Holding

The appellants were the aggressors and therefore could not claim the right of private defence; the convictions under Sections 302, 307, 323 read with Section 149 stand.

Summary

The case involved a long-standing dispute over a vacant plot of land between the appellants and Pahelwan (PW I) and his son Ram Swarup. The appellants threw rubbish on the land, leading to an altercation; later, armed appellants attacked PW I and his son, during which PW I snatched a spear and defended himself. The appellants Harish Chandra and Nathu fired a gun and pistol, killing Ram Swarup. The appellants claimed they were the victims and invoked the right of private defence, also alleging alibi and that the assault began elsewhere. The trial court convicted them under IPC sections 302, 307, 323 read with 149 (and 148 for some), and the High Court upheld the conviction. On appeal, the Supreme Court held that the evidence showed the appellants were the aggressors, that they could not claim private defence, and that the prosecution’s case was reliable despite the appellants’ injuries. Consequently, the appeal was dismissed and the convictions affirmed.

Issues considered

Whether the appellants were the aggressors or the victims in the incident.
Whether the appellants could invoke the right of private defence under the IPC.
Whether Section 149 of the IPC (common intention) applies to the offences charged.
Whether the prosecution’s failure to explain the injuries to the appellants defeats the conviction.
Whether the appellants’ inconsistent pleas affect the credibility of their defence.

Legislation cited

Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 307, s. 323

Subjects

private defencecommon intentionaggressorIPC Section 302IPC Section 307IPC Section 323IPC Section 149murderattempt to murderassaultalibiinconsistent pleas

Judgment

A
352

SONE LAL & ORS.
v.
B
STATE OF U.P.

April 3, 1981

[ S. MURTAZA FAZAL ALI, BAHARUL ISLAM AND
c A. VARADARAJAN, JJ. ] .
Indian Penal Code 1860, Ss. 302, 307, 323 read with S. 149-Enmity between
parties of the accused and deceased-Altercation and assault-Accused receiving
injuries-Accused whether aggressors-Whether entitled to right of private
defence.

D The prosecution alleged that there was a long standing enmity between
the parties of the deceased and the appellants. There was a vacant plot of land
in front of the flour mill and residence of PW. 1. The appellants started
throwing rubbish on this piece of land. PW.I and his son, the deceased, objected
to this. On the fateful day at about noon there was an altercation in connection
with the throwing of rubbish, and at about 8 p.m. one of the appellants armed
with a lathi went to the flour mill and challenged PW. 1 and his companions. At
the call of this appellant, the other appellants who were armed with gun, pistol,
Jathi and spear arrived at the spot. PW. 1 managed to snatch the spear from the
hands of one of the appellants and started giving blows to the assailants in order
to defend himself. At that time two of the appellants fired their gun and
pistol as a result of which the son of PW. 1 received injuries, to which he succum-
bed while being removed to the Police Station. The defence of the appellants
was one of alibi and that the offence had not taken place on the land of
F PW. I.

The appellants were tried before the Sessions Judge who convicted and ~f
sentenced them under Sections 302, 307 and 323 read with Section 149 of the -,.
Penal Code.

The High Court dismissed the appeal. It agreed with the ttial Court and
G found that the prosecution case was established by the evidence of the prosecu-
tion witnesses and that the defence version of the case had to be rejected on
account of the inconsistent pleas made by the appellants before the committing
court and the Sessions Court.

In the appeal in this Court, it was contended that there was no finding by
H the trial and appellate courts as to how the assault initially started and which
party was the aggressor, that the prosecution had not explained .as to how the
SONELAL v. U. P. STATE (Baharu/ Islam, J.) 353

appellants received the injuries, and that the appellants had the right of private A
defence and, therefore, they had committed no offence.

Dismissing the appeal,
y HELD : l. The High Court rightly accepted the prosecution case as true
and held that the defence case was false. (356 F]
B
2. The findings of the two courts below indicate that it was the appellants
who were the aggressors and that the occurrence took place on the land lying in
front of the house of PW. I who was in possession thereof and that the
deceased and PW. I had the right of private defence of property and person and
that they exercised that right. The appellants who were the aggressors, even if
they received injuries from the victims of their aggression, cannot have any right
of private defence. The findings are that the deceased and PW. 1 were unarmed
and that P.W. I snatched the weapon from one of the assailants and caused c
----- - injuries to them. If the decesed and the other prosecution witnesses had been
the aggressors, PW. l would not have come without his licensed gun.
[356 H-357A, 356 E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 220
of 1974.
D
Appeal by Special Leave from the Judgment and Order dated
9th January, 1974 of the Allahabad High Court in Criminal
Appeal No. 356/77 connected with Criminal Appeal No. 723 of 1970.

R. K. Garg, S. S. Bhatnagar, V. J. Fra11cis <ind Sunil Kumar
I Jain for the Appellants . E
• R. K. Bhat for the Respondent.

The Judgment of the Court was delivered by
BAHARUL ISLAM, J. This appeal by special leave has been F
directed against the judgment and order passed by the Allahabad
High Court dismissing two appeals filed by the appellants before it.
The appellants were convicted under Sections 302, 307 and 323 all
read with Section 149 of the Penal Code. They were sentenced to
imprisonment for life, . each, under Section 302/ 149, rigorous im-
prisonment for 7 years, each, under Section 307/149 and rigorous G
imprisonment for six months, each, under Section 323/149 of the
Penal Code. Appellants Harish Chandra and Nathu were further
convicted under Section 148 of the Penal Code and sentenced to
rigorous imprisonment for two years, each. The sentences were
directed to run concurrently.
H
2. The facts material for the purpose of disposal of this
appeal may be stated thus. The prosecution alleges that there was
354 SUPREME COURT REPORTS [1981] 3 S.C.R.

A long standing enmity between the parties of the deceased and the
appellants. Some time prior to the incident a flour mill was ins-
talled and a house constructed by P.W. I, Pahelwan, in his plot of
land. In front of the flour mill and the residence of Pahelwan there
was some vacant land in his possession. The appellants had started
throwing rubbish on the land. Pahelwan and his son, Ram Swarup
B (deceased) objected to this. The appellants were annoyed at the
objection of Pahelwan and his son Ram Swarup. On 31st December,
1968 at about noon appellants Harish Chandra and Ram Sewak
had some altereation with Pahelwan and Ram Swarup in connection
with throwing of rubbish on the aforesaid land attd as a consequence
the relation between the parties worsened. In the evening at about
c 8 O'clock on the !st of January, 1969, appellant, Ram Sewak, armed
with a lathi went to the front of the flour mill of Pahelwan and
started to hurl abuses on Pahelwan and his son Ram Swarup.
Appellant, Ram Sewak, challenged Pahelwan and his companions
to see them that day. At that time, it has been alleged, an electric
light was burning in the front of the room of the flour mill as usual.
D At the call of the appellant, Ram Sewak, the other appellants came
variously armed with lathis and spears and started giving blows to
Pahelwan and his son, Ram Swarup, both of whom, according to
the prosecution, were unarmed. Pahelwan, somehow, managed to
snatch the spear from the hand of the appellant, Ishwari, and started
giving blows to the assailants in order to defend himself. At that
E time, it has been further stated, appellants Harish Chandra and
Nathu fired their gun and pistol respectively. As a result, Ram
Swamp was hit and he fell down in front of the flour mill. The
shot of Nathu hit P.W. I Pahelwan, Lal Ram and Shri Kishan, all
of whom received injuries, Lekh Raj, P.W., then attacked the
appellants with his lathi, as a result of which some injuries were
f
caused to the appellants including Harish Chandra. Thereafter the
appellants escaped.

3. Ram Swarup succumbed to bullet injuries while he was
being removed to the police station. A first information report
G was lodged by P.W. I, and eventually the appellants were committed
to the court of Sessions that convicted and sentenced as stated
above. Their appeal was also dismissed by the High Court as earlier
stated.

H 4. Learned counsel for the appellants submitted that large
number of injuries had also been received by the appellants and
that there was no finding by the courti> below as to how the assault
SONELAL V. U.P. STATE (Baharul Is/cm, J.) 355

initially started and which party was the aggressor, prosecution has A
not explained as to how the appellants received ti:e injuries. As
such, he submitted, the conviction for the offences with the aid of
Section 149, Penal Code, was bad in law. In support of his con-
tention he relied on a decision of this Court reported in AIR 1976
S. C. 2263. This Court in A.l.R. 1976 S.C. 2263(1) has held:
B
"(!) That the prosecution has suppressed the genesis and
the origin of the occurrence and has thus not presented
the true version;

(2) that the witnesses who have denied the pre,cnce of
the injuries on the person of the accused are lying on c
most material point and therefore their evidence is
unreliable;

(3) that in case there is a defence version which explains
the injuries on the person of the accused it is rendered
probable so as to throw doubt on the prosecution case. D
The omission on the part of the prosecution
to explain the injuries on the person of the accused
.. assumes much greater importance where the evidence
consists of interested or inimical witnesses or where
the defence gives a version which competes in proba- E
bility with that of the prosecution one."

The submission of the learned counsel is that the injuries
found in the persons of the appellants have not been explained by
the prosecution. The injuries are serious. The appellants had the
right of private defence, and therefore, they have committed no F
offence.

The submission of the learned counsel is not warranted by the
findings of the High Court. The High Court agreeing with the
trial Court has found that the prosecution case as alleged has been
established by the evidence of the prosecution witnesses. The High G
Court as well as the trial Court has rejected the defence version of
the case, in view of their inconsistant pleas before the Committing
Court and the trial Court. Before the Committing Magistrate pleas
of appellants, Harish Chandra and Soney Lal, were alibi. The
defence of appellants, Ram Sewak and Nathu, was that the occurr- H
(I) Lakshmi Singh v. State of Bihar.
356 SUPREME COURT REPORTS [1981] 3 S.C.R.

A ence had not taken place on the land of P. W. 1, Pahelwan, as
al1eged by the prosecution, but it had taken place at a different
place. According to them there was a quarrel in respect of
some property between Ram Swarup, (deceased) and Zorawar,
brother-in-law of Ram Swarup, in which appellant Nathu intervened
whereupon Pahelwan (P.W. l), Lala Ram, Sbri Kishan, Triloki,
B Ram Swarup Prasad, Munna Jamadar, Lekthraj and others attacked
the appellants and in that incident injuries were received by P.W. I
and the deceased. The defence of appellant, Ishwari, before the
Committing Magistrate was that Pahelwan (P.W.l), Lekh Raj and
others attacked hie1, as a result of which he became unconscious.
The defem:e of the appellants before the Sessions Judge was one of r- _,,.-

c the right of private defence. The defence of appellant Harish
Chander before the Sessions Judge was an alibi. The defence of
the other appellanls was that Ishwari had been returning from
Ghurwal Chak. At that time he was attacked by the prosecution
witnesses and the deceased. The incident took place on a land bet-
ween residence and flour mill of P.W. l and in that assault the
D appellants had to defend themselves.

5. On a consideration of the evidence on record the learned
High Court agreeing with the Sessions Judge has accepted the ver-
sion of the prosecution and rejected that of the defence. In coming
to that conclusion the High Court has also taken notice of the
E fact that P.W. I. had a licensed gun. Had he and Ram Swarup
and other P.W's been the aggressors, he (P.W.l) would not have
come without the gun. In view of the "inconsistent pleas" and
"in view of the fact that no infirmity worth the name has been
shown in . the statement of eye witnesses of the occurrence", the
High Court accepted the prosecution case as true and held "that
F the defence case is false". The High Court has also held that
"appellants were the aggressors".

It is therefore, not correct to suggest as contended by the
learned counsel for the appellants that there were no findings on
record to show as to how the quarrel started and that the appel-
G lants were the aggressors.

6. From the findings of learned courts below the facts that
emerge are (I) that it was the appellants who were the aggressors;
(2) that the occurrence took place on the land in front of the
house of P.W.1, Pahelwan, who was in possession thereof; (3)
H
that P.W.1 and the deceased bad the right of the private defence
of property and person and they did exercise that right. Aggres-
SONELAL v. U.P. STATE (Baharul Islam, J.) 357

sors, even if they receive injuries from the victims of their aggres- A
sion cannot have the right of private defence. The findings are
that P.W.l and the deceased were unarmed. P.W.1 snatched a wea-
pon from one of the assailants and caused injuries on them. On
the top of it two of the appellants brought fire arms and fired at
the deceased and the P. W. I, as a result of which the deceased
expired. The submissions of learned counsel for the appellants do B
not stand scrutiny.

7. This appeal has no merit and is dismissed.

N.V.K. Appeal dismissed
c