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CASE NO.: Appeal (crl.)  1150 of 2004

PETITIONER: Triloki Nath & Ors.                                              

RESPONDENT: State of U.P.                                                            

DATE OF JUDGMENT: 28/10/2005

BENCH: S.B. Sinha & R.V. Raveendran

JUDGMENT: J U D G M E N T WITH

CRIMINAL APPEAL NOs. 1171, 1172 and 1173 OF 2004

S.B. SINHA,  J :

       These appeals arising out of a common judgment and order dated 22nd  April, 2004 passed by the High Court of Judicature at Allahabad in Crl.  Appeal No. 660 of 1981 and Crl. Appeal No.668 of 1981 were taken up for  hearing together and are being disposed of by this common judgment.  Criminal Appeal No.1150 of 2004 is by Triloki Nath, Krishna Chandra  Singh, Shashi Kant and Sahdev (Accused Nos.6, 5, 7 and 8 respectively).   Criminal Appeal Nos.1173, 1172 and 1173 of 2004 are respectively by  Kunwar Prahald Singh (Accused  No.1), Jitendra alias Mister (Accused  No.2) and Gopal (Accused No.3).  One of the eight accused namely,  Chhanga has not filed any appeal.   

BACKGROUND FACT:         The residents of village Devanand Pur had been performing "Holika  Dehan" for a long time on Plot No. 399, which is said to be a banjar land.   Kunwar Prahlad Singh became the owner of the said plot.  He tried to  enclose the said plot by a ’Mend’(Fence).  An objection thereto was raised  by the villagers including Laxmi Shankar Srivastava (PW-3); a complaint  wherefor was made pursuant whereto an intervention was made by the  police.

FIRs RELATING TO INCIDENT:

       On the Basant Panchami day, the villagers allegedly fixed  ’Dhah’ as  a symbol of Holi on the said plot and started collecting fuel wood thereupon.   On the said day at about 12 noon, Khuddey, PW-4 while going to the flour  mill found the Appellants herein removing the wood.  The accused Jitendra   armed with a gun and the remaining accused armed with lathis were present.   Khuddey, PW-4, servant of Laxmi Shankar Srivastava, allegedly forbade  them from doing so whereupon he was chased.  Near the Hata of Pran,  Laxmi Shankar Srivastava (PW-3), Sahjadey Jeevanlal (PW-2) Shabbir and  other persons of the village arrived.  Laxmi Shankar Srivastava allegedly  had asked the accused as to why they have been chasing his servant. Triloki  Nath exhorted his companions saying ’Maro Sale Ko’ whereupon Gopal  hurled a lathi blow on PW-3’s head.  Shashi Kant accused gave the second  lathi blow on his wrist.  Kunwar Prahlad Singh and Sahdev also assaulted  him with lathis.  Chhanga and Krishna assaulted Sahjadey.  Khuddey (PW- 4) is said to have hurled lathi blow in defence of Laxmi Shankar Srivastava  (PW-3).  He thereafter raised hue and cry  which attracted Nanhe  (the  deceased),  and others.  Nanhe raised alarm saying that Lala (thereby  meaning Laxmi Shankar Srivastava) was being killed whereupon Triloki

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Nath exhorted Jitendra asking him to kill him as he professes himself to be a  great helper of Laxmi Shankar.  Responding thereto Jitendra fired a shot at  Nanhe.  He fell down and died.   

       A First Information Report was lodged by Dinesh Kumar Srivastava  (PW-1) at about 2 p.m. on the same day.  

A First Information Report was also lodged by Kunwar Prahlad Singh  Srivastava (Accused No.1)  at about 4.30 p.m. against Shahjadey, Bansidhar,  Khuddey Chamar, Nanhe Chamar, Hira Passy, Shabbir and Laxmi Shankar  purported to be for commission of an offence under Section 147/323/352 of  the Indian Penal Code alleging that Dinesh Kumar under the pretext of  performing Holika Dahan placed some waste wood at Plot No. 399 and kept  on adding thereto.  He went to the said plot along with his sons Mister alias  Jitendra and Gopal at about 11 a.m. and  removed the said waste wood from  his land.  When they were returning,  Dinesh Kumar came on his motorcycle  with a child.  He  allegedly stopped his motorcycle and called his servant as  also Shahjaddey and Bansi Brahman and exhorted "Jane na paye, mar pit  low" whereupon they ran towards their house.  On the way, Khuddey  Chamar, Nanhe Chamar, Hira Passi, Shabbir, etc. came from the side of the  east and south and  surrounded him.  The accused persons attacked Triloki.   Sahdev and other persons ran towards him for his  rescue and when they had  been running to save their lives, they heard a sound of gun-fire from behind.

INJURIES ON THE ACCUSED:         Injuries suffered by Triloki Nath in the said incident are as under:

"(1) Lacerated wound, 6 cm x = cm x scalp deep on the  left side of scalp, 6 cm above ear. (2) Abraded contusion, 6 cm x 3 cm on the back of right  shoulder."

       Injuries suffered by Sahdev are as under:

"(1) Lacerated wound, 2.5 cm x = cm x scalp deep, 3 cm  behind left ear.

(2) Abrasion, 1 cm x 1.5 cm on the front of left knee."

       Before we advert to the submissions made by  the learned counsel for  the parties, we may notice some of the findings of the Trial Court and the  High Court respectively.  

FINDINGS OF TRIAL COURT : (i)     "\005Kunwar Prahlad Singh accused had enough cause of  grievance against Laxmi Shanker Srivastava P.W.3 and  Dinesh Kumar Srivastava P.W.1.  Undisputedly Kunwar  Prahlad Singh accused had his possession over plot No.  399 in dispute and the same had also been proved by the  Khasra entries for the period preceding the date of  occurrence, and such khasra entries show the crop also of  Kunwar Prahlad Singh accused in the plot in dispute."

(ii)    "Thus, the defence case that the accused Triloki and  Sahdeo had also received injuries in the same occurrence  is also proved beyond doubt."

(iii)   "As such, I find that the cause of grievance lay with the  accused and not with the prosecution and it is quite  probable that the accused Kunwar Prahlad Singh might

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have collected at the land in dispute fully armed with a  view to effectively remove the fuel wood of Holi on the  plot in dispute and to meet all resistance against it."

FINDINGS OF HIGH COURT :

(i)     "From the very inception the only logical inference is  that those accused had gone well prepared with lathies  and fire arm to deal with the other side who were  resisting removal of holika woods and they knew well  that the consequences may be of death merely because  other accused did not have deadly weapon and except  lathi, which is also one of the deadly weapon and is  capable of causing death, it is none other was caused  death merely a chance or incident..."

(ii)    "\005It was found that the plot No. 399 was in possession  of Kunwar Prahlad Singh on the preceding day of  occurrence and he had grudge against these people who  were acting against his interest by keeping Holika.   According to prosecution witnesses P.W.1 to P.W.4 it is  evident that fuel woods for Holi had been stocked on the  said plot.  There cannot be any grievance of P.W.1 D.K.  Srivastava regarding this as neither P.W.1 nor P.W.3  claimed this land adversely against their personal rights.   Their only role was that P.W.1 D.K. Srivastava and  P.W.3 L.S. Srivastava were playing leading role in  burning of Holi.  Therefore, it was the land-holder who  had felt aggrieved.  There is also no suggestion that the  woods were stocked at the time of incident nor there is  any case that Laxmi Shankar Srivastava, P.W. 3 and his  associates had collected arms to resist such removal of  Holi.  There is probability that the defence side had  collected arms to take revenue (sic) or with a view of  removal of fuel wood of Holi and to meet the resistance  against it."

(iii)   "Learned trial court has held that if Nanhe was killed in  the occurrence and the same was in the light of private  defence, such contention of the learned counsel for the  accused is absolutely false firstly because there is no case  that the occurrence took place on or near the land in  dispute to take possession over it place of Holi or Nanhey  had gone near the land to take possession.  Secondly, the  fight had taken place not at the plot in dispute but at a  place the distance of which has been stated by Khuddey,  P.W.4 by an uncontroverted testimony, at 300 paces  away from the disputed land.  Thirdly, it comes out from  the evidence that Kunwar Prahlad Singh accused had  already thrown away fuel woods from the plot in dispute  before the occurrence took place and according to his  defence version he was proceeding from that place to his  house and, therefore, finding of the trial court has  sufficient reasons that the accused have not acted in their  self-defence."

       Upon completion of the trial, Jitnedra with other seven accused were  found guilty of commission of the offence under Section 302/149 for  commission of murder of Nanhe,  under Section 307/149 for causing injury  to Laxmi Shankar Srivastava and under Section 147 of the Indian Penal  Code for rioting

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       The Trial judge by an order dated 17.9.1981 convicted and sentenced  the accused to  imprisonment for life for the offence of murder. The said  judgment has been upheld by the High Court.

SUBMISSIONS:         Mr. S.R. Bajawa, learned senior counsel appearing on behalf of the  Appellants at the outset drew our attention to the fact that the injuries  received by Laxmi Shankar Srivastava and Sahjadey are more or less similar  to those received by Triloki Nath and Sahdev.  Such injuries received by the  said Appellants, it was contended, must have given rise to an apprehension  in their minds that one of them may be killed and as such the accused had  rightly exercised their right of private defence.  Exercise of such right of  private defence could not have been denied to the accused persons on the  reasonings of the High Court, it was submitted, in view of the fact that  although the place of occurrence was 300 paces away from the plot in  question, both the incidents of removal of trespass from Plot No. 399 as also  the occurrence in question took place as a part of the same transaction.   

       The learned counsel furthermore drew our attention to the post- mortem report and submitted on the basis thereof that as blackening and  tattooing and scorching were found, the same could not have been caused  from a double barrel muzzle loaded gun which is said to be  the weapon of  offence.   

       Mr. Bajawa would submit that the impugned judgments of conviction  of sentence are unsustainable as:

(i)     Witnesses have come up with half truth. (ii)    The actual reason for putting the woods on the plot in question was  not disclosed. The land was not lying fallow as wheat crop was grown  thereon and, thus, the accused could not have been dispossessed  therefrom. (iii)   The complainants sent Khuddey to tease the accused and they had  been waiting at some distance.  (iv)    The accused had a right to remove the wood piled on their land. (v)     They  had no animus against Nanhe, deceased and, thus, they could  not have been convicted under Section 302/149 of the Indian Penal Code. (vi)    There was no triggering point for firing at Nanhe except his so-called  shouting that the accused persons would kill Lala meaning thereby  Laxmi Shankar Srivastava, which cannot be relied upon. (vii)   Only one shot was fired from the gun as of necessity, as two of the  accused persons were seriously injured.  (viii)  PW-2, the only independent witness, is not at all reliable. (ix)    Admittedly, Khudday had also come with a lathi which established  that the complainant party was the aggressor.   (x)     Khudday did not suffer any injury which shows that the accused  persons were not the aggressors. (xi)    Unless Khudday was assaulted, no unlawful assembly could have  been caused.  (xii)   In any view of the matter, the entire incident took place at the spur of  the moment.

       Mr. R.K. Kapoor, learned counsel appearing on behalf of the  Appellant in Criminal Appeal Nos. 1171 and 1172 of 2004 supplemented the  submissions of Mr. Bajawa urging: (i)     The accused persons were not having any grudge against the  deceased. (ii)    There was no motive for  killing. (iii)   The complainants were only chased from the land, which by itself did  not constitute an offence. (iv)    Kunwar Prahlad Singh and Gopal did not give any exhortation for the  death of Nanhe and as such their conviction under Section 302/149 is  wholly unsustainable. (v)     The occurrence took place because of the interference with  

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possession of the Appellants in plot in question by Khuddey.  As the  entire incident took place within 2-3 minutes,  there was hardly any  occasion to form an unlawful assembly and a common object on the  spot. (vi)    There was no intention to kill Nanhe and as such for his death, others  are  not liable.          Mr. Vijay Singh, learned counsel appearing on behalf of Shashikant in  Criminal Appeal No. 1150 of 2004 drew our attention to the fact that he  allegedly gave a lathi blow on the left wrist of Laxmi Shankar Srivastava  whereas in his cross-examination he stated that such injury was caused by  Gopal and submitted  that in that view of the matter he could not have been  held guilty.  He further submitted that sufficient material had been brought  on records to show that an election dispute was going on between the  parties.

       Mr. N.S. Gahlout, learned counsel appearing in behalf of the State, on  the other hand,  submitted  that : (i) having regard to the statements made in   First Information Reports lodged by both the parties,  the time of occurrence  as well as the place of occurrence must be held to have been admitted; (ii)  the death of Nanhe and the injuries suffered by Laxmi Shankar Srivastava  and Sahjaddey being not denied and disputed, it was for the Appellants to  show that the defence version was probable; (iii) in view of the fact that both  Khuddey and Laxmi Kant Srivastava were injured witnesses, their presence  at the place of occurrence cannot be disputed and in that view of the matter  there is no reason as to why their testimonies should not be relied upon; and   (iv) that from the First Information Report lodged by Kunwar Prahlad Singh,  it would appear that the firing from a gun was admitted which being wholly  unnatural would lead to an inference that the Appellants were the aggressors.   Our attention in this behalf has also been drawn to setting up of another  story by the Appellants in paragraph 9 of the S.L.P. which reads as under:

"\005As an altercation ensued, Khuddey attacked petitioner  No. 1 and 4.  Petitioner No. 1 and 4 wielded lathi in their  defence and a free fight ensued.  Prahlad Singh tried to  escape by running away from the scene of occurrence but  from one side, Dinesh Kumar aimed his gun at Prahlad  Singh and from the other side, the brother of Khuddey  namely Nanhe confronted him.  Prahlad Singh sat down  to avoid the bullet fearing a shot from the gun of Dinesh  Kumar and the bullet fired by Dinesh Kumar hit Nanhe  and Nanhe died on the spot."                          It was submitted on the aforementioned premise that the  Appellants  have raised defences which are mutually destructive.  

       Drawing our attention to the findings of the learned Trial Judge as  also the High Court, it was argued that it is apparent that the accused persons  were the aggressors and in that view of the matter they cannot claim any  right of private defence and in particular having regard to the fact that :

(i)     from the plot in question, wood had already been removed. (ii)    place of occurrence is not the land in question but 300 paces away  therefrom. (iii)   If the version of the accused persons is to be accepted that somebody  has fired from behind, it cannot be said that they have done so in self- defence.   

(iv)    Such statements being vague no positive case of self-defence has been  made out.   

       It was submitted that in villages normally the servants carry a lathi  and in that view of the matter it cannot be said that the accused persons came  heavily armed.  Drawing our attention to the statements of Khuddey, PW-4  wherein he categorically admitted that Triloki and Sahdev received injuries  from the lathi which he used in defence, it was submitted that in that view of

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the matter it could be said that the prosecution did not come out with the  truth.   

       As regard, formation of common object, the learned counsel would  submit that the same can be formed on the spot.

ADMITTED FACTS:         The admitted facts are:

(i)     That the plot in dispute was in possession of accused Kunwar Prahlad  Singh. (ii)    There are two factions in the village.   (iii)   The complainants were piling up wood on the occasion of Holi which  was removed by the accused persons. (iv)    Two persons on the side of the accused, viz., Triloki Nath, Sahdev  suffered lacerated wound on their heads.The said injuries were simple  ones.   (v)     Nanhe died out of a gun shot injury.  Laxmi Shankar Srivastava and  Sahjadey also suffered lacerated wounds  on their heads. (vi)    The complainant and others who were accused in the counter FIR  have been acquitted and the judgment of acquittal has been affirmed  upto this Court.  

ANALYSIS:                The submissions of the learned counsel for the parties are required to  be considered in the backdrop of the aforementioned admitted facts.   

       The Appellants at no stage disputed the correctness or otherwise of  the autopsy report in respect of the deceased Nanhe and injuries sustained by  Laxmi Shankar Srivastava and Sahjadey..  The relevant portion of the  autopsy report reads as under:

"       ***             ***             *** (1)     Multiple fire arm wounds of entry, in an area of 10  cm x 7 cm on the front of neck and upper part of chest in  middle, smallest being 2/10 cm x 2/10 cm and biggest  being > cm x > cm.  Blackening and tattooing present  searching (sic) present.

***             ***             ***

(c)     Laryex, Trachea  and Broachi Trachea and larvex  ruptured at places 4  pallets recovered.

(d)     Right Lung Ruptured at apex &  contains haematones 3  pallets recovered

(e)     Left Lung Ruptured atapex &  contains haematomes 3  pallets recovered.

***             ***             ***

(h)     Large vessels Injuries on both sides  ruptured in neck.   Jugular weni on (L)  side ruptured 5 pellets

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recovered."

       Laxmi Shankar Srivastava at the time of incident was about 74-75  years old.  From the medico-legal evidence, it appears that he received a  lacerated wound 6 cm x = cm x bone deep on the top of skull, 12.5 cm  above nasion and he had a fracture on the outer side of forearm 2 cm above  wrist joint and abrasion on the front of left leg 10 cm above ankle.

       Having regard to the nature of injuries suffered by Laxmi Shankar  Srivastava, a concurrent finding of fact has been arrived at that the  Appellants had an intention to murder him.  There is no reason to differ  therewith.

       Injuries said to have been suffered by Sahjadey, as would appear from  the medical report proved by PW-5 are  as under:

"(1)    Lacerated wound 5 cm x 1 cm x Bone deep on the  right side, 7 cm. above ear.

(2)     Contusion, 8 cm x 1.5 cm over right lip."

       Both PWs-3 and 4 were eye-witnesses.  Both of them, even according  to the Appellants, were present at the time of occurrence.  Laxmi Shankar  Srivastava (PW-3) was also an injured witness.  Even in the first information  report lodged by Kunwar Prahlad Singh both of them had been named.   Their presence at the place of occurrence, therefore, cannot be disbelieved.   The said witnesses have fully supported the prosecution case.   

       Apart from some minor discrepancies like that at one place he  stated  "May be that the lathi used by Khuddey hit Triloki" and immediately  thereafter he stated "I did not see Khuddey using lathi on Triloki.  At the  time of occurrence I did not see Triloki and Sahdev getting injured or  bleeding.  I did not see any lathi blow having been made on Sahdev",  nothing else has been pointed out to reject the testimony of PW-3.  We  would notice hereafter the statements of PW-4 as regards the role played by  him.  We do not find any infirmity in his evidence to discard the same.  Both  of them are natural witnesses.

PW2 is also one of the named eye-witnesses. He is an independent  witness.  His presence at the time of occurrence cannot be doubted as he was  cited at one of the witnesses in the First Information Report which was  recorded within one and half hour from the time of occurrence.   

       It may be true that there appears to be some contradictions in his  evidence as regard carrying of Laxmi Shankar on his back inasmuch as in  cross-examination he had  stated Ram Shankar carried Laxmi Shankar on his  back, but that by itself may not be a  ground to discard his evidence in  totality.  

       ’Falsus in uno, Falsus in ombibus’ is not a rule of evidence in criminal  trial and it is the duty of the court to disengage the truth from falsehood, to  sift the grain from the chaff.      The said First Information Report was lodged without any delay  whatsoever; particularly having regard to the fact that after the incident the  injured persons were required to be looked after and the distance of the  Police Station from the place of occurrence was about three kilometers.   

SELF-DEFENCE         The law relating to self defence in view of a catena of decisions of this

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Court is now well-settled.  A plea of right of private defence  may be in  respect of property or a person.  Section 99 of the Indian Penal Code,  however, mandates that the right of  private defence, in no case, extends to  inflicting of more harm than  necessary.  Section 100 of the Code provides  that the right of private defence of the body extends  under the restrictions  mentioned in Section 99 to the voluntary causing of death or of any other  harm to the assailant if the offence which occasions the exercise of the right  be of any of the descriptions enumerated therein.   It is essential for an  accused to show that there were circumstances giving rise to reasonable  grounds for apprehending that either death or grievous hurt would be caused  to him, burden wherefor lies on him.   

       It is true that while exercising the right of private defence a person is  not expected to weigh in golden scales on the spur of the moment and in the  heat of circumstances, the number of injuries required to disarm the assailant  who is armed with weapons; but it is also true that the right of private  defence cannot be exceeded so as to cause more harm than necessary.   Circumstances, thus, are required to be viewed with pragmatism.  It is also  well-settled that a right of private defnece is unavailable to the aggressor.   The need to act must not have been created by the conduct of the accused in  the immediate context of the incident which was likely or intended to give  rise to that need.

       It is not necessary to dilate on the matter any further as in Bishna @  Bhiswadeb Mahato & Ors. vs. State of West Bengal [Criminal Appeal  Nos.1430-1431 of 2003], the issue has been discussed at some length.

       The case at hand has to be considered having regard to the principles  of law, as noticed hereinbefore.  We have seen that in what circumstances  and to what extent the right of private defence can be exercise would depend  upon the fact situation obtaining in each case.   

       The Appellants being in possession of the disputed land, were entitled  to protect it but having regard to the past practice of performing Holika  Dahan on the land in question on the eve of Holi which takes place once in a  year, the complainants party evidently did not want to dispossess the  accused persons permanently.  In law, however, the accused persons could  resist trespass.  Even a trespass has been committed, in certain situations,  right of private defence can be used to eject the trespassers.   

In this case, however, the incident took place 300 paces away from the  land in question.  Laxmi Shankar Srivastava had gone to chakk.  At the time  of occurrence he was coming back from his chakk.  It is, therefore, not  correct to contend that he had sent the servant to the plot in question with a  view to tease the Appellants and was waiting at some distance with others.   He, therefore, could not have known any part of the occurrence which took  place till then.  According to the Appellants, they were attacked upon exhortation of  Laxmi Shankar Srivastava.  As would be noticed from the discussions made  hereinafter that the said stand of the Appellants cannot be said to be correct.    It has not been shown that apart from Khuddey any other person was  carrying any weapon.  On the other hand, all the Appellants were armed with  lathis except Jitendra who was carrying a gun.  There is no material on  records to show that there had been any overt act on the part of the  complainant.   In the above circumstances, it is unlikely that the complainant  would ask others to assault the Appellants.   

       Both the learned Sessions Judge and the High Court came to a  concurrent finding of fact that the incident took place after Khuddey was  chased.  It is possible that as regard the right of the villagers to perform  Holika Dahan or because of old enmity, the incident occurred but it is  clearly not a case of free-fight amongst two groups of people, both  being  armed with deadly weapons.  Thus, no case of self-defence has been made  out.

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       PW-4  categorically stated in his examination-in-chief that he used  lathi in defence only after Gopal and Shashikant assaulted Laxmi Shankar  Srivastava and Sahjaddey. In cross-examination, the said witness accepted  that Triloki and Sahjaddey received injuries from the lathi which he had  used in defence, stating :

"\005I was shielding against the attack of the accused on  my lathi and was also making the attacks.   Approximately, I shielded against 2-4 blows of lathi.  In  defence I had attacked Triloki.  I had given one lathi  blow.  I had made one attack with my lathi on Sahdev  also..."

       He further categorically stated that none other than him and the  accused had lathi/danda in their hands.  We find no reason to disbelieve his  testimony.                  The Trial Court and the High Court have found that the nature of  injuries on the person of Triloki Nath and Sahdev were too trivial.  No case  has also been made out, as suggested, that Dinesh Kumar (PW-1) was armed  with a gun.  He was in fact not present at the time of incident.  No such  suggestion was given to him that he was present at the time of incident with  a gun.  Such a suggestion had not been given also to any other witness.   Non-sustenance of any injury by Khuddey is also not of  much significance.   He in his evidence, as noticed hereinbefore, has clearly stated as to why he  had to wield lathi and how he had been defending himself and had been able  to hit blows on Sahdev and Triloki Nath.

       In the First Information Report lodged by Kunwar Prahlad Singh, it is  alleged that they had run away when a sound of gun fire was heard.  It is  interesting to note that as regard the said incident, Dinesh Kumar was also  said to have lodged a First Information Report but the same was not brought  on record.                We have noticed hereinbefore that even in the First Information  Report it has been admitted that the accused persons had also received  injuries as a lathi was wielded.  PW-3 although stated that he had not seen at  the time of occurrence Triloki or Sahdev getting injured but he accepted that  "May be that the lathi used by Khuddey hit Triloki".  Merely a suggestion  was given to PW-3 on behalf of the Appellants that Triloki Nath and Sahdev  tried to mediate between the two groups and after they started beating  Triloki Nath and Sahdev with lathi and in the melee Triloki Nath and Sahdev  in turn assaulted others, but  the same was denied.  

ANALYSIS OF EVIDENCE         The prosecution has fully established that Khuddey while going to the  floor mill found the Appellants herein removing the wood, and asked them  not to do so.  He was, of course, armed with a lathi.   Khuddey at that time,  thus, was not causing any trespass. He did not physically prevent the  Appellants from removing the trees.  He even did not prevent them from  reentering or otherwise obstructing them physically from possessing the  land.  He was chased away.  He came near the Hata of Pran which is about  300 paces away from Plot No.399.  At that point of time in all probabilities   Laxmi Shankar Srivastava (PW-3) and Sahjadey, (PW-2), Shabbir and other  persons arrived there.  Laxmi Shankar Srivastava had only asked the  Appellants as to why they had been chasing his servant, whereupon Triloki  Nath exhorted his companions to assault him resulting in the incident.  If   Khoddey’s evidence is believed, he had used his lathi to prevent assault on  his master.  He had used his lathi both by way of defnece as well as  assaulting two of the accused parties.  The right of private defence in the  aforementioned situation could not have been exercised for preventing  trespass into the property or for evicting the trespassers.  By the time  Khuddey reached near the land,  the Appellants were already in possession  of the land as they had removed the wood, which had been placed on the  land by the complainant party.

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       The Appellants, therefore, were aggressors.  The right of private  defence cannot, thus, be claimed by them.  [See  Munney Khan vs. State of  Madhya Pradesh (1971) 1 SCR 943]

       In A.C.Gangadhar vs. State of Karnataka [AIR 1998 SC 2381], the  Appellant was said to have caused an injury with an axe on the head of PW- 5 when they  protested against the accused from cutting the tree.  The right  of private defence claimed by the accused was denied opining :

"3. The learned counsel for the appellant, however,  submitted that even if it is believed that A-1 had caused  grievous hurt, he could not have been held guilty either  under Section 326 or for any other offence as the said  injury was caused by him in exercise of the right of  private defence. 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. We, therefore, see no reason to  interfere with the order passed by the High Court\005"

In Rajesh Kumar  vs. Dharamvir and Others [(1997) 4 SCC 496], it is  stated :    "20. Section 96 of the Indian Penal Code provides that  nothing is an offence which is done in the exercise of the  right of private defence and the fascicle of Sections 97 to  106 thereof lays down the extent and limitation of such  right. From a plain reading of the above sections it is  manifest that such a right can be exercised only to repel  unlawful aggression and not to retaliate. To put it  differently, the right is one of defence and not of requital  or reprisal. Such being the nature of right, the High Court  could not have exonerated the accused persons of the  charges levelled against them by bestowing on them the  right to retaliate and attack the complainant party."

       Therein, the prosecution case was as under :  

"3. According to the prosecution case on the same  day at or about 4.30 p.m. the five accused and Lachhi  Ram started demolishing the inner boundary wall of the  shop in order to make it a part of their own house. On  hearing the sound of pounding on the wall Yogesh went  to the lane in front of their house and asked the accused  not to demolish the wall. Immediately thereafter accused  Dharamvir, armed with a lathi, and the other four accused  and Lachhi Ram came out of the shop with knives and  started inflicting blows on Yogesh with their respective  weapons. On hearing the alarms raised by him when  Rajesh (PW 13), his father Dinesh Chander, and his  grandfather Suraj Bhan came forward to his rescue,  Subhash, Lachhi Ram and Suresh, assaulted Rajesh with  their knives. All the five accused persons and Lachhi  Ram also assaulted Dinesh Chander and Suraj Bhan  causing injuries on their person. At that stage, Dinesh  Chander fired a shot from his licensed gun, which hit  Lachhi Ram. In the meantime Krishna Devi (PW 14),  mother of Rajesh, had also reached the spot. Thereafter  the five accused persons ran away with their weapons.  Though Yogesh had succumbed to his injuries there, his  body was taken to the Local Primary Health Centre,

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where the injured Dinesh Chander, Suraj Bhan and  Lachhi Ram were removed for treatment. The injured  Rajesh however first went to Samalkha Police Station to  lodge the FIR."

The Trial Court recorded a finding relying upon the evidence of Rajesh  Kumar (PW-13) and his mother Krishna Devi (PW-14) that the entire  occurrence took place in the lane itself.  The said finding was upset by the  High Court accepting the plea of right of private defence  of person and  property raised by the accused persons in the manner as noticed supra.

       This Court held :

"21. We reach the same conclusion through a  different route even if we proceed on the assumption that  the finding of the High Court that the accused party came  out in the lane and attacked the complainant party after  the latter had damaged the outer door of their house is a  proper one. The offence that was committed by the  complainant party by causing such damage would  amount to "mischief" within the meaning of Section 425  of the Indian Penal Code and, therefore, in view of  Section 105 of the Indian Penal Code the accused would  have been entitled to exercise their right of private  defence of property so long as the complainant party  continued in the commission of the mischief. In other  words, after the damage was done, the accused had no  right of private defence of property, which necessarily  means that when they attacked the complainant party in  the lane they were the aggressors. Consequently, it was  the complainant party \027 and not the accused \027 who was  entitled to exercise the right of private defence of their  persons; and their act of gunning down Lachhi after four  of them were assaulted by the accused party with deadly  weapons would not be an offence in view of Sections 96  and 100 of the Indian Penal Code\005"

       In Mannu and others Vs. State of Uttar Pradesh [AIR 1979 SC 1230],  this Court held that when PW-1 and the deceased therein were going to the  market they had been waylaid and attacked by the Appellants, they cannot  claim the right of private defence.  These decisions apply in all fours to the  facts of this case.

       We may now consider some of the decisions relied upon by Mr.  Bajawa.

       In Harish Kumar and Another Vs. State of M.P. [(1996) 9 SCC 667] a  finding of fact has been arrived at that the court had been deprived of a  truthful account of the first of the two occurrences which had taken place  and figuratively there was a first occurrence which led to the second one.  It  was furthermore found as of fact that some unpleasantness had occurred  earlier wherefor some of the members of the complainant party had kept  being there and others had started assembling in the lane in which the house  of the appellants lay.  In the aforementioned factual scenario, it was held:

"19\005As members of a faction, it is difficult to believe  that they would have come there unarmed and less in  number and be there for no cause, all the more knowing  fully well that amongst the appellants were 2 licensed  weapon-holders. It is alleged by the prosecution that it  was Harish Kumar, accompanied by his companions,  who first stepped forward towards the complainant party,  present near the stone gate. Here then was direct

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confrontation. In the circumstances therefore, the  possibility cannot be ruled out that Harish Kumar,  becoming apprehensive of danger to himself and his  family members chose to be defensive in becoming  offensive, because of the first incident; without having  the requisite intention to cause the murder of any  particular person. He therefore fired but only once and  the fire was not repeated. There was no indiscriminate  firing. His act would therefore, be termed as one in  exercise of the right of private defence of person entitling  him to acquittal..."

       In Yogendra Morarji Vs. State of Gujarat [(1980) 2 SCC 218] the fact  situation obtaining was absolutely different.  The accused \026 appellant, a  businessman, had purchased land in a nearby village and employed the  deceased and a few others to dig a well thereupon.  A dispute regarding  payments due to the workers culminated in their collectively approaching  the accused when he visited the village and was staying in his Manager’s  house.  During course of their discussion, a heated altercation took place  which was resented by the workers.  They collectively were standing on a  road and lingered near a field for about an hour.  The accused started on his  return journey at about 9 p.m. and when his station-wagon reached near that  field, the deceased and his companions raised their hands signaling him to  stop the vehicle whereupon the accused slowed down the vehicle and fired  three rounds in quick succession from his revolver without aiming at any  particular person.  He went to the police station and surrendered his  revolver.  He was acquitted by the Trial Court but convicted by the High  Court for commission of an offence under Section 304 of the Indian Penal  Code.  On appeal, this Court held that having regard to the fact that he had  fired three rounds, he must be held to have exceeded his right of private  defence.

       In Moti Singh Vs. State of Maharashtra [(2002) 9 SCC 494], this  Court merely held that the right of private defence cannot be denied merely  because the accused adopted a different line of defence particularly when the  evidence adduced by the prosecution would indicate that they were put  under a situation where they could reasonably have apprehended grievous  hurt even to one of them.

       In Mahabir Choudhary Vs. State of Bihar [(1996) 5 SCC 107], the law  has been laid down in the following terms:

"11. The emerging position is, you have the first degree  of right of private defence even if the wrong committed  or attempted to be committed against you is theft or  mischief or criminal trespass simpliciter. This right of  private defence cannot be used to kill the wrongdoer  unless you have reasonable cause to fear that otherwise  death or grievous hurt might ensue in which case you  have the full measure of right of private defence."

       There cannot be any dispute as regard aforementioned proposition of  law.

       In State of U.P. Vs. Ram Niranjan Singh [(1972) 3 SCC 66], this  Court in the facts and circumstances obtaining therein was of the opinion  that two incidents which have taken place on 7th December, 1965 were  integrated ones and, thus, the same right of private defence the Respondent  had for causing the death of the deceased No. 1 was available to him in  respect of the deceased No. 2.  The said decision has no application in the  present case.                  In Subramani and Others Vs. State of T.N. [(2002) 7 SCC 210] again

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a positive case of exercise of right of private defence was made out.  Therein  the question was as to whether the accused had exceeded their right of  private defence.  They were held to have initially acted in exercise of their  right of private defence of property and in exercise of the right of private  defence of person later and in that factual backdrop, it was held:

"21\005 In the instant case we are inclined to hold that the  appellants had initially acted in exercise of their right of  private defence of property, and later in exercise of the  right of private defence of person. It has been found that  three of the appellants were also injured in the same  incident. Two of the appellants, namely, Appellants 2 and  3 had injuries on their head, a vital part of the body.  Luckily the injuries did not prove to be fatal because if  inflicted with more force, it may have resulted in the  fracture of the skull and proved fatal. What is, however,  apparent is the fact that the assault on them was not  directed on non-vital parts of the body, but directed on a  vital part of the body such as the head. In these  circumstances, it is reasonable to infer that the appellants  entertained a reasonable apprehension that death or  grievous injury may be the consequence of such assault.  Their right of private defence, therefore, extended to the  voluntarily causing of the death of the assailants."

       The claim of right of private defence was, thus, not available to the  Appellants as : (1) occurrence had taken place 300 paces away from Plot  No.399 of Village Devanand Pur; (ii) The Appellants were aggressors; and  (iii) All of them were armed and in particular Jitendra was having a gun.   

       In fact Nanhe exercised and could in the facts and circumstances of  the case his right of private defence in assaulting Triloki Nath and Sahdev. INJURIES ON THE ACCUSED:         Although the injuries suffered by Triloki Nath and Sahdev may be at  the same place on their persons as of Laxmi Shankar Srivastava and  Sahjadey but they are not similar.  The injuries suffered by Triloki Nath and  Sahdev are simple in nature. Even in the first information report  also  Section 323 was mentioned.  The injuries suffered by Laxmi Shankar  Srivastava and Sahjadey, on the other hand, were grievous in nature.  The  Appellants were not only charged under Section 326 of the Indian Penal  Code but also under Section 307 thereof.  They have been found guilty of  commission of the said offences by both the courts.    

       It is not the law that prosecution case shall fail only because injuries  on the person of the accused have not be explained.  There is a plethora of  decisions to show that  to show that in certain situation it is not necessary to  explain the injuries on the person of the accused.

       In Laxman Singh  vs. Poonam Singh & Ors. [(2004) 10 SCC 94] , it  was observed:

"7\005 But mere non-explanation of the injuries by the  prosecution may not affect the prosecution case in all  cases. This principle applies to cases where the injuries  sustained by the accused are minor and superficial or  where the evidence is so clear and cogent, so independent  and disinterested, so probable, consistent and  creditworthy, that it far outweighs the effect of the  omission on the part of the prosecution to explain the  injuries. (See Lakshmi Singh v. State of Bihar 6.) A plea  of right of private defence cannot be based on surmises  and speculation. While considering whether the right 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

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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\005"

       Yet again in Chacko alias Aniyan Kunju and Others Vs. State of  Kerala [(2004) 12 SCC 269],  

"7\005 Undisputedly, there were injuries found on the body  of the accused persons on medical evidence. That per se  cannot be a ground to totally discard the prosecution  version. This is a factor which has to be weighed along  with other materials to see whether the prosecution  version is reliable, cogent and trustworthy. When the  case of the prosecution is supported by an eyewitness  who is found to be truthful as well, mere non-explanation  of the injuries on the accused persons cannot be a  foundation for discarding the prosecution version.  Additionally, the dying declaration was found to be  acceptable."

       In Kashiram and Others Vs. State of M.P. [(2002) 1 SCC  71],whereupon Mr. Bajawa relied upon,  a 3-Judge Bench of this Court was  satisfied that a case of private defence has been made out by the Appellants  therein.  The High Court in that case did not record any specific finding.   The Court referred to its earlier decision in Dev Raj Vs. State of H.P. [1994  Supp (2) SCC 552] wherein it was held that where the accused received  injuries during the same occurrence in which the complainants were injured  and when they have taken the plea that they acted in self-defence, that  cannot be lightly ignored particularly in the absence of any explanation of  their injuries by the prosecution.

       Vajrapu Sambayya Naidu and Others Vs. State of A.P. and Others  [(2004) 10 SCC 152] is distinguishable on facts.  Therein a finding of fact  was arrived at that not only the complainant’s decree for eviction was  obtained against the informant, actual delivery of possession was also  effected and accused No. 13 came in a possession of land in question.  In  that context, this Court observed that the complexion of the entire case  changes because in such an event the Appellants cannot be held to be  aggressors.

       No decision relied upon by the Appellants lays down a law in absolute  terms that in all situations injuries on the persons of the accused have to be  explained.  Each case depends upon the fact situation obtaining therein.

       Detailed discussions on this question have again been made in Bishna  @ Bhiswadeb Mahato (supra) and in that view of  the matter, it is not  necessary to dilate thereover.   

       We are of the considered opinion that the injuries on the accused have  sufficiently been explained and, thus, it was not necessary for the  prosecution to adduce any further evidence. [See  Takhaji Hiraji vs. Thakore  Kubersing Chamansing and Others  (2001) 6 SCC 145]                     COMMON OBJECT         A concurrent finding of fact has been arrived at by both the courts.   Nothing has been pointed out to show as to why this Court should take a  different view.  When a large number of persons assembled  with a gun and  other weapons having in mind the dispute over the land in question, they  must be held to have found common knowledge that by reason of their act,  somebody may at least be grievously injured.   

       For the purpose of attracting Section 149 of the IPC, it is not  necessary that there should be a pre-concert by way of a meeting of the  persons of the unlawful assembly as to the common object.  If a common

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object is adopted by all the persons and shared by them, it would serve the  purpose.

       In Mizaji and another Vs. The State of U.P. [(1959) Supp. 1 SCR  940], it was observed:

"\005Even if the offence committed is not in direct  prosecution of the common object of the assembly, it  may yet fall under Section 149 if it can be held that the  offence was such as the members knew was likely to be  committed. The expression ’know’ does not mean a mere  possibility, such as might or might not happen. For  instance, it is a matter of common knowledge that when  in a village a body of heavily armed men set out to take a  woman by force, someone is likely to be killed and all  the members of the unlawful assembly must be aware of  that likelihood and would be guilty under the second part  of Section 149. Similarly, if a body of persons go armed  to take forcible possession of the land, it would be  equally right to say that they have the knowledge that  murder is likely to be committed if the circumstances as  to the weapons carried and other conduct of the members  of the unlawful assembly clearly point to such knowledge  on the part of them all\005"

       In Masalti Vs. State of U.P. [(1964) 8 SCR 133], a contention on the  basis of a decision of this Court in Baladin Vs. State of Uttar Pradesh [AIR  1956 SC 181] stating that it is well-settled that mere presence in an assembly  does not make a person, who is present, a member of an unlawful assembly  unless it is shown that he had done something or omitted to do something  which would make him a member of an unlawful assembly, that an overt act  was mandatory, was repelled by this Court stating that such observation was  made in the peculiar fact of the case.  Explaining the scope and purport of  Section 149 of the IPC, it was held:

"\005What has to be proved against a person who is  alleged to be a member of an unlawful assembly is that  he was one of the persons constituting the assembly and  he entertained long with the other members of the  assembly the common object as defined by Section 141  IPC Section 142 provides that whoever, being aware of  facts which render any assembly an unlawful assembly  intentionally joins that assembly, or continue in it, is said  to be a member of an unlawful assembly. In other words,  an assembly of five or more persons actuated by, and  entertaining one or more of the common object specified  by the five clauses of Section 141, is an unlawful  assembly. The crucial question to determine in such a  case is whether the assembly consisted of five or more  persons and whether the said persons entertained one or  more of the common objects as specified by Section 141.  While determining this question, it becomes relevant to  consider whether the assembly consisted of some persons  who were merely passive witnesses and had joined the  assembly as a matter of idle curiosity without intending  to entertain the common object of the assembly\005"

       It was further observed:

"In fact, Section 149 makes it clear that if an offence is  committed by any member of an unlawful assembly in  prosecution of the common object of that assembly, or  such as the members of that assembly knew to be likely  to be committed in prosecution of that object, every  person who, at the time of the committing of that offence,

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is a member of the same assembly, is guilty of that  offence; and that emphatically brings out the principle  that the punishment prescribed by Section 149 is in a  sense vicarious and does not always proceed on the basis  that the offence has been actually committed by every  member of the unlawful assembly."

       Yet again in Bhajan Singh and Others Vs. State of Uttar Pradesh  [(1974) 4 SCC 568], it was held:

"13. Section 149 IPC constitutes, per se, a substantive  offence although the punishment is under the section to  which it is tagged being committed by the principal  offender in the unlawful assembly, known or unknown.  Even assuming that the unlawful assembly was formed  originally only to beat, it is clearly established in the  evidence that the said object is well-knit with what  followed as the dangerous finale of, call it, the beating.  This is not a case where something foreign or unknown  to the object has taken place all of a sudden. It is the  execution of the same common object which assumed the  fearful character implicit in the illegal action undertaken  by the five accused."

       In Shri Gopal & Anr. Vs. Subhash & Ors. [JT 2004 (2) SC 158], it  was stated: "15. The essence of the offence under Section 149 of the  Indian Penal Code would be common object of the  persons forming the assembly.  It is necessary for  constitution of the offence that the object should be  common to the persons who compose the assembly, that  is, that they should all be aware of it and concur in  it.    Furthermore, there must be some present and immediate  purpose of carrying into effect the common object.  A  common object is different from a common intention  insofar as in the former no prior consent is required, nor a  prior meeting of minds before the attack would be  required whereas an unlawful object can develop after  the people get there and there need not be a prior meeting  of minds."

       In  Ram Tahal and Others Vs. The State of U.P. [(1972) 1 SCC 136],  a Division Bench of this Court noticed: "\005A 5-Judge Bench of this Court in Mohan Singh v.  State of Punjab has further reiterated this principle where  it was pointed out that like Section 149 of the IPC  Section 34 of that Code also deals with cases of  constructive liability but the essential constituent of the  vicarious criminal liability under Section 34 is the  existence of a common intention, but being similar in  some ways the two sections in some cases may overlap.  Nevertheless common intention, which Section 34 has its  basis, is different from the common object of unlawful  assembly. It was pointed out that common intention  denotes action in concert and necessarily postulates a  pre-arranged plan, a prior meeting of minds and an  element of participation in action. The acts may be  different and vary in character but must be actuated by  the same common intention which is different from same  intention or similar intention..."

       Recently, this Court in Vaijayanti Vs. State of Maharashtra, Criminal  Appeal No. 1100 of 2004 disposed of on 22nd September, 2005 as regard  formation of common intention opined:

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"Section 34 of the Indian Penal Code envisages that  "when a criminal act is done by several persons in  furtherance of the common intention of all, each of such  persons, is liable for that act, in the same manner as if it  were done by him alone".  The underlying principle  behind the said provision is joint liability of persons in  doing of a criminal act which must have found in the  existence of common intention of enmity in the acts in  committing the criminal act in furtherance thereof.  The  law in this behalf is no longer res integra.  There need not  be a positive overt act on the part of the person  concerned.  Even an omission on his part to do something  may attract the said provision.  But it is beyond any cavil  of doubt that the question must be answered having  regard to the fact situation obtaining in each case."

CONCLUSION         The upshot of our aforementioned discussions is that the Appellants  were not entitled to raise the plea of self-defence both in respect of the  property as also the person being themselves aggressors.  The fact that the  prosecution in the counter-case lodged by Kunwar Prahlad Singh has  resulted in acquittal of the complainant party would also have some bearing  in the matter.  We have also found hereinbefore that injuries on the person of  Triloki Nath and Sahdev had sufficiently been explained.  The injuries on  the person of the said Appellants, therefore, loses all significance.         We, therefore, do not agree with the submissions of the learned  counsel for the Appellants that the prosecution has come out only with a half  truth.   

       For the purpose of arriving at a finding of guilt of the Appellants, the  number of shots fired by Jitendra would not be decisive.  Carrying of a lathi  by Khuddey who was responsible for causing injury on Trilokinath and  Sahdev has sufficiently been explained by the learned Sessions Judge as also  the High Court and we do not find any reason to differ therefrom.  Similarly,  non-sufferance of any injury by Khuddey is also not of much significance so  as to tilt the balance in favour of the Appellants.  It is equally incorrect to  contend that no unlawful assembly could have been caused unless Khuddey  was assaulted.  Such a plea, in our opinion, is wholly misconceived.

       We are furthermore of the opinion that non-examination of Sahdev is  not fatal.

       Mr. Bajawa, the learned Senior Counsel appearing on behalf of the  Appellants laid emphasis on the fact that blackening, tattooing and scorching  were found, the same could not have been caused from a double barrel  muzzle loaded gun which was said to the weapon of offence.  The said  contention had not been raised before the Trial Court or before the High  Court.   Even the attention of  the doctor (PW-5) was not drawn to this  aspect of the matter.   Had the doctor been confronted with such a plea, as  has been raised before us,  he might have explained the same.   

In this case having regard to the peculiar facts and circumstances of  this case, we are of the opinion that the Appellants and the other accused  cannot be said to have formed a common object to kill any person, or to  make an attempt in that behalf in view of the manner in which the  occurrence took place.  Their common object appears to be  to teach Laxmi  Shankar Srivastava and others, a lesson for making attempts to burn Holika  by causing grievous injuries to them

The prosecution has been able to establish that on mere asking of  Laxmi Shankar Srivastava as to why the other accused had been chasing his  servant, Triloki exhorted his companions saying ’Maro Sale Ko’,   whereupon  Gopal hurled a lathi blow on PW-3’s head.  Shashi Kant  gave

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the second lathi blow on his wrist.  Kunwar Prahlad Singh and Sahdev also  assaulted him with lathis, whereas Chhanga and Krishna assaulted Sahjadey.   Thus, their common object to cause grievous hurt to some persons on the  side of the complainant party is established.  We are, therefore, of the  opinion that all the accused persons including Jitendra are to be found guilty  under Section 326/149 IPC.   

In the aforementioned premise, a significant aspect of the matter  cannot be lost sight of.  Only Triloki exhorted Jitendra to kill Nanhe who  came to the spot accidentlly.  The exhortation of Triloki was to Jitendra @  Mister,  who was having a gun.  On his exhortation only Jitendra fired from  his gun as a result whereof, he died.  We, therefore, are of the opinion that  Triloki along with Jitendra developed a common intention in that behalf on  the spot.  Both are, therefore, liable to be convicted under Section 302/34  IPC.  

The sentence imposed by the High Court on Jitendra is, therefore,  maintained.  The conviction of other appellants is altered to one under  Section 326/149 IPC.  They are sentenced to undergo seven years’ R.I. and  also to pay a fine of Rs.1000/- each, and in default to further undergo a  simple imprisonment of three months.  No separate sentence, however, is  being passed for commission of an offence under Section 326/149 IPC as  against Jitendra.   

Triloki Nath is said to have expired during the pendency of the appeal.   His appeal is, therefore, dismissed having been abated.

These appeals are dismissed subject to the alteration in the conviction  and sentence, as mentioned hereinbefore.