Sone Lal & Ors Vs. State of U.P
 INSC 82 (3 April 1981)
ISLAM, BAHARUL (J) ISLAM, BAHARUL (J)
FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)
CITATION: 1981 AIR 1379 1981 SCR (3) 352 1981
SCC (2) 531 1981 SCALE (1)604
Indian Penal Code 1860, Ss. 302, 307, 323
read with S. 149-Enmity between parties of the accused and deceased-
Altercation and assault-Accused receiving injuries-Accused whether
aggressors-Whether entitled to right of private defence.
The prosecution alleged that there was a long
standing enmity between the parties of the deceased and the appellants. There
was a vacant plot of land in front of the flour mill and residence of PW. 1.
The appellants started throwing rubbish on this piece of land. PW.1 and his
son, the deceased, objected to this. On the fateful day at about noon there was
an altercation in connection with the throwing of rubbish, and at about 8 p.m.
one of the appellants armed with a lathi went to the flour mill and challenged
PW. 1 and his companions. At the call of this appellant, the other appellants
who were armed with gun, pistol, lathi and spear arrived at the spot. PW. 1
managed to snatch the spear from the hands of one of the appellants and started
giving blows to the assailants in order to defend himself. At that time two of
the appellants fired their gun and pistol as a result of which the son of PW. 1
received injuries, to which he succumbed while being removed to the Police
Station. The defence of the appellants was one of alibi and that the offence
had not taken place on the land of PW. 1.
The appellants were tried before the Sessions
Judge who convicted and sentenced them under Sections 302-307 and 323 read with
Section 149 of the Penal Code.
The High Court dismissed the appeal. It
agreed with the trial Court and found that the prosecution case was established
by the evidence of the prosecution witnesses and that the defence version of
the case had to be rejected on account of the inconsistent pleas made by the
appellants before the committing court and the Sessions Court.
In the appeal in this Court, it was contended
that there was no finding by the trial and appellate courts as to how the
assault initially started and which party was the aggressor, that the
prosecution had not explained as to how the 353 appellants received the
injuries, and that the appellants had the right of private defence and,
therefore, they had committed no offence.
Dismissing the appeal,
HELD: 1. The High Court rightly accepted the
prosecution case as true and held that the defence case was false. [356 F]
2. The findings of the two courts below
indicate that it was the appellants who were the aggressors and that the
occurrence took place on the land lying in front of the house of PW. 1 who was
in possession thereof and that the deceased and PW. 1 had the right of private
defence of property and person and that they exercised that right. The
appellants who were the aggressors, even if they received injuries from the
victims of their aggression, cannot have any right of private defence. The
findings are that the deceased and PW. 1 were unarmed and that P.W. 1 snatched
the weapon from one of the assailants and caused injuries to them. If the
deceased and the other prosecution witnesses had been the aggressors, PW. 1
would not have come without his licensed gun.
[356 H-357A, 356E]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 220 of 1974.
Appeal by Special Leave from the Judgment and
Order dated 9th January, 1974 of the Allahabad High Court in Criminal Appeal
No. 356/77 connected with Criminal Appeal No. 723 of 1970.
R. K. Garg, S. S. Bhatnagar, V. J. Francis
and Sunil Kumar Jain for the Appellants.
R. K. Bhat for the Respondent.
The Judgment of the Court was delivered by
BAHARUL ISLAM, J. This appeal by special leave has been directed against the
judgment and order passed by the Allahabad High Court dismissing two appeals
filed by the appellants before it. The appellants were convicted under Sections
302, 307 and 323 all read with Section 149 of the Penal Code. They were
sentenced to imprisonment for life, each, under Section 302/149, rigorous
imprisonment for 7 years, each, under Section 307/149 and rigorous imprisonment
for six months, each, under Section 323/149 of the Penal Code. Appellants
Harish Chandra and Nathu were further convicted under Section 148 of the Penal
Code and sentenced to rigorous imprisonment for two years, each. The sentences
were directed to run concurrently.
2. The facts material for the purpose of
disposal of this appeal may be stated thus. The prosecution alleges that there were
354 long standing enmity between the parties of the deceased and the
appellants. Some time prior to the incident a flour mill was installed and a
house constructed by P.W. 1, Pahelwan, in his plot of land. In front of the
flour mill and the residence of Pahelwan there was some vacant land in his
possession. The appellants had started throwing rubbish on the land. Pahelwan
and his son, Ram Swarup (deceased) objected to this. The appellants were
annoyed at the objection of Pahelwan and his son Ram Swarup. On 31st December,
1968 at about noon appellants Harish Chandra and Ram Sewak had some alteration
with Pahelwan and Ram Swarup in connection with throwing of rubbish on the
aforesaid land and as a consequence the relation between the parties worsened.
In the evening at about 8 O'clock on the 1st of January, 1969, appellant, Ram
Sewak, armed with a lathi went to the front of the flour mill of Pahelwan and
started to hurl abuses on Pahelwan and his son Ram Swarup. Appellant, Ram
Sewak, challenged Pahelwan and his companions to see them that day. At that
time, it has been alleged, an electric light was burning in the front of the
room of the flour mill as usual. At the call of the appellant, Ram Sewak, the
other appellants came variously armed with lathis and spears and started giving
blows to Pahelwan and his son, Ram Swarup, both of whom, according to the
prosecution, were unarmed. Pahelwan, somehow, managed to snatch the spear from
the hand of the appellant, Ishwari, and started giving blows to the assailants
in order to defend himself. At that time, it has been further stated,
appellants Harish Chandra and Nathu fired their gun and pistol respectively. As
a result, Ram Swarup was hit and he fell down in front of the flour mill. The
shot of Nathu hit P.W. 1 Pahelwan, Lal Ram and Shri Kishan, all of whom
received injuries. Lekh Raj, P.W., then attacked the appellants with his lathi,
as a result of which some injuries were caused to the appellants including
Harish Chandra. Thereafter the appellants escaped.
3. Ram Swarup succumbed to bullet injuries
while he was being removed to the police station. A first information report
was lodged by P.W. 1, and eventually the appellants were committed to the court
of Sessions that convicted and sentenced as stated above. Their appeal was also
dismissed by the High Court as earlier stated.
4. Learned counsel for the appellants
submitted that large number of injuries had also been received by the
appellants and that there was no finding by the courts below as to how the
assault 355 initially started and which party was the aggressor, prosecution
has not explained as to how the appellants received the injuries. As such, he
submitted, the conviction for the offences with the aid of Section 149, Penal
Code, was bad in law. In support of his contention he relied on a decision of
this Court reported in AIR 1976 S. C. 2263. This Court in A.I.R. 1976 S.C. 2263
(1) That the prosecution has suppressed the
genesis and the origin of the occurrence and has thus not presented the true
(2) that the witnesses who have denied the
presence of the injuries on the person of the accused are lying on most
material point and therefore their evidence is unreliable;
(3) that in case there is a defence version
which explains the injuries on the person of the accused it is rendered
probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution
to explain the injuries on the person of the accused assumes much greater
importance where the evidence consists of interested or inimical witnesses or
where the defence gives a version which competes in probability with that of
the prosecution one." The submission of the learned counsel is that the
injuries found in the persons of the appellants have not been explained by the
prosecution. The injuries are serious.
The appellants had the right of private
defence, and therefore, they have committed no offence.
The submission of the learned counsel is not
warranted by the findings of the High Court. The High Court agreeing with the
trial Court has found that the prosecution case as alleged has been established
by the evidence of the prosecution witnesses. The High Court as well as the
trial Court has rejected the defence version of the case, in view of their
inconsistent pleas before the Committing Court and the trial Court. Before the
Committing Magistrate pleas of appellants, Harish Chandra and Soney Lal, were
alibi. The defence of appellants, Ram Sewak and Nathu, was that the occurr- 356
ence had not taken place on the land of P.W. 1, Pahelwan, as alleged by the
prosecution, but it had taken place at a different place. According to them
there was a quarrel in respect of some property between Ram Swarup, (deceased)
and Zorawar, brother-in-law of Ram Swarup, in which appellant Nathu intervened
whereupon Pahelwan (P.W. 1), Lala Ram, Shri Kishan, Triloki, Ram Swarup Prasad,
Munna Jamadar, Lekthraj and others attacked the appellants and in that incident
injuries were received by P.W. 1 and the deceased. The defence of appellant,
Ishwari, before the Committing Magistrate was that Pahelwan (P.W.1), Lekh Raj
and others attacked him, as a result of which he became unconscious.
The defence of the appellants before the
Sessions Judge was one of the right of private defence. The defence of
appellant Harish Chander before the Sessions Judge was an alibi. The defence of
the other appellants was that Ishwari had been returning from Ghurwal Chak. At
that time he was attacked by the prosecution witnesses and the deceased. The
incident took place on a land between residence and flour mill of P.W.1 and in
that assault the appellants had to defend themselves.
5. On a consideration of the evidence on
record the learned High Court agreeing with the Sessions Judge has accepted the
version of the prosecution and rejected that of the defence. In coming to that
conclusion the High Court has also taken notice of the fact that P.W.1. had a
licensed gun. Had he and Ram Swarup and other P.W's been the aggressors, he
(P.W.1) would not have come without the gun.
In view of the "inconsistent pleas"
and "in view of the fact that no infirmity worth the name has been shown
in the statement of eye witnesses of the occurrence", the High Court
accepted the prosecution case as true and held "that the defence case is
false". The High Court has also held that "appellants were the
It is therefore, not correct to suggest as
contended by the learned counsel for the appellants that there were no findings
on record to show as to how the quarrel started and that the appellants were
6. From the findings of learned courts below
the facts that emerge are (1) that it was the appellants who were the
aggressors; (2) that the occurrence took place on the land in front of the
house of P.W. 1, Pahelwan, who was in possession thereof; (3) that P.W.1 and
the deceased had the right of the private defence of property and person and
they did exercise that right. Aggressors, even if they receive injuries from
the victims of their aggression cannot have the right of private defence.
The findings are that P.W.1 and the deceased
P.W.1 snatched a weapon from one of the assailants
and caused injuries on them. On the top of it two of the appellants brought
fire arms and fired at the deceased and the P. W. 1, as a result of which the
deceased expired. The submissions of learned counsel for the appellants do not
7. This appeal has no merit and is dismissed.