Holding

The Supreme Court upheld the conviction of the accused under Section 302 read with Section 149 IPC, finding no right of private defence and confirming the existence of an unlawful assembly with a common object of murder.

Summary

The appellants, a group of seven men, attacked D-1 and D-2 who had come to harvest a crop on land the appellants claimed to own. Armed with ballams, gadasas and lathis, the accused inflicted multiple fatal injuries, causing the victims to die on the spot. Eye‑witnesses, the victims' son and nephew, testified that the accused were the aggressors; post‑mortem reports confirmed homicidal death. The accused pleaded private defence, arguing they were lawful owners and the victims were trespassing, but the Court held that the victims posed no threat and the accused were the aggressors forming an unlawful assembly under s.149 IPC with a common object of murder. Consequently, the convictions under s.302 read with s.149 IPC (and s.147) were upheld and the appeals dismissed.

Issues considered

The applicability of the right of private defence under Sections 96‑106 IPC to the accused.
Whether the formation of an unlawful assembly under Section 149 IPC is established.
Whether eye‑witness testimony lacking specific attribution of injuries is sufficient for conviction.
Whether the conviction under Section 302 read with Section 149 IPC is sustainable.

Legislation cited

Code of Criminal Procedure, 1973s. 145, s. 173
Indian Penal Code, 1860s. 104, s. 147, s. 149, s. 300, s. 302, s. 441, s. 96, s. 97, s. 99

Subjects

murderunlawful assemblyprivate defenceIPC Section 302IPC Section 149eye‑witness testimonyland disputehomicide

Judgment

[2009] 10 S.C.R. 322

-
A ABID
v.
STATE OF U. P.
(Criminal Appeal No. 785 of 2004 and Ors.)
JULY 7, 2009
B
[V.S. SIRPURKAR AND R. M. LODHA, JJ.]

Penal Code, 1860 - s.302 rlw s.149 ands. 149 -
Murderous assault by accused armed with weapons - Death
C of victims on the spot - Incident witnessed by close relatives
of victims - Conviction u/s.3021149 and s. 149 by courts
below - Interference with - Held: Not called for - Accused
formed unlawful assembly and shared common object of
committing murder - They were armed with deadly weapons
D and inflicted large number of injuries - Accused were
aggressors - Victims were unarmed when the incident
occurred - Plea of private defence not available to accused
- Evidence of eye-witnesses-close relative trustworthy -
Failure to assign specific injuries to each accused by them
E not fatal.

According to the prosecution case, D 1 and D 2
purchased certain agricultural land from G along with the
crops. On the fateful day, they found that A1 to A7 were
harvesting the crop from their land. On being asked, A1
F and A2 replied that they had purchased the said land
from G. Thereafter, A1 to AG armed with ballam, gandasa
and lathi caused fatal injuries to D1 and 02. D1 's son-PW
1 and his nephew-PW 2 came to the scene of occurrence.
Trial court convicted the accused u/s. 302 rw s. 149 IPC
G and sentenced them to life imprisonment; and also u/s.
149 and imposed nine months rigorous imprisonment.
During pendency of the appeal, AG and A7 died. High
Court upheld conviction of A1 to AS. Hence the present

H 322
ABID v. STATE OF U. P. 323

- appeals.

Dismissing the appeals, the Court

HELD: 1.1. The post mortem reports as well as the
evidence of PW-3 and PW-5 leave no manner of doubt
A

that the death of D-1 and D-2 was homicidal. The deadly B
weapons with which appellants were armed and large
number of injuries inflicted on D-1 and D-2 clearly show
that the appellants shared common object of committing
murder. That the accused persons were more than five
and formed unlawful assembly is amply established. D-1 C
and D-2 died on the spot. The conviction of the accused
under section 302 read with 149 IPC does not suffer from
any legal flaw. [Paras 15 and 26] [331-E; 337-E-F]

1.2. PW-1 and PW-2 are closely related to D-1 and D- 0
2. PW-1 deposed regarding the occurrence of incident.
He was cross-examined at quite some length and except
few minor contradictions, there is nothing that is
sufficient to discredit his testimony. Merely, because he
made no effort to save D-1 and D-2 from attack, it cannot E
be said that he was not present. His presence few paces
away from the place of incident does not seem to be
unnatural at all. PW-2 also deposed about the incident.
PW-2 has not at all been shaken in the cross-ex'"lmination.
It is true that PW-1 and PW-2 are related to D-1 and D-2
but they would not let real culprits go scot free. It does F
'not sound to-rea~on that they would have spared the
actual assailants and falsely implicated the accused
appellants. When as many as seven persons armed with
deadly weapons attacked D-1 and D-2, it would not have
been possible for PW-1 or PW-2 to attribute specific G
injuries to each accused. Thus, the trial court and the
High Court ~id not commit any error in accepting the
evidence of PW-1 and PW-2. [Paras 16, 17, 18, 19 and 20]
[331-E-F; 332-A-E-F-G; 333-D]
H
324 SUPREME COURT REPORTS [2009] 10 S.C.R.

A Anna Reddy Sambasiva Reddy and Ors. vs. State of
Andhra Pradesh JT 2009 (5) SC 617, referred to.

1.3. It is for the accused to establish plea of private
-
defence. The plea of self-defence is not required to be
proved by the accused beyond reasonable doubt. What
B
is required of the Court is to examine the probabilities In
appreciating such a plea. Nevertheless, the accused has
to probablise the defence set up by it. In the instant case,
the accused has miserably failed to establish much less
C probablise, right of private defence. The evidence on
record shows that the accused persons were
aggressors. 0-1 and 0-2 were unarmed when they asked
accused persons as to why they had harvested the
standing crop. Assuming that the accused persons had

D
purchased the agricultural land from G by registered sale
deed and they were in possession but there was no
·.
justifiable reason for them to attack 0-1 and 0-2 with
deadly weapons like ballam, gandasa and lathis, even if
01 and 02 questioned them about harvesting the crop.
In the facts and circumstances of the case, there is no
E scope for any right of private defence as D-1 and 0-2 had
neither put the person nor the property of the accused
in peril. Thus, the trial court as well as the High Court

F
cannot be said to have committed any error in not
accepting the plea of private defence. [Paras 24 and 25)
[336-G-H; 337-A-F]
-
Rajinder and Others vs. State of Haryana 1995 (5) SCC
187; A. C. Gangadhar vs. State of Kamataka 1998 SCC (Cri)
1477, referred to.
G Case Law Reference :
JT 2009 (5) SC 617 Referred to Para 19
1995 (5) sec 187 Referred to Para 22

H 1998 SCC (Cri) 1477 Referred to Para 23
ABID v. STATE OF U. P. 325

-+- CRIMINAL APPELLATE JURISDICTION: Criminal Appeal A

- No. 785 of 2004.

From the Judgment & Order dated 23.10.2003 of the High
Court of Allhabad, Lucknow Bench in ·criminal Appeal No. 488
of 1982,
B
WITH

Criminal Appeal No. 786 of 2004.

Shakil Ahmed Syed for the Appellant.
c
Prashant Chaudhary, Bharat Ram and Praveen Swarup for
, the Respondents.
I
The Judgment of the Court was delivered by
l D
R.M. LODHA, J. 1. These two appeals by special leave
arise out of one and the same judgment rendered by the High
Court of Judicature at Allahabad whereby the criminal appeal
preferred by the present appellants came to be dismissed.

2. Seven persons were sent up for trial to the 1st Additional E
Sessions Judge, Bahraich under Sections 147 and 302 read
with 149 IPC. The trial court convicted all of them under Section
302 read with 149 IPC and sentenced them to life imprisonment.
The trial court also convicted the accused for the offence
punishable under Section 147 IPC and sentenced them to F
suffer.nine months rigorous imprisonment.

3. The prosecution version is as follows:

Gheesey, Chhotey and Tojey are brothers. They resided
in village Bahbolia, Police Station Sonwa, district Bahraich.
The three brothers acquired about 15 bighas of agricultural land G
from one Smt. Prana. They have divided the aforesaid land in
share of 5 bigha each and came into possession of their
respective share. Sattar Khan (since deceased and hereinafter
referred to as 'D-1') and Sabir Khan (since deceased and
H
326 SUPREME COURT REPORTS [2009] 10 S.C.R.

A hereinafter referred to as 'D-2') claimed to have purchased from
Gheesey his share in the agricultural land in the month of
January, 1980 alongwith the crops sown thereon. On March 21,
1980, at about 8.00 A.M., D-1 and D-2 visited the said
--
agricultural land and found that Aggi (A-1 ), Jaijai (A-2), Lakhan
B Pasi (A-3), Abid(A-4), Maqsoodlfl, 5), Khalil (A-6) and Ghulam
(A-7) were harvesting the Arhar crop from that land. D-1 and
D-2 asked them as to why they were harvesting the crop. A-1
and A-2 replied that they had purchased the agricultural land
from Gheesey and being owners of that land, they were entitled
c to harvest the crop. Then A-1and A-5 armed with 'ballam', A-3
and A-7 armed with 'gadasa' and A-2, A-4 and A-6 armed with
'lathi' started attacking D-1 and D-2 with respective weapons.
D-1 and D-2 raised alarm. Peer Mohammad Khan (PW-1) and
Maqsood Khan (PW-2) who were few paces away from the
0 scene rushed to the spot and found that as a result of attack by ''
A-1 to A-7, D-1 and 0-2 sustained fatal injuries and died on
the spot. The accused, having seen PW-1 and PW-2, fled away.

4. PW-1 immediately, went to Police Station, Sonwa and
lodged the first information report at 11.30 A.M .. Sub-Inspector
E Sukh Sagar Singh took up the investigation. He prepared the
inquest report and sent the bodies of D-1 and 0-2 for post
mortem. Dr. P.C. Misra {PW-3) conducted post mortem on the
body of 0-2 on March 22, 1980. The post mortem of dead body
of 0-1 was conducted by Dr. M. Shamim (PW-5) at about 4.30
F P.M. on March 22, 1980.

5. It appears that investigation into the crime changed
hands number of times. After initial investigation done by Sukh
Sagar Singh, the investigation then was handled by Mohammad
G Yunus Khan. Thereafter, the investigation was taken up by Rana
Pratap Singh. After Rana Pratap Singh, the investigation was
conducted by Sheonath Ram and on his transfer, investigation
was further carried by Sarju Ram (PW-6). Initially a police report
under Section 173 Cr.P.C. was filed but on reinvestigation, a
H chargesheet against all the seven accused persons under
ABID v. STATE OF U. P. [R. M. LODHA, J.] 327

--i-. sections 147 and 302 read with 149 IPC was filed. A

6. The matter having been committed to the Court of
Sessions, the accused were charged under Sections 147 and
302 read with 149 IPC.

7. The prosecution in support of its case examined six B
witnesses, namely, Peer Mohammad (PW-1), Maqsood Khan
(PW-2), Dr. P.C. Misra (PW-3), Syed Hasan Jafar (PW-4), Dr.
--" M. Shamim (PW-5) and S.O. Sarju Ram (PW-6). Of the six
witnesses tendered, PW-1 and PW-2 were examined as eye
witnesses. c
8. A-1 and A-2 set up the defence that while they were
harvesting the crop in their agricultural field, D-1 and D-2 came
there with few others and attempted to take away the harvested
/ crop. On alarm being raised by them, the villagers came and
D
assaulted D-1 and 0-2. As a result of which 0-1 and D-2 died.
A-1 also set up the plea that Gheesey had sold his agricultural
land by registered sale deed in his favour and other family
members and that they are in possession of the subject land
as purchasers.
E
9. A-3, A-4, A-5, A-6 and A-7 denied to have participated
in the assault at all. They set up the defence that they have been
--1
falsely implicated at the instance of one Mulayee with whom they
were on inimical terms.
F
10. The trial court accepted the evidence of PW-1 and PW-
2 and held that the prosecution has been able to establish
beyond all reasonable doubt the involvement of the accused
persons in the murder of D-1 and D-2. The trial court was not
persuaded by the plea of private defence.
G
).
11. During the pendency of appeal before the High Court,
A-6 and A-7 died and, accordingly, appeal on their behalf stood
abated. As regards the remaining appellants, A-1 to A-5, High
Court did not find any justifiable ground to upset the judgment
of the trial court. H
328 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 12. The post mortem of D-1 was conducted by Dr. M. -'I-

Shamim (PW-5) and he found the following ante mortem
injuries:

"1. Lacerated wound ?cm x 1.5cm x bone deep on the
left side of scalp (skull) parietal to occipital region.
·s
2. Lacerated wound 5cm x 1.5cm x bone deep 1cm
below injury no. 1 on the left side parietal to j.
occipital region.

c 3. Lacerated wound 6cm x 2cm x bone deep on left
parietal region 6cm above left ear underneath
bones (temporal of left side) was fractured.

4. Abrasion 4cm x 1.5cm on the left temporal region
4cm above left ear.
D "·
5. Abraded contusion 6cm x 2cm on the right
temporal region 5cm above right ear.

6. Multiple contusions in all areas of 14cm x 10cm on
the upper right side back 4cm below right shoulder.
E
7. Abrasion 3cm x 2cm on the back of right elbow
joint. ~ .
8. Multiple contusions in all areas of 1Ocm x 6cm on
F the lower middle back.

9. Abrasion 3cm x 2cm on right knee outer part front.

The fracture of occipital parietal and temporal
bones on left side of head."
G
According to PW-5, the injuries Nos. 1,2 and 3 in the
ordinary course of nature were sufficient to cause death of D-
1.

13. Dr. P.C. Misra (PW-3) conducted the autopsy of the
H
ABID v. STATE OF U. P. [R. M. LODHA, J.] 329

_,... A
body of D-2 and found the following ante mortem injuries:

" ( 1) Incised wound 9cm x 2cm x bone deep over left
side of head 7cm above from left ear.

(2) Lacerated wound 6.5cm x 1.5cm x bone deep over
B
right side of head 8cm above from right ear.

(3) Contusion 3cm x 2cm over nose underneath bone
fractured.

(4) Abraded contusion 2.5cm x 1.5cm over left temple c
starting from lateral end of left eye-brow.

(5) Abraded contusion 8cm x 5cm over left cheek.

(6) Incised wound 2cm x 0.5cm muscle deep over left
j<
side of cheek starting from angle of mouth. D

(7) Abraded contusion (multiple) in area of 20cm x 8cm
over left side of neck and adjoining area of front of
left shoulder and chest.

(8) Multiple contusion in area of 40cm x 14cm over left E
side of back.
,, I- (9) Multiple contusion in area of 24cm x 1Ocm over right
scapular region of back.
F
(10) Multiple contusion (16cm x 10cm in area) over right
side of back 7cm below from scapula.

(11) Abraded contusion 6cm x 1.5cm over back of left
arm 7cm above from elbow joint.
G
(12) Contusion 18cm x 8cm over inner and front of left
arm starting from elbow joint. ;

(13) Multiple abrasion in area of 1Ocm x 8cm over back
and middle of left forearm.
H
330 SUPREME COURT REPORTS [2009] 10 S.C.R.

A (14) Abraded contusion 2cm x 1cm over dorsum of
,,_
proximal phalanx of middle finger of left hand with
underneath bone fracture.

(15) Abraded contusion 5cm x 7.5cm over back of right
arm 6cm above from elbow joint.
B
(16) Abrasion 1.5cm x 0.5cm over back of right elbow
joint. .;..

(17) Penetrating wound 2.5cm x 1cm bone deep over
c under aspect of right forearm 8cm above from
wrists.

(18) Abrasion 2cm x 5cm over back of right forearm 5cm
above from wrist.
D
...
(19) Multiple abrasions in area of 1Ocm x 8cm over
dorsum of right hand with fracture proximal phalanx
of little finger of right hand.

(20) Multiple abraded contusion 28cm over front of right
E thigh 4cm above from knee joint.

(21) Abrasion 6cm x 2cm over front of right knee.
~
(22) Incised wound 8cm x 0.75cm muscle deep over
inner aspect of right leg 12cm below from knee.
F
(23) Two penetrating wound 1.5cm situated apart over
middle aspect of right leg 1Ocm above from medial.
malleolus each measuring 1cm x 0.5cm bone deep.

(24) Contusion 9cm x 2cm over inner and front of right
G leg just below from injury no. 23 with fracture of tibia
and fibula.

(25) Penetrating wound 2cm x 0. 75cm bones deep over
medial aspect of right leg 3cm above from medial
H malleolus.
ABID v. STATE OF U. P. [R. M. LODHA, J.] 331

-..- (26) Incised wound 3cm x 0.5cm muscle deep over A
back of right leg 4cm above from ankle.

(27) Multiple contusion in area of 28cm x 9cm over outer
aspect of left thigh (upper part).

(28) Multiple contusion in area of 26cm x 8cm over outer B
aspect of lower third of left thigh and adjoining area
of upper part of leg.
-~

(29) Incised wound ?cm x 2cm muscle deep over front
of middle left leg." c
14. In his deposition, PW-3 stated that he found that both
the sides of skull were fractured, brain was congested, 6th, 7th
and 8th rib of left side were fractured and the lung was
punctured. He also opined that penetrating injuries were caused
_,~ D
by piercing instrument like spear; incised wounds were caused
by weapon like gadasa and lacerated wounds and contusion
were caused by blunt weapon like lathi. In the opinion of PW-
3, cause of death of D-2 was aforesaid injuries.

15. The post mortem reports as well as the evidence of E
PW-3 and PW-5 leave no manner of doubt that the death of
D-1 and D-2 was homicidal.
~
y
16. PW-1 is the son ofD-1 and PW-2 is his nephew. PW-
1 and PW-2 are, thus, closely related to D-1 and D-2. Being
F
evidence of close relative, their evidence needs a deeper
scrutiny and thorough scan to rule out false implication.

17. PW-1 deposed that on the date of incident, in the
morning, he had gone to see his other land. When he reached
Narsing Di ha, he heard the noise of his father(D-1) and 0-2 G
I that the accused persons were beating them. He heard the
-: noise from a distance of about 60-70 paces. He rushed towards
the place from where the noise was coming and he saw from
the distance of about 15-20 paces that the accused persons
were attacking his father and D-2. He deposed that A-1 and H
332 SUPREME COURT REPORTS (2009] 10 S.C.R.

A A-5 were armed with 'Ballam', A-3 and A-7 armed with
'Gadasa' and A-2, A-4 and A-6 were armed with 'lathi'. When
the accused persons saw him and PW-2, they fled away. He
went near his father and found him dead. D-2 was also dead.
He has been cross-examined at quite some length and except
B few minor contradictions, there is nothing that is sufficient to
discredit his testimony. Merely, because he made no effort to
save D-1 and D-2 from attack, it cannot be said that he was
not present. His presence few paces away from the place of
incident does not seem to be unnatural at all.
c 18. Insofar as PW-2 is concerned, he deposed that on the
date of incident at about 8.00 A.M. he was weeding out grass
on the boundary between his land and the land of Chhadan
Chowkidar. He saw that A-1 to A-7 were harvesting arhar crop
from the subject land. When they had harvested about half the
D crop from the west side, then D-1 and D-2 came and asked
the accused persons as to why they were harvesting the crop.
The accused told them that they have purchased the land from
Gheesey and they started attacking D-1 and D-2 by Ballam,
Gadasa and lathis. PW-2 also deposed that A-1 and A-5 were
E armed with ballam, A-3 and A-7 were armed with gadasa and
, A-2, A-4 and A-6 were having lathis in their hands. On the
alarm being raised by D-1 and 0-2, he and PW-1 ran towards
the place of occurrence. The accused saw them and fled away.
0-1 and D-2 died on the spot. PW-2 has not at all been shaken
F in the cross-examination. It is true that PW-1 and PW-2 are
related to 0-1 and D-2, witnesses but why should they let real
culprits go scot free? It does not sound to reason that they would
have spared the actual assailants and falsely implicated the
accused appellants.
G
19. When as many as seven persons armed with deadly
weapons attacked 0-1 and 0-2, it would not have been
possible for PW-1 or PW-2 to attribute specific injuries to each
accused. In the case of Anna Reddy Sambasiva Reddy and
H Ors. v. State of Andhra Pradesh1. while dealing with the
ABID v. STATE OF U. P. [R. M. LODHA, J.] 333

-~ evidence of eye witnesses who failed to assign specific injuries A
or specific overt acts attributed to the accused individually , this
Court observed:

"How could it be possible for any person to recount with
meticulous exactitude the various individual acts done by
B
each assailant ? Had they stated so, their testimony would
have been criticized as highly improbable and unnatural.
•. J. The testimony of eye-witnesses carries with it the criticism
of being tutored if they give graphic details of the incident
and their evidence would be assailed as unspecific, vague
and general if they fail to speak with precision. The golden
c
principle is not to weigh such testimony in golden scales
but to view it from the cogent standards that lend assurance
about its trustfulness."

)~ 20 .. Having considered the evidence of PW-1 and PW-2 D
carefully, we are of the view that the trial court and the High Court
did not commit any error in accepting the evidence of PW-1
and PW-2.

21. The learned counsel for the appellants submitted that
E
High Court as well as trial court failed to consider, in right
perspective, the right of private defence set up by the accused
_.._ persons. The learned counsel submittad that prior to the alleged
~
purchase of the agricultural land by D-1 and D-2 from Gheesey,
the accused persons had purchased that land from Gheesey
F
by registered sale deed and mutation was also effected in
favour of the accused party. The learned counsel would submit
that in the civil litigation in respect of the disputed land between
the parties, an injunction order in favour of the accused persons
was operative and in the proceedings under Section 145
Cr.P.C. also, the possession of A-1 and A-2 has been prima G
facie found. The !earned counsel would, thus, submit that the
accused persons had a right to harvest the crop and when the
deceased tried to take away the harvested crop, the incident
occurred in exercise of right of private defence of property and
accused persons could not have been convicted under Section H
•
334 SUPREME COURT REPORTS (2009] 10 S.C.R.

A 302 read with Section 149 IPC. 1-

22. In Rajinder and Others vs. State of Haryana2, this
Court while dealing with the right of private defence as provided
in Sections 96 to 106 IPC held thus:
B "19. Having drawn the above inferences we have
now to ascertain whether the unauthorised entry of the
complainant party in the disputed land, which according to
~-
the trial court was in settled possession of the accused
party legally entitled the latter to exercise their right of
c private defence and, if so, to what extent. The fascicle of
Sections 96 to 106 IPC codify the entire law relating to right
of private defence of person and property including the
extent of and the limitation to exercise of such right. Section
96 provides that nothing is an offence which is done in the
D exercise of the right of private defence and Section 97 I-,

which defines the area of such exercise reads as under :

"97. Every person has a right, subject to the
restrictions contained in Section 99, to defend -
E First.- His own body, and the body of any other
person, against any offence affecting the human body;

Secondly.- The property, whether moveable or ~

immovable, of himself or of any other person, against any
F act which is an offence falling under the definition of theft,
robbery, mischief or criminal trespass, or which is an
attempt to commit theft, robbery, mischief or criminal
trespass." (emphasis supplied)

20. On a plain reading of the above section it is patently
G clear that the right of private defence, be it to defend person
or property, is available against an offence. To put it
conversely, there is no right of private defence against any
act which is not an offence. In the facts of the instant case
the accused party was entitled, in view of Section 97 and,
H of course, subject to the limitation of Section 99, to
-
~.

~.--
ABID v. STATE OF U. P. [R. M. LODHA, J.] 335

exercise their right of private defence of property only if the A

--
<'.. unauthorised entry of the complainant party in the disputed
land amounted to "criminal trespass", as defined under
Section 441 IPC. The said section reads as follows:

"Whoever enters into or upon property in the
B
possession of another with intent to commit an offence or
to intimidate, insult or annoy any person in possession of
- _J such property.

or having lawfully entered into or upon such property,
unlawfully remains there with intent thereby to intimidate, c
insult or annoy any such person, or with intent to commit
an offence,
/ ...
is said to commit 'criminal trespass'."
~ D
21. It is evident from the above provision that unauthorised
entry into or upon property ':i the possession of another or
unlawfully remaining there after lawful entry can answer the
definition of criminal trespass if, and only if, such entry or
unlawful remaining is with the intent to commit an offence
or to intimidate, insult or annoy the person in possession E
of the property. In other words, unless -any of the intentions
referred in Section 441 is proved no offence of crirn,frial
./. trespass can be said to have been committed. Needless
~ to say, such an intention has to be gathered from the facts
and circumstances of a given case. Judged in the light of F
the above principles it cannot be said that the complainant
party committed the offence of "criminal trespass" for they
had unauthorisedly entered into the disputed land, which
was in possession of the accused party, only to persuade
the latter to withdraw thereupon and not with any intention G
j to commit any offence or to insult, intimidate or annoy them.
Indeed there is not an iota of material on record to infer
any such intention. That necessarily means that the
accused party had no right of private defence to property
entitling them to launch the murderous attack. On the H
336 $UPREME COURT REPORTS [2009] 10 S.C.R.

A contrary, such murderous attack not only gave the -1-
complainant party the right to strike back in self-defence
but disentitled the accused to even claim th\:l right of private
defence of person. -
22. We hasten to add, that even if we had found that the
B
complainant party had criminally trespassed into the land
entitling the accused party to exercise their right of private
defence we would not have been justified in disturbing the
convictions under Section 302 read with Section 149 IPC, "-
for Section 104 IPC expressly provides that right of private
c defence against "criminal trespass" does not extend to the
voluntary causing of death and Exception 2 to Section 300
IPC has no manner of application here as the attack by
the accused party was premeditated and with an intention
of doing more harm than was necessary for the purpose
D of private defence, which is evident from the injuries
sustained by the three dece 1sed, both regarding severity
and number as compared to those received by the four
accused persons. However, in that case we might have
persuaded ourselves to set aside the convictions for the
E minor offences only, but then that would have been,
needless to say, a poor solace to the appellants"

23. In the case of A.G. Gangadhar vs. State of Kamataka3, +.
this Court held:
J!'
F "Both the courts have come to the conclusion that the
accused and his companions were the aggressors and
had started the assault on the deceased and his children
and that too, because they protested against the accused
cutting the tree. Therefore, there was no scope for giving
G any benefit of right of private defence to the appellant."
~
24. That it is for the accused to establish plea of private
defence is well settled. The plea of self-defence, is not required
to be proved by the accused beyond reasonable doubt. What
H is required of the Court is to examine the probabilities in
ABIO v. STATE OF U. P. [R. M. LOOHA, J.] 337

...... appreciating such a plea. Nevertheless, the accused has to A

.... probablise the defence set up by it. In the present case, the
. accused has miserably failed to establish, much less
probablise, right of private defence. As a matter of fact, the
evidence on record shows that the accused persons were
aggressors. 0-1 and 0-2 were unarmed when they asked B
accused persons as to why they had harvested the standing
crop. Assuming that the accused persons had purchased the
- 4. agricultural land from Gheesey by registered sale deed and
they were in possession but there was no justifiable reason for
them to attack 0-1 and 0-2 with deadly weapons like ballam, c
gadasa and lathis, even if 0-1 and 0-2 questioned them about
harvesting the crop. In the facts and circumstances of the case,
there is no scope for any right of private defence as o~ 1 and
0-2 had neither put the person nor the property of the accused
_;)\ in peril. 0
25. In our considered vie\., the trial court as well as the
High Court cannot be said to have committed any error in not
accepting the plea of private defence.
,,
26. The deadly weapons with which appellants were E
armed and large number of injuries inflicted on 0-1 and 0-2
clearly show that the appellants shared common object of
,...,f committing murder. That the accused persons were more than
',.I five and formed unlavvful assembly is amply established. 0-1
and 0-2 died on the spot. The conviction of the accused under F
Section 302 read with 149 IPC does not suffer from any legal
flaw.

27. The result of the foregoing discussion is that both
appeals must fail and are dismissed.
G
~ N.J. Appeals dismissed.

~