Andhra Pradesh High Court - Amravati
Thamma Venkata Krishna Reddy vs The State Of Ap., on 13 June, 2022
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
Crl.R.C.No.184 of 2013
ORDER:-
The Station House Officer, Kollipara Police Station filed charge sheet against the accused under Sections.447, 354, 341, 324, 506 r/w 34 of Indian Penal Code (for short "I.P.C".)
2. The case of the prosecution in brief is that the accused and the de facto complainant are residents of Kothabommuvanipalem Village and the scene of offence is also situated in the same village. The husband of the de facto complainant (PW2) and A-1 are uterine brothers and both are living by doing cultivation. Since, two (2) years there are some ill-feelings between them regarding the partition of the property and in this connection, there is a civil dispute pending in the Court of learned II Additional Judicial I Class Magistrate, Tenali. PW2 is also cultivating his mother's land in an extent of Ac 0.78 cents as tenant since last 10 years and he is paying lease price to his mother. During this year, PW2 planted kanda and banana crops in the said land. On 06.03.2010 at about 9:30 A.M. LW1 together with LW2 and LW3 went to the said field and noticed that A-1 to A-5 were digging kanda crop with the help of coolies. LW1 to LW3 questioned the accused on point of their digging the crop, for which they grew wild against PW1 and PW2 and picked up quarrel with them. All the accused beat PW2 with hands and legs indiscriminately and tied his hands and legs with coconut rope and they attempted to do away his life by strangulating his neck. When PW1 came to rescue of PW2, A1 outraged her modesty and also tried to hack her with sickle. As a result, she received bleeding injury on 2 left hand middle finger. The accused also threatened them with dire consequences stating that PW1 and PW2 will enter the said land, they would do away their lives. A-2 and A-5 video-graphed the entire incident and the same was witnessed by PW3 to PW9. Basing on the complaint made by PW1, Initially the crime was registered under Crime No.28 of 2010 for the offences under Sections.447, 324, 341, 354, 506 r/w 34 of I.P.C. by the Station House Officer, Kollipara Police Station. During the course of investigation, it is revealed that the accused attempted to take away the life of LW2 by strangulating her neck. So, the Section 307 I.P.C. was added and accordingly, charge sheet was filed for the offences under Sections. 447, 354, 341, 324, 506, 307 r/w 34 I.P.C.
3. After filing the charge sheet, the Court has taken cognizance for the offences under Sections.307, 324, 341, 447, 506 r/w 34 I.P.C. against A-1 to A-5. The Court has taken cognizance under Sections. 324 and 354 against A-1.
4. During the trial, PW1 to PW11 were examined and Ex P1 to Ex P8 and MOs.1 to 3 were marked on behalf of the prosecution. Ex D1 to Ex D12 were marked on behalf of the defence.
5. The trial Court after considering the evidence has found the accused/A-1 to A-5 guilty for the offences under Sections.324, 341, 506(1) r/w 34 of I.P.C. and A-1 is further found guilty for the charges under Sections 354, 324 of I.P.C. and acquitted for the charges under Section 307 and 447 r/w 34 IPC.
6. The lower appellate Court after elaborate discussion confirmed the guilt of petitioner/A-1 for the charges under Sections.323 and 3 341 of I.P.C. and acquitted the other accused by allowing the appeal partly.
7. Aggrieved by the same, the present Criminal Revision Case is filed.
8. Heard both sides.
9. Learned counsel for the revision petitioner submitted that the petitioner/A-1 has exercised his right available in respect of private defence in order to protect his property and used some force which cannot be construed as an offence and further submitted that the parameters of the right of private defence as provided in I.P.C. has been completely lost sight by the Courts below and the Courts below were not justified in convicting the accused and prayed to allow the Criminal Revision Case by setting aside the conviction eventually found guilt against revision petitioner/A-1 for the offences under Sections.323, 341 of I.P.C., by the lower appellate Court.
10. The question that arises in the present Criminal Revision Case to be considered is the alleged exercise of the right of private defence, is available to the petitioner/A1.
11. Section 96 of I.P.C. provides that nothing is an offence which is done in exercise of the right of private defence. The right of private defence is a question of fact to be determined on the facts and circumstances of each case. In determining this question of fact, the Court must consider all the surrounding circumstances. If the circumstances show that right of private defence was properly exercised it is open to the Court to consider such plea and the 4 burden of proof is on the accused who sets off the plea of self defence and in the absence of proof it is not possible for the Court to presume the truth of self defence. The Court shall presume the absence of such circumstances. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused.
12. In order to answer the same, it is necessary to extract the fascicle of Sections. 97 and 99 of I.P.C.
Section 97. Right of Private defence of the body and of property:- Every person has a right, subject to the restrictions contained in Section 99, to defend-
Firstly:- His own body, and the body of any other person, against any offence affecting the human body;
Secondly:- The property, whether movable or immovable, of himself or of any other person, against any 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.
Section 99. Acts against which there is no right of private defence: There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law.
There is no right of private defence against an act which does not, reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law 5 There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
Extent to which the right may be exercised-
The right of private defence in no case extends to the inflicting. of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1 :- A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.
Explanation 2 :- A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.
13. Under Section. 99 of IPC there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done or attempted to be done.
14. In "Sikandar Singh and others Vs. State of Bihar1" it is held as follows:-
"25. Section 99 IPC lays down exceptions to which rule of self-defence is subject. Section 100 IPC provides, inter alia, that the right of private defence of the body extends, under the restrictions mentioned in Section 99 IPC, to the voluntary causing of death, if the offence which occasions the exercise of the right be an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. In other words, if the person claiming the right of private defence has to face the assailant, who can be reasonably apprehended to cause 1 (2010) 7 Supreme Court Cases 477 6 grievous hurt to him, it would be open to him to defend himself by causing the death of the assailant."
15. On considering the above conspectus of facts and law and the ingredients as enumerated under Sections. 97 and 99 of I.P.C. the following issues arises for consideration for the present case.
i) Whether the petitioner has ably discharged the burden that he has exercised the right in proper perspective and that the circumstances such caused the accused to use the force in respect of his right to exercise the right of private defence.
ii) Whether the accused has exceeded in exercising the right of private defence,
iii) Whether the victim is the aggressor for the incident and whether the victim is armed with any objects.
16. As per the evidence and testimonies of the prosecution witnesses it does reflect that the victim has used any force or the aggressor of the incident and the victim (PW2) was unarmed and it is categorical evidence of the prosecution that the accused is armed with sickle and rope which are marked as MO-3 and MO-1 respectively. As per the evidence admittedly there are civil disputes pending between A1 and PW2 who are uterine brothers. It is the case of victim- PW2 who is doing cultivation for the last 10 years. Due to the civil disputes striations has sprung up. This Court presumes that the incident has sprung up on execution of registered settlement gift deed executed by the mother of A1 on 11.12.2009 which is marked as Ex.D-6 in sessions case. Basing on the said document executed by mother of A1 infavour of A1 the accused went to the land and tried to occupy the land where the victim-PW2 has 7 questioned them regarding excavation of the produce, then the accused committed the offence. This Court further observes that when there are disputes in between the accused and victims, the accused ought to have taken recourse to the private law remedy or to the public authorities. The evidence does reflect that the accused has received any injuries or it is not the case of the accused that the victim-PW2 and his family members used any force or performed any aggression against the accused. The petitioner/accused has exceeded the right of private defence as held in Section 99 of I.P.C. as there is no such apprehension, or any grievous hurt was caused or attempted by the victim or his family members against the revision petitioner/accused.
17. In "Laxman Sahu Vs. State of Orissa2" the Hon'ble Apex Court held as follows:
"27. To put it pithily, the right of private defence is a defensive right. It is neither a right of aggression nor of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger which is not self- created. Necessity must be present, real or apparent."
18. In "Dharam Vs. State of Haryana3" the Hon'ble Apex Court held that, nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence.
2 1986 Supp. SCC 555 : 1987 SCC (Cri) 173 : AIR 1988 SC 83 3 (2007) 15 SCC 241 8
19. In "Gurbachan Singh Vs. State of Haryana4" the Hon'ble Apex Court held that, "3. The only question which arose, on the facts set out above, was whether Gurbachan Singh could possibly have a right of private defence. Apart from the fact that he neither took up either a plea of private defence or of a mistake of fact or of accident, we are in agreement with the High Court that no right of private defence can exist against an unarmed and unoffending individual who was trying to get up. Even if Karnail Singh had managed to get up and was standing at the time when the fatal injury was inflicted upon him, there is no suggestion, even in the course of cross-examination of witnesses, to indicate that he lifted his little finger against Gurbachan Singh. In the circumstances, Gurbachan Singh had no justification whatsoever for thrusting his spear into Kernail Singh's chest. It was apparent that the act was deliberate, but, on considering all the facts of the case, the lesser sentence of life imprisonment was awarded. We uphold the conviction and sentence passed on Gurbachan Singh and dismiss his appeal.
20. In "Vidhya Singh Vs. State of Madhya Pradesh5" the Hon'ble Apex Court observed that right of self-defence should not be construed narrowly because it is a very valuable right and has a social purpose.
21. After considering the law and facts of the case the victim (PW2) and his family members are unarmed or performed any aggression or used any force against the accused; no overt act at all was committed by the victim; no harm or injury was caused to the petitioner/A1, there was no threat to life or property of the petitioner/A1 necessitating exercise of right of private defence. 4 (1974) 3 Supreme Court Cases 667 5 (1971) 3 SCC 244 : 1971 SCC (Cri) 469 9
22. The acts of the revision petitioner/accused is deliberate and there was no threat to life or property of the accused as such the petitioner cannot claim right of self defence. Accordingly, such please was negated. As such the conviction and sentence imposed by the lower appellate court is hereby confirmed.
23. Accordingly, the Criminal Revision Case is dismissed.
24. The bail bond of the petitioner/A-1 shall stand cancelled. The petitioner/A-1 is hereby directed to surrender before the concerned Court.
Miscellaneous Petitions pending, if any, shall stand closed.
________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 13-06-2022 EPS/Harin 10 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO Crl.R.C.No.184 OF 2013 Date: 13-06-2022 EPS/Harin