iminal Appeal No 75 of 1967
Appeal by special leave from the judgment and order dated April 8 1966 of the Andhra Pradesh High Court in Criminal Appeal No 636 of 1963
Nur ud din Ahmed A V Rangam A Vedavalli and D Gopala Rao for the appellants
P Ram Reddy and A V V Nair for the respondents
425 The Judgment of the Court was delivered by Dua J
In this appeal by special leave directed against
the order of the Andhra Pradesh High Court the only question canvassed on behalf of the appellants before us relates to the plea of private defence raised by them at the trial
The appellants who are ten in number were tried on as many is 22 charges by the Court of Additional Sessions Judge Masulipatam and acquitted of all the charges
On appeal by the State against their acquittal there was a difference of opinion between the two Judges of the High Court constituting the Division Bench hearing the appeal
Whereas Sharfuddin Ahmed J upheld the order of acquittal on the basis of the plea of private defence Mohd Mirza J was of the opinion that the prosecution case was proved by overwhelming evidence
The case was in consequence laid before Basi Reddy J as provided by section 429 Cr
That learned Judge accepted the prosecution case and convicted the appellants on some of the charges
He expressed his final conclusion thus  I shall now indicate the charges upon which the accused should be convicted and the sentences that should be imposed On charge No 21 would convict accused 1 3 and 5 to 9 under section 147 IPC and on charge No 3 accussed 2 4 and 10 and sentence each of accused 1 23 4 and 5 to pay a fine of Rs 5001 in default each to suffer six months  rigorous imprisonment
I would sentence each of accused 6 to 9 who are farm servants to pay a fine of Rs 100 in default to suffer two months  rigorous imprisonment
I would sentence accused 10 to suffer rigorous imprisonment for two years
On each of charges nos
4 5 and 6 which pertain to the three counts of murder I would convict and sentence accused 10 to suffer imprisonment for life under section 302 IPC 3
On charge No II I would convict and sentence accused No 10 to suffer two years  rigorous imprisonment under section 326 IPC for having caused grievous hurt to PW 6 by shooting at him with the gun
On charge No 221 would convict accused 10 under section 19a of the Indian Arms Act and sentence him to suffer one year s rigorous imprisonment
I would direct all the sentences of imprisonment passed on accused 10 to run concurrently
I would uphold the order of acquittal on other charges
426 The net result will be that accused 10 will have to undergo imprisonment for life accused 1 to 5 will each have to pay a fine of Rs 500 and accused 6 to 9 will each have to pay a fine of Rs 100 
The final
order of the High Court on appeal followed the opinion expressed by Basi Reddy J The charges on which the appellants were convicted are there    
Secondly  that you accused nos
1 3 and 5 to 9 along with accused nos
2 4 and 10 at about 10 am on 10 9 61 at the same place and in the course of the same transaction as set out in charge No 1 above formed your the common object of such assembly viz  beating and the occupiers of Gabbilalakunta committed an offence of assembly viz  beating and killing the members of the lakunta committed an offence of rioting and that at that weapons to wit spears  and the 10th accused was armed and within my cognizance Thirdly  that you accused nos
2 4 and 10 along with accused nos
1 3 and 5 to 9 at the same time and place in the course of the same transaction as set out in charge No 2 above were members of an unlawful assembly and did in prosecution of the common object of such assembly viz beating and killing the members of the party that came in support of the occupiers of Gabbilalakunta committed an offence of rioting and that at that time the accused nos
2 and 4 were armed with deadly weapons to wit spears  and the 10th accused was armed with a DBB1 Gun and thereby committed an offence punishable under section 148 of the Indian Penal Code and within my cognizance Fourthly  that you accused No JO at the same time and place and in the course of the same transaction as set out in charge No 2 above did commit murder by intentionally or knowingly causing the death of Anne Ramarao son of Seetha Ramarao of Atkur by shooting him with a D B B1 gun and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance Fifthly  that you accused No 10 at the same time and place and in the course of the same transaction as set out in charge No 2 above did commit murder by intentionally or knowingly causing the death of Bodapati China Anjaiah so Danaiah of Mustabada by shooting 427 him with a DBB I gun and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance Sixthly  that you accused No 10 at the same time and place and in the course of the same transaction as set out in charge No 2 above did commit murder by intentionally or knowingly causing the death of Boddapati Lakshmaiah so Kotaiah of Medaripalem hamlet of Verudupavuluru by shooting him with a DBB1 gun and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance Eleventhly  that you accused No 10 at the same time and place and in the course of the same transaction as set out in charge No 2 above voluntarily caused grievous hurt to Kolli Nagabhushanam son of Venkaiah of Davajigudem by means of a DBB1 gun an instrument for shooting and thereby committed an offence punishable under section 326 of the Indian Penal Code and within my cognizance and that the said act having been done in pursuance of the common object of the unlawful assembly consisting of you all the accused herein all of you are guilty of the offence under section 326 of the Indian Penal Code read with section 149 Indian Penal Code and within my cognizance or alternatively under section 326 read with section 34 Indian Penal Code and within my cognizance Twentysecondly  that you accused No 10 at about the same time and place and in the course of the same transaction as set out in charge No 2 above were armed with a DBB1 gun without licence under the Indian Arms Act and thereby committed an offence punishable under section 19e of the Indian Arms Act and within my cognizance
 In this Court as already observed the appellants  learned Advocate confined his submission only to the question of right of private defence
According to the prosecution case there is a low lying area covering
about 11 acres known as Gabbilalakunta hereafter to be referred as the Kunta about one mile away from Surampalli village but within its limits
This Kunta serving as a tank is fed by rain water
The village of Surampalli was a Mokhasa village in the erstwhile zamindari of Mirzapuram
Under 428 the provisions of the Madras Estates Abolition and Conversion into Ryotwari Act 1948 the zamindari of Mirzapuram was taken over by the Government in 1950
As a result thereof the entire estate including Surampalli village and the Kunta became vested in the Government free from all encumbrances
This Kunta thus belonged to the Government
Some poor landless persons like PWs 13 and 14 Shaik Madarsaheb and Kandavalli Anandam began cultivating a part of this Kunta and started raising wet and dry crops
This started in the year 1953
Their occupation being unauthorised the Revenue Authorities collected penalty list from the occupants
Accuse4d nos
1 to 4 Gottipulla Venkatasiva Subbarayanam Gottipulla Bapaiah Gottipulla Seshaiah and Gottipulla Subba Rao who are the former Mokhasadars have their lands measuring about 80 acres to the south of the Kunta There is a big tank called Erracharuvu located about three or four furlongs to the north of the Kunta
There are some channels through which water flows from this tank to various fields and one such channel serves to irrigate the field of the accused nos
1 to 4
According to the prosecution the lands of these accused persons should be irrigated by means of the channel running along the western side of the Kunta
According to the accused persons however their fields should receive water from the Kunta through sluices in its southern bund
In 1958 the Settlement Authorities registered the Kunta as a source of irrigation for an ayacut of 34 acres
Prior to that sometime in August 1957 the occupiers of the Kunta had instituted a suit for injunction restraining accused nos
1 to 4 from interfering with the possession of the occupiers and also claiming damages on the allegation that the defendants had spoiled their crops and an interim injunction was actually granted on August 21 1957
Accused nos
1 to 4 also filed an application seeking to in junct the occupiers from opening the sluices out lets or making breaches in the bund of the Kunta during the pendency of the suit
On this application also the court by an order dated August 29 1957 granted a temporary injunction in the following terms Pending disposal of this petition the respondents are restrained fro in opening the sluices or outlets or cutting any breaches to the bund of the tank situated in section No 44 if there is any bund  On February 3 1960 the Court confirmed both the orders of injunction mentioned above
The land in the Kunta was not cultivated in the years 1958 to 1960 because of failure of rains
In June 1961 cultivation was resumed by PW 13 and PW 14 along with four other persons raising paddy crop in a part of the Kunta
Another part of the Kunta was prepared for raising 429 jonna crop
The suit mentioned above was still pending when on September 4 1961 it was adjourned to some other date
It rained heavily that night and the rain water collected in the Kunta
On the following morning when PW 13 and PW 14 along with some other occupiers passed by the side of the Kunta they saw a new bund raised on its western side so as to prevent the rain water collected therein from flowing westwards
This resulted in submerging the crop grown on the eastern portion of the Kunta
The new bund was about 3 high 2 12 wide and 25 yards in length
There being no one present at the bund PWs 13 and 14 and their companions made a breach therein to let the water flow westwards
In the evening when they came back to the Kunta they found that the breach in the bund had been repaired and the bund restored to its original position
There were also two improvised huts set up to the south of the bund and all the ten accused were present keeping a watch
The occupiers pleaded with the accused persons to remove the bund pointing out that otherwise their crops would be damaged but the accused persons did not listen to their entreaties and threatened to beat them if they dared to interfere with the bund
The occupiers thereupon went back to their village
On the following day September 6 1961 PW 12 Yelamanchili Malikharjuna Rao a medical practitioner at Surampalli and a leading member of the Communist Party was approached by the occupiers to assist them in representing to the authorities against the high handed action of the Mokhasadars
A report was prepared by PW 12 which was addressed to the Sub Inspector of Police
The Sub Inspector promised to send his constables to the spot and on this assurance the occupiers went back to their village
On September 7 1961 under the direction of the Police Sub Inspector two police constables went to the Kunta with the object of getting the bund removed and if possible to bind over the parties
The Kunta was full of water and the paddy crop was submerged
Six of the occupiers were also present at the spot
The police Constables informed the persons present keeping a watch on the bund which included accused No 1 Gottipulla Venkatasiva Subbarayanam accused No 2 Gottipulla Bapaiah and accused No 10 Charugulla Vijayaramarao that the Sub Inspector had directed the western bund to be removed so that water may flow westwards
Accused nos
1 2 and 10 asked for Government orders to that effect and declined to allow the bund to be removed in the absence of such an order
The police constables asked the parties present to meet the Sub Inspector on the following day
Neither party however went to the police station as required
The Tahsildar also appears to have been approached to get the bund removed but he declined to do so on the ground that it was not his business and that it was for the Revenue Divisional Officer to look into the matter
On September 9 1961 the Sub Inspector sent a head constable along with 430 the constable who had gone there on September 7 to enquire into the complaint made to the police earlier
According to the report prepared by the head constable accused No 10 was firm and emphatic that the bund could not be removed in the absence of a Government order to that effect
Bonds were therefore secured from accused nos
2 and 3 and also from the occupiers for appearance before the Sub Inspector on the following morning
It appears that these steps by the police produced no tangible result
The occupiers realising that their crops were being irreparably damaged made frantic efforts to get the bund removed and with that object they approached some ryots of the surrounding villages to intervene on their behalf and to persuade the Mokhasadars to remove the bund
After the police party had left Surampalli on the evening of September 9 PWs 13 and 14 and some other occupiers proceeded to Gannavaram and approached some persons belonging to the Communist Party and apprised them of their plight
The occupiers were assured of their support on the following morning
On the morning of September 10 PW II Katragadda Pedavenkatarayudu accompanied by PW 6 Koli Nagabhushanam and Anne Rama Rao deceased No 1 went to Mustabada on their way to Surampalli
At Mustabada they contacted Chinna Anjayya deceased No 2 and PW 15 Pendyala Venkateswara Rao and from there they all proceeded to Surampalli
At the Panchayat Board Office at Surampalli they collected PW 1 Madhukuluri Satyanarayana PW 4 Kolampatta Venkata Sub bayyachari PW 5 Jasti Ramarao PW 7 Garimella Subbarao PW 8 Garimella Venkataiah PW 9 Mukkala Veeraiah and deceased No 3 B Lakshmayya and also the six occupiers of the Kunta and two or three other persons
PW 12 Y Mallikarjuna Rao also arrived there
A message was sent through PW 13 to bring accused nos
1 to 4 to the Panchayat Board office but they were reported to be at the Kunta
Then all the persons gathered at the Panchayat Board office numbering about 20 proceeded to the Kunta at about 10 am on September 10
Accused nos
1 to 9 were found near the huts whereas accused No 10 with a gun was standing about 25 yards to the southeast of the huts
Accused nos
2 and 4 had spears whereas accused nos
3 and 5 to 9 had sticks with them
PWs 1 4 deceased No 1 PW II and others are stated to have requested accused nos
1 to 4 to remove the bund and save the growing crop belonging to the poor men
The accused declined to do so
Thereupon the six occupiers went towards the bund about 25 yards to the north of the huts and started themselves removing a portion
Accused nos
1 to 9 thereupon rushed at them to beat them
At that stage PW 5 Jasti Ramarao PW 7 Garimella Subba Rao and some others who had come to mediate intervened but they were beaten by the accused
The prosecution witnesses in turn snatched the sticks from some of the accused persons and retaliated causing injuries to some of them
431 At this point of time accused No 10 who was standing near the huts shouted that the party of the occupiers would not go back unless shot at and asked his companions to come back
Accused nos
1 to 9 started retreating towards the huts
Deceased No 1 and PW I who was about 10 yards southeast of the huts at that time went towards accused No 10 challenging him to shoot if he dared and saying that they were prepared to be shot for a just cause
Accused No 10 then stepped forward and fired at deceased No 1 from a distance of about 10 yards
Crying out Abba deceased No 1 fell down and died on the spot
A pellet grazed the nose of PW I who was a couple of yards behind deceased No 1 and he too fell down
According to the prosecution version accused No 2 hit PW I at the back as a result of which PW I also fell down unconscious
 Accused No 10 is stated to have fired another shot towards the west as a result of which PW 6 was injured
Accused No 10 then re loaded his gun and fired a shot towards the west and this hit deceased No 2 who also fell down dead
The fourth shot was fired by accused No 10 in the northwestern direction which hit deceased No 3 who was about 25 yards away from the huts and he too fell down dead
PWs 2 3 8 9 and 10 also received pellet injuries in the course of this firing
This broadly speaking is the prosecution case
According to the defence version sought to be supported by four defence witnesses the gun used during the occurrence was brought by accused No 1 who holds the necessary licence for this fire arm and it was he who used it in exercise of the right of private defence after accused nos
2 to 4 had received injuries at the hand of about 200 or 300 communist  who had come to the place of occurrence from the house of PW 12
They were armed with sticks and spears and were also carrying their flag
They were raising party slogans and shouting that Gottipulla people should be killed
They tried forcibly to remove the bund and on being obstructed by accused nos
2 to 4 and their servants working at their farm the occupiers and the communists gave a severe beating to the latter
Accused No 1 came to the spot with his gun and fired at the aggressors in exercise of the right of private defence
Accused no10 according to this version was not present at the spot
In his statement under section 342 Cr
PC this accused pleaded alibi by stating that he was at Sivapuram Kadapa district on the fateful day having gone there weeks before and that he knew nothing about this occurrence according to him he stayed in Sivapuram for about one month and himself surrendered in the Magistrate s court on hearing that he was named as an accus ed in this case
The trial court did not accept his plea of alibi nor did the High Court accept it and we do not find any cogent ground for disagreeing with this conclusion
432 Now the facts in the background of which the question of Tight of private defence is to be considered are that the Kunta was the property of the Government and it was registered as a source of irrigation in the year 1958 or 1959
The occupiers were thus cultivating the Kunta in an unauthorised manner
Both sides had also secured injunction orders from the civil court against their opponents and the orders secured by the accused restrained the opposite party plaintiffs in the suit from cutting any breaches in the bund
The accused no doubt seemed to have put up the present bund after the occupiers had grown their crops but it is clear that for a couple of years previously there was insufficient rain and there was also no cultivation in the Kunta
The present bund was apparently raised on September 4 because it was on the morning of September 5 that the existence of the bund is stated to have been noticed by the occupiers
Thereafter the occupiers approached the police authorities for assistance in getting the bund removed but unfortunately the matter was not dealt with by the authorities in an effective manner as they ought to have
Having failed in their attempt to have the bund removed the occupiers with their communist helpers seem to have gone to the spot on the day of the occurrence to help themselves
Up to this stage there does not seem to be any controversy
The only difference between the rival versions relates to the question whether or not the party of the occupiers was armed and their number
The prosecution witnesses would have us believe that they the occupiers along with some of their friends and supporters had gone to the Kunta unarmed to peacefully persuade the accused persons to remove the bund and that the accused persons beat them tip with sticks and spears
The occupiers acting merely in self defence snatched the sticks and spears from some of the accused persons and gave them a beating whereupon accused No 10 used his gun indiscriminately firing at the party of the occupiers
The accused on the other hand claimed that the party of the occupiers helped by prominent communists which far outnumbered the accused persons were armed with sticks and spears and they forcibly tried to remove the bund and when the accused objected they were beaten up
Apprehending danger to their lives the gun was used on behalf of the party of the accused persons
It was thus in exercise of the right of private defence that this gun was used
It may at this stage be pointed out that the accused persons had also reported the matter to the police but on the plea that the police was siding with the occupiers and favouring them the accused persons filed a complaint in the court of a Magistrate against 35 persons and both the cases were tried simultaneously
As each side is blaming the other of being the aggressor and the witnesses for the prosecution deposing to the occurrence as eye witnesses are clearly interested in the occupiers the nature and 433 extent of the injuries suffered by the men of the two factions would serve as more reliable material for arriving at the truth
It is in this connection noteworthy that even according to the prosecution witnesses the party of the occupiers consisted of not less than 20 persons
We may now turn to the wound certificates of the accused persons
Gottipulla Venkata Siva Subbarayanam aged 60 years accused No 1 had 10 injuries on his person mainly on the head base of the neck and the shoulders and dying declaration was considered necessary by the Civil Assistant Surgeon
Gotti pulla Bapaiah aged about 50 years accused No 2 had the following injuries on his person  1
A contusion 12 in length x 12 with raised edges placed diagonally across the upper 1 3 of left half of the back the lower and towards the spine and the upper end towards the shoulder
Brownish red in colour 2
A contusion brownish red in colour 1 in diameter situated on the right shoulder 3
Whole of the right shoulder joint swollen and brownish red in colour
Movements at right shoulder joint restricted 4
A contusion bluish in colour 3 in diameter on the outer aspect of upper 2 12 of the right arm 5
A contusion 6X12 with raised edges situated diagonally across the right side back the outer end towards the axilla and the upper end towards the neck
Brownish in colour 6
Whole of the right hand swollen and tender brownish red in colour 7
A lacerated injury 2 x 12 scalp deep situated on the left parietal eminence 4 above Pinna of left ear
Clotted blood seen in the wound and is placed transversely 8
An incised wound transversly placed on the right half of centre of occiput at the back of head 1 12 x 14 scalp deep
Clotted blood found in the wound
X ray report disclosed MC dislocation of right acromio clavicular joint
Gottipulla Seshayya aged 50 years accused No 3 had two injuries on his person one of which was incised wound scalp deep situated diagonally on the front half of right parietal bone
Dying declaration was not considered necessary and he was discharged from the hospital on the 16th September 1961 after six days
434 Gottipulla Subba Rao aged 48 years accused No 4 had a brownish red contusion with raised edges and small abrasion over it situated transversely on the right forearm 13 of which was swollen and tender
There was a fracture of the bone below
He also remained in the hospital from September 10 to September 16
Korlagunta Narayana Rao aged 35 years accused No 5 had four injuries on his person including a lacerated injury 2 x 12  scalp deep on the front of the right parietal bone 12 to the right of mid line of skull and another similar injury 1 x 12 scalp deep on a contusion 3 in diameter brownish red in colour at the back of junction of both parietal bones in between parietal eminences
Shaik Madarsaheb aged 25 years accused No 6 had five injuries on his person including a contusion
He too remained in the hospital for six days upto September 16 1961
Thota Seetharamayya aged 40 years accused No 7 had a simple injury on his right hand ring ginger
Accused No 8 Thota Subba Rao aged 22 years had only a contusion on right buttocks
These injuries quite clearly suggest that the party of occupiers did not consist of a few unarmed persons who had no design to forcibly remove the bund
It is the prosecution case that the accused were determined not to allow the bund to be removed without an order from the Government authorities and that they were prepared to use force to protect the bund
The accused were also armed with the gun belonging to accused No I and this was fully known to the occupiers
In this background it is not possible to accept the story that the prosecution witnesses had one to the Kunta unarmed and it was only when they were beaten by the accused persons that they in self defence snatched the sticks and spears from some of the accused persons and beat up the others With those sticks and spears
Some of the injuries found on the persons of the prosecution witnesses were of course caused by blunt weapons but most of the injuries were according to the medical evidence caused by gun shots
According to the trial court both parties asserted their respective claims the occupiers to the use of the land in the Kunta for cultivation and the accused to the use of the Kunta as a source of supply of rain water for irrigating their land and these conflicting rights could not co exist
When the prosecution witnesses attempted forcibly to remove the bund the trouble flared up
The two factions had a1so affiliations with two different political parties 435 the occupiers had full support of the Communist Party and accused No 10 was a member of the Mandal Congress
The court also did not believe the prosecution version that prosecution witnesses had gone to the Kunta to peacefully persuade the accused persons to remove the bund
It held the occupation of the Kunta by the occupiers to be unauthorised after its registration as an irrigation tanks
It further held that the bund as it existed on September 5 1961had been raised by the accused persons but there were sluices and vents in the southern bund
The court also found that water from Errache uvu used to flow into the bund of the Kunta from where it passed on to the fields of the accused nos
1 to 4 with the result that the accused persons were justified in raising the bund and if there was any contravention of the civil court s injunction the occupiers should have approached that court for appropriate relief
It was on this line of reasoning that the action of the accused in protecting the bund was upheld
On a consideration of the prosecution evidence the trial court observed that notwithstanding the denial of his presence at the spot by accused No 10 it was open to him to say that on the prosecution evidence itself he must be held to have acted in exercise of the right of private defence and so observing that court expressed its conclusion thus  The facts and circumstances elicited in the prosecution evidence referred to above clearly establish that the accused 1 to 9 were maintaining a right at that time that the bund was being removed by men on the other side and the men on the other side also inflicted simple and grievous injuries on the accused 1 to 9
In such a situation it was open either to any of the accused 1 to 9 or even to the 10th accused to do something to avert further beating
The beating to the extent to which it took place resulted in grievous injuries to some of the accused
Under these circumstances it has to be held that the facts disclose a situation in which the 10th accused can well claim to have acted in the exercise of the right of private defence
Charges 4 to 6 10 to 13 15 to 17 against the 10th accused therefore fail
Consequently the charges 7 8 and 9 against the remaining accused also fail
 In regard to the other charges after discussing the evidence in the case and other material on the record and criticising the failure on the part of the police authorities to take effective and timely measures in advance to prevent the occurrence in question the trial court came to the conclusion that in regard to the actual beating suffered by the members of both parties the evidence was so conflicting and their respective versions so distorted that 436 no definite finding could safely be arrived at
All that emerged from the material in the court s view was that the accused wanted to retain the bund which the prosecution party wanted to remove and the fight ensued
On this view the accused were acquitted
On appeal Basi Reddy J who disposed it of in the High Court under section 429 Cr
PC felt that the case put forward by the prosecution was substantially true and the case set up by the defence palpably false
According to the learned Judge neither the accused had a right to put up the bund nor had the occupiers a right to encroach on the bed of the Kunta
The injunction order in favour of the accused was only based on the existence of a bund at the time of the order and thus did not entitle the accused to raise a new bund whereas the injunction order in favour of the occupiers restrained the accused persons from interfering with the enjoyment of the Kunta by the occupiers
The accused who had raised the bund and who being fully armed were determined to guard and preserve it by use of force were held by the learned Judge to constitute an unlawful assembly
Accused nos
2 4 and 10 were held to be armed with deadly weapons and therefore guilty of section 148 IPC and the other accused were held guilty under section 147 IPC The right of private defence was also negatived by the learned Judge
It was observed that this right had not been pleaded by accused No 10 and on the prosecution evidence the accused had first attacked the mediators on their inter vention to prevent the occupiers being beaten up and it was thereafter that PWs 5 and 7 and others beat the accused persons in retaliation
The High Court did not consider it material whether the prosecution witnesses and others had brought with them sticks or had snatched the same from the accused persons and sustenance of injuries by accused nos
1 to 8 in this connection was held not to give rise to any right of private defence
Holding the use of the gun by accused No 10 to be his individual act independent of the object of the assembly he alone was held guilty of the offence of murder
In our opinion the High Court has misconceived the law in regard to the right of private defence and the appeal has therefore to be allowed
The right of private defence of person and property is recognised in all free civilised democratic societies within certain reasonable limits
Those limits are dictated by two considerations  1 that the same right is claimed by all other members of the society and 2 that it is the State which generally undertakes the responsibility for the maintenance of law and order
The citizens as a general rule are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression nor are they expected by use of force to right the wrongs done to 437 them or to punish the wrongdoer for commission of offences
The right of private defence serves a social purpose and as observed by this Court more than once there is nothing more degrading to the human spirit than to run away in face of peril Munshi Ram vs Delhi Administration1 and Kishna vs State of Rajasthan2
But this right is basically preventive and not punitive
It is in this background that the provisions of sections 96 to 106 IPC which deal with the right of private defence have to be construed
According to section 96 nothing is an offence which is done in the exercise of the right of private defence and under section 97 subject to the restrictions contained in section 99 every person has a right to defend  1 his own body and the body of any other person against any offence affecting the human body and 2 the property whether movable or immovable of himself or of any other person against any act which is an offence failing under the definition of theft robbery mischief or criminal trespass or which is an attempt to commit these offences
The right of private defence according to section 99 does not extend to an act which does not reasonably cause the apprehension of death or of a grievous hurt if done or attempted to be done by a public servant acting in good faith etc and there is also no right of private defencein cases in which there is time to have recourse to the protection of the public authorities
Nor does it extend to the inflicting of more harm than is necessary to inflict for the purpose of defence
Section 100 lays down the circumstances in which the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailants
They are 1 if the assault which occasions the exercise of the right reasonably causes the apprehension that death or grievous hurt would otherwise be the consequence thereof and 2 if such assault is inspired by an intention to commit rape or to gratify unnatural lust or to kidnap or abduct or to wrongfully confine a person under circumstances which may reasonably cause apprehension that the victim would be unable to have recourse to public authorities for his release
In case of less serious offences this right extends to causing any harm other than death
The right of private defence to the body commences as soon as 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 the apprehension of danger to the body continues
The right of private defence of property under section 103 extends subject to section 99 to the voluntary causing of death or of any other harm to the wrongdoer if the offence which occasions the exercise of the right is robbery house breaking by night mischief by fire on any building etc
 or if such offence is theft mis 1 Crl
A No 124 of 1965 decided on 27111967
2 Crl
A No 23 of 1960 decided on 30101962
L7Sup
CINP70 13 438 chief or house trespass in such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if the right of private defence is not exercised
This right commences when
reasonable apprehension of danger to the property commences and its duration as prescribed in section 105 in case of defence against criminal trespass or mischief continues as long as the offender continues in the commission of such offence
Section 106 extends the right of private defence against deadly assault even when there is risk of harm to innocent persons
In the case in hand it is undoubtedly true that the accused persons are found to have raised the bund after the rainfall of September 4 1961
But it is indisputable that the occupiers had ample opportunity of approaching the public authorities concerned if they felt that their right had been encroached upon
it is noteworthy that the accused persons had accomplished the raising of the bund long before the occupiers noticed it
A civil suit had already been instituted by them as far back as 1957 in respect of their right to cultivate the Kunta
In that suit a permanent in
junction had been sought against the defendants and their agents etc restraining them from interfering with the plaintiffs possession and enjoyment of the disputed land
Damages amounting to Rs 300 were also claimed in that suit for loss suffered by the plaintiffs as a result of trespass alleged to have been committed by the defendants on the said land
This suit was pending at the time of the occurrence in question and as observed earlier in February 1960 both sides had secured injunctions in this suit
The police authorities had also been approached by the occupiers with a complaint against the recent raising of the bund by the accused persons a couple of days prior to the present occurrence
If the Sub Inspector concerned was guilty of grave dereliction of duty as in our opinion he clearly was the higher authorities could easily have been approached by the occupiers and their supporters
Even the civil court could have been moved with a complaint that the accused persons were interfering with the occupiers  possession and enjoyment of the Kunta
But instead of having recourse to these steps the occupiers and their supporters decided to go to the spot in large numbers fully determined to remove the bund by use of force
When this attempt was foiled by the accused persons with show of force the party of the prosecution witnesses mercilessly beat up some of the accused persons who were advanced in age
This conduct on the part of the occupiers and their supporters was in our opinion sufficient on the facts and circumstances of this case to give rise to a reasonable apprehension in the mind of accused No 10 that the victims of this assault would have been killed had he not exercised the right of private defence
The use of the gun by accused No 10 against the members of the opposite faction would thus seem to be justified
It may be 439 recalled that accused No 1 aged about 60 years who is the father in law of accused No 10 had received as many as 10 injuries mostly on vital parts of the body and accused No 2 about 50 years old had also been subjected to severe beating
In a situation like this it is not possible for an average person whose mental excitement can be better imagined than described to weigh the position in golden scales and it was in our opinion wellnigh impossible for the person placed in the position of accused No 10 to take a calm and objective view expected in the detached atmosphere of a court and calculate with arithmetical precision as to how much force would effectively serve the purpose of selfdefence and when to stop
It appears that the persons against whom the gun was used were the real aggressors from whom accused No 10 agitated in mind as he must be at that time apprehended grave danger to the lives of the other accused persons and ultimately to himself
We are therefore satisfied that accused No 10 was fully justified in using his gun in exercise of the right of private defence against the party of the prosecution wit nesses who had come to the spot in support of the occupiers to use force in removing the bund and who actually did use it and mercilessly beat up the accused persons and that accused No 10 did not exceed this right
The fact that the plea of self defence was not raised by accused No 10 and that he had on the contrary pleaded alibi does not in our view preclude the Court from giving to him the benefit of the right of private defence if on proper appraisal of the evidence and other relevant material on the record the Court concludes that the circumstances in which he found himself at the relevant time gave him the right to use his gun in exercise of this right
When there is evidence proving that a person accused of killing or injuring another acted in the exercise of the right of private defence the Court would not be justified
in ignoring that evidence and convicting the accused merely because the latter has set up a defence of alibi and set forth a plea different from the right of private defence
The analogy of estoppel or of the technical rules of civil pleadings is in cases like the present inappropriate and the Courts are expected to administer the law of private defence in a practical way with reasonable liberality so as to effectuate its underlying object bearing in mind that the essential basic character of this right is preventive and not retributive
The approach of the High Court in this matter seems to us to be erroneous
We accordingly allow the appeal and acquit the appellants
VPS Appeal allowed


Summary:
With respect to a kunta which was government property certain persons who had occupied a part of the land in the kunta and the accused were asserting their respective claims the former to the use of the land in the kunta for cultivation and latter to the use of the kunta as a source of irrigation
The occupiers and accused belonged to opposite political factions
A suit was filed by the occupiers and the civil court passed two orders of injunction one restraining the accused from interfering with the occupiers  possession and the other restraining the occupiers from opening sluices in the bund of the kunta
While the suit was pending the occupies raised corps on their land and the accused raised a new bund
Since their crops were being damaged as a result of the raising of the new bund the occupiers approached the police authorities and tahsildar for the removal of the bund but they did not give any effective help
The accused were not willing to allow the removal of the bund without any Government order
Thereupon the occupiers and their supporters numbering not less than twenty went to the spot to remove the bund by force but the accused were present at the spot determined not to allow the bund to be removed
In the fight that ensued the first accused aged about 60 years received ten injuries on the vital parts of his body and the Civil Assistant Surgeon who attended on him thought it was neces sary to take a dying declaration from him
The second accused who was about 50 years old was also subjected to severe beating
Some of the other accused also received injuries
The tenth accused who had a gun in his hand and who was the son in law of the first accused shot at the actual aggressors and killed three of them and injured another
The party of the occupiers asserted that they went to the scene of occurrence unarmed and with the intention of peacefully persuading the accused to remove the bund and that when beaten by the accused they snatched the sticks and spears from them and retaliated
The tenth accused put forth a plea of alibi
The other accused asserted that the party of the occupiers were the aggressors and that they acted in self defence
Holding that it was not material to consider whether the occupiers and their supporters had brought with them sticks or snatched them from the accused that the accused had attacked first and that the injuries to the accused did not give rise to any right of private defence the High Court convicted some of the accused for the offence under sections 147 IPC to the offence under section 148 IPC and the tenth accused for the offences of murder and grievous hurt with a dangerous weapon
In appeal to this Court HELD  1  When they went to the scene the occupiers knew that determined not to allow the removal of the bund without an order from determined not to allow the removal of the bund without an order from the Government authorities
In the circumstances the occupiers and their 424 supporters must have gone to the kunta fully armed and it was not possible to accept their version
434 E G 2 The occupiers moved in the matter only after the new bund was raised by the accused
They had ample opportunity of approaching public authorities to have the bund removed
When the occupiers and their supporters found that the police were guilty of a grave dereliction of their duty they could have approached the higher authorities or the civil court in which the suit was pending
Instead of having recourse to those steps they decided to go to the scene in large numbers fully determined to remove the bund by force
When that attempt was foiled by the accused with show of force the members of occupiers  party mercilessly beat up some of the accused persons who were advanced in age
In such a situation it was not possible for an average person placed in the position of the tenth accused to take a calm and objective view and calculate with arithmetical precision as to how much force would effectively serve the purpose of self defence and when to stop
He only used the gun against the real aggressors from whom he apprehended grave danger to the lives of the other accused persons and to himself
Therefore he was fully justified in using his gun in the exercise of the right of private defence against the party of the occupiers
438 C D E H 439 A E Except as against acts of public servants acting in good faith and when there is time to have recourse to the protection of public authorities under section 97 IPC every person has a right to defend  1 his own body and the body of any other person against any offence affecting the human body and 2 the property of himself or of any other person against theft robbery mischief of criminal trespass
Such a right is basically preventive and not punitive and nothing is an offence which is done in the exercise of the right
Under section 100 one of the circumstances in which the right of private defence of the body extends to the voluntary causing of death of the assailant is if the assault which occasions the exercise of the right reasonably causes the apprehension that death or grievous hurt would otherwise be the consequences thereof
437 B D E F 3 When there is evidence proving that a person accused of killing or injuring another acted in the exercise of the right of private defence the court would not be justified in ignoring that evidence and convicting the accused merely because he had set up a defence of alibi and set forth a plea different from the right of private defence
Courts are expected to administer the law of private defence in a practical way with reasonable liberality so as to effectuate its underlying object
Therefore the Court was not precluded from giving the tenth accused the benefit of the right of private defence
439 F H