2005 Supreme(SC) 1439

2005(8) Supreme 146
Supreme Court of India
(From Allahabad High Court)
S.B. Sinha & R.V. Raveendran, JJ.
Triloki Nath & Ors. —Appellants
versus
State of U.P. —Respondent
Criminal Appeal No. 1150 of 2004
With
Criminal Appeal Nos. 1171, 1172 and 1173 of 2004
Decided on 28-10-2005
Counsel for the Parties :
For the Appellants : S.R. Bajawa, Sr. Advocate, Sushil Kr. Jain, S.Z.A. Warsi, Ms. Pratibha Jain, Ram Niwas, Advocate for B.K. Satija, K.S. Rana, Vijay Singh, David Rao, Advocate for Khawarirakpam Nobin Singh, R.K. Kapoor, M.K. Verma, Advocate for Sudarsh Menon, Advocates.
For the Respondent : N.S. Gahlout, Prashant Chaudhary, Advocate for Jatinder Kumar Bhatia, Advocate.
For the Respondent : M.N. Krishnamani, Sr. Advocate, Shakil Ahmed Syed and Mohd. Taiyab Khan, Advocates.

Important point
It is not the law that prosecution case shall fail only because injuries on the person of the accused have not been explained. However, where the accused received injuries during the same occurrence in which the complainants were injured, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution.

Headnote:Indian Penal Code, 1860—Sections 149, 302/149, 307/149 and 326/149—Unlawful Assembly—Plea of private defence—On Basant Panchami day, villagers started collecting fuel wood on a plot allegedly belonging to appellants—Appellants started removing the wood—Accused ‘J’ armed with a gun and remaining accused armed with lathis were present—PW4, servant of PW3 when forbade accused persons from doing so, he was chased—When PW3 allegedly questioned them, appellant exhorted his companions saying ‘Maro sale ko’ whereupon accused ‘G’ hurled a lathi blow on PW3’s head, ‘S’ gave second lathi blow on his wrist—Other accused also assaulted PWs—Deceased reached there on hearing hue and cry—Appellant exhorted accused ‘J’ to kill him—‘J’ fired a shot at deceased who fell down and died—Appellant also received injuries—Accused ‘J’ with other seven accused were found guilty of commission of offence u/s 302/149 for commission of murder of deceased and u/s 307/149 for causing injury to PW3 and u/s 147 IPC for rioting—Having regard to nature of injuries suffered by PW3, a concurrent finding of fact has been arrived at that appellants had an intention to murder him—Both PW3 and PW4 were eye witnesses, present at the time of occurrence—Whether appellants having received injuries were entitled to right of private defence—(No)—Whether appellants and others can be said to have formed a common object to kill any person—(No).

       Held : 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. (Paras 36 and 37)

       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. (Para 39)

       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. (Para 58)

       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 in the injuries on the person of the accused. (Paras 60 and 61)

       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. (Paras 77)

       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 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. (Paras 82 to 84)

       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. (Para 85)