THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No.1702 of 2007 Judgment (Per the Hon’ble Sri Justice A.Gopal Reddy) This Criminal Appeal is preferred by the appellants/accused Nos.1 and 3 to 8 against the judgment, dated 03.12.2007, passed by the learned VI Additional District & Sessions Judge, FTC, Prakasam at Markapur, in S.C.No.218 of 2006. A1 to A9 were charged for the offence punishable under Sections 147 and 148. A1 and A2 were charged for the offences punishable under Section 302. A3 was charged for the offences punishable under Sections 302 r/w 149 and A4 to A9 were charged for the offences punishable under Sections 149 and 302 IPC. A1 was further charged for the offence punishable under Section 326 IPC. A2 to A8 were charged for the offence punishable under Section 324 IPC for committing murder of one Muppra Subbulu (hereinafter referred to as ‘the deceased’) on 16.07.2005 at about 10.00 a.m., in furtherance of their common intention. The learned Sessions Judge tried the appellants along with A2 and found A1 guilty of the offence punishable under Section 302 IPC and convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to suffer rigorous imprisonment for 6 months and also found guilty of the offence punishable under Section 326 IPC and convicted and sentenced him to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for 3 months and directed both the sentences to run concurrently. A4 was found guilty of the offence punishable under Section 324 IPC and was convicted and sentenced to suffer simple imprisonment for one year. A3 and A5 to A8 were found guilty of the offence punishable under Section 323 IPC and were convicted and sentenced to suffer simple imprisonment for six months. All the accused were entitled for the benefit of set-off under Section 428 Cr.P.C. The substance of the charge against the accused is that on 16.07.2005 at about 10 a.m., at Uppu Neela bavi Gadda, Kelampalli Village, the accused formed themselves into an unlawful assembly being armed with deadly weapons and in furtherance of their common object caused the death of the deceased and during the course of the same transaction, they further caused injuries to PWs.7 and 8 and one Byrapuneni Venkata Narasaiah (reported dead not examined). The case of the prosecution, as narrated during the course of trial, is briefly stated as under: P.W.1 is the cousin brother, PWs.2, 6 and 8 are the brothers, PW.4 is the daughter, PW.5 is the mother and PW.9 is the husband of the deceased. The accused and the deceased are all residents of Kellampalli Village and there were disputes between the deceased’s family and A2 with regard to Uppuneella Bavi Gadda site situated towards South of the village and towards the East of the said disputed site, the cattle shed and tobacco barren of A2 were situated. Two days prior to the incident, while the accused were tethering their cattle at Japan Babul trees existed in the disputed land, PW.1 questioned A2 as to why they were tethering their cattle and further informed that they would cut the babul trees existed in the said site. A2 expressed no objection, as the land belong to them. Then on the next day at about 10 a.m., PWs.1, 2, 3 and 6 went to the site for cutting the Japan babul trees. PW.10, who also reached the scene, witnessed A2 and others on one hand from tobacco barren side and PWs.1, 2 and 6 on the other hand from Uppuneella Bavi gadda side were quarrelling claiming the disputed site. In the meanwhile, the deceased also reached the scene and while she was removing the thorny fencing placed at the entrance of hay-rick in order to take hey for her cattle, A2 instigated others to beat her and on that A1, armed with Maddu Katti (long knife M.O.1), hacked on her head. A2, armed with a crow bar, hacked on the back of her neck and A3, armed with a stick, beat her on her back. In the meanwhile, PW.1 and others questioned them. A7 beat him with a stick on his right index finger. A2 and A3 beat PW.6 with a crowbar and stick on his head. A3, A6 and A8 armed with sticks beat PW.7 on his left forearm and A1 attempted to give a blow on his (PW.7) head. When he tried to ward off the same, it landed on his left forearm, as a result of which his forearm was broken. A5 and A9 armed with sticks beat PW.8 on his left forehead above left eye and on left shoulder respectively. Villagers who gathered there also pelted stones on them. Thereafter, the injured were shifted to the hospital. Then, PW.1 got the report scribed by PW.12 the village Secretary and he further forwarded the same to SHO through village talyari PW.13. On 16.07.2005, at about 11.30 a.m., on receiving Ex.P1 from PW.13, PW.17 the then Sub-Inspector of Police, Marripudi Police Station, registered the same as Crime No.28 of 2005 and issued FIR, which was marked as Ex.P.19. Thereafter, PW.18, the then Inspector of Police, took over the investigation, rushed to the scene of offence, prepared an observation report and held inquest over the dead body in the presence of PW.12 and sent the dead body for postmortem examination. Ex.P2 is the inquest report. Thereafter, he visited the hospital and recorded the statements of the injured. On 16.07.2005, on requisition, PW.14, the Civil Assistant Surgeon, Community Health Centre, Podili held autopsy over the dead body of the deceased and opined that the cause for the death was due to neorogenic shock and hemorrhage. Ex.P14 is the postmortem report. On the same day, he further examined PWs.2 and 6 to 8 and issued wound certificates marked as Exs.P13, 11, 10 and 9 respectively. On 21.07.2005, PW.18 arrested A4 and A9 and at their instance recovered sticks under Ex.P3 panchanama. On 24.07.2005, A1, A2, A5 and A6 were arrested by PW.19, Circle Inspector of Police and at their instance Maddu Katti (MO.1), Crowbar (MO.2), Two bombo sticks (MO.4) were recovered under Ex.P6 panchanama and on 28.07.2005, A3 was arrested and at his instance bamboo stick was recovered under Ex.P8 panchanama. During the course of investigation, all the relevant witnesses were examined and the material objects were sent to RFSL. After receiving all the relevant documents and on completion of investigation, PW.18, Circle Inspector of Police, laid charge sheet before the Junior Civil Judge, Podili and the same was registered as PRC.No.3 of 2006. Since the offence is exclusively triable by the sessions Court, the case was committed to the Court of Sessions, Prakasam Division, Ongole, where the learned Sessions Judge framed seven charges against the accused. The relevant charge for which the appellants/accused tried is that A1 and A2 committed the offence punishable under Section 302 IPC causing death of the deceased (charge No.3) and that A1 on the same day voluntarily caused grievous hurt to Byrapuneni Sreenu (LW.7) on left forehand by means of reverse portion of knife, which is an instrument used for cutting and thereby committed an offence punishable under Section 326 IPC (charge No.6). The accused denied the charges and pleaded not guilty and claimed to be tried. In order to prove the case of the prosecution, it examined P.Ws.1 to 19 and got marked Exs.P.1 to P.19 apart from M.Os.1 to 6. Though no oral evidence has been let in on their behalf, Exs.D1 to D20 were marked. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C with regard to the incriminating material against them and in turn, they denied the same. The learned Sessions Judge, after completion of the trial and on evaluating the oral and documentary evidence adduced, found the accused guilty of the charges and convicted and sentenced them as stated supra. Questioning the validity and legality of the impugned judgment, the appellants/accused filed this Criminal Appeal. Sri C. Padmanabha Reddy, learned Senior Counsel appearing for the appellants, contends that in a case where number of persons received injuries, unless the prosecution establishes its case, it is presumed to be acted under self-defence. A1, A2, A3, A7 and A8 received injuries and one Mandati Kotamma from the accused party died and PWs.1, 2, 3, 6, 7, 8 and 9 were also shown as accused in crime No.29 of 2005 as opposite party. PW.14, who conducted the postmortem examination, examined A1, A2, A3, A7 and A8 and issued wound certificates with regard to the injuries received by them. In the absence of any evidence adduced by the prosecution whether A1 was attacked before or after the incident and unless the prosecution establishes at what stage the accused received injuries, it is to be presumed that the accused acted in self-defence. Therefore, A1 cannot be convicted for the offence under Section 302 IPC when A2 and A3, who were acquitted, for the charge framed against them. Postmortem certificate and the evidence of PW.2 also disclose that more than one injury has been received by the deceased and she died due to neorozenic shock and hammerage and that when all the eye witnesses speak about the accused beating the deceased with common intension, forming themselves into unlawful assembly and once the other accused are acquitted of the same charge, A1 is also entitled to be acquitted. Per contra, the learned Public Prosecutor contends that PWs.2, 6, 7 and 8 are the injured witnesses and that the medical evidence corroborates the oral evidence and when the prosecution established that there is a fight among both the groups, the aggression of the deceased party or the accused party is immaterial in convicting the accused. Therefore, the conviction and sentence recorded by the trial Court needs no interference. In the light of the submissions referred to above, the point that raises for consideration is whether the prosecution is able to establish its case against the accused beyond reasonable doubt for the offence they were charged and whether the sentence and conviction recorded by the trial Court is liable to be set aside or modified. It is not in dispute that PW.1 to PW.11 are eye witnesses and among them PWs.2, 6, 7 and 8 are the injured witnesses. PW.1 lodged a complaint on the basis of which the crime was registered. The prosecution story, as emanated from the evidence, discloses that there was a dispute with regard to the site pertaining to the Gramakantham of Kellampalli village, among the prosecution and the accused parties. According to PW.1, on 17.07.2005 morning at 10.00 a.m. himself along with PWs.2, 3, 6 and others went to the site to cut Japan babul trees. When they were about to cut the trees, the deceased removed the said backyard babul tree branches with a view to get hayrick for cattle and that when they tried to remove the babul tree branches, on the instigation of A2, A1 asked PW.1 and others not to enter into the site and remove the babul trees. While the deceased was removing the fencing in order to go to the Japan babul trees, A2 asked the other accused to hack the deceased. Thereupon, A1 hacked the deceased with M.O.1 on her head saying “Emite Lanja”. A2 beat the deceased with crowbar on the back of her neck. A3 beat the deceased with stick on her back. PW.1 further stated that consequently the deceased fell on the ground and lost her breathe. He further deposed that when himself, PW.2, PW.3, PW.4, PW.5 and PW.7 questioned the high handedness of the accused, they callously replied that they would also hack them. A4 beat PW.8, who fell on the ground. A5 beat PW.9 with a stick on the right forehead above right eyebrow. A9 beat PW.9 with a stick on the same side i.e., right forehead above right eyebrow. A1 beat PW.7 with the reverse portion of M.O.1 on left fore arm and A8 beat PW.7 with stick on left fore arm. A6 beat PW.7 with stick on the same place and in that process the left hand of PW.7 was broken and he fell on the ground. A7 beat PW.2 on his right hand index finger with stick and caused fracture. Then PW.1 ran away due to fear from the scene and approached the Panchayat Secretary. In his cross-examination, PW.1 stated that the deceased is the daughter of his junior paternal uncle and that himself, PWs.2, 3 and 6 to 9 are the accused and A1 to A3, A7 and A8 are the witnesses in S.C.No.186 of 2006. Except the dispute with regard to the gramakantham site, there were no other disputes in between them. There were political groups in the village and PW.1 belongs to Congress party and the accused belong to Telugudesam party. The deceased came to the place of offence for the purpose of taking hey to her cattle from her hayrick. The hayrick yard was joint in between the deceased and her brothers. A1 to A3 and A7 came to the scene of offence first. PW.1 admitted that A1 was not having any necessity to come to the scene of offence except for the purpose of enjoyment of the site. The deceased was beaten by the accused one after another by surrounding her. The blow given by A1 landed on the middle of the head of the deceased. The deceased fell on the ground after receiving second injury on her neck. By the time A2 and A3 beat the deceased, the deceased did not fall on the ground and she was alive. Nearly 5 or 6 persons of his relations were with him at the time of drafting Ex.P1 statement. He has not seen any of the accused receiving injuries in the incident. Mandati Kotamma died 19 days after the incident and a report was given against PW.1 and others. All the 3 blows given by A1, A6 and A8 were on the same place. He denied the suggestion that PW.2 gave a blow with axe to A3 and that the same was landed on the head of the deceased Subbulu when A3 warded off the same by raising his hand and they are the aggressors in the incident and that the incident took place due to them only. PW.2 also stated in the same lines as that of PW.1 with regard to the attack on the deceased by A1. He further stated that A2 and A3 beat the deceased with crowbar and stick on her neck and back respectively. PW.2 in his cross-examination stated that A1 did not beat A7, Mandati Subbulu. A2 beat the deceased with crowbar on her neck when the deceased was falling down. PW.3 stated that A2 and A3 beat the deceased with crowbar and stick on her neck and back respectively. In his cross-examination, PW.3 stated that the entire incident lasted for half-an-hour. PW.7, who is an injured witness, stated that on coming to know about the galata that was going on at the scene of offence, himself, PWs.4, 5, 8 and 9 rushed there and saw PWs.1 to 3 and 6 attempting to cut Japan babul trees. All the accused attacked them arming with M.O.1, crowbar and sticks and that A1 hacked the deceased with M.O.1 on head, A2 beat the deceased with crowbar on her neck, A3 beat the deceased with stick on her back, A6 and A8 beat him with sticks on his left forearm. He further stated that when A1 attempted to give blow on his head with reverse portion of M.O.1, he raised his left hand as a result of which he received injury on his left forearm and the same was broken. Stones were hurled against them. All the injured were shifted to Government Hospital, Podili. The evidence of PWs.8, 9, 10 and 11 are consistent with regard to A1 hacking the deceased with M.O.1 on her head. PW.14, doctor, who conducted the postmortem examination of the deceased, issued Ex.P14 - Postmortem certificate stating that the cause of the death is due to Neorogenic shock and haemorage and noticed the following injuries. “Internal injuries:- Scalp and skull:- (1) 7x1 centimeter lacerated injury deep skull bone, brain matter exposed. Rapture of brain and membrane at left parietal bone. Multiple fractures of skull bones. (2) 8x4 centimeters abrasion on right parieto oxipital bone. Brain contusion.” PW.14 examined the appellant/Accused No.1 for the injuries received by him and issued Ex.D11 – wound certificate stating that the injuries are simple in nature and that he examined A2, A3, A7 and A8 for the injuries they received and issued Exs.D12, D13, D14 and D15 respectively. PW.12, who is the Panchayat Secretary, was present at the scene of offence and recorded the statement of PW.1, which was marked as Ex.P1. PW.17, who is the Sub-Inspector of Police, received Ex.P1 and registered Crime No.28 of 2005. PW.18, Circle Inspector of Police, who conducted investigation admitted in his cross-examination that crime No.29 of 2005 is also of the same police station and both the crimes emanated from the same incident and both the parties received injuries in the same incident and there were no visible injuries on the neck and back side of the deceased. The deceased in this case was shown as A9 in Crime No.29 of 2005. Since two murders are reported one from each group, he filed two charge sheets. He further stated that PW.2 did not state that A6 beat PW.8, PW.3 did not specifically state that A5 beat PW.8 above the left eyebrow, A9 beat PW.8 on left shoulder, PW.6 did not state that A5 beat PW.8 above the left eyebrow and that A2 instructed A1 to hack the deceased so as to discourage them from cutting japan babul trees. From the above evidence adduced by the prosecution, it is clear that the prosecution is able to establish that there was a dispute with regard to the Gramakantham land where the japan babul trees existed and the prosecution party wanted to cut the said branches of the babul trees, which was objected by the accused party and in that process there was quarrel among both the groups. Learned Senior counsel, while placing reliance upon Bhanwar Singh and others v. State of M.P.[1], Darshan singh v. State of Punjab and another[2] and Babu Ram and others v. State of Punjab[3], empathetically submitted that when both the parties are disputing with regard to the land and were attacked on each other, the prosecution should establish that the accused was the aggressor party. The Supreme Court in Bhanwar Singh (1 supra) after referring to its earlier judgments in paras 51 and 52 stated as under: “To put it pithily, the right of private defence is a defence right. It is neither a right of aggression or of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self- creation. Necessity must be present, real or apparent. The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon host of factors like the prevailing circumstances at the spot, his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence. {See Dharma v. State of Haryana [2006 (13) SCALE 280]}.” In Darshan Singh (2 supra) the Supreme Court on scrutinising various judgments has culled out the principles and principle Nos.2, 3 and 7, which are relevant, as follows: “(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. (iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. (vii) It is well settled that even if the accused does not plead self- defence, it is open to consider such a plea if the same arises from the material on record.” In Babu Ram (3 supra) the Supreme Court held that non- explanation of injuries received by the accused by the prosecution is a very important circumstance and it can be presumed to have been that accused acted in right of private defence. There is no dispute with regard to the proposition of law laid down as aforesaid. As held by the Supreme Court, each case will be considered on the facts and circumstances prevailing at the time of the commission of the offence. As held by the Supreme Court the right of private defence exercised to ward off the danger and to save himself or his property cannot be weighed in golden scales. PW.7, who is the injured witness, categorically stated that when A1 attempted to give blow on the head with reverse portion of M.O.1, he raised his left hand and received injury on the left forearm and in that process his forearm was broken. No suggestion was put to the said witness that A1 has not attempted to give a blow on his head with the reverse portion of the Maddu Katti, which he did after hacking A1 with the said Maddu Katti. Therefore, it can be presumed that only A1 received the injuries after he attacked the deceased with the weapon and in that process PW.7 also received injuries. It is for A1 to explain the same in 313 Cr.P.C. statement. No such evidence has been placed on behalf of the defence. It is well settled that self-defence can be established from the circumstances, which preceded, attended and followed the crime (see Dahyabhai Chhaganbhai Thakkar v. State of Gujarat1964 Sc 1563). In the circumstances, we have no hesitation in coming to the conclusion that the appellants/accused attacked the deceased with M.O.1 and the oral evidence of the eye witness including the injured witness is corroborated with the medical evidence that the deceased died in the said incident. The lower Court after considering the medical evidence about the participation of A2 and A3 held that unless the overt acts of A2 and A3 against the deceased are corroborated by medical evidence, the same cannot be held as proved especially in the light of rivalry existed between two groups and accordingly acquitted them of the charge under Section 302 IPC. Prosecution is able to establish the involvement of the