GCTTIPULLA VENKATA SIVA SUBRAYANAM & ORS. versus STATE OF ANDHRA PRADESH & ANR.

Ii GCITIPULLA VENKATA SIVA SUBRAYANAM & ORS.

STATE OF ANDHRA PRADESH & ANR.

January 19, 1970

[M .. HIDAYATULLAH, C. J., A. N. RAY AND I. D. DUI\, JJ.J

Indian Penal Code (Act 45 of 1860), ss. 96 to 106--Right ,•f private d~fence-Scope of-Plea no: raised by accus2d-Duty vj Co1:rt, lVlien th?re is evidence showing right of privarc defence.

'''ith r~spe;;t to kuilf!i., which \Vas government propeny, certain persons who had .occupied part of the land in the kunta, and the accused, were asser~ing their respective claims, the former to the use of the land in the kunta for cultivation and latter. to the use of the kunta as source. of irrigation. The occupie;s and accused belonged to opposite political factions. suit \Vas I11ed by the occupiers .and the civil court passed two orders of injunction, one restraining the accused from inter-fe.ring with the occupie!'s' possession, and the othe.r, restraining the uccu-piers from opening sluices in the bund of the kunta. While the suit was pending the ·...iccupiers raised corps on their land and the accused raised new 0 bund. Since their crops. were being damaged as result of the raising of the new bund, the occupiers approached the police authorities and tahsil-dar· for the removal of the bund, but they did not give any effective help. The accused were not \Villing to allow the removal of the bund v1..-ithout any Government orde:. TOereupon, the occupiers and· their supporters, numbering not less than twenty went to the. s9ot to remove the bund by force, but the accused were present at the spot determined not. to allow the bund to be, rem'Oved. In the fight that ensued, the first accused. aged about 60 years, received ten injuries on the vital parts of his body and the. Civil Assistant Su~geon who attended on him thought it was qeces-sary to take dying declaration from him. The second accused.who was about 50 years old, was also subjected to severe beating. Some of the other accu5ed also received injuries. The. tenth accused, who had gun in his hand, and who was the son-in-law of the first accused, shot at the a'ctual aggressors and killed three of 1hem and iniured another. The party of the occupiers asserted that they went to the scene of occurrence unarmed and with the intention of peacefully persuading the accused to remove the bund and that when beaten by the accused they snatched the sticks and spears from them and retaliated. The tenth accused put forth a"" plea Of alibi. The oher accused asserted. that the party of the. occupiers were the aggressors and that tf:ley acted 10 serf defence. Huld1ng that n was not material to consider whether the occupiers and their supporters had brought with them sticks or snatched them from the accused, that the accused had attacked first and that the injuries to the accused did not give. rise to any right of p~ivate defence, the High Court C.Jnvicted some of the accused for the offence 11rid~r ss. 147 J T>.C .. ~o:ne. for the offence under s. 148 I.P .C., and the tenth accused for the offences of murder and g:ievous hurt with dang~rous weapon,

Jn appeal to this Court,

HELD · (I) When- they went to the scene, rhe occupiers knew that determined· not to allow the removal of the bund without an order ~rom determined not te a1tow the removal of the bund without a~ order rroi:n ~he Gove-nment autiJorities. In the circumstances the occupiers and their

supporters must have gone to the kunta fully armed, and it was not possi-ble to accept their version. [434 E-G]

(2) The occupiers moved in the matter only after the new bund was raised by the accused. They had ample opportunity of approaching public authorities to have· the bund removed. When the occupiers and their supporters found that the. police were guilty of grave dereliction of their duty, they could have approached the higher authorities or the civil court in which the suit was pending. Instead of having recourse to those steps they de.cided to go to the scene in large. numbers fully determined to re-move the hund by force. When that attempt was foiled by the accused with sho•.v of force, the members of occupiers' party mi::rcilessly beat up some of the accused persons who were advanced in age. In such situation it \Vas not possible for an ave·rage person placed in the position of the tenth. accused, to take calm and objective view and calculate with arithmetical precision as to how much force would effectively serve the purpose of s.elf-defence and when to stop. He only used the gun against the real aggressors frum whom he apprehended grave danger to the lives of the other accused persons and to himself. Therefore, he was fully justffi.ed in using his glln in the exercise of the right of private defence against the party of the occupiers. [438 C-D, E-H; 439 A-El

Except as against acts of public servants acting in good faith a:nd when there is time to have recourse to the protection of public authorities, under s. 97 I.P.C., every person has right to defend : (1) his own body and the body o[ any other person against any offence affecting the human body, and (2) the property of himself or of any other person against theft, robbery. mischief, of criminal trespass. Such right is basically preventive and not punitive, and, nothing is an offence which is done in the exercise of the right. Under s. 100 one of the circumstances in which the right of private defence of the body extends to the voluntary causing of death of the assailant, is, if ~he assault, which.occasions the exercise of the right, reasonably causes the apprehension that death or grievous hurt would otherwise be the consequences thereof. [437 B-D, E-F)

(3.) When there is evidence proving that.a person accused of killing or injuring another acted in the exercise of the right of private defence. the court would not be justified in ignoring that evidence and convicting the accused merely because he had set up defence of q/ibi and set forth plea different from the right of private defence. Courts are expected to administer the law of private defence in practical way with reasonable liberality so as to effectuate its underlying object. Therefore, the Court was not precluded from giving the tenth accused the benefit of the right of private de'{ence. [439 F-H]

CRIMINAL APPELLATE No. 75 of 1967.

JURISDICTION : Criminal Appeal

Appeal by special leave from the judgment and order dated April 8, 1966 of the Andhra Pradesh High Court in Criminal Appeal No. 636 of 1963 ..

and D.

Nur·ud-din Ahmed, A. V. Rangam, A. Vedavalli Gopala Rao, for the appellants.

P. Ram Reddy and A. V. V. Nair, for the respondents.

Dua, J. In this appeal by special leave directed agains~ the order of the Andhr.a Pradesh High Court, the only question can-vassed on behalf of the appellants before us relates to the plea of private defence raised by them at the trial. The appellants who are ten in number were tried on as many as 22 charges by the Court of Additional Sessions Judge, Masulipatam and acquitted of all the charges. On appeal by the State against their acquittal there was difference of opinion between the two Judges of the High Court constituting the Division Bench hearing the appeal. Whereas Sharfuddin Ahmed, J., upheld the order of acquittal on the basis of the plea of private defence, Mohd. Mirza, J., was of the opinion that the prosecution case was proved by overwhelming evidence. The case was in consequence laid before Basi Reddy, J., as provided bys. 429, Cr. P.C. That learned Judge accepted the prosecution case and convicted the appellants on some of the char-ges. He expressed his final conclusion thus :

"I shall now indicate the charges upon which the ac-cused should be convicted and the sentences that should be imposed:

On charge no. 2 I would convict accused 1, 3 and 5 to 9 under section 147, I.P.C. and on charge no. 3 accus-sed 2, 4 and 10 and sentence each of accused 1, 2, 3, 4 and 5 to pay fine of Rs. 500/-, in default each to suffer six months' rigorous imprisonment. I would sen-tence each of accused 6 to 9 (who are farm servants) to pay fine of Rs. 100/- in default to suffer two months' rigorous impri~onment. I would sentence accused 10 to suffer rigorous imprisonment for two years.

2. On each of charges nos. 4, 5 and 6 which pertain to the three counts of murder, I would convict and sen-tence accused 10 to suffer imprisonment for life under section 302, I.P .C.. '

3. On charge no. ii, I would convict and sentence accused no. 10 to suffer two years' rigorous imprisonment under section 326, I.P.C. for having caused grievous hurt to P.W. 6 by shooting at him with the gun.

4. On charge no. 22, I would convict accused 10 under section 19 (a) of the Indian Arms Act and sen-tence him to suffer one year's rigorous imprisonment.

I would direct all the sentences of imprisonment passed on accused 10 to run concurrently. I would up-hold the order of acquittal on other charges.

The net result will be that accused l 0 will have to undergo imprisonment for life; accused 1 to 5 will each have to pay fine of Rs. 500; and accused 6 to 9 will each have to pay fina of Rs. 100/-".

The final order of the High Court on appeal followed the opinion expressed by Basi Reddy, J. The charges on which the appellants were convicted are these : ..

Secondly : that you accused nos. 1, 3 and 5 to 9 along with accused nos. 2, 4 an<l 10 at about J 0 a.m. on l 0-9-61 at the same place and in the course of the same transactian as set out in charge no. 1 above, formed your-the common object of such assembly viz : beating and the occupiers of Gabbilalakunta, committed an offence of assembly, viz. : beating <•ud k.i'iling the members of the lakunta, committed an olfe:.r~ of rioting and that at that weapons to wit, 'spears' and the .I 0th accused was armed and wiihin my cogniza•1cc;Third!) : that you accused uos. 2, 4 and 10 along with accused nos. 1, 3 and 5 to 9 at the same time and place in the course of the same transaction as set out in charge no. 2 above, were members of an unlawful assem-bly and did in prosecution of the common object of such assembly, vi~ :beating and killing the members of the party that came in support of the occupiers of Gabbila-lakunta, committed an ol'ence of rioting and that at that time, the accused nos. 2 m•d 4 were armed with deadly weapons to wit, 'spears' an<l the 10th accused was armed. with D.B.Bl Gun and thereby committed an offence punishable under section 148 of the Indian Penal Co<le and within my cognizance;

Fourthly : that you accused no. 10 at the same time and place and in the course of the same transaction as set out in charge no. 2 above, did commit murder by in-tentionally or knowingly causing the death of Anne Ramarao, son of Seetha Ramarao of Atkur by shooting him with D.B.B 1 gun and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance;

Fifthly : that you accused no. 10 at the same time and place and in the course of the same transaction as set out in charge no. 2 above, did commit murder by inten-tionally or knowingly causing the death of Bodapati China Anjaiah s/o Danaiah of Mustabada by shootipg

him with D.B.Bl gun and thereby committed an offence punishable under seetion 302 of the Indian Penal Code and within my cognizance;

Sixthly : that you accused no. I 0 at the same time and place and in the course of the same transaction as set out in charge no. 2 above, did commit murder by intentionally or knowingly causing the death of Bodda-pati Lakshmaiah s/ o Kotaiah of Medaripalem, hamlet of Verudupavuluru by shooting him with D.B.Bl gun and thereby committed an offence punishable under sec-tion 302 of the Indian Penal Code and within my cogni-zance;

Eleventhly: that you accused no. 10 at the same time and place and in the course of the same transaction as set out in charge no. 2 above, voluntarily caused grievous hurt to Kolli Nagabhushanam, son of Venkaiah of Dava-D jigudem by means of D.B.BI gun an instrument for shooting and thereby committed an offence punishable under section 326 of the Indian Penal Code and within my cognizance and that the said act having been done in pursuance of the common object of the unlawful assemb-ly consisting of you all the accused herein, all of you are guilty of the offence under section 326 of the Indian Penal Code read with section 149, Indian Penal Code and within my cognizance, or alternatively under section 326 read with section 34, Indian Penal Code and within my cognizance;

Twentysecondly : that you accused no. 10 at about the same time and place and in the course of the same transaction as set out in charge no. 2 above, were armed with D.B.Bl gun without licence under the Indian Arms Act and thereby committed an offence punishable under section 19 ( e) of the Indian Arms Act and within my cognizance."

In this Cou_rt, as already observed, the appellants' learned Ad-vocate confined his submission only to the question of right of private defence. According to the prosecution case there is low lying area covering. about 11 acres known as Gabbilalakunta (hereafter to be referred as the Kunta) abciut one mile away from Surampalli village but within its limi~s. This Kunta sei:ving as tank is fed by rain water.. The _villa~e of Surampalh was Mokhasa village in the erstwhile zammdan of Mirzapuram. Under

the. provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, the zamindari of Mirzapuram was taken over by the Government in i 950. As result thereof the entire estate including Surampalli village and the Kunta became vested in the Government free from all encumbrances. This Kunta thus belonged to the Government. Some poor landless persons like P.Ws 1 J and 14, Shaik Madarsaheb and Kandavalli Anandam, began cultivating part of this Kunta and started raising wet and dry crops. This started in the year 1953. Their occupation being unauthorised the Revenue Authorities collected penalty cist from the occupants. Accused nos. 1 to 4, Gottipulla Venkatasiva Sub-barayanam, Gottipulla Bapaiah, Gottipulla Seshaiah and Gotti-pulla Subba Rao, who are the ,former Mokhasadars have their lands measuring about 80 acres to the south of the Kunta. There is big tank called Erracharuvu located about three or four fur-longs to the north of the Kunta. There are some channels through which water flows from this tank to various fields and one such channel serves to irrigate the field of the accused nos. 1 to 4. Ac-cording to the prosecution the lands of these accused persons should be irrigated by means of the channel running along the western side of the Kunta. According to the accused persons, however, their fields should receive water from the Kunta through sluices in its southern bund. In 1958 the Settlement Authorities registered the Kunta as source of irrigation for an ayacui of 34 acres. Prior to that, sometime in August 1957, the occupiers of the Kunta had instituted suit for injunction restraining accused nos. 1 to 4 from interfering with the possession of the occupiers and also claiming damages on the allegation that the defendants had spoiled their crops and an interim injunction was actually granted on August 21, 1957.

Accused nos. 1 to 4 also· filed an application seeking to in-junct the occupiers from opening the sluices (out-lets) or making breaches in the bund of the Kunta during the pendency of the suit. On this application also the court, by an order dated August 29, 1957, granted temporary injunction in the following terms :

"Pending disposal of this petition, the respondents are restrained from opening the sluices or outlets or cut-ting any breaches to the bund of the tank situated in S. No. 44 if there is any bund .... "

On February 3, 1960 the Court confirmed both the orders of in-junction mentioned above. The land in the Kunta was not cul-tivated in the years 1958 to 1960 because of failure of rains. In June, 1961 cultivation was resumed by P.W. 13 and P.W. 14, along with four other persons, raising paddy crop in part of the Kunta. Another part of the Kunta was prepared for raising

jonna crop. The suit mentioned above was still pending when on September 4, 1961 it was adjourned to some other da!e. It rained hea-iily that night and the rain water collected m the Kunta. ,on the following morning when P.W. 13 and P.W. 14, along with some other occupiers passed 6y the side of the Kunta they saw new bund raised on its western side so as to prevent the rain water collected therein from flowing westwards. This resulted in submerging the crop grown on the eastern, portion of the Kunta. The new bund was about 3' high, 2t' wide and 25 yards in length. There being no one present at the bund P.Ws 13 and 14 and their companions made breach therein to let the water flow westwards. In the evening when they came back to the Kunta they found that the breach in the bund had been repaired and the bund restored to its original position. There were also two improvised huts set up to the south of the bund and all the ten accused were present keeping watch. The occupiers pleaded with the accused persons to remove the bund pointing out that otherwise their crops would be damaged but the accused persons did not listen to their entreaties and threatened to beat them if they dared to interfere with the bund. The occupiers thereupon went back to their village. On the following day, September 6, 1961, P.W. 12, Yelamanchili Malikharjuna Rao, medical practi-tioner at Surampalli and leading member of the Communist Party was approached by the occupiers to assist them in represent-ing to the authorities against the high-handed action of the Mokha-E sadars. report was prepared by P.W. 12 which was addressed to the. Sub-Inspector of Police. The Sub-Inspector promised to send his constables to the spot and on this assurance the occupiers went back to their village. On September 7, 1961 under the direc-tion of the Police Sub-Inspector two police constables went to the Kunta with the object of getting the bund removed and if possible to bind over the parties. The Kunta was full of water and the paddy crop was submerged. Six of the occupiers were also pre-sent at the spot. The police constables informed the persons pre-sent keeping watch on the bund, which included accused no. 1 Gottipulla Venkatasiva Subbarayanam, accused no. 2 Gottipulla Bapaiah and accused no. 10, Charugulla Vijayaramarao, that the Sub-Inspector had directed the western bund to be removed so that water may flow westwards. Accused nos. 1, 2 and 10 asked for Government orders to that effe.ct and declined to allow the bund to be removed in the absence of such an order. The police constables asked the pai;ties present to meet the Sub-Inspector on the following day. Neither party, however, went to the police station as required. The Tahsildar also appears to have been approached to get the bund removed but he declined to do so on the ground that it was not his business and that it was for the Revenue Divisional Officer to look into the matter. On Septem-ber 9, 1961 the Sub-Inspector sent head constable along withthe constable who had gone there on September 7, to enquire into the complaint made to the police earlier. According to the repart prepared by the head constable accused no. 10 was firm and em-phatic that the bund could not be removed in the absence of. Government order to that effect. Bonds were, therefore, secured from accused nos. 2 and 3 and also from the occupiers for appear-ance before the Sub-Inspector on the following morning. It appears that these steps by the police produced no tangible result. The occupiers realising that their crops were being irreparably damaged made frantic efforts to get the bund removed and with that ooject they approached some ryots of the surrounding villages to intervene on their behalf and to persuade the Mokhasadars to remove the und. After the police party had left Surampalli on the evening of September 9, P. W s. 13 and 14 and some other oc-cupiers proceeded to Gannavaram and approached some persons belonging to the Communist Party and apprised them of their plight. The occupiers were assured of their suppart on the follow-ing morning. On the morning of September 10, P.W. II, Katra-gadda Pedavenkatarayudu accompanied by P.W. 6, Koli Naga-bhushanam, and Anne Rama Rao (deceased no. 1) went to Mus-J) tabada on their way to Surampalli. At Mustabada they contacted Chinna Anjayya (deceased no. 2) and P.W. 15, Pendyala Venka-teswara Rao,. and from there they all proceeded to Surampalli. At the Panchayat Board Office at Surampalli they collei:ted P.W. 1, Madhukuluri Satyanarayana, P.W. 4, Kolampatta Venkata Sub-bayyachari, P.W. 5, Jasti Ramarao. P.W. 7; Garimella Subbarao, P.W. 8, Garimella Venkataiah, P.W. 9, Mukkala Veeraiah and deceased no. 3, B. Lakshmayya and also the six occupiers of the Kunta and two or three other persons. P.W. 12, Y. Mallikarjuna Rao also arrived there. message was sent through P.W. 13 to bring accused nos. 1 to 4 to the Panchayat Board office but they were reported lo be at the Kunta. Then all the persons gathered at the Panchayat Board office numbering about 20 proceeded to the Kunta at abouc IO a.m. on September 10. Accused nos. 1 to 9 were found near the huts whereas accused no. 10 with gun was standing about 25 yards to the southeast of the huts. Accused nos. 2 and 4 had spears whereas accused nos. 1 and 5 to 9 had sticks with them. P.Ws. I, 4, deceased no. 1, P.W. I I and others are stated to have requested accused nos. 1 to 4 to remove the bund and save the growiltlg crop belonging to the poor men. The accused declined to do so. Thereuoon the six occupiers went to-wards the bund about 25 yards to the north of the huts and started themselves removing Portion. Accused nos. 1 to 9 thereupon rushed at them to beat them. At that stage P. W. 5, Jasti Rama-rao, P.W. 7, Garimella Subba Rao and some others who had come to mediate intervened but they were beaten by the accused. The prosecution witnesses in turn snatched the sticks from some o.f the accused persons and retaliated causing injuries to some of them.

At this point of time accused no. 10 who was standing near the huts shouted that the party of the occupiers would not go back unk>s sllot at and asked his companions to come back. Accused nos. l to 9 started retreating towards the huts. Deceased no. 1 and P.W. I who was about JO yards southeast of the huts at that time went towards accused no. 10 challenging him to shoot if he dared and saying that they were prepared to be shot for just caus:. Accused no. I 0 then stepped forward and fired at de-ceased r.o. l "from distance of about 10 yards. Crying out "Abba'" deceased no. 1 fell down and died on the spot. pel-let grazed the nose of P. W. 1 who was couple of yards. '::t:hind deceased no. l and he too fell down. According to the prosecu-tion version accused no. 2 hit P.W. l at the back as result of which P.W. l also fell down unconscious. Accused no. 10 is stated to have fired another shot towards the west as result of which P.W. 6 was injured. Accused no. 10 then re-loaded his gun and fired shot towards the west and this hit deceased no. 2 who also fell down dead. The fourth shot was fired by accused no. 10 in the northwestern direction which hit deceased no. 3 who was about 25 yards away from the huts and he too fell dowq dead. P.Ws. 2, 3, 8, 9 and 10 also received pellet injuries in the course of this firing. This, broadly speaking, is the prosecution case.

According to the defence version sought to be supported by four defence witnesses the gun used during the occurrence was brought by accused no. 1 who holds the necessary licence for this fire arm and it was he who used it in execcise of the right of private defence after accused [),OS. 2 to 4 had received injuries at the hand of about 200 or 300 communists who had come to the place of occurrence from the house of P.W. 12. They were armed with sticks and spears and were also carrying their flag. They were raising party slogans and shouting that Gottipulla people should be killed. They tried forcibly to remove the bund and on being obstructed by accused nos. 2 to 4 and their servants working at their farm the occupiers and the communists gave severe beat-ing IQ the latter. Accused no. 1 came to the spot with his gun and fired at the aggressors in exercise of the right of private de-G fence. Accused no. 10, according to this version, was not present at the spot. Jn his statement under s. 342, Cr.P.C. this accused pleaded alibi by stating that he was at Sivapuram, Kadapa district on the fateful day having gone there weeks before and that he knew nothing about this occurrence; according to him he stay-ed in Sivapuram for .about one month and himself surrendered in ~he Magi,trate's court on hearing that he was named as an accus-H ed in this case. The trial court did not accep~ his plea of alibi nor did. the High Court accept it and we do not find any cogent ground for disagreeing with this· conclusion.Now, the fac:ts in the background of which the question of right of private defence is to be consider~d are that the Kunta was the property of the Government and it was registered as source of irrigation in the year 1958 or 1959. The occupiers were thus .cultivating the Kunta in an unauthorised manner. Both sides had also secured injunction orders from,the civil court against their opponents and the. orders sec11red by the accused restrained the opposite party (plaintiffs in the suit) from cutting any breaches in the bund. The accused no doubt seemed to have put up the present bund after the occupiers had grown their crops but it is clear that for c-ouple of years previously there was insufficient rain and ther.~ was also no cultivation in the Kunta. The present bund was apparently raised on September 4, because it was on the morning of September 5, that the existence of the bund is stated to have been noticed by the occupiers. Thereafter the occupiers approached the police authorities for assistance in getting th~ bund removed but unfortunately t)le matter was not dealt w:th by the authorities in an effective manner as they ought to have. Haviin,g failed in their attempt to have the bund removed, the occupiers with their communist helpers seem to have gone to the spot on the day of the occurrence to help themselves. Up to this stage there does not seem to be any controversy. The only difference bet-ween the rival versions relates to the question, whether or not the party of the occupiers was armed and their number. The pro-secution witnesse5> would have us believe that they (the occupiers) along with some of their friends and supporters had gone to the Kunta unarmed to peac~fully persuade the accused persons to remove the burn! and that ti)e accused persons beat them up with sticks and spears. The occupiers, acting merely in self-defence, snatched the sticks and spears from some of the accused persons ~nd gave them beating whereupon accused no. 10 used his gun. 1c'ldiscriminately firing at the party of the occupiers. The accus-ed, on the other hand, claimed that the par~y of the occupiers; helped by prominent communists which far outnumbered the ac-cused persons were anned with sticks and spears and. they forcibly tried to remove the bund and when the accused objec~ed they were beaten up. Apprehending danger to their lives, the gun was used on behalf of the -party of the accused persons. It was tlrns in exer-cise of the right of private defence that this gun was used. It may at this stage be pointed out that the· accused persons had also reported the matter to the police but on the plea that the police was siding with the occupiers and favouring them the accused persons filed complaint ih the court of Magistrate against 35 persons and both the cases were tried simultaneously.

As each side is blaming the other of being the aggressor and the witnesses for the prosecution deposing to the occurrence as ·eye witnesses are clearly interested in the occupiers the nature and

extent of the injuries suffered by the men of the two factions would serve as more reliable material for arriving at the truth. It is in this connection noteworthy that even according to the prosecution witnesses the party of the occupiers consisted of not le~s than 20 persons. We may now tutn to the wound certificates of the ac-cused persons. Gottipulla Venkata Siva Subbarayanam, aged 60 years, accused no. 1, had 10 injuries on his person mainly on the head, base of the neck and the shoulders and dying declaration was considered necessary by the Civil Assistant Surgeon. Gotti-pulla Bapaiah, aged about 50 years, accused no. 2 had the follow·· ing in juries on his person :

1. contusion 12" in length x t" with raised edges

placed diagonally across the upper 1/3 of left half of the back, the lower and towards the spine and the upper end towards the shoulder. Brownish red in colour;

2. contusion brownish red in colour l" in diameter situated on the right shoulder;

3. Whole of the right shoulder joint swollen and brownish red im colour. Movemen~s at right shoulder joint restricted;

4. contusion bluish in colour 3" in diameter on

the outer aspect of upper t of the right arm;

5. contusion 6"X !" with raised edges situated diagonally across the right side back, the outer end to-wards the axilla and the upper end towards the neck. Brownish in colour;

6. Whole of the right hand swollen and tender brow-

nish red in colour;

7. lacerated injury 2" x !" scalp deep situated on

the left parietal eminence 4" above Pinna of left ear. Clotted blood seen in the wound and is placed trans-versely;

8. An incised wound transversly placed on the right ha!f of centre of occiput at the back of head 1 t" x 1/ 4" scalp deep. Clotted blood found in the wound.

X-ray report disclosed M.C. dislocation of right acromio c!avicu-lar joint.

Gottipulla Seshayya, aged 50 years, accused no. 3, had two injuries on his person one of which was incised wound scalp deep situated diagonally on the front half of right parietal bone. Dying declaration was not considered necessary and he was discharged from the hospital on the 16th September, 1961 after six days.

Gottipulla Subba Rao, aged 48 xears, accused no. 4 had :i brownish red contusion with raised edges and small al»a6ion 01<e~ it situated transversely on the right forearm, 1/3 of which was-swollen and tender. There was fracture of the bone b~lo"'­He also remained in the hospital from September 10, to Septenr: ber 16.

Korlagunta Narayana Rao, aged 35 years, accused no. $ had four injuries on his person including lacerated injury 2" '< J" scalp deep on the. froin.t of the right parietal bone, t" to the right of mid line of skuil and another similar injury !" x t" scalp dee,p on contusion 3" in diameter, brownish red in colour at the hack of junction of both parietal b~nes in between parietal emine,nces.

Shaik Madarsaheb, aged 25 years, accused no. 6, ·!lad Jive injuries on his person including contJsion. He too ret!lllined in the hospital for six da~s upto s~ptember -16, 1961.

Thota Seethararnayya, aged 40 years, accused no. 7 had simple injury on his right hand ringiinger.

Accused no. 8, Thota Subba Rao, aged 22 years had only contusion on right buttocks.

These injuries quite clearly suggest that the party of occupiers did not consist of few unarmed persons who had no design to forcibly remove the bund. It is the prosecution case that the accused were determined not to allow the bund to be removed without an order from the Government authorities and that they were prepared to use force to protect the bund. The accused were also armed with the gun belonging to accuse:! no. I and thi; was fully known to the occupiers. In this background it is not possible to accept the story that the prosecution witne;ses had gone to the Kunta unarmed and it was onlv when they were beaten by the accused persons that they in self-defence snatched the sticks and spears from some of the accused persons and beat up the others with those sticks and spears. Some of the injuries found on the persons of the prosecution witnesses were of course caused by blunt weapons lmt most of the injuries were, according to the medical evidence caused by gun shots.According to the trial court both parties asserted their respec-tive claims, t)le occupiers to the use c.' the land in the Kunta for cultivation and the accused IO the use of the Kunta as source of supply of rain water for irrigating their land and these conflicting riW!ts could not co-exi;t. When the prosecution witnesses attempt-ed forcibly to remove the bund the trouble flared up. The two factions had also affiliations with two different political parties :

the occupiers had full support of the Communist Party and accus-ed no. IO was member of the Mandal Congress.· The court also did not believe the prosecution version that prosecution wi~­nesses had gone to the Kunta to peacefully persuade the accused persons to remove the bund. It held the occupation of the Kunta by the occupiers tQ be unauthorised after its registration as an irri-B gation tanlcs. It further held that the bilnd as it existed on Sep-tember 5, 1961 had been raised by the accused persons but thete were sluices and vents in the Southern bund. The court also found that water from Errache·uvu used to flow into the .bund of the Kunta from where it passed on to the fields of the accused nos. 1 to 4 with the result that the accused persons were justified in raising the bund and if there was any contravention of the civil court's injunction the occupiers should have approached that court for appropriate relief. It was on this line of reasoning that the action of the accused in protecting the bund was upheld. On consideration of the prosecution evidence the trial court observed that notwithstanding the denial of his presence at the spot by ac-cused no. l 0 it was open to him to say that on the prosecution evidence itself he must be held to have acted in exercise cf the right of private defence and so observing that court expressed its conclusion thus :

"The facts and circumstances elicited in the prosecu-tion evidence referred to above clearly establish that the accused l to 9 were maintaining right at that time, that . the bund was being removed by men on the other side and the men on the other side also inflicted simple and grievous injuries on the accused l to 9. In such sit-uation it was open either to any of the accused l to 9 or even to the l 0th accused to do something to avert fur-ther beating. The beating to the extent to which it took place resulted in grievous injuries to some of the accus-ed. Under these circumstances it has to be held that the fact!!" disclose situation in which the l 0th accused can well claim to have acted in the exercise of the right of private defence. Charges 4 to 6, !O to 13, 15 to 17 against the 10th accused, therefore, fail. Consequent-G ly, the charges 7, 8 and 9 against the remaining accus-ed also fail."

• In regard to the other char,\les, after discussing the e.vidence m the case and other material on the record and criticising the failure on the part of the police authorities to take effective and timely measures in advance to prevent the occurrence in question the trial court came to the conclusion that in regard to the actual beating suffered by the members of both parties the evidence was so oonflicting and their respective versions so distorted that

no definite finding. could safely be arrived at. AU that emerged from the material in \]le court's view was that the accused wanted '· ··to retain the burid \vhich the prosecution party wanted to remove and the fight ensued. On this view the accused were acquitted.

AU that emerged

On appeal Basi Reddy J., who disposed it of in the High Court llnder s. 429, Cr.P.C. felt that the case put forward by the.prose' cution was ·substantially true and the case set up by the defence palpab:y false. According to the learned Judge neither the accused had right to put up the bund nor had the occupiers right to encroach on the bed of the Kunta. The injunction order in fa-vour of 'the accused was only based on the existence of bund at the time of the order and thus did not entitle the accused to raise new bund whereas the injunction order in favour of the occupiers restrained the accused persons from interfering with the enjoyment of the Kunta by the occupiers. The accused who had .. raiseq the bund l!'rid who being fully armed were de~ermined to •guard· and preserve it by use of fo!ce were held by the learned Judge to constitute an unlawful assembly. Accused nos. 2, 4 and IO were held to be armed with deadly weapons and therefore guilty of s. 148, l.P.C. and the other accused were held guilty under s. 147, I.P.C. The right of private defence was also nega-tived by the'learned Judge. It was observed that this right had not been pleaded by accused no. 10 and on the prosecution evi-dence the accused had first attacked the mediators on their inter-vention. ·to prevent ·the occupiers being beaten up and it was thereafter that P.Ws. 5 and 7 and others beat the accused persons in retaliation. The High Court did not consider it material whet-. her the prosecution witnesses and others had brought with them sticks of had snatched the same from the accused persons and sustenance of injuries by accused nos. 1 to 8 in this connection was held not to give rise to any right of private defence. Holding the use of the gun by accused no. I 0 to be his individual act inde-pendent of the object of the assembly he alone was held guilty of the offence of murder.

In our opinion the High Court has misconceived the law in regard to the right of private defence and the appeal has, there-fore, to be allowed·. The 'right of private defence of person and property is recognised in all free. civilised, democratic societies within certain reasonable limits. Those limits are dictated by two considerations : (1) that the same ri~ht is claimed by all other members of the society and (2) that it 1s the State which generally undertakes the responsibility for the maintenance of· law and or-der.. The citizens, as general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as result of unlawful aggression, nor are they expected, by use of force, to right the wrongs done to

them or to punish the wrongdcer for commio~ion of offences. The right ofprivat.: defence serves social purpose and as observed by this Court more 'hain once there is nothing more degrading to the human spirit than to ruu away in face of peril; (Munshi Ram v. Delhi Administration(') and Kishna 1•. State of Rajasthan([2]). But this right is ba;ically preventive and not punitive. lt is in this background that the provision;. of ss. 96 to 106, I.P.C. which deal with the right of private defence have . to be construed. According . to s. 96 nothing is an offence Wlfkh is done in the exercise of the right of private defence and uncler s. 97 subject to the restrictions contained in s. 99 every person ·has right to defend : ( 1) his own body and the body of any other person against any offence affecting the human body and (2) the property whether movable or immovable of himsdf or of any other person against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit these offences. The right of private defence, according to section 99, does not extend to an act which doe& not reasonably cause the apprehension of death or of grievous hurt if done or attempted to be done by puMic servant acting in good faith etc., and there is also no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Nor does it extend to the inflicting of more harm than is necessary to inflict for the purpose of defence. Section 100 lays· down the circumstances in which the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailants. They are: (1) if the assault which occasions the exercise of the right reasonably causes the apprehension that death or grievous hurt would other-wise be the consequence thereof and (2) if such assault is inspired by an intention to commit rape or to gratify unnatural lust or to kidnap or abduct or to wrongfully confine person under circum-stances which may reasonably cause apprehension that the victim would be unable to have recourse to public authorities for his release. In case of less 1>erious offences this right extends to causing any harm other than death. The right of private defence to the body commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as the apprehension of danger to the body conti-nues, The right of private defence of property under s. 103 ex-tends, subject to s. 99, to the voluntary causing of death or of any other harm to the wrongdoer if the offence which occasions the exercise of the right is robbery, house-breaking by night, mis-H chief by fire on any building etc., or if such offence is, theft, mis-

(1) Cr!. A. No: 124 of 1965 decided on 27.11.1967.

(2) Crl. A. No. 23of1960 decided on 30.10.1961. L 7Sup.Cl(NP) \1 ~ -13

chief or house trespass in such circumstances as may reasonably cause apprehension that death or grievous hurt will be the conse-quence, if the right of private defence is not exercised. This right commences when reasonable apprehension of danger to the property commences and its duration, as prescribed in s. 105, in case of defence against criminal trespass or mischief, continues as Jong as the offender continues in the commission of such offence. Section 106 extends the right of private defence against deadly assault even when there is risk of harm to innocent persons.In the case in hand it is undoubtedly true that the accused persons are found to have raised the bund after the rainfall of September 4, 1961. But it is indisputable that the occupiers had ample opportunity of approaching the public authorities concern-ed if they felt that their right had been encroached upon. It is noteworthy that the accused persons had accomplished the raising of the bund Jong before the occupiers noticed it. civil suit had already been instituted by them as far back as 1957 in respect of their right to cultivate the Kunta. In that suit permanent in-junction had been sought against the defendants and their agents etc., restraining them from interfering with the plaintiff's posses-sion and enjoyment of the disputed land. Damages amounting to Rs. 300/- were also claimed in that suit for loss suffered by the plaintiffs as result of trespass alleged to have been committed by the defendants on the said land. This suit was pending anhe time of the occurrence in question and as observed earlier in February, 1960 both sides had secured injunctions in this suit. The police authorities had also been approached by the occupiers with complaint against the recent raising of the bund by the accused persons couple of days prior to the present occurrence. If the Sub-Inspector concerned was guilty of grave dereliction of duty· (as in our opinion he clearly was) the higher authorities could easily have been approached by the occupiers and their supporters. Even the civil court could have been. moved with complaint that the accused persons were interfering with the occupiers' possession and enjoyment of the Kunta. But instead of having recourse to these steps the occupiers and their supporters decided to go to the spot in large numbers folly determined to remove the bund by use of force. \Vhen this attempt was foiled by the accused persons with show of force the party of the prosecution witnesses merci-lessly beat up some of the accused persons who were advanced in age. This conduct on the part of the occupiers and· their suppor-ters was, in our opinion, sufficient, on the facts and circum-stances of this case, to give rise to reasonable apprehension in the mind of accused no. 10 that the victims of this assault would have been killed had he not exercised the right o.f private defence. The use of the gun by accused no. 10 against the members of the opposite faction would thus seem to be justified. It may be

.· recalled that accused rio. 1 ~gt:<! about 60 years; who is the father-in-law of accused no. 10 _had received as many as 10 in- . juries mostly on vital parts_ of the body and accused no. 2 about. 50 years old had· also been subjected to ·severe beating. In situation like this it .is not possible for an average person whose mental excitement can be better imagined than described, to weigh . the position in golden scales and it was, in our opinion, well-nigb impossible for the person placed in the position of accusr.A no. 10 to take calm and objective view expected in the detached -.. atmosphere of .. court, . and calculate with arithmetical precision as to how much force would effectively serve the purpose of self-defence and when to stop.. It appears that the persons agains~-- . whom the gun was used were the real·aggressors_from whom ac-cused no. 10, agitated in mind as be must be at that time, ap-prehended grave danger to, the lives ·of -the other accused persons and_ ultimately to himself. We are, therefore,. satsified that ac-cused no. 10 was fully justified in using his gun in exercise of the right of private defence against the party of the prosecution wit-nesses who had come to the spot in support of the occupiers to use force in removing -the bund and who actually did use it and mercilessly beat up the accused persons and that accused no. 10 · did not exceed this right. _ _ ___ · · ·· The fact that the plea of self-defence was notr~isecl°by accused no. 10 and that be had Qn the contrary pleaded •alibi does not in our view, preclude the Court from giving to him the benefit of the right of private defence, if, on proper . appraisal of the evidence and other relevant material on the record; the 'Court concludes that the circumstances in which be found himself at the relevant time gave him the right to use his gun in exercise of this right, When thei:e ·is ·evidence proving that person accused of killing or injuring ·another acted in. the exercise of the right of private defence the Court would not be· justified in. ignoring that evidence and convicting the accused merely because . the latter has set up defence of alibi and set forth plea different. from the nght of private defence. The ana!Ogy of estoppel or of. the technical rules o.f civil pleadings is, in cases like the present, in-appropriate and the Courts are expected to administer the law of private defence in practical way with rea.>onable liberality so as to effectuate its undei;lying object,. bearing in mind that the essen-tial basic_ character of this right is preventive· and not retribu-tive. The approach of the High_ Court in this matter, seems to us --to be erroneous. We accordingly allow the appeal and acquit . the appellants. · · V.P.S. -Appeal allowed . allowed .

-Appeal allowed . allowed .