Supreme Court of India
Khuddu And Others vs State Of U.P. on 27 April, 1993
Equivalent citations: AIR1993SC1538, 1993CRILJ2008, JT1993(3)SC626, 1993(2)SCALE715, 1993SUPP(3)SCC15, AIR 1993 SUPREME COURT 1538, 1993 AIR SCW 1610, 1993 ALL. L. J. 784, 1993 (3) SCC(SUPP) 15, (1993) 3 JT 626 (SC), 1993 (2) UJ (SC) 271, 1993 CRIAPPR(SC) 179, 1993 ALLAPPCAS (CRI) 295, (1994) 1 MAHLR 608, (1993) 3 CURCRIR 298, (1993) 2 CRIMES 305, (1993) ALLCRIR 343, 1993 SCC (CRI) 850, (1993) 2 ALLCRILR 240, (1993) ALLCRIC 494, (1993) SCCRIR 583
Author: N.P. Singh
Bench: N.P. Singh
ORDER K. Jayachandra Reddy, J.
1. All the original 11 accused before the trial court are the appellants herein. They were tried for offences punishable under Sections 302/149, 307, 436, 323, 147 and 148 I.P.C. The trial court convicted all of them and sentenced each of them to undergo imprisonment for life under Sections 302/149 I.P.C. and to various other terms of imprisonment for the other offences. The sentences were directed to run concurrently. All the convicted accused preferred an appeal before the High Court but the same was dismissed. The prosecution case is as follows:
2. All the accused, the deceased Dr. Iqbal Mohammad and the material witnesses belong to Village Gulera Bakshis, Motipur Police Station in District Bahraich. All the accused are Harijanis. The accused were claiming that the land was allotted to them by the Gram Panchayat as a result of the agitation launched by Communist Party and they were given possession by the Gram Panchayat. The deceased and the P.Ws who are members of a registered Co-operative Farm owned a farm and it appears that there was no demarcation between the two lands. There were strained relations between the members of the Cooperative Farm on the one hand and the accused on the other hand in respect of the land. On 6.10.72 P.W.3 Fasiuddin lodged a written report under Section 447 I.P.C. against some of the accused on the ground that they committed trespassing and that case was pending. On 26,10.72 P.W.1 filed a report under Sections 436 and 379 I.P.C. against some of the accused and that the accused were convicted on 15.10.76. They preferred an appeal and the same was pending. On 22.12.72 P.W. 1, the President of the Co-operative-Farm filed a suit for permanent injunction restraining all the 11 accused and 27 others from interfering with the possession of the farm-holders in respect of certain plots comprised in the farm. The defendants though received the summons but did not contest the suit and an exparte decree was passed. The accused who were defendants thereafter moved an application for setting aside the exparte decree but that was rejected. The members of the Co-operative Farm were making complaints against the accused and Ors. to the administrative authorities and the police were directed to take action.
3. The deceased Dr. Iqbal Mohamroad and Edward Jacob, injured were friends and used to reside in Kanpur. The deceased used to look after the farm on behalf of his son and Edward Jacob and others used to accompany him to the farm. On 24.6.73 at about 2 P.M. one Nageshar was driving the tractor of the farm in the field and the two workers Jangali and Baby were clearing the bushes with the help of others. At a distance of 20-30 paces from them the deceased, Edward Jacob, P.W.3 Fasiuddin and others were sitting. The deceased was holding his .12 bore Gun and another rifle was kept near the tree. Just then 20 to 25 people including the 11 accused appeared there from the forest. A-6 was armed with a Ballam, A-11 was armed with a Pharsa and the others were armed with lathis and the accused Shouted that the deceased should be killed. According to the prosecution they surrounded the deceased and others and inflicted injuries on them. Jangali and Baby were also beaten. This occurrence was also witnessed by P.W.2 and others who were grazing the cattle. It is stated in self-defence that Dr. Iqbal Mohammad fired two shots from his gun due to which A-3 Mithai Lal and A-4 Baothoo received gun-shot wounds. The deceased who received serious injuries fell dead. When some more persons came to the scene of occurrence, the accused left the place. The rifle belonging to the deceased was found missing. A report was lodged with the police. P.W.4 Section 1. registered the crime on the same day at about 6.40 P.M. A-1 also lodged a written report of the incident in which it was stated that the occurrence took place at about 1.30. P.M.and that P.Ws 1, 3 and other injured persons came to the site with many others and tried to take forcible possession of the land from the accused who were alleged to be in continuous possession and the prosecution party set fire to the huts and also fired gun shots during the course of which A-3 and A-4 received injuries.
4. The Doctor, who conducted the post-mortem on the body of the deceased, found eight injuries most of which were lacerated or contused wounds. On internal examination he found fracture of skull and he opined that the death was due to shock and haemorrhage and due to the skull injuries. The other Doctors who examined P.W.3 Fasiuddin, Jangali, Baby, Edward Jacob and others found injuries on them, most of which were simple. On A-3 and A-4 the Doctor found lacerated wounds which could have been caused by a firearm. The prosecution relied mainly on the evidence of P.Ws 1 to 3, the eye-witnesses.
5. From the judgments of both the courts below it can be seen that each of the party claimed right of private defence. Therefore the question that came up for consideration was as to who were the aggressOrs. Both the courts after examining various documents in the litigation, however, ultimately held that the accused were the aggressors and accordingly convicted them.
6. In this appeal, the learned Counsel appearing for the appellants submits that both the courts below have overlooked the fact that the accused were in possession of the land at the relevant time and in this context, he relied on some of the admissions made by P.W. 3 and others. The High Court after considering the evidence of D.Ws 1 to 3 who are the official witnesses, was not prepared to accept the plea of the accused that they were in possession.
7. Admittedly there were civil and criminal proceedings between both the parties. The facts and circumstances go to show that both sides were armed and two of the accused received gun-shot injuries. It is not clear from the records that at what point of time the actual attack by the accused took place. If the accused had already dealt several blows on the. deceased, he could not have been in a position to shoot at the accused persons. Having regard to some of the admissions made by the witnesses, it appears that the accused took forcible possession of the land some days ago. Therefore even assuming that they came into possession after committing trespassing, if the deceased and others had gone to the land they cannot be held to be aggressors as pleaded by the defence. In these circumstances, the plea of the accused that they also acted in self-defence can not altogether be ignored. At any rate their plea also appears to be plausible.
8. However, the accused while exercising the right of self-defence have exceeded the same. The medical evidence shows that a number of injuries were inflicted on the deceased and on P.Ws and also the other workers. In this view of the matter the offence committed by them would be culpable homicide not amounting to murder as Exception 2 to Section 300 I.P.C. is attracted. Accordingly we set aside the conviction of the appellants under Sections 302 read with 149 I.P.C. and the sentence of imprisonment for life awarded thereunder. lasted we convict them under Section 304 Part I I.P.C. and sentence each of them to undergo seven years' R.I. The other convictions and sentences are confirmed. The sentences are directly to run concurrently. If the accused have already served out the sentences, they may be released. But this is subject to verification.
9. Subject to the modification of the sentence the appeal is dismissed.