Gottipulla Venkata Siva Subrayanam
& Ors Vs. State of Andhra Pradesh & ANR [1970] INSC 5 (19 January 1970)
19/01/1970 DUA, I.D.
DUA, I.D.
HIDAYATULLAH, M. (CJ) RAY, A.N.
CITATION: 1970 AIR 1079 1970 SCR (3) 423
CITATOR INFO:
RF 1970 SC1321 (17) RF 1973 SC 473 (4)
ACT:
Indian Penal Code (Act 45 of 1860), ss. 96 to
106-Right of private defence-Scope of-Plea not raised by accused--Duty of
Court, when there is evidence showing right of private defence.
HEADNOTE:
With respect to a kunta, which was government
property, certain persons who had occupied a part of the land in the kunta and
the accused, were asserting their respective claims, the former to the use of
the land in the kunta for cultivation and latter, to the use of the kunta as a
source of irrigation. The occupiers and accused belonged to opposite political
factions. A suit was filed by the occupiers and the civil court passed two
orders of injunction, one restraining the accused from interfering with the
occupiers' possession, and the other, restraining the occupiers from opening
sluices in the bund of the kunta.
While the suit was pending the occupies
raised corps on their land and the accused raised a new bund. Since their crops
were being damaged as a result of the raising of the new bund, the occupiers
approached the police 'authorities and tahsildar for the removal of the bund,
but they did not give any effective help. The accused were not willing to allow
the removal of the bund without any Government order.
Thereupon, the occupiers and their supporters,
numbering not less than twenty went to the spot to remove the bund by force,
but the accused were present at the spot determined not to allow the bund to be
removed. In the fight that ensued, the first accused, aged about 60 years,
received ten injuries on the vital parts of his body and the Civil Assistant
Surgeon who attended on him thought it was necessary to take a dying
declaration from him. The second accused who was about 50 years old, was also
subjected to severe beating. Some of the other accused also received injuries.
The tenth accused, who had a gun in his hand, and who was the son-in-law of the
first accused, shot at the actual aggressors and killed three of them and
injured another. The party of the occupiers asserted that they went to the
scene of occurrence unarmed and with the intention of peacefully persuading the
accused to remove the bund and that when beaten by the: accused they snatched
the sticks and spears from them and retaliated. The tenth accused put forth a
plea of alibi. The other accused asserted that the party of the occupiers were
the aggressors and that they acted in self defence. Holding that it was not
material to consider whether the occupiers 'and their supporters had brought
with them sticks or snatched them from the accused, that the accused had
attacked first, and that the injuries to the accused did not give rise to any
right of private defence, the High Court convicted some of the accused for the
offence under ss. 147 I.P.C., to the offence under s. 148 I.P.C., and the tenth
accused for the offences of murder and grievous hurt with a dangerous weapon.
In appeal to this Court,
HELD : (1 ) When they went to the scene, the
occupiers knew that determined not to allow the removal of the bund without an
order from determined not to allow the removal of the bund without an order
'from the Government authorities. In the circumstances the occupiers and their
424 supporters must have gone to the kunta fully armed, and it was not possible
to accept their version. [434 E-G] (2) The occupiers moved in the matter only
after the new bund was raised by the accused. They had ample opportunity of
approaching public authorities to have the bund removed.
When the occupiers and their supporters found
that the police were guilty of a grave dereliction of their duty, they could
have approached the higher authorities or the civil court in which the suit was
pending. Instead of having recourse to those steps they decided to go to the
scene in large numbers fully determined to remove the bund by force. When that
attempt was foiled by the accused with show of force, the members of occupiers'
party mercilessly beat up some of the accused persons who were advanced in age.
In such a situation it was not possible for an average person placed in the
position of the tenth accused, to take a calm and objective view and calculate
with arithmetical precision as to how much force would effectively serve the
purpose of self-defence and when to stop. He only used the gun against the real
aggressors from whom he apprehended grave danger to the lives of the other
accused persons and to himself. Therefore, he was fully justified in using his
gun in the exercise of the right of private defence against the party of the
occupiers. [438 C-D, E-H; 439 A-E] Except as against acts of public servants
acting in good faith and when there is time to have recourse to the protection
of public authorities, under s. 97 I.P.C., every person has a right to defend :
(1) his own body and the body of any other person against any offence affecting
the human body, and (2) the property of himself or of any other person against
theft, robbery, mischief, of criminal trespass.
Such a right is basically preventive and not
punitive, and, nothing is an offence which is done in the exercise of the
right. Under s. 100 one of the circumstances in which the right of private
defence of the body extends to the voluntary causing of death of the assailant,
is, if the assault, which occasions the exercise of the right, reasonably
causes the apprehension that death or grievous hurt would otherwise be the
consequences thereof. [437 B-D, E-F] (3) When there is evidence proving that a
person accused of killing or injuring another-acted in the exercise of the
right of private defence, the court would not be justified in ignoring that
evidence and convicting the accused merely because he had set up a defence of
alibi and set forth -a plea different from the right of private defence. Courts
are expected to administer the law of private defence in a practical way with
reasonable liberality so as to effectuate its underlying object. Therefore, the
Court was not precluded from giving the tenth accused the benefit of the right
of private defence. [439 F-H]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 75 of 1967.
Appeal by special leave from the judgment and
order dated April 8, 1966 of the Andhra Pradesh High Court in Criminal Appeal
No. 636 of 1963.
Nur-ud-din Ahmed, A. V. Rangam, A. Vedavalli
and D. Gopala Rao, for the appellants.
P. Ram Reddy and A. V. V. Nair, for the
respondents.
425 The Judgment of the Court was delivered
by Dua, J. In this appeal by special leave directed against.
the order of the Andhra Pradesh High Court,
the only question canvassed on behalf of the appellants before us relates to
the plea of private defence raised by them at the trial. The appellants who are
ten in number were tried on as many is 22 charges by the Court of Additional
Sessions Judge, Masulipatam and acquitted of all the charges. On appeal by the
State against their acquittal there was a difference of opinion between the two
Judges of the High Court constituting the Division Bench hearing the appeal.
Whereas Sharfuddin Ahmed, J., upheld the
order of acquittal on the basis of the plea of private defence, Mohd. Mirza,
J., was of the opinion that the prosecution case was proved by overwhelming
evidence. The case was in consequence laid before Basi Reddy, J., as provided
by s. 429, Cr. P.C. That learned Judge accepted the prosecution case and
convicted the appellants on some of the charges. He expressed his final
conclusion thus :
"I shall now indicate the charges upon
which the accused should be convicted and the sentences that should be imposed:
On charge no. 21 would convict accused 1, 3
and 5 to 9 under section 147, I.P.C. and on charge no. 3 accussed 2, 4 and 10
and sentence each of accused 1, 2,3, 4 and 5 to pay a fine of Rs. 5001/in
default each to suffer six months' rigorous imprisonment. I would sentence each
of accused 6 to 9 (who are farm servants) to pay a fine of Rs. 100/in default
to suffer two months' rigorous imprisonment. I would sentence accused 10 to
suffer rigorous imprisonment for two years.
2. On each of charges nos. 4, 5 and 6 which
pertain to the three counts of murder, I would convict and sentence accused 10
to suffer imprisonment for life under section 302, I.P.C..
3. On charge no. II, I would convict and
sentence accused no. 10 to suffer two years' rigorous imprisonment under
section 326, I.P.C. for having caused grievous hurt to P.W.
6 by shooting at him with the gun.
4. On charge no. 221 would convict accused 10
under section 19(a) of the Indian Arms Act and sentence him to suffer one
year's rigorous imprisonment.
I would direct all the sentences of
imprisonment passed on accused 10 to run concurrently. I would uphold the order
of acquittal on other charges.
426 The net result will be that accused 10
will have to undergo imprisonment for life; accused 1 to 5 will each have to
pay a fine of Rs. 500; and accused 6 to 9 will each have to pay a fine of Rs.
100/-".
The final. order of the High Court on appeal
followed the opinion expressed by Basi Reddy, J. The charges on which the
appellants were convicted are there ".... ......... .........
Secondly : that you accused nos. 1, 3 and 5
to 9 along with accused nos. 2, 4 and 10 at about 10 a.m. on 10-9-61 at the
same place and in the course of the same transaction as set out in charge no. 1
above, formed you’re the common object of such assembly viz : beating and the
occupiers of Gabbilalakunta, committed an offence of assembly, viz. : beating
and killing the members of the lakunta, committed an offence of rioting and
that at that weapons to wit, 'spears' and the 10th accused was armed and within
my cognizance;
Thirdly : that you accused nos. 2, 4 and 10
along with accused nos. 1, 3 and 5 to 9 at the same time and place in the
course of the same transaction as set out in charge no.
2 above, were members of an unlawful assembly
and did in prosecution of the common object of such assembly, viz :beating and
killing the members of the party that came in support of the occupiers of
Gabbilalakunta, committed an offence of rioting and that at that time, the
accused nos. 2 and 4 -were armed with deadly weapons to wit, 'spears' and the
10th accused was armed with a D.B.B1 Gun and thereby committed an offence
punishable under section 148 of the Indian Penal Code and within my cognizance;
Fourthly : that you accused no. JO at the
same time and place and in the course of the same transaction as set out in
charge no. 2 above, did commit murder by intentionally or knowingly causing the
death of Anne Ramarao, son of Seetha Ramarao of Atkur by shooting him with a D.
B. B1 gun and thereby committed an offence punishable under section 302 of the
Indian Penal Code and within my cognizance;
Fifthly : that you accused no. 10 at the same
time and place and in the course of the same transaction as set out in charge
no. 2 above, did commit murder by intentionally or knowingly causing the death
of Bodapati China Anjaiah s/o Danaiah of Mustabada by shooting 427 him with a
D.B.B I gun and thereby committed an offence punishable under section 302 of
the Indian Penal Code and within my cognizance;
Sixthly : that you accused no. 10 at the same
time and place and in the course of the same transaction as set out in charge
no. 2 above, did commit murder by intentionally or knowingly causing the death
of Boddapati Lakshmaiah s/o Kotaiah of Medaripalem, hamlet of Verudupavuluru by
shooting him with a D.B.B1 gun and thereby committed an offence punishable
under section 302 of the Indian Penal Code and within my cognizance;
Eleventhly : that you accused no. 10 at the
same time and place and in the course of the same transaction as set out in
charge no. 2 above, voluntarily caused grievous hurt to Kolli Nagabhushanam,
son of Venkaiah of Davajigudem by means of a D.B.B1 gun an instrument for
shooting and thereby committed an offence punishable under section 326 of the
Indian Penal Code and within my cognizance and that the said act having been
done in pursuance of the common object of the unlawful assembly consisting of
you all the accused herein, all of you are guilty of the offence under section
326 of the Indian Penal Code read with section 149, Indian Penal Code and
within my cognizance, or alternatively under section 326 read with section 34,
Indian Penal Code and within my cognizance;
Twentysecondly : that you accused no. 10 at
about the same time and place and in the course of the same transaction as set
out in charge no. 2 above, were armed with a D.B.B1 gun without licence under
the Indian Arms Act and thereby committed an offence punishable under section
19(e) of the Indian Arms Act and within my cognizance." In this Court, as
already observed, the appellants' learned Advocate confined hissubmission only
to the question of right of private defence. According to the prosecution case,
there is a low lying area covering. about 11 acres known as Gabbilalakunta
(hereafter to be referred as the Kunta) about one mile away from Surampalli
village but within its limits. This Kunta serving as a tank is fed by rain
water. The village of Surampalli was a Mokhasa village in the erstwhile
zamindari of Mirzapuram. Under 428 the provisions of the Madras Estates
(Abolition and Conversion into Ryotwari) Act, 1948, the zamindari of Mirzapuram
was taken over by the Government in 1950. As a result thereof the entire estate
including Surampalli village and the Kunta became vested in the Government free
from all encumbrances. This Kunta thus belonged to the Government. Some poor
landless persons like P.Ws 13 and 14, Shaik Madarsaheb and Kandavalli Anandam,
began cultivating a part of this Kunta and started raising wet and dry crops.
This started in the year 1953. Their
occupation being unauthorised the Revenue Authorities collected penalty list
from the occupants. Accuse4d nos. 1 to 4, Gottipulla Venkatasiva Subbarayanam,
Gottipulla Bapaiah, Gottipulla Seshaiah and Gottipulla Subba Rao, who are the
,former Mokhasadars have their lands measuring about 80 acres to the south of
the Kunta. 'There is a big tank called Erracharuvu located about three or four
furlongs to the north of the Kunta. There are some channels through which water
flows from this tank to various fields and one such channel serves to irrigate
the field of the accused nos. 1 to 4. According to the prosecution the lands of
these accused persons should be irrigated by means of the channel running along
the western side of the Kunta. According to the accused persons, however their
fields should receive water from the Kunta through sluices in its southern
bund. In 1958 the Settlement Authorities registered the Kunta as a source of
irrigation for an ayacut of 34 acres. Prior to that, sometime in August 1957,
the occupiers of the Kunta had instituted a suit for injunction restraining
accused nos. 1 to 4 from interfering with the possession of the occupiers and
also claiming damages on the allegation that the defendants had spoiled their
crops and an interim injunction was actually granted on August 21, 1957.
Accused nos. 1 to 4 also filed an application
seeking to injunct the occupiers from opening the sluices (out-lets) or making
breaches in the bund of the Kunta during the pendency of the suit. On this
application also the court, by an order dated August 29, 1957, granted a
temporary injunction in the following terms "Pending disposal of this
petition, the respondents are restrained fro -in opening the sluices or outlets
or cutting any breaches to the bund of the tank situated in S. No. 44 if there
is any bund......" On February 3, 1960 the Court confirmed both the orders
of injunction mentioned above. The land in the Kunta was not cultivated in the
years 1958 to 1960 because, of failure of rains. In June, 1961 cultivation was
resumed by P.W. 13 and P.W. 14, along with four other persons, raising paddy
crop in a part of the Kunta. Another part of the Kunta was prepared for raising
429 jonna crop. The suit mentioned above was still pending when on September 4,
1961 it was adjourned to some other date.
It rained heavily that night and the,, rain
water collected in the Kunta. On the following morningwhen P.W. 13 and P.W. 14,
along with some other occupiers passed by the side of the Kunta they saw a new
bund raised on its western side so as to prevent the rain water collected
therein from flowing westwards. This resulted in submerging the crop grown on
the eastern portion of the Kunta. The new bund was about 3 high, 2-1/2 wide and
25 yards in length. There being no one present at the bund P.Ws 13 and 14 and
their companions made a breach therein to let the water flow westwards. In the
evening when they came back to the Kunta they found that the breach in the bund
had been repaired and the bund restored to its original position. There were
also two improvised huts set up to the south of the bund and all the ten
accused were present keeping a watch. The occupiers pleaded with the accused
persons to remove the bund pointing out that otherwise their crops would be
damaged but the accused persons did not listen to their entreaties and
threatened to beat them if they dared to interfere with the bund. The occupiers
thereupon went back to their village.
On the following day, September 6, 1961, P.W.
12, Yelamanchili Malikharjuna Rao, a medical practitioner at Surampalli and a
leading member of the Communist Party was approached by the occupiers to assist
them in representing to the authorities against the high-handed action of the
Mokhasadars. A report was prepared by P.W. 12 which was addressed to the
Sub-Inspector of Police. The Sub-Inspector promised to send his constables to
the spot and on this assurance the occupiers went back to their village. On
September 7, 1961 under the direction of the Police SubInspector two police
constables went to the Kunta with the object of getting the bund removed and if
possible to bind over the parties. The Kunta was full of water and the paddy
crop was submerged. Six of the occupiers were also present at the spot.
The-police Constables informed the persons present keeping a watch on the bund,
which included accused no. 1 Gottipulla Venkatasiva Subbarayanam, accused no. 2
Gottipulla Bapaiah and accused no. 10, Charugulla Vijayaramarao, that the
Sub-Inspector had directed the western bund to be removed so that water may
flow westwards.
Accused nos. 1, 2 and 10 asked for Government
orders to that effect and declined to allow the bund to be removed in the
absence of such an order. The police constables asked the parties present to
meet the Sub-Inspector on the following day. Neither party, however, went to
the police station as required. The Tahsildar also appears to have been
approached to get the bund removed but he declined to do so on the ground that
it was not his business and that it was for the Revenue Divisional Officer to
look into the matter.
On September 9, 1961 the Sub-Inspector sent a
head constable along with 430 the constable who had gone there on September 7,
to enquire into the complaint made to the police earlier. According to the
report prepared by the head constable accused no. 10 was firm and emphatic that
the bund could not be removed in the absence of a Government order to that
effect. Bonds were, therefore, secured from accused nos. 2 and 3 and also from
the occupiers for appearance before the Sub-Inspector on the following morning.
It appears that these steps by the police produced no tangible result. The
occupiers realising that their crops were being irreparably damaged made
frantic efforts to get the bund removed and with that object they approached
some ryots of the surrounding -villages to intervene on their behalf and to
persuade the Mokhasadars to remove the bund. After the police party had left
Surampalli on the evening of September 9, P.Ws. 13 and 14 and some other
occupiers proceeded to Gannavaram and approached some persons belonging to the
Communist Party and apprised them of their plight. The occupiers were assured
of their support on the following morning. On the morning of September 10, P.W.
II, Katragadda Pedavenkatarayudu accompanied by P.W. 6, Koli Nagabhushanam, and
Anne Rama Rao (deceased no. 1) went to Mustabada on their way to Surampalli. At
Mustabada they contacted Chinna Anjayya (deceased no. 2) and P.W. 15, Pendyala
Venkateswara Rao, and from there they all proceeded to Surampalli. At the
Panchayat Board Office at Surampalli they collected P.W. 1, Madhukuluri
Satyanarayana, P.W. 4, Kolampatta Venkata Subbayyachari, P.W. 5, Jasti Ramarao,
P.W. 7, Garimella Subbarao, P.W. 8, Garimella Venkataiah, P.W. 9, Mukkala
Veeraiah and deceased no. 3, B. Lakshmayya and also the six occupiers of the
Kunta and two or three other persons. P.W. 12, Y. Mallikarjuna Rao also arrived
there. A message was sent through P.W. 13 to bring accused nos. 1 to 4 to the
Panchayat Board office but they were reported to be at the Kunta. Then all the
persons gathered at the Panchayat Board office numbering about 20 proceeded to
the Kunta at about 10 a.m. on September 10. Accused nos. 1 to 9 were found near
the huts whereas accused no. 10 with a gun was standing about 25 yards to the
southeast of the huts. Accused nos. 2 and 4 had spears whereas accused nos. 3
and 5 to 9 had sticks with them. P.Ws. 1, 4, deceased no. 1, P.W. II and others
are stated to have requested accused nos. 1 to 4 to remove the bund and save
the growing crop belonging to the poor men. The accused declined to do so.
Thereupon the six occupiers went towards the bund about 25 yards to the north
of the huts and started themselves removing a portion.
Accused nos. 1 to 9 thereupon rushed at them
to beat them.
At that stage P.W. 5, Jasti Ramarao, P.W. 7,
Garimella Subba Rao and some others who had come to mediate intervened but they
were beaten by the accused. The, prosecution witnesses in turn snatched the
sticks from some of the accused persons and retaliated causing injuries to some
of them.
431 At this point of time accused no. 10 who
was standing near the huts shouted that the party of the occupiers would not go
back unless shot at and asked his companions to come back. Accused nos. 1 to 9
started retreating towards the huts. Deceased no. 1 and P.W. I who was about 10
yards southeast of the huts at that time went towards accused no.
10 challenging him to shoot if he dared and
saying that they were prepared to be shot for a just cause. Accused no. 10 then
stepped forward and fired at deceased no. 1 from a distance of about 10 yards.
Crying out "Abba" deceased no.
1 fell down and died on the spot. A pellet
grazed the nose of P.W. I who was a couple of yards behind deceased no. 1 and
he too fell down. According to the prosecution version accused no. 2 hit P.W. I
at the back as a result of which P.W. I also fell down unconscious, Accused no.
10 is stated to have fired another shot towards the west as a result of which
P.W. 6 was injured. Accused no. 10 then re-loaded his gun and fired a shot
towards the west and this hit deceased no. 2 who also fell down dead. The
fourth shot was fired by accused no. 10 in the northwestern direction which hit
deceased no. 3 who was about 25 yards away from the huts and he too fell down
dead. P.Ws. 2, 3, 8, 9 and 10 also received pellet injuries in the course of
this firing.
This, broadly speaking, is the prosecution
case.
According to the defence version sought to be
supported by ,four defence witnesses the gun used during the occurrence was
brought by accused no. 1 who holds the necessary licence for this fire arm and
it was he who used it in exercise of the right of private defence after accused
nos.
2 to 4 had received injuries at the hand of
about 200 or 300 communist & who had come to the place of occurrence from
the house of P.W. 12. They were armed with sticks and spears and were also
carrying their flag. They were raising party slogans and shouting that
Gottipulla people should be killed. They tried forcibly to remove the bund and
on being obstructed by accused nos. 2 to 4 and their servants working at their
farm the occupiers and the communists gave a severe beating to the latter.
Accused no. 1 came to the spot with his gun and fired at the aggressors in
exercise of the right of private defence. Accused no.10, according to this
version, was not present at the spot. In his statement under S. 342, Cr.P.C.
this accused pleaded alibi by stating that he was at Sivapuram, Kadapa district
on the fateful day having gone there weeks before and that he knew nothing
about this occurrence; according to him he stayed in Sivapuram for about one
month and himself surrendered in the Magistrate's court on hearing that he was
named as an accused in this case. The trial court did not accept his plea of
alibi nor did the High Court accept it and we do not find any cogent ground for
disagreeing with this conclusion.
432 Now, the facts in the background of
which, the question of Tight of private defence is to be considered are that
the Kunta was the property of the Government and it was registered as a source
of irrigation in the year 1958 or 1959. The occupiers were thus cultivating the
Kunta in an unauthorised manner. Both sides had also secured injunction orders
from the civil court against their opponents and the orders secured by the
accused restrained the opposite party (plaintiffs in the suit) from cutting any
breaches in the bund. The accused no doubt seemed to have put up the present
bund after the occupiers had grown their crops but it is clear that for a couple
of years previously there was insufficient rain and there was also no
cultivation in the Kunta. The present bund was apparently raised on September
4, because it was on the morning of September 5, that the existence of the bund
is stated to have been noticed by the occupiers. Thereafter the occupiers
approached the police authorities for assistance in getting the bund removed
but unfortunately the matter was not dealt with by the authorities in an
effective manner as they ought to have.
Having failed in their attempt to have the
bund removed, the occupiers with their communist helpers seem to have gone to
the spot on the day of the occurrence to help them.
Up to this stage there does not seem to be
any controversy.
The only difference between the rival
versions relates to the question, whether or not the party of the occupiers was
armed and their number. The prosecution witnesses would have us believe that
they (the occupiers) along with some of their friends and supporters had gone
to the Kunta unarmed to peacefully persuade the accused persons to remove the
bund and that the accused persons beat them tip with sticks and spears. The
occupiers, acting merely in self-defence, snatched the sticks and spears from
some of the accused persons and gave them a beating whereupon accused no. 10
used his gun indiscriminately firing at the party of the occupiers. The
accused, on the other hand, claimed that the party of the occupiers, helped by
prominent communists which far outnumbered the accused persons were armed with
sticks and spears and they forcibly tried to remove the bund and when the
accused objected they were beaten up. Apprehending danger to their lives, the
gun was used on behalf of the party of the accused persons. It was thus in
exercise of the right of private defence that this gun was used. It may at this
stage be pointed out that the accused persons had also reported the matter to
the police but on the plea that the police was siding with the occupiers and
favouring them the accused persons filed a complaint in the court of a
Magistrate against 35 persons and both the cases were tried simultaneously.
As each side is blaming the other of being
the aggressor and the witnesses for the prosecution deposing to the occurrence
as eye witnesses are clearly interested in the occupiers the nature and 433
extent of the injuries suffered by the men of the two factions would serve as
more reliable material for arriving at the truth. It is in this connection
noteworthy that even according to the prosecution witnesses the party of the
occupiers consisted of not less than 20, persons. We may now turn to the wound
certificates of the accused persons.
Gottipulla Venkata Siva Subbarayanam, aged 60
years, accused no. 1, had 10 injuries on his person mainly on the head, base of
the neck and the shoulders and dying declaration was considered necessary by
the Civil Assistant Surgeon. Gottipulla Bapaiah, aged about 50 years, accused
no. 2 had the following injuries on his person:
1. A contusion 12" in length x 1/2"
with raised edges placed diagonally across the upper 1 /3 of left half of the
back, the lower and towards the spine and the upper end towards the shoulder.
Brownish red in colour;
2. A contusion brownish red in colour 1"
in diameter situated on the right shoulder;
3. Whole of the right shoulder joint swollen
and brownish red in colour. Movements at right shoulder joint restricted;
4. A contusion bluish in colour 3" in
diameter on the outer aspect of upper 2-1/2 of the right arm;
5. A contusion 6"X1/2" with raised
edges situated diagonally across the right side back, the outer end towards the
axilla and the upper end towards the neck. Brownish in colour;
6. Whole of the right hand swollen and tender
brownish red in colour;
7. A lacerated injury 2" x 1/2"
scalp deep situated on the left parietal, eminence 4" above Pinna of left
ear. Clotted blood seen in the wound and is placed transversely;
8. An incised wound transversly placed on the
right half of centre of occiput at the back of head 1-1/2" x 1/4"
scalp deep. Clotted blood found in the wound.
X-ray report disclosed M.C. dislocation of
right acromio clavicular joint.
Gottipulla Seshayya, aged 50 years, accused
no. 3, had two injuries on his person one of which was incised wound scalp deep
situated diagonally on the front half of right parietal bone. Dying declaration
was not considered necessary and he was discharged from the hospital on the
16th September, 1961 after six days.
434 Gottipulla Subba Rao, aged 48 years,
accused no. 4 had a brownish red contusion with raised edges and small abrasion
over it situated transversely on the right forearm, 1/3 of which was swollen
and tender. There was a fracture of the bone below. -He also remained in the
hospital from September 10, to September 16.
Korlagunta Narayana Rao, aged 35 years,
accused no. 5 had four injuries on his person including a lacerated injury
2" x 1/2 " scalp deep on the front of the right parietal bone,
1/2" to the right of mid line of skull and another similar injury 1"
x 1/2" scalp deep on a contusion 3" in diameter, brownish red in
colour at the back of junction of both parietal bones in between parietal
eminences.
Shaik Madarsaheb, aged 25 years, accused no.
6, had five injuries on his person including a contusion. He too remained in
the hospital for six days upto September 16, 1961.
Thota Seetharamayya, aged 40 years, accused
no. 7 had a simple injury on his right hand ring ginger.
Accused no. 8, Thota Subba Rao, aged 22 years
had only a contusion on right buttocks.
These injuries quite clearly suggest that the
party of occupiers did not consist of a -few unarmed persons who had no design
to forcibly remove the bund. It is the prosecution case that the accused were
determined not to allow the bund to be removed without an order -from the
Government authorities and that they were prepared to use force to protect the
bund. The accused were also armed with the gun belonging to -accused no. I and
this was fully known to the occupiers. In this background it is not possible to
accept the story that the prosecution witnesses had -one to the Kunta unarmed
and it was only when they were beaten by the accused persons that -they in
self-defence snatched the sticks and spears from some of the accused persons
and beat up the others With 'those sticks -and spears. Some of the injuries
found on the persons of -the prosecution witnesses were of course caused by
blunt weapons but most of the injuries were, according to the medical evidence
caused by gun shots.
According to -the trial court both parties
asserted their respective claims, the occupiers to the use of the land in the
Kunta for cultivation and the accused to the use of the Kunta as a source of
supply of rain water for irrigating their land and these conflicting rights
could not co-exist.
-When the prosecution witnesses attempted
forcibly to remove the bund the trouble flared up. The two factions had a1so,
affiliations with two different political parties 435 the occupiers had -full
support of the Communist Party and accused no. 10 was a member of the Mandal Congress.
The court also did not believe the prosecution version that prosecution
witnesses had gone to the Kunta to peacefully persuade the accused persons to
remove the bund. It held the occupation of the Kunta by the occupiers to be
unauthorised after its registration as an irrigation tanks.
It further held that the bund as it existed
on September 5, 1961had been raised by the accused persons but there were
sluices and vents in the southern bund. The court also found that water from
Errache-uvu used to flow into the bund of the Kunta from where it passed on to
the fields of the accused nos. 1 to 4 with the result that the accused persons
were justified in raising the bund and if there was any contravention of the
civil court's injunction the occupiers should have approached that court for
-appropriate relief. It was on this line of reasoning that the action of the
accused in protecting the bund was upheld. On a consideration of the
prosecution evidence the trial court observed that notwithstanding the denial
of his presence at the spot by accused no. 10 it was open to him to say that on
the prosecution evidence itself he must be held to have acted in exercise of
the right of private defence and so observing that court expressed its
conclusion thus :
"The facts and circumstances elicited in
the prosecution evidence referred to above clearly establish that the accused 1
to 9 were maintaining a right at that time, that the bund was being removed by
men on the other side and the men on the other side also inflicted simple and
grievous injuries on the accused 1 to 9. In such a situation it was open either
to any of the accused 1 to 9 or even to the 10th accused to do something to
avert further beating. The beating to the extent to which it took place
resulted in grievous injuries to some of the accused. Under these circumstances
it has to be held that the facts disclose a situation in which the 10th accused
can well claim to have acted in the exercise of the right of private defence.
Charges 4 to 6, 10 to 13, 15 to 17 against the 10th accused, therefore, fail.
Consequently, the charges 7, 8 and 9 against
the remaining accused also fail." In regard to the other charges, after
discussing the evidence, in the case and other material on the record and
criticising the failure on the part of the police authorities to take effective
and timely measures in advance to prevent the occurrence in question the trial
court came to the conclusion that in regard to the actual beating suffered by
the members of both parties the evidence was so conflicting and their
respective versions so distorted that 436 no definite finding could safely be
arrived at. All that emerged from the material in the court's view was that the
accused wanted to retain the bund which the prosecution party wanted to remove
and the fight ensued. On this view the accused were acquitted.
On appeal Basi Reddy J., who disposed it of
in the High Court under S. 429, Cr.P.C. felt that the case put forward by the
prosecution was substantially true and the case set up by the defence palpably
false. According to the learned Judge neither the accused had a right to put up
the bund nor had the occupiers a right to encroach on the bed of the Kunta. The
injunction order in favour of the accused was only based on the existence of a
bund at the time of the order and thus did not entitle the accused to raise a
new bund whereas the injunction order in favour of the occupiers restrained the
accused persons from interfering with the enjoyment of the Kunta by the
occupiers. The accused who had raised the bund and who being fully armed were
determined to guard and preserve it by use of force were held by the learned
Judge to constitute an unlawful assembly. Accused nos. 2, 4 and 10 were held to
be armed with deadly weapons and therefore guilty of s. 148, I.P.C.
and the other accused were held guilty under
s. 147, I.P.C.
The right of private defence was also
negatived by the learned Judge. It was observed that this right had not been
pleaded by accused no. 10 and on the prosecution evidence the accused had first
attacked the mediators on their intervention to prevent the occupiers being
beaten up and it was thereafter that P.Ws. 5 and 7 and others beat the accused
persons in retaliation. The High Court did not consider it material whether the
prosecution witnesses and others had brought with them sticks or had snatched
the same from the accused persons and sustenance of injuries by accused nos. 1
to 8 in this connection was held not to give rise to any right of private
defence. Holding the use of the gun by accused no. 10 to be his individual act
independent of the object of the assembly he alone was held guilty of the
offence of murder.
In our opinion the High Court has
misconceived the law in regard to the right of private defence and the appeal
has, therefore, to be allowed. The right of private defence of person and
property is recognised in all free, civilised, democratic societies within
certain reasonable limits.
Those limits are dictated by two
considerations : (1) that the same right is claimed by all other members of the
society and (2) that it is the State which generally undertakes the
responsibility for the maintenance of law and order. The citizens, as a general
rule, are neither expected to run away for safety when faced with grave and
imminent danger to their person or property as a result of unlawful aggression,
nor are they expected, by use of force, to right the wrongs done to 437 them or
to punish the wrongdoer for commission of offences.
The right of private defence serves a social
purpose and as observed by this Court more than once there is nothing more
degrading to the human spirit than to run away in face of peril; (Munshi Ram v.
Delhi Administration(1) and Kishna v.
State of Rajasthan(2). But this right is
basically preventive and not punitive. It is in this background that the
provisions of ss. 96 to 106, I.P.C. which deal with the right of private
defence have to be construed. According to S. 96 nothing is an offence which is
done in the exercise of the right of private defence and under s. 97 subject to
the restrictions contained in s. 99 every person has a right to, defend : (1)
his own body and the body of any other person against any offence affecting the
human body and (2) the property whether movable or immovable of himself or of
any other person against any act which is an offence failing under the
definition of theft, robbery, mischief or criminal trespass or which is an
attempt to commit these offences.
The right of private defence, according to
section 99, does not extend to an act which does, not reasonably cause the
apprehension of death or of a grievous hurt if done or attempted to be done by
a public servant acting in good faith etc., and there is also no right of
private defence in cases in which there is time to have recourse to the
protection of the public authorities. Nor does it extend to the inflicting of
more harm than is necessary to inflict for the purpose of defence. 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 s. 103 extends,
subject to s. 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, mis(1) Crl. A. No.. 124 of 1965 decided on 27.11.1967.
(2) Crl. A. No. 23 of 1960 decided on
30.10.1962.
L7Sup.CI(NP)/70-13 438 chief 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 S. 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.
In the case in hand it is undoubtedly-true
that the accused persons are found to have raised the bund after the rainfall
of September 4, 1961. But it is indisputable that the occupiers had ample
opportunity of approaching the public authorities concerned if they felt that
their right had been encroached upon. it is noteworthy that the accused persons
had accomplished the raising ,of the bund long before the occupiers noticed it.
A civil suit had already been instituted by them as far back as 1957 in respect
of their right to cultivate the Kunta. In that suit a permanent in.
junction had been sought against the
defendants and their agents etc., restraining them from interfering with the
plaintiffs possession and enjoyment of the disputed land.
Damages amounting to Rs. 300/were also
claimed in that suit for loss suffered by the plaintiffs as a result of
trespass alleged to have been committed by the defendants on the said land.
This suit was pending at the time of the occurrence in question and as observed
earlier in February, 1960 both sides had secured injunctions in this suit. The police
authorities had also been approached by the occupiers with a complaint against
the recent raising of the bund by the accused persons a couple of days prior to
the present occurrence. If the Sub-Inspector concerned was guilty of grave
dereliction of duty (as in our opinion he clearly was) the higher authorities
could easily have been approached by the occupiers and their supporters. Even
the civil court could have been moved with a complaint that the accused persons
were interfering with the occupiers' possession and enjoyment of the Kunta. But
instead of having recourse to these steps the occupiers and their supporters
decided to go to the spot in large numbers fully determined to remove the bund
by use of force. When this attempt was foiled by the accused persons with show
of force the party of the prosecution witnesses mercilessly beat up some of the
accused persons who were advanced in age. This conduct on the part of the
occupiers and their supporters was, in our opinion, sufficient, on the facts and
circumstances of this -case, to give rise to a reasonable apprehension in the
mind of accused no. 10 that the victims of this assault would have been killed
had he not exercised the right of private defence. -The use of the gun by
accused no. 10 against the members of the opposite faction would thus seem to
be justified. It may be 439 recalled that accused no. 1 aged about 60 years,
who is the father-in-law of accused no. 10 had received as many as 10 injuries
mostly on vital parts of the body and accused no. 2 about 50, years old had
also been subjected to severe beating. In a situation like this it is not
possible for an average person whose mental excitement can be better imagined
than described, to weigh the position in golden scales and it was, in our
opinion, well nigh impossible for the person placed in the position of accused
no. 10 to take a calm and objective view expected in the detached atmosphere of
a court, and calculate with arithmetical precision as to how much force would
effectively serve the purpose of selfdefence and when to stop. It appears that
the persons against whom the gun was used were the real aggressors from whom
accused no. 10, agitated in mind as he must be at that time, apprehended grave
danger to the lives of the other accused persons and ultimately to himself. We
are, therefore, satisfied that accused no. 10 was fully justified in using his
gun in exercise of the right of private defence against the party of the
prosecution witnesses who had come to the spot in support of the occupiers to
use force in removing the bund and who actually did use it and mercilessly beat
up the accused persons and that accused no. 10 did-not exceed this right.
The fact that the plea of self-defence was
not raised by accused no. 10 and that he had on the contrary pleaded alibi does
not in our view, preclude the Court from giving to him the benefit of the right
of private defence, if, on proper appraisal of the evidence and other relevant
material on the record, the Court concludes that the circumstances in which he
found himself at the relevant time gave him the right to use his gun in
exercise of this right. When there is evidence proving that a person accused of
killing or injuring another acted in the exercise of the right of private
defence the Court would not be justified. in ignoring that evidence and
convicting the accused merely because the latter has set up a defence of alibi
and set forth a plea different from the right of private defence.
The analogy of estoppel or of the technical
rules of civil pleadings is, in cases like the present, inappropriate and the
Courts are expected to administer the law of private defence in a practical way
with reasonable liberality so as to effectuate its underlying object, bearing
in mind that the essential basic character of this right is preventive and not
retributive. The approach of the High -Court in this matter seems to us to be
erroneous. We accordingly allow the appeal and acquit the appellants.
V.P.S. Appeal allowed.
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