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2003(6) Supreme 780
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
N. Santosh Hegde and B.P. Singh, JJ.
Vajrapu Sambayya Naidu & Ors. -Appellants
versus
State of AP & Ors. -Respondents
Criminal Appeal No. 603 of 2002
Decided on 2-9-2003
Counsel for the Parties :
For the Appellants : K.V. Viswanathan, D. Bharat Kumar, Anand Dey, G. Venkatesh and Abhijit Sengupta Advocates.
For the Respondents : Ms. T. Anamika and Guntur Prabhakar Advocates.
Held : 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. (Para 18)
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. (Para 19)
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. (Para 21)
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 and 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.
2. 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, 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 attack. 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-1
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