Full Judgment Text
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PETITIONER:
GOTTIPULLA VENKATA SIVA SUBRAYANAM & ORS.
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH & ANR.
DATE OF JUDGMENT:
19/01/1970
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
HIDAYATULLAH, M. (CJ)
RAY, A.N.
CITATION:
1970 AIR 1079 1970 SCR (3) 423
CITATOR INFO :
RF 1970 SC1321 (17)
RF 1973 SC 473 (4)
ACT:
Indian Penal Code (Act 45 of 1860), ss. 96 to 106-Right of
private defence-Scope of-Plea not raised by accused--Duty of
Court, when there is evidence showing right of private
defence.
HEADNOTE:
With respect to a kunta, which was government property,
certain persons who had occupied a part of the land in the
kunta and the accused, were asserting 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 a source
of irrigation. The occupiers and accused belonged to
opposite political factions. A suit was filed by the
occupiers and the civil court passed two orders of
injunction, one restraining the accused from interfering
with the occupiers’ possession, and the other, restraining
the occupiers from opening sluices in the bund of the kunta.
While the suit was pending the occupies raised corps on
their land and the accused raised a new bund. Since their
crops were being damaged as a result of the raising of the
new bund, the occupiers approached the police ’authorities
and tahsildar for the removal of the bund, but they did
not give any effective help. The accused were not willing to
allow the removal of the bund without any Government order.
Thereupon, the occupiers and their supporters, numbering not
less than twenty went to the spot to remove the bund by
force, but the accused were present at the spot determined
not to allow the bund to be removed. 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 Surgeon who attended on him thought it was neces-
sary to take a dying declaration from him. The second
accused who was about 50 years old, was also subjected to
severe beating. Some of the other accused also received
injuries. The tenth accused, who had a gun in his hand, and
who was the son-in-law of the first accused, shot at the
actual aggressors and killed three of them and injured
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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 other accused asserted that the
party of the occupiers were the aggressors and that they
acted in self defence. Holding that it 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 private
defence, the High Court convicted some of the accused for
the offence under ss. 147 I.P.C., to,- the offence under s.
148 I.P.C., and the tenth accused for the offences of murder
and grievous hurt with a dangerous weapon.
In appeal to this Court,
HELD : (1 ) When they went to the scene, the occupiers knew
that determined not to allow the removal of the bund without
an order from determined not to allow the removal of the
bund without an order ’from the Government authorities. In
the circumstances the occupiers and their
424
supporters must have gone to the kunta fully armed, and it
was not possible 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 a 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 decided to go to the
scene in large numbers fully determined to remove the bund
by force. When that attempt was foiled by the accused with
show of force, the members of occupiers’ party mercilessly
beat up some of the accused persons who were advanced in
age. In such a situation it was not possible for an average
person placed in the position of the tenth accused, to take
a calm and objective view and calculate with arithmetical
precision as to how much force would effectively serve the
purpose of self-defence and when to stop. He only used the
gun against the real aggressors from whom he apprehended
grave danger to the lives of the other accused persons and
to himself. Therefore, he was fully justified in using his
gun in the exercise of the right of private defence against
the party of the occupiers. [438 C-D, E-H; 439 A-E]
Except as against acts of public servants acting in good
faith and when there is time to have recourse to the
protection of public authorities, under s. 97 I.P.C., every
person has a 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 of himself or of any other person
against theft, robbery, mischief, of criminal trespass.
Such a 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 the
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
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right of private defence, the court would not be justified
in ignoring that evidence and convicting the accused merely
because he had set up a defence of alibi and set forth -a
plea different from the right of private defence. Courts
are expected to administer the law of private defence in a
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 defence. [439 F-H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 75 of
1967.
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.
Nur-ud-din Ahmed, A. V. Rangam, A. Vedavalli and D. Gopala
Rao, for the appellants.
P. Ram Reddy and A. V. V. Nair, for the respondents.
425
The Judgment of the Court was delivered by
Dua, J. In this appeal by special leave directed against.
the order of the Andhra Pradesh High Court, the only
question canvassed 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 is 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 a
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 by s. 429, Cr. P.C. That
learned Judge accepted the prosecution case and convicted
the appellants on some of the charges. He expressed his
final conclusion thus :
"I shall now indicate the charges upon which the accused
should be convicted and the sentences that should be
imposed:
On charge no. 21 would convict accused 1, 3 and 5 to 9 under
section 147, I.P.C. and on charge no. 3 accussed 2, 4 and 10
and sentence each of accused 1, 2,3, 4 and 5 to pay a fine
of Rs. 5001/- in default each to suffer six months’ rigorous
imprisonment. I would sentence each of accused 6 to 9 (who
are farm servants) to pay a fine of Rs. 100/- in default to
suffer two months’ rigorous imprisonment. 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 sentence
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. 221 would convict accused 10 under
section 19(a) of the Indian Arms Act and sentence 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 uphold the order of
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acquittal on other charges.
426
The net result will be that accused 10 will have to undergo
imprisonment for life; accused 1 to 5 will each have to pay
a fine of Rs. 500; and accused 6 to 9 will each have to pay
a fine 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 there
".... ......... .........
Secondly : that you accused nos. 1, 3 and 5 to 9 along with
accused nos. 2, 4 and 10 at about 10 a.m. on 10-9-61 at the
same place and in the course of the same transaction 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 and killing the
members of the lakunta, committed an offence
of rioting and that at that weapons to wit,
’spears’ and the 10th accused was armed and
within my cognizance;
Thirdly : that you accused nos. 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 assembly and did in
prosecution of the common object of such assembly, viz
:beating and killing the members of the party that came in
support of the occupiers of Gabbilalakunta, committed an
offence of rioting and that at that time, the accused nos. 2
and 4 -were armed with deadly weapons to wit, ’spears’ and
the 10th accused was armed with a D.B.B1 Gun and thereby
committed an offence punishable under section 148 of the
Indian Penal Code and within my cognizance;
Fourthly : that you accused no. JO 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 Anne Ramarao, son of Seetha
Ramarao of Atkur by shooting him with a D. B. B1 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 intentionally or
knowingly causing the death of Bodapati China Anjaiah s/o
Danaiah of Mustabada by shooting
427
him with a D.B.B I gun and thereby committed an offence
punishable under section 302 of the Indian Penal Code and
within my cognizance;
Sixthly : 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 intentionally or
knowingly causing the death of Boddapati Lakshmaiah s/o
Kotaiah of Medaripalem, hamlet of Verudupavuluru by shooting
him with a D.B.B1 gun and thereby committed an offence
punishable under section 302 of the Indian Penal Code and
within my cognizance;
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 Davajigudem by means
of a D.B.B1 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
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the unlawful assembly 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 a D.B.B1 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 Court, as already observed, the appellants’ learned
Advocate confined his- submission only to the question of
right of private defence. According to the prosecution
case, there is a low lying area covering. about 11 acres
known as Gabbilalakunta (hereafter to be referred as the
Kunta) about one mile away from Surampalli village but
within its limits. This Kunta serving as a tank is fed by
rain water. The village of Surampalli was a Mokhasa village
in the erstwhile zamindari of Mirzapuram. Under
428
the provisions of the Madras Estates (Abolition and
Conversion into Ryotwari) Act, 1948, the zamindari of
Mirzapuram was taken over by the Government in 1950. As a
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 13 and 14,
Shaik Madarsaheb and Kandavalli Anandam, began cultivating a
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 list
from the occupants. Accuse4d nos. 1 to 4, Gottipulla
Venkatasiva Subbarayanam, Gottipulla Bapaiah, Gottipulla
Seshaiah and Gottipulla Subba Rao, who are the ,former
Mokhasadars have their lands measuring about 80 acres to the
south of the Kunta. ’There is a big tank called Erracharuvu
located about three or four furlongs 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. According
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 a source of
irrigation for an ayacut of 34 acres. Prior to that,
sometime in August 1957, the occupiers of the Kunta had
instituted a 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 a temporary injunction
in the following terms
"Pending disposal of this petition, the respondents are
restrained fro -in opening the sluices or outlets or cutting
any breaches to the bund of the tank situated in S. No. 44
if there is any bund......"
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On February 3, 1960 the Court confirmed both the orders of
injunction mentioned above. The land in the Kunta was not
cultivated 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 a part of the Kunta. Another part of the Kunta was
prepared for raising
429
jonna crop. The suit mentioned above was still pending when
on September 4, 1961 it was adjourned to some other date.
It rained heavily that night and the,, rain water collected
in the Kunta. On the following morning- when P.W. 13 and
P.W. 14, along with some other occupiers passed by the side
of the Kunta they saw a 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, 2-1/2 wide and 25 yards in length. There
being no one present at the bund P.Ws 13 and 14 and their
companions made a 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 a 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, a medical practitioner at
Surampalli and a leading member of the Communist Party was
approached by the occupiers to assist them in representing
to the authorities against the high-handed action of the
Mokhasadars. A 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 direction 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 present
at the spot. The-police Constables informed the persons
present keeping a 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
effect and declined to allow the bund to be removed in the
absence of such an order. The police constables asked the
parties 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 September 9, 1961 the Sub-Inspector sent a head constable
along with
430
the constable who had gone there on September 7, to enquire
into the complaint made to the police earlier. According to
the report prepared by the head constable accused no. 10 was
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firm and emphatic that the bund could not be removed in the
absence of a Government order to that effect. Bonds were,
therefore, secured from accused nos. 2 and 3 and also from
the occupiers for appearance 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 object they
approached some ryots of the surrounding -villages to
intervene on their behalf and to persuade the Mokhasadars to
remove the bund. After the police party had left Surampalli
on the evening of September 9, P.Ws. 13 and 14 and some
other occupiers proceeded to Gannavaram and approached some
persons belonging to the Communist Party and apprised them
of their plight. The occupiers were assured of their
support on the following morning. On the morning of
September 10, P.W. II, Katragadda Pedavenkatarayudu
accompanied by P.W. 6, Koli Nagabhushanam, and Anne Rama Rao
(deceased no. 1) went to Mustabada on their way to
Surampalli. At Mustabada they contacted Chinna Anjayya
(deceased no. 2) and P.W. 15, Pendyala Venkateswara Rao, and
from there they all proceeded to Surampalli. At the
Panchayat Board Office at Surampalli they collected 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. A message was
sent through P.W. 13 to bring accused nos. 1 to 4 to the
Panchayat Board office but they were reported to be at the
Kunta. Then all the persons gathered at the Panchayat Board
office numbering about 20 proceeded to the Kunta at about 10
a.m. on September 10. Accused nos. 1 to 9 were found near
the huts whereas accused no. 10 with a gun was standing
about 25 yards to the southeast of the huts. Accused nos. 2
and 4 had spears whereas accused nos. 3 and 5 to 9 had
sticks with them. P.Ws. 1, 4, deceased no. 1, P.W. II and
others are stated to have requested accused nos. 1 to 4 to
remove the bund and save the growing crop belonging to the
poor men. The accused declined to do so. Thereupon the six
occupiers went towards the bund about 25 yards to the north
of the huts and started themselves removing a portion.
Accused nos. 1 to 9 thereupon rushed at them to beat them.
At that stage P.W. 5, Jasti Ramarao, 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 of the accused persons
and retaliated causing injuries to some of them.
431
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 unless shot at and asked his companions to come
back. Accused nos. 1 to 9 started retreating towards the
huts. Deceased no. 1 and P.W. I who was about 10 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 a just cause. Accused no. 10
then stepped forward and fired at deceased no. 1 from a
distance of about 10 yards. Crying out "Abba" deceased no.
1 fell down and died on the spot. A pellet grazed the nose
of P.W. I who was a couple of yards behind deceased no. 1
and he too fell down. According to the prosecution version
accused no. 2 hit P.W. I at the back as a result of which
P.W. I also fell down unconscious., Accused no. 10 is stated
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to have fired another shot towards the west as a result of
which P.W. 6 was injured. Accused no. 10 then re-loaded his
gun and fired a 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 down 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
exercise of the right of private defence after accused nos.
2 to 4 had received injuries at the hand of about 200 or 300
communist & 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 a severe
beating to the latter. Accused no. 1 came to the spot with
his gun and fired at the aggressors in exercise of the right
of private defence. Accused no.10, according to this
version, was not present at the spot. In 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 stayed in
Sivapuram for about one month and himself surrendered in the
Magistrate’s court on hearing that he was named as an accus-
ed in this case. The trial court did not accept his plea of
alibi nor did the High Court accept it and we do not find
any cogent ground for disagreeing with this conclusion.
432
Now, the facts in the background of which, the question of
Tight of private defence is to be considered are that the
Kunta was the property of the Government and it was
registered as a 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 secured 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 a couple of years previously there was
insufficient rain and there 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 the bund removed but
unfortunately the matter was not dealt with by the
authorities in an effective manner as they ought to have.
Having 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 between the rival versions relates to
the question, whether or not the party of the occupiers was
armed and their number. The prosecution witnesses would
have us believe that they (the occupiers) along with some of
their friends and supporters had gone to the Kunta unarmed
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to peacefully persuade the accused persons to remove the
bund and that the accused persons beat them tip with sticks
and spears. The occupiers, acting merely in self-defence,
snatched the sticks and spears from some of the accused
persons and gave them a beating whereupon accused no. 10
used his gun indiscriminately firing at the party of the
occupiers. The accused, on the other hand, claimed that the
party of the occupiers, helped by prominent communists which
far outnumbered the accused persons were armed with sticks
and spears and they forcibly tried to remove the bund and
when the accused objected they were beaten up. Apprehending
danger to their lives, the gun was used on behalf of the
party of the accused persons. It was thus in exercise 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 a complaint in the court of a
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
433
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 less than 20, persons. We may
now turn to the wound certificates of the accused 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
following injuries on his person :
1. A contusion 12" in length x 1/2" 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. A contusion brownish red in colour 1" in diameter
situated on the right shoulder;
3. Whole of the right shoulder joint swollen and brownish
red in colour. Movements at right shoulder joint
restricted;
4. A contusion bluish in colour 3" in diameter on the
outer aspect of upper 2-1/2 of the right arm;
5. A contusion 6"X1/2" with raised edges situated
diagonally across the right side back, the outer end towards
the axilla and the upper end towards the neck. Brownish in
colour;
6. Whole of the right hand swollen and tender brownish red
in colour;
7. A lacerated injury 2" x 1/2" scalp deep situated on the
left parietal, eminence 4" above Pinna of left ear. Clotted
blood seen in the wound and is placed transversely;
8. An incised wound transversly placed on the right half
of centre of occiput at the back of head 1-1/2" x 1/4" scalp
deep. Clotted blood found in the wound.
X-ray report disclosed M.C. dislocation of right acromio
clavicular 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
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bone. Dying declaration was not considered necessary and he
was discharged from the hospital on the 16th September, 1961
after six days.
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Gottipulla Subba Rao, aged 48 years, accused no. 4 had a
brownish red contusion with raised edges and small abrasion
over it situated transversely on the right forearm, 1/3 of
which was swollen and tender. There was a fracture of the
bone below. -He also remained in the hospital from September
10, to September 16.
Korlagunta Narayana Rao, aged 35 years, accused no. 5 had
four injuries on his person including a lacerated injury 2"
x 1/2 " scalp deep on the front of the right parietal bone,
1/2" to the right of mid line of skull and another similar
injury 1" x 1/2" scalp deep on a contusion 3" in diameter,
brownish red in colour at the back of junction of both
parietal bones in between parietal eminences.
Shaik Madarsaheb, aged 25 years, accused no. 6, had five
injuries on his person including a contusion. He too
remained in the hospital for six days upto September 16,
1961.
Thota Seetharamayya, aged 40 years, accused no. 7 had a
simple injury on his right hand ring ginger.
Accused no. 8, Thota Subba Rao, aged 22 years had only a
contusion on right buttocks.
These injuries quite clearly suggest that the party of
occupiers did not consist of a -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 -accused no. I and this was fully known
to the occupiers. In this background it is not possible to
accept the story that the prosecution witnesses had -one to
the Kunta unarmed and it was only 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 but most of the
injuries were, according to the medical evidence caused by
gun shots.
According to -the trial court both parties asserted their
respective claims, the occupiers to the use of the land in
the Kunta for cultivation and the accused to the use of the
Kunta as a source of supply of rain water for irrigating
their land and these conflicting rights could not co-exist.
-When the prosecution witnesses attempted forcibly to remove
the bund the trouble flared up. The two factions had a1so,
affiliations with two different political parties
435
the occupiers had -full support of the Communist Party and
accused no. 10 was a member of the Mandal Congress. The
court also did not believe the prosecution version that
prosecution witnesses 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 to be
unauthorised after its registration as an irrigation tanks.
It further held that the bund as it existed on September 5,
1961had been raised by the accused persons but there 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
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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 a
consideration of the prosecution evidence the trial court
observed that notwithstanding the denial of his presence at
the spot by accused no. 10 it was open to him to say that on
the prosecution evidence itself he must be held to have
acted in exercise of the right of private defence and so
observing that court expressed its conclusion thus :
"The facts and circumstances elicited in the prosecution
evidence referred to above clearly establish that the
accused 1 to 9 were maintaining a 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 1 to 9. In such a
situation it was open either to any of the
accused 1 to 9 or even to the 10th accused to
do something to avert further beating. The
beating to the extent to which it took place
resulted in grievous injuries to some of the
accused. Under these circumstances it has to
be held that the facts disclose a situation in
which the 10th accused can well claim to have
acted in the exercise of the right of private
defence. Charges 4 to 6, 10 to 13, 15 to 17
against the 10th accused, therefore, fail.
Consequently, the charges 7, 8 and 9 against
the remaining accused also fail."
In regard to the other charges, after discussing the
evidence, in 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
conflicting and their respective versions so distorted that
436
no definite finding could safely be arrived at. All that
emerged from the material in the court’s view was that the
accused wanted to retain the bund which the prosecution
party wanted to remove and the fight ensued. On this view
the accused were acquitted.
On appeal Basi Reddy J., who disposed it of in the High
Court under S. 429, Cr.P.C. felt that the case put forward
by the prosecution was substantially true and the case set
up by the defence palpably false. According to the learned
Judge neither the accused had a right to put up the bund nor
had the occupiers a right to encroach on the bed of the
Kunta. The injunction order in favour of the accused was
only based on the existence of a bund at the time of the
order and thus did not entitle the accused to raise a 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 raised the bund and who being fully armed were
determined to guard and preserve it by use of force were
held by the learned Judge to constitute an unlawful
assembly. Accused nos. 2, 4 and 10 were held to be armed
with deadly weapons and therefore guilty of s. 148, I.P.C.
and the other accused were held guilty under s. 147, I.P.C.
The right of private defence was also negatived by the
learned Judge. It was observed that this right had not been
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pleaded by accused no. 10 and on the prosecution evidence
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 whether the prosecution witnesses and others had
brought with them sticks or 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. 10 to be his individual act independent 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,
therefore, 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 right is claimed by all other members of the
society and (2) that it is the State which generally
undertakes the responsibility for the maintenance of law and
order. The citizens, as a general rule, are neither
expected to run away for safety when faced with grave and
imminent danger to their person or property as a result of
unlawful aggression, nor are they expected, by use of force,
to right the wrongs done to
437
them or to punish the wrongdoer for commission of offences.
The right of private defence serves a social purpose and as
observed by this Court more than once there is nothing more
degrading to the human spirit than to run away in face of
peril; (Munshi Ram v. Delhi Administration(1) and Kishna v.
State of Rajasthan(2). But this right is basically
preventive and not punitive. It is in this background that
the provisions 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 which is done in the exercise of
the right of private defence and under s. 97 subject to the
restrictions contained in s. 99 every person has a 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 himself or of any
other person against any act which is an offence failing
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 does, not reasonably cause the
apprehension of death or of a grievous hurt if done or
attempted to be done by a public servant acting in good
faith etc., and there is also no right of private defencein
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 otherwise
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 a person under circumstances which may reasonably
cause apprehension that the victim would be unable to have
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recourse to public authorities for his release. In case of
less serious 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 continues. The right of private defence of property
under s. 103 extends, 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, mischief by fire on any
building etc., or if such offence is, theft, mis-
(1) Crl. A. No.. 124 of 1965 decided on 27.11.1967.
(2) Crl. A. No. 23 of 1960 decided on 30.10.1962.
L7Sup.CI(NP)/70-13
438
chief or house trespass in such circumstances as may
reasonably cause apprehension that death, or grievous hurt
will be the consequence, 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 long 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 concerned if they felt that their right had been
encroached upon. it is noteworthy that the accused persons
had accomplished the raising ,of the bund long before the
occupiers noticed it. A 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 a permanent in.
junction had been sought against the defendants and their
agents etc., restraining them from interfering with the
plaintiffs possession and enjoyment of the disputed land.
Damages amounting to Rs. 300/- were also claimed in that
suit for loss suffered by the plaintiffs as a result of
trespass alleged to have been committed by the defendants on
the said land. This suit was pending at the 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 a complaint against the recent raising of the bund by
the accused persons a 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 a 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 fully determined to remove the
bund by use of force. When this attempt was foiled by the
accused persons with show of force the party of the
prosecution witnesses mercilessly beat up some of the
accused persons who were advanced in age. This conduct on
the part of the occupiers and their supporters was, in our
opinion, sufficient, on the facts and circumstances of this
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-case, to give rise to a 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 of 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
439
recalled that accused no. 1 aged about 60 years, who is the
father-in-law of accused no. 10 had received as many as 10
injuries mostly on vital parts of the body and accused no. 2
about 50, years old had also been subjected to severe
beating. In a 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, wellnigh impossible for
the person placed in the position of accused no. 10 to take
a calm and objective view expected in the detached
atmosphere of a court, and calculate with arithmetical
precision as to how much force would effectively serve the
purpose of selfdefence and when to stop. It appears that
the persons against whom the gun was used were the real
aggressors from whom accused no. 10, agitated in mind as he
must be at that time, apprehended grave danger to the lives
of the other accused persons and ultimately to himself. We
are, therefore, satisfied that accused 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 not raised by
accused no. 10 and that he had on 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
he found himself at the relevant time gave him the right to
use his gun in exercise of this right. 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 the latter has set up a defence of alibi and set
forth a plea different from the right of private defence.
The analogy of estoppel or of the technical rules of civil
pleadings is, in cases like the present, inappropriate and
the Courts are expected to administer the law of private
defence in a practical way with reasonable liberality so as
to effectuate its underlying object, bearing in mind that
the essential basic character of this right is preventive
and not retributive. 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.
440