PETITIONER:
SONE LAL & ORS.
Vs.
RESPONDENT:
STATE OF U.P.
DATE OF JUDGMENT03/04/1981
BENCH:
ISLAM, BAHARUL (J)
BENCH:
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
ACT:
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.
HEADNOTE:
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]
JUDGMENT:
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 was
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 has held:
(1) That the prosecution has suppressed the genesis
and the origin of the occurrence and has thus not
presented the true version;
(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 aggressors”.
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 the aggressors.
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. Aggres-
357
sors, 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 were unarmed.
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
stand scrutiny.
7. This appeal has no merit and is dismissed.
N.V.K. Appeal dismissed
358