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CASE NO.:

Appeal (crl.) 603 of 2002

PETITIONER:

Vajrapu Sambayya Naidu & Ors.

RESPONDENT:

Vs.

State of A. P. & Ors.

DATE OF JUDGMENT: 02/09/2003

BENCH:

N. Santosh Hegde & B. P. Singh.

JUDGMENT:

JUDGMENT

B.P. SINGH, J.

In this appeal by special leave, the appellants have impugned the

judgment and order of the High Court of Judicature, Andhra Pradesh

at Hyderabad dated 28th September, 2001 in Criminal Appeal No. 650

of 1995. They have challenged their convictions under Sections 304

Part-I, 324 and 148 IPC. The appellants herein were accused Nos. 2,

3, 5, 6, 7, 8, 9, 10 and 12 before the trial court. All of them have been

sentenced to undergo one year rigorous imprisonment under Section

148 IPC. A-2, A-3, and A-7 have been sentenced by the High Court

to undergo three years rigorous imprisonment under Section 304 Part-

I IPC. A-7 and A-10 have been sentenced to undergo one year

rigorous imprisonment under Section 324 IPC. All of them have also

been sentenced to pay fines under different counts and to undergo

imprisonment in default. As many as 21 persons were put up for trial

before the III Additional District & Sessions Judge, Visakhapatnam in

Sessions Case No. 25 of 1993. Pending the trial, accused No. 13 died

and therefore the trial as against him abated. Accused A-11 and A-14

to A-21 were acquitted of the charges levelled against them. Thus, 11

persons were convicted by the trial court, who preferred an appeal

before the High Court which was dismissed subject to modification of

sentence under Section 304 Part-I IPC which was reduced by the High

Court from seven years rigorous imprisonment to three years rigorous

imprisonment. A-1 and A-4 though convicted by the High Court have

not preferred appeals to this Court and only the remaining nine

accused have preferred this appeal.

The case of the prosecution is that at about 11.30 a.m. on

23rd July, 1992 an incident took place in village Ponnavolu in which

deceased Lanka Gangaraju lost his life and PWs. 1 to 6 were injured.

The accused numbering 21 had formed themselves into an unlawful

assembly and assaulted the deceased and other members of the

prosecution party, namely, PWs. 1 to 6. It is not in dispute that the

deceased had purchased 2.50 Acres of land from one Satyalingam,

the brother of Suribabu. Adjacent to the lands purchased by the

deceased, Suribabu owned 2.50 acres of land which he had sold to

A-13. The case of the prosecution is that even the lands sold to A-13

were in the cultivating possession of the deceased as a lessee despite

the sale of the land in favour of A-13. There was pending litigation

between the parties relating to the purchase of the land by A-13. The

deceased had raised chilli crop in one portion of that land while other

crops had been raised in the remaining portion of the land in dispute.

The case of the prosecution is that at about 11.00 a.m. on 23rd July,

1992 the deceased along with his son-in-law, PW-1, his grand son,

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PW-2, and his daughter, PW-3 was carrying out the weeding

operations on the portion of the land where chilli crop had been

raised. PWs. 5 and 6 had also come to collect grass. Soon thereafter,

the accused numbering about 20 came there with a ram and packets of

arrack. They kept the ram in the shed of A-13 which was at a distance

of about 100 yards away from their field. The accused thereafter

came to the hut of the deceased near the land on which chilli crop had

been grown. They were drunk and also armed with knives and sticks.

A-1 and A-4 (not appellants herein) questioned the deceased alleging

that they had purchased the land from A-13 and they would take

possession of the land by use of force. A-1 and A-4, who were armed

with knives, caused injuries to the deceased on his head as a result of

which he fell down. Thereafter, A-2, A-3, A-7 and A-12 assaulted the

deceased on his hands, legs and other parts of the body with sticks.

PW-1 attempted to run away from the place of occurrence but A-1

chased him and assaulted him with a knife on his hands as a result of

which he fell down. Thereafter, A-2, A-4, A-7 and A-12 assaulted

him with sticks. When PW-3, wife of PW-1 attempted to save her

husband, A-2, A-3, A-7 and A-12 beat her with sticks while A-5

kicked her on her abdomen. A-1 to A-4, A-6 and A-8 assaulted PW-4

with sticks. In the incident, PWs. 1 to 6 received injuries.

At about 2.00 p.m. the injured were taken to the Kothakota

Police Station from where they were taken to the Government hospital

for treatment. PW-14, the Head Constable, who was then Incharge of

the Police Station, recorded the statements of PW-1 in the hospital and

on the basis of report registered Crime No. 20 of 1992 under Sections

147, 148, 302, 307, 326 and 324 r/w Section 149 IPC.

On returning to the Police Station, he found that some members

of the defence party had also come to the Police Station and of them

A-1, A-9 and A-12 were injured. They were taken by him to the

hospital and on the basis of the statement of A-1 he registered Crime

No. 21 of 1992 under Sections 147, 148, 324 r/w Section 149 IPC.

PW-15, the Inspector of Police, Itchapuram, took over

investigation of the case and proceeded to the hospital where he

examined PWs. 1 to 6 and seized their blood stained clothes. He also

recorded the statements of the injured accused namely A-1, A-9 and

A-12. He took further steps in the course of investigation.

The body of deceased, Gangaraju, was sent to the Government

hospital Narsipatnam for post mortem examination which was

conducted by PW-12. The post mortem report was marked as

Ex. P-11. The injured witnesses were also examined by PW-11 at

Government dispensary, Kothakota. The same doctor also examined

the injuries of A-1, A-9 and A-12. Ultimately, the accused were

arrested and put up for trial before the III Additional District &

Sessions Judge, Visakhapatman in Sessions Case No. 25 of 1993.

As many as 18 charges were framed against the 21 accused

persons under Sections 148, 447, 302, 302 r/w 149, 307, 307 r/w 149,

324 and 427 IPC. As earlier noticed, the trial court acquitted 9 of the

accused persons of all the charges leveled against them. A-13 died

during the pendency of the trial and therefore the trial as against him

abated. A-1 to A-10 and A-12 were convicted by the trial court under

different sections of the IPC, as noticed earlier. A-1 and A-4 have not

preferred appeals before this Court.

Shorn of unnecessary details, the defence case was that the land

in dispute originally belonged to Suribabu which was purchased by A-

13 who later sold it to A-4. The deceased was in cultivating

possession of the said land and therefore A-13 initiated a proceeding

for his eviction from the land in question before the Court of Principal

District Munsif being A.T.C. No. 3 of 1985. The said proceeding

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resulted in an order of eviction against the deceased. A-13 pursued

the matter further in execution and on 13th May, 1992 actual delivery

of possession was effected by the Amin in E.P. No. 37 of 1992. After

delivery of possession, A-13 came in actual possession of the lands in

question which remained under his occupation thereafter. The case of

the defence further is that apprehending disturbance at the hands of

the deceased a proceeding under Section 144 Cr. P.C. was initiated

being M.C. No. 3 of 1992 against the deceased and members of his

party. On 18th June, 1992 an order was passed in the 144 Cr. P.C.

proceeding against the deceased and members of his party.

The defence case is that on the date of occurrence the deceased

attempted to forcibly occupy the land of which possession had been

delivered to A-13 through process of court. When A-13 and others

protested against the high handedness of the deceased, they were

assaulted by the members of the prosecution party with sharp cutting

weapons as a result of which A1, A-9 and A-12 suffered injuries. The

prosecution party was the aggressor, and when the members of the

defence party sought to exercise their right of private defence of

property, they were attacked by them as a result of which they were

compelled to defend themselves. It was, in these circumstances, that

the occurrence took place. In this way, the accused claimed right of

private defence of property as well as right of private defence of

person.

The post mortem report discloses that deceased, Gangaraju, had

suffered 12 injuries, which in the opinion of the doctor were

cumulatively sufficient to cause death in ordinary course of nature.

Two of the injuries on the right and left fore arm were caused by sharp

cutting weapon while the lacerated injuries could have been caused by

sticks. There was no fracture of the skull though there were 4

lacerations on the skull region, as noticed in the post mortem report.

It is not the case of the prosecution that any one of the injuries was

sufficient in the ordinary course of nature to cause death. Apart from

the 4 injuries on the skull region, the remaining 8 injuries were on non

vital parts of the body, primarily on the limbs. Two of the injuries,

namely, injury Nos. 4 and 6 were stab injuries on the right and left

forearm. The trial court, on perusal of the evidence on record, came

to the conclusion that apart from injuries 4 and 6, which could have

been caused by a sharp cutting weapon, the other injuries were only

lacerated injuries which could not have been caused by a knife or any

other sharp edged weapon, and apparently were caused by sticks.

So far as injuries on A-2, A-9 and A-12 are concerned, the

doctor, PW-11, found that A-2 had injury on the thigh over lateral

aspect above the knee joint and A-9 had also suffered 2 incised

injuries.

The trial court considering the charge under Section 447 IPC

held that A-13 had purchased the disputed land from Suribabu. After

the purchase, he filed an eviction case against the deceased under the

Andhra Tenancy Act being A.T.C. No. 3 of 1985. The said

proceeding resulted in favour of A-13 and an order of eviction was

passed against the deceased. Thereafter, A-13 executed the order in

E.P. No. 37 of 1992. The delivery of possession was effected on 13th

May, 1992. The court recorded a categoric finding that actual

delivery of possession of the land was effected on 13th May, 1992 as

there was overwhelming evidence, including documentary evidence,

which established beyond doubt that actual delivery of possession

took place on 13th May, 1992. The court referred to the proceeding

recorded by the Amin showing actual delivery of possession in the

said proceeding. It, therefore, held that the case set up by the

prosecution party that it was in possession of the land in question was

doubtful, while on the other hand, there was positive evidence with

regard to possession of A-13 over the disputed property. Thus, it

could not be said that the members of the defence party including

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A-13 committed trespass punishable under Section 447 IPC since the

land in question was in their actual possession. The court accordingly

held that the charge under Section 447 was not proved and the

accused persons were entitled to be acquitted under that charge.

The trial court then considered the charge under Section 148

IPC. On the basis of the evidence on record it came to the conclusion

that A-1 to A-10 and A-12 were the persons whose presence was

established and who had taken part in the assault on the prosecution

party. It then observed that though at the time of coming to the field

they did not have any mens rea to commit an offence, their subsequent

acts clearly brought them under the Explanation to Section 141 IPC,

meaning thereby, though the assembly was not unlawful at its

inception, it subsequently became an unlawful assembly. It was

further held that these accused persons did not intend to cause the

death of Gangaraju and their only object to begin with was to preserve

possession of the property which was under the control of A-13.

However, since A-1 and A-4 were armed with knives and A-2, A-3,

A-5, A-6, A-7, A-8, A-9, A-10 and A-12 were armed with sticks

which are weapons of offence and which were used in the course of

the incident resulting in the death of Gangaraju, these accused persons

were guilty of an offence under Section 148 IPC. The finding

recorded by the trial judge is not very clear but on a fair reading of

the judgment, it appears that in his view, the common object of the

assembly to begin with was to defend the possession of A-13, which

was not unlawful, but when they used their weapons and assaulted the

members of the prosecution party resulting in the death of one person,

the assembly which was at its inception lawful had become unlawful

because their common object then was one "of excluding the

intervention of Gangaraju and if necessary by use of force". One may

infer from the finding of the trial court that in its opinion the assembly

had not become unlawful as long as they did not use force to defend

the possession of A-13, but once they started using force and indulged

in assault on the members of the prosecution party, the assembly

became unlawful. On this reasoning, the trial court found the

aforesaid accused persons guilty of the offence under Section 148

IPC.

Considering the charge under Section 302 IPC, framed against

Accused 1 to 4, 7 and 12, and under Section 302 read with Section

149 as against the other accused, the trial court considered the injuries

suffered by the deceased. It found that the injuries suffered on the

head were not caused by a sharp cutting weapon while injuries 4 and 6

were stab wounds caused on the right and left fore arm of the

deceased which could have been caused by sharp cutting weapon.

Apart from these two injuries, the other injuries were in the nature of

abrasions or lacerations which could be caused by a hard blunt

substance. It also noticed the opinion of the doctor that the injuries

cumulatively were sufficient to cause death in the ordinary course of

nature. No injury by itself was sufficient to cause death in the

ordinary course of nature. Considering the question, as to which of

the accused had caused which particular injury, after going through

the evidence of eye witnesses, it came to the conclusion that though

their evidence was not consistent, it certainly revealed that accused

1 to 4 and 7 had participated in causing injuries to the deceased. The

participation of accused No. 12 was somewhat doubtful. The

remaining accused were entitled to the benefit of doubt. It noticed the

submission urged on behalf of the accused that even accused Nos. 2, 9

and 12 had suffered several injuries, though simple in nature, but

caused by a sharp cutting weapon and the prosecution had not offered

any explanation as to how those injuries were caused. It came to the

conclusion that no specific injury could be attributed to any particular

accused. The medical evidence disclosed that injuries 4 and 6 were

caused by a sharp cutting weapon and the injuries on the parietal

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region and other parts of the head were only lacerated injuries which

could not be caused by a sharp cutting weapon. Yet the eye witnesses

had attributed the head injuries to accused 1 and 4, who are said to

have been armed with knives such as M.O. 3. It concluded that when

so many persons surrounded the deceased and assaulted him, it would

be futile to contend that any of the witnesses could have noticed

which specific injury was caused by which particular accused. It did

not therefore accept the evidence of the witnesses with regard to the

causing of specific injuries by any particular accused. Moreover, the

medical evidence on record was to the effect that the deceased died

not on account of any particular injury, but on account of the

cumulative effect of all injuries. In the opinion of the trial court,

death resulted on account of excessive loss of blood. Having recorded

these findings and keeping in mind its earlier finding that the accused

were not guilty of the offence under Section 447 IPC, the trial court

concluded that the accused had the right of private defence of

property, namely, to defend their possession so that the deceased and

his party men did not interfere with their possession. It, however, went

on to hold that while exercising their right of private defence of

property they exceeded their right by causing the death of the

deceased by assaulting him. Therefore, while giving to the remaining

accused the benefit of doubt, the trial court found accused 1 to 4 and 7

guilty of the offence under Section 304 Part I IPC, instead of

Section 302 IPC.

After examining the role played by the different accused

persons the trial court also found A-1, A-7 and A-10 guilty of the

offence under Section 324 IPC.

The appellants herein as well as A-1 and A-4 preferred an

appeal before the High Court of Judicature, Andhra Pradesh at

Hyderabad being Criminal Appeal No. 650 of 1995. The High Court

after noticing the evidence on record and the plea of accused and the

findings recorded by the trial court held that though the land in

question had been purchased by A-13, the same was under the

cultivation of the deceased. Even if A-13 obtained an order for the

eviction of the deceased in E.P. No. 37 of 1992, that was mere paper

delivery of possession and on that basis it could not be said that A-13

was in actual physical possession of the land which was under the

cultivation of the deceased and his family members. As regards the

order passed under Section 144 Cr. P.C., the High Court observed that

even though such an order was obtained only a day before the

occurrence, that did not show that the land was under the cultivation

of either A-13, A-1 or A-4. The High Court concluded by observing:

"Though there is much to say that even after the defeat in the legal

battle, the deceased himself was in actual possession, I am not

inclined to reopen the charges on which the accused are acquitted."

The High Court, therefore, proceeded on the basis that the deceased

and his family members were cultivating the disputed land and they

had raised the chilly crop therein and it was the defence party led by

A-13, A-1 and A-4 which went to the land in question, armed with

weapons, and attacked the victims. Though, A-13 was the lawful

owner of the land, he could not be permitted to take actual physical

possession of the land by taking the law into his own hands.

Therefore, the aggression committed by him and his party members

was not justified. In this view of the matter, the High Court upheld

the conviction of the appellants under Section 304 Part I IPC, but in

the facts of the case, reduced the sentence under Section 304 Part I

IPC from seven years rigorous imprisonment to three years rigorous

imprisonment, while maintaining the sentence of fine and sentence in

default of payment of fine.

The judgment and order passed by the High Court has been

challenged by the appellants herein. A-1 and A-4, who were

appellants before the High Court, have not preferred appeals before

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this Court, as earlier noticed.

The crucial question which arose for determination in the case

was one relating to the possession of the land in question. The trial

court found that the appellants were not guilty of trespass punishable

under Section 447 IPC on a finding that A-13, A-1 and A-4 were in

actual physical possession of the land in question. The High Court

has not set aside this finding, but has, all the same, doubted the

correctness of this finding and proceeded on that basis. In our view,

the High Court was not justified in doing so. The trial court noticed

the evidence on record which conclusively established that A-13 had

purchased the land in question from Suribabu. The land was then in

possession of the deceased. A-13, therefore, initiated a proceeding for

the eviction of the deceased and in that proceeding an order of

eviction was passed. If nothing further happened, one can find

justification for the finding of the High Court that A-13 was only the

legal owner of the property in question, though not in actual

possession thereof, and possession was still with the deceased. A-13,

however, was not content merely with obtaining an order of eviction.

The order was sought to be executed in E.P. No. 37 of 1992 and

pursuant to the proceeding of the Court of Principal District Munsif in

execution and the report of the Amin in the delivery of possession

proceeding, on 13th May, 1992 actual delivery of possession took

place. This evidence has been accepted by the trial court and we find

no fault with the finding of the trial court. The evidence on record is

of unimpeachable character and clearly established that the order of

eviction was followed by execution proceeding in which actual

delivery of possession was effected and A-13 came in possession of

the land which is evidenced by the report of the Amin. Therefore, the

High Court fell into an error in proceeding on the assumption that the

possession given to A-13 was mere paper possession. Not only this,

there was even an order passed by the Magistrate under Section 144 of

the Code of Criminal Procedure against the deceased. We, therefore,

hold that on the basis of the material on record the trial court was

justified in recording the finding that A-13, A-1 and A-4 were in

actual physical possession of the land in question. The High Court

was not justified in setting aside this finding in view of the

unimpeachable evidence on record.

Once it is held that it was the defence party which was in

possession of the land in question, the complexion of the entire case

changes because in such event the appellants cannot be held to be the

aggressors. In fact, the trial court also found that the appellants were

only defending their possession against the deceased and his family

members. The defence case is, therefore, probabilised, that they were

defending their possession when members of the prosecution party

sought to dispossess them by use of force. It was not disputed before

us, and it cannot be disputed in view of the clear evidence on record,

that three of the appellants, namely, A-2, A-9 and A-12 also received

injuries in the same incident and they were also got medically

examined by the investigating officer the same day. It was found that

they had also suffered several injuries caused by sharp cutting

weapons. These injuries have not been explained by the prosecution,

which further probabilises the case of the defence that the prosecution

party was the aggressor. If the defence party was in possession of the

land in question, there was really no reason for it to commit the

aggression, and if at all it was the prosecution party which could have

attempted to dispossess the appellants herein by use of force.

The trial court came to the conclusion that the members of the

defence party though they had a right of private defence of property,

had exceeded that right by causing injuries which ultimately resulted

in the death of one of the members of the prosecution party. This was

on the assumption that the members of the defence party had only a

right of private defence of property, which did not entitle them to

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cause the death of any person in the exercise of that right. But the

facts of this case disclose that when they sought to exercise their right

of private defence of property, they were attacked by the members of

the prosecution party and three of them suffered incised wounds. The

case of the defence in this regard appears to be probable and therefore

though initially the appellants had only the right of private defence of

property, once the members of the prosecution party started an assault

on them with sharp cutting weapons, that gave rise to the right of

private defence of person as well. Since in the circumstances, they

must have apprehended that atleast grievous injury may be caused to

them, if not death, they were certainly entitled to use reasonable force

to resist the members of the prosecution party and their right of

private defence extended to causing death of any of the aggressors if

that became necessary. Unfortunately, the courts below have not

viewed the case from this angle. We are of the view that the appellants

were entitled to exercise their right of private defence of property as

well as of person in the facts and circumstances of the case.

Even assuming that the right of private defence of persons did

not accrue to the appellants and that, in fact, they exceeded their right

of private defence of property, it has to be seen as to which of the

accused exceeded that right. It is well settled that in a case where the

court comes to the conclusion that the members of the defence party

exceeded the right of private defence, the court must identify and

punish only those who have exceeded the right. Section 34/149 IPC

will not be applicable in the case of persons exercising their right of

private defence. [See : State of Bihar v. Mathu Pandey

1970 (1) SCR 358 and Subramani v. State of Tamil Nadu

2002 (7) SCC 210]. For the same reason, the appellants cannot be

held guilty of the offence under Section 148 IPC, because nothing is

an offence which is done in the exercise of the right of private

defence.

In the instant case, the trial court clearly recorded a finding that

it was not possible to find as to which accused caused which injury to

the deceased. The trial court did not accept the evidence of the

prosecution witnesses in this regard, which in any event, was not

consistent. The medical evidence on record is to the effect that the

death was the result of the cumulative effect of all the injuries,

consequently no single injury caused the death of the deceased. In the

exercise of right of private defence of property, the appellants were

certainly entitled to use such force as was necessary, but without

causing death. In this state of the evidence on record it is not possible

to record a definite finding as to which of the appellants, if at all,

exceeded their right of private defence, and therefore the benefit of

doubt must go to all the appellants.

In this view of the matter, this appeal succeeds and the

appellants are acquitted of all the charges levelled against them. We

notice that the cases of accused No. 1 and accused No. 4, namely,

Thammireddy Apparao and Lanka Tatayyalu, stand on the same

footing as that of the appellants. For some reason they have not

preferred appeals before this Court, but we feel that in the interest of

justice they are also entitled to the benefit of this judgment. We,

therefore, order their acquittal as well. The appellants herein as well

as accused Nos. 1 and 4, namely, Thammireddy Apparao and Lanka

Tatayyalu, if in custody, shall be released forthwith, if not required in

connection with any other case. This appeal is accordingly allowed.