In
The Supreme Court of India Criminal Appellate Jurisdiction Criminal Appeal No.
1525 Of 2007
Katta
Surendera Vs State of A.P
JUDGMENT
Dr.
ARIJIT PASAYAT, J
1
1.
Challenge in this appeal is to the judgment of a Division Bench of the Andhra
Pradesh High Court upholding the conviction of the appellant for offence
punishable under Section 302 of the Indian Penal Code, 1860 (in short the
IPC'). By judgment dated 20th July, 2006 the High Court dismissed the appeal so
far as the appellant is concerned.
While
upholding the conviction of the other appellants before it for offence
punishable under Section 324 IPC, custodial sentence was reduced to one year
from three years, fine amount was retained. Two persons, namely, M.
Subbarayappa and Y. Ramappa (hereinafter referred to as D-1 and D-2
respectively lost their lives on 9.3.2002. Allegation was that the appellant
and co-accused persons were responsible for their death.
2.
Background facts in a nutshell are as follows:
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The deceased and the material witnesses are the residents of
Chinnavenkataramanagari Pale and the accused are residents of
Kammavaripalle. Since the time of MPTC elections in 2001, there were
disputes between both the villagers. As there was no road facility to
approach Chinnavenkataramanagari village, the deceased and material witnesses
were trying to lay a road connecting to their village to Mulakalachervu. About
six months prior to the incident, they purchased a land from PW- 16 in the name
of PW5 and another to lay the road. Against the said purchase, the villagers of
Kammavaripalle filed a suit seeking an order of injunction restraining the
defendants from laying the road and the result of the suit went in favour of
villagers of Chinnavenkatramangaripalli village. On 8.3.2002, on
information that the villagers were attempting to lay the road, the
Sub-Inspector of Police (PW-31) called both the villagers and advised them to
wait for one week as the matter was pending. Inspite of it, on 9.3.2002 the
villagers started laying the road. PW-5 and another, in whose name the land was
purchased, requested PW-31 to arrange police protection, on
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which PW 31 sent PW 17 along with him immediately and also sent PW-18 and three
other constables to the scene of offence.
Subsequently,
PW-5 and PW 17 went and informed the villagers to stop the work, as there was
likelihood of some incident. While they were standing, all the accused armed
with sickles, knives, daggers and a bag containing bombs and sticks went near
them shouting as to how they dared to lay road and they will see
their end. So saying, the accused attacked the prosecution party. A-13 hurled a
bomb, which exploded and A-2 also hurled a bomb which fell on the ground, but
did not explode. They all tried to run away due to explosion of the bombs. A1
stabbed the deceased No. l with a dagger on his left chest due to which he fell
down and succumbed to the injury on the spot. Then A-2 to A-4 attacked deceased
No.2. Immediately, A-2, A-4 to A-11, A-13 to A-18, A-19 to A-24, A-30 and A-32
attacked PWs. 1 to 11.
On
a complaint given by PW-l, the police registered a crime and took up
investigation. After completion of the investigation, the police laid
the charge sheet.
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3.
The prosecution, in order to prove the guilt of the accused, examined PWs l to
33 and marked Exs. P.1 to P.35 and M.Os. 1 to 25. On defence side, DWs I and 2
were examined and Exs. D-1 to D-65. Contradictions in the statements of the
prosecution witnesses were marked. The trial Court, after considering the oral
and documentary evidence, convicted A-1 for the offence punishable under
Section 302 of IPC and sentenced him to undergo imprisonment
for life and to pay a fine of Rs. 2,000/- in default to suffer simple
imprisonment for three months. A7, A9, A 11 and A-17 were convicted for offence
punishable under Section 324 IPC and sentenced each to undergo imprisonment for
three years and to pay a fine of Rs.1,000/ each, in default to suffer simple
imprisonment for two months.
All
the accused were acquitted for all other offences. The appellant and the three
convicted accused persons being aggrieved by the judgment of the trial Court,
preferred appeal before the High Court challenging its validity and legality.
4.
The allegation of the prosecution was that A-1 stabbed deceased No. l with a
dagger and killed him. A-7, A-9, A-11
5 and A-17 were convicted for the offence under section 324 I.P.C. for causing
injuries to the witnesses.
5.
The accused pleaded that there was pelting of stones by the mob in connection
with the dispute regarding the laying of the road, therefore, it is very
difficult to say as to who beat whom and who threw stones on him and it is not
safe to find the appellants guilty of any of the offences and they shall be
given benefit of doubt and the judgment of the lower Court has to be set aside.
6.
The High Court found that the accusation was clearly established so far as the
appellant is concerned and did not accept the plea that because a single blow
was given the offence was not covered under Section 302 IPC and was to be
altered to Section 304 Part II IPC.
7.
In support of the appeal, learned counsel for the appellant submitted that the
background facts have not been correctly analysed by the trial court and the
High Court. It 6 should have been held that the appellant was exercising the
right of private defence.
8.
According to the appellant even if the prosecution version is accepted in toto
he was exercising the right of private defence and therefore no offence was
made out.
9.
Learned counsel for the respondent-State on the other hand submitted that the
case is clearly covered under Section 302 IPC. The accused-appellant was the
leader of the group and no explanation was offered why he was carrying a knife
with him unless he had requisite intention to cause homicidal death of the
deceased No. 1. Additionally it is submitted that there is no scope for
accepting the plea of right of private defence.
10.
A plea of right of private defence cannot be based on surmises and speculation.
While considering whether the right
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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. Section 97 IPC deals with the subject-matter of right of private
defence. The plea of right of private defence comprises the body or property
(i) of the person exercising the right, or (ii) of any other person; and 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. Section 99 lays down the limits of
the right of private defence. Sections 96 and 98 give a right of private
defence against certain offences and acts. The right given under Sections 96 to
98 and 100 to 106 is controlled by Section 99. 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 is on the
accused to
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show that he had a right of private defence which extended to causing of death.
Sections 100 and 101 IPC define the limit and extent of right of private
defence and continuance of the right of private defence of body and property
respectively. The right 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 that reasonable apprehension. The right lasts so long as
the reasonable apprehension of the danger to the body continues. In Jai Dev v.
State of Punjab (1963 (3) SCC 489) it was observed that as soon as the cause
for reasonable apprehension disappears and the threat has either been destroyed
or has been put to route, there can be no occasion to exercise the right of
private defence.
11.
The above position was highlighted in Raj Pal v. State of Haryana (2006(9) SCC
678).
12.
In the instant case, even if it is accepted that at some point of time the
appellant was exercising right of private
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defence, the same had ceased long before the blow was given by the appellant.
13.
It cannot be laid down as a rule of universal application that whenever a single
blow is given application of Section 302 IPC is ruled out. It would depend upon
several factors.
14.
In the circumstances of the present case, conviction is accordingly altered.
The appropriate conviction is under Section 304 Part I IPC. Custodial sentence
of ten years would meet the ends of justice.
15.
The appeal is allowed to the aforesaid extent.
...........................J.
(Dr. ARIJIT PASAYAT) 10
...........................J.
P.P. NAOLEKAR) New Delhi June 13, 2008
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