# GCITIPULLA VENKATA SIVA SUBRAYANAM & ORS v. STATE OF ANDHRA PRADESH & ANR

- **Citation:** [1970] 3 S.C.R. 423
- **Court:** Supreme Court of India
- **Decided:** 1970-01-19
- **Case number:** Criminal Appeal No. 75 of 1967
- **Bench:** M .. Hidayatullah, A. N. Ray, I. D. Dui\
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gcitipulla-venkata-siva-subrayanam-ors-v-state-of-andhra-pradesh-anr-5031
- **Pages:** 17

## Headnote

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Indian Penal Code (Act 45 of 1860), ss. 96 to 106--Right ,•f private
d~fence-Scope of-Plea no: raised by accus2d-Duty vj Co1:rt, lVlien
th?re is evidence showing right of privarc defence.
'''ith r~spe;;t to a kuilf!i., which \Vas government
propeny,
certain
persons who had .occupied a part of the land in the kunta, and the accused,
were asser~ing 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 occupie;s and accused
belonged to
opposite
political factions.
A suit \Vas I11ed by the occupiers .and the civil court
passed two orders of injunction, one restraining the accused from interfe.ring with the occupie!'s' possession, and the othe.r, restraining the uccupiers from opening sluices in the bund of the kunta. While the suit was
pending the ·...iccupiers 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 \Villing to allow the removal of the bund v1..-ithout
any Government orde:. TOereupon, the occupiers and· their supporters,
numbering not less than twenty went to the. s9ot to remove the bund by
force, but the accused were present at the spot determined not. to allow
the bund to be, rem'Oved.
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 Su~geon who attended on him thought it was qecessary 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 accu5ed 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
a'ctual aggressors and killed three of 1hem
and iniured
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 oher accused asserted. that the party of the. occupiers
were the aggressors and that tf:ley acted 10 serf defence. Huld1ng that n
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 p~ivate defence, the High Court C.Jnvicted some
of the accused for the offence 11rid~r ss. 147 J T>.C .. ~o:ne. for the offence
under s. 148 I.P .C., and the tenth accused for the offences of murder and
g:ievous hurt with a dang~rous weapon,
Jn appeal to this Court,
HELD · (I) When- they went to the scene, rhe occupiers knew that
determined· not to allow the removal of the bund without an order ~rom
determined not te a1tow the removal of the bund without a~ order rroi:n
~he Gove-nment autiJorities.
In the circumstances the occupiers and their
424
SUPREME COURT REPORTS
[1970] 3 S.C.R.
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 de.cided to go to the scene in large. numbers fully determined to remove the hund by force.
When that attempt was foiled by the accused
with sho•.v of for

## Text

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423
Ii
GCITIPULLA VENKATA SIVA SUBRAYANAM & ORS.
v.
STATE OF ANDHRA PRADESH & ANR.
January 19, 1970
B
[M .. HIDAYATULLAH, C. J., A. N. RAY AND I. D. DUI\, JJ.J
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Indian Penal Code (Act 45 of 1860), ss. 96 to 106--Right ,•f private
d~fence-Scope of-Plea no: raised by accus2d-Duty vj Co1:rt, lVlien
th?re is evidence showing right of privarc defence.
'''ith r~spe;;t to a kuilf!i., which \Vas government
propeny,
certain
persons who had .occupied a part of the land in the kunta, and the accused,
were asser~ing 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 occupie;s and accused
belonged to
opposite
political factions.
A suit \Vas I11ed by the occupiers .and the civil court
passed two orders of injunction, one restraining the accused from interfe.ring with the occupie!'s' possession, and the othe.r, restraining the uccupiers from opening sluices in the bund of the kunta. While the suit was
pending the ·...iccupiers 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 \Villing to allow the removal of the bund v1..-ithout
any Government orde:. TOereupon, the occupiers and· their supporters,
numbering not less than twenty went to the. s9ot to remove the bund by
force, but the accused were present at the spot determined not. to allow
the bund to be, rem'Oved.
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 Su~geon who attended on him thought it was qecessary 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 accu5ed 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
a'ctual aggressors and killed three of 1hem
and iniured
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 oher accused asserted. that the party of the. occupiers
were the aggressors and that tf:ley acted 10 serf defence. Huld1ng that n
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 p~ivate defence, the High Court C.Jnvicted some
of the accused for the offence 11rid~r ss. 147 J T>.C .. ~o:ne. for the offence
under s. 148 I.P .C., and the tenth accused for the offences of murder and
g:ievous hurt with a dang~rous weapon,
Jn appeal to this Court,
HELD · (I) When- they went to the scene, rhe occupiers knew that
determined· not to allow the removal of the bund without an order ~rom
determined not te a1tow the removal of the bund without a~ order rroi:n
~he Gove-nment autiJorities.
In the circumstances the occupiers and their
424
SUPREME COURT REPORTS
[1970] 3 S.C.R.
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 de.cided to go to the scene in large. numbers fully determined to remove the hund by force.
When that attempt was foiled by the accused
with sho•.v of force, the members of occupiers' party mi::rcilessly beat up
some of the accused
persons who were advanced in age.
In such
a
situation it \Vas not possible for an ave·rage 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 s.elf-defence and when to stop. He only used the gun against
the real aggressors frum whom he apprehended grave danger to the lives
of the other accused persons and to himself. Therefore, he was fully
justffi.ed in using his glln in the exercise of the right of private defence
against the party of the occupiers. [438 C-D, E-H; 439 A-El
Except as against acts of public servants acting in good faith a:nd when
there is time to have
recourse to the protection of public authorities,
under s. 97 I.P.C., every person has a right to defend : (1) his own body
and the body o[ 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 s. 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 ~he 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 q/ibi 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 de'{ence. [439 F-H]
CRIMINAL
APPELLATE
JURISDICTION : Criminal 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 ..
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Nur·ud-din Ahmed, A. V. Rangam, A. Vedavalli
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Gopala Rao, for the appellants.
P. Ram Reddy and A. V. V. Nair, for the respondents.
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GOTTIPULLA v. A. P. STATE (Dua, J.)
42 5
The Jud grnent of the Court was delivered by
Dua, J. In this appeal by special leave directed agains~ the
order of the Andhr.a 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 as 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 bys. 429, Cr. P.C. 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. 2 I would convict accused 1, 3 and 5
to 9 under section 147, I.P.C. and on charge no. 3 accussed 2, 4 and 10 and sentence each of accused 1, 2, 3,
4 and 5 to pay a fine of Rs. 500/-, 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 impri~onment. I would sentence accused 10 to
suffer rigorous imprisonment for two years.
2. 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, I.P .C..
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3. On charge no. ii, I would convict and sentence
accused no. 10 to suffer two years' rigorous imprisonment
under section 326, I.P.C. for having caused grievous
hurt to P.W. 6 by shooting at him with the gun.
4. On charge no. 22, I would convict accused 10
under section 19 (a) 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
SUPREME COURT REPORTS
[1970] 3 S.C.R.
The net result will be that accused l 0 will have to
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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 fina 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
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were convicted are these :
..
Secondly : that you accused nos. 1, 3 and 5 to 9 along
with accused nos. 2, 4 an<l 10 at about J 0 a.m. on
l 0-9-61 at the same place and in the course of the same
transactian as set out in charge no. 1 above, formed yourthe common object of such assembly viz : beating and
the occupiers of Gabbilalakunta, committed an offence of
assembly, viz. : beating <•ud k.i'iling the members of the
lakunta, committed an olfe:.r~ of rioting and that at that
weapons to wit, 'spears' and the .I 0th accused was armed
and wiihin my cogniza•1cc;
Third!) : that you accused uos. 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, vi~ :beating and killing the members of the
party that came in support of the occupiers of Gabbilalakunta, committed an ol'ence of rioting and that at that
time, the accused nos. 2 m•d 4 were armed with deadly
weapons to wit, 'spears' an<l the 10th accused was armed.
with a D.B.Bl Gun and thereby committed an offence
punishable under section 148 of the Indian Penal Co<le
and within my cognizance;
Fourthly : 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 Anne
Ramarao, son of Seetha Ramarao of Atkur by shooting
him with a D.B.B 1 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 s/o Danaiah of Mustabada by shootipg
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GOTTIPULLA v. A. P. STATE (Dua, I.)
427
him with a D.B.Bl gun and thereby committed an offence
punishable under seetion 302 of the Indian Penal Code
and within my cognizance;
Sixthly : that you accused no. I 0 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 s/ o Kotaiah of Medaripalem, hamlet
of Verudupavuluru by shooting him with a D.B.Bl 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 D.B.BI 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 D.B.Bl gun without licence under the Indian Arms
Act and thereby committed an offence punishable under
section 19 ( e) of the Indian Arms Act and within my
cognizance."
In this Cou_rt, 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) abciut one mile away from
Surampalli village but within its limi~s. This Kunta sei:ving as
a tank is fed by rain water.. The _villa~e of Surampalh was a
Mokhasa village in the erstwhile zammdan of Mirzapuram. Under
428
SUPREME COURT REPORTS
[1970] 3 S.C.R.
the. provisions of the Madras Estates (Abolition and Conversion
into Ryotwari) Act, 1948, the zamindari of Mirzapuram was
taken over by the Government in i 950.
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 P.Ws 1 J 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 cist from
the occupants. Accused 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 ayacui 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 injunct 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 from opening the sluices or outlets or cutting any breaches to the bund of the tank situated in
S. 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 P.W. 13 and P.W. 14,
along with four other persons, raising paddy crop in a part of
the Kunta.
Another part of the Kunta was prepared for raising
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GOTTIPULLA v. A. P. STATE (Dua, J.)
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jonna crop.
The suit mentioned above was still pending when
on September 4, 1961 it was adjourned to some other da!e.
It
rained hea-iily that night and the rain
water collected m the
Kunta. ,on the following morning when P.W. 13 and P.W. 14,
along with some other occupiers passed 6y 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, 2t' wide and 25
yards in length.
There being no one present at the bund P.Ws
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, P.W. 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 P.W. 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 effe.ct and declined to allow the
bund to be removed in the absence of such an order. The police
constables asked the pai;ties 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
SUPREME COURT REPORTS
[ 1970) 3 S.C.R.
the constable who had gone there on September 7, to enquire into
the complaint made to the police earlier.
According to the repart
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 ooject they approached some ryots of the surrounding villages
to intervene on their behalf and to persuade the Mokhasadars to
remove the b und.
After the police party had left Surampalli on
the evening of September 9, P. W s. 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 suppart on the following morning. On the morning of September 10, P.W. II, Katragadda Pedavenkatarayudu accompanied by P.W. 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 P.W. 15, Pendyala Venkateswara Rao,. and from there they all proceeded to Surampalli. At
the Panchayat Board Office at Surampalli they collei:ted P.W. 1,
Madhukuluri Satyanarayana, P.W. 4, Kolampatta Venkata Subbayyachari, P.W. 5, Jasti Ramarao. P.W. 7; Garimella Subbarao,
P.W. 8, Garimella Venkataiah, P.W. 9, Mukkala Veeraiah and
deceased no. 3, B. Lakshmayya and also the six occupiers of the
Kunta and two or three other persons. P.W. 12, Y. Mallikarjuna
Rao also arrived there. A message was sent through P.W. 13 to
bring accused nos. 1 to 4 to the Panchayat Board office but they
were reported lo be at the Kunta. Then all the persons gathered
at the Panchayat Board office numbering about 20 proceeded to
the Kunta at abouc IO a.m. 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. 1 and 5 to 9 had
sticks with them. P.Ws. I, 4, deceased no. 1, P.W. I I and others
are stated to have requested accused nos. 1 to 4 to remove the
bund and save the growiltlg crop belonging to the poor men.
The
accused declined to do so.
Thereuoon 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 P. W. 5, Jasti Ramarao, P.W. 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 o.f the
accused persons and retaliated causing injuries to some of them.
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GOTTIPULLA v. A. P. STATE (Dua, J.)
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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
unk>s sllot at and asked his companions to come back. Accused
nos. l to 9 started retreating towards the huts.
Deceased no. 1
and P.W. I who was about JO 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
caus:.
Accused no. I 0 then stepped forward and fired at deceased r.o. l "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 P. W. 1 who was a couple of yards. '::t:hind
deceased no. l and he too fell down.
According to the prosecution version accused no. 2 hit P.W. l at the back as a result of
which P.W. l also fell down unconscious.
Accused no. 10 is
stated to have fired another shot towards the west as a result of
which P.W. 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 dowq
dead. P.Ws. 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 execcise of the right of private
defence after accused [),OS. 2 to 4 had received injuries at the
hand of about 200 or 300 communists who had come to the place
of occurrence from the house of P.W. 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 IQ 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 no. 10, according to this version, was not
present at the spot.
Jn his statement under s. 342, Cr.P.C. 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
~he Magi,trate's court on hearing that he was named as an accused in this case.
The trial court did not accep~ his plea of alibi
nor did. the High Court accept it and we do not find any cogent
ground for disagreeing with this· conclusion.
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SUPREME COURT REPORTS
[1970) 3 S.C.R
Now, the fac:ts in the background of which the question of
right of private defence is to be consider~d 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 sec11red 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 c-ouple of years previously there was insufficient
rain and ther.~ 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 th~ bund
removed but unfortunately t)le matter was not dealt w:th by the
authorities in an effective manner as they ought to have.
Haviin,g
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
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the party of the occupiers was armed and their number.
The prosecution witnesse5> would have us believe that they (the occupiers)
along with some of their friends and supporters had gone to the
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Kunta unarmed to peac~fully persuade the accused persons to
remove the burn! and that ti)e accused persons beat them up with
sticks and spears.
The occupiers, acting merely in self-defence,
snatched the sticks and spears from some of the accused persons
~nd gave them a beating whereupon accused no. 10 used his gun.
1c'ldiscriminately firing at the party of the occupiers.
The accused, on the other hand, claimed that the par~y of the occupiers;
helped by prominent communists which far outnumbered the accused persons were anned with sticks and spears and. they forcibly
tried to remove the bund and when the accused objec~ed they were
beaten up.
Apprehending danger to their lives, the gun was used
on behalf of the -party of the accused persons.
It was tlrns 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 ih 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
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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 le~s than 20
persons.
We may now tutn 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.
Gottipulla Bapaiah, aged about 50 years, accused no. 2 had the follow··
ing in juries on his person :
1. A contusion 12" in length x t" 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 l" in diameter
situated on the right shoulder;
3. Whole of the right shoulder joint swollen and
brownish red im colour.
Movemen~s at right shoulder
joint restricted;
4. A contusion bluish in colour 3" in diameter on
the outer aspect of upper t of the right arm;
5. A contusion 6"X !" 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 !" 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
ha!f of centre of occiput at the back of head 1 t" x
1/ 4" scalp deep.
Clotted blood found in the wound.
X-ray report disclosed M.C. dislocation of right acromio c!avicular 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
SUPREME COURT REPORTS
(1970] 3 $.C.R.
Gottipulla Subba Rao, aged 48 xears, accused no. 4 had :i
brownish red contusion with raised edges and small al»a6ion 01<e~
it situated transversely on the right forearm, 1/3 of which wasswollen and tender.
There was a fracture of the bone b~lo"'
He also remained in the hospital from September 10, to Septenr:
ber 16.
Korlagunta Narayana Rao, aged 35 years, accused no. $ had
four injuries on his person including a lacerated injury 2" '< J"
scalp deep on the. froin.t of the right parietal bone, t" to the right
of mid line of skuil and another similar injury !" x t" scalp dee,p
on a contusion 3" in diameter, brownish red in colour at the hack
of junction of both parietal b~nes in between parietal emine,nces.
Shaik Madarsaheb, aged 25 years, accused no. 6, ·!lad Jive
injuries on his person including a contJsion.
He too ret!lllined in
the hospital for six da~s upto s~ptember -16, 1961.
Thota Seethararnayya, aged 40 years, accused no. 7 had a
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simple injury on his right hand ringiinger.
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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 accuse:! no. I and thi;
was fully known to the occupiers.
In this background it is not
possible to accept the story that the prosecution witne;ses had
gone to the Kunta unarmed and it was onlv 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 lmt 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, t)le occupiers to the use c.' the land in the Kunta for
cultivation and the accused IO the use of the Kunta as a source of
supply of rain water for irrigating their land and these conflicting
riW!ts could not co-exi;t. When the prosecution witnesses attempted forcibly to remove the bund the trouble flared up.
The two
factions had also affiliations with two different political parties :
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435
the occupiers had full support of the Communist Party and accused no. IO was a member of the Mandal Congress.· The court
also did not believe the prosecution version that prosecution wi~
nesses 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 tQ be unauthorised after its registration as an irrigation tanlcs. It further held that the bilnd as it existed on September 5, 1961 had been raised by the accused persons but thete
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. l 0 it was open to him to say that on the prosecution
evidence itself he must be held to have acted in exercise cf 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 l 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 l to 9.
In such a situation it was open either to any of the accused l to 9 or
even to the l 0th 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
fact!!" disclose a situation in which the l 0th accused can
well claim to have acted in the exercise of the right of
private defence.
Charges 4 to 6, !O 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 char,\les, after discussing the e.vidence
m 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 oonflicting and their respective versions so distorted that
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436
[1970] 3 S.C.R.
no definite finding. could safely be arrived at.
AU that emerged
from the material in \]le court's view was that the accused wanted
'· ··to retain the burid \vhich 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
llnder s. 429, Cr.P.C. felt that the case put forward by the.prose'
cution was ·substantially true and the case set up by the defence
palpab:y 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
.. raiseq the bund l!'rid who being fully armed were de~ermined to
•guard· and preserve it by use of fo!ce were held by the learned
Judge to constitute an unlawful assembly.
Accused nos. 2, 4 and
IO were held to be armed with deadly weapons and therefore
guilty of s. 148, l.P.C. and the other accused were held guilty
under s. 147, I.P.C.
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 intervention. ·to prevent ·the occupiers being beaten up and it was
thereafter that P.Ws. 5 and 7 and others beat the accused persons
in retaliation.
The High Court did not consider it material whet-
. her the prosecution witnesses and others had brought with them
sticks of 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. I 0 to be his individual act independent of the object of the assembly he alone was held guilty
of the offence of murder.
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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 ri~ht is claimed by all other
members of the society and (2) that it 1s 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
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437
them or to punish the wrongdcer for commio~ion of offences.
The right ofprivat.: defence serves a social purpose and as observed
by this Court more 'hain once there is nothing more degrading to
the human spirit than to ruu away in face of peril; (Munshi Ram
v. Delhi Administration(') and Kishna 1•. State of Rajasthan(2 ).
But this right is ba;ically preventive and not punitive. lt is in
this background that the provision;. of ss. 96 to 106, I.P.C. which
deal with the right of private defence have . to be construed.
According . to s. 96 nothing is an offence Wlfkh is done in the
exercise of the right of private defence and uncler s.