2005 Supreme(SC) 1435

2005(8) Supreme 180
Supreme Court of India
(From Calcutta High Court)
S.B. Sinha & R.V. Raveendran, JJ.
Bishna @ Bhiswadeb Mahato and Ors. —Appellants
versus
State of West Bengal —Respondent
Criminal Appeal Nos. 1430-1431 of 2003
Decided on 28-10-2005
Counsel for the Parties :
For the Appellants : Jaideep Gupta, Sr. Advocate, Anand, Vishal Arun, Debmalya Banerjee, D. Bharat Kumar and Abhijit Sengupta, Advocates.
For the Respondent : Tara Chandra Sharma and Ms. Neelam Sharma, Advocates.

Important points
1. Private defence and prevention of crime are sometimes indistinguishable. Such a right is exercised because ‘there is a general liberty as between strangers to prevent a felony.’
2. For the purpose of attracting Section 149, 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 object is adopted by all the persons and shared by them, it would serve the purpose.
3. No law in general terms can be laid down to the effect that each and every case where prosecution fails to explain injuries on the person of the accused, the same should be rejected without any further probe.

Headnote:(i) Indian Penal Code, 1860—Sections 149 and/or 34—Common object—Common intention—A specific overt act on part of accused is not necessary—Accused persons armed with deadly weapons went to the plot of complainant party and started harvesting the paddy grown by complainant—When complainants asked them not to do so, they were attacked, chased—Injuries caused to deceased and other witnesses—Accused persons being aggressors—No right of private defence could be claimed by them particularly when it was proved beyond reasonable doubt that prosecution witnesses were first chased and assaulted.

       Held : The presence of the accused with deadly weapons at the place of occurrence and the fact that they had been harvesting the paddy grown by the complainant being not in dispute, there is absolutely no reason as to why the account of the prosecution witnesses should be discarded particularly when sufficient material have been brought on record to show that despite the fact that they retreated to some extent, they were chased and caused death of Prankrishna and injuries to others which would lead to only one conclusion that the said act was in furtherance of their common intention. (Para 33)

       The depositions of the said witnesses clearly establish that the accused persons armed with deadly weapons went to the plot of complainant party with a common object to harvest the paddy and when asked not to do so they were attacked and when they retreated to some extent they chased and caused injuries to the deceased and other witnesses. This clearly establishes that the said act was in furtherance of a common intention. As the Appellants herein and other accused persons were aggressors, no right of private defence could be claimed by them particularly when it has been proved beyond any reasonable doubt that the prosecution witnesses were first chased and then assaulted. The prosecution evidences further clearly establish that the land was in possession of Joyram, who was bargadar of Kartick Chodhury. The First Information Report, it is well-settled, need not be encyclopedia of the events. It is not necessary that all relevant and irrelevant facts in details should be stated therein. In the First Information Report, it has been specifically stated that Kalipada Mahato was standing behind armed with a gun and when they objected, all the accused persons attacked the prosecution witnesses saying ‘Maro Saladigokay’ (assault the salas). The prosecution witnesses in their statements before the court had categorically stated that Kalipada Mahato also exhorted more than once. It may be true that he had no axe to grind. He was not claiming ownership of the plot in question; but there are materials on record to show that the complainant party and the accused belong to two rival political groups. Thus, Kalipada Mahato might have a political score to settle, as otherwise it is difficult to accept that although those claiming the ownership of the land in question would go there with lathis, he would be present at the spot with a gun. It must be taken note of that the exhortation by Kalipada Mahato might be general in character. From the evidence of the witnesses, it appears that Kalipada Mahato has used the word ‘finish’ only after Prankrishna fell down having been assaulted by the other accused persons, named by them. For the purpose of attracting Section 149 and/or 34 IPC, a specific overt act on the part of the accused is not necessary. He may wait and watch inaction on the part of an accused may some time go a long way to hold that he shared a common object with others. (Paras 44 to 49)Once it is established that the complainant party were in possession of the land in question as also cultivated the same and grew paddy thereupon the question of the Appellant’s exercising of right of private defence as regard property does not arise. Such a right could only be claimed by the complainant. So far as the purported right of private defence of a person is concerned, it has been proved beyond any shadow of doubt that the accused were the aggressors. They came to the land in question to harvest paddy through hired labourers. They were armed fully when they were asked not to harvest paddy, they chased and assaulted the prosecution witnesses. In this situation the Appellants were not entitled to claim right of private defence. (Para 74)

       In view of our findings aforementioned, ordinarily we would have upheld the conviction of the Appellants under Sections 302/109 and 302/34 IPC, but the High Court has found the accused guilty as under:

       i) Mathan, Bhishwa and Ramanath Mahato under Section 302/34 IPC for committing the murder of Prankrishna Mahato;

       ii) Kalipada Mahato under Section 302/109 IPC;

       iii) Mathan, Haralal, Ramanath and Patal Mahato under Section 326/34 IPC for causing grievous hurt to Nepal Mahato;

       iv) Bulu Mahato under Section 324 IPC for causing hurt to Nepal and Chepualal Mahato;

       v) Lalbas Mahato under Section 325 for causing grievous hurt to Shambhu Mahato; and

       vi) Patal Mahato under Section 324 IPC for causing hurt to Siju Mahato. (Para 96)

       (ii) Indian Penal Code, 1860—Sections 96 to 103—Private defence—Failure to explain injuries on accused—Whether prosecution case vitiated—(No).

       Held : It is now well-settled that it is not imperative to prove the injuries on the person of the accused irrespective of the facts and circumstances of the case including the admitted facts. Normally such a plea is entertained when the right of self defence is accepted by the court. The fact as regard failure to explain injuries on accused vary from case to case. Whereas non-explanation of injuries suffered by the accused probabilises the defence version that the prosecution side attacked first, in a given situation it may also be possible to hold that the explanation given by the accused about his injury is not satisfactory and the statements of the prosecution witnesses fully explain the same and, thus, it is possible to hold that the accused had committed a crime for which he was charged. Where injuries were sustained by both sides and when both the parties suppressed the genesis in the incident, or where coming out with the partial truth, the prosecution may fail. But, no law in general terms can be laid down to the effect that each and every case where prosecution fails to explain injuries on the person of the accused, the same should be rejected without any further probe. (Paras 51, 52)

       We have furthermore noticed the concurrent finding of both the courts that the accused were guilty of commission of an offence under Section 148 of the IPC. The fact that they were aggressors and initiated the attack on the deceased and other witnesses on the land in question and thereafter at the bed of the tank, thus, stands established. (Para 55)

       (iii) Indian Penal Code, 1860—Section 149—Unlawful assembly—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 object is adopted by all the persons and shared by them, it would serve the purpose. (Para 63)

       (iv) Indian Penal Code, 1860—Sections 149, 34—Distinction—Sections 149 and 34 stand on some different footings although application of both the sections may be held to be mandatory. (Para 68)

       (v) Indian Penal Code, 1860—Section 96 to 103—Private defence—Plea of right of private defence need not specifically be taken—In the event the Court on basis of materials on records is in a position to come to such conclusion, despite some other plea having been taken, it may act upon thereupon. (Para 70)

       (vi) Indian Penal Code, 1860—Sections 96 to 105—Self defence—Scope of right—A person who is apprehending death or bodily injury cannot weigh in golden scales on the spur of the moment—All circumstances are required to be viewed with pragmatism—Any hypertechnical approach should be avoided.

       Held : In a large number of cases, this Court, however, has laid down the law that a person who is apprehending death or bodily injury cannot weigh in golden scales on the spur of the moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force. All circumstances are required to be viewed with pragmatism and any hyper-technical approach should be avoided. To put it simply, if a defence is made out, the accused is entitled to be acquitted and if not he will be convicted of murder. But in case of use of excessive force, he would be convicted under Section 304 IPC. A right of private defence cannot be claimed when the accused are aggressors, when they go to complainant’s house well prepared for a fight and provoke the complainant party resulting in quarrel and taking undue advantage that the deceased was unarmed causes his death. It cannot be inferred that there was any sudden quarrel or fight, although there might be mutual fight with weapons after the deceased was attacked. In such a situation, a plea of private defence would not be available. (Paras 80 to 82)

       Private defence can be used to ward off unlawful force, to prevent unlawful force, to avoid unlawful detention and to escape from such detention. So far as defence of land against trespasser is concerned, a person is entitled to use necessary and moderate force both for preventing the trespass or to eject the trespasser. For the said purposes, the use of force must be the minimum necessary or reasonably believed to be necessary. A reasonable defence would mean a proportionate defence. Ordinarily, a trespasser would be first asked to leave and if the trespasser fights back, a reasonable force can be used. Defence of dwelling house, however, stand on a different footing. The law has always looked with special indulgence on a man who is defending his dwelling against those who would unlawfully evict him; as for “the house of every one is to him as his castle and fortress”. (Paras 86 and 87)

       Private defence and prevention of crime are sometimes indistinguishable. Such a right is exercised because “there is a general liberty as between strangers to prevent a felony”. The degree of force permissible should not differ, for instance, the in the case of a master defending his servant from the case of a brother defending his sister, or that of a complete stranger coming to the defence of another under unlawful attack. (Para 89)

       Furthermore, although in this case right of private defence was not excisable; having regard to the peculiar facts and circumstances of the case, we are of the opinion that the possibility of the Appellants committing the crime without any intention to cause death cannot be ruled out. (Para 98)