REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1525 OF 2007
Katta Surendera .........Appellant
Versus
State of A.P. ........Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J
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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
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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
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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)
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………………………J.
(P.P. NAOLEKAR)
New Delhi
June 13, 2008
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