Gujarat High Court
Vadilal Pochabhai Thakkar vs State Of Gujarat on 21 September, 1987
Equivalent citations: (1988)2GLR1101
JUDGMENT J.P. Desai, J.
[His Lordship after stating the facts of the case, further observed:]
1. We will first take up the question whether the accused were entitled to the exercise of right of defence of property as contended by the learned Counsel Mr. D,V. Patel for the appellants. We may mention at the outset that no such contention was raised before the trial Court. The accused have also not come out wish a say that they acted in exercise of the right of defence of property. But it is a settled position of law that even if the accused have not comeforth with a say that they were acting in exercise of the right of defence of person or property, that question can be considered by the Court provided that could be borne out from the material on record. It may however be mentioned here that no suggestion was made to any of the witnesses during their cross-examination from which it could even be remotely inferred that the accused were acting in exercise of the right of defence of property. In other words no basis has been laid in the cross-examination of any of the witnesses which would show that the accused were acting in exercise of the right of defence of property. In the present case, there is nothing on record to show that after going to the scene of his incident, the accused asked the Bharwads to go out of the field along with their cattle and the Bharwads resisted and refused to go out. The prosecution evidence shows that soon after going to the scene of this incident, the accused began to assault the deceased as well as the injured. The question is whether the accused can say that they were entitled to go and attack the Bharwads who were grazing cattle and then claim that they were exercising the right of defence of property. Having given our anxious thought to this question, we are not inclined to accept the submission of Mr. Patel that the accused were entitled to claim the right of defence of property. The question of their exceeding the right, therefore, does not arise for consideration.
2. Before going to the discussion of the decisions cited at the Bar, we would like to refer to the relevant provisions of the Indian Penal Code with regard to the right of private defence of body and property. The relevant portion of Section 99 I.P.C. reads as follows:
There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
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.
Section 102 I.P.C. reads as follows:
102 Commencement and continuance of the right of private defence of the body: The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.
Section 103 I.P.C. deals with the extent of the right of defence of property, so far as causing death is concerned. It enumerates certain offences and says that if the offender is committing any of those offences with regard to the property, the right of defence of property will extend to causing his death. Section 104 I.P.C. reads as follows:
When such right extends to causing any harm other than death: If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theff, mischief or criminal trespass not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in Section 99, to the voluntary causing to the wrongdoer of any harm other than death.
Section 105 I.P.C. which deals with commencement and continuance of the right of private defence of property reads as follows:
Commencement and continuance of the right of private defence of property: The right of private defence of property commences when a reasonable apprehension of danger to the property commences.
The right of private defence of property against that continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.
The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.
The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission or criminal trespass or mischief The right of private defence of property against house breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.
3. We will like to refer to some of the decisions which were cited at the bar. The first decision is of the Supreme Court reported in Munshi Ram and Ors. v. Delhi Administration AIR 1968 SC 702. It appears that the plea of private defence was not taken in the statement under Section 342 Cri. Pro. Code. The necessary basis for that plea was laid in cross-examination of the prosecution witnesses as well as by adducing defence evidence and, therefore, the Supreme Court held that the Court can consider such a plea and that the burden of establishing that plea is on the accused and that can be discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. In the present case, no such basis was laid at any stage of the trial, as stated by us a little earlier. It appears from the facts of that case that one J was in possession as a tenant of the land in dispute which was an evacuee property and the land was sold in public auction to the complainant and sale certificate was issued and delivery was allegedly given thereafter in pursuance of the warrant issued by the managing officer, but J was neither present at that time nor was aware of it and the complainant-party went there with deadly weapons and tractor to the field and accused J's relations asked them to clear out of the field, but they refused to do so and tried to push them and attacked them and in that incident some persons received simple injuries. The Supreme Court held that the accused had right of private defence and did not exceed that right and the alleged actual delivery was unauthorised. The Supreme Court held that the complainant party was guilty of criminal trespass and had constituted an unlawful assembly. It was contended before the Supreme Court that J had enough time to have recourse to the protection of the public authorities and, therefore, the accused-appellants could not claim right of private defence. The Supreme Court, negatived that contention on the facts of that case. The Supreme Court observed in this regard as follows:
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 authorities. The right of private defence serves a social purpose and that right should be liberally construed. Such a right not only be a restraining influence on the 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.
In the case before the Supreme Court, it appears that when relations of J went to the field and asked the persons who were cultivating the field to go out, they were attacked and it was in that context that the Supreme Court held that the accused had a right of private defence and they had acted in exercise of that right. In the present case, it appears that the persons who went to the field started assaulting the Bharwads without even asking them to leave the field with their cattle. This decision of the Supreme Court is, therefore, not of any assistance to the accused-appellants in the present case, so far as this aspect is concerned.
4. The next decision is also of the Supreme Court reported in Gurdatta Mal and Ors. v. The State of Uttar Pradesh. . It appears from the facts of that case that one of the deceased had title to and was in physical possession of one plot of land. On that day the deceased accompanied by some others went to the field to harvest the crop standing on the said plot. One Bhagwan Das had also a plot in the same village and he also started to go there to harvest his crop. They anticipated some trouble from the side of the accused and therefore, they went to the Police Station which was on their way and lodged two reports wherein they alleged that there was an apprehension of breach of peace from the side of the accused and, therefore one Head Constable and two Police Constables accompanied them to the fields. The party reached the village and started cutting the crop. Half an hour thereafter the two accused reached there and told the constables that they were wanted by the Station Officer at the Police Station. At first, they refused to go, but later on, one of the constables accompanied by the said two accused proceeded to the Police Station and after going a short distance, the accused asked the Police Constable to go to the Police Station by himself as they were returning to their houses. About half an hour thereafter, the accused went to the said field armed with weapons such as guns, spear and lathis. When they approached the field, the Police Constable who was in the field asked them to stop and not to proceed further. But they entered the field and fired their guns killing three persons. Some of the persons in the field were also injured. In that case, the defence version was that plot No. 57 which was claimed by Gurucharan Lal, the deceased was in the cultivatory possession of the appellants and the crops standing there on were raised by them and when they came to know that the deceased had gone to the said field with 25 persons to cut the crop, they went there in order to stop them. It was their case that they had gone with the weapons because they had come to know that the persons who had goes to the field for taking away the crops were also armed with deadly weapons. According to them they asked the deceased and his men not to cut the crop, but the party of the deceased advanced to assault them and one of them Bhagwandas actually fired a shot towards them and apprehending danger to their lives and property, the appellants fired their guns in defence on the party of Gurucharan Lal, the deceased. The learned Additional Sessions Judge accepting the defence version acquitted the accused of the offence of murder but convicted two of them of the offence punishable under the Arms Act. Appeals were filed in the High Court, one by the State and the other by the convicted accused. The High Court in appeal accepted the defence version and the finding of the learned trial Judge that the appellants were in cultivatory possession of plot No 57 which was claimed by the deceased Gurucharan Lal and that the appellants had raised the crop therein, but held that the finding of the learned trial Judge that the deceased and his party were armed with deadly weapons was not acceptable as it was based on conjecture and speculation. The High Court took the view that the only right available to the accused was to prevent the commission of theft of property by the deceased and his party and, therefore, they had no right of private defence under Section 103 I.P.C. to cause the death of the members of the party of the deceased. The High Court also took the view that one Photographer who was there was killed and he was wholly unarmed and, therefore, there was no right of private defence of person or property, so far as that Photographer was concerned. The High Court held that the appellants had only the right of private defence to the extent of causing harm other than death and it proceeded to hold that only such of the accused as were responsible for causing gunshot injuries and spear injuries were liable under Section 302 read with Section 34 I.P.C. The matter was then carried in appeal before the Supreme Court. The Supreme Court observed that once it was established that the commo intention was commit murder, the question of separate individual liability in the context of private defence would be out of place. Under Section 103, the right of private defence of property extends, under the restrictions mentioned in Section 99 thereof to the voluntary causing of death, if the offence, the committing of which or attempting to commit which occasions the exercise of the right, falls in one of the categories mentioned therein, that is to say, if it was not one of the offences enumerated therein, the person had no right of private defence extending to the voluntarily causing of death. The Supreme Court, observed that if in the case before the Supreme Court, the accused were not able to establish that the offence which made them voluntarily cause death fell in one of the categories enumerated therein, they would be liable for murder as all of them participated in the offence pursuant to the common intention to murder. After making the above observations, the Supreme Court proceeded to examine the evidence in the case. The Supreme Court then observed at para 13 of the judgment that the intention of the deceased-party was peaceful and they were cutting the crops under the protection of the police and none of the deceased was in possession of any dangerous weapons and hence it was not possible to say that there was any reasonable apprehension on the part of the appellants that they would be killed or hurt by the deceased. The Supreme Court then observed in the same para that the High Court was certainly right in holding that the facts of the case did not attract the provisions of Section 103 I.P.C. The Supreme Court then considered the question of right of private defence at para 14 of the judgment. The Supreme Court referred to Section 99 which says that there is no right of private defence in cases in which there is time to have recourse to the protection of public authorities, and 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. The Supreme Court then posed a question: Can it be said that in the present case that the accused had no time to have recourse to the protection of public authorities and they had not caused more harm than was necessary to inflict for the purpose of private defence? The Supreme Court then further observed that the accused knew before hand that the deceased had gone to the field to cut the crop and the Police Station was about two miles from the plot. They could have certainly gone to the Police Station to inform the proper authority of the intentions of the deceased and asked for Police protection, but they did not do so. When the accused-appellants in that case went to the field, they found two Police Constables and hence they should have told them of the real situation and asked them to see that the deceased did not carry away the crop and should have sent one of their party to the Sub-Inspector and made the necessary report. The Supreme Court observed that if such a reasonable attitude was adopted by the appellants in that case, the unfortunate incident would not have happened. The Supreme Court then further posed the question: Secondly, was it necessary for the accused, in the circumstances in which they were placed, to use their guns immediately on coming to the field to shoot to kill three of the complainant's party? The Supreme Court then observed that looking of the facts of that case, the accused-appellants were not entitled to rely upon their right of private defence. In that view of the matter, the Supreme Court confirmed the order passed by the High Court and dismissed the appeal.
5. In the present case also, it appears that the accused appellants went to the field and immediately attacked the Bharwads who were grazing their cattle there. They do not appear to have even asked the deceased and the injured persons and Ors. to go out of the field with their cattle or that the deceased and the injured parsons resisted them.
6. In the case of Gator Sura v. The State of Gujarat [1966] 7 GLR 357, a decision rendered by a Division Bench of this Court, the right of private defence of property has been discussed. It appears from the facts of that case that the field in question belonged to the appellant accused and there was standing Juvar crop and the deceased had taken his cattle for grazing and in fact, had caused damage to his standing crop. It was on hearing or coming to know about it that the accused-appellants went there and he found Karamshi as also his cattle grazing in his field and thereby committing trespass, and causing mischief. It was contended on behalf of the accused-appellant that the accused had every right to ask Karamshi to have his cattle taken to the cattle-pound and when he asked him to do so, the deceased not only refused but on the contrary, began to beat him and it was that way that when he apprehended that he would cause grievous hurt or the like by reason of his having an iron-shod stick with him, that he had, in exercise of his right of private self-defence, given a blow with the stick that he had which hurt him on his head. It was contended that the accused-appellant was completely exonerated of the liability for the injury caused to Karamshi on his head. It appears from the facts of the case that the right of private defence of body was pleaded, but so far as the right of defence of property is concerned, it was initially urged but ultimately not pressed and was abandoned. It appears that the question with regard to the right of defence of property was also discussed by this Court at para 13 of the judgment. It was contended before this Court in that case that the right to seizs the cattle begins as soon as the accused sees the person damaging the crop and continues till the cattle are taken to the cattle-pound. this Court referred to two judgment reported in Bhagwant Rao v. Champat Rao AIR 1925 Nagpur 50 and Jagannath Singh v. Emperor , wherein it was held that while the right of capture of the cattle does not extend to following them to their sheds and seizing them there; but if the owner of a field attempts to seize them while actually trespassing, he would be within his rights in capturing them before they have definitely made their escape from the spot, even though they were not actually inside the field when captured. The same view is expressed in the case of Hansa and Ors. v. State AIR 1954 Allahabad 381, which is also referred to by the Division Bench. In that case, it is observed that under the English Law the position appears to be that the cattle can be seized only while they were actually trespassing and not afterwards. The Division Bench then observed that the codified law in India is slightly different and gives the right of seizure even though the cattle have in the meantime left the field of the complainant and reached the field or grove of the accused, provided notice of trespass was taken immediately and complainant was pursuing the cattle in order to take them to the pound. The Division Bench has observed that in such a case the accused has no right to forcibly rescue the cattle and cause injuries to the complainant who was taking the cattle to the pound and who resisted the rescue. After discussing these decisions, the High Court observed as follows:
However, in order to apply this view of the matter, it appears essential to establish that (a) the cattle must have trespassed into the field of the other person; (b) he must have noticed them having trespassed and causing damage to his crop; (c) he must have followed them with a view to seize them for taking them to the cattle-pound; and (d) that was forcibly resisted by the owner or the person in-charge of the cattle (underlining is ours). It is only in those circumstances that he would have a right to seize them, before reaching their shed or grove, which cannot be challenged by that person whose cattle, he wants to seize. If, however, these conditions were not existing, his right does not remain, and if he believed that his cattle had trespassed and caused damage to the crop etc. in his field, he could take action against him under Sections 447 and 426 of the Indian Penal Code and cannot take law in his own hands and then claim protection as sought to be done here.
Applying the test laid down in the above decision, it is difficult to accept the contention raised on behalf of the appellants that they had a right to commit murder and/or cause grievous hurt and hurt to the Bharwads who were grazing cattle there in exercise of right of defence of property.
7. So far as the State of Gujarat is concerned, we will have to look into the relevant provisions of the Gujarat Panchayats Act, 1961 and not to the provisions of the Cattle Trespass Act. Section 161 of the said Act provides for penalty for allowing cattle which are his property or in his charge, to stray in street or to trespass upon private or public property. This shows that such act amounts to an offence punishable under the said Act. Section 162 of the said Act reads as follows:
162. (1) It shall be the duty of every Police Officer and a Watch and Ward appointed by the Panchayat, and it shall be lawful for any other person, to seize and take to any such public pound for confinement therein, any cattle found straying in any street or trespassing upon any private or public property within the limits of Gram or Nagar, as the case may be.
(2) Whoever forcibly opposes the seizure of cattle liable to be seized under this Act, and whoever rescues the same after seizure, either from a pound or from any person taking or about to take them to a pound, shall on conviction, be punished with imprisonment for a term not exceeding six months or with fine not exceeding five hundred or with both.
Sub-section (1) of Section 162 thus shows that it is lawful for any person to seize and take the cattle to any public pound for confinement therein when the cattle are found straying in any street or trespassing upon any private or public property within the limits of the Gram or Nagar Panchayat. Sub-section (2) of Section 162 provides for penalty if any person forcibly opposes the seizure of the cattle liable to be seized under the Act. Rescuing the same after seizure, either from a pound or from any person taking or about to take them to a pound-is also an offence under Sub-section (2) of Section 162 of the Act. These two provisions of the Act read together thus show that to allow the cattle to trespass in any private or public property is an offence and any person has a right to seize such cattle and take them to the cattle-pound for confinement and anybody who forcibly opposes the seizure or anybody who rescues the same after seizure, either from a pound or from any person who is taking or about to take them to a pound also commits an offence.
8. In view of the above provisions of the Gujarat Panchayats Act, the accused were entitled to seize the cattle and take them to the cattle-pound and if in doing so, they were opposed, they would have been entitled to use such force as would be necessary to take the cattle to the cattle-pound. The accused could also have approached the authorities for necessary action or even filed a complaint for criminal trespass punishable under the Panchayats Act as well as under the Indian Penal Code. Their act, however, in straightway giving blows to the deceased and the injured persons cannot by any stretch of imagination be covered by any of the provisions of the Penal Code which gives the right of defence of person and/or property. There is not even any suggestion in the cross-examination of any of the witnesses that before attacking the Bharwads, the accused even asked the Bharwads to take out the cattle from the fields. There is also no suggestion in the cross-examination that the accused suggested to the Bharwads that because they were committing an offence by allowing the cattle to graze in their fields, the accused were entitled to take the cattle to the cattle-pound and, therefore, they will take the cattle to the cattle-pound. In these circumstances, it cannot be said with any stretch of imagination that the accused were entitled to cause deaths of the four Bharwads and injuries to the other four Bharwads in the exercise of the right of defence of property. The submission made by Mr. Patel for the appellants-accused that the accused had acted in exercise of the defence of property, therefore, is required to be rejected.
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9. In the present case, as discussed by us a little earlier, information about the incident was first given by Ranchhodbhai Bhojabhai, which is at Ex. 179. The contents of Ex. 179 do not disclose commission of a cognizable offence. It did not disclose the number of assailants, the nature of weapons used by them and nature of injuries sustained by the Bharwads. Exhibit 179 cannot, therefore, be said, with any stretch of imagination, to be information with respect to a cognizable offence. Exhibit 197 which was given by Kalu Puna disclosed the commission of a cognizable offence and, therefore, it was the first information about these offences. Exhibit 197 has, therefore, been rightly admitted in evidence by the learned trial Judge as first information report about the incident. The learned trial Judge has taken the view that Exs. 179 and 197 can both be treated as first information report of the incident. It is difficult to agree with this view of the learned trial Judge. If Ex. 179 was the information in respect of a cognizable offence, then Ex. 197 will naturally be hit by Section 162 of the Code of Criminal Procedure because in that case it can be said that investigation was started on the strength of the information received at Ex. 179. The learned trial Judge, with respect to him, lost sight of the fact that once information of a cognizable is given to Police and the Police started inquiry into the matter, it will be investigation into a cognizable offence and, therefore, any statement recorded by the investigating agency will be a statement recorded during the course of investigation and will not be admissible in evidence in view of the provisions of Section 162 of the Criminal Procedure Code. The learned trial Judge, with respect to him, fell into an error in reaching the conclusion that Ex. 197 also can be said to be a FIR along with Ex. 179.
10. The discussion made above will go to show that accused Nos. 1 to 14 are required to be held guilty of the offence of murder punishable under Section 302 read with Section 149 I.P.C., of the offence of causing grievous hurt by deadly weapons punishable under Section 326 read with Section 149 I.P.C. and of the offence of causing grievous hurt punishable under Section 325 read with Section 149 I.P.C. The learned trial Judge has held accused Nos. 4, 13 and some other accused responsible for causing the death of Hari Kachra by giving blows to Hari Kachra. This finding of the learned trial Judge cannot be accepted because we are not inclined to rely upon the prosecution witnesses when they say that a particular accused gave a blow to a particular deceased. But apart from this, when more than one persons have given blows to Hari Kachra which resulted in his death, it cannot be said that a particular accused committed his murder unless it is established that his blow was the fatal blow. It cannot be said from the evidence on record that the blow given by a particular accused resulted in the death of Hari Kachra. Hence, none of the accused can be held guilty of the offence punishable under Section 302 I.P.C. for causing the. death of Hari Kachra, though, of course, those accused who are proved to be members of the unlawful assembly including those who gave blows to him can be held guilty of the offence punishable under Section 302 read with Section 149 I.P.C. For the same reasons, none of the accused can be held guilty of the offence punishable under Section 302 I.P.C. for causing the deaths of Popat Rama, Bechar Karman and Navghan Raghu The accused can be held guilty only of the offence punishable under Section 302 read with Section 149 I.P.C. even so far as causing the deaths of these three persons is concerned.
11. Similarly, it cannot be said from the evidence on record that the blow of a particular accused caused grievous hurt to a particular witness. More than one persons had attacked the four persons who were injured in this incident. For the same reasons for which we are not inclined to hold any accused individually liable for the offence of murder, none of the accused can be held liable either for the offence punishable under Section 326 I.P.C. or for the offence punishable under Section 325 I.P.C. The accused are required to be convicted only of the offence punishable under Section 326 read with Section 149 I.P.C. and Section 325 read with Section 149 I.P.C. for causing injuries to the four injured persons. The learned trial Judge has held some of the accused individually liable for the offence of murder as well as for the offences punishable under Sections 326 and 325 I.P.C. That finding as discussed above cannot be sustained. The conviction of accused Nos. 1 to 14 can be sustained only for offences punishable under Sections 147, 148, 302 read with Section 149, Section 326 read with Section 149 and Section 325 read with Section 149 I.P.C. The order passed by the learned trial Judge is required to be modified even so far as accused Nos. 1 to 14 are concerned, whose conviction we are inclined to confirm.
12. The learned trial Judge has imposed the sentence of fine over and above the sentence of imprisonment for life for the offence of murder. Section 302 I.P.C, of course, provides a sentence of fine over and above that of death or imprisonment for life. But, in our opinion, the sentence of fine for an offence of murder is wholly inapposite. We are fortified in this view of ours by a judgment of the Bombay High Court reported in State v. Pandurang 1956 Cri.LJ 1306. A Division Bench of the Bombay High Court held that where the Sessions Judge has sentenced that accused to transportation for life for an offence of murder, he cannot impose a sentence of fine. The sentence of fine for an offence of murder is wholly inapposite, as observed by the Division Bench of the Bombay High Court in the above case. The Division Bench observed at para 8 that it finds it difficult to appreciate why the learned Sessions Judge in a case where he sentenced the accused for the offence of murder should have imposed a sentence of fine. The Division Bench was of the opinion that a sentence of fine should not be imposed for an offence of murder unless it appears that the offence was committed for pecuniary gain.
13. Following the above decision of the Division Bench of the Bombay High Court, a Division Bench of the Allahabad High Court has also in the case of Dhanno Khan v. The State 1957 Cri.LJ 498 taken the same view. The Allahabad High Court has observed therein as follows:
Whether there should be a sentence of fine also is for the Court to determine. Nevertheless when a Court imposes a sentence of fine also under Section 302 I.P.C, then obviously the Court has got to give reasons why a sentence of fine also was being imposed, for the simple reason that a sentence of fine over and above the substantive sentence is deemed to be in excess there of and it has always been thought desirable to give reasons for imposing the excess penally, so to speak. A sentence of fine in a murder case looks appropriate only where the murder has been motivated for monetary gain.
In the present case, the offence of murder was not committed for any monetary gain and, therefore, we are inclined to set aside the sentence of fine imposed upon the accused-appellants whose conviction is confirmed by us for the offence of murder. We may mention here that we find in many cases that while sentencing the accused to imprisonment for life for the offence of murder, the Sessions Judges also impose a sentence of fine even where it does not appear that the murder was committed for a monetary gain. The Sessions Judges should refrain from imposing a sentence of fine for the offence of murder unless it is found that the offence was committed for a pecuniary gain.
14. It appears from the directions given by the learned trial Judge in the final order that the accused who were convicted and sentenced were entitled to set off under Section 428 of the Criminal Procedure Code, 1973. All the accused are sentenced to imprisonment for life for the offence of murder punishable under Section 302 and/or Section 302 read with Section 149 I.P.C.
15. In the case of Kartar Singh and Ors. v. State of Haryana , the Supreme Court held that the benefit of set off under Section 428 of the Code was not available to persons who are sentenced to imprisonment for life, because the benefit of Section 428 is available only to persons who are sentenced to imprisonment for a term and the imprisonment for life was not a sentence for a term. This decision of the Supreme Court came up for consideration before the Supreme Court in the case of Bhagirath v. Delhi Administration . The Supreme Court after discussing the earlier decision held that the benefit of Section 428 of the Code was available to the persons who are sentenced to imprisonment for life, but that was subject to the provisions contained in Section 433A and provided that orders have been passed by appropriate authority under Section 432 or 433 of the Code. Section 432 of the Code empowers the appropriate Government either to suspend the execution or sentence or remit the whole or any part of the punishment to which he has been sentenced. Section 433 of the Code empowers the appropriate Government to commute, without the consent of the person sentenced, a sentence of imprisonment for life, lor punishment for a term not exceeding fourteen years or for fins Section 433A imposes certain restrictions on the appropriate Government while exercising the powers under Section 432 or 433 of the Code. Section 433A provides that a person who is sentenced to imprisonment for life for an offence for which death is one of the punishments provided by law, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
16. The Supreme Court in the case of Bhagirath v. Delhi Administration (supra) gave the following directions:
For these reasons, we allow the appeal and the writ petition and direct that the period of detention undergone by the two accused before us as undertrial prisoners, shall be set off against the sentence of life imprisonment imposed upon them subject to the provision contained in Section 433A and, provided that orders have passed by the appropriate authority under Section 432 or Section 433 of the Criminal Procedure Code.
In view of this decision of the Supreme Court, while directing that set off should be given under Section 428 to a person sentenced to imprisonment for life for any offence, the Sessions Court should give directions in that regard as per the directions given by the Supreme Court in the case of Bhagirath v. Delhi Administration (supra) which are reproduced above.
17. The learned trial Judge convicted the accused of the offences punishable under Sections 147 and 148. Section 147 I.P.C. provides punishment for rioting while Section 148 provides for enhanced punishment if any of the accused who is a member of the unlawful assembly while committing the rioting is armed with a deadly weapon which is likely to cause death. Section 148 I.P.C. is thus an aggravated form of Section 147 I.P.C. and, therefore, the accused should not have been convicted for both the offences. We are, therefore, inclined to set aside the order of conviction and sentence so far as the offence punishable under Section 147 I.P.C. is concerned.
18. The learned trial Judge convicted some of the accused of the offence punishable under Section 302 I.P.C. for committing the murder of Hari Kachra, some of them for committing the murder of Popat Rama, some of them for committing the murder of Bechar Karman and some of them for committing the murder of Navghan Raghu. The learned trial Judge then convicted the accused including the aforesaid accused of the offences punishable under Section 302 I.P.C. read with Section 149 I.P.C. for the aforesaid four murders. Those accused who were convicted of the substantive offence punishable under Section 302 I.P.C. for that particular murder cannot again be convicted of the offence punishable under Section 302 read with Section 149 I.P.C. So far as committing the murder of Hari Kachra is concerned, accused Nos. 4, 13 and 38 should not have been convicted again of the offence punishable under Section 302 read with Section 149 I.P.C. when they were convicted by the trial Court for the offence of murder punishable under Section 302 I.P.C. so far as causing the death of Hari Kachra is concerned. Only remaining accused should have been convicted of the offence punishable under Section 302 read with Section 149 I.P.C. so far as committing the murder of Hari Kachra is concerned. Similar orders should have been passed with regard to the murders of Popat Rama. Bechar Karman and Navghan Raghu. So far as causing grievous hurt to three witnesses with deadly weapons punishable under Section 326 read with Section 149 I.P.C. is concerned, separate conviction qua each injured should have been recorded by the trial Court as detailed in the final order which is being passed by this Court.