@ Bhiswadeb Mahato & Ors Vs. State of West Bengal  Insc 615 (28 October 2005)
S.B. Sinha & R.V. Raveendran S.B. SINHA, J :
Bhadsa is a small village situate at a distance of 12 kms. from the district
headquarters known as Purulia in the State of West Bengal. On 1.12.1982,
Prankrishna, deceased and Chepulal (PW-14) heard some sounds coming from the
side of their Shivatara land situate in the said village. They informed their
brother Nepal Mahato (PW-25) about the same. They also informed Haradhan Mahato
(PW-2) and who in turn informed Subhas Mahato (PW-13). When the three brothers
were proceeding towards their land, Sambhu Mahato (PW-1) met them on the road.
When they reached near the land in question, being Plot No. 550, they found
some persons were engaged in cutting of paddy therefrom. Nilkantha, Bhiswa
alias Bishna, Manmatha alias Mathan, Kalipada, Bulu, Patal, Lalbas, Haralal,
Ramanath, Majhi, Chinbas alias Srinibas (Accused Nos.1 to 11 respectively) were
standing on the ail (Ridge on the agricultural land). The accused persons were
variously armed. They were asked not to cut paddy but did not pay any heed
thereto. Altercations started. All of a sudden, Bulu (Appellant No.
3) threw an arrow which struck Nepal Mahato (PW-25). They also exhorted
shouting "Marsaladiga". The complainant party retreated to some
They were chased near the bed of tank called 'upper bundh'. Nepal Mahato
(PW-25) was surrounded by the accused. He was hit on his left leg with tabla by
Mathan whereas Haralal hit him with a tabla on his back. Bhiswa (Appellant No.
1) assaulted on his head with a lathi. He fell down on the ground whereupon
Patal struck him with a sword causing injury on his hand.
Ramanath and Nilkantha assaulted him with lathi. Prankrishna, deceased
rushed to save his younger brother whereupon he was assaulted by Mathan on his
right leg with tabla and Bhiswa with lathi. Sambhu Mahato protested to such
assault on the deceased whereupon Lalbas assaulted him with a lathi.
Kalipada (Appellant No. 2) and Nilkantha and Bhiswa (Appellant No. 1)
exhorted that he should be finished whereupon Ramanath took a tabla from
Haralal and struck the deceased at his neck. The deceased succumbed to his
injuries. Further, Bulu threw arrow which struck Chepulal at his head and
Kalipada gave order to finish him whereupon Nilkantha assaulted Sambhu (PW-1)
and Chepulal (PW-14) with lathies in their hand.
Sambhu Mahato (PW-1) came to the district town of Purulia to hire a vehicle
for shifting the injured persons to Purulia Sadar Hospital. In the meantime,
the officer-incharge (PW-28) of the Police Station, Purulia received a
telephonic message that some incident had taken place in the village. He
entered the said information in the diary being G.D. Entry No.
17. He thereafter reached the village round about at 11.40 a.m. and noticed
the dead body of Prankrishna, deceased lying at eastern extremity of the said
tank. J.L. Pahari, a sub-inspector of police who accompanied the officer-
incharge held the inquest on the dead body. Nepal Mahato (PW-25), who was lying
unconscious, was brought to Purulia Hospital in the hired vehicle.
He was accompanied by Chepulal Mahato. Nepal Mahato was admitted in the said
hospital. Sambhu Mahato and Chepulal thereafter went to the police station and
lodged a first information report.
Upon completion of the investigation, 11 persons named in the first
information report were chargesheeted for commission of various offences.
It is also not in dispute that one of the accused, namely, Mathan also sustained
injuries on his person. The defence of the Appellants and other accused was
that they were the owner of the plot No. 550 of the said village wherein as one
of them was attacked and sustained injuries, they exercised the right of
The learned Trial Judge acquitted the Appellants and others for commission
of all offences except one under Section 148 of the IPC inter alia holding that
: (i) the eye-witnesses cannot be relied upon as injury of Mathan (Accused
No.3) had not been explained by the prosecution; (ii) and there was no evidence
of any overt act by Kalipada; and (iii) the prosecution had failed to fix the
responsibility for the death of Prankrishna and injuries to Nepal, Chepulal,
Siju and Sambhu, on any particular accused.
Consequently the Trial Court sentenced all the accused to undergo rigorous
imprisonment for 3 years under Section 148 IPC.
The appeals were preferred thereagainst both by the State of West Bengal as
also by all the accused (except Ramanath, who it is stated has absconded). The
High Court in its impugned judgment, on the other hand, held that there is no
reason to disbelieve the evidence of the eye-witnesses and in particular the
injured witnesses. Lalbehari Mahato (PW-16) and Ramdulal Mahato (PW-19) came immediately
after the occurrence and as such their presence at the scene of the occurrence
cannot be disputed.
Incitement by Kalipada was found to be existing and there was sufficient
evidence in support thereof.
The High Court allowed the State's appeal. In addition to upholding the
conviction and sentencing of all the accused under Section 148 IPC, the High
Court convicted the Appellant Kalipada under Section 302 read with Section 109;
Mathan, Bhiswa and Ramanath under Section 302 read with Section 34; and
sentenced the four of them to undergo rigorous imprisonment for life. Mathan,
Haralal, Ramanath and Patal were convicted under Section 326 read with Section
34 of the IPC and were sentenced to undergo rigorous imprisonment for five
years. Bulu was convicted under Section 324 read with Section 34 and was
sentenced to undergo rigorous imprisonment for two years. Lalbas was convicted
for commission of an offence under Section 325 of the IPC and was sentenced to
undergo rigorous imprisonment for three years. Patal was convicted of an
offence under Section 324 and was sentenced to undergo rigorous imprisonment
for two years. The appeal preferred by the Accused from the judgment and
conviction under Section 148 of the IPC was dismissed. In retard to Mahji and Chinibas,
the decision of the Trial Court was not disturbed.
The accused Nilkantha passed away during the pendency of the appeal before
the High Court. After the judgment of the High Court, Mathan has also died.
Ramanath did not prefer any appeal against the judgment of the trial Court or
the High Court, nor did Mahji and Chinibas.
Bishna, Kalipada, Bulu, Patal, Lalbas and Haralal (Accused Nos. 2, 4, 5, 6,
7 & 8) who have been convicted by the High Court are before us.
Before adverting to the rival contentions, we may notice the admitted facts,
Plot No. 550 is situate in the village Bhadsa measuring 1.05 acres. It
belonged to Kartick Chodhury. Indisputably, 0.65 acres of the said land had
been purchased by the complainants party and they were in possession thereof.
In respect of balance 0.40 acres, the accused persons laid a claim that they
had been cultivating the same as bargadar of the original owner.
The said 0.40 acres of land was purchased by Neelakanta, Manmath and Bhiswa
under a sale deed executed by Kartick Chodhury.
It is also not in dispute that proceedings under Section 145 of the Code of
Criminal Procedure (for short "the Code") was initiated before an
Executive Magistrate at the instance of the complainants and he had passed an
order that they were to continue in possession of the land in question. On a
criminal revision having been filed by one of the Appellants, the said order
was set aside and the matter was remitted for a fresh finding in accordance
The finding of fact arrived at by the courts below is that there was no
demarcation between the land purchased by the complainants and the land
purchased by the Appellants, which the complainants were claiming to have been
in their possession. The complainants cultivated the said land and grew paddy
Enmity between the two groups about the possession of the said land is also
not in dispute. A concurrent finding of fact has been arrived that the
allegations made against the Appellants under Section 148 of the IPC for
forming an unlawful assembly has been established.
Despite the same, Mr. Jaideep Gupta, learned senior counsel appearing on
behalf of the Appellants would submit that the said finding should not be
sustained by us as the place of occurrence had not been established by the
prosecution, as according to the Appellants the incident had taken place in
their own land, namely, plot No. 674 and 669.
Mr. Gupta would urge that the prosecution furthermore had not been able to
prove that Joyram, father of Prankrishna, Chepulal Mahato and Nepal Mahato, was
a bargadar in relation to the 40 decimals of land and cultivated the same.
Joyram has also not been examined as a witness.
We do not find any reason to arrive at a different finding that Joyram and
his sons were not in possession of the land in question as bargadar and had
cultivated the same.
In relation to commission of the offences under Section 302 and Sections 323
to 326 of the IPC, Mr. Gupta would urge:
(i) The witnesses' account were unnatural insofar as their statements are
almost photographic in nature which should not be accepted as admittedly they
have run away from the place of occurrence being in a state of fear.
The description of the incident given by the witnesses is also suspect as
some of the statements made by them had not been disclosed to the investigating
officer as would appear from the evidence of the investigating officer.
(ii) The prosecution having not explained the injuries of the accused
Mathan, adverse inference must be drawn against the prosecution in view of
[(1976) 4 SCC 394].
(iii) The evidence of the Gandhi Mahatani (PW-22) suffering from serious
infirmities cannot be relied upon.
(iv) There is no sufficient evidence to show that Kalipada incited any
person to cause death of Prankrishna, deceased nor any evidence has been
brought out to establish that any assault took place in furtherance of a common
(v) The judgment of the High Court suffers from a serious infirmity insofar
as it held that before proving the contradictions it was necessary for the
defence to put the said statements to the prosecution witnesses while
cross-examining them particularly in view of the fact that a suggestion was
given that they had been deposing falsely. Section 145 of the Evidence Act, in
a situation of this nature, will have no application inasmuch as what was
sought to be established by the defence was that the witnesses had made
statements in the course of the trial which had not been stated by them before
the investigating officer and, thus, the defence did not want to bring on
records any contradictions made by the witnesses.
(vi) The High Court further fell in error as it failed to take into
consideration that the prosecution witnesses approached the place of occurrence
from the eastern side whereas the accused were chasing them from the western
side, and as such they were attacked, they must have run away towards the east
but yet the deceased was found near the upper bundh which admittedly was
situated in the northern side of the paddy field. Our attention in this behalf
has been drawn to the statements of Sambhu Mahato, Ambuj, Subhas Mahato who
stated that they had been running towards south.
(vii) A further infirmity has been committed by the High Court in arriving
at its finding without considering the fact that the injuries on the person of
Mathan had not been explained despite statements made in the first information
report to the effect that one or two members of the complainants side had lathi
with them and might have assaulted some of the aggressors in order to save
their lives, but the same could not have been relied upon inasmuch as at the
trial all the witnesses denied thereabout.
(viii) The seriousness of injury on the person of Mathan is evident from the
statements of the investigating officer that he was lying unconscious so much
so arrangements were made to record his dying declaration and in fact a dying
declaration was recorded by a Magistrate on the night of 1.12.1982.
A right of private defence, thus, could validly be exercised by the
Appellants and others.
(ix) So far as Kalipada is concerned, there is nothing on records to show
that he inflicted any blow on Prankrishna, deceased. He was not involved in any
land dispute between the parties and, thus, could not have derived any benefit
therefrom. There was no allegation that he had been leading the group. He did
not make any exhortation. At the first instance and the exhortation
"finish the salas" as ascribed to him by the eye witnesses did not
find place in the first information report. In any event, no blow appears to
have been struck on the deceased after Kalipada made the said exhortation.
(x) At all events, even if the entire prosecution evidence is accepted, the
conviction could have been only under Section 307 or 304 and not under Section
302 (xi) So far the Appellant, Bhiswa, is concerned, the prosecution has merely
established that he inflicted a blow on Prankrishna on his leg which was not
the cause of his death and as such that no common intention could have been
formed at the spur of the moment by him and other accused as regard murder of
Mr. Tara Chandra Sharma, learned counsel appearing on behalf of the State,
on the other hand, took us through the evidence of the witnesses and would
contend that the reasonings given by the Trial Court in not relying upon the
eye-witnesses are based up conjectures and surmises as well as on misreading of
evidence on record inasmuch as:
(i) the prosecution witnesses are natural and truthful and they have given
the true version of the occurrence;
(ii) non-explanation of the injuries on the accused (Mathan alias Manmath)
by the prosecution by itself may not affect the prosecution case in its
entirety, particularly, when the evidence led by the prosecution is absolutely
clear and cogent;
(iii) the prosecution case is consistent with the facts disclosed in the
first information report. During investigation, the weapons of assault were
seized, blood-stained earth from the place of occurrence was recovered and the
evidence of the doctors who held the autopsy as also those who examined the
injured eye-witnesses, namely, PW-1, PW-14, PW-18 and PW-25 fully supported the
(iv) the Trial Court wrongly excluded the evidence of Sambhu Mahato (PW-1),
Subhas Mahato (PW-13), Chepulal Mahato (PW-14), Siju Mahato (PW-18) and Nepal
Mahato (PW-25) in arriving at a finding that Kalipada did not incite any person
to cause the death of the deceased which is perverse in nature. It was
submitted that before the evidence of the prosecution as regard improvements
made by them from the statements made under Section 161 of the Code of Criminal
Procedure can be challenged, it was incumbent upon the defence to confront the
prosecution witnesses therewith in view of Section 145 read with sub-section
(3) of Section 155 of the Evidence Act. As Kalipada was carrying a gun whereas
other accused persons were armed with various deadly weapons, namely, lathi,
tabla, bow, arrows and sword and as such the judgment of the High Court be
The basic fact of the matter is not in dispute. Presence of all the
prosecution witnesses except PW-22 is not seriously disputed. The only
criticism levelled against the eye-witnesses including injured witnesses is :
(i) that of graphic description of the incident has been given by them; and
(ii) that they retreated towards east and the incident took place towards south
of the plot in dispute.
It is also not in dispute that as regards injury on the person of accused
Mathan, a counter-case was filed. Strangely enough, the defence had not brought
the said first information report on record. The said counter-case is said to
be pending trial. The prosecution in this case examined 32 prosecution
witnesses. PW-1, PW-14, PW-18 and PW-25 are injured eye- witnesses whereas
PW-2, PW-3, PW-13 are eye-witnesses. As the testimony of PW-22 is disputed on
the ground that she could not have been an eye-witness, it may not be necessary
to the consider the same.
The death of Prankrishna and the injuries sustained by the prosecution
witnesses have indisputably been proved by Dr. D.L. Kar, who examined Chepulal
Mahato (PW-14), Dr. S. Chatterjee, who conducted post mortem on the body of
Prankrishna. Dr. Ajoy Kumar Pakrashi (PW-31) who was on emergency duty on that day
examined Nepal Mahato (PW-25). He indisputably was admitted as an indoor
patient in Purulia Sadar Hospital, under the supervision of Dr. Amal Kumar
Ghosh, from 1.12.1982 and was discharged from the hospital on 24.12.1982. Dr.
Amal Kumar Ghosh could not be examined as after he left the government service
his whereabouts were not known. Dr. S. Chatterjee (PW-6) proved the
handwritings of Dr.
Pakrashi and Dr. Amal Kumar Ghosh from the records of the hospital.
Sambhu Mahato (PW-1) gave a categorical statement inter alia to prove the
prosecution case in the following terms:
"The alleged / incident took place on 1.12.82 at about 8/8.30 A.M. in
Mouza Bhadsa within Purulia (M) P.S. I was present in the vegetable field near
my house at Bhadsa. I heard a cry coming from the western side of our village.
I came to village road. I met Nepal, Prankrishna and Chepulal on the road. I
heard from them that Nilkantha Mahato and some other persons were cutting paddy
in their barga land. They requested me to protest against it. Accordingly, I
accompanied them to their barga land mouza Bhadsa. I found many persons cutting
paddy in the barga land of Joyram Mahato. I found there Nilkantha Mahato,
Mathan Mahato, Bhisma Mahato, Haralal Mahato, Ramanath Mahato, Patal Mahato,
Srinibash Mahato. Lalbas Mahato, Kalipada Mahato, Bulu Mahato and Majhi, Sahis
being armed with lathi, tabla, arrows etc. present near the barga land.
Nilkantha, Bishma, Srinibash, Ramanath Majhi Sahis had lathi is in their
hand. Haralal and Mathan had tabla.
Patal had sword. Bulu had bow and arrows, Kalipada Mahato had gun. Some
labourers were cutting paddy. I cannot say their names. We protested against
such cutting of paddy. An altercation started. Then Bulu threw arrow. It struck
Nepal. He was then standing on the barga land. The arrow struck the mouth of
Blood was coming out from the mouth of Nepal. Then all persons named above,
shouted 'maro saladiga'. These persons then chased us. We retreated to some
There is a tank namely 'uppar bundh' contiguous to the barga land. Nepal was
gheraoed at the bed of the tank by these persons. Mathan then struck Nepal with
a tabla causing injury at his leg. Nepal fell down on the ground.
Patal struck Nepal with a sword causing injury at his hand. Haralal struck
Nepal with a tabla. Ramanath assaulted Nepal with a lathi. Prankrishna, the
brother of Nepal, came to the rescue of Nepal. Prankrishna was assaulted by
Mathan with tabla at his leg. Bhishma assaulted Prankrishna with lathi. I
protested against the assault on Prankrishna but Lalbas assaulted me with lathi
on my head causing bleeding injury therein. Bulu threw arrow. It struck
Chepulal at his head. Kalipada gave order to finish him. Nilkantha assaulted
Chepulal with lathi on his head. Prankrishna died at the spot due to head
injury. I returned home. On my way I met Lalbehari, Nabin and others. I
narrated the incident to them. Then, I again returned to the spot with
Lalbehari, Nagen and others. I noticed injury on leg and neck of Prankrishna,
who was found dead. Nepal was lying unconscious." Chepulal Mahato (PW-14)
was son of Joyram, who was a bargardar of plot No. 550. Joyram died during
trial and as such he was not examined. He had lodged a first information report
as the accused persons had cut away the paddy from their barga land on the
previous day. He stated:
"My father, Jairam died during the pendency of this case.
He died due to old age. Tangi is also known to us as tabla. Prankrishna was
my elder brother. Prankrishna had been murdered. The incident took place on
15th Agrahayan. 5/6 years ago at about 8 a.m. On the day of incident, at
morning I accompanied my brother, Nepal, to our paddy field in Sibotoor land in
Mouza, Bhadsa to inspect as to what extent the paddy of that land had been cut
by Nilkantha and others on the previous day. It was then 6 am. We returned to
our home from the field. I heard a hulla while I was in the house I saw from
our kitchen garden that many persons were present in our Sibottor land which
was cultivated by us as bargadar.
These persons were cutting paddy. I informed the matter to Nepal and
Prankrishna. I came out of the house with my brothers and met Digam, Ambuj,
Dashrath, Haradhan. My brothers asked these persons to go to our barga land as
paddy was being cut there. While we are proceeding to the field we met Subhas.
Subhas also accompanied us on our request. My uncle, Sibu also followed us. We
reached our field. Nilkantha, Biswa and other were cutting paddy. We asked them
not to do so. The paddy was being cut by hired labourers while Nilkantha Biswa
and others were on the ail on the land.
We asked the labourers also not to cut paddy. An altercation started. Then
Bulu Mahato threw arrow towards us which struck mouth of Nepal. Nepal was then
on our land. Nilkantha and others then shouted "Mar Salake". We
retreated, but Nilkantha and his companions threw arrows towards us. Nilkantha
and others gheraoed us on the bank of Uppar Bundh. Mathan struck Nepal with
tabla on his leg. Patal struck Nepal with sword. Nepal fell down on the ground.
Haralal struck Nepal with sword. Biswa assaulted Nepal with lathi and so also
Nilkantha. Prankrishna left to rescue Nepal. But Mathan struck Prankrishna with
tabla at his right leg. Biswa assaulted Prankrishna with lathi on left leg.
Kalipada was present. Prankrishna fell down on the ground. Kalipada gave order
to finish. Ramanath took a table from Haralal and struck Prankrishna at his
I came to the rescue of my brothers, but Nilkantha assaulted me with lathi
on my head. Bulu threw an arrow to me. It struck my hand. Sambhu also protested
against the assault. But, Lalbas assaulted Shambhu with an iron rod. Patal,
struck Siju with sword. We retreated to some extent due to this assault. After
assault, the accused fled away." The evidences of other two injured
witnesses Siju Mahatao (PW-18) and Nepal Mahatao (PW-25) are to the same
It is noteworthy that Nepal Mahato in his cross-examination described the
history of the ownership of the land and/ or bargadarship of Joyram in the following
"In May, 1980 we have purchased the remaining portion of plot no. 550
from Kartick Chowdhury. My father applied for barga recording on 12.5.80. My
father applied for such recording in respect of plot nos. 669, 674 and entire
*** *** *** These three plots are contiguousIn 1980 we three brothers and
father were in the same mess. Nagen Mahato, Paresh Sahis are aware of the fact
that we grew paddy on these three plots in 1980.
*** *** *** Not a fact that the incident did not take place on plot no.
550. Not a fact that accused were cutting paddy on their purchased land on
plot nos. 669 and 674 on the day of alleged incident. Not a fact that on the
day of incident we forcibly resisted the accused as the accused cut paddy on
our barga land on previous day. Not a fact that we went to the case land with
prearranged plan." The fact that evidence of other independent witnesses
also points out the overt acts played by each one of the accused is also not in
Nothing has been brought to our notice to show that the presence of the eye-
witnesses who were independent witnesses are wholly unreliable. Two of the
injured witnesses were sons of Joyram.
Besides the eye-witnesses, two more witnesses, namely, Lalbehari Mhato and
Ramdulal Mahato, were examined by the prosecution being PWs.16 and 19. Tthey
came to the place of occurrence immediately after the incident had taken place
and found the dead body of Prankrishna and injured Napal in an unconscious
state. Lalbehari Mahato (PW-16) found the mother of Prankrishna and Nepal
weeping as also Chepulal and Shambhu present there. He heard about the entire
incident from Chepulal including the role played by each of the Appellants and
others. PW-19 also corroborated the testimonies of the prosecution witnesses.
He heard about the incident from Subhas Mahato.
The evidence of these two witnesses corroborate the evidence of the
prosecution witnesses as also the allegations made in the F.I.R. Their evidence
is admissible in terms Section 6 of the Indian Evidence Act. The evidence of
other independent witnesses who are not inimically disposed of towards the
accused is sufficient to concur with the findings of fact arrived at by the
Mr. Gupta made strong criticism as regard the following findings of the High
"From the evidence discussed above we have seen that almost all the
eye-witnesses have named Mathan and Bishma as having assaulted Prankrishna with
tabla and lathi respectively. So far as the accused, Ramanath, is concerned,
the PWs. 2, 3, 13, 14, 18, 22 and 25 have stated that when Prankrishna fell
down on being assaulted by Mathan and Bishma, the accused Ramanath took a table
(Tangi or spear is called Tabla by these people) from Haralal and assaulted
Prankrishna on his shoulder (some say "shoulder", some say
"neck") causing bleeding injury there. It is to be noted that in the
cross-examination of the PWs. 2, 13, 14 & 18, against such statements of
them they have been asked if they made such statements to the I.O., when all of
them have answered in the affirmative. But as against such positive statements
no further cross-examination has been made.
What is done by the defence is putting the same question to the I.O. when he
has said that no such statement was made by these witnesses to him. But this
answer of the I.O. will not have any legal effect in favour of the defence,
because in such a case the legal requirement is that the defence should have to
cross-examine this statement by first giving a suggestion to such a witness to
the contrary effect that he has not made any such statement to the I.O. and
then would put the question to the I.O. and take his answer. Otherwise the
statement made by the witnesses concerned in his cross- examination in positive
from will confirm to be taken as admitted. But, what is more in support of the
prosecution in this regard is the fact that the evidence of P.W.3, Ambuj,
P.W.22, Gandhi Mahatani, and P.W.25 Nepal Mahato, on this point has not been
challenged in the lest" Section 145 of the Indian Evidence Act is
attracted when a specific contradiction is required to be taken; but we may
point out that in certain cases omissions are also considered to be
contradictions [See Shri Gopal & vs. State Represented by Inspector of
Police, T.N.; and State of Maharashtra vs. Bharat Chaganlal Raghani and Others
[ (2001) 9 SCC 1, para 51] But It is not necessary for us to dilate on the said
question in this case.
The High Court noticed that the evidence of PW-3. Ambuj, and PW-25, Nepal
Mahato, had not been put to test of cross-examination, in that behalf.
It found that Ambuj has not been subjected to any cross-examination at all
in regard to his statement that Ramanath took a tabla from Haralal and with it
hit the deceased. As we have not placed any reliance on the statement of PW-22,
we need not refer to her statement, although even her statement in this behalf
was not challenged. As regard PW-5, the High Court noticed that it had only
been put to the I.O., PW-28 in the cross examination, stating :
"P.W.25 did not state before me that Kalipada issued orders for
finishing the complainant's party prior to Ramanath assaulted Pran Krishna with
tangi on his shoulder".
When an incident takes place in a village in the morning and that too at the
harvesting time, presence of the villagers and in particular those who claim
right, title, ownership as well as possession of the land in question is not
unnatural. An occurrence took taken place on the previous day. The witnesses
did not say that they had run away from their land to some other place. They
merely said that they retreated to some extent and thereafter they were chased.
The assault on the deceased as also other prosecution witnesses took place
almost at the same place. The investigating officer found the dead body of
Prankrishna as also Nepal Mahato in an unconscious condition near about the
The presence of the accused with deadly weapons at the place of occurrence
and the fact that they had been harvesting the paddy grown by the complainant
being not in dispute, there is absolutely no reason as to why the account of
the prosecution witnesses should be discarded particularly when sufficient
material have been brought on record to show that despite the fact that they
retreated to some extent, they were chased and caused death to Prankrishna and
injuries to others which would lead to only one conclusion that the said act
was in furtherance of their common intention.
It is not, therefore, possible to accept the submission of Mr. Gupta that we
should ignore the testimonies of all the eye-witnesses including the injured
Considered as a whole, we find the evidence of the prosecution witnesses to
be clear and cogent. They are consistent and creditworthy.
Some of the witnesses, as noticed hereinbefore, are independent and
disinterested. There may be certain omissions on their part but if considered
as a whole and in particular with the medico-legal evidences, we do not find
any reason to disbelieve the same.
First Information Report, it is well settled, need not be an encyclopedic
one. It need not contain all the details of the incident.
Furthermore, little bit of discrepancies or improvement do not Rajasthan AIR
1994 SC 2507]. Trivial discrepancy, as is well-known, should be ignored. Under
circumstantial variety the usual character of human testimony is substantially
true. Similarly, innocuous omission is inconsequential.
The testimony of an injured witness vis-`-vis improvement and
inconsistencies in their evidence as regard part played by each of the accused
may not itself be a ground to disbelieve the witnesses when having regard to
prove injuries on them it would have been impossible to give a State of Gujarat
AIR 1994 SC 1187] It has been established that even when the first protest was
made, Nilkantha shouted "Mar Salake" whereupon the prosecution
witnesses retreated and different accused persons chased them with respective
weapons. Once again, Kalipada gave an order to finish all whereupon Ramanath
took a tabla from Haralal and struck Prankrishna and Prankrishna succumbed to
his injuries. Subhas Mahato (PW-13) also deposed to the similar effect that
Ramanath took a table from Haralal and assaulted the deceased on his shoulder
whereupon Prankrishna fell down. PW-14 is also an injured witness. PW-14
"Nilkantha and others then shouted, 'mar salaki'. We retreated, but
Nilkantha and his companions threw arrows towards us. Nilkantha and others
gheraoed us on the bank of Uparbunds. Mathan struck Nepal with tabla on his
leg. Patal struck Nepal with sword. Nepal fell down on the ground. Haralal
struck Nepal with sword.
Biswa assaulted Nepal with lathi and so also Nilkantha.
Prankrishna left to rescue Nepal, but Mathan struck Prankrishna with tabla
at his right leg. Biswa assaulted Prankrishna with lathi on left leg. Kalipada
Prankrishna fell down on the ground. Kalipada gave order to finish. Ramnath
took a table from Haralal and struck Prankrishna at his shoulder." Siju
Mahato (PW-18) who was also an injured witness categorically stated that
Kalipada was present with a gun and Bikal and Kalipada gave order to finish
whereupon Ramanath took a table from Haralal and assaulted Prankrishna at his
neck. In his cross-examination, Siju Mahato also categorically stated that
Kalipada and Bikal gave order to finish.
Another injured witness was Nepal Mahato (PW-25). In his deposition before
the court he corroborated the prosecution case stating:
"Then Mathan came and struck me at my left leg with a tabla from back
side. Simultaneously Haralal struck me with a tabla on my back. Bhiswa
assaulted me with a lathi on my head. I fell down on the ground.
Thereafter Nilkantha assaulted me with lathi. My elder brother Prankrishna
tried to save me. While he was trying to come near me, Mathan struck Prankrishna
at his right leg with tabla. Bhiswa assaulted Prankrishna with lathi at his
left leg. Prankrishna fell down on the ground.
Kalipada, Nilkantha, Bishwa shouted to finish.
Thereafter, Ramanath took a table from Haralal and struck Prankrishna at his
neck. I was thereafter assaulted and lost my senses. Prankrishna succumbed to
his injuries. I regained my senses at hospital after 5/6 days.
I was examined by police later on. I narrated the incident to police. I was
detailed at the hospital for about 24 days." Thus, about incitement by
Kalipada, five witnesses, namely, Sambhu Mahato (PW-1), Subhas Mahato (PW-13),
Chepulal Mahato (PW-14), Siju Mahato (PW-18) and Nepal Mahato (PW-25),
categorically stated the role played by Kalipada whereafter only Ramanath took
a tabla from Haralal and assaulted Prankrishna at his neck.
Sambhu Mahato (PW-1), Chepulal Mahato (PW-14), Siju Mahato (PW-18) and Nepal
Mahato (PW-25) categorically stated that all the accused persons shouted
The depositions of the said witnesses clearly establish that the accused
persons armed with deadly weapons went to the plot of complainant party with a
common object to harvest the paddy and when asked not to do so they were
attacked and when they retreated to some extent they chased and caused injuries
to the deceased and other witnesses. This clearly establishes that the said act
was in furtherance of a common intention.
As the Appellants herein and other accused persons were aggressors, no right
of private defence could be claimed by them particularly when it has been
proved beyond any reasonable doubt that the prosecution witnesses were first
chased and then assaulted.
The prosecution evidences further clearly establish that the land was in
possession of Joyram, who was bargadar of Kartick Chodhury.
The First Information Report, it is well-settled, need not be encyclopedia
of the events. It is not necessary that all relevant and irrelevant facts in
details should be stated therein. In the First Information Report, it has been
specifically stated that Kalipada Mahato was standing behind armed with a gun
and when they objected, all the accused persons attacked the prosecution
witnesses saying 'Maro Saladigokay' (assault the salas).
The prosecution witnesses in their statements before the court had
categorically stated that Kalipada Mahato also exhorted more than once. It may
be true that he had no axe to grind. He was not claiming ownership of the plot
in question; but there are materials on record to show that the complainant
party and the accused belong to two rival political groups.
Thus, Kalipada Mahato might have a political score to settle, as otherwise
it is difficult to accept that although those claiming the ownership of the
land in question would go there with lathis, he would be present at the spot
with a gun.
It must be taken note of that the exhortation by Kalipada Mahato might be
general in character. From the evidence of the witnesses, it appears that
Kalipada Mahato has used the word 'finish' only after Prankrishna fell down
having been assaulted by the other accused persons, named by them.
For the purpose of attracting Section 149 and/or 34 IPC, a specific overt
act on the part of the accused is not necessary. He may wait and watch inaction
on the part of an accused may some time go a long way to hold that he shared a
common object with others.
Mr. Gupta laid emphasis on the fact that serious injuries on the accused
Mathan have not been explained. We may, at this juncture, only notice that in
the first information report, Sambhu Mahato (PW-1) stated:
"Amongst us, some one might have assaulted some of the aggressors with
lathi in order to save life." The witnesses indisputably in their
cross-examinations did not accept the said fact presumably because they were
accused in the counter-case, presumably on the premise that if they admitted
the same, they would have accepted their guilt. It is now well-settled that it
is not imperative to prove the injuries on the person of the accused
irrespective of the facts and circumstances of the case including the admitted
facts. Normally such a plea is entertained when the right of self defence is
accepted by the court.
The fact as regard failure to explain injuries on accused vary from case to
case. Whereas non-explanation of injuries suffered by the accused probabilises
the defence version that the prosecution side attacked first, in a given
situation it may also be possible to hold that the explanation given by the
accused about his injury is not satisfactory and the statements of the
prosecution witnesses fully explain the same and, thus, it is possible to hold
that the accused had committed a crime for which he was charged. Where injuries
were sustained by both sides and when both the parties suppressed the genesis
in the incident, or where coming out with the partial truth, the prosecution
may fail. But, no law in general terms can be laid down to the effect that each
and every case where prosecution fails to explain injuries on the person of the
accused, the same should be rejected without any further In Lakshmi Singh
(supra), whereupon Mr. Gupta placed strong reliance, the law is stated in the
"It seems to us that taking the entire picture of the narrative given
by the witnesses, in the peculiar facts of this case, the contention cannot be
said to be without substance. The most important fact which reinforces this
conclusion is that the accused headed by Jagdhari Singh had absolutely no
motive, no reason and no concern with the deceased or their relations and there
was absolutely no earthly reason why they should have made a common cause with
Ramsagar Singh and Dasrath Singh over what was a purely domestic matter between
Dasrath Singh and his cousins. It seems to us that having regard to the serious
enmity which PWs 1 to 4 had against the appellants headed by Jagdhari Singh,
they must have made it a condition precedent to depose in favour of the
prosecution or support the case only if Dasai Singh PW 6 would agree to
implicate the appellants Jagdhari Singh and others and to assign them vital
roles in the drama staged so that the witnesses could get the best possible
opportunity to wreak vengeance on their enemies. In fact the prosecution
evidence itself shows that to begin with a dispute started only between Dasrath
Singh and Ramsagar Singh on the one hand and Chulhai Singh and Brahmdeo on the
other and the other accused persons appeared on the scene later on. This
dramatic appearance of the other accused persons seems to have been introduced
as an embellishment in the case at the instance of PWs 1 to 4. There are other
infirmities in the prosecution case also which throw a serious doubt on the
prosecution case." "19 It is here that the need to explain the
injuries of serious nature received by the accused in the course of same
occurrence arises. When explanation is given, the correctness of the
explanation is liable to be tested. If there is an omission to explain, it may
lead to the inference that the prosecution has suppressed some of the relevant
details concerning the incident. The Court has then to consider whether such
omission casts a reasonable doubt on the entire prosecution story or it will
have any effect on the other reliable evidence available having bearing on the
origin of the incident. Ultimately, the factum of non-explanation of injuries
is one circumstance which has to be kept in view while appreciating the
evidence of prosecution witnesses. In case the prosecution version is sought to
be proved by partisan or interested witnesses, the non-explanation of serious
injuries may prima facie make a dent on the credibility of their evidence. So
also where the defence version accords with probabilities to such an extent
that it is difficult to predicate which version is true, then, the factum of non-explanation
of the injuries assumes greater importance. Much depends on the quality of the
evidence adduced by the prosecution and it is from that angle, the weight to be
attached to the aspect of non-explanation of the injuries should be considered.
The decisions abovecited would make it clear that there cannot be a mechanical
or isolated approach in examining the question whether the prosecution case is
vitiated by reason of non-explanation of injuries. In other words, the
non-explanation of injuries of the accused is one of the factors that could be
taken into account in evaluating the prosecution evidence and the intrinsic
worth of the defence version." "8. We shall next deal with the aspect
relating to injuries on the accused and the question of right of private
defence. The number of injuries is not always a safe criterion for determining
who the aggressor was. It cannot be stated as a universal rule that whenever
the injuries are on the body of the accused persons, a presumption must
necessarily be raised that the accused persons had caused injuries in exercise
of the right of private defence. The defence has to further establish that the
injuries found were suffered in the same occurrence and that such injuries on
the accused probabilise the version of the right of private defence.
Non-explanation of the injuries sustained by the accused at about the time of
occurrence or in the course of altercation is a very important circumstance.
But mere non-explanation of the injuries by the prosecution may not affect the
prosecution case in all cases. This principle applies to cases where the
injuries sustained by the accused are minor and superficial or where the
evidence is so clear and cogent, so independent and disinterested, so probable,
consistent and creditworthy, that it far outweighs the effect of the omission
on the part of the prosecution to explain the injuries. (See Lakshmi Singh v.
State of Bihar1.) A plea of right of private defence cannot be based on
surmises and speculation. While considering whether the right of private
defence is available to an accused, it is not relevant whether he may have a
chance to inflict severe and mortal injury on the aggressor. In order to find
whether the right of private defence is available to an accused, the entire
incident must be examined with care and viewed in its proper setting" Such
is not the position here.
We have furthermore noticed the concurrent finding of both the courts that
the accused were guilty of commission of an offence under Section 148 of the IPC.
The fact that they were aggressors and initiated the attack on the deceased and
other witnesses on the land in question and thereafter at the bed of the tank,
thus, stands established.
At this juncture, we may notice some of the decisions relied upon by Mr.
In Mohar Rai (supra) the prosecution case is that the Appellant therein was
chased and caught and at that time he was having revolver in his hand.
The defence plea was that no shot was fired from his revolver and in fact he
having been seriously injured was not in a position to fire any shot from the
revolver. The reports of the ballistic expert examined by the prosecution and
defence were contradictory in nature. He was also acquitted under the
provisions of the Arms Act. In that situation, it was observed:
"6. The trial court as well as the High Court wholly ignored the
significance of the injuries found on the appellants. Mohar Rai had sustained
as many as 13 injuries and Bharath Rai 14. We get it from the evidence of PW 15
that he noticed injuries on the person of Mohar Rai when he was produced before
him immediately after the occurrence. Therefore the version of the appellants
that they sustained injuries at the time of the occurrence is highly
probablised. Under these circumstances the prosecution had a duty to explain
those injuries. ..." this Court held:
"9 It is well settled that merely because the prosecution has failed to
explain injuries on the accused persons, ipso facto the same cannot be taken to
be a ground for throwing out the prosecution case, especially when the same has
been supported by eyewitnesses, including injured ones as well, and their
evidence is corroborated by medical evidence as well as objective finding of
the investigating officer." The said decision runs counter to the
submissions of Mr Gupta.
a positive case of exercise of right of private defence was made out.
Therein the question was as to whether the accused persons exceeded the right
of private defence. They were held to have initially acted in exercise of their
right of private defence of property and in exercise of the right of private
defence of person, observing :
"21 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." where a plea of right of private
defence as regard property was put forward.
Kubersing Chamansing [(2001) 6 SCC 145], it was observed that the
prosecution is under duty to explain the injuries on the accused persons but
the court noticed the following observations in paragraph 17 thereof:
"Where the evidence is clear, cogent and creditworthy and where the
court can distinguish the truth from falsehood the mere fact that the injuries
on the side of the accused persons are not explained by the prosecution cannot
by itself be a sole basis to reject the testimony of the prosecution witnesses
and consequently the whole of the prosecution case." Despite a serious
injury on the person of the accused and despite the fact that the factum of
injury has not been disclosed in the first information report but only in the
statement under Section 161 of the Code of Criminal Procedure by one of the
witnesses, the court held that the factum of the accused was not improper. The
said decision also is of no assistance to the prosecution.
this Court did not rely upon only two witnesses having regard to the fact
that the nature of injuries sustained by the complainants party would clearly
suggest that such injuries could only be caused in a melee which is the version
of the defence that injuries sustained by the deceased and other members of the
complainant party have been caused by a mob consisting of 300-350 people while
trying to rescue accused No. 1. It was further held:
"32Considering the nature of the injuries sustained by the complainant
party it is quite probable that they sustained injuries accidentally while
being involved in a mob fight" 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
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." Sections 149 and 34, however, stand on some different footings
although application of both the sections may be held to be mandatory.
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..." It may be true that the right of private defence need not
specifically be taken and in the event the court on the basis of the materials
on records is in a position to come to such a conclusion, despite some other
plea had been raised that such a case had been made out, may act thereupon.
this Court observed:
"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) 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
Additionally, the dying declaration was found to be acceptable." [(2004)
10 SCC 152], whereupon Mr. Gupta placed strong reliance, is distinguishable on
facts. Therein a finding of fact was arrived at that not only the complainant's
decree for eviction was obtained against the informant, actual delivery of
possession was also effected and accused No.
13 came in a possession of land. In the said factual backdrop, this Court
observed that the complexion of the entire case changes because in such an
event the Appellants cannot be held to be aggressors. The fact of the present
case, however, stands on a different footing.
Once it is established that the complainant party were in possession of the
land in question as also cultivated the same and grew paddy thereupon the
question of the Appellant's exercising of right of private defence as regard
property does not arise. Such a right could only be claimed by the complainant.
So far as the purported right of private defence of a person is concerned, it
has been proved beyond any shadow of doubt that the accused were the
aggressors. They came to the land in question to harvest paddy through hired
labourers. They were armed fully when they were asked not to harvest paddy,
they chased and assaulted the prosecution witnesses. In this situation the
Appellants were not entitled to claim right of private defence.
SELF-DEFENCE 'Right of private defence' is not defined. Nothing is an
offence in terms of Section 96 of the Indian Penal Code, if it is done in
exercise of the right of private defence. Section 97 deals with the subject
matter of private defence. The plea of right of private defence comprises the
body or property. It, however, extends not only to person exercising the right;
but to any other person. The right may be exercised in the case of any offence
against the body and in the case of offences of theft, robbery, mischief or
criminal trespass and attempts at such offences in relation to property.
Sections 96 and 98 confer a right of private defence against certain
offences and acts. Section 99 lays down the limit therefor. The right conferred
upon a person in terms of Section 96 to 98 and 100 to 106 is controlled by
99. In terms of Section 99 of the Indian Penal Code, the right of private
defence, in no case, extends to inflicting of more harm than it is necessary to
inflict for the purpose of defence. Section 100 provides that the right of
private defence of the body extends under the restrictions mentioned in the
last preceding section to the voluntary causing of death or of any other harm
to the assailant if the offence which occasions the exercise of the right be of
any of the descriptions enumerated therein, namely, "First Such an
assault, as may reasonably cause the apprehension that death will otherwise be
the consequence of such assault; Secondly Such an assault as may reasonably
cause the apprehension that grievous hurt will otherwise be the consequence of
such assault". To claim a right of private defence extending to voluntary
causing of death, the accused must show that there were circumstances giving
rise to reasonable grounds for apprehending that either death or grievous hurt
would be caused to him. The burden in this behalf is on the accused.
Sections 102 and 105 IPC deal with commencement and continuance of the right
of private defence of body as well as property. It commences as soon as a
reasonable apprehension of danger to the body arises from an attempt, or
threat, to commit the offence, although the offence may not have been
committed, but not until there is reasonable apprehension. In other words, the right
lasts so long as the reasonable apprehension of the danger to the body
So far as exercise of right of private defence of property extended to
causing death is concerned, the same is covered by Section 103 of the Indian
Penal Code. Such a right is available if the offence, the commission of which,
or the attempting to commit which, occasions the exercise of the right, be an
offence of any of the descriptions enumerated, viz., robbery, house-breaking by
night, mischief by fire committed on any building, theft, mischief or
house-trespass. The said provision, therefore, has no application.
Section 104 provides that in relation to the offences as enumerated in
Section 103, the right of private defence can be exercised to the voluntary
causing to the wrong-doer of any harm other than death. Section 105 provides
for commencement and continuance of the right of private defence of property
which reads as under:
"105. Commencement and continuance of the right of private defence of
property The right of private defence of property commences when a reasonable
apprehension of danger to the property commences.
The right of private defence of property against theft continues till the
offender has effected his retreat with the property or either the assistance of
the public authorities is obtained, or the property has been recovered.
The right of private defence of property against robbery continues as long
as the offender causes or attempts to cause to any person death or hurt, or
wrongful restraint or as long as the fear of instant death or of instant hurt
or of instant personal restraint continues.
The right of private defence of property against criminal trespass or
mischief continues as long as the offender continues in the commission or
criminal trespass or mischief.
The right of private defence of property against house-breaking by night
continues as long as the house- trespass which has been begun by such
house-breaking continues." Section 105 of the Indian Evidence Act casts
the burden of proof on the accused who sets up the plea of self-defence and in
the absence of proof, it may not be possible for the court to presume the
correctness or otherwise of the said plea. No positive evidence although is
required to be adduced by the accused; it is possible for him to prove the said
fact by eliciting the necessary materials from the witnesses examined by the
prosecution. He can establish his plea also from the attending circumstances,
as may transpire from the evidence led by the prosecution itself.
In a large number of cases, this Court, however, has laid down the law that
a person who is apprehending death or bodily injury cannot weigh in golden
scales on the spur of the moment and in the heat of circumstances, the number
of injuries required to disarm the assailants who were armed with weapons. In
moments of excitement and disturbed equilibrium it is often difficult to expect
the parties to preserve composure and use exactly only so much force in
retaliation commensurate with the danger apprehended to him where assault is
imminent by use of force. All circumstances are required to be viewed with
pragmatism and any hyper- technical approach should be avoided.
To put it simply , if a defence is made out, the accused is entitled to be
acquitted and if not he will be convicted of murder. But in case of use of
excessive force, he would be convicted under Section 304 IPC.
A right of private defence cannot be claimed when the accused are
aggressors, when they go to complainant's house well prepared for a fight and
provoke the complainant party resulting in quarrel and taking undue advantage
that the deceased was unarmed causes his death. It cannot be inferred that
there was any sudden quarrel or fight, although there might be mutual fight
with weapons after the deceased was attacked. In such a situation, a plea of
private defence would not be available [See Preetam Singh and Others vs. State
of Rajasthan (2003) 12 SCC 594] In Sekar alias Raja Sekharan vs. State
Represented by Inspector of Police,T.N. [(2002) 8 SCC 354], a Bench in which
one of us was a member, observed :
"10. In order to find whether right of private defence is available or
not, the injuries received by the accused, the imminence of threat to his
safety, the injuries caused by the accused and the circumstances whether the
accused had time to have recourse to public authorities are all relevant
factors to be considered." In Laxman Singh (supra), this Court opined:
"6Where the right of private defence is pleaded, the defence must be a
reasonable and probable version satisfying the court that the harm caused by
the accused was necessary for either warding off the attack or for forestalling
the further reasonable apprehension from the side of the accused. The burden of
establishing the plea of self-defence is on the accused and the burden stands
discharged by showing preponderance of probabilities in favour of that plea on
the basis of the material on record" In Gpttipulla Venkatasiva
Subbarayanam and Others vs. The State of Andhra Pradesh and Another [(1970) 1
SCC 235], Dua, J. speaking for the Bench stated the law thus :
"Section 100 lays down the circumstances in which the right of private
defence of the body extends to the voluntary causing of death or of any other
harm to the assailants. They are: (1) if the assault which occasions the
exercise of the right reasonably causes the apprehension that death or grievous
hurt would otherwise be the consequence thereof and (2) if such assault is
inspired by an intention to commit rape or to gratify unnatural lust or to
kidnap or abduct or to wrongfully confine a person under circumstances which
may reasonably cause apprehension that the victim would be unable to have
recourse to public authorities for his release. In case of less serious offences
this right extends to causing any harm other than death. The right of private
defence to the body commences as soon as reasonable apprehension of danger to
the body arises from an attempt or threat to commit the offence though the
offence may not have been committed and it continues as long as the
apprehension of danger to the body continues.
The right of private defence of property under Section 103 extends, subject
to Section 99, to the voluntary causing of death or of any other harm to the
wrongdoer if the offence which occasions the exercise of the right is robbery,
house-breaking by night, mischief by fire on any building etc. or if such
offence is, theft, mischief or house trespass in such circumstances as may
reasonably cause apprehension that death or grievous hurt will be the
consequence, if the right of private defence is not exercised. This right
commences when reasonable apprehension of danger to the property commences and
its duration, as prescribed in Section 105, in case of defence against criminal
trespass or mischief, continues as long as the offender continues in the
commission of such offence. Section 106 extends the right of private defence
against deadly assault even when there is risk of harm to innocent
persons." [See also State of M.P. vs. Ramesh (2005) 9 SCC 705] Private
defence can be used to ward off unlawful force, to prevent unlawful force, to
avoid unlawful detention and to escape from such detention. So far as defence
of land against trespasser is concerned, a person is entitled to use necessary
and moderate force both for preventing the trespass or to eject the trespasser.
For the said purposes, the use of force must be the minimum necessary or
reasonably believed to be necessary. A reasonable defence would mean a
proportionate defence. Ordinarily, a trespasser would be first asked to leave
and if the trespasser fights back, a reasonable force can be used.
Defence of dwelling house, however, stand on a different footing.
The law has always looked with special indulgence on a man who is defending
his dwelling against those who would unlawfully evict him; as for "the
house of every one is to him as his castle and fortress".
In Hussey [(1924) 18 Cr. App. Rep. 160], it was stated it would be lawful
for a man to kill one who would unlawfully dispossess him of his home.
Private defence and prevention of crime are sometimes indistinguishable.
Such a right is exercised because "there is a general liberty as between
strangers to prevent a felony". The degree of force permissible should not
differ, for instance, the in the case of a master defending his servant from
the case of a brother defending his sister, or that of a complete stranger
coming to the defence of another under unlawful attack.
In Kenny's 'Outlines of Criminal Law' by J.W. Cecil Turner, it is stated :
"It is natural that a man who is attacked should resist, and his
resistance, as such, will not be unlawful. It is not necessary that he should
wait to be actually struck, before striking in self-defence. If one party raise
up a threatening hand, then the other may strike. Nor is the right of defence
limited to the particular person assailed;
it includes all who are under any obligation, even though merely social and
not legal, to protect him. The old authorities exemplify this by the cases of a
husband defending his wife, a child his parent, a master his servant, or a
servant his master (and perhaps the courts would now take a still more general
view of this duty of the strong to protect the weak)." The learned author further
stated that self-defence, however, is not extended to unlawful force :
"But the justification covers only blows struck in sheer self-defence
and not in revenge. Accordingly if, when all the danger is over and no more
blows are really needed for defence, the defender nevertheless strikes one, he
commits an assault and battery. The numerous decisions that have been given as
to the kind of weapons that may lawfully be used to repel an assailant, are
merely applications of this simple principle. Thus, as we have already seen,
where a person is attacked in such a way that his life is in danger he is
justified in even killing his assailant to prevent the felony. But an ordinary
assault must not be thus met by the use of fire-arms or other deadly weapons."
In Browne [(1973) NI 96 at 107], Lowry LCJ with regard to self- defence stated
"The need to act must not have been created by conduct of the accused
in the immediate context of the incident which was likely or intended to give
rise to that need." As regard self-defence and prevention of crime in
'Criminal Law' by J.C. Smith & Brian Hogan, it is stated :
"Since self-defence may afford a defence to murder, obviously it may do
so to lesser offences against the person and subject to similar conditions. The
matter is now regulated by s. 3 of the Criminal Law Act 1967.
An attack which would not justify D in killing might justify him in the use
of some less degree of force, and so afford a defence to a charge of wounding,
or, a fortiori, common assault. But the use of greater force than is reasonable
to repel the attack will result in liability to conviction for common assault,
or whatever offence the degree of harm caused and intended warrants.
Reasonable force may be used in defence of property so that D was not guilty
of an assault when he struck a bailiff who was unlawfully using force to enter
D's home. Similar principles apply to force used in the prevention of
crime." The case at hand has to be considered having regard to the
principles of law, as noticed hereinbefore. We have seen that in what
circumstances and to what extent the right of private defence can be exercise
would depend upon the fact situation obtaining in each case.
Except the Appellants, the other accused have not preferred any appeal.
In view of our findings aforementioned, ordinarily we would have upheld the
conviction of the Appellants under Sections 302/109 and 302/34 IPC, but the
High Court has found the accused guilty as under :
i) Mathan, Bhishwa and Ramanath Mahato under Section 302/34 IPC for
committing the murder of Prankrishna Mahato;
ii) Kalipada Mahato under Section 302/109 IPC;
iii) Mathan, Haralal, Ramanath and Patal Mahato under Section 326/34 IPC for
causing grievous hurt to Nepal Mahato;
iv) Bulu Mahato under Section 324 IPC for causing hurt to Nepal and
v) Lalbas Mahato under Section 325 for causing grievous hurt to Shambhu
Mahato; and vi) Patal Mahato under Section 324 IPC for causing hurt to Siju
It is difficult to reconcile this part of the judgment of the High Court.
If common object/common intention of an offence under Section 149 or 34 IPC
was to be invoked, the same should have been invoked against those who shared
common object/intention. The High Court has also not assigned any reason as to
why Mathan, Bhiswa and Ramanath Mahato have been found guilty under Section
302/34 IPC and not under Section 302/149 IPC.
Furthermore, although in this case right of private defence was not
exercisable; having regard to the peculiar facts and circumstances of the case,
we are of the opinion that the possibility of the Appellants committing the
crime without any intention to cause death cannot be ruled out.
We are, therefore, of the opinion that keeping in view the peculiar facts
and circumstances of this case, the Appellant Nos. 1 and 2 should be convicted
for an offence under Section 304 Part I read with Section 34 IPC instead of
Section 302/34 and 302/109. They are directed to undergo a sentence of rigorous
imprisonment for seven years. The conviction and sentence of Appellant Nos. 3,
4, 5 and 6 by the High Court is not disturbed.
The judgment of conviction and sentence of the Appellants under Section 148
is upheld. All the sentences shall run concurrently.
The appeals are allowed to the extent as mentioned hereinabove.