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PETITIONER: GOTTIPULLA VENKATA SIVA SUBRAYANAM & ORS.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ANR.

DATE OF JUDGMENT: 19/01/1970

BENCH: DUA, I.D. BENCH: DUA, I.D. HIDAYATULLAH, M. (CJ) RAY, A.N.

CITATION:  1970 AIR 1079            1970 SCR  (3) 423  CITATOR INFO :  RF         1970 SC1321  (17)  RF         1973 SC 473  (4)

ACT: Indian  Penal Code (Act 45 of 1860), ss. 96 to 106-Right  of private defence-Scope of-Plea not raised by accused--Duty of Court,  when  there  is evidence showing  right  of  private defence.

HEADNOTE: With  respect  to a kunta, which  was  government  property, certain  persons who had occupied a part of the land in  the kunta  and  the  accused, were  asserting  their  respective claims,  the former to the use of the land in the kunta  for cultivation and latter, to the use of the kunta as a  source of  irrigation.   The  occupiers  and  accused  belonged  to opposite  political  factions.   A suit  was  filed  by  the occupiers   and  the  civil  court  passed  two  orders   of injunction,  one  restraining the accused  from  interfering with  the occupiers’ possession, and the other,  restraining the occupiers from opening sluices in the bund of the kunta. While the suit was pending    the  occupies raised corps  on their  land and the accused raised a new bund.  Since  their crops  were being damaged as a result of the raising of  the new  bund, the occupiers approached the police  ’authorities and tahsildar for   the  removal of the bund, but  they  did not give any effective help. The accused were not willing to allow the removal of the bund without any Government  order. Thereupon, the occupiers and their supporters, numbering not less  than  twenty went to the spot to remove  the  bund  by force,  but the accused were present at the spot  determined not  to  allow the bund to be removed.  In  the  fight  that ensued, the first accused, aged about 60 years, received ten injuries  on  the  vital parts of his  body  and  the  Civil Assistant Surgeon who attended on him thought it was  neces- sary  to  take  a dying declaration from  him.   The  second accused  who was about 50 years old, was also  subjected  to severe  beating.   Some of the other accused  also  received injuries.  The tenth accused, who had a gun in his hand, and who  was  the son-in-law of the first accused, shot  at  the actual  aggressors  and  killed three of  them  and  injured

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another.  The party of the occupiers asserted that they went to the scene of occurrence unarmed and with the intention of peacefully  persuading  the accused to remove the  bund  and that  when beaten by the: accused they snatched  the  sticks and spears from them and retaliated.  The tenth accused  put forth a plea of alibi.  The other accused asserted that  the party  of  the occupiers were the aggressors and  that  they acted in self defence.  Holding that it was not material  to consider  whether  the occupiers ’and their  supporters  had brought with them sticks or snatched them from the  accused, that  the accused had attacked first, and that the  injuries to  the  accused did not give rise to any right  of  private defence,  the High Court convicted some of the  accused  for the offence under ss. 147 I.P.C., to,- the offence under  s. 148 I.P.C., and the tenth accused for the offences of murder and grievous hurt with a dangerous weapon. In appeal to this Court, HELD : (1 ) When they went to the scene, the occupiers  knew that determined not to allow the removal of the bund without an  order  from determined not to allow the removal  of  the bund without an order ’from the Government authorities.   In the circumstances the occupiers and their 424 supporters  must have gone to the kunta fully armed, and  it was not possible to accept their version. [434 E-G] (2)  The  occupiers moved in the matter only after  the  new bund was raised by the accused.  They had ample  opportunity of approaching public authorities to have the bund  removed. When  the  occupiers  and their supporters  found  that  the police  were  guilty of a grave dereliction of  their  duty, they  could  have approached the higher authorities  or  the civil  court  in  which the suit was  pending.   Instead  of having  recourse  to those steps they decided to go  to  the scene  in large numbers fully determined to remove the  bund by force.  When that attempt was foiled by the accused  with show  of force, the members of occupiers’ party  mercilessly beat  up  some of the accused persons who were  advanced  in age.  In such a situation it was not possible for an average person placed in the position of the tenth accused, to  take a  calm and objective view and calculate  with  arithmetical precision  as to how much force would effectively serve  the purpose of self-defence and when to stop.  He only used  the gun  against  the real aggressors from whom  he  apprehended grave  danger to the lives of the other accused persons  and to himself.  Therefore, he was fully justified in using  his gun in the exercise of the right of private defence  against the party of the occupiers. [438 C-D, E-H; 439 A-E] Except  as  against acts of public servants acting  in  good faith  and  when  there  is time to  have  recourse  to  the protection of public authorities, under s. 97 I.P.C.,  every person has a right to defend : (1) his own body and the body of any other person against any offence affecting the  human body, and (2) the property of himself or of any other person against  theft,  robbery, mischief,  of  criminal  trespass. Such a right is basically preventive and not punitive,  and, nothing  is an offence which is done in the exercise of  the right.   Under s. 100 one of the circumstances in which  the right  of  private  defence  of  the  body  extends  to  the voluntary  causing  of death of the assailant,  is,  if  the assault,   which  occasions  the  exercise  of  the   right, reasonably  causes the apprehension that death  or  grievous hurt would otherwise be the consequences thereof. [437  B-D, E-F] (3)  When there is evidence proving that a person accused of killing  or  injuring another-acted in the exercise  of  the

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right  of private defence, the court would not be  justified in ignoring that evidence and convicting the accused  merely because  he had set up a defence of alibi and set  forth  -a plea  different from the right of private  defence.   Courts are  expected to administer the law of private defence in  a practical way with reasonable liberality so as to effectuate its  underlying  object.   Therefore,  the  Court  was   not precluded  from giving the tenth accused the benefit of  the right of private defence. [439 F-H]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 75  of 1967. Appeal  by special leave from the judgment and  order  dated April  8, 1966 of the Andhra Pradesh High Court in  Criminal Appeal No. 636 of 1963. Nur-ud-din  Ahmed, A. V. Rangam, A. Vedavalli and D.  Gopala Rao, for the appellants. P. Ram Reddy and A. V. V. Nair, for the respondents. 425 The Judgment of the Court was delivered by Dua,  J. In this appeal by special leave  directed  against. the  order  of  the  Andhra Pradesh  High  Court,  the  only question  canvassed  on behalf of the appellants  before  us relates to the plea of private defence raised by them at the trial.   The appellants who are ten in number were tried  on as  many is 22 charges by the Court of  Additional  Sessions Judge,  Masulipatam  and acquitted of all the  charges.   On appeal  by  the State against their acquittal  there  was  a difference  of  opinion between the two Judges of  the  High Court  constituting the Division Bench hearing  the  appeal. Whereas Sharfuddin Ahmed, J., upheld the order of  acquittal on  the basis of the plea of private defence, Mohd.   Mirza, J., was of the opinion that the prosecution case was  proved by overwhelming evidence.  The case was in consequence  laid before Basi Reddy, J., as provided by s. 429, Cr.  P.C. That learned  Judge accepted the prosecution case  and  convicted the  appellants  on some of the charges.  He  expressed  his final conclusion thus : "I  shall  now indicate the charges upon which  the  accused should  be  convicted  and  the  sentences  that  should  be imposed: On charge no. 21 would convict accused 1, 3 and 5 to 9 under section 147, I.P.C. and on charge no. 3 accussed 2, 4 and 10 and  sentence each of accused 1, 2,3, 4 and 5 to pay a  fine of Rs. 5001/- in default each to suffer six months’ rigorous imprisonment.  I would sentence each of accused 6 to 9  (who are farm servants) to pay a fine of Rs. 100/- in default  to suffer two months’ rigorous imprisonment.  I would  sentence accused 10 to suffer rigorous imprisonment for two years. 2.   On each of charges nos. 4, 5 and 6 which pertain to the three   counts  of  murder, I  would  convict  and  sentence accused  10  to suffer imprisonment for life  under  section 302, I.P.C.. 3.   On charge no.  II, I would convict and sentence accused no.  10  to suffer two years’  rigorous  imprisonment  under section 326, I.P.C. for having caused grievous hurt to  P.W. 6 by shooting at him with the gun. 4.   On  charge  no.  221 would  convict  accused  10  under section 19(a) of the Indian Arms Act and sentence him     to suffer one year’s rigorous imprisonment. I  would direct all the sentences of imprisonment passed  on accused 10 to run concurrently.  I would uphold the order of

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acquittal on other charges. 426 The net result will be that accused 10 will have to  undergo imprisonment for life; accused 1 to 5 will each have to  pay a fine of Rs. 500; and accused 6 to 9 will each have to  pay a fine of Rs. 100/-". The  final. order of the High Court on appeal  followed  the opinion expressed by Basi Reddy, J. The charges on which the appellants were convicted are there "....          .........                ......... Secondly : that you accused nos. 1, 3 and 5 to 9 along  with accused nos. 2, 4 and 10 at about 10 a.m. on 10-9-61 at  the same place and in the course of the same transaction as  set out  in charge no. 1 above, formed your the common object of               such assembly viz : beating and the  occupiers               of  Gabbilalakunta,  committed an  offence  of               assembly,  viz.  :  beating  and  killing  the               members  of the lakunta, committed an  offence               of  rioting and that at that weapons  to  wit,               ’spears’  and the 10th accused was  armed  and               within my cognizance; Thirdly  :  that  you accused nos. 2, 4 and  10  along  with accused  nos. 1, 3 and 5 to 9 at the same time and place  in the course of the same transaction as set out in charge  no. 2  above,  were members of an unlawful assembly and  did  in prosecution  of  the  common object of  such  assembly,  viz :beating  and killing the members of the party that came  in support  of  the occupiers of Gabbilalakunta,  committed  an offence of rioting and that at that time, the accused nos. 2 and  4 -were armed with deadly weapons to wit, ’spears’  and the  10th  accused was armed with a D.B.B1 Gun  and  thereby committed  an  offence punishable under section 148  of  the Indian Penal Code and within my cognizance; Fourthly  :  that you accused no.  JO at the same  time  and place  and in the course of the same transaction as set  out in charge no. 2 above, did commit murder by intentionally or knowingly  causing the death of Anne Ramarao, son of  Seetha Ramarao  of  Atkur by shooting him with a D. B. B1  gun  and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance; Fifthly : that you accused no. 10 at the same time and place and  in  the course of the same transaction as  set  out  in charge  no. 2 above, did commit murder by  intentionally  or knowingly  causing the death of Bodapati China  Anjaiah  s/o Danaiah of Mustabada by shooting 427 him  with  a D.B.B I gun and thereby  committed  an  offence punishable  under section 302 of the Indian Penal  Code  and within my cognizance; Sixthly : that you accused no. 10 at the same time and place and  in  the course of the same transaction as  set  out  in charge  no. 2 above, did commit murder by  intentionally  or knowingly  causing  the death of  Boddapati  Lakshmaiah  s/o Kotaiah of Medaripalem, hamlet of Verudupavuluru by shooting him  with  a  D.B.B1 gun and thereby  committed  an  offence punishable  under  section 302 of the Indian Penal Code  and               within my cognizance; Eleventhly  : that you accused no. 10 at the same  time  and place  and in the course of the same transaction as set  out in  charge no. 2 above, voluntarily caused grievous hurt  to Kolli Nagabhushanam, son of Venkaiah of Davajigudem by means of  a  D.B.B1  gun an instrument for  shooting  and  thereby committed  an  offence punishable under section 326  of  the Indian Penal Code and within my cognizance and that the said act  having been done in pursuance of the common  object  of

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the  unlawful  assembly consisting of you  all  the  accused herein,  all of you are guilty of the offence under  section 326  of the Indian Penal Code read with section 149,  Indian Penal Code and within my cognizance, or alternatively  under section  326  read with section 34, Indian  Penal  Code  and within my cognizance; Twentysecondly  : that you accused no. 10 at about the  same time and place and in the course of the same transaction  as set out in charge no. 2 above, were armed with a D.B.B1  gun without  licence  under  the Indian  Arms  Act  and  thereby committed  an offence punishable under section 19(e) of  the Indian Arms Act and within my cognizance." In this Court, as already observed, the appellants’  learned Advocate  confined his- submission only to the  question  of right  of  private defence.  According  to  the  prosecution case,  there  is a low lying area covering. about  11  acres known  as  Gabbilalakunta (hereafter to be referred  as  the Kunta)  about  one  mile away from  Surampalli  village  but within  its limits.  This Kunta serving as a tank is fed  by rain water.  The village of Surampalli was a Mokhasa village in the erstwhile zamindari of Mirzapuram.  Under 428 the   provisions  of  the  Madras  Estates  (Abolition   and Conversion  into  Ryotwari)  Act,  1948,  the  zamindari  of Mirzapuram  was taken over by the Government in 1950.  As  a result  thereof  the  entire  estate  including   Surampalli village  and the Kunta became vested in the Government  free from  all  encumbrances.  This Kunta thus  belonged  to  the Government.  Some poor landless persons like P.Ws 13 and 14, Shaik Madarsaheb and Kandavalli Anandam, began cultivating a part  of this Kunta and started raising wet and  dry  crops. This  started  in  the year 1953.   Their  occupation  being unauthorised the Revenue Authorities collected penalty  list from  the  occupants.   Accuse4d nos.  1  to  4,  Gottipulla Venkatasiva  Subbarayanam,  Gottipulla  Bapaiah,  Gottipulla Seshaiah  and  Gottipulla  Subba Rao, who  are  the  ,former Mokhasadars have their lands measuring about 80 acres to the south of the Kunta.  ’There is a big tank called Erracharuvu located  about  three or four furlongs to the north  of  the Kunta.   There are some channels through which  water  flows from this tank to various fields and one such channel serves to irrigate the field of the accused nos.  1 to 4. According to the prosecution the lands of these accused persons should be  irrigated  by  means of the channel  running  along  the western  side  of  the  Kunta.   According  to  the  accused persons, however their fields should receive water from  the Kunta  through  sluices in its southern bund.  In  1958  the Settlement  Authorities registered the Kunta as a source  of irrigation  for  an  ayacut of 34  acres.   Prior  to  that, sometime  in  August 1957, the occupiers of  the  Kunta  had instituted a suit for injunction restraining accused nos.  1 to  4 from interfering with the possession of the  occupiers and  also  claiming  damages  on  the  allegation  that  the defendants had spoiled their crops and an interim injunction was actually granted on August 21, 1957. Accused nos. 1 to 4 also filed an application seeking to in- junct  the occupiers from opening the sluices (out-lets)  or making breaches in the bund of the Kunta during the pendency of  the  suit.  On this application also the  court,  by  an order dated August 29, 1957, granted a temporary  injunction in the following terms "Pending  disposal  of this petition,  the  respondents  are restrained fro -in opening the sluices or outlets or cutting any  breaches to the bund of the tank situated in S. No.  44 if there is any bund......"

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On  February 3, 1960 the Court confirmed both the orders  of injunction  mentioned above.  The land in the Kunta was  not cultivated in the years 1958 to 1960 because, of failure  of rains.  In June, 1961 cultivation was resumed by P.W. 13 and P.W.  14, along with four other persons, raising paddy  crop in  a  part  of the Kunta.  Another part of  the  Kunta  was prepared for raising 429 jonna crop.  The suit mentioned above was still pending when on  September 4, 1961 it was adjourned to some  other  date. It rained heavily that night and the,, rain water  collected in  the Kunta.  On the following morning- when P.W.  13  and P.W. 14, along with some other occupiers passed by the  side of the Kunta they saw a new bund raised on its western  side so  as  to  prevent the rain water  collected  therein  from flowing  westwards.   This resulted in submerging  the  crop grown on the eastern portion of the Kunta.  The new bund was about  3  high, 2-1/2 wide and 25 yards  in  length.   There being  no one present at the bund P.Ws 13 and 14  and  their companions  made  a  breach therein to let  the  water  flow westwards.  In the evening when they came back to the  Kunta they found that the breach in the bund had been repaired and the bund restored to its original position.  There were also two improvised huts set up to the south of the bund and  all the ten accused were present keeping a watch.  The occupiers pleaded with the accused persons to remove the bund pointing out  that  otherwise their crops would be  damaged  but  the accused  persons  did  not listen to  their  entreaties  and threatened to beat them if they dared to interfere with  the bund.   The occupiers thereupon went back to their  village. On   the  following  day,  September  6,  1961,   P.W.   12, Yelamanchili  Malikharjuna  Rao, a medical  practitioner  at Surampalli  and a leading member of the Communist Party  was approached  by the occupiers to assist them in  representing to  the  authorities against the high-handed action  of  the Mokhasadars.   A  report was prepared by P.W. 12  which  was addressed to the Sub-Inspector of Police.  The Sub-Inspector promised  to  send his constables to the spot  and  on  this assurance  the  occupiers went back to  their  village.   On September  7,  1961 under the direction of the  Police  Sub- Inspector  two police constables went to the Kunta with  the object  of getting the bund removed and if possible to  bind over the parties.  The Kunta was full of water and the paddy crop was submerged.  Six of the occupiers were also  present at  the  spot.  The-police Constables informed  the  persons present keeping a watch on the bund, which included  accused no.  1  Gottipulla Venkatasiva Subbarayanam, accused  no.  2 Gottipulla   Bapaiah   and  accused   no.   10,   Charugulla Vijayaramarao,  that  the  Sub-Inspector  had  directed  the western bund to be removed so that water may flow westwards. Accused nos. 1, 2 and 10 asked for Government orders to that effect  and declined to allow the bund to be removed in  the absence  of such an order.  The police constables asked  the parties  present to meet the Sub-Inspector on the  following day.  Neither party, however, went to the police station  as required.    The  Tahsildar  also  appears  to   have   been approached to get the bund removed but he declined to do  so on  the ground that it was not his business and that it  was for the Revenue Divisional Officer to look into the  matter. On September 9, 1961 the Sub-Inspector sent a head constable along with 430 the constable who had gone there on September 7, to  enquire into the complaint made to the police earlier.  According to the report prepared by the head constable accused no. 10 was

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firm and emphatic that the bund could not be removed in  the absence  of a Government order to that effect.  Bonds  were, therefore,  secured from accused nos. 2 and 3 and also  from the occupiers for appearance before the Sub-Inspector on the following  morning.   It  appears that these  steps  by  the police produced no tangible result.  The occupiers realising that their crops were being irreparably damaged made frantic efforts  to get the bund removed and with that  object  they approached  some  ryots  of  the  surrounding  -villages  to intervene on their behalf and to persuade the Mokhasadars to remove the bund.  After the police party had left Surampalli on  the  evening of September 9, P.Ws. 13 and  14  and  some other occupiers proceeded to Gannavaram and approached  some persons  belonging to the Communist Party and apprised  them of  their  plight.   The occupiers  were  assured  of  their support  on  the  following  morning.   On  the  morning  of September   10,   P.W.  II,   Katragadda   Pedavenkatarayudu accompanied by P.W. 6, Koli Nagabhushanam, and Anne Rama Rao (deceased  no.  1)  went  to  Mustabada  on  their  way   to Surampalli.   At  Mustabada they  contacted  Chinna  Anjayya (deceased no. 2) and P.W. 15, Pendyala Venkateswara Rao, and from  there  they  all  proceeded  to  Surampalli.   At  the Panchayat Board Office at Surampalli they collected P.W.  1, Madhukuluri  Satyanarayana, P.W. 4, Kolampatta Venkata  Sub- bayyachari,  P.W.  5,  Jasti  Ramarao,  P.W.  7,   Garimella Subbarao,  P.W.  8, Garimella Venkataiah,  P.W.  9,  Mukkala Veeraiah and deceased no. 3, B. Lakshmayya and also the  six occupiers of the Kunta and two or three other persons.  P.W. 12,  Y. Mallikarjuna Rao also arrived there.  A message  was sent  through P.W. 13 to bring accused nos.  1 to 4  to  the Panchayat  Board office but they were reported to be at  the Kunta.  Then all the persons gathered at the Panchayat Board office numbering about 20 proceeded to the Kunta at about 10 a.m.  on September 10.  Accused nos. 1 to 9 were found  near the  huts  whereas accused no. 10 with a  gun  was  standing about 25 yards to the southeast of the huts.  Accused nos. 2 and  4  had  spears whereas accused nos. 3 and 5  to  9  had sticks  with them.  P.Ws. 1, 4, deceased no. 1, P.W. II  and others  are stated to have requested accused nos. 1 to 4  to remove  the bund and save the growing crop belonging to  the poor men.  The accused declined to do so.  Thereupon the six occupiers went towards the bund about 25 yards to the  north of  the  huts  and started themselves  removing  a  portion. Accused nos.  1 to 9 thereupon rushed at them to beat  them. At that stage P.W. 5, Jasti Ramarao, P.W. 7, Garimella Subba Rao  and some others who had come to mediate intervened  but they were beaten by the accused.  The, prosecution witnesses in turn snatched the sticks from some of the accused persons and retaliated causing injuries to some of them. 431 At  this point of time accused no. 10 who was standing  near the  huts shouted that the party of the occupiers would  not go  back  unless shot at and asked his  companions  to  come back.   Accused nos.  1 to 9 started retreating towards  the huts.   Deceased  no. 1 and P.W. I who was  about  10  yards southeast of the huts at that time went towards accused  no. 10 challenging him to shoot if he dared and saying that they were  prepared to be shot for a just cause.  Accused no.  10 then  stepped  forward and fired at deceased no.  1  from  a distance of about 10 yards.  Crying out "Abba" deceased  no. 1 fell down and died on the spot.  A pellet grazed the  nose of  P.W. I who was a couple of yards behind deceased no.   1 and he too fell down.  According to the prosecution  version accused  no. 2 hit P.W. I at the back as a result  of  which P.W. I also fell down unconscious., Accused no. 10 is stated

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to  have fired another shot towards the west as a result  of which P.W. 6 was injured.  Accused no. 10 then re-loaded his gun and fired a shot towards the west and this hit  deceased no. 2 who also fell down dead.  The fourth shot was fired by accused  no.  10  in the northwestern  direction  which  hit deceased no. 3 who was about 25 yards away from the huts and he  too  fell  down  dead.  P.Ws. 2, 3, 8,  9  and  10  also received  pellet  injuries  in the course  of  this  firing. This, broadly speaking, is the prosecution case. According  to the defence version sought to be supported  by ,four  defence witnesses the gun used during the  occurrence was  brought  by  accused no.  1  who  holds  the  necessary licence  for  this  fire arm and it was he who  used  it  in exercise of the right of private defence after accused  nos. 2 to 4 had received injuries at the hand of about 200 or 300 communist  &  who had come to the place of  occurrence  from the  house  of  P.W. 12.  They were armed  with  sticks  and spears and were also carrying their flag.  They were raising party slogans and shouting that Gottipulla people should  be killed.  They tried forcibly to remove the bund and on being obstructed by accused nos. 2 to 4 and their servants working at their farm the occupiers and the communists gave a severe beating to the latter.  Accused no. 1 came to the spot  with his gun and fired at the aggressors in exercise of the right of  private  defence.   Accused  no.10,  according  to  this version, was not present at the spot. In his statement under S.  342, Cr.P.C. this accused pleaded alibi by stating  that he  was  at Sivapuram, Kadapa district on  the  fateful  day having  gone  there weeks before and that  he  knew  nothing about  this  occurrence;  according  to  him  he  stayed  in Sivapuram for about one month and himself surrendered in the Magistrate’s court on hearing that he was named as an accus- ed in this case.  The trial court did not accept his plea of alibi  nor did the High Court accept it and we do  not  find any cogent ground for disagreeing with this conclusion. 432 Now,  the facts in the background of which, the question  of Tight  of private defence is to be considered are  that  the Kunta  was  the  property  of  the  Government  and  it  was registered  as  a source of irrigation in the year  1958  or 1959.   The occupiers were thus cultivating the Kunta in  an unauthorised manner.  Both sides had also secured injunction orders from the civil court against their opponents and  the orders secured by the accused restrained the opposite  party (plaintiffs  in the suit) from cutting any breaches  in  the bund.   The  accused  no doubt seemed to  have  put  up  the present  bund after the occupiers had grown their crops  but it is clear that for a couple of years previously there  was insufficient  rain and there was also no cultivation in  the Kunta.  The present bund was apparently raised on  September 4,  because it was on the morning of September 5,  that  the existence of the bund is stated to have been noticed by  the occupiers.   Thereafter the occupiers approached the  police authorities  for assistance in getting the bund removed  but unfortunately   the  matter  was  not  dealt  with  by   the authorities  in an effective manner as they ought  to  have. Having failed in their attempt to have the bund removed, the occupiers with their communist helpers seem to have gone  to the  spot on the day of the occurrence to  help  themselves. Up to this stage there does not seem to be any  controversy. The  only difference between the rival versions  relates  to the question, whether or not the party of the occupiers  was armed  and  their number.  The prosecution  witnesses  would have us believe that they (the occupiers) along with some of their  friends and supporters had gone to the Kunta  unarmed

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to  peacefully  persuade the accused persons to  remove  the bund and that the accused persons beat them tip with  sticks and  spears.  The occupiers, acting merely in  self-defence, snatched  the  sticks and spears from some  of  the  accused persons  and  gave them a beating whereupon accused  no.  10 used  his  gun indiscriminately firing at the party  of  the occupiers.  The accused, on the other hand, claimed that the party of the occupiers, helped by prominent communists which far  outnumbered the accused persons were armed with  sticks and  spears and they forcibly tried to remove the  bund  and when the accused objected they were beaten up.  Apprehending danger  to  their lives, the gun was used on behalf  of  the party  of the accused persons.  It was thus in  exercise  of the right of private defence that this gun was used.  It may at  this stage be pointed out that the accused  persons  had also reported the matter to the police but on the plea  that the police was siding with the occupiers and favouring  them the  accused  persons filed a complaint in the  court  of  a Magistrate against 35 persons and both the cases were  tried simultaneously. As each side is blaming the other of being the aggressor and the witnesses for the prosecution deposing to the occurrence as eye witnesses are clearly interested in the occupiers the nature and 433 extent  of  the  injuries suffered by the  men  of  the  two factions would serve as more reliable material for  arriving at the truth.  It is in this connection noteworthy that even according  to  the prosecution witnesses the  party  of  the occupiers  consisted of not less than 20, persons.   We  may now  turn to the wound certificates of the accused  persons. Gottipulla Venkata Siva Subbarayanam, aged 60 years, accused no.  1,  had 10 injuries on his person mainly on  the  head, base of the neck and the shoulders and dying declaration was considered necessary by the Civil Assistant Surgeon.  Gotti- pulla  Bapaiah, aged about 50 years, accused no. 2  had  the following injuries on his person : 1.   A  contusion  12" in length x 1/2"  with  raised  edges placed diagonally across the upper 1 /3 of left half of  the back,  the  lower and towards the spine and  the  upper  end towards the shoulder.  Brownish red in colour; 2.   A  contusion  brownish  red in colour  1"  in  diameter situated on the right shoulder; 3.   Whole of the right shoulder joint swollen and  brownish red   in   colour.   Movements  at  right   shoulder   joint restricted; 4.   A  contusion  bluish in colour 3" in  diameter  on  the outer aspect of upper 2-1/2 of the right arm; 5.   A   contusion  6"X1/2"  with  raised   edges   situated diagonally across the right side back, the outer end towards the axilla and the upper end towards the neck.  Brownish  in colour; 6.   Whole of the right hand swollen and tender brownish red in colour; 7.   A lacerated injury 2" x 1/2" scalp deep situated on the left parietal, eminence 4" above Pinna of left ear.  Clotted blood seen in the wound and is placed transversely; 8.   An  incised wound transversly placed on the right  half of centre of occiput at the back of head 1-1/2" x 1/4" scalp deep.  Clotted blood found in the wound. X-ray  report  disclosed M.C. dislocation of  right  acromio clavicular joint. Gottipulla  Seshayya, aged 50 years, accused no. 3, had  two injuries on his person one of which was incised wound  scalp deep situated diagonally on the front half of right parietal

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bone.  Dying declaration was not considered necessary and he was discharged from the hospital on the 16th September, 1961 after six days. 434 Gottipulla  Subba  Rao, aged 48 years, accused no. 4  had  a brownish red contusion with raised edges and small  abrasion over  it situated transversely on the right forearm, 1/3  of which  was swollen and tender.  There was a fracture of  the bone below. -He also remained in the hospital from September 10, to September 16. Korlagunta  Narayana Rao, aged 35 years, accused no.  5  had four injuries on his person including a lacerated injury  2" x 1/2 " scalp deep on the front of the right parietal  bone, 1/2"  to the right of mid line of skull and another  similar injury  1" x 1/2" scalp deep on a contusion 3" in  diameter, brownish  red  in  colour at the back of  junction  of  both parietal bones in between parietal eminences. Shaik  Madarsaheb,  aged 25 years, accused no. 6,  had  five injuries  on  his  person including  a  contusion.   He  too remained  in  the hospital for six days upto  September  16, 1961. Thota  Seetharamayya,  aged 40 years, accused no.  7  had  a simple injury on his right hand ring ginger. Accused  no.  8, Thota Subba Rao, aged 22 years had  only  a contusion on right buttocks. These  injuries  quite  clearly suggest that  the  party  of occupiers did not consist of a -few unarmed persons who  had no   design  to  forcibly  remove  the  bund.   It  is   the prosecution  case  that the accused were determined  not  to allow  the  bund to be removed without an  order  -from  the Government  authorities and that they were prepared  to  use force to protect the bund.  The accused were also armed with the gun belonging to -accused no. I and this was fully known to the occupiers.  In this background it is not possible  to accept the story that the prosecution witnesses had -one  to the  Kunta unarmed and it was only when they were beaten  by the accused persons that -they in self-defence snatched  the sticks and spears from some of the accused persons and  beat up the others With ’those- sticks -and spears.  Some of  the injuries found on the persons of -the prosecution  witnesses were  of  course  caused by blunt weapons but  most  of  the injuries  were, according to the medical evidence caused  by gun shots. According  to -the trial court both parties  asserted  their respective  claims, the occupiers to the use of the land  in the Kunta for cultivation and the accused to the use of  the Kunta  as  a source of supply of rain water  for  irrigating their land and these conflicting rights could not  co-exist. -When the prosecution witnesses attempted forcibly to remove the bund the trouble flared up.  The two factions had  a1so, affiliations with two different political parties 435 the  occupiers had -full support of the Communist Party  and accused  no.  10 was a member of the Mandal  Congress.   The court  also  did not believe the  prosecution  version  that prosecution  witnesses had gone to the Kunta  to  peacefully persuade  the accused persons to remove the bund.   It  held the  occupation  of  the  Kunta  by  the  occupiers  to   be unauthorised after its registration as an irrigation  tanks. It further held that the bund as it existed on September  5, 1961had  been raised by the accused persons but  there  were sluices  and  vents in the southern bund.   The  court  also found that water from Errache-uvu used to flow into the bund of  the Kunta from where it passed on to the fields  of  the accused  nos.   1  to 4 with the  result  that  the  accused

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persons were justified in raising the bund and if there  was any  contravention  of  the  civil  court’s  injunction  the occupiers should have approached that court for -appropriate relief.  It was on this line of reasoning that the action of the  accused  in  protecting  the bund  was  upheld.   On  a consideration  of the prosecution evidence the  trial  court observed that notwithstanding the denial of his presence  at the spot by accused no. 10 it was open to him to say that on the  prosecution  evidence itself he must be  held  to  have acted  in  exercise of the right of private defence  and  so observing that court expressed its conclusion thus : "The  facts  and circumstances elicited in  the  prosecution evidence  referred  to  above  clearly  establish  that  the               accused  1  to 9 were maintaining a  right  at               that time, that the bund was being removed  by               men on the other side and the men on the other               side   also inflicted simple  and grievous               injuries on the accused 1 to 9. In such a               situation  it  was open either to any  of  the               accused 1 to 9 or even to the 10th accused  to               do  something to avert further  beating.   The               beating  to the extent to which it took  place               resulted  in grievous injuries to some of  the               accused.  Under these circumstances it has  to               be held that the facts disclose a situation in               which the 10th accused can well claim to  have               acted in the exercise of the right of  private               defence.   Charges 4 to 6, 10 to 13, 15 to  17               against  the  10th accused,  therefore,  fail.               Consequently,  the charges 7, 8 and 9  against               the remaining accused also fail." In  regard  to  the  other  charges,  after  discussing  the evidence,  in the case and other material on the record  and criticising   the  failure  on  the  part  of   the   police authorities to take effective and timely measures in advance to  prevent the occurrence in question the trial court  came to  the  conclusion  that in regard to  the  actual  beating suffered by the members of both parties the evidence was  so conflicting and their respective versions so distorted that 436 no  definite finding could safely be arrived at.   All  that emerged  from the material in the court’s view was that  the accused  wanted  to retain the bund  which  the  prosecution party  wanted to remove and the fight ensued.  On this  view the accused were acquitted. On  appeal  Basi Reddy J., who disposed it of  in  the  High Court  under S. 429, Cr.P.C. felt that the case put  forward by  the prosecution was substantially true and the case  set up by the defence palpably false.  According to the  learned Judge neither the accused had a right to put up the bund nor had  the  occupiers a right to encroach on the  bed  of  the Kunta.   The injunction order in favour of the  accused  was only  based  on the existence of a bund at the time  of  the order  and thus did not entitle the accused to raise  a  new bund whereas the injunction order in favour of the occupiers restrained  the  accused persons from interfering  with  the enjoyment  of the Kunta by the occupiers.  The  accused  who had  raised  the  bund  and  who  being  fully  armed   were determined  to  guard and preserve it by use of  force  were held  by  the  learned  Judge  to  constitute  an   unlawful assembly.   Accused nos. 2, 4 and 10 were held to  be  armed with  deadly weapons and therefore guilty of s. 148,  I.P.C. and the other accused were held guilty under s. 147,  I.P.C. The  right  of  private defence was also  negatived  by  the learned Judge.  It was observed that this right had not been

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pleaded  by accused no. 10 and on the  prosecution  evidence the accused had first attacked the mediators on their inter- vention to prevent the occupiers being beaten up and it  was thereafter  that P.Ws. 5 and 7 and others beat  the  accused persons in retaliation.  The High Court did not consider  it material  whether the prosecution witnesses and  others  had brought  with them sticks or had snatched the same from  the accused persons and sustenance of injuries by accused nos. 1 to  8  in this connection was held not to give rise  to  any right  of  private defence.  Holding the use of the  gun  by accused  no. 10 to be his individual act independent of  the object  of  the  assembly he alone was held  guilty  of  the offence of murder. In  our opinion the High Court has misconceived the  law  in regard  to the right of private defence and the appeal  has, therefore,  to be allowed.  The right of private defence  of person  and property is recognised in all  free,  civilised, democratic  societies  within  certain  reasonable   limits. Those  limits are dictated by two considerations : (1)  that the  same  right  is claimed by all  other  members  of  the society  and  (2)  that  it is  the  State  which  generally undertakes the responsibility for the maintenance of law and order.   The  citizens,  as  a  general  rule,  are  neither expected  to run away for safety when faced with  grave  and imminent  danger to their person or property as a result  of unlawful aggression, nor are they expected, by use of force, to right the wrongs done to 437 them or to punish the wrongdoer for commission of  offences. The right of private defence serves a social purpose and  as observed by this Court more than once there is nothing  more degrading  to the human spirit than to run away in  face  of peril; (Munshi Ram v. Delhi Administration(1) and Kishna  v. State   of  Rajasthan(2).   But  this  right  is   basically preventive and not punitive.  It is in this background  that the provisions of ss. 96 to 106, I.P.C. which deal with  the right of private defence have to be construed.  According to S. 96 nothing is an offence which is done in the exercise of the right of private defence and under s. 97 subject to  the restrictions contained in s. 99 every person has a right to, defend  : (1) his own body and the body of any other  person against  any  offence affecting the human body and  (2)  the property  whether movable or immovable of himself or of  any other  person  against any act which is an  offence  failing under the definition of theft, robbery, mischief or criminal trespass  or which is an attempt to commit  these  offences. The right of private defence, according to section 99,  does not  extend to an act which does, not reasonably  cause  the apprehension  of  death  or of a grievous hurt  if  done  or attempted  to  be done by a public servant  acting  in  good faith etc., and there is also no right of private  defencein cases  in  which  there  is time to  have  recourse  to  the protection of the public authorities.  Nor does it extend to the inflicting of more harm than is necessary to inflict for the   purpose  of  defence.   Section  100  lays  down   the circumstances  in which the right of private defence of  the body  extends  to the voluntary causing of death or  of  any other harm to the assailants.  They are: (1) if the  assault which occasions the exercise of the right reasonably  causes the apprehension that death or grievous hurt would otherwise be  the  consequence  thereof and (2)  if  such  assault  is inspired  by  an  intention to commit  rape  or  to  gratify unnatural  lust  or  to kidnap or abduct  or  to  wrongfully confine  a person under circumstances which  may  reasonably cause  apprehension that the victim would be unable to  have

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recourse to public authorities for his release.  In case  of less serious offences this right extends to causing any harm other than death.  The right of private defence to the  body commences  as soon as reasonable apprehension of  danger  to the  body  arises from an attempt or threat  to  commit  the offence  though the offence may not have been committed  and it  continues as long as the apprehension of danger  to  the body  continues.  The right of private defence  of  property under  s.  103 extends, subject to s. 99, to  the  voluntary causing  of death or of any other harm to the  wrongdoer  if the  offence  which occasions the exercise of the  right  is robbery,  house-breaking by night, mischief by fire  on  any building etc., or if such offence is, theft, mis- (1)  Crl.  A. No.. 124 of 1965 decided on 27.11.1967. (2)  Crl.  A. No. 23 of 1960 decided on 30.10.1962. L7Sup.CI(NP)/70-13 438 chief  or  house  trespass  in  such  circumstances  as  may reasonably  cause apprehension that death, or grievous  hurt will be the consequence, if the right of private defence  is not  exercised.   This  right  commences  when.   reasonable apprehension  of  danger to the property commences  and  its duration,  as  prescribed  in S. 105,  in  case  of  defence against criminal trespass or mischief, continues as long  as the  offender continues in the commission of  such  offence. Section  106  extends the right of private  defence  against deadly  assault even when there is risk of harm to  innocent persons. In the case in hand it is undoubtedly-true that the  accused persons are found to have raised the bund after the rainfall of  September  4,  1961.  But it is  indisputable  that  the occupiers  had ample opportunity of approaching  the  public authorities concerned if they felt that their right had been encroached  upon. it is noteworthy that the accused  persons had  accomplished the raising ,of the bund long  before  the occupiers  noticed  it.   A  civil  suit  had  already  been instituted  by them as far back as 1957 in respect of  their right to cultivate the Kunta.  In that suit a permanent  in. junction  had been sought against the defendants  and  their agents  etc.,  restraining them from  interfering  with  the plaintiffs  possession and enjoyment of the  disputed  land. Damages  amounting  to Rs. 300/- were also claimed  in  that suit  for  loss suffered by the plaintiffs as  a  result  of trespass alleged to have been committed by the defendants on the  said  land.  This suit was pending at the time  of  the occurrence in question and as observed earlier in  February, 1960  both sides had secured injunctions in this suit.   The police authorities had also been approached by the occupiers with  a complaint against the recent raising of the bund  by the  accused persons a couple of days prior to  the  present occurrence.   If the Sub-Inspector concerned was  guilty  of grave dereliction of duty (as in our opinion he clearly was) the higher authorities could easily have been approached  by the  occupiers and their supporters.  Even the  civil  court could  have  been moved with a complaint  that  the  accused persons were interfering with the occupiers’ possession  and enjoyment  of the Kunta.  But instead of having recourse  to these steps the occupiers and their supporters decided to go to the spot in large numbers fully determined to remove  the bund  by use of force.  When this attempt was foiled by  the accused  persons  with  show  of  force  the  party  of  the prosecution  witnesses  mercilessly  beat  up  some  of  the accused  persons who were advanced in age.  This conduct  on the  part of the occupiers and their supporters was, in  our opinion, sufficient, on the facts and circumstances of  this

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-case, to give rise to a reasonable apprehension in the mind of  accused  no. 10 that the victims of this  assault  would have  been killed had he not exercised the right of  private defence.  -The use of the gun by accused no. 10 against  the members  of  the  opposite faction would  thus  seem  to  be justified.  It may be 439 recalled that accused no. 1 aged about 60 years, who is  the father-in-law  of accused no. 10 had received as many as  10 injuries mostly on vital parts of the body and accused no. 2 about  50,  years  old had also  been  subjected  to  severe beating.  In a situation like this it is not possible for an average  person  whose  mental  excitement  can  be   better imagined  than  described, to weigh the position  in  golden scales  and it was, in our opinion, wellnigh impossible  for the person placed in the position of accused no. 10 to  take a   calm  and  objective  view  expected  in  the   detached atmosphere  of  a  court, and  calculate  with  arithmetical precision  as to how much force would effectively serve  the purpose  of selfdefence and when to stop.  It  appears  that the  persons  against whom the gun was used  were  the  real aggressors from whom accused no. 10, agitated in mind as  he must be at that time, apprehended grave danger to the  lives of the other accused persons and ultimately to himself.   We are,  therefore,  satisfied that accused no.  10  was  fully justified  in  using  his gun in exercise of  the  right  of private  defence against the party of the  prosecution  wit- nesses who had come to the spot in support of the  occupiers to  use force in removing the bund and who actually did  use it  and  mercilessly beat up the accused  persons  and  that accused no. 10 did-not exceed this right. The  fact  that the plea of self-defence was not  raised  by accused no. 10 and that he had on the contrary pleaded alibi does not in our view, preclude the Court from giving to  him the  benefit of the right of private defence, if, on  proper appraisal of the evidence and other relevant material on the record, the Court concludes that the circumstances in  which he found himself at the relevant time gave him the right  to use  his  gun  in exercise of this  right.   When  there  is evidence  proving  that  a  person  accused  of  killing  or injuring  another  acted  in the exercise of  the  right  of private  defence  the  Court  would  not  be  justified.  in ignoring  that  evidence and convicting the  accused  merely because  the  latter has set up a defence of alibi  and  set forth  a plea different from the right of  private  defence. The  analogy of estoppel or of the technical rules of  civil pleadings  is, in cases like the present, inappropriate  and the  Courts  are expected to administer the law  of  private defence in a practical way with reasonable liberality so  as to  effectuate its underlying object, bearing in  mind  that the  essential basic character of this right  is  preventive and  not  retributive.  The approach of the High  -Court  in this  matter  seems to us to be erroneous.   We  accordingly allow the appeal and acquit the appellants. V.P.S.                 Appeal allowed. 440