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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

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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

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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.

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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

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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