1976 Supreme(SC) 469

SUPREME COURT OF INDIA
P.N. BHAGWATI, V.R. KRISHNA IYER AND S. MURTAZA FAZAL ALI, JJ.
Ram Rattan and others, Appellants
Versus
State of U.P., Respondent.
Criminal Appeal No. 282 of 1971, D/- 26-11-1976.
Advocates appeared
Mr. S. K. Mehta, Advocate, for Appellants; Mr. D. P. Uniyal Sr. Advocate, Mr. O. P. Rana, Advocate with him, for Respondent; Mr. R. L. Kohli, Advocate, for Intervener.

Headnote:

Indian Penal Code - Section 302/326/34 – Offence of murder - Rigorous imprisonment – Appeal against conviction - Whether Road was encroached upon there was hardly any discrepancy between statements of prosecution witnesses and defense - Whether or not trespasser after having taken possession had grown any crop - Prosecution case in short is that on July in the morning when and his companions were removing weeds from the paddy crop sown by them in the field which included a portion of Road which had recently been encroached by the complainants party and amalgamated with their fields armed respectively entered field with their bullocks and insisted on passing through the field along with their bullocks which according to them was a public road - Complainants protested against highhanded action of the party of the accused on which exhorted his companions to assault deceased as a consequence of which assaulted in abdomen with his as a result of which sustained serious injuries and fell down in field and ultimately succumbed to the injuries - Other members of complainants party were also assaulted and his party - Soon after the occurrence a police officer who happened to be present at the spot recorded the statement of P. W. 1 which was treated as F.I.R. and after conducting usual investigation submitted a charge-sheet against all the accused persons who were put on trial before the Sessions Judge - Learned Sessions Judge acquitted accused and convicted appellant under Section 302, I.P.C. were convicted under Section 326/34, I.P.C. and sentenced to eight years rigorous imprisonment - Three appellants were further convicted under Section 447, I.P.C. to three months rigorous imprisonment and under Sections 324/34, I.P.C. to two years rigorous imprisonment under each of the two counts and under Sections 323/34, I.P.C. to six months rigorous imprisonment and ordered that all sentences shall run concurrently - Accused persons filed an appeal before High Court which was also dismissed and thereafter they obtained special leave of this Court and hence this appeal before us – Held, Court are not able to agree with counsel for appellants that the assault on the deceased is in any way inconsistent with the medical evidence - For these reasons therefore court find ourselves in agreement with High Court that the prosecution has proved its case against this accused beyond reasonable doubt - Injuries caused by the other appellants on the person have been proved by the eye-witnesses whose evidence has been accepted by High Court as also the Sessions Judge - Court see no reason to interfere with assessment of evidence by the two Courts - In first place once it is held that the appellants had no right of private defense of person or property appellant cannot escape conviction under Section 302, I. P. C. simplicities because the injury caused by him to the deceased was sufficient to cause the death of deceased - Appellant was rightly convicted under Section 302, I. P. C. and as the minimum sentence is life imprisonment we cannot do anything about the sentence either – Court would like to observe however that facts of the case do raise some amount of sympathy for the accused who was really trying to assert his lawful right against the complainant who was a trespasser - Appellant was fighting for a just and righteous cause, though not in a strictly lawful manner - If the appellant had succeeded he would have been able to secure the right over Road which was left by the Revenue authorities for the benefit of villagers - These considerations therefore may weigh with Government for considering the question of remitting a portion of the sentence imposed on the appellant and learned counsel appearing for the State has assured us that these considerations would be conveyed to Government - So far as other appellants are concerned as object of appellants was merely to assert a supposed or bona fide claim of right it cannot be said that they had any common intention to cause grievous hurt - In these circumstances therefore charge under Section 326/34, I. P. C. must necessarily fail - Conviction under Section 447, I. P. C. as also that under Sections 324/34 and 323/34, I. P. C. cannot be interfered with in view of evidence of assault made by the appellants on the witnesses with their respective weapons - Having regard to fact that appellants made a concerted attack either with respectively on the aforesaid prosecution witnesses they had undoubtedly a common intention to cause simple hurt to these witnesses - Appeal partly allowed