2007 Supreme(SC) 1308

2007(7) Supreme 507
Supreme Court of india
(From Allahabad High Court)
S.B. Sinha & Harjit Singh Bedi, JJ.
Kishan Chand & Ors. — Petitioners
versus
State of U.P. — Respondent
Appeal (crl.) 1411 of 2007
Decided on : 10-10-2007

important point
Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall u/s 149 if the offence was such as the members knew was likely to be committed.

Headnote:(a)Indian Penal Code, 1860 – Section 149 – Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall u/s 149 if the offence was such as the members knew was likely to be committed – If a body of persons go armed to take forcible possession of the land, it would be right to say that they had the knowledge that murder is likely to be committed and the case would fall u/s 149 – Even 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 15 and 16)

       (1959) Supp (1) SCR 940; (2005) 12 SCC 657: 2005 (9) SCALE 204; (2005) 13 SCC 323 – Relied upon.

       (2006) 3 SCC 752 – Distinguished.

       (b)Indian Penal Code, 1860 – Section 97 – Right of self-defence is a plea which is available to the accused but the burden to prove the same would be on them – There is no law that right of self-defence cannot be exercised in relation to a dispute over an open space – High Court committed an error in rejecting the plea of self-defence on the ground that the incident took place at an open space. (Para 19)

       (c)Indian Penal Code, 1860 – Section 97 – Accused persons having gone to the place of occurrence armed with deadly weapons were the aggressors – Evidences in no unmistakable terms point out that all the overt acts started from the side of the accused persons – Only when a protest was made by the villagers, Accused No. 1 went to the roof top of a house and started indiscriminate firing – Plea of right to self defence was therefore not available to the accused persons. (Para 19)

       (d)Indian Penal Code, 1860 – Section 149 – The fact that number of injuries sustained by the prosecution witnesses and the nature thereof, viz., they suffered gun shot injuries as also injuries caused by lathis, goes a long way to show that the accused persons had shared common object. (Para 22)

       AIR 1960 SC 725; 1994 Supp (3) SCC 235; (2006) 10 SCC 639; 2007 (7) SCALE 184 – Relied upon.

       Facts of the case:

       1.Phool Chand (Accused No. 1) was a retired Army Officer. He was allegedly allotted some land bearing plot No. 596 at village Paigamberpur Hamlet, Jarganwan, title whereof was in dispute. He was in possession thereof but his right to make any construction thereupon was in dispute. His earlier attempt to raise constructions on the said land had met with resistance by the villagers. They made a complaint to the officers of the Tehsil. Before the police authorities, Phool Chand is said to have given an undertaking not to make any construction.

       2.On 3.02.1978 at about 9 a.m., the said Phool Chand and other accused armed with a gun and lathis came to the land in question. They started construction thereupon with the help of hired labourers. A large number of villagers assembled at the place. Accused were requested not to make any construction till the disputes between them were determined by the competent court.

       3. In the ensuing firing by the accused persons, Ram Asrey died at the spot. Mishri Lal and others also received firearm injuries. Ram Harak who had also sustained gun shot injuries breathed his last in the hospital and the condition of Suraj Lal, Hardev, Mahan Lal, Ram Dass and Ram Singh allegedly became serious.

       4. The defence story was disbelieved both by the learned Trial Judge as also the High Court. The plea of right of private defence raised by the accused was also negatived.

       5. On the aforementioned findings, Phool Chand and Kishan Chand were convicted under Sections 148, 302/149 and 307 of the IPC and Bhagauti, Badadin and Sheo Prasad were convicted under Sections 147, 302/149 and 307/149 thereof. They were sentenced to undergo rigorous imprisonment for life, four years rigorous imprisonment for attempt to murder, two years rigorous imprisonment under Section 148 of the IPC and one year rigorous imprisonment under Section 147 thereof.

       Findings of the Court:

       The case falls u/s 149, IPC. Plea of right of self defence rejected.

       Result : Appeal dismissed.