebody may at least be grievously injured.

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

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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:

"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,

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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."

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

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..."

Recently, this Court in Vaijayanti Vs. State of Maharashtra, Criminal

Appeal No. 1100 of 2004 disposed of on 22nd September, 2005 as regard

formation of common intention opined:

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"Section 34 of the Indian Penal Code envisages that

"when a criminal act is done by several persons in

furtherance of the common intention of all, each of such

persons, is liable for that act, in the same manner as if it

were done by him alone". The underlying principle

behind the said provision is joint liability of persons in

doing of a criminal act which must have found in the

existence of common intention of enmity in the acts in

committing the criminal act in furtherance thereof. The

law in this behalf is no longer res integra. There need not

be a positive overt act on the part of the person

concerned. Even an omission on his part to do something

may attract the said provision. But it is beyond any cavil

of doubt that the question must be answered having

regard to the fact situation obtaining in each case."

CONCLUSION

The upshot of our aforementioned discussions is that the Appellants

were not entitled to raise the plea of self-defence both in respect of the

property as also the person being themselves aggressors. The fact that the

prosecution in the counter-case lodged by Kunwar Prahlad Singh has

resulted in acquittal of the complainant party would also have some bearing

in the matter. We have also found hereinbefore that injuries on the person of

Triloki Nath and Sahdev had sufficiently been explained. The injuries on

the person of the said Appellants, therefore, loses all significance.

We, therefore, do not agree with the submissions of the learned

counsel for the Appellants that the prosecution has come out only with a half

truth.

For the purpose of arriving at a finding of guilt of the Appellants, the

number of shots fired by Jitendra would not be decisive. Carrying of a lathi

by Khuddey who was responsible for causing injury on Trilokinath and

Sahdev has sufficiently been explained by the learned Sessions Judge as also

the High Court and we do not find any reason to differ therefrom. Similarly,

non-sufferance of any injury by Khuddey is also not of much significance so

as to tilt the balance in favour of the Appellants. It is equally incorrect to

contend that no unlawful assembly could have been caused unless Khuddey

was assaulted. Such a plea, in our opinion, is wholly misconceived.

We are furthermore of the opinion that non-examination of Sahdev is

not fatal.

Mr. Bajawa, the learned Senior Counsel appearing on behalf of the

Appellants laid emphasis on the fact that blackening, tattooing and scorching

were found, the same could not have been caused from a double barrel

muzzle loaded gun which was said to the weapon of offence. The said

contention had not been raised before the Trial Court or before the High

Court. Even the attention of the doctor (PW-5) was not drawn to this

aspect of the matter. Had the doctor been confronted with such a plea, as

has been raised before us, he might have explained the same.

In this case having regard to the peculiar facts and circumstances of

this case, we are of the opinion that the Appellants and the other accused

cannot be said to have formed a common object to kill any person, or to

make an attempt in that behalf in view of the manner in which the

occurrence took place. Their common object appears to be to teach Laxmi

Shankar Srivastava and others, a lesson for making attempts to burn Holika

by causing grievous injuries to them

The prosecution has been able to establish that on mere asking of

Laxmi Shankar Srivastava as to why the other accused had been chasing his

servant, Triloki exhorted his companions saying 'Maro Sale Ko',

whereupon Gopal hurled a lathi blow on PW-3's head. Shashi Kant gave

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the second lathi blow on his wrist. Kunwar Prahlad Singh and Sahdev also

assaulted him with lathis, whereas Chhanga and Krishna assaulted Sahjadey.

Thus, their common object to cause grievous hurt to some persons on the

side of the complainant party is established. We are, therefore, of the

opinion that all the accused persons including Jitendra are to be found guilty

under Section 326/149 IPC.

In the aforementioned premise, a significant aspect of the matter

cannot be lost sight of. Only Triloki exhorted Jitendra to kill Nanhe who

came to the spot accidentlly. The exhortation of Triloki was to Jitendra @

Mister, who was having a gun. On his exhortation only Jitendra fired from

his gun as a result whereof, he died. We, therefore, are of the opinion that

Triloki along with Jitendra developed a common intention in that behalf on

the spot. Both are, therefore, liable to be convicted under Section 302/34

IPC.

The sentence imposed by the High Court on Jitendra is, therefore,

maintained. The conviction of other appellants is altered to one under

Section 326/149 IPC. They are sentenced to undergo seven years' R.I. and

also to pay a fine of Rs.1000/- each, and in default to further undergo a

simple imprisonment of three months. No separate sentence, however, is

being passed for commission of an offence under Section 326/149 IPC as

against Jitendra.

Triloki Nath is said to have expired during the pendency of the appeal.

His appeal is, therefore, dismissed having been abated.

These appeals are dismissed subject to the alteration in the conviction

and sentence, as mentioned hereinbefore.