N Criminal Appeal No 220 of 1974
Appeal by Special Leave from the Judgment and Order dated 9th January 1974 of the Allahabad High Court in Criminal Appeal No 35677 connected with Criminal Appeal No 723 of 1970
R K Garg section section Bhatnagar V J Francis and Sunil Kumar Jain for the Appellants
R K Bhat for the Respondent
The Judgment of the Court was delivered by BAHARUL ISLAM J
This appeal by special leave has been directed against the judgment and order passed by the Allahabad High Court dismissing two appeals filed by the appellants before it
The appellants were convicted under Sections 302 307 and 323 all read with Section 149 of the Penal Code
They were sentenced to imprisonment for life each under Section 302149 rigorous imprisonment for 7 years each under Section 307149 and rigorous imprisonment for six months each under Section 323149 of the Penal Code
Appellants Harish Chandra and Nathu were further convicted under Section 148 of the Penal Code and sentenced to rigorous imprisonment for two years each
The sentences were directed to run concurrently
The facts material for the purpose of disposal of this appeal may be stated thus
The prosecution alleges that there was 354 long standing enmity between the parties of the deceased and the appellants
Some time prior to the incident a flour mill was installed and a house constructed by PW 1 Pahelwan in his plot of land
In front of the flour mill and the residence of Pahelwan there was some vacant land in his possession
The appellants had started throwing rubbish on the land
Pahelwan and his son Ram Swarup deceased objected to this
The appellants were annoyed at the objection of Pahelwan and his son Ram Swarup
On 31st December 1968 at about noon appellants Harish Chandra and Ram Sewak had some alteration with Pahelwan and Ram Swarup in connection with throwing of rubbish on the aforesaid land and as a consequence the relation between the parties worsened
In the evening at about 8 O clock on the 1st of January 1969 appellant Ram Sewak armed with a lathi went to the front of the flour mill of Pahelwan and started to hurl abuses on Pahelwan and his son Ram Swarup
Appellant Ram Sewak challenged Pahelwan and his companions to see them that day
At that time it has been alleged an electric light was burning in the front of the room of the flour mill as usual
At the call of the appellant Ram Sewak the other appellants came variously armed with lathis and spears and started giving blows to Pahelwan and his son Ram Swarup both of whom according to the prosecution were unarmed
Pahelwan somehow managed to snatch the spear from the hand of the appellant Ishwari and started giving blows to the assailants in order to defend himself
At that time it has been further stated appellants Harish Chandra and Nathu fired their gun and pistol respectively
As a result Ram Swarup was hit and he fell down in front of the flour mill
The shot of Nathu hit PW 1 Pahelwan Lal Ram and Shri Kishan all of whom received injuries
Lekh Raj PW then attacked the appellants with his lathi as a result of which some injuries were caused to the appellants including Harish Chandra
Thereafter the appellants escaped
Ram Swarup succumbed to bullet injuries while he was being removed to the police station
A first information report was lodged by PW 1 and eventually the appellants were committed to the court of Sessions that convicted and sentenced as stated above
Their appeal was also dismissed by the High Court as earlier stated
Learned counsel for the appellants submitted that large number of injuries had also been received by the appellants and that there was no finding by the courts below as to how the assault 355 initially started and which party was the aggressor prosecution has not explained as to how the appellants received the injuries
As such he submitted the conviction for the offences with the aid of Section 149 Penal Code was bad in law
In support of his contention he relied on a decision of this Court reported in AIR 1976 section C 2263
This Court in AIR 1976 SC 2263 has held 1 That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version 2 that the witnesses who have denied the presence of the injuries on the person of the accused are lying on most material point and therefore their evidence is unreliable 3 that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one
 The submission of the learned counsel is that the injuries found in the persons of the appellants have not been explained by the prosecution
The injuries are serious
The appellants had the right of private defence and therefore they have committed no offence
The submission of the learned counsel is not warranted by the findings of the High Court
The High Court agreeing with the trial Court has found that the prosecution case as alleged has been established by the evidence of the prosecution witnesses
The High Court as well as the trial Court has rejected the defence version of the case in view of their inconsistent pleas before the Committing Court and the trial Court
Before the Committing Magistrate pleas of appellants Harish Chandra and Soney Lal were alibi
The defence of appellants Ram Sewak and Nathu was that the occurr 356 ence had not taken place on the land of PW 1 Pahelwan as alleged by the prosecution but it had taken place at a different place
According to them there was a quarrel in respect of some property between Ram Swarup deceased and Zorawar brother in law of Ram Swarup in which appellant Nathu intervened whereupon Pahelwan PW 1 Lala Ram Shri Kishan Triloki Ram Swarup Prasad Munna Jamadar Lekthraj and others attacked the appellants and in that incident injuries were received by PW 1 and the deceased
The defence of appellant Ishwari before the Committing Magistrate was that Pahelwan PW1 Lekh Raj and others attacked him as a result of which he became unconscious
The defence of the appellants before the Sessions Judge was one of the right of private defence
The defence of appellant Harish Chander before the Sessions Judge was an alibi
The defence of the other appellants was that Ishwari had been returning from Ghurwal Chak
At that time he was attacked by the prosecution witnesses and the deceased
The incident took place on a land between residence and flour mill of PW1 and in that assault the appellants had to defend themselves
On a consideration of the evidence on record the learned High Court agreeing with the Sessions Judge has accepted the version of the prosecution and rejected that of the defence
In coming to that conclusion the High Court has also taken notice of the fact that PW1
had a licensed gun
Had he and Ram Swarup and other PW s been the aggressors he PW1 would not have come without the gun
In view of the inconsistent pleas and in view of the fact that no infirmity worth the name has been shown in the statement of eye witnesses of the occurrence the High Court accepted the prosecution case as true and held that the defence case is false
The High Court has also held that appellants were the aggressors
It is therefore not correct to suggest as contended by the learned counsel for the appellants that there were no findings on record to show as to how the quarrel started and that the appellants were the aggressors
From the findings of learned courts below the facts that emerge are 1 that it was the appellants who were the aggressors 2 that the occurrence took place on the land in front of the house of PW 1 Pahelwan who was in possession thereof 3 that PW1 and the deceased had the right of the private defence of property and person and they did exercise that right
Aggres 357 sors even if they receive injuries from the victims of their aggression cannot have the right of private defence
The findings are that PW1 and the deceased were unarmed
PW1 snatched a weapon from one of the assailants and caused injuries on them
On the top of it two of the appellants brought fire arms and fired at the deceased and the P W 1 as a result of which the deceased expired
The submissions of learned counsel for the appellants do not stand scrutiny
This appeal has no merit and is dismissed


Summary:
The prosecution alleged that there was a long standing enmity between the parties of the deceased and the appellants
There was a vacant plot of land in front of the flour mill and residence of PW 1
The appellants started throwing rubbish on this piece of land
PW1 and his son the deceased objected to this
On the fateful day at about noon there was an altercation in connection with the throwing of rubbish and at about 8 pm one of the appellants armed with a lathi went to the flour mill and challenged PW 1 and his companions
At the call of this appellant the other appellants who were armed with gun pistol lathi and spear arrived at the spot
PW 1 managed to snatch the spear from the hands of one of the appellants and started giving blows to the assailants in order to defend himself
At that time two of the appellants fired their gun and pistol as a result of which the son of PW 1 received injuries to which he succumbed while being removed to the Police Station
The defence of the appellants was one of alibi and that the offence had not taken place on the land of PW 1
The appellants were tried before the Sessions Judge who convicted and sentenced them under Sections 302 307 and 323 read with Section 149 of the Penal Code
The High Court dismissed the appeal
It agreed with the trial Court and found that the prosecution case was established by the evidence of the prosecution witnesses and that the defence version of the case had to be rejected on account of the inconsistent pleas made by the appellants before the committing court and the Sessions Court
In the appeal in this Court it was contended that there was no finding by the trial and appellate courts as to how the assault initially started and which party was the aggressor that the prosecution had not explained as to how the 353 appellants received the injuries and that the appellants had the right of private defence and therefore they had committed no offence
Dismissing the appeal  HELD 1
The High Court rightly accepted the prosecution case as true and held that the defence case was false
356 F 2
The findings of the two courts below indicate that it was the appellants who were the aggressors and that the occurrence took place on the land lying in front of the house of PW 1 who was in possession thereof and that the deceased and PW 1 had the right of private defence of property and person and that they exercised that right
The appellants who were the aggressors even if they received injuries from the victims of their aggression cannot have any right of private defence
The findings are that the deceased and PW 1 were unarmed and that PW 1 snatched the weapon from one of the assailants and caused injuries to them
If the deceased and the other prosecution witnesses had been the aggressors PW 1 would not have come without his licensed gun
356 H 357A 356E