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CASE NO.: Appeal (crl.)  603 of 2002

PETITIONER: Vajrapu Sambayya Naidu & Ors.                    

RESPONDENT: Vs. State of A. P. & Ors.            

DATE OF JUDGMENT: 02/09/2003

BENCH: N. Santosh Hegde & B. P. Singh.

JUDGMENT: JUDGMENT

B.P. SINGH, J.

       In this appeal by special leave, the appellants have impugned the  judgment and order of the High Court of Judicature, Andhra Pradesh  at Hyderabad dated 28th September, 2001 in Criminal Appeal No. 650  of 1995. They have challenged their convictions under Sections 304  Part-I, 324 and 148 IPC.  The appellants herein were accused Nos. 2,  3, 5, 6, 7, 8, 9, 10 and 12 before the trial court.  All of them have been  sentenced to undergo one year rigorous imprisonment under Section  148 IPC.  A-2, A-3, and A-7 have been sentenced by the High Court  to undergo three years rigorous imprisonment under Section 304 Part- I IPC. A-7 and  A-10 have been sentenced to undergo one year  rigorous imprisonment under Section 324 IPC.  All of them have also  been sentenced to pay fines under different counts and to undergo  imprisonment in default. As many as 21 persons were put up for  trial  before the III Additional District & Sessions Judge, Visakhapatnam in  Sessions Case No. 25 of 1993.  Pending the trial, accused No. 13 died  and therefore the trial as against him abated. Accused A-11 and A-14  to A-21 were acquitted of the charges levelled against them.  Thus, 11  persons were convicted by the trial court, who preferred an appeal  before the High Court which was dismissed subject to modification of  sentence under Section 304 Part-I IPC which was reduced by the High  Court from seven years rigorous imprisonment to three years rigorous  imprisonment.  A-1 and A-4 though convicted by the High Court have  not preferred appeals to this Court and only the remaining nine  accused  have preferred this appeal.

       The case of the prosecution is that at about 11.30 a.m. on        23rd July, 1992 an incident took place in village Ponnavolu in which  deceased Lanka Gangaraju lost his life and PWs. 1 to 6 were injured.  The accused numbering 21 had formed themselves into an unlawful  assembly and assaulted the deceased and other members of the  prosecution party, namely, PWs. 1 to 6.  It is not in dispute that the  deceased had purchased 2.50 Acres of  land from one Satyalingam,  the brother of Suribabu.  Adjacent to the lands purchased by the  deceased, Suribabu owned 2.50 acres of land which he had sold to      A-13.  The case of the prosecution is that even  the lands sold to A-13  were in the cultivating possession of the deceased as a lessee  despite  the sale of the land in favour of A-13.  There was pending litigation  between the parties relating to the purchase of the land by A-13. The  deceased had raised chilli crop in one portion of that land while other  crops had been raised in the remaining portion of the land in dispute.   The case of the prosecution is that at about 11.00 a.m. on 23rd July,  1992 the deceased along with his son-in-law, PW-1, his grand son,

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PW-2, and his daughter, PW-3 was carrying out the weeding  operations on the portion of  the land where chilli crop had been  raised.  PWs. 5 and 6 had also come to collect  grass.  Soon thereafter,  the accused numbering about 20 came there with a ram and packets of  arrack. They kept the ram in the shed of  A-13 which was at a distance  of about 100 yards away from their field.  The accused thereafter  came to the hut of the deceased near the land on which chilli crop had  been grown.  They were  drunk and also armed with knives and sticks.  A-1 and A-4 (not appellants herein) questioned the deceased alleging  that they had purchased the land from A-13 and  they would take  possession of the land by use of force.  A-1 and A-4, who were armed  with knives, caused injuries to the deceased on his head as a result of  which he fell down.  Thereafter, A-2, A-3, A-7 and A-12 assaulted the  deceased on his hands, legs and other parts of the body with sticks.   PW-1 attempted to run away from the place of occurrence but A-1  chased him and assaulted him with a knife on his hands as a result of  which he fell down.  Thereafter, A-2, A-4, A-7 and A-12 assaulted  him with sticks.  When PW-3, wife of PW-1 attempted to save her  husband, A-2, A-3, A-7 and A-12 beat her with sticks while A-5  kicked her on her abdomen. A-1 to A-4, A-6 and A-8 assaulted PW-4  with sticks.  In the incident, PWs. 1 to 6 received injuries.  

       At about 2.00 p.m. the injured were taken to the Kothakota  Police Station from where they were taken to the Government hospital  for treatment.  PW-14, the Head Constable, who was then Incharge of  the Police Station, recorded the statements of PW-1 in the hospital and  on the basis of report registered Crime No. 20 of 1992 under Sections  147, 148, 302, 307, 326 and 324  r/w Section 149 IPC.

       On returning to the Police Station, he found that some members  of the defence party had also come to the Police Station and of them  A-1, A-9 and A-12 were injured.  They were taken by him to the  hospital and on the basis of the statement of A-1 he registered Crime  No. 21 of 1992 under Sections 147, 148,  324 r/w Section 149 IPC.  

       PW-15, the Inspector of  Police,  Itchapuram, took over  investigation of the case and proceeded to the hospital where he  examined PWs. 1 to 6 and seized their blood stained clothes. He also  recorded the statements of the injured accused namely A-1, A-9 and  A-12.  He took further steps in the course of investigation.  

       The body of deceased, Gangaraju, was sent to the Government  hospital Narsipatnam for post mortem examination which was  conducted by PW-12.  The post mortem report was marked as          Ex. P-11.  The injured witnesses were also examined by PW-11 at  Government dispensary, Kothakota.  The same doctor also examined  the injuries of A-1, A-9 and A-12.  Ultimately, the accused were  arrested and put up for trial before the III Additional District &  Sessions Judge, Visakhapatman in Sessions Case No. 25 of 1993.  

       As many as 18 charges were framed against the 21 accused  persons under Sections 148, 447, 302, 302 r/w 149, 307, 307 r/w 149,  324 and 427 IPC.  As earlier noticed, the trial court acquitted 9 of the  accused persons of all the charges leveled against them.  A-13 died  during the pendency of the trial and therefore the trial as against him  abated.  A-1 to A-10 and A-12 were convicted by the trial court under  different sections of the IPC, as noticed earlier.  A-1 and A-4 have not  preferred appeals before this Court.   

Shorn of unnecessary details, the defence case was that the land  in dispute originally belonged to Suribabu which was purchased by A- 13 who later sold it to A-4. The deceased was in cultivating  possession of the said land and therefore   A-13 initiated a proceeding  for his eviction from the land in question before the Court of Principal  District Munsif being A.T.C. No. 3 of 1985. The said proceeding

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resulted in an order of eviction against the deceased.  A-13 pursued  the matter further in execution and on  13th May, 1992 actual delivery  of possession was effected by the Amin in E.P. No. 37 of 1992.  After  delivery of possession, A-13 came in actual possession of the lands in  question which remained under his occupation thereafter.  The case of  the defence further is that apprehending disturbance at the hands of  the deceased a proceeding under Section 144 Cr. P.C. was initiated  being M.C. No. 3 of 1992 against the deceased and members of his  party.  On 18th June, 1992 an order was passed in the 144 Cr. P.C.  proceeding against the deceased and members of his party.

       The defence case is that on the date of occurrence the deceased  attempted to forcibly occupy the land of which possession had been  delivered to A-13 through process of court.  When A-13 and others  protested against the high handedness of the deceased, they were  assaulted by the members of the prosecution party with sharp cutting  weapons as a result of which A1, A-9 and A-12 suffered injuries.  The  prosecution party was the aggressor, and when the members of the  defence party sought to exercise their right of private defence of  property, they were attacked by them as a result of which they were  compelled to defend themselves. It was, in these circumstances, that  the occurrence took place. In this way, the accused claimed right of  private defence of property as well as right of private defence of  person.                  The post mortem report discloses that deceased, Gangaraju, had  suffered 12 injuries, which in the opinion of the doctor were  cumulatively sufficient to cause death in ordinary course of nature.   Two of the injuries on the right and left fore arm were caused by sharp  cutting weapon while the lacerated injuries could have been caused by  sticks.  There was no fracture of the skull though there were 4  lacerations on the skull region, as noticed in the post mortem report.   It is not the case of the prosecution that any one of the injuries was  sufficient in the ordinary course of nature to cause death.  Apart from  the 4 injuries on the skull region, the remaining 8 injuries were on non  vital parts of the body, primarily on the limbs. Two of the injuries,  namely, injury Nos. 4 and 6 were stab injuries on the right and left  forearm.  The trial court, on perusal of the evidence on record, came  to the conclusion that apart from injuries 4 and 6, which could have  been caused by a sharp cutting weapon, the other injuries were only  lacerated injuries which could not have been caused by a knife or any  other sharp edged weapon, and  apparently were caused by sticks.         So far as injuries on A-2, A-9 and A-12 are concerned, the  doctor, PW-11, found that A-2 had injury on the thigh over lateral  aspect above the knee joint and A-9 had  also suffered 2  incised  injuries.

       The trial court considering the charge under Section 447 IPC  held that A-13 had purchased the disputed land from Suribabu.  After  the purchase, he filed an eviction case against the deceased under the  Andhra Tenancy Act being  A.T.C. No. 3 of 1985. The said  proceeding resulted in favour of A-13 and an order of eviction was  passed against the deceased.  Thereafter, A-13 executed the order in  E.P. No. 37 of 1992.  The delivery of possession was effected on 13th  May, 1992.  The court recorded a categoric finding that actual  delivery of possession of the land  was effected on 13th May, 1992 as  there was overwhelming evidence, including documentary evidence,  which established beyond doubt that actual delivery of possession  took place on 13th May, 1992.  The court referred to the proceeding  recorded by the Amin showing actual delivery of possession in the  said proceeding.  It, therefore, held that the case set up by the  prosecution party  that it was in possession of the land in question was  doubtful, while on the other hand, there was positive evidence with  regard to possession of A-13 over the disputed property.  Thus, it  could not be said that the members of the defence party including      

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A-13 committed trespass punishable under Section 447 IPC since the  land in question was in their actual possession.  The court accordingly  held that the charge under Section 447 was not proved and the  accused persons were entitled to be acquitted under that charge.

       The trial court then considered the charge under Section 148  IPC.  On the basis of the evidence on record it came to the conclusion  that A-1  to A-10 and A-12 were the persons whose presence was  established and who had taken part in the assault on the prosecution  party.  It then observed that though at the time of coming to the field  they did not have any mens rea to commit an offence, their subsequent  acts clearly brought them under the Explanation to Section 141 IPC,  meaning thereby, though the assembly was not unlawful at its  inception, it subsequently became an unlawful assembly.  It was  further held that these accused persons did not intend to cause the  death of Gangaraju and their only object to begin with was to preserve  possession of the property which was under the control of A-13.    However, since  A-1 and A-4 were armed with knives and A-2, A-3,  A-5, A-6, A-7, A-8, A-9, A-10 and A-12 were armed with sticks  which are weapons of offence and which were used in the course of  the incident resulting in the death of Gangaraju, these accused persons  were guilty of an offence under Section 148 IPC. The finding  recorded by the trial  judge is not very clear but on a fair reading of  the judgment, it appears that in his view, the common object of the  assembly to begin with was to defend the possession of A-13, which  was not unlawful, but when they used their weapons and assaulted the  members of the prosecution party resulting in the death of one person,  the assembly which was at its inception lawful had become unlawful  because their common object then was one "of excluding the  intervention of Gangaraju and if necessary by use of force".  One may  infer from the finding of the trial court that in its opinion the assembly  had not become unlawful as long as they did not use force to defend  the possession of A-13, but once they started using force and indulged  in assault on the members of the prosecution party, the assembly  became unlawful.  On this reasoning, the trial court found the  aforesaid accused persons guilty of the offence under Section 148  IPC.

       Considering the charge under Section 302 IPC, framed against  Accused 1 to 4,  7 and 12, and under Section 302 read with Section  149 as against the other accused, the trial court considered the injuries  suffered by the deceased. It found that the injuries suffered on the  head were not caused by a sharp cutting weapon while injuries 4 and 6  were stab wounds caused on the right and left fore arm of the  deceased which could have been caused by sharp cutting weapon.   Apart from these two injuries, the other injuries were in the nature of  abrasions or lacerations which could be caused by a hard blunt  substance.  It also noticed the opinion of the doctor that the injuries  cumulatively were sufficient to cause death in the ordinary course of  nature.  No injury by itself was sufficient to cause death in the  ordinary course of nature.  Considering the question, as to which of  the accused had caused which particular injury, after going through  the evidence of eye witnesses, it came to the conclusion that though  their evidence was not consistent, it certainly revealed that accused     1 to 4 and 7 had participated in causing injuries to the deceased.  The  participation of accused No. 12 was somewhat doubtful.  The  remaining accused were entitled to the benefit of doubt.  It noticed the  submission urged on behalf of the accused that even accused Nos. 2, 9  and 12 had suffered several injuries, though simple in nature, but  caused by a sharp cutting weapon and the prosecution had not offered  any explanation as to how those injuries were caused.  It came to the  conclusion that no specific injury could be attributed to any particular  accused.  The medical evidence disclosed that injuries 4 and 6 were  caused by a sharp cutting weapon and the injuries on the parietal

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region and other parts of the head were only lacerated injuries which  could not be caused by a sharp cutting weapon.  Yet the eye witnesses  had attributed the head injuries to accused 1 and 4, who are said to  have been armed with knives such as M.O. 3. It concluded that when  so many persons surrounded the deceased and assaulted him, it would  be futile to contend that any of the witnesses could have noticed  which specific injury was caused by which particular accused. It did  not therefore accept the evidence of the witnesses with regard to the  causing of specific injuries by any particular accused.  Moreover, the  medical evidence on record was to the effect that the deceased died  not on account of any particular injury, but on account of the   cumulative effect of all injuries.  In the opinion of the trial court,  death resulted on account of excessive loss of blood.  Having recorded  these findings and keeping in mind its earlier finding that the accused  were not guilty of the offence under Section 447 IPC, the trial court  concluded that the accused had the right of private defence of  property, namely, to defend their possession so that the deceased and  his party men did not interfere with their possession. It, however, went  on to hold that while exercising their right of private defence of  property they exceeded their right by causing the death of the  deceased by assaulting him. Therefore, while giving to the remaining  accused the benefit of doubt, the trial court found accused 1 to 4 and 7  guilty of the offence under  Section 304 Part I   IPC,  instead of  Section 302 IPC.

       After examining the role played by the different accused  persons the trial court also found  A-1, A-7 and A-10 guilty of the  offence under Section 324 IPC.

       The appellants herein as well as A-1 and A-4 preferred an  appeal before the High Court of  Judicature, Andhra Pradesh at  Hyderabad being Criminal Appeal No. 650 of 1995.  The High Court  after noticing the evidence on record and the plea of accused and the  findings recorded by the trial court held that though the land in  question had been purchased by A-13, the same was under the  cultivation of the deceased.  Even if A-13 obtained an order for the  eviction of the deceased in E.P. No. 37 of  1992, that was mere paper  delivery of possession and on that basis it could not be said that A-13  was in actual physical possession of the land which was under the  cultivation of the deceased and his family members.  As regards the  order passed under Section 144 Cr. P.C., the High Court observed that  even though such an order was obtained only a day before the  occurrence, that did not show that the land was under the cultivation  of either A-13, A-1 or A-4.  The High Court concluded by observing:  "Though there is much to say that even after the defeat in the legal  battle, the deceased himself was in actual possession, I am not  inclined to reopen the charges on which the accused are acquitted."   The High Court, therefore, proceeded on the basis that the deceased  and his family members were cultivating the disputed land and they  had raised the chilly crop therein and it was the defence party led by  A-13, A-1 and A-4 which went to the land in question, armed with  weapons, and attacked the victims.  Though, A-13 was the lawful  owner of the land, he could not be permitted to take actual physical  possession of the land by taking the law into his own hands.   Therefore, the aggression committed by him and his party members  was not justified.  In this view of the matter, the High Court upheld  the conviction of the appellants under Section 304 Part I  IPC,  but in  the facts of the case, reduced the sentence under Section 304 Part I   IPC from seven years rigorous imprisonment to three years rigorous  imprisonment, while maintaining the sentence of fine and sentence in  default of payment of fine.

       The judgment and order passed by the High Court has been  challenged by the appellants herein.  A-1 and A-4, who were  appellants before the High Court, have not preferred appeals before

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this Court, as earlier noticed.

       The crucial question which arose for determination in the case  was one relating to the possession of the land in question.  The trial  court found that the appellants were not guilty of trespass punishable  under Section 447 IPC on a finding that A-13, A-1 and A-4 were in  actual physical possession of the land in question.  The High Court  has not set aside this finding, but has, all the same, doubted the  correctness of this finding and proceeded on that basis.  In our view,  the High Court was not justified in doing so.  The trial court noticed  the evidence on record which conclusively established that A-13 had  purchased the land in question from Suribabu.  The land was then in  possession of the deceased.  A-13, therefore, initiated a proceeding for  the eviction of the deceased and in that proceeding an order of  eviction was passed.  If nothing further happened, one can find  justification for the finding of the High Court that A-13 was only the  legal owner of the property in question, though not in actual  possession thereof, and possession was still with the deceased.  A-13,  however, was not content merely with obtaining an order of eviction.   The order was sought to be executed in E.P. No. 37 of 1992 and  pursuant to the proceeding of the Court of Principal District Munsif in  execution and the report of the Amin in the delivery of possession  proceeding, on 13th May, 1992 actual delivery of possession took  place. This evidence has been accepted by the trial court and we find  no fault with the finding of the trial court.  The evidence on record is  of  unimpeachable character and clearly established that the order of  eviction was followed by execution proceeding in which actual  delivery of possession was effected and A-13 came in possession of  the land which is evidenced by the report of the Amin.  Therefore, the  High Court fell into an error in proceeding on the assumption that the  possession given to A-13 was mere paper possession.  Not only this,  there was even an order passed by the Magistrate under Section 144 of  the Code of Criminal Procedure against the deceased. We, therefore,  hold that on the basis of the material on record the trial court was  justified in recording the finding that  A-13, A-1 and A-4 were in  actual physical possession of the land in question.  The High Court  was not justified in setting aside this finding in view of the  unimpeachable evidence on record.

       Once it is held that it was the defence party which was in  possession of the land in question, the complexion of the entire case  changes because in such event the appellants cannot be held to be the  aggressors.  In fact, the trial court also found that the appellants were  only defending their possession against the deceased and his family  members.  The defence case is, therefore, probabilised,  that they were  defending their possession when members of the prosecution party  sought to dispossess them by use of force.  It was not disputed before  us, and it cannot be disputed in view of the clear evidence on record,  that three of the appellants, namely, A-2, A-9 and A-12 also received  injuries in the same incident and they were also got medically  examined by the investigating officer the same day.  It was found that  they had also suffered several injuries caused by sharp cutting  weapons.   These injuries have not been explained by the prosecution,  which further probabilises the case of the defence that the prosecution  party was the aggressor.  If the defence party was in possession of the  land in question, there was really no reason for it to commit the  aggression, and if at all it was the prosecution party which could have  attempted to dispossess the appellants herein by use of force.

 The trial court came to the conclusion that the members of the  defence party though they had a right of private defence of property,  had exceeded that right by causing injuries which ultimately resulted  in the death of one of the members of the prosecution party.  This was  on the assumption that the members of the defence party had only a  right of private defence of property, which did not entitle them to

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cause the death of any person in the exercise of that right.  But the  facts of this case disclose that when they sought to exercise their right  of private defence of property, they were attacked by the members of  the prosecution party and three of them suffered incised wounds.  The  case of the defence in this regard appears to be probable and therefore  though initially the appellants had only the  right of private defence of  property, once the members of the prosecution party started an assault  on them with sharp cutting weapons, that gave rise to the right of  private defence of person as well. Since in the circumstances, they  must have apprehended that atleast grievous  injury may be caused to  them, if not death, they were certainly entitled to use reasonable force  to resist the members of the prosecution party and their right of  private defence extended to causing death of any of the aggressors if  that became necessary.  Unfortunately,  the courts below have not  viewed the case from this angle. We are of the view that the appellants  were entitled to exercise their right of private defence of property as  well as of person in the facts and circumstances of the case.

       Even assuming that the right of private defence of persons did  not accrue to the appellants and that, in fact, they exceeded their right  of private defence of property, it has to be seen as to which of the  accused exceeded that right.  It is well settled that in a case where the  court comes to the conclusion that the members of the defence party  exceeded the right of private defence, the court must identify and  punish only those who have exceeded the right. Section 34/149 IPC  will not be applicable in the case of persons exercising their right of  private defence. [See : State of Bihar  v.  Mathu Pandey               1970 (1) SCR 358 and  Subramani  v.  State of Tamil Nadu         2002 (7) SCC 210].  For the same reason, the appellants cannot be  held guilty of the offence under Section 148 IPC, because nothing is  an offence which is done in the exercise of the right of private  defence.

       In the instant case, the trial court clearly recorded a finding that  it was not possible to find as to which accused caused which injury to  the deceased.  The trial court did not accept the evidence of the  prosecution witnesses in this regard, which in any event, was not  consistent.  The medical evidence on record is to the effect that the  death was the result of the cumulative effect of all the injuries,  consequently no single injury caused the death of the deceased.  In the  exercise of right of private defence of property, the appellants were  certainly entitled to use such force as was necessary, but without  causing death. In this state of the evidence on record  it is not possible  to record a definite finding as to which of the appellants, if at all,  exceeded their right of private defence, and therefore the benefit of  doubt must go to all the appellants.   

       In this view of the matter, this appeal succeeds and the  appellants are acquitted of all the charges levelled against them.  We  notice that the cases of accused No. 1 and accused No. 4, namely,  Thammireddy Apparao and Lanka Tatayyalu, stand on the same  footing as that of the appellants.  For some reason they have not  preferred appeals before this Court, but we feel that in the interest of  justice they are also entitled to the benefit of this judgment.  We,  therefore, order their acquittal as well.  The appellants herein as well  as accused Nos. 1 and 4, namely, Thammireddy Apparao and Lanka  Tatayyalu, if in custody, shall be released forthwith, if not required in  connection with any other case.  This appeal is accordingly allowed.