# TRILOKI NATH AND ORS v. STATE OF U.P

- **Citation:** [2005] Supp. 4 S.C.R. 931
- **Court:** Supreme Court of India
- **Decided:** 2005-10-28
- **Case number:** Criminal Appeal No. 1150 of 2004
- **Bench:** S.B. Sinha, R.V. Raveendran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/triloki-nath-and-ors-v-state-of-u-p-20992
- **Pages:** 30

## Headnote

B
Penal Code, 1860:
Section 99-Right of private defence-Exercise of-ExtentComplainants piled up wood on the plot belonging to the accused on the C
occasion of 'Holika Dehan'-The complainants were chased away from the
plot-Accused, apprehending injury, killed the deceased-Incident took place
300 paces from the plot-Trial court convicted the accused under S. 302High Court affirmed the conviction rejecting the plea of private defence raised
by the accused-Correctness of-Held: Accused must show the existence of D
grounds that death or grievous hurt would be caused to him-Even in such
cases the right of private defence could not be exceeded so as to cause more
harm than necessary-However, right of private defence is not available to
the aggressor-As the accused was the aggressor right of private defence
could not be claimed by him-Conviction upheld.
Section 149-Unlawfal assembly-Common object-Forming of-BasisHe/d: For the purposes of attracting S. 149, it is not necessary that there
should be a pre-concert by way of a meeting of the persons of the unlawful
assembly as to the common object-If a common object is adopted by all the
persons and shared by them, it would serve the purpose.
Maxim:
"Falsus in uno, Falsus in ombibus ".-Meaning and applicabiliiy of
E
F
According to the prosecution, the plot in dispute was in the possession
of the accused. The complainants had piled up wood on the plot in dispute G
on the occasion of 'Holika Dehan' which was removed by the accused
persons after chasing them away from the plot. Two persons on the side
of the accused suffered lacerated wound on their heads. The said injuries
were simple ones. The said incident took place about 300 paces from the
931
II
932
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A plot in dispute. One of the accused persons fired a shot at the deceased
who died on the Spot. PWs 2 and 3 had also suffered lacerated wounds on
their heads. The complainant and others who were accused in the counter
FIR had been acquitted and the judgment of acquittal had been affirmed
up to this court.
B
The trial court convicted the accused persons for the offence under
Section 302 read with Section 149 of the Penal Code, 1860. The High Court
affirmed the conviction rejecting the plea of private defence raised by the
accused persons. Hence the appeal.
On behalf of the accused persons, it was contended that the injuries
C sustained by the accused were not explained; that the accused had caused
the deceased's death in the exercise of his right of private defence and that
as the entire incident took place within 2 to 3 minutes, there was hardly
any occasion to form an unlawful assembly and a common object on the
spot.
D
E
Dismissing the appeal, the Court
HELD: I. 'Falsus in uno, Falsus in ombibus' is not a rule of evidence
in criminal trial and it is the duty of the court to disengage the truth from
falsehood, to sift the grain from the chaff. [945-C]
2. rt is essential for an accused to show that there were circumstances
giving rise to reasonable grounds for apprehending that either death or
grievous hurt would be caused to him, burden wherefor lies on him.
(945-F)
F
3. It is true that while exercising the right of private defence a person
is not expected to weigh in golden scales on the spur of the moment and
in the heat of circumstances, the number of injuries required to disarm
the assailant who is armed with weapons; but it is also true that the right
of private defence cannot be exceeded so as to cause more harm than
G necessary. Circumstances, thus, are required to be viewed, with
pragmatism. It is also well-settled that a right of private defence is
unavailable to the aggressor. The need to act must not have been created
by the conduct of the accused in the immediate context of the incident
which was likely or intended to give rise to that need. (945-G, H; 946-AI
H
Bishna@Bhiswadeb Mahala v. State of West Bengal, (Criminal Appeal
...
'
TR!LOKI NATH v. STATE OF U.P.
933
Nos. 1430-1431 of 2

## Text

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..
t
TRILOKI NATH AND ORS.
A
v.
STATE OF U.P.
OCTOBER 28, 2005
[S.B. SINHA AND R.V. RAVEENDRAN, JJ.]
B
Penal Code, 1860:
Section 99-Right of private defence-Exercise of-ExtentComplainants piled up wood on the plot belonging to the accused on the C
occasion of 'Holika Dehan'-The complainants were chased away from the
plot-Accused, apprehending injury, killed the deceased-Incident took place
300 paces from the plot-Trial court convicted the accused under S. 302High Court affirmed the conviction rejecting the plea of private defence raised
by the accused-Correctness of-Held: Accused must show the existence of D
grounds that death or grievous hurt would be caused to him-Even in such
cases the right of private defence could not be exceeded so as to cause more
harm than necessary-However, right of private defence is not available to
the aggressor-As the accused was the aggressor right of private defence
could not be claimed by him-Conviction upheld.
Section 149-Unlawfal assembly-Common object-Forming of-BasisHe/d: For the purposes of attracting S. 149, it is not necessary that there
should be a pre-concert by way of a meeting of the persons of the unlawful
assembly as to the common object-If a common object is adopted by all the
persons and shared by them, it would serve the purpose.
Maxim:
"Falsus in uno, Falsus in ombibus ".-Meaning and applicabiliiy of
E
F
According to the prosecution, the plot in dispute was in the possession
of the accused. The complainants had piled up wood on the plot in dispute G
on the occasion of 'Holika Dehan' which was removed by the accused
persons after chasing them away from the plot. Two persons on the side
of the accused suffered lacerated wound on their heads. The said injuries
were simple ones. The said incident took place about 300 paces from the
931
II
932
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A plot in dispute. One of the accused persons fired a shot at the deceased
who died on the Spot. PWs 2 and 3 had also suffered lacerated wounds on
their heads. The complainant and others who were accused in the counter
FIR had been acquitted and the judgment of acquittal had been affirmed
up to this court.
B
The trial court convicted the accused persons for the offence under
Section 302 read with Section 149 of the Penal Code, 1860. The High Court
affirmed the conviction rejecting the plea of private defence raised by the
accused persons. Hence the appeal.
On behalf of the accused persons, it was contended that the injuries
C sustained by the accused were not explained; that the accused had caused
the deceased's death in the exercise of his right of private defence and that
as the entire incident took place within 2 to 3 minutes, there was hardly
any occasion to form an unlawful assembly and a common object on the
spot.
D
E
Dismissing the appeal, the Court
HELD: I. 'Falsus in uno, Falsus in ombibus' is not a rule of evidence
in criminal trial and it is the duty of the court to disengage the truth from
falsehood, to sift the grain from the chaff. [945-C]
2. rt is essential for an accused to show that there were circumstances
giving rise to reasonable grounds for apprehending that either death or
grievous hurt would be caused to him, burden wherefor lies on him.
(945-F)
F
3. It is true that while exercising the right of private defence a person
is not expected to weigh in golden scales on the spur of the moment and
in the heat of circumstances, the number of injuries required to disarm
the assailant who is armed with weapons; but it is also true that the right
of private defence cannot be exceeded so as to cause more harm than
G necessary. Circumstances, thus, are required to be viewed, with
pragmatism. It is also well-settled that a right of private defence is
unavailable to the aggressor. The need to act must not have been created
by the conduct of the accused in the immediate context of the incident
which was likely or intended to give rise to that need. (945-G, H; 946-AI
H
Bishna@Bhiswadeb Mahala v. State of West Bengal, (Criminal Appeal
...
'
TR!LOKI NATH v. STATE OF U.P.
933
Nos. 1430-1431 of 2003), relied on.
4. I. The Appellants being in possession of the disputed land were
entitled to protect it but having regard to the past practice of performing
'Holika Dehan' on the land in question on the eve of 'Holi' which takes
place once in a year, the complainants party evidently did not want to
dispossess the accused persons permanently. In law, however, the accused
persons could resist trespass. Even if a trespass has been committed, in
certain situations, right of private defence can be used to eject the
trespassers. [946-C, DL
A
B
4.2. In this case, however, the incident took place 300 paces away C
from the land in question. PW-3 had gone to chakk. At the time of
occurrence he was coming back from his chakk. It is. Therefore, not
correct to contend that he had sent the servant to the plot in question with
a view to tease the appellants and was waiting at some distance with others.
He, therefore, could not have known any part of the occurrence which
took place till then. [946-E]
D
5.1. By the time PW-1 reached near the land, the appellants were
already in possession of the land as they had removed the wood, which
had been placed on the land by the complainant party. The right of private
defence in the aforementioned situation could not have been exercised for E
preventing trespass into the property or for evicting the trespassers.
[947-E]
5.2. The claim of private defence was, thus, not available to the
appellants as: (i) occurrence had taken place 300 paces away from the
disputed plot; (ii) the appellants were aggressors; and (iii) all of them were F
armed and in particular one of the accused was having a gun. [953-C]
Munney Khan v. State of MP. [ 1971] I SCR 943, A. C. Gangadhar v.
State ofKarnataka AIR (1998) SC 23811, Rajesh Kumarv. Dharamvir [1997]
4 SCC 496 and Mannu v. State of U.P., AIR (1979) SC 1230, relied on.
Harish Kumar v. State of MP. [1996] 9 SCC 667, Yogendra Morarji v.
State of Gujarat, [1980] 2 SCC 218, Moti Singh v. State of Maharashtra,
[2000] 9 SCC 494, Mahabir Choudhary v. State of Bihar ( 1996( 5 SCC 107,
State of UP. v. Ram Niranjan Singh, (1972] 3 SCC 66 and Subramani v.
G
State ofT.N. (2002] 7 sec 210, referred to.
H
934
SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.
A
6.1. It is not the law that the prosecution case shall fail only because ·
injuries on the person of the accused have not been explained. In certain
situation it is not necessary to explain the injuries on the person of the
accused. [955-8)
Laxman Singh v. Poonam Singh, [2004] to SCC 94, Chacko alias
B Aniyan Kunju v. State of Kera/a, [2004[ 12 SCC 269, Kashiram v. State of
MP., (2002) 1SCC71 and Vajrapu Sambayya Naidu v. State of A.P., (2004)
to sec 152, relied on.
6.2. The injuries on the accused have sufficiently been explained and,
C thus, it was not necessary for the prosecution to adduce any further
evidence. (955-D)
Takhaji Hiraji v. Thakore Kubersing Chamanasing, (200116 SCC 145,
relied on.
D
7.1. For the purpose of attracting Section 149 Penal Code, 1860 it is
not necessary that there should be a pre-concert by way of a meeting of
the persons of the unlawful assembly as to the common object. If a
common object is adopted by all the persons and shared by them, it would
serve the purpose. [955-FI
E
Mizaji v. State of UP. (19591 Supp. 1 SCR 940, Masalti v. State of
UP. (1964) 8 SCR 133, Baladin v. State UP., AIR (1956) SC 181, Bhajan
Singh v. State of UP., (1974[ 4 SCC 568, Shri Gopal v. Subhash, JT (2004)
2 SC 158, Ram Taha/ v. State of UP., (1972) 1 SCC 136 and Vaijayanti v.
State of Maharashtra, (Criminal Appeal No. 1100 of 2004 decided by SC
on 22.9.2005), relied on.
F
7.2. The appellants and the other accused cannot be said to have
formed a common object to kill any person, or to make an attempt in that
behalf in view of the manner in which the occurrence took place. Their
common object appears to be to teach PW-3 and others a lesson for
making attempts to burn 'Holika' by causing grievous injuries to them.
G
(959-FJ
8. The appellants were not entitled to raise the plea of self-defence
both in respect of the property as also the person being themselves
aggressors. The fact that the prosecution in the counter-case lodged by
H the accused has resulted in acquittal of the complainant party would also
/
TRILOKI NATH v. STATE OF U.P. [SINHA, J.]
935
have some bearing in the matter. The injuries on the person of the accused A
persons had sufficiently been explained. The injuries on the person of the
accused persons, therefore, lose all significance. 1958-H; 959-A)
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1150
of 2004.
From the Judgment and Order dated 22.4.2004 of the Allahabad High
Court in Crl.A. No. 660 of I 981.
WITH
Crl.A. Nos. I I 71, I I 72 and I I 73 of 2004.
S.R. Bajawa, Sushi! Kr. Jain, S.Z.A. Warsi, Ms. Pratibha Jain and Ram
Niwas, for B.K. Satija, K.S. Rana, Vijay Singh and David Rao for
Khwarirakpam Nobin Singh, R.K. Kapoor and M.K. Verma, for Sudarsh
Menon for the Appellants.
N.S. Gahlout and Prashant Chaudhary for Jatinder Kumar Bhatia for
the Respondent.
M.N. Krishnamani, Shakil Ahmed Syed and Mohd. Taiyab Khan for
the Respondent.
The Judgment of the Court was delivered by
B
c
D
-E
S.B. SINHA, J. These appeals arising out of a common judgment and
order dated 22nd April, 2004 passed by the High Court of Judicature at
Allahabad in Crl. Appeal No. 660 of 1981 and Crl. Appeal No.668 of 1981
were taken up for hearing together and are being disposed of by this common F
judgment. Criminal Appeal No. I 150 of 2004 is by Triloki Nath, Krishna
Chandra Singh, Shashi Kant and Sahdev (Accused Nos.6, 5, 7 and 8
respectively). Criminal Appeal Nos.1173, 1172 and 1173 of 2004 are
respectively by Kunwar Prahald Singh (Accused No. I), Jitendra alias Mister
(Accused No.2) and Gopal (Accused No.3). One of the eight accused namely, G
Chhanga has not filed any appeal.
BACKGROUND FACT:
The residents of village Devanand Pur had been performing "Holika
Dehan" for a long time on Plot No. 399, which is said to be a banjar land. H
936
SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.
A Kunwar Prahlad Singh became the owner of the said plot. He tried to enclose
the said plot by a 'Mend' (Fence). An objection thereto was raised by the
villagers including Laxmi Shankar Srivastava (PW-3); a complaint wherefor
was made pursuant whereto an intervention was made by the police.
B
F!Rs RELATING TO INCIDENT:
On the Basant Panchami day, the villagers allegedly fixed 'Dhah' as a
symbol of Holi on the said plot and started collecting fuel wood thereupon.
On the said day at about 12 noon, Khuddey, PW-4 while going to the flour
mill found the Appellants herein removing the wood. The accused Jitendra
C armed with a gun and the remaining accused armed with lathis were present.
Khuddey, PW-4, servant of Laxmi Shankar Srivastava, allegedly forbade
them from doing so whereupon he was chased. Near the Hata of Pran, Laxmi
Shankar Srivastava (PW-3), Sahjadey Jeevanlal (PW-2) Shabbir and other
persons of the village arrived. Laxmi Shankar Srivastava allegedly had asked
the accused as to why they have been chasing his servant. Triloki Nath
D exhorted his companions saying 'Maro Sale Ko' whereupon Gopal hurled a
lathi blow on PW-3's head. Shashi Kant accused gave the second lathi blow
on his wrist. Kunwar Prahlad Singh and Sahdev also assaulted him with
lathis. Chhanga and Krishna assaulted Sahjadey. Khuddey (PW-4) is said to
have hurled lathi blow in defence of Laxmi Shankar Srivastava (PW-3). He
thereafter raised hue and cry which attracted Nanhe (the deceased), and others.
E Nanhe raised alarm saying that Lala (thereby meaning Laxmi Shankar
Srivastava) was being killed whereupon Triloki Nath exhorted Jitendra asking
him to kill him as he professes himself to be a great helper of Laxmi Shankar.
Responding thereto Jitendra fired a shot at Nanhe. He fell down and died.
F
A First Information Report was lodged by Dinesh Kumar Srivastava
(PW-I) at about 2 p.m. on the same day.
A First Information Report was also lodged by Kunwar Prahlad Singh
Srivastava (Accused No. I) at about 4.30 p.m. against Shahjadey, Bansidhar,
Khuddey Chamar, Nanhe Chamar, Hira Passy, Shabbir and Laxmi Shankar
G purported to be for commission of an offence under Section 147/323/352 of
the Indian Penal Code alleging that Dinesh Kumar under the pretext of
performing Holika Dahan placed some waste wood at Plot No. 399 and kept
on adding thereto. He went to the said plot along with his sons Mister alias
Jitendra and Gopal at about I I a.m. and removed the said waste wood from
his land. When they were returning, Dinesh Kumar came on his motorcycle
H with a child. He allegedly stopped his motorcycle and called his servant as
. ;
TRILOKI NATH v. STATE OF U.P. [SINHA, J.]
937
also Shahjaddey and Bansi Brahman and exhorted "Jane na paye, mar pit A
low" whereupon they ran towards their house. On the way, Khuddey Chamar,
Nanhe Chamar, Hira Passi, Shabbir, etc. came from the side of the east and
south and surrounded him. The accused persons attacked Triloki. Sahdev and
other persons ran towards him for his rescue and when they had been running
to save their lives, they heard a sound of gun-fire from behind.
INJURIES ON THE ACCUSED.·
Injuries suffered by Triloki Nath in the said incident are as under:
"(!) Lacerated wound, 6 cm x Y, cm x scalp deep on the left side of
scalp, 6 cm above ear.
(2) Abraded contusion, 6 cm x 3 cm on the back of right shoulder."
Injuries suffered by Sahdev are as under:
, "(I) Lacerated wound, 2.5 cm x Y, cm x scalp deep, 3 cm behind
B
c
left~.
D
(2) Abrasion, 1 cm x 1.5 cm on the front of left knee."
Before we advert to the submissions made by the learned counsel for
the parties, we may notice some of the findings of the Trial Court and the
High Court respectively.
E
FINDINGS OF TRIAL COURT:
(i)
" ...... Kunwar Prahlad Singh accused had enough cause of
grievance against Laxmi Shanker Srivastava P.W.3 and Dinesh
Kumar Srivastava P.W.l. Undisputedly Kunwar Prahlad Singh F
accused had his possession over plot No. 399 in dispute and the
same had also been proved by the Khasra entries for the period
preceding the date of occurrence, and such Khasra entries show
the crop also of Kunwar Prahlad Singh accused in the plot in
dispute."
(ii) "Thus, the defence case that the accused Triloki and Sahdeo had
also received injuries in the same occurrence is also proved
beyond doubt."
(iii) "As such, I find that the cause of grievance lay with the accused
G
and not with the prosecution and it is quite probable that the H
A
B
938
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
accused Kunwar Prahlad Singh might have collected at the land
in dispute fully anned with a view to effectively remove the fuel
wood of Holi on the plot in dispute and to meet all resistance
against it."
FINDINGS OF HIGH COURT :
(i)
"From the very inception the only logical inference is that those
accused had gone well prepared with lathies and fire arm to deal
with the other side who were resisting removal of holika woods
and they knew well that the consequences may be of death merely
because other accused did not have deadly weapon and except
C
lathi, which is also one of the deadly weapon and is capable of
causing death, it is none other was caused death merely a chance
or incident..."
D
E
F
G
H
(ii) " .... .It was found that the plot No. 399 was in possession of
Kunwar Prahlad Singh on the preceding day of occurrence and
he had grudge against these people who were acting against his
interest by keeping Holika. According to prosecution witnesses
P.W.l to P.W.4 it is evident that fuel woods for Holi had been
stocked on the said plot. There cannot be any grievance of P.W.l
D.K. Srivastava regarding this as neither P.W. l nor P.W.3 claimed
this land adversely against their personal rights. Their only role
was that P.W.l D.K. Srivastava and P.W.3 L.S. Srivastava were
playing leading role in burning of Holi. Therefore, it was the
land-holder who had felt aggrieved. There is also no suggestion
that the woods were stocked at the time of incident nor th,ere is
any case that Laxmi Shankar Srivastava, P.W. 3 and his associates
had collected arms to resist such removal of Holi. There is
probability that the defence side had collected anns to take
revenue (sic) or with a view of removal of fuel wood ofHoli and
to meet the resistance against it."
(iii) "Learned trial court has held that if Nanhe was killed in the
occurrence and the same was in the light of private defence, such
contention of the learned counsel for the accused is absolutely
false firstly because there is no case that the occurrence took
place on or near the land in dispute to take possession over it
place of Holi or Nanhey had gone near the land to take possession.
Secondly, the fight had taken place not at the plot in dispute but
' f
TRILOKI NATH v. STATE OF U.P. [SINHA. J.]
939
at a place the distance of which has been stated by Khuddey, A
P. W.4 by an uncontroverted testimony, at 300 paces away from
the disputed land. Thirdly, it comes out from the evidence that
Kunwar Prahlad Singh accused had already thrown away fuel
woods from the plot in dispute before the occurrence took place
and according to his defence version he was proceeding from B
that place to his house and, therefore, finding of the trial court
has sufficient reasons that the accused have not acted in their
self-defence."
Upon completion of the trial, Jitnedra with other seven accused were
found guilty of commission of the offence under Section 302/149 for C
commission of murder of Nanhe, under Section 307 /I 49 for causing injury
to Laxmi Shankar Srivastava and under Section 14 7 of the Indian Penal Code
for rioting.
The Trial judge by an order dated 17.9.1981 convicted and sentenced
the accused to imprisonment for life for the offence of murder. The said D
judgment has been upheld by the High Court.
SUBMISSIONS:
Mr. S.R. Bajawa, learned senior counsel appearing on behalf of the
Appellants at the outset drew our attention to the fact that the injuries received E
by Laxmi Shankar Srivastava and Sahjadey are more or less similar to those
received by Triloki Nath and Sahdev. Such injuries received by the said
Appellants, it was contended, must have given rise to an apprehension in
their minds that one of them may be killed and as such the accused had
rightly exercised their right of private defence. Exercise of such right of
private defence could not have been denied to the accused persons on the F
reasonings of the High Court, it was submitted, in view of the fact that
although the place of occurrence was 300 paces away from the plot in question,
both the incidents of removal of trespass from Plot No. 399 as also the
occurrence in question took place as a part of the same transaction.
The learned counsel furthermore drew our attention to the post-mortem G
report and submitted on the basis thereof that as blackening and tattooing and
scorching were found, the same could not have been caused from a double
barrel muzzle loaded gun which is said to be the weapon of offence.
Mr. Bajawa would submit that the impugned judgments of conviction H
940
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A of sentence are unsustainable as:
(i)
Witnesses have come up with half truth.
(ii) The actual reason for putting the woods on the plot in question
was not disclosed. The land was not lying fallow as wheat crop
B
was grown thereon and, thus, the accused could not have been
dispossessed therefrom.
(iii) The complainants sent Khuddey to tease the accused and they
had been waiting at some distance.
•
(iv) The accused had a right to remove the wood piled on their land.
c
(v) They had no animus against Nanhe, deceased and, thus, they
could not have been convicted under Section 302/149 of the
Indian Penal Code.
(vi) There was no triggering point for firing at Nanhe except his soD
called shouting that the accused persons would kill Lala meaning
thereby Laxmi Shankar Srivastava. which cannot be relied upon.
(vii) Only one shot was fired from the gun as of necessity, as two of
the accused persons were seriously injured.
(viii)PW-2, the only independent witness, is not at all reliable.
E
(ix) Admittedly, Khudday had also come with a lathi which established
that the complainant party was the aggressor.
(x) Khudday did not suffer any injury which shows that the accused
persons were not the aggressors.
F
(xi) Unless Khudday was assaulted, no unlawful assembly could have
been caused.
(xii) In any view of the matter, the entire incident took place at the
~
spur of the moment.
Mr. R.K. Kapoor, learned counsel appearing on behalf of the Appellant
G in Criminal Appeal Nos. 1171 and 1172 of2004 supplemented the submissions
of Mr. Bajawa urging:
(i)
The accused persons were not having any grudge against the
deceased.
H
(ii) There was no motive for killing.
~ ~'
...
""
TRILOKINATH v. STATE OF U.P. [SINHA, l.]
941
(iii) The complainants were only chased from the land, which by A
itself did not constitute an offence.
(iv) Kunwar Prahlad Singh and Gopal did not give any exhortation
'for the death ofNanhe and as such their conviction under Section
3021149 is wholly unsustainable.
(v) The occurrence took place because of the interference with B
possession of the Appellants in plot in question by Khuddey. As
the entire incident took place within 2-3 minutes, there was hardly
any occasion to form an unlawful assembly and a common object
on the spot.
(vi) There was no intention to kill Nanhe and as such for his death, c
others are not liable.
Mr. Vijay Singh, learned counsel appearing on behalf of Shashikant in
Criminal Appeal No. I 150 of 2004 drew our attention to the fact that he
allegedly gave a lathi blow on the left wrist of Laxmi Shankar Srivastava D
whereas in his cross-examination he stated that such injury was caused by
Gopal and submitted that in that view of the matter he could not have been
held guilty. He further submitted that sufficient material had been brought on
records to show that an election dispute was going on between the parties.
Mr. N.S. Gahlout, learned counsel appearing in behalf of the State, on E
the other hand, submitted that : (i) having regard to the statements made in
First Information Reports lodged by both the parties, the time of occurrence
as well as the place of occurrence must be held to have been admitted; (ii)
the death of Nanhe and the injuries suffered by Laxmi Shankar Srivastava
and Sahjaddey being not denied and disputed, it was for the Appellants to
show that the defence version was probable; (iii) in view of the fact that both F
Khuddey and Laxmi Kant Srivastava were injured witnesses, their presence
at the place of occurrence cannot be disputed and in that view of the matter
there is no reason as to why their testimonies should not be relied upon; and
(iv) that from the First Information Report lodged by Kunwar Prahlad Singh,
it would appear that the firing from a gun was admitted which being wholly G
unnatural would lead to an inference that the Appellants were the aggressors.
Our attention in this behalf has also been drawn to setting up of another story
by the Appellants in paragraph 9 of the S.L.P. which reads as under:
" ..... As an altercation ensued, Khuddey attacked petitioner No. I and
4. Petitioner No. I and 4 wielded lathi in their defence and a free H
A
B
942
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
fight ensued. Prahlad Singh tried to escape by running away from the
scene of occurrence but from one side, Dinesh Kumar aimed his gun
at Prahlad Singh and from the other side, the brother of Khuddey
namely Nanhe confronted him. Prahlad Singh sat down to avoid the
bullet fearing a shot from the gun of Dinesh Kumar and the bullet
fired by Dinesh Kumar hit Nanhe and Nanhe died on the spot."
It w_as submitted on the aforementioned premise that the Appellants
have raised defences which are mutually destructive.
Drawing our attention to the findings of the learned Trial Judge as also
the High Court, it was argued that !t is apparent that the accused persons
C were the aggressors and in that view of the matter they cannot claim any right
of private defence and in particular having regard to the fact that :
(i)
from the plot in question, wood had already been remvved.
(ii) place of occurrence is not the land in question but 300 paces
D
away therefrom.
E
(iii) If the version of the accused persons is to be accepted that
somebody has fired from behind, it cannot be said that they have
done so in self-defence.
(iv) Such statements being vague oo positive case of self-defence has
been made out.
It was submitted that in villages normally the servants carry a lathi and
in that view of the matter it cannot be said that the accused persons came
heavily armed. Drawing our attention to the statements of Khuddey, PW-4
wherein he categorically admitted that Triloki and Sahdev received injuries
F from the lathi which he used in defence, it was submitted that in that view
of the matter it could be said that the prosecution did not come out with the
truth.
As regard, formation of common object, the learned counsel would
G submit that the same can be formed on the spot.
ADMITTED FACTS:
The admitted facts ar-e:
(i)
That the plot in dispute was in possession of accused Kunwar
H
Prahlad Singh.
)
TRILOKI NATH v. STATE OF U.P. [SINHA, J.]
943
(ii) There are two factions in the village.
A
(iii) The complainants were piling up wood on the occasion of Holi
which was removed by the accused persons.
(iv) Two persons on the side of the accused, viz., Triloki Nath, Sahdev
suffered lacerated wound on their heads. The said injuries were B
simple ones.
(v) Nanhe died out of a gun shot injury. Laxmi Shankar Srivastava
and Sahjadey also suffered lacerated wounds on their heads.
(vi) The complainant and others who were accused in the counter
FIR have been acquitted and the judgment of acquittal has been c
affirmed upto this Court.
ANALYSIS:
The submissions of the learned counsel for the parties are required to
be considered in the backdrop of the aforem.entioned admitted facts.
D
The Appellants at no stage disputed the correctness or otherwise of the
autopsy report in respect of the deceased Nanhe and injuries sustained by
Laxmi Shankar Srivastava and Sahjadey .. The relevant portion of the autopsy
report reads as under:
"*** *** ***
(I) Multiple fire arm wounds of entry, in an area of 10 cm x 7 cm
on the front of neck and upper part of chest in middle, smallest being
2/10 cm x 2/10 cm and biggest being'!. cm x % cm. Blackening and
tattooing present searching (sic) present.
( c) Laryex, Trachea and
Broachi
*** *** ***
Trachea and larvex ruptured at
places 4 pallets recovered.
E
F
( d) Right Lung
Ruptured at apex & contains
G
haematones 3 pallets recovered
( e) Left Lung
Ruptured atapex & contains
haematomes 3 pallets
recovered.
*** *** ***
H
944
A
SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.
(h) Large vessels
Injuries on both sides ruptured
in neck. Jugular weni on (L)
side ruptured 5 pellets
recovered."
Laxmi Shankar Srivastava at the time of incident was about 74-75
B years old. From the medico-legal evidence, it appears that he received a
lacerated wound 6 cm x Yi cm x bone deep on the top of skull, 12.5 cm above
nasion and he had a fracture on the outer side of forearm 2 cm above wrist
joint and abrasion on the front of left leg I 0 cm above ankle.
Having regard to the nature of injuries suffered by Laxmi Shankar
C Srivastava, a concurrent finding of fact has been arrived at that the Appellants
had an intention to murder him. There is no reason to differ therewith.
D
Injuries said to have been suffered by Sahjadey, as would appear from
the medical report proved by PW-5 are as under:
"(I) Lacerated wound 5 cm x 1 cm x Bone deep on the right side, 7
cm. above ear.
· (2) Contusion, 8 cm x 1.5 cm over right lip."
Both PWs-3 and 4 were eye-witnesses. Both of them, even according
E to the Appellants, were present at the time of occurrence. Laxmi Shankar
Srivastava (PW-3) was also an injured witness. Even in the first information
report lodged by Kunwar Prahlad Singh both of them had been named. Their
presence at the place of occurrence, therefore, cannot be disbelieved. The
said witnesses have fully supported the prosecution case.
F
Apart from some minor discrepancies like that at one place he stated
"May be that the lathi used by Khuddey hit Triloki" and immediately thereafter
he stated "I did not see Khuddey using lathi on Triloki. At the time of
occurrence I did not see Triloki and Sahdev getting injured or bleeding. I did
not see any lathi blow having been made on Sahdev", nothing else has been
G pointed out to reject the testimony o_f PW-3. We would notice hereafter the
statements of PW-4 as regards the role played by him. We do not find any
infirmity in his evidence to discard the same. Both of them are natural
witnesses.
PW2 is also one of the named eye-witnesses. He is an independent
H witness. His presence at the time of occurrence cannot be doubted as he was
'·
..
TR!LOKI NATH v. STATE OF U.P. [SINHA, J.]
945
cited at one of the witnesses in the First Information Report which was A
recorded within one and half hour from the time of occurrence.
It may be true that there appears to be some contradictions in his
evidence as regard carrying of Laxmi Shankar on his back inasmuch as in
cross-examination he had stated Ram Shankar carried Laxmi Shankar on his
back, but that by itself may not be a ground to discard his evidence in B
totality.
'Falsus in uno, Falsus in ombibus' is not a rule of evidence in criminal
trial and it is the duty of the court to disengage the truth from falsehood, to
sift the grain from the chaff.
The said First Information Report was lodged without any delay
whatsoever; particularly having regard to the fact that after the incident the
injured persons were required to be looked after and the distance of the
Police Station from the place of occurrence was about three kilometers.
SELF-DEFENCE
c
D
The law relating to self defence in view of a catena of decisions of this
Court is now well-settled. A plea of right of private defence may be in
respect of property or a person. Section 99 of the Indian Penal Code, however,
mandates that the right of private defence, in no case, extends to inflicting of E
more harm than necessary. Section I 00 of the Code provides that the right
of private defence of the body extends under the restrictions mentioned in
Section 99 to the voluntary causing of death or of any other harm to the
assailant if the offence which occasions the exercise of the right be of any
of the descriptions enumerated therein. It is essential for an accused to show
that there were circumstances giving rise to reasonable grounds for F
apprehending that either death or grievous hurt would be caused to him,
burden wherefor lies on him.
It is true that while exercising the right of private defence a person is
not expected to weigh in golden scales on the spur of the moment and in the
heat of circumstances, the number of injuries required to disarm the assailant G
who is armed with weapons; but it is also true that the right of private
defence cannot be exceeded so as to cause more harm than necessary.
Circumstances, thus, are required to be viewed with pragmatism. It is also
well-settled that a right of private defnece is unavailable to the aggressor.
The need to act must not have been created by the conduct of the accused H
946
SUPREME COURT REPORTS (2005) SUPP. 4 S.C.R.
A in the immediate context of the incident which was likely or intended to give
rise to that need.
B
It is not necessary to dilate on the matter any further as in Bishna @
Bhiswadeb Mahato and Ors. v. State of West Bengal (Criminal Appeal
Nos.1430-1431 of 2003], the issue has been discussed at some length.
The case at hand has to be considered having regard to the principles
of law, as noticed hereinbefore. We have seen that in what circumstances and
to what extent the right of private defence can be exercise would depend
upon the fact situation obtaining in each case.
C
The Appellants being in possession of the disputed land, were entitled
to protect it but having regard to the past practice of. perfonning Holika
Dahan on the land in question on the eve of Holi which takes place once in
a year, the complainants party evidently did not want to dispossess the accused
persons permanently. In law, however, the accused persons could resist
D trespass. Even a trespass has been committed, in certain situations, right of
private defence can be used to eject the trespassers .
. In this case, h?wever, the incident took place 300 paces away from the
land in question. Laxmi Shankar Srivastava had gone to chakk. At the time
of occurrence he was coming back from his chakk. It is, therefore, not correct
E to contend that he had sent the servant to the plot in question with a view to
tease the Appellants and was waiting at some distance with others. He,
therefore, could not have known any part of the occurrence which took place
till then.
According to the Appellants, they were attacked upon exhortation of
F Laxm i Shankar Srivastava. As would be noticed from the discussions made
hereinafter that the said stand of the Appellants cannot be said to be correct.
It has not been shown that apart from Khuddey any other person was carrying
any weapon. On the other hand, all the Appellants were armed with lathis
except Jitendra who was carrying a gun. There is no material on records to
G show that there had been any overt act on the part of the complainant. In the
above circumstances, it is unlikely that the complainant would ask others to
assault the Appellants.
Both the learned Sessions Judge and the High Court came to a concurrent
finding of fact that the incident took place after Khuddey was chased. It is
H possible that as regard the right of the villagers to perform Holika Dahan or
)
TRILOKl NATH v. STATE OF U.P. [SINHA, J.]
947
because of old enmity, the incident occurred but it is clearly not a case of A
free-fight amongst two groups of people, both being armed with deadly
weapons. Thus, no case of self-defence has been made out.
PW-4 categorically stated in his examination-in-chief that he used lathi
in defence only after Gopal and Shashikant assaulted Laxmi Shankar Srivastava
and Sahjaddey. In cross-examination, the said witness accepted that Triloki B
and Sahjaddey received injuries from the lathi which he had used in defence,
stating :
" ... .! was shielding against the attack of the accused on my lathi and
was also making the attacks. Approximately, I shielded against 2-4
blows of lathi. In defence I had attacked Triloki. I had given one lathi C
blow. I had made one attack with my lathi on Sahdev also ... "
He further categorically stated that none other than him and the accused
had lathi/danda in their hands. We find no reason to disbelieve his testimony.
The Trial Court and the High Court have found that the nature of D
injuries on the person of Triloki Nath and Sahdev were too trivial. No case
has also been made out, as suggested, that Dinesh Kumar (PW-I) was armed
with a gun. He was in fact not present at the time of incident. No such
suggestion was given to him that he was present at the time of incident with
a gun. Such a suggestion had not been given also to any other witness. NonE
sustenance of any injury by Khuddey is also not of much significance. He in
his evidence, as noticed hereinbefore, has clearly stated as to why he had to
wield lathi and how he had been defending himself and had been able to hit
blows on Sahdev and Triloki Nath.
In the First Information Report lodged by Kunwar Prahlad Singh, it is F
alleged that they had run away when a sound of gun fire was heard. It is
interesting to note that as regard the said incident, Dinesh Kumar was also
said to have lodged a First Information Report but the same was not brought
on record.
We have noticed hereinbefore that even in the First Information Report G
it has been admitted that the accused persons had also received injuries as a
lathi was wielded. PW-3 although stated that he had not seen at the time of
occurrence Triloki or Sahdev getting injured but he accepted that "May be
that the lathi used by Khuddey hit Triloki". Merely a suggestion was given
to PW-3 on behalf of the Appellants that Triloki Nath and Sahdev tried to H
948
SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.
A mediate between the two groups and after they started beating Triloki Nath
and Sahdev with lathi and in the melee Triloki Nath and Sahdev in tum
assaulted others, but the same was denied.
ANALYSIS OF EVIDENCE
B
The prosecution has fully established that Khuddey while going to the
floor mill found the Appellants.herein removing the wood, and asked them
not to do so. He was, of course, armed with a lathi. Khuddey at that time,
thus, was not causing any trespass. He did not physically prevent the Appellants
from removing the trees. He even did not prevent them from reentering or
C otherwise obstructing them physically from possessing the land. He was chased
away. He came near the Hata of Pran which is about 300 paces away from
Plot No.399. At that point of time in all probabilities Laxmi Shankar Srivastava
(PW-3) and Sahjadey, (PW-2), Shabbir and other persons arrived there. Laxmi
Shankar Srivastava had only asked the Appellants as to why they had been
chasing his servant, whereupon Triloki Nath exhorted his companions to
D assault him resulting in the incident. If Khoddey' s evidence is believed, he
had used his lathi to prevent assault on his master. He had used his lathi both
by way of defence as well as assaulting two of the accused parties. The right
of private defence in the aforementioned situation could not have been
exercised for preventing trespass into the property or for evicting the
trespassers. By the time Khuddey reached near the land, the Appellants were
E already in possession of the land as they had removed the wood, which had
been placed on the land by the complainant party.
The Appellants, therefore, were aggressors. The right of private defence
cannot, thus, be claimed by them. [See Munney Khan v. State of Madhya
p Pradesh, (1971] I SCR 943]
G
In A.C. Gangadhar v. State of Karna/aka, AIR (1998) SC 2381, the
Appellant was said to have caused an injury with an axe on the head of PW5 when they protested against the accused from cutting the tree. The right of
private defence claimed by the accused was denied opining :
"3. The learned counsel for the appellant, however, submitted that
even if it is believed that A- I had caused grievous hurt, he could not
have been held guilty either under Section 326 or for any other offence
as the said injury was caused by him in exercise of the right of
private defence. Both the courts have come to the conclusion that the
H
accused and his companions were the aggressors and had started the
TRILOKI NATH v. STATE OF U.P. [SINHA, J.]
949
assault on the deceased and his children and that too, because they A
protested against the accused cutting the tree. Therefore, there was no
scope for giving any benefit ofright of private defence to the appellant.
We, therefore, see no reason to interfere with the order passed by the
High Court .... "
In Rajesh Kumar v. Dharamvir and Ors., [1997] 4 SCC 496, it is B
stated:
"20. Section 96 of the Indian Penal Code provides that nothing is an
offence which is done in the exercise of the right of private defence
and the fascicle of Sections 97 to I 06 thereof lays down the extent
and limitation of such right. From a plain reading of the above sections C
it is manifest that such a right can be exercised only to repel unlawful
aggression and not to retaliate. To put it differently, the right is one
of defence and not of requital or reprisal.