Nath & Ors Vs. State of
U.P  Insc
614 (28 October 2005)
S.B. Sinha & R.V. Raveendran 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
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 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) "Kunwar 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 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) "It 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
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 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
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
(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.
(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
(v) The occurrence took place because of the interference with 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:
"As 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
(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-
(iv) Such statements being vague no positive case of self-defence has been
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 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.
The admitted facts are:
(i) That the plot in dispute was in possession of accused Kunwar Prahlad
(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.
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
" *** *** *** (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
*** *** *** (h) Large vessels Injuries on both sides ruptured in neck.
Jugular weni on (L) side ruptured 5 pellets 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
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.
(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
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 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
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.
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,
"I 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
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.
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" 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, 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 and not the accused 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"
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.
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:
"19As 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
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..." situation obtaining was absolutely different. The
accused 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.
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.
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.
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.
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 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
"7 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
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"
Kerala [(2004) 12 SCC 269], "7 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."
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.
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.
[(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
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 object is adopted by all
the persons and shared by them, it would serve the purpose.
940], it was observed:
"Even 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" 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:
"What 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" 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, 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." [(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." 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." a Division Bench of this Court noticed:
"A 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..." Appeal No. 1100 of 2004 disposed of on 22nd September, 2005
as regard formation of common intention opined:
"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
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 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
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.