REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL  APPELLATE JURISDICTION

CRIMINAL APPEAL NO.785 OF 2004

Abid      …..Appellant

Vs.

State of U.P.            ….Respondent

CRIMINAL APPEAL NO. 786 OF 2004

Aggi & Ors.     …..Appellants

Vs.

State of U.P.   ….Respondent

J U D G E M E N T   

R.M. LODHA, J.

These two appeals  by special  leave arise  out  of  

one  and  the  same  judgment  rendered  by  the  High  Court  of  

Judicature at Allahabad whereby the criminal appeal  preferred by  

the present appellants came to be dismissed.

2.  Seven persons were sent up for trial to the 1st  Additional  

Sessions Judge, Bahraich under Sections 147  and 302 read with  

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149 IPC.    The trial court convicted all of them  under Section 302  

read with 149 IPC and sentenced them to life imprisonment.   The  

trial  court  also  convicted  the  accused  for  the  offence  punishable  

under Section 147 IPC and sentenced them to suffer nine months  

rigorous imprisonment.   

3. The prosecution version is as follows:

Gheesey, Chhotey and Tojey are brothers.  They resided  

in  village  Bahbolia,  Police  Station  Sonwa,  district  Bahraich.   The  

three brothers acquired about  15 bighas of agricultural land from  

one Smt. Prana.  They have divided  the aforesaid land in share of 5  

bigha each and came into  possession  of   their  respective  share.  

Sattar Khan (since deceased and  hereinafter referred to as ‘D-1’)  

and Sabir Khan (since deceased and hereinafter referred to as ‘D-2’)  

claimed  to  have  purchased  from  Gheesey  his  share  in  the  

agricultural land in the month of January, 1980 alongwith the crops  

sown thereon.   On March 21, 1980,  at about 8.00 A.M.,   D-1 and  

D-2 visited the said agricultural land and found that Aggi (A-1), Jaijai  

(A-2), Lakhan Pasi (A-3), Abid(A-4), Maqsood(A-5), Khalil (A-6) and  

Ghulam (A-7) were harvesting the Arhar crop from that land.   D-1  

and  D-2  asked  them  as  to  why  they  were  harvesting  the  crop.  

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A-1 and A-2 replied that they had purchased the agricultural  land  

from Gheesey and being owners of that land, they were entitled to  

harvest the crop. Then A-1and A-5 armed with ‘ballam’,  A-3 and A-7  

armed with ‘gadasa’ and A-2, A-4 and A-6 armed with ‘lathi’ started  

attacking D-1 and D-2 with respective weapons.  D-1 and D-2 raised  

alarm. Peer Mohammad Khan (PW-1) and Maqsood Khan (PW-2)  

who were few paces away from the scene rushed  to the spot and  

found  that   as  a  result  of  attack  by  A-1  to  A-7,   D-1  and  D-2  

sustained fatal injuries and died on the spot.  The accused, having  

seen PW-1 and PW-2 , fled away.

4. PW-1 immediately,  went  to  Police  Station,  Sonwa and  

lodged the first information report at 11.30 A.M..  Sub-Inspector Sukh  

Sagar  Singh  took  up  the  investigation.  He  prepared  the  inquest  

report and sent the bodies of D-1 and D-2 for post mortem.   Dr. P.C.  

Misra (PW-3)  conducted post mortem on the body of D-2 on March  

22, 1980.  The post mortem of dead body of D-1 was conducted by  

Dr. M. Shamim (PW-5)  at about 4.30 P.M. on March 22, 1980.

5.  It  appears  that  investigation  into  the  crime  changed  

hands number  of  times.   After  initial   investigation done by Sukh  

Sagar  Singh,   the  investigation  then was  handled by Mohammad  

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Yunus Khan.    Thereafter, the investigation was taken up by Rana  

Pratap  Singh.     After  Rana Pratap  Singh,  the  investigation  was  

conducted by Sheonath Ram and on his transfer, investigation was  

further carried by Sarju  Ram (PW-6).  Initially a police report under  

Section 173  Cr.P.C. was filed but on reinvestigation, a chargesheet  

against  all the seven accused persons under sections 147 and 302  

read with 149 IPC was filed.

6.  The  matter  having  been  committed  to  the  Court  of  

Sessions,  the accused were charged under Sections 147 and 302  

read with 149 IPC.

7. The  prosecution  in  support  of  its  case  examined  six  

witnesses, namely,Peer Mohammad (PW-1), Maqsood Khan (PW-2),  

Dr. P.C. Misra (PW-3), Syed Hasan Jafar (PW-4), Dr. M. Shamim  

(PW-5) and S.O. Sarju Ram (PW-6).  Of  the six witnesses tendered,  

PW-1 and PW-2 were examined as eye witnesses.

8. A-1  and  A-2  set  up  the  defence  that  while  they were  

harvesting the crop in their agricultural field, D-1 and D-2 came there  

with few others and attempted to take away the harvested crop.  On  

alarm being raised by them, the villagers came and  assaulted D-1  

and D-2.  As a result of which D-1 and D-2 died.   A-1 also set up the  

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plea that  Gheesey  had sold his agricultural land by registered sale  

deed in his favour and other family members and that they are in  

possession of the subject land as purchasers.

9. A-3, A-4, A-5, A-6 and A-7 denied to have participated  in  

the assault   at  all.  They set  up the defence that  they have been  

falsely implicated at the instance of one Mulayee with whom they  

were on inimical terms.  

10. The trial court accepted the evidence of PW-1 and PW-2  

and held that the prosecution has been able to establish  beyond all  

reasonable  doubt  the  involvement  of  the  accused  persons  in  the  

murder of D-1 and D-2. The trial court was not persuaded by the plea  

of private defence.      

11. During the pendency of  appeal  before the High Court,  

A-6  and  A-7  died  and,  accordingly,  appeal  on  their  behalf  stood  

abated. As regards the  remaining appellants, A-1 to A-5, High Court  

did not find any justifiable ground to upset the judgment of the trial  

court.

12. The  post  mortem  of  D-1  was  conducted  by  Dr.  M.  

Shamim (PW-5)  and he found the following  ante mortem injuries:

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“1. Lacerated wound 7cm x 1.5cm x bone deep on  the left side of scalp (skull) parietal to occipital  region.

2. Lacerated  wound 5cm x 1.5cm x  bone deep  1cm below injury no. 1 on the left side parietal  to occipital region.  

3. Lacerated wound 6cm x 2cm x bone deep on  left  parietal  region  6cm  above  left  ear  underneath bones (temporal  of  left  side)  was  fractured.

4. Abrasion  4cm  x  1.5cm  on  the  left  temporal  region 4cm above left ear.

5. Abraded  contusion  6cm  x  2cm  on  the  right  temporal region 5cm above right ear.

6. Multiple contusions in all areas of 14cm x 10cm  on the upper right side back 4cm below right  shoulder.

7. Abrasion 3cm x 2cm on the back of right elbow  joint.

8. Multiple contusions in all areas  of 10cm x 6cm on  the lower middle back.

9. Abrasion 3cm x 2cm on right knee outer part  front.

The fracture of occipital parietal and temporal  bones on left side of head.”

According to PW-5,  the injuries Nos. 1,2 and 3 in the  

ordinary course of nature were sufficient to cause death of D-1.

13. Dr.  P.C.  Misra  (PW-3)  conducted  the  autopsy   of  the  

body of D-2 and found the following ante mortem injuries:

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“ (1) Incised wound 9cm x 2cm x bone deep over  left side of head 7cm above from left ear.

(2) Lacerated  wound 6.5cm x 1.5cm x bone deep  over right side of head 8cm above from right  ear.

(3) Contusion  3cm x  2cm over  nose  underneath  bone fractured.

(4) Abraded  contusion  2.5cm  x  1.5cm  over  left  temple  starting  from  lateral  end  of  left  eye- brow.

(5) Abraded contusion 8cm x 5cm over left cheek.

(6) Incised wound 2cm x 0.5cm muscle deep over  left side of cheek starting from angle of mouth.

(7) Abraded contusion (multiple) in area of 20cm x  8cm over left side of neck and adjoining area of  front  of left shoulder and chest.

(8) Multiple contusion in area of 40cm x 14cm over  left  side of back.

(9) Multiple   contusion  in  area  of  24cm x  10cm  over right scapular region of back.

(10) Multiple contusion (16cm x 10cm in area) over  right side of back 7cm below from scapula.

(11) Abraded contusion 6cm x 1.5cm over back of  left arm 7cm above from elbow joint.

(12) Contusion 18cm x  8cm over inner and front of  left arm starting from elbow joint.

(13) Multiple abrasion in  area of 10cm x 8cm over  back and  middle of left forearm.

(14) Abraded contusion 2cm x 1cm over dorsum of  proximal phalanx of middle finger of left hand  with underneath bone fracture.

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(15) Abraded contusion  5cm x 7.5cm over back of  right arm 6cm above from elbow joint.

(16) Abrasion  1.5cm  x  0.5cm  over  back  of  right  elbow joint.

(17) Penetrating  wound  2.5cm  x  1cm  bone  deep  over under  aspect of right forearm 8cm above  from wrists.

(18) Abrasion 2cm x 5cm over back of right forearm  5cm above from wrist.

(19) Multiple abrasions in area of 10cm x 8cm over  dorsum  of  right  hand  with  fracture  proximal  phalanx of little finger of right hand.

(20) Multiple abraded contusion 28cm over front of  right thigh 4cm above from knee joint.

(21) Abrasion 6cm x 2cm over front of right knee.

(22) Incised  wound  8cm  x  0.75cm  muscle  deep  over  inner  aspect  of  right  leg  12cm  below  from knee.

(23) Two penetrating  wound  1.5cm situated  apart  over  middle  aspect  of  right  leg  10cm  above  from medial malleolus each measuring 1cm x  0.5cm bone deep.

(24) Contusion 9cm x 2cm over inner and front of  right  leg  just  below  from  injury  no.  23  with  fracture of tibia and fibula.

(25) Penetrating wound 2cm x 0.75cm bones deep  over medial aspect of right leg 3cm above from  medial malleolus.

(26) Incised wound 3cm x 0.5cm muscle deep over  back of right leg  4cm above from ankle.  

(27) Multiple contusion in area of 28cm x 9cm over  outer aspect of left thigh (upper part).

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(28) Multiple contusion in area of 26cm x 8cm over  outer  aspect  of  lower  third  of  left  thigh  and  adjoining area of upper part of leg.

(29) Incised wound 7cm x 2cm muscle deep over  front of middle left leg.”

14. In his deposition, PW-3 stated  that he found that  both  

the sides of skull were fractured,  brain was congested, 6th, 7th and 8th  

rib of left side were fractured and the lung was punctured.  He also  

opined that  penetrating  injuries were caused by  piercing instrument  

like  spear; incised wounds were caused by weapon like  gadasa  

and lacerated wounds and contusion were caused by blunt weapon  

like  lathi.    In  the  opinion  of  PW-3,  cause  of  death  of  D-2  was  

aforesaid injuries.

15. The  post  mortem  reports  as  well  as  the  evidence  of  

PW-3 and PW-5  leave no manner of doubt that the death of D-1 and  

D-2 was homicidal.  

16.  PW-1 is the son of D-1 and PW-2 is his nephew.  PW-1  

and PW-2 are, thus, closely related to D-1 and D-2.   Being evidence  

of  close  relative,  their  evidence  needs  a  deeper  scrutiny  and  

thorough scan to rule out false implication.

17. PW-1  deposed  that  on  the  date  of  incident,  in  the  

morning,  he  had gone  to  see  his  other  land.   When he reached  

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Narsing Diha, he heard the noise of his father(D-1) and D-2 that the  

accused persons were beating them.    He heard the noise from a  

distance of about 60-70 paces.   He rushed towards the place from  

where the noise was coming and he saw from the distance of about  

15-20 paces that the accused persons were attacking  his father and  

D-2.   He deposed that A-1 and A-5 were armed with ‘Ballam’,  A-3  

and A-7 armed with ‘Gadasa’ and A-2, A-4 and A-6 were armed with  

‘lathi’.   When the accused persons saw him and PW-2,  they fled  

away.  He went near his father and found him dead.  D-2 was also  

dead.  He has been cross-examined at quite some length and except  

few minor contradictions, there is nothing that is sufficient to discredit  

his testimony. Merely,  because he made no effort to save D-1 and  

D-2  from  attack,  it  cannot  be  said  that  he  was  not  present.  His  

presence few paces away from the place of incident  does not seem  

to be unnatural at all.       

18. Insofar as PW-2 is concerned, he deposed that  on the  

date of incident  at about 8.00 A.M. he was weeding out grass on the  

boundary  between his  land and the  land of  Chhadan Chowkidar.  

He saw that A-1 to A-7 were  harvesting arhar crop from the subject  

land.  When they had  harvested about half  the crop from the west  

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side, then D-1 and D-2 came and asked the accused persons as to  

why they were harvesting the crop. The accused  told them that they  

have purchased the land from Gheesey and they started attacking  

D-1 and D-2 by Ballam, Gadasa and lathis.  PW-2 also  deposed that  

A-1 and A-5  were armed with ballam, A-3 and A-7 were armed with  

gadasa and , A-2, A-4 and A-6 were having lathis in their hands. On  

the alarm being raised by D-1 and D-2, he and PW-1 ran towards the  

place of occurrence.  The accused saw them and  fled away. D-1  

and D-2 died on the spot.   PW-2 has not at all been  shaken in the  

cross-examination.  It is true that PW-1 and PW-2  are related to D-1  

and D-2, witnesses but why should they let real culprits go scot free?  

It does not sound  to reason that they would have spared the actual  

assailants and falsely implicated the accused appellants.   

19. When  as  many  as  seven  persons  armed  with  deadly  

weapons attacked D-1 and D-2, it would not have been possible  for  

PW-1  or PW-2 to attribute specific injuries to each   accused.    In  

the case of  Anna Reddy Sambasiva Reddy and Ors. v.  State of   

Andhra Pradesh1, while dealing with the evidence of  eye witnesses  

who failed to assign  specific injuries or specific overt acts attributed  

to the accused individually , this Court observed: 1 JT2009(5)SC617

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“How could it be  possible  for any person to recount  with  meticulous  exactitude  the  various  individual acts done by  each  assailant ?   Had they stated so, their testimony would  have been criticized  as  highly improbable  and unnatural.  The testimony of eye-witnesses  carries  with it the  criticism  of being  tutored   if they give graphic details  of the incident  and their evidence  would be assailed  as  unspecific, vague  and general  if they fail to speak with precision.  The golden  principle is not to weigh such testimony in golden scales but  to view it from  the cogent standards  that lend assurance  about its trustfulness.”

20. Having  considered  the  evidence  of  PW-1  and  PW-2  

carefully, we are of the view that the trial court and the High Court did  

not commit any error in accepting the evidence of PW-1 and PW-2.

21. The  learned  counsel  for  the  appellants  submitted  that  

High  Court  as  well  as  trial  court   failed  to  consider,  in  right  

perspective,  the  right  of  private  defence  set  up  by  the  accused  

persons.   The learned counsel  submitted  that prior to the alleged  

purchase of the agricultural land by D-1 and D-2 from Gheesey, the  

accused  persons  had  purchased  that  land  from  Gheesey  by  

registered sale deed and mutation was also effected in favour of the  

accused party.  The learned counsel  would submit  that  in  the  civil  

litigation  in  respect  of   the  disputed  land  between the  parties,  an  

injunction order in favour of the accused persons was operative and  

in the proceedings under Section 145 Cr.P.C.  also,  the possession  

of A-1 and A-2  has been  prima facie  found.  The learned counsel  

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would, thus, submit that the accused  persons had a right  to harvest  

the crop and when the deceased tried to take away the harvested  

crop,  the incident occurred in exercise of right of private defence of  

property and accused persons could not have been convicted under  

Section 302 read with Section 149 IPC.   

22. In Rajinder and Others vs. State of Haryana2,   this Court  

while dealing with the  right of private defence as provided in Sections  

96 to 106 IPC held thus:

“19. Having drawn the above inferences we have  now to ascertain  whether  the unauthorised entry  of  the  complainant  party  in  the  disputed  land,  which  according to the trial court was in settled possession  of  the  accused  party  legally  entitled  the  latter  to  exercise their  right  of  private defence and,  if  so,  to  what extent. The fascicle of Sections 96 to 106 IPC  codify the entire law relating to right of private defence  of person and property including the extent of and the  limitation  to  exercise  of  such  right.  Section  96  provides that nothing is an offence which is done in  the  exercise  of  the  right  of  private  defence  and  Section 97 which defines the area of such exercise  reads as under :

“97. Every person has a right, subject to the  restrictions contained in Section 99, to defend —

First.— His own body, and the body of any other  person, against any offence affecting the human  body;

Secondly.— The  property,  whether  moveable  or  immovable, of himself or of any other person, against   any act which is an offence falling under the definition  of  theft,  robbery,  mischief  or  criminal  trespass,  or  

2 (1995) 5 SCC 187

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which is an attempt to commit theft, robbery, mischief  or criminal trespass.” (emphasis supplied) 20.  On  a  plain  reading  of  the  above  section  it  is  patently clear that the right of private defence, be it to  defend  person  or  property,  is  available  against  an  offence.  To  put  it  conversely,  there  is  no  right  of  private  defence  against  any  act  which  is  not  an  offence. In the facts of the instant case the accused  party  was  entitled,  in  view  of  Section  97  and,  of  course,  subject  to  the  limitation  of  Section  99,  to  exercise their right of private defence of property only  if  the unauthorised entry of the complainant party in  the disputed land amounted to “criminal trespass”, as  defined  under  Section  441  IPC.  The  said  section  reads as follows:

“Whoever  enters  into  or  upon  property  in  the  possession  of  another  with  intent  to  commit  an  offence or to intimidate, insult or annoy any person in  possession of such property.

or  having  lawfully  entered  into  or  upon  such  property, unlawfully remains there with intent thereby  to intimidate, insult or annoy any such person, or with  intent to commit an offence,

is said to commit ‘criminal trespass’.” 21.  It  is  evident  from  the  above  provision  that  unauthorised  entry  into  or  upon  property  in  the  possession of  another or unlawfully remaining there  after lawful entry can answer the definition of criminal  trespass  if,  and  only  if,  such  entry  or  unlawful  remaining is with the intent to commit an offence or to  intimidate, insult or annoy the person in possession of  the  property.  In  other  words,  unless  any  of  the  intentions referred in Section 441 is proved no offence  of  criminal  trespass  can  be  said  to  have  been  committed. Needless to say, such an intention has to  be gathered from the facts and circumstances of  a  given case. Judged in the light of the above principles  it cannot be said that the complainant party committed  the  offence  of  “criminal  trespass”  for  they  had  unauthorisedly entered into the disputed land, which  was  in  possession  of  the  accused  party,  only  to  persuade  the  latter  to  withdraw  thereupon  and  not  with any intention to commit any offence or to insult,  intimidate or annoy them. Indeed there is not an iota  

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of material on record to infer any such intention. That  necessarily means that the accused party had no right  of private defence to property entitling them to launch  the  murderous  attack.  On  the  contrary,  such  murderous attack not only gave the complainant party  the right to strike back in self-defence but disentitled  the accused to even claim the right of private defence  of person.

22.  We hasten to add, that even if we had found  that the complainant party had criminally trespassed  into the land entitling the accused party to exercise  their right of private defence we would not have been  justified  in  disturbing  the  convictions  under  Section  302 read with Section 149 IPC, for Section 104 IPC  expressly  provides  that  right  of  private  defence  against  “criminal  trespass”  does  not  extend  to  the  voluntary causing of death and Exception 2 to Section  300 IPC has no manner  of  application here  as the  attack  by  the  accused  party  was premeditated  and  with  an  intention  of  doing  more  harm  than  was  necessary for the purpose of private defence, which is  evident  from  the  injuries  sustained  by  the  three  deceased,  both  regarding  severity  and  number  as  compared  to  those  received  by  the  four  accused  persons.  However,  in  that  case  we  might  have  persuaded ourselves to set aside the convictions for  the  minor  offences  only,  but  then  that  would  have  been,  needless  to  say,  a  poor  solace  to  the  appellants”

23. In the case of  A.C. Gangadhar vs. State of Karnataka3,  

this Court held:

“Both the courts have come to the conclusion that  the accused and his companions were the aggressors  and had started the assault on the deceased and his  children and that too, because they protested against  the accused cutting the tree. Therefore, there was no  scope for giving any benefit of right of private defence  to the appellant.”

3 1998 SCC(Cri) 1477

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24. That  it  is  for  the  accused  to  establish  plea  of  private  

defence is well settled.  The plea of self-defence, is not required to be  

proved by the accused beyond reasonable doubt.  What is required of  

the Court is to examine the  probabilities in appreciating such a plea.  

Nevertheless, the accused has  to probablise the defence set up by it.  

In the present case, the accused has miserably  failed to establish,  

much less probablise,  right of private defence.  As a matter of fact,  

the  evidence  on  record  shows  that  the  accused  persons  were  

aggressors. D-1 and D-2 were unarmed when they asked accused  

persons  as to why they had harvested the standing crop. Assuming  

that the accused persons had purchased the agricultural land from  

Gheesey by registered sale deed and they were in possession but  

there was no justifiable reason for them to attack D-1 and D-2 with  

deadly weapons like ballam, gadasa and lathis, even if D-1 and D-2  

questioned  them  about  harvesting  the  crop.    In  the  facts  and  

circumstances of the case, there is no scope for  any right of private  

defence as D-1 and D-2 had neither put the person nor the property  

of the accused in peril.  

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25. In our considered view, the trial court as well as the High  

Court cannot be said  to have committed any error in not accepting  

the plea of private defence.

26. The deadly weapons with which appellants were armed  

and large number of injuries inflicted on D-1 and D-2 clearly show  

that  the  appellants  shared  common  object  of  committing  murder.  

That the accused persons were more than five and formed unlawful  

assembly  is  amply established. D-1 and D-2 died on the spot.  The  

conviction of the accused under Section 302 read with 149 IPC does  

not suffer from any legal  flaw.   

27. The result of the foregoing discussion is that both appeals  

must fail and are dismissed.

………………….J (V.S. Sirpurkar)  

………………….J (R.M. Lodha)

New Delhi, July 7,  2009.  

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