Holding

The appellants did not exceed their right of private defence; therefore, their conviction under Section 304 read with Section 34 IPC is unlawful and they are acquitted of all charges.

Summary

The appellants, Subramani and four others, were charged with murder, grievous hurt and criminal trespass after a violent clash over a disputed plot of land they had cultivated for over 50 years. The prosecution alleged that the deceased, a purchaser of the land, and his family attempted to plough the field, were assaulted by the appellants, and that the deceased later died from injuries. The appellants contended they acted in private defence of their possession and person, claiming the prosecution suppressed material facts, including injuries sustained by the appellants on vital parts of the body. The Supreme Court held that the prosecution failed to explain those injuries and that the appellants had a reasonable apprehension of danger, thereby not exceeding the limits of private defence. Consequently, the Court found the conviction under Section 304 read with Section 34 IPC illegal and acquitted the appellants of all charges, ordering their immediate release.

Issues considered

The applicability of Section 34 IPC when the accused claim private defence.
Whether the appellants exceeded the lawful limits of private defence of property and person.
If the prosecution suppressed material facts, particularly the injuries to the appellants.
Whether the appellants had settled possession of the land, making the prosecution party the aggressor.
The relevance of common intention under Section 149 in the context of private defence.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 105
Indian Penal Code, 1860s. 103, s. 147, s. 148, s. 149, s. 302, s. 304, s. 324, s. 326, s. 34, s. 447, s. 96, s. 99

Subjects

private defenceright of self-defenceSection 34 IPCsettled possessioncriminal trespasscommon intentionsuppression of evidencebenefit of doubtacquittalIndian Penal Code

Judgment

A SUBRAMANI AND ORS.
v.

B
STATE OF TAMIL NADU

AUGUST 28, 2002

[N. SANTOSH HEGDE AND B.P. SINGH, JJ.]
-
Penal Code, 1860; Sections 34, 96, 99, 103, 147, 148, 149, 302, 304
Part I, 324, 326 and 447:

c Charges of murder, causing grievous hurt, criminal trespass-
Conviction-High Court found the accused guilty of having exceeded their
right of self-defence and convicted them under Section 304 Part I read with
Section 34 but acquitted them ofthe charges ofcriminal trespass since disputed
land was in possession ofaccused persons-Held, since accused were acquitted
D of the charges of committing murder on the ground of exercising of their right
ofprivate defence and it could not be ascertained which ofthe accused exceeded
such right, all of them given benefit of doubt-Hence acquitted of the charges.

Right of self-defence-Exceeding of-Held, prosecution party not in
settled possession of land-Trespassed over land in possession of accused/
E cultivating tenants and assaulted them; injury on vital parts of accused-
Under the circumstances, members of prosecution party are aggressors and
therefore accused entertained reasonable apprehension-Use offorce proved
to be excessive in exercise of their right of defence of property and person-
In the absence offinding of High Court as to which of the accused exceeded
the force, all convicted accused given benefit of doubt and acquitted of the
F charges.

Words and Phrases:

'Settled possession '-Meaning of

G According to the prosecution, victim/deceased purchased certain
land. Accused-apellant No.1, cultivating tenant on the same land,
obstructed delivery of possession of land to the victim/deceased. Panchayat
intervened in the matter and directed that half of the disputed land be
given to appellant No.1 on payment of price and remaining land be
H 718
SUBRAMANJ AND ORS. v. STATE OF TAMIL NADU 719

retained by the victim/deceased. But appellant No. I did not pay the price A
and continued possession on the e~tire plot. The victim/deceased attempted

- to plough the said plot but appellant No. I protested. On the next day, the
deceased along with his son, daughters (PWs. 2 and 3) and son-in-law
(PWI) again started ploughing the land when appellant Nos. I to 4 arrived
with weapons and accused Nos. 5 and 6 unarmed protested. Appellants I
to 4 assaulted the victim with the weapons and accused Nos. 5 and 6 gave B
him blows with fists and they also assaulted PWs. and son of the victim/
deceased. The victim/deceased suffered bleeding injuries and W'5 shifted
to Government hospital where he died shortly thereafter. Appellant No.2
was also admitted in the same hospital. On the basis of statements of both
PWs and Appellant No.2, FlRs. were registered. C
Trial Court found appellants guilty and convicted appellant Nos. I
and 2 for the offence under Section 302 IPC, appellants Nos. 3 and 4 for
the offence under Section 302/34 and the convicted appellants were also
found guilty of the offences under Sections 324, 326 and 447 IPC. However,
accused Nos. 5 and 6 were acquitted. D
On appeal, High Court found appellants guilty of having exceeded
their right of private defence and causing grievous hurt to the deceased
and PWs. and convicted them under Section 304 Part I read with Section
34 IPC, but acquitted them of the charge under Section 447 IPC, since
the land in dispute was in possession of appellants as cultivating tenants. E
However confirmed their conviction under Sections 324 and 326 IPC.
Hence this appeal.

It was contended for the appellants that the prosecution party was
aggressor since they sought to dispossess them of the land in their
possession as cultivating tenants for over SO years; that prosecution party F
provoked appellants by inflicting injuries on vital parts of their body
apprehending danger to their life; that appellants used force against
deceasetf and PWs. in exercise of their right of private defence of person
and property; and that the prosecution was guilty of suppressing material
facts.
G
On behalf of respondent-State, it was contended that since members
-. of prosecution party having trespassed over the plot of land, appellants
could not claim possession of the plot of land; and that the appellants did
not at all have the right of private defence since it was not clear as to who
started the assault. H
720 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A Allowing the appeal, the Court

HELD: 1.1. The prosecution chose to suppress the genesis and the
origin of the occurrence and presented a distorted version before the
Court. The prosecution feigned ignorance about the injuries suffered by
the appellants. It is well settled that the onus which rests on the accused
B person under Section 105 of the Evidence Act to establish his plea of
private defence is not as onerous as the unshifting burden which lies on
the prosecution to establish every ingredient of the offence with which the
accused is charged, beyond reasonable doubt. In the instant case the
appellants had suffered injuries on vital parts of the body, but the
C (lrosecution failed to give any explanation for such injuries. Having regard -- ~
to the facts of the case such omission on the part of the prosecution may
give rise to the inference that the prosecution is guilty of suppressing the
genesis and the origin of the occurrence and had thus not presented the
true version. It may well be that the prosecution witnesses were·lying on
a material point and, therefore, render themselves unreliable, or it may
D be that the defence version explaining the injuries on the person of the
accused is probably the true version of the occurrence which certainly
throw a serious doubt on the prosecution case. [731-C-F)

1.2. The intention of the appellants was not to cause the death of
the victim but they had acted in exercise of their right of private defence.
E While acting in exercise of right of private defence, the appellants cannot
be said to be motivated by a common intention to commit a criminal act.
Common intention has relevance only to the offence and not to the right
of private defence. The appellants had initially acted in exercise of their
right of private defence of property, and later in exercise of right of private
F defence of person. It has been found that three of the appellants were also
injured in the same incident. Two of the appellants, namely-appellants 2
and 3 had injuries on their head, a vital part of the body. Though the
injuries did not prove to be fatal, the apparent fact is that assault on them
was directed on a vital part of the body. In these circumstances, it is
reasonable to infer that the appellants entertained a reasonable
G apprehension that death or grievous injury might be the consequence of
such assault. Their right of private defence, therefore, extended to
voluntarily causing-0f the death of the assailants. (729-D-G]

State of Bihar v. Mathu Pandey and Ors., SCR [1970) 1 358, relied
H on.
SUBRAMANI AND ORS. v. STATE OF TAMIL NADU 721

1.3. It is settled law that in exercise of the right of private defence A
only such force may be used as may be necessary but at a time when a
person is faced with imminent peril of life and limb of himself or other,
he is not expected to weigh in golden scales the precise force needed to
repel the danger. Even if he, in the heat of the moment, carries his defence
a little further than what would be necessary when calculated with B
precision and exactitude by a calm and unruffled mind, the law makes
due allowance for it. 1729-H; 730-A, Bl

Mohd. Ramzani v. State of Delhi, (19801 Suppl. SCC 215; Munshi Ram
and Ors., v. Delhi Administration, AIR 1968 SC 702 and Puran Singh and
Ors., v. The State of Punjab, 11975] 4 SCC 518, relied on. C
1.4. High Court found that the appellants had acted in exercise of
their right of private defence, but exceeded that right. However, High
Court did not consider which of the appellants, if any, exceeded the right
of private defence. Moreover the right of private defence must be liberally
construed. In the absence of any finding by the High Court as to which of D
the appellants had exceeded his right of private defence, the benefit must
go to all. [732-B, EJ

Munshi Ram and Ors. v. Delhi Administration, AIR (1968) SC 702,
referred to.
E
2. Under the Jacts and circumstances of the case, it cannot be said
that the members of the prosecution party were in possession of the land
in question or that the appellants had no right to evict the trespassers and
to assert their right to possess the land. Certainly the prosecution party
was not in settled possession of the land. F
3. Once it is held that the appellants did not exceed their right of
private defence, it must logically follow that they cannot be convicted of
the lesser offences under Sections 324 and 326 !PC, because in the same
transaction and in exercise of th.eir right of private defence they had caused
injuries to some of the prosecution witnesses. 1732-E, FJ G

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1255 of 200 I.

From the Judgment and Order dated 17.4.2001 of the Chennai High H
722 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A Court in Crl. A. No. 602 of I 992.

K.V. Vishwanathan, B. Raghunath, Kunwar, Ajit Mohan Singh and
K. V. Venkataraman, for the Appellants.

S. Balakrishnan, Ms. Revathy Raghavan and Sree Narain Jha for the
B Respondent.

The Judgment of the Court was delivered by

B.P. SINGH, J. This appeal by special leave is directed against the
judgment and order of the High Court of Judicature at Madras dated I 7.04.200 I
C in Criminal Appeal No. 602 of 1992. There are four appellants in this appeal.
Appellant No.I, Subramani is the father of the remaining appellants namely,
Venkatesan (appellant No.2), Ganesan (appellant No.3) and Govindaraj
(appellant No.4). They have impugned the judgment and order of the High
Court whereby while setting aside their conviction under Sections 302 and
302/34 I.P.C., the High Court found them guilty of having exceeded their
D right of self-defence and found them guilty of the offence punishable under
Section 304 Part I read with Section 34 I.P.C. The High Court also found the
appellants guilty variously of the offences under Section 324 and Section 326
I.P.C. However, the High Court acquitted them of the charge under Section#
44 7 I.P.C. on a finding that the land in question was in their cultivating
E possession as tenants and therefore in the facts and circumstances of the case
they could not be held guilty of the offence of criminal trespass. Apart from
the appellants herein, two others namely accused Nos.5 and 6 were put up for
trial before the Court of Sessions in Sessions Case No. 46 of 1992 charged
variously of offences under Sections 302, 302/34, 324, 326 l.P.C. read with
Section 149 I.P.C. as also under Sections 147, 148 and 447 I.P.C. The learned
F Sessions Judge, however, acquitted accused Nos. 5 and 6 finding no evidence
against them, but found the appellants herein guilty and sentenced them to
various terms of imprisonment under different Sections of the I.P.C. Appellants
No. I and 2 were convicted by the Trial Court for the offence under Section
302 l.P.C. and appellants No.3 and 4 for the offence under Sections 302/34
G I.P.C., and sentenced to suffer imprisonment for life. All the appellants were
also found guilty of the offence under Section 447 I.P.C. for which they were
sentenced to three months rigorous imprisonment. Appellants I and 3 were
found guilty of the offences under Sections 324 and 326 I.P.C and sentenced
to rigorous imprisonment for 2 years and 5 years respectively under the
aforesaid sections. Appellants No.2 and 4 were found guilty of the offence
H under Section 324 I.P.C. and sentenced to two years rigorous imprisonment.
SUB RA MANI AND ORS. v. STATE OF TAMIL NADU [B.P. SINGH. !.J.723

The occurrence giving rise to this appeal is alleged to have taken place A
on 20!h April, 1991. The case of the prosecution is that the deceased Jayavelu
purchased 1.83 acres of land in Survey No.56/I in Renukapuram from
Murugesa Mudaliar and Savithri. However, appellant No. I herein who was
the cultivating tenant of the aforesaid land was obstructing delivery of
possession of the land to the deceased who had purchased this land. Panchayat
had been convened which had decided that halfofthe land should be retained B
by the deceased purchaser and the other half should be given to appellant
No. I who should pay the price thereof within three months. Appellant No. I
did not pay the price of half portion of the land, and continued in possession
of the entire plot. On the evening of 19th April, 1991, the deceased attempted
to plough the said plot which was in possession of appellant No. I, out the C
appellant No. I protested, which compelled the deceased to stop ploughing
that land. After this incident the deceased went away. However, at about 6.00
a.m. on 20th April, 1991, the deceased along with PWs. I, 2, 3 and Sikamani
again went to plough the land and commenced agricultural operations. PWs
2 and 3 were the daughters of the deceased while Sikamani (not examined)
was his son. PW I is the husband of PW 2. When Sikamani was ploughing D
the land, PW I stood on the ridge and PWs 2 and 3 were manuring the land.
On coming to know of this the appellants and accused 5 and 6 (since acquitted),
came and protested against the ploughing of the land which was in possession
of the appellants. The prosecution allegation is that appellants No. I to 4 had
carried spade, crowbar, knife etc. while accused 5 and 6 came unarmed. E
Appellant No. I prevented the deceased from ploughing the land even though
the deceased offered to pay the price of the land. The case of the prosecution
is that thereafter appellant Nos. I to 4 assaulted the deceased with their weapons
while accused 5 and 6 gave him blows with their fists. When PWs I, 2, 3 and

' Sikamani intervened to save the deceased they were also assaulted. Sikamani
was assaulted by appellant No. I and accused Nos. 5 and 6. PW 2 was similarly
assaulted by appellant Nos.I, 3 and 4 while appellants No.5 and 6 gave her
fist blows. PW 3 was assaulted by appellants I, 2 and 3 while PW I was
F

assaulted by all the appellants and accused 5 and 6 since acquitted. As a
result of the assault PWs I, 2, 3 as well as Jayavelu (deceased) suffered
bleeding injuries and fell down. PW 6, daughter of the deceased, who was a G
little away from the place of occurrence saw the accused running away with
their respective weapons, and also saw the injured lying in the field with
f/f bleeding injuries. She, with the help of PW 4 and one other person, removed
••.. the injured to the Government hospital at Vellore .

/ The injured were examined at the Government hospital, Vellore by the H
724 SUPREME COURT REPORTS [2002) SUPP. I S.C.R. .._ .
/

A Medical Officer, PW-12. He examined the deceased at about 9.15 a.m. and
his report is Ex.P 13.PWs I, 2 and 3 were also examined by him and their
injury reports are Exs. P 22, P 17 and P 19 respectively. It is not disputed
that Jayavelu died shortly after his admission. Upon his death, death intimation
Ex. P 15 was sent to the police out-post and Sub-Inspector, PW 17 was.
accordingly informed who came to the hospital and recorded the statement
B of PW I (Ex.P I), on the basis of which a formal FIR was drawn up as Ex.P
2 registering Crime No. 76/91.

It also appears that PW 17, the Sub-Inspector found accused N o.2 in
the same hospital, undergoing treatment. Appellant No.2 also got his complaint
C recorded by PW 17 and the same was registered as Crime No. 77/91 for
offences punishable under Sections 147 and 323 l.P.C .. PW 18, the Inspector
of Police took up the investigation of the case and prepared the inquest
report. The doctor, PW 13 performed the post mortem examination on the
dead body of Jayavelu and the post mortem report is marked as Ex. P 24.

D On 21.4.1991 at about 3.00 a.m. appellants No.3 and 4 and accused No.
5 and 6 (since acquitted) were arrested and it is stated that recoveries were
made on the basis of the voluntary statements made by appellant No.3 and
appellant. No.4. It is the case of the prosecution that appellant No. I on
25.4.1991 at about 10.00 a.m. made an extra judicial confession before PW
9, (Ex. P I I) and later at about I2 noon PW 9 produced him before the
E police. It is also not disputed that accused No.2 was sent on judicial remand
from the hospital itself where he was being treated.

In the course of the investigation the objects recovered on the basis of
the statements made by the accused as well as the prosecution witnesses were
sent for chemical examination. It appears that the objects recovered at the
F instance of PW I and Sikamani were stained with human blood of "O"
'
group. Similarly, the objects recovered at the instance of PW 3 had human
blood of "B" group and those recovered at the instance of PW 2 had human
blood of "O" group.

G At the trial, appellant No. I in his examination under Section 3 I 3 Cr.P.C.
stated that the land in dispute had been in occupation and enjoyment of his
family for the last 50 years. On coming to know that the deceased had
purchased the land in question he had filed a Civil Suit being OS No.968/84
before the Court of Muns if at Ve II ore against deceased. An order of injunction
was obtained, protecting his possession. So far as the Panchayat is concerned
H the case of appellant No. I was that Jayavelu did nut execute the sale deed
SUBRAMANI AND ORS. v. STATE OF TAMIL NADU [B.P. SINGH, J.]725
>

even though the appellant No. I had procured non-judicial stamp papers etc. A
However, Jayavelu (deceased) attempted to cause damage not only to the
lands but also the remaining crops. Upon protest by him Jayavelu (deceased)
assaulted appellants No.2 to 4. Similar is the stand of appellants No.2 to 4.

The prosecution examined several witnesses to prove its case and the
trial court accepting the evidence of PWs I, 2 and 3 found the appellants B
guilty of having caused the death of Jayavelu and havin!f assaulted prosecution
witnesses I, 2 and 3. Accordingly, it convicted and sentenced them to various
tenns of imprisonment as earlier noticed.

It was urged before the High Court, as it has been urged before us, that C
it was the prosecution party which was the aggressor and which sought to
dispossess the appellants of the lands of which they were in possession as
cultivating tenants for over 50 years. On the previous evening the prosecution
party had attempted to dispossess them, but on their protest they went away.
On the day of the incident they again attempted to dispossess the appellants
by ploughing the land in question upon which the appellants protested. This D
provoked the prosecution party to assault the appellants to whom injuries
were caused on vital parts of their body. Apprehending danger to their life
the appellants defended themselves with whatever they had in their hands in
exercise of their right of private defence of person and property. There was
no question 01 criminal trespass, since the land in question was in possession E
of the appellants and in fact it was the prosecution party which had trespassed
upon their land. Moreover, the prosecution was guilty of suppressing material
facts of the case. It has failed to explain the injuries suffered by three of the
appellants on vital parts of their body, and sought to give an impression to
the Court that only the appellants had assaulted them, and that they had not
caused injuries to anyone. In fact the manner of occurrence disclosed by the F
prosecution was a distorted version calculated to support the fake case of the
prosecution. It was therefore submitted that the appellants are entitled to
acquittal.

The High Court at the threshold noticed the fact that Sikamani who is
said to be an eye witness and was also injured in the incident, was not G
examined as a witness. The High Court, therefore, set aside the conviction of
;. the appellants No. I and 4 under Section 324 l.P.C. so for as it related to the
' assault by them on Sikamani.

The High Court noticed that PWs I and 2 had one grievous injury each H
726 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A but the injury suffered by PW 3 was only a simple injury. However, it was
convinced that the appellants had caused injuries to PW I to 3 who had
deposed consistently on this aspect of the prosecution case. It therefore
sustained their convictions and sentences under Sections 324 and 326 I.P.C.

The High court, however, found that the charge under Section 447
B I.P.C namely, criminal trespass, had not been proved. On the contrary, the
High Court found that the appellants were in cultivating. possession of land
as tenants for a long period. There was also a civil litigation between the
parties and the appellants had in their favour an order of injunction. The
documents produced by the appellants established beyond doubt that till the
C year I 985 they were certainly in possession of the land in question as
cultivating .tenants. In view of these findings, the High Court acquitted the
appellants of the charge under Section 447 I.P.C. since the prosecution failed
to establish that Jayavelu (deceased) was in possession of any part of the land
purchased by him.

D Regarding the charge under Section 302 and 302/34 I.P.C, the High
Court held that appellant No. I was in possession of the entire extent of land
purchased by Jayavelu from Murugesa Mudaliar and Savithri. On the day
prior to the date of occurrence the deceased had attempted to plough the land
in question which was successfully prevented by the appellants. The decision
of the Panchayat was not acted upon by appellant No. I and the evidence on
E record disclosed that both parties blamed each other for not executing the
sale deed. There was no evidence to show that the land measuring I .83 acres
was ever divided by metes and bounds and any portion allotted to the deceased.
The appellants were therefore in possession of the entire plot ofland measuring
1.83 acres. After retreating on the first day on protest being raised by the
F appellants, the deceased again attempted to take possession on the morning
of 20th April, I991. He went to the land in question along with PWs 1 to 3
and started agricultural operations. The appellants protested against the
ploughing of their land by the members of the prosecution party. It was in
this background that the occurrence took place in which members of both
prosecution and the defence party, were injured.
G
On a consideration of the evidence on record the High Court has recorded
a categorical finding that the accused were trying to defend possession of
their property when the occurrence took place. It also found that the appellants (
No.2 to 4 sustained injuries as was evident from the injury reports prepared
H by PW 12. Appellant No.3 had suffered a lacerated injury on the right parietal
\
SUBRAMANI AND ORS. v. STATE OF TAMIL NADU [B.P. SINGH, J.]727

region and a contusion on his left leg. Similarly, appellant No.2 had suffered A
a lacerated injury on the left frontal region. Appellant No.4 had suffered an
injury on his right rib back. The High Court also found that the prosecution
had failed to explain the injuries found on appellants No.2 and 4. Not only
this the Sub-Inspector, PW 17, who registered the complaint made by appellant
No.2 on the same day on which the complaint of PW 1 was registered, did
not even get the complaint marked as an Exhibit before the Court of Sessions. B
The High Court adversely commented on the fairness of the investigation
done by PW 18. It observed that he would have done better by placing the
entire records relating to the investigation before the Court. The High Court,
therefore, observed that the investigating agency was guilty of withholding
material records which if placed before the Court may tilt the scale in favour C
of the accused, and therefore an adverse inference could be drawn against the
State for withholding material records.

It is not necessary for us to say anything further on this aspect of the
matter. The fact remains that appellant No.2 was being treated in the
Government hospital at Vellore at the same time when the injured prosecution D
witnesses were admitted in the hospital. PW 17 recorded the statement of PW
1 and thereafter recorded the statement of appellant No.2. These facts leave
no room for doubt that the members of the prosecution as well as the defence
party were injured in the course of the same incident. However, the prosecution
witnesses denied any knowledge about the circumstances in which appellants
No.2 to 4 sustained injuries. The case made out by the prosecution witnesses E
is that the appellants assaulted them and there is not even a whisper as to
whether they had acted in retaliation. On these facts, the High Court held that
the requirements of Exceptions 2 and 4 were established. The High Court
then concluded that though the appellants are entitled to the benefit of
Exception 2, but the materials available on record made it clear that they F
acted in excess of their right of self-defence. Therefore, their acts fell within
the parameters of Section 304 I.P.C.

Accordingly, the High Court set aside the conviction of the appellants
herein under Section 302 and 302/34 1.P.C. but instead found them guilty of
the offence punishable under Section 304 Part 1 read with Section 34 l.P.C. G
The High Court took the view that on the material placed on record it was
apparent that a common intention arose at the spur of the moment among the
' four appellants and in furtherance of that common intention, the deceased
I
and the witnesses came to be attacked. Considering the fact that appellant
No.I was 70 years old ;n the year 1992, the High Court sentenced him to H
728 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A undergo rigorous imprisonment for three years under Section 304 Part I read
with Section 34 I.P.C. and further sentenced him to pay a fine of Rs. 25,000
and in default to undergo 9 months rigorous imprisonment. Appellants 2 to
4 were also convicted for the offence under Section 304 Part I read with 34
I.P.C. and sentenced to undergo 7 years rigorous imprisonment. It upheld the
conviction recorded by the trial court under Sections 324 and 326 I.P.C. but
B reduced the sentence to two years rigorous imprisonment wherever the sentence
was in excess of two years. The sentences were directed to run concurrently.

We observe that the State has not preferred any appeal against the
acquittal of the appellants of the charge under Sections 302 and 302/34 IPC.
The High Court on a finding that the appellants had exceeded their right of
C private defence of property, convicted and sentenced them under Section 304
Part I read with Section 34 IPC. Counsel for the appellants rightly submitted
that the conviction of the appellants, in the facts of this case, under Section
304 Part I read with Section 34 IPC is clearly illegal. The High Court having
found that the appellants acted in exercise of their right of private defence,
D the conviction of all the appellants with the aid of Section 34 was unwarranted.
In our view the submission has force and must be accepted.

It is well settled that once it is held that the accused had the right of
private defence and reasonably apprehended that death or grievous bodily
hurt would be the consequence ifthe right of private defence was not exercised,
E the right of private cjefence of property extended under Section I 03 IPC to
voluntarily causing the death of the aggressor subject to restrictions mentioned
in Section 99 IPC. In this case, if the appellants acted in exercise of their
right of private defence of property, it cannot be said that they committed a
criminal act in furtherance of a common intention, because Section 96 IPC
F makes it abundantly clear that nothing is an offence which is done in the
exercise of the right of private defence. They did not intend to commit any
criminal act or to do anything which may be described as unlawful. Their
object was not to kill the deceased but to protect their property. It may be,
that in a given case it may be found on the basis of material on record that
some of them may have exceeded their right of private defence and for that
G they may be individually held responsible. But it cannot be said that the
murder was committed pursuant to a common intention to commit such crime.
In some what similar circumstances in State of Bihar vs. Mathu Pandey and
others: SCR 1970 (I) 358 this Court considered the question as to whether
the accused could be convicted under Section 302 read with either Section
H 149 or Section 34 IPC. It observed :-
SUBRAMANI AND ORS. v. STATE OF TAMIL NADU [B.P. ~INGH, J.]729

"In order to attract the provisions of Section 149 the prosecution A
must establish that there was an unlawful assembly and that the crime
was committed in prosecution of the common object of the assembly.
Under the fourth clause of Section 14 l an assembly of five or more
persons is an unlawful assembly ifthe common object of its members
is to enforce any right or supposed right by means of criminal force B
or show of criminal force to any person. Section 14 l must be read
with Sections 96 to l 06 dealing with the right of private defence.
Under Section 96 nothing is an offence which is done in the exercise
of the right of private defence. The assertion of a right of private
defence within the limits prescribed by law cannot fall within the
expression "to enforce any right or supposed right" in the fourth C
clause of Section 141."

It, therefore, follows that intention of the appellants was not to cause
the death of Jayavelu but they had acted in exercise of their right of private
defence. While acting in exercise of right of private defence, the appellants
cannot be said to be motivated by a common intention to commit a criminal D
act. Common intention has relevance only to the offence and not to the right
of private defence.

The question still arises whether the appellants can be convicted for
having exceeded their right of private defence. In the instant case we are E
inclined to hold that the appellants had initially acted in exercise of their right
of private defence of property, and later in exercise of right of private defence
of person. It has been found that three of the appellants were also injured in
the same incident. Two of the appellants, namely appellants 2 and 3 had
injuries on their head, a vital part of the body. Luckily the injuries did not
prove to be fatal because if inflicted with more force, it may have resulted F
in the fracture of the skull and proved fatal. What is, however, apparent is the
fact that the assault on them was not directed on non vital parts of the body,
but directed on a vital part of the body such as the head. In these circumstances
it is reasonable to infer that the appellants entertained a reasonable
apprehension that death or grievous injury may be the consequence of such
assault. Their right of private defence, therefore, extended to the voluntarily G
causing of the death of the assailants.

While it is true that in exercise of the right of private defence only such
force may be used as may be necessary, but it is equally well settled that at
a time when a person is faced with imminent peril of life and limb of himself H
730 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A or other, he is not expected to weigh in golden scales the precise force
needed to repel the danger. Even if he, in the heat of the moment, carries his
defence a little further than what would be necessary when calculated with
precision and exactitude by a calm and unruflled mind, the law makes due
allowance for it. (See Mohd. Ramzani vs. State of Delhi : 1980 Suppl. SCC
B 215).
Mr. Balakrishnan, Senior Advocate appearing for the State, sought to
support the conviction of the appellants contending that the members of the
prosecution party had already trespassed on the plot of land in question and,
therefore, trespass was complete. The appellants, therefore, could not be said
C to be in possession of the plot in question. Having regard to the facts of this
case the submission must be rejected. It was held in Munshi Ram and Ors.
v. Delhi Administration, AIR (1968) SC 702 thus :

"It is true that no one including the true owner has a right to
dispossess the trespasser by force if the trespasser is in settled
D possession of the land and in such a case unless he is evicted in due
course of Jaw he is entitled to defend his possession even against the
rightful owner. But stray or even intermittent acts of trespass do not
give such a right against the true owner. The possession which a
trespasser is entitled to defend against the rightful owner must be a
settled possession extending over a sufficiently long period and
E acquiesced in by the true owner. A casual act of possession would
not have the effect of interrupting the possession of the rightful owner.
The rightful owner may re-enter and reinstate himself provided he
does not use more force than necessary. Such entry will be viewed
only as a resistance to an intrusion upon possession which has never
been lost. The persons in possession by a stray act of trespass, a
F
possession which has not matured into settled possession, constitute
an unlawful assembly, giving right to the true owner, though not in
actual possession at the time to remove the obstruction even by using
necessary force."

G The same principle was reiterated in Puran Singh and Ors. v. The State
of Punjab, [1975] 4 SCC 518.

In the instant case the facts found by the High Court are that the
appellants were in possession of the plot in question for over 50 years. On
the previous evenin~ the prosecution party had attempted to dispossess the
H appellants but on the protest of the appellants they gave up their plan and
SUBRAMANI AND ORS. v. STATE OF TAMIL NADU [B.P. SINGH, l.]731

retreated. On the following morning they again attempted to take possession A
of the land by plouging the same and exercising right of ownership. ft was
at this stage that the appellants appeared on the scene and protested, which
ultimately resulted in an assault on them by the members of the prosecution
party. In these facts, having regard to the principle aforesaid, it cannot be
contended that the members of the prosecution party were in possession of B
the land in questio~ or that the appellants had no right to evict the trespassers
and to assert their right to possess the land. Certainly the prosecution party
was not in "settled possession".
' .
Mr. Balakrishnan then submitted that it is not clear as to who started
the assault. The prosecution chose to suppress the genesis and the origin of C
the occurrence and presented a distorted version before the court. The
prosecution feigned ignorance about the injuries suffered by the appellants.
ft is well settled that the onus which rests on the accused person under
Section l 05 Evidence Act to establish his plea of private defence is not as
onerous as the unshifting bu 1en which lies on the prosecution to establish
every ingredient of the offence with which the accused is charged, beyond D
reasonable doubt. In the instant case though the appellants had suffered injuries
on vital parts of the body, even though simple, the prosecution failed to give
any explanation for such injuries. We are not persuaded to accept the
submission of learned counsel for the State that the injuries being simple, the
prosecution was not obliged to give any explanation for the same. Having E
regard to the facts of the case the omission on the part of the prosecution to
explain the injuries on the person of the accused may give rise to the inference
that the prosecution is guilty of suppressing the genesis and the origin of the
occurrence and had thus not presented the true version. ft may well be that
the prosecution witnesses were lying on a material point and, therefore, render
themselves unreliable, or it may be that the defence version explaining the F
injuries on the person of the accused is probably the true version of the
occurrence which certainly throw a serious doubt on the prosecution case. In
these circumstances and having regard to the findings recorded by the High
Court we are satisfied that the appellants were fully justified in defending
their possession as well as their person, having regard to the fact that they G
were assaulted by the members of the prosecution party who were the
aggressors and who had trespassed upon the land which had been in continuous
possession of the appellanb for over 50 years. They had not exceeded their
right of private defence of property and person because the facts and
circumstances justify their entertaining a reasonable apprehension that grievous
hurt may be caused to them, if not death, by the assailants. H
732 SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.

A It was then submitted by Mr. Balakrishnan that the appellants could
have taken recourse to move the authorities, in the facts and circumstances
of the case. His submission is that they did not at all have the right of private
defence. This submission must be rejected in view of the clear finding recorded
by the High Court that the appellants had acted in exercise of their right of
B private defence, but exceeded that right. Unfortunately the High Court did
not consider which of the appellants, if any, exceeded the right of private
defence. Moreover the right of private defence must be liberally construed.
It was observed in Munshi Ram v. Delhi Administration, (supra) :

".Law does not require a person whose property is forcibly tried to
be occupied by trespassers to run away and seek the protection of the
c authorities. The right of private defence serves a social purpose and
that right should be liberally construed. Such a right not only will be
a restraining influence on bad characters but it will encourage the
right spirit in a free citizen. There is nothing more degrading to the
human spirit than to run away in the face of peril."
D
We have earlier held that their conviction with the aid of Section 34
IPC is not warranted in law. In the absence of any finding by the High Court
as to which of the appellants had exceeded his right of private defence, the
benefit must go to all.

E Once it is held that the appellants did not exceed their right of private
defence, it must logically follow that they cannot be convicted of the lesser
offences under Sections 324 and 326 IPC, because in the same transaction
and in exercise of their right of private defence they had caused injuries to
some of the prosecution witnesses.

F In the result this appeal is allowed and the appellants are acquitted of
all the charges levelled against them. The appellants shall be released forthwith
unless required in any other matter.

S.K.S. Appeal allowed.