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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