Sambayya Naidu & Ors Vs. State of A. P. & Ors  Insc 430 (2 September 2003)
Hegde & B. P. Singh. B.P. Singh, J.
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.
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.
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.
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, 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.
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.
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.
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.
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.
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.
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.
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.
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 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.
against the deceased and members of his party.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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 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.
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.
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
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.
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.
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 this Court, as earlier noticed.
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.
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
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.
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 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.
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.
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
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.