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Kanchan and ors. Vs. State of U.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1982CriLJ1633
AppellantKanchan and ors.
RespondentState of U.P.
Cases ReferredGurdattamal v. State of U.P.
Excerpt:
- - 28. in the present case, it is obvious that udal had been dispossessed illegally by salig ram in august, 1974 about a year before the passing of the ex parte order dated 27-6-1975 as well as about one year before the date of occurrence. udal and his companions clearly forgot the provisions of section 41 of the land revenue act which enjoined upon the collector to put him in possession after survey. it will thus be seen that the appellants formed unlawful assembly well within the meaning of the term given in section 141 i. the appellants should have better informed the officers at the police station and thereby stopped salig ram and others from planting paddy in that portion which had been carved out by the supervisor qanungo. clearly lays down that the right of private defence of.....p.n. goel, j. 1. this appeal is directed against the order dated 3-11-1976 passed by the sessions judge, mainpuri, in sessions trial no. 424 of 1975 convicting and sentencing the appellants for the offences of rioting punishable under sections 147, 148 and murder etc., punishable under sections 302/149, 307/149, 324/149 and 323/149 of the indian penal code.2. the fate of this case hinges on a short point, viz. whether the victims of the assault were justified in transplanting/sowing paddy in the land in dispute on the date and time of occurrence i.e. 10-8-1975, 11 a. m.3. in the occurrence 4 persons mahendrapal, babu ram, netrapal and bhagirath lost their lives. six persons jaipal, tota ram, rajpal, haghubir, salig ham and rameshwar received injuries,4. according to the prosecution udal.....
Judgment:

P.N. Goel, J.

1. This appeal is directed against the order dated 3-11-1976 passed by the Sessions Judge, Mainpuri, in Sessions Trial No. 424 of 1975 convicting and sentencing the appellants for the offences of rioting punishable under Sections 147, 148 and murder etc., punishable under Sections 302/149, 307/149, 324/149 and 323/149 of the Indian Penal Code.

2. The fate of this case hinges on a short point, viz. whether the victims of the assault were justified in transplanting/sowing paddy in the land in dispute on the date and time of occurrence i.e. 10-8-1975, 11 A. M.

3. In the occurrence 4 persons Mahendrapal, Babu Ram, Netrapal and Bhagirath lost their lives. Six persons Jaipal, Tota Ram, Rajpal, Haghubir, Salig Ham and Rameshwar received injuries,

4. According to the prosecution Udal Singh, Tara Singh, Bhagwan Singh, appellants 2 to 4 had country made pistols, Chhadami, appellant 5 a gun, Lala Ram, Amar Singh appellants 6, 9 spears, Panna Lai, appellant 7 Pharsa, Bhupal, Nand Ram, appellants 8, 10 swords and Kan-chan, appellant l a lathi. Chhadami shot Mahendrapai and caused his death. Bhagwan Singh shot Babu Ram and caused his death. Tara Singh shot Netrapal and caused his death. Udal shot Bhagirath who died in the village Abadi and not on the spot. The appellants having firearms continued to fire. The other appellants assaulted the 6 persons Jaipal and others, who received injuries.

5. Kalicharan (P. W. 1) lodged first information report at police station Fariha at 2-30 P. M. on the date of occurrence. The police station is 4 miles from Nagla Arapur, hamlet of Bhikam-pur in which the occurrence took place. The appellants are residents of the adjoining hamlet i.e. Nagla Kiru, hamlet of Bhikampur. The 6 injured were taken to S. N. M. Hospital Firozabad by Fateh Singh and Mani Ram. Dr. C. K. Sharma, Eye Surgeon of the said hospital examined them between 5 and 6-10 P.M. on the date of occurrence.

6. On the person of Salig Ram one incised wound 10 cm. x 2 cm. x bone on back of right shoulder oblique was found.

7. On the person of Raghubir Singh 7 injuries detailed below were found:

1. Lacerated wound 2 cm x 0.5 cm x skin on left side of forehead, l cm above left eyebrow outer angle.

2. Abrasion 2 cm x 0.5 cm on left side middle of nose.

3. Multiple gun shot wounds of entry and abrasion 16 cm x 15 cm on right shoulder, average size 0.25 cm x 0.25 cm x skin and muscles-inverted margins.

4. Gun shot wound 9.25 cm x 0.25 cm x muscles on right cheek in lower jaw inverted margins.

5. Contusion 4 cm x 2 cm on back of left forearm transverse below elbow joint.

6. Contusion 3 cm x 2 cm on the back of left face lower 1/3rd.

7. Gun shot wounds of entry, 6 in number, each 0.25 cm x 0.25 cm x muscles on the front of right leg and knee in area of 14 cm x 6 cm inverted margins.

8. On the person of Rajpal there were 3 injuries detailed below:

1. Penetrating wound 1 cm x 0.75 cm x chest cavity On right side chest, 18 cm below in anterior auxiliary line.

2. Abrasion 0.2 cm x 0.2 cm on left thigh front and lower part.

3. Swelling traumatic 3 cm x 2 cm on left thumb nail.

9. On the person of Tota Ram 5 injuries detailed below were found:

1. Contusion 17 cm x 2 cm across mid-line upper part of chest-transverse.

2. Contusion 8 cm x 2 cm on left side back middle part oblique.

3. Lacerated wound 4 cm x 1 cm x muscle in web of left thumb.

4. Incised margined punctured wound 1.5 Cm x 0.2 cm x muscle on left side lower part of abdomen, 6 cm below umbilicus.

5. Contusion 6 cm x 2 cm on right forearm middle 1/3rd Fracture with upper 1/3rd.

10. On the person of Jaipal 2 injuries detailed below were found:

1. Abrasion 0.25 cm x 0.25 cm on right though middle.

2. Gun shot wound 0.2 cm x 0.2 cm x muscle just below No. 1.

11. On the person of Rameshwar one lacerated wound 1 cm x 0.5 cm x muscle on right side head with contusion 4 cm x 3 cm around it 10 cm above right ear, was found.

12. Shyam Bir Singh, Station Officer (P. W. 7) was injured in a motor cycle accident. Therefore, he was in the hospital from 3-4 days before the date of occurrence. Radha Kishan Sharma, A.S.I. (P. W. 5) was in charge of the police station on the date of occurrence. He took up investigation. He held inquest on the dead bodies.

13. On 11-8-1975 at 11 A.M. Dr. S. N. Dutt conducted autopsy on the dead body of Netrapal and found following ante-mortem injuries:

1. Wound of entrance; Gun shot wounds punctured-wounds Round shaped having average measurement, each 0.25 cm x 0.25 Cm x bone deep on the outer aspect of right thigh in an area of 20 cm x 20 cm at its middle, blackening and scorching present. Margins irregular-inverted. Direction transverse, trailing towards medial aspect and communicating with wounds of exit.

2. Wound of Exit: Multiple round shaped punctured wounds, 0.35 cm x 0.35 cm deep communicating with wounds of entrance-Margins irregular and inverted No. 17 on the medial aspect of right thigh in an area of 15 cm x 15 cm at its middle.

3. Wound of entrance: Multiple punctured wounds, margins invereted, measuring 0.25 cm x 0.25 cm x muscle deep on the medial aspect of left thigh lower 1/3rd. Blackening and scorching present. The wounds were in an area of 10 cm x 1.0 cm.

4. Incised wound 10 cm x 0.5 cm x bone deep on the left side of head, 9 cm above left ear.

5. Lacerated wound 2 cm x 1 cm x muscle deep on the back of the head, 8 cm above the neck.

14. On the same day at 11.55 A. M. Dr. V. P. Wadhawa held autopsy on the dead body of Babu Ram and found following antemortem injuries.

Multiple punctured gun shot wounds in an area of 25 cm x 20 cm on the right side front of adbomen and lower part of chest on the same side with separate wound of entry, average size 0.3 cm x 0,3 cm. On probing the direction of each wound is backwards (posteriorly) and towards left. No scorching or tattooing.

15. On the same day at 1.00 P. M. Dr. R.K. Jain conducted post-mortem examination on the dead body of Bhagirath and found following antemortem injuries:

1. Incised wound 7 cm x 1 cm x bone deep on the right side of head, 8 cm above the right ear. Directed upward and backward,

2. Incised wound '4 cm x 0.5 cm x scalp deep on the top of head in the middle. Directed backward.

3. Incised wound 8 cm x 1.5 cm x bone deep on the left side head, 8 cm above the left ear. Directed backward.

4. Incised wound 4 cm x 0.5 cm x bone deep on the left side back of ear, 3 cm below the injury No. 3.

5. Gun shot wounds of entrance; Multiple punctured gun shot wounds in an area 17 cm x 16 cm on the upper part and front of right thigh and few just above the right inguinal ligament of average size 0.25 cm x 0.25 cm. On probing the direction of each wound is backwards (posteriorly). Margins inverted and no scorching and tattooing. Right femoral vessels punctured at place just below the right inguinal ligament. 17 pellets recovered from the muscles of right thigh upper part and right inguinal region. Clotted blood present and muscles deeply congested.

16. On the same day at 2.20 P. M. Dr. R.K. Gupta conducted post-mortem examination on the dead body of Mahendrapal and found following antemortem injuries:

1. Multiple gun shot punctured wounds on the face of average size 0.3 cm x 0.3 cm x muscle deep. Blackening present. Probe goes posteriority.

2. Two gun shot wounds on the right side chest just below the right clavicle. Average size 0.3 cm x 0.3 cm. Probe goes deep in cavity and towards left, blackening present.

3. Gun shot wound on the chest of the mediosternum and xiphisternum, 0.3 cm x 0.3 cm x cavity deep. Blackening present. On probing goes towards left side.

17. Shyam Bir Singh, Station Officer took up investigation from 15-8-1975. On that date he interrogated the six injured in the Firozabad hospital. The appellants surrendered before the magistrates on various dates between 17-8-1975 to 22-8-1975. Shyam Bir Singh submitted charge sheet against them on 24-8-1975.

18. Briefly stated, the case of the prosecution was that Kalicharan and others reached the disputed land on the date of occurrence at 11 A. M. and started sowing paddy plants. The appellants armed variously came there and asserted that they were planting paddy in their field. Immediately then the 4 appellants having fire-arms used their weapons and the other appellants began to wield their weapons. Jhunni Lal, Dangal Singh, Shobha Ram and another Jhunni Lal came up from the adjoining fields. Thereupon the appellants ran away.

19. Tara Singh and Chhadami appellants only admitted their presence at the time of occurrence. The other appellants even did not admit their presence at the time of occurrence. Tara Singh stated that he received injuries and that he was medically examined in jail. Ghhadami stated that Tara Singh heard that 10 persons were planting paddy in their field, that thereupon he along with Tara Singh and 2 others reached there with weapons, that they asked the said 10 persons not to plant paddy, that those persons began to give abuses and wielded lathi and pharsa and that in self defence he and his three companions wielded their weapons. It may be stated here that there is no injury report of Chhadami. He did not even state that he was examined by any doctor. There is injury report Ex. Kha 9 of Tara Singh.

20. The prosecution examined 4 persons as eye-witnesses of the occurrence Kalicharan, Raghubir Singh, Salig Ram and Dangal Singh (P. Ws. 1 to 4). The Sessions Judge has not placed reliance on the testimony of Dangal Singh. He has, however, believed the testimony of the other 3 witnesses. Believing their testimony he has convicted the appellants.

21. Learned counsel for the parties have been heard at length and the entire record has been carefully examined with their assistance. The contention of the appellants' counsel is that the appellants assaulted the victims in the exercise of right of private defence of person and property. Further contention is that the appellants who exceeded the right of private defence were individually liable for their acts and that, therefore, the other appellants who had not exceeded the right of private defence were not liable to be punished.

22. We have indicated above that Tara Singh and Chhadami only admitted their presence at the time of occurrence. Hence the other appellants cannot assert that they had a right of private defence of their person. We have also indicated above that Chhadami did not receive a single injury. Tara Singh only has stated that he was injured. The appellants proved injury report Ex. Kha 9 of Tara Singh. This report was recorded by the jail doctor (Dr. A. K. Saxena on 20-8-1975 at 6.50 A. M. i.e. 10 days after the occurrence) Dr. Saxena found only one injury which is indicated below:

Lacerated wound partially healed and with infection 4 1/2 cm x 3/4 cm x 1/2 cm with swelling in 5 cm. x 3 cm. area around it, left side of head in posterior part, 9 cm. above left ear.

In the opinion of Dr. A. K. Saxena the duration of the injury may be more than 8 days. The appellants did not examine Dr. Saxena to depose that this injury had been caused on 10-8-1975, the date of occurrence. Had Dr. Saxena been examined, it could be said with certainty whether the appellant Tara Singh received injury in the occurrence of not. For this uncertainty the appellants are responsible.

23. The appellant's counsel pointed out that Raghubir Singh and Salig Ram P. Ws. admitted that the appellants had received injuries in the occurrence. This contention is not correct. Raghubir Singh is said to have stated before the investigating officer that they had wielded lathis and that the accused persons had received injuries. Raghubir Singh denied to have made such a statement. The investigating officer has, however, proved the said part of the statement of Raghubir Singh during investigation Ex. Kha 4. Assuming for a moment that Raghubir Singh and others wielded lathis, there is nothing in his statement to show as to which of the appellants received injuries. The statement Ex. Kha 4, in our opinion, is quite vague. Salig Ram is said to have stated before the investigating officer that they had wielded lathis and that the accused persons might have received injuries (vide Exs. Kha 7 and Kha 8). Salig Ram denied to have given the said statements. Assuming for a moment that Salig Ram did give statements Exs. Kha 7 and Kha 8 during investigation, it is evident that the said statement is quite vague. No suggestion was made to any of these witnesses that any of the appellants actually received injuries in the occurrence. It has also to be kept in view that the appellants have proved only one injury on the person of Tara Singh. This aspect of the matter has been dealt with above. Therefore, on the basis of the statements of Raghubir Singh and Salig Ram Exs. Kha 4 Kha 7 and Kha 8, it cannot be held that the appellants received injuries in the occurrence.

24. In this connection it has also to be kept in view that Salig Ram and others, who were planting the paddy, did not have any deadly weapons. At the most some of them may be having lathis which too they did not wield and did not cause any appreciable injury on the person of any of the appellants. On the other hand, out of 10 appellants, 9 had deadly weapons, namely, pistols, gun, swords, spears and pharsa and only one one of them had a lathi. This lathi was also used in the occurrence. Tota Ram, Raghubir Singh and Rameshwar each received one lacerated wound by this lathi. Lacerated wound on the person of Raghubir Singh was on the forehead. Lacerated wound on the person of Rameshwar was on his head. It means that Kanchan intended to cause injury on the head, a vital part of the body. The position that follows is that the appellants had come up with a positive intention to cause fatal injuries to the victims who were planting paddy.

25. Taking into consideration all what has been discussed above, we are of the opinion that the appellants had absolutely no right of private defence of person.

26. We next proceed to consider the right of private defence of property. About one year before the occurrence on 7-9-1974 Udai appellant moved an application against Salig Ram (injured), his brothers Mani Ram, Vijendra Singh and 5 other persons under Section 41 of the U.P. Land Revenue Act to the Sub-Divisional Officer. By means of this application he desired demarcation of his plot No. 378 measuring 1.93 acres. In the body of the application Udal stated that he is Sirdar of the said plot, that the plots of the 9 opposite parties are aroimd plot No. 378, that the partition mends were common, that the opposite parties had broken the mends of all sides on 10-8-1974, that the opposite parties were not willing to reconstruct the mends at their original places. The alleged illegal act was done about one month before the giving of the application for demarcation. It is obvious that the farmers/villagers break the mends with the intention to encroach upon the land of another. It means that Salig Ram and his brothers had broken the mends with the intention to encroach upon a part of plot No. 378. From this application we can also infer that Salig Ram and his brothers had taken illegal possession of a portion of the land of the plot of Udal. On 22-5-1975 the Supervisor Qanungo submitted report Ex. Ka 39 to the Sub-Divisional Officer. The report shows that, he went to the spot on 12-5-1975 and made survey/measurements particularly in respect of plot No. 378. Plot No. 382 undisputedly belongs to Salig Ram. This plot is to the West of plot No. 378 as is evident from the village map Ex. Ka 40. The Supervisor Qanungo found that some portion of plot No. 378 was included in plot No. 382. He showed the encorachment in map, part of his report. On the basis of the report Ex. Ka 39, the Sub-Divisional Officer passed ex parte order on 27-6-1975 on the application of Udal approving the report. On 5-7-1975 Salig Ram moved an application for setting aside the order dated 27-6-1975. The order was set aside on 23-1-1976. It will thus be noticed that the present occurrence took place between the date of the ex parte order dated 27-6-1975 and the order dated 23-1-1976 setting aside the ex parte order.

27. There was no document that after the order dated 27-6-75 Udal was put in possession of the portion which the Suprevisor Qanungo found to have been encroached by Salig Ram. There is no assertion on behalf of the appellants that Udal was officially put in possession of the portion of plot No. 378 which had been included/encroached upon by Salig Ram. A glance at Section 41 Land Revenue Act will indicate that after survey, the Collector has to put in possession the aggrieved person. Section 41(1) lays down that all dispute regarding boundaries shall be decided as far as possible on the basis of existing survey maps. Then Sub-section (2) lays down that in the course of an inquiry into a dispute under this section if it is shown that possession has been obtained by wrongful dispossession of the lawful occupant within a period of three months previous to the commencement of the inquiry, the Collector shall put the person so dispossessed in possession and shall then fix the boundary accordingly.

28. In the present case, it is obvious that Udal had been dispossessed illegally by Salig Ram in August, 1974 about a year before the passing of the ex parte order dated 27-6-1975 as well as about one year before the date of occurrence. Hence it has to 'be presumed that Salig Ram was in actual wrongful possession of the portion of Udal's Plot No. 379 from August 1974 and that up to the date of the occurrence he was not officially dispossessed therefrom. In other words, on the date of occurrence or just prior to it Salig Ram would be deemed in possession of the disputed land.

29. The learned Counsel for the appellants urged that Udal had come in actual possession of the disputed land prior to the date of occurrence and after the order dated 27-6-75 was passed by the Sub-Divisional Officer approving the Supervisor Qanungo's report. To substantiate this contention he referred to the statements of Kalicharan and Salig Ram P. W. Kali Charan stated in cross-examination that is days before the occurrence Udal Singh had ploughed the adjoining field and had not sown any crop, that while doing so he had not broken the partition mend and that he did not know if Udal Singh had done patela in his field or not. This statement does hot necessarily mean that Udal had run plough in the portion of his field which had been encroached upon by Salig Ram. Kalicharan then stated that one day before the occurrence Udal Singh had broken the partition mend and that he was not present at that time. This statement shows that Udal Singh wanted to take back the portion of his field which had been encroached upon by Salig Ram. Salig Ram stated in chief examination that Udal Singh had broken the partition mend one or two days before the occurrence. In cross-examination he indicated that prior to the date of occurrence they had sown paddy in about one and a half bighas and that on the date of occurrence, prior to the date of occurrence they had sown paddy in half bighas. Then he stated that Udal did not break mend in his presence. It is said that Salig Ram stated before the investigating officer that while ploughing his field Udal broke the mend and that he had done patela thereon, vide Exs. Kha 5 and Kha 6. Salig Ram has denied to have given the said statements before the investigating officer. But these statements are proved by Radha Kishan Sharma investigating officer (P. W. 5).

30. In this connection it was pointed out that Radha Kishan Sharma admitted that at the time of his inspection of the site he found patela to have been done.

31. The position that follows from the above statements is that one or two days before the occurrence Udal had broken the mend ploughed the land and done Patela in the absence of Salig Ram and Kalicharan. There is nothing on record to indicate that Udal did so in the presence of any other member of the family or of the party of Salig Ram. It means that Udal wanted to take back possession stealthily in an illegal manner. Just on the next day or on the third day Salig Ram reached the disputed land to plant paddy. In these circumstances it is not correct to urge that Salig Ram had acquiesced in the possession of Udal which he had taken one or. two. days before the occurrence. We have said above that this act of Udal was illegal and it was done stealthily, in. the absence of Salig Ram and. others. Therefore, on account of this act Udal or his companion appellants cannot get any advantage.

32. For the reason stated above it is apparent to us that Salig Ram was in actual possession of the disputed-land from 10-8-1974 and that he had a right to go and plant paddy on the date of occurrence because we had not been dispossessed/ejected legally, nor by force. Had Udal taken possession by breaking the mend by force in the presence of Salig Ram he could be considered in possession. But Udal did not take possession in his presence. He did so stealthily in an illegal manner.

33. For the conclusion arrived at above we have no hesitation in holding that Udal and his companion appellants had absolutely no right of private defence of property.

34. It is no doubt true that just before opening the assault with deadly weapons the appellants asserted that the land in dispute was their field. This assertion does not have the effect of giving right of private defence of property. The relevant portion of Section 141 I P.C. reads as follows:

An assembly of five or more persons is designated an 'unlawful assembly', if the common object of the persons composing that assembly is by means of criminal force to enforce any supposed right.

In the present case, after the report of the Supervisor Qanungo was approved by the Sub-Divisional Officer by order dated 27-6-1975 Udal began to consider that the land in question belonged to him. It was in the exercise of this supposed right that he and the other appellants asserted just before opening the assault that the land in dispute belonged to them. Udal and his companions clearly forgot the provisions of Section 41 of the Land Revenue Act which enjoined upon the Collector to put him in possession after survey. It will thus be seen that the appellants formed unlawful assembly well within the meaning of the term given in Section 141 I.P.C. Therefore, each appellant is vicariously liable for the act of his companions. In this aspect of the matter it is not correct to. say that the appellants who caused deaths of Mahendrapal, Babu Ram Ne-trapal and Bhagirath only were liable to be convicted under Section 302 I. P..C. and not the other appellants. 35. There is one other aspect of. the matter. Salig Ram and 9 other persons had reached the disputed land and started planting paddy. They had done ' so in an area measuring half bigha. The appellants came to know of this fact. Then they reached the disputed land with deadly weapons. It has also to be borne in mind that prior to the date of occurrence Udal had not sown paddy in the disputed land. Udal had stealthily ploughed the mend and done patela which is an illegal act. Therefore, in these circumstances, instead of going to the disputed land with deadly weapons and assaulting the persons who were planting paddy with deadly weapons, they should have taken recourse to law. The police station is only 4 miles from the place of occurrence. This distance on a bicycle could be covered within less than an hour. The appellants should have better informed the officers at the police station and thereby stopped Salig Ram and others from planting paddy in that portion which had been carved out by the Supervisor Qanungo. Section 103 I.P.C. clearly lays down that the right of private defence of property extends under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrongdoer, if the offence the committing of which occasions the exercise of the right, be an offence of (1) robbery (2) house breaking by night (3) mischief by fire committed on any building, tent or. vessel, and (4) theft, mischief or house-treapass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. The present case can at the most fall under the fourth portion. But it will be noticed that the mischief committed by Salig Ram and his companions alone is not enough for the exercise of the right of private defence of property given by Section 103 I.P.C. There should be circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence. We have indicated above that in the present case Salig Ram and others were not possessed of any deadly weapon and that they did not cause any injury to any of the appellants. Therefore, from this aspect of the matter it is evident to us that the appellants had no right of private defence of property.

36. It will next be noticed that this right is a restricted one. The restrictions are mentioned in Section 99. Section 99 clearly lays down that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. This section further lays down that the right of private defence in no case extends to the inflicting of more Harm than it is necessary to inflict for the purpose of defence. In the present case the appellants or any of them did not go to the police station to obtain police help and thereby to stop Salig Ram and others from planting paddy in the disputed land. It is also obvious, that all the 10 appellants were armed with deadly weapons. On the other hand Salig Ram and others had no deadly weapon and they did not cause any injury to the appellants. The appellants just after coming to the disputed land opened assault. Four persons were shot down from a close range. In this way it is apparent to us that the alleged right of private defence of property was not exercised within the limit mentioned in Section 99 and taking into consideration Section 99 I.P.C. itself the appellants had no right of private defence because they did not have recourse to the public authorities.

37. The learned Counsel for the appellants referred to the cases of (1) Paras Ram v. Rex : AIR1949All274 Munshi Ram v. Delhi Administration AIR 1968 SC 702 : 1968 Cri LJ 806 (3) State of Bihar v. Nathu Pandey : 1970CriLJ5 . Suffice it to say that the facts of all these three cases are quite different from the facts of the present case as found by us above. Therefore, these cases are of no help to the appellants.

38. In the case of State of Bihar v. Nathu Pandey the case of Gurdattamal v. State of U.P. : AIR1965SC257 was distinguished. In our opinion the ratio in the case of Gurdattamal applies with more force than in the case before us.

39. In the case of Gurdattamal it was held that the accused appellants were in cultivatory possession of the plot. Gurcharan Lal the victim of assault (deceased), filed a civil suit which was decreed on 21-3-60 about 20 days before the date of occurrence. In the civil suit it was held that the two accused persons had failed to establish their possession. After this Gurcharan Lal obtained an order of relinquishment from the Colonization Officer. Thereafter Gurcharan Lal along with some other persons went to harvest the standing crop which had been sown some months before by the accused appellants. The police station was 2 miles from the plot in question. The accused appellants were armed with deadly weSs.apons, Gurcharan Lal and his companions were not armed with deadly weapons. Injuries were not caused to the accused persons. Gurcharan Lal had gone to harvest the standing crop with two police constables. This indicated that he wanted to cut the crop peacefully. In these circumstances it was held that the accused appellants had no right of private defence. It was further observed that the accused appellants had recourse to the protection of police authorities was also observed, 'Shooting at close range without warning would certainly be causing more harm than was necessary, in the circumstances of the case, to inflict for the purpose of private defence.' The Supreme Court affirmed the conviction of all the accused appellants.

40. The position that follows from the above is that there is absolutely no substance in any of the contentions of the learned Counsel for the appellants. The appellants constituted an unlawful assembly within the meaning of the term defined in Section 141 I.P.C., that they had no right of private defence of person or property and that each of the appellants is vicariously liable for the acts of his companions. In this aspect of the matter, we are of opinion that this appeal has no merits and there is absolutely no room for us to interfere with the order of conviction passed by the Sessions Judge. The appeal fails.

41. Appeal is dismissed and the order dated 3-11-1976 passed by the Sessions Judge Mainpuri convicting and sentencing the appellants for the various Offences is affirmed. The appellants are on bail to which they shall forthwith surrender and be taken into custody to serve out the sentence awarded to them by the Sessions Judge.


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