Holding

The Court held that the appellants, having no right to the land, were the aggressors and shared a common object of murderous assault, thus no right of private defence and liability under Sections 302, 324, 325 read with Section 149 IPC.

Summary

The appellants, eight brothers and relatives, disputed a strip of land owned by the deceased and, on 17 August 1982, armed themselves with axes and sticks, attacked the deceased and others, causing the deaths of two victims. The trial court convicted them under Sections 302, 324, 325 read with Section 149 IPC, but the High Court altered the view of the common object, holding it was only to cause injuries and granted them a defence of private property. On appeal, the Supreme Court examined whether the appellants had any right of private defence, whether the omissions in eye‑witness statements were material, and whether the unlawful assembly shared a common object of murderous assault. It found that the appellants had no title to the land, were the aggressors, and the evidence showed a common intention to commit murder, attracting Section 149 IPC. Consequently, the Court rejected the claim of private defence and upheld the convictions. The appeals were dismissed.

Issues considered

The appellants' entitlement to claim right of private defence of property or person despite lacking title to the disputed land.
Whether the unlawful assembly had a common object of murderous assault, thereby invoking Section 149 IPC.
Whether omissions in police statements of eye‑witnesses constitute material defects affecting conviction.
Whether all members of the assembly can be held liable under Section 302 read with Section 34 despite some using only sticks.
The correctness of the trial court's finding that the common object was limited to causing injuries.

Legislation cited

Code of Criminal Procedure, 1973s. 379
Indian Penal Code, 1860s. 103, s. 14, s. 147, s. 148, s. 149, s. 300, s. 302, s. 324, s. 325, s. 97
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970

Subjects

private defenceunlawful assemblycommon objectmurderSection 149 IPCland disputeevidence omissioneye‑witness testimonymurderous assault

Judgment

ANSARAM RAMBHAU YELVE AND OTHERS A
v.
STATE OF MAHARASHTRA

FEBRUARY 12, 1996

[M.K. MUKHERJEE AND B.N. KIRPAL, JJ.] B

Oiminal Law :

Indian Penal Code, 1860 : Sections 97 and 103.

Right of private defence-Land in dispute-Deceased-Exclusive owner C
thereof-Appellants-Had no right, title, interest or possession therein-At-
tached the deceased without any provocatiorr-Injuries sustained by accused,
minor and superfluous-Held: in the circumstances finding of the High Court
that the appellants were the aggressos and, therefore, they had also no right
of private defence of person was unexceptionable. D
Indian Penal Code, 1860 : Sections 302/149, 324/14 and 325/149-
Common object-Land in dispute-Deceased-Exclusive owner thereof-Ap-
pellants attacked the deceased with axes and lathies--Held: the circumstances
leading to the incident, the manner in which it took place, the weapons used
and the nature and number of injuries inflicted showed that the appellants E
had the common object of committing murderous assault.

Criminal Trial :

Eye witnesses-Presence of-Corroborated by their being named in
counter case-Injuries sustained by them-Supported probative value of their F
evidence-Omissions-In police statements-Held : not material for they
related to actual portions of the body where the accused inflicted the blows
and not their participation in the assault itself.

The appellants were convicted under Sections 302, 324 and 325 read G
with Section 149 of the Indian Penal Code, 1860 and sentenced to different
terms of imprisonment, including life and fine.

According to the prosecution, the appellants accused were real
brothers who owned a plot in the village. The adjoining land was owned by
the deceased, to the immediate west of which were strips of land owned by H
411
/

~
/'
\
412 SUPREME COURT REPORTS [1996] 2 S.C.R.

A P.W.1. In between these lands ran a small Nala, on the southern bank of
which there was a thick cactus growth. Even though the land under the .
Nala was exclusively owned and possessed by the deceased, the appellants-
.accused were disputing such a claim and they uprooted the cactus plants
and replanted them on the southern bank of the Nala, apparently for
extending the boundary of their land.
B
On the fateful day, when the deceased were engaged in removal of
the plants, the appellants came there variously armed. Reaching there they
surrounded the deceased and started beating them with their respective
weapons. They.raised alarms and hearing the same P.W.1, P.W. 2 and P.W.
C 8 who were present in their respective lands nearby rushed to the scene.
P.W.2 and·P.W.8 were also beaten up by the appellants. The deceased who
had in the meantime fallen down were then removed by the appellants to
the common bandh nearby where they were further assaulted resulting in
their instant death. A First Information Report was lodged on the basis of
information about the incident given by P.W.1.
D
On the basis of the evidence adduced on behalf of the prosecution,
the Sessions Judge came to the conclusion that the charges levelled against
the appellants - accused were fully established. This finding was upheld by
the High Court. '
E
In the appeal before this Court, on behalf of the appellants it was
contended that there were quite a few omissions in the police statements
of the eye witnesses as regards the individual role played by the appellants
in the assault; that all of them could not be held liable under Section 302
read with Section 34 of the Indian Penal Code, 1860 as some had only used
F sticks; and that they were entitled to right of private defence of prope~.

On behalf of the respondent it was contended that the High Court
was right in convicting the appellants; and that since the land under the
Nala belonged to the accused in which they had no right, title or interest,
G they were not entitled to any right of private defence of property.

Dismissing the appeal, this Court

HELD: 1.1.The deceased were the owners and in possession of the
land under Nala and that the appellants had no right, title, interest or
H possession therein it must be held that the appellants were not .entitled to
AR. YELVEv. STATE 413

any right of private defence of property. The claim of P.W. 1 to 3 and P.W. A
11 that they had witnesses the incident stands corroborated by the fact
that they were named as the rioters in the counter case. The fact that
P.W.11 and P.W.2 sustained injuries in the incident also goes a long way
in support of the probative value of their evidence. The evidence of P.W.s.
1 to 3 and P.W. 11 unmistakably proves that the appellants had come to B
the field armed with axe arid lathies and attacked the complainant party
without any provocation whatsoever. When their evidence is read
alongwith the medical evidence that the injuries sustained by the four
accused were minor and superfluous, it cannot but be said that the finding
of the High Court that the appellants were the aggressors and therefore,
they had also no right of private defence of person is on.exceptionable. C
Lakshmi Singh v. State of Bihar, AIR (1976) SC 3263 and Ramlagan
Singh v. State of Bihar, AIR (1972) SC 2573, referred to. [420-D-F]

1.2. It is evident from the circumstances leading to the incident, the
manner in which it took place, the weapons used and the nature, number D
and location of the injuries inflicted upon the two deceased that, the
appellants had come to the field with the common object of committing
murderous assault. [420-G-H]

2.1. The omissions in the police statements of the eye-witnesses are
not material omissions, for they related only to the actual portions of the E
body where the individual appellants inflicted the blows and not to tl~eir
participation in the assault itself. [421-B]

2.2. The evidence on record clearly shows that it was only after the
two deceased were assaulted with axes by the two appellants that the other F
appellants started beating them with lathis resulting in a number of
injuries, which according to the doctor could be caused thereby, including
fractures; and that clearly indicates that also wanted to ensure their
deaths. [421-D-E]

CRIMINAL APPELLATE JURISDICTION Criminal Appeal G
Nos. 822A-825 of 1985.

From the Judgment and Order dated 22/24.8.85 of the Bombay High
Court in Crl. A. Nos. 85, 96 and 137/83 and Crl. R.A. No. 100 of 1985.

Uday U. Lalit and Satish Vig for the Appellants. H
/

414 SUPREME COURT REPORTS [1996] 2 S.C.R.

A D.M. Nargolkar for the Respondents.

The Judgment of the Court was delivered by

M.K. MUKHERJEE, J. Eleven persons, including the eight appel-
B !ants in these appeals,were indicated before the Sessions Judge, Beed in
Sessions Case No. 82 of 1982 for rioting and murders and other allied
offences in prosecution of their common objects. The trial ended with an
order of conviction and sentence under Sections 325/149, 324//149, 323/149,
147 and 148 IPC recorded against all of them and also under Section 304
(Part I) IPC against two of them namely, Bajirao and Dagdu and of
C acquittal in favour of the other three. The cross case instituted against some
of the witnesses of the above trial and others, for rioting and assault, which
was also tried "by the Sessions Judge (Sessions Case No. 9 of 1983) however
---
ended in an order of acquittal or all the persons arraigned. Against their
convictions and sentences the appellants preferred two appeals - one by
D Bajirao and Dagdu and 'the other by the rest. The respondent-State of
Maharashtra also preferred an appeal against the acquittal of the appellant
in respect of the charge under Section 302/149 IPC. A revision petition
assailing the acquittal of the accused ·persons in the cross case was also
filed by the appellant Ansaram. All the above matters were heard together
by the High Court and disposed of by a common judgment by allowing
E the appeal of the State and dismissing the other two appeals and the
criminal revision petition. While allowing the appeal of the State, the High
Court convicted all the appellants under Section 302/149, 325/149, 324/149
IPC and sentenced them to different terms of imprisonment, including life,
and fine, with a direction that the substantive sentences shall run concur-
F rently. The High Court also convicted five of the appellants under Section
148 IPC and the other three under Section 147 IPC but no separate
sentence was passed for these convictions. The present appeals have been
filed by the appellants, in different sets, under Section 379 Cr. P.C. and
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970, assailing the above judgment of the High Court.
G
We may at the outset point out that Mr. Lalit, the learned counsel
appearing on behalf of the appellants fairly conceded that one of these
appeals, namely Criminal Appeal No. 825 of 1985 which has been filed by
the appellant Ansaram challenging the dismissal of his revision petition
H against the order of acquittal in the cross case could not have been filed
AR. YELVE v. STATE [M.K. MUKHERJEE, J.] 415

either under Section 379 Cr. P.C. or Supreme Court (Enlargement of A.
Criminal Appellate Jurisdiction) Act, 1970. We, therefore, dismiss
Criminal Appeal No. 825 of 1985 as not maintainable.

Before we proceed to consider the facts on which the parties have
jointed issue, we may refer to those which remain uncontroverted. The
appellants Bajirao, Ansaram, Dadarao, Sarjarao and Haribhau are real B
brothers being sons of late Rambhau Yelve. Of the other three appellants,
Dagdu is the son of Haribhau, Mantaram is the son of the moi:her's sister
of Bajirao and Achit is the servant of Dadarao. The sons of Rambhau
(hereinafter referred to as the 'Yelves') own Survey No. 313 of village
Gujarwadi. To the adjoining north of this land is Survey No. 312, the C
eastern most strip of which measuring 100' x 40' was jointly owned by Gana,
his son Sopan (the two deceased) and Nivrutti (P.W.11), nephew of Gana.
To the imi:nediate west of that strip of land are the strips of Dagdu,
Devaibai and Vithal (P.W.1), in that order. Vithal also owns a small strip
of land adjoining Gana's land on the north. In between the lands of Yevles D
and Gana runs a small Nata which is about 10 feet wide. On the southern
bank of the Nata, that is, on the northern bank of the land of the accused
there is a thick cactus growth.

According to the case of the prosecution even though the land under
the Nata was exclusively owned .and possessed by Gana, his son and E
nephew the accused persons were disputing his such claim and on August
14, 1982 they uprooted cactus plants along 12 test and replanted them on
the southern bank of the Nata, apparently for extending the boundary of
their land.
F
The prosecution version as regards the incident of the murderous
assault is that on the following day, that is, on August 17, 1982 at or about
7 AM. Gana, Sopan and Nivrutti (P.W. 11) went to their land to see the
damage done by the accused persons on the previous day. While they were
engaged in inspecting removal of the plants, the accused persons came
there variously armed. While five of them (who are amongst the appellants G
herein) were armed with axes the rest were armed with sticks. Reaching
there they surrounded Gana and Sopan and started beating them with their
respective weapons. The two victims raised alarms and hearing the same
Vithal (P.W. 1), Jalinder (P.W. 2), Narayan (P.W. 3), Eknath, Devaibai and
Appa who were present in their respective lands nearby rushed to the H
416 SUPREME COURT REPORTS [1996] 2 S.C.R.

A scene. Three of them, namely, Nivrutti, J alinder and Eknath were also
beaten up by the accused. Gana and Sopan who had in the meantime fallen
down on the bed of the Nata were then removed by the accused to the
common bandh nearby where they were further assaulted resulting in
instant death of Sopan and death of Gana a few hours later. Information
about the incident was given to the police by Vithal (P.W. 1) and on that
B information a case was registered against the accused persons which ul-
timately ended in a chargesheet.

The accused persons pleaded not guilty to the charges levelled
against them and their defence was, as it can be gathered from the First
C Information Report lodged by appellant Ansaram (which gave rise to the
cross case), the statement made by them in their examination under Section
313 Cr. P.C. and the suggestions put to the prosecution witnesses, that the
Nata in question did not exclusively belong to the deceased but was in
possession of both the parties. On August 16, 1982 the two deceased and
D Nivrutti had tried to uproot the cactus plants from the boundary of their
land, but owing to the resistance offered by the servants and the ladies of
their household they had fled away. As regards the incident of August 17,
1982 their version was that the appellants Bajirao and Ansaram had gone
to their field to see the damage done to their cactus growth and the
appellants Dagdu and Achit had taken bullocks to the field for grazing.
E Reaching their they found Gana, Sopan, Nivrutti, Eknath and Julinder
present in their land armed with axes and Gana cutting cactus from the
boundary of their land. When Bajirao. remonstrated with Gana as to why
he was cutting the cactus the latter threatened them with dire consequen-
ces. Thereupon Gana and Sopan started assaulting Bajirao and Ansaram
F with axes. When the other two appellants present their rushed to their
rescue Sopan, Eknath, Nivrutti and Julinder joined Gana in the assault. In
the melee that ensued Bajirao and Dagdu snatched the axes from the hands
of Eknath and Nivrutti threw them there and straigtht away went to the
police station where Ansaram lodged information. The other four appel-
lants denied there presence at the time of the incident and contended that
G they had been falsely implicated.

On consideration of the evidence adduced during trial learned trial
Judge held that the bed of the Nala along its entire width belonged to and
was in actual possession of the two deceased only and that the appellants
H had nothing to do with it. Regarding the incident of August 16, 1982 the
I

i
AR. YELVE v. ST ATE (M.K. MUKHERJEE, J.] 417
(
learned Judge held that the appellants had tried to uproot a part of their A
own cactus growth and shifted it towards the north, So far as the main

---. incident of August 17, 1982 was concerned the learned Judge held that the
appellants had formed themselves into an unlawful assembly to prevent the
two deceased and their party from restoring the previous position of the
cactus growth and, therefore, it could only be said that common object of
B
that assembly was to cause injuries and not to commit murder. In negativ-
ing the plea of right of private defence claimed by the appellants the
learned Judge observed that neither side had presented the true version of
the incident before the Court. In conclusion the learned Judge constructed
his version of the incident which is reproduced below :
c
"It is therefore on the basis of the above discussion it is acceptable
that the eight accused Nos. 1 to 4 and 7 to 10 (the appellants) had
participated in this maramari. They had gone there to see that the
deceased do not uproot the cactus. Hence they had assembled
there for this purpose. When the deceased and other came there D
., was a verbal altercation. So at this time these accused persons
would have the common object of preventing Gana or Sopan from
uprooting the cactus. Thereafter the exchange of words developed
into Maramari. Thus these accused had participated in the
Maramari with an object to prevent Gana and Sopan from uproot-
ing the cactus. Thus it can be accepted that the assembly had E
assaulted Gana, Sopan, Nivrutti, Eknath and Jalinder to prevent
them from uprooting the cactus. It can also be accepted that the
injuries to these five injured persons were caused by the members
of this unlawful assembly while trying to achieve their object of
preventing Gana and Sopan from uprooting the cactus. Also from F
the earlier discussion it can be accepted that initially only the
Maramari with sticks took place. Therefore from these circumstan-
ces accused can be accepted to have the common object of the
" assembly of beating with sticks and causing injuries with sticks. It
can therefore, be accepted that when Gana. Sopan Nivrutti, Eknath
and Jalinder resisted and had also caused injuries to accused Nos. G
.... 1 to 4 including injuries with sharp edged weapon, the accused
Nos. 1 to 3 used axes. Hence under these peculiar circumstances
it is difficult to accept that the common object of the assembly was
to cause injuries which would be sufficient in normal course of
nature to cause death. This is made more clear because only one H
J
418 SUPREME COURT REPORTS [1996) 2 S.C.R.

A incised injury is caused to Gana and only the incised injuries are
caused to Sopan on his head. One incised injury is caused to the
area of Sopan. This therefore, makes out that the intention of the
common object of the assembly could not have been to cause death
-·-
of Sopan or Gana otherwise there would have been numerous
incised injuries."
B
In disagreeing with the ultimate order of the trial Judge the High
Court first referred to the patent legal infirmities appearing therein. It first
pointed out that not only the conviction recorded against all the appellants
both under Sections 147 and 148 IPC was legally impermissible but the
C learned Judge did not even care to ascertain whether a particular appellant
was carrying a deadly weapon before invoking the later Section. The High
Court then noticed that the trll;il Judge had given the benefit of the Fourth
Exception to Section 300 IPC to appellants Bajirao and Dagdu in utter
disregard of the provisions thereof and made the foJlowing observations :
D
"On reading it, even a laymen would realise that for attraction of
the exception a number of conditions must be fulfilled. The death
ought to be caused in a sudden fight, without premeditation, in the
heat of passion, upon a sudden quarrel. Then the offender should
not have taken any undue advantage or acted in a cruel or unusual
E manner. We may repeat that the two deceased had each sustained
more than a dozen of injuries. It is common ground that the dispute
between the two sides over the Nala, had been smouldering for a
number of years. The learned Judge expressly holds that the
accused persons had appears on the scene of 17th with the avowed
F object of resisting by force any atte~pt ~n the part of Gana and
party to restore the cactus hedge to the original place. It is difficult .
to appreciate how a fight arising in these circumstances could be
· legitimately termed as a fight without premeditation or in a heat '
of passion or upon a sudderi quarrel."
G
The High Court next held that the appreciation of the evidence by the trial
Judge was, to say the least, superficial and ambivalent and to draw such
conclusions it referred to various observations made by him. The High
Court then proceeded to discuss the evidence and on such discussion held
H that the finding of the trial Court that the land under the Na/a exclusively
AR. XELVE v. STATE [M.K. MUKHERJEE, J.] 419

belonged to and was in possession of Gana and that the appellants had no A
right to it, possessory or proprietory was correct and, consequently the
appellants had no right of private defence of property. The next question
which the High Court posed for an answer was whether the appellants
could claim right of private defence of their persons in the context of the
fact that four of them had sustained some injuries in the incident. To
B
answer this question the High Court discussed the evidence of the eye
witnesses and held that having regard to the fact that on August 16, 1982
the accused persons had uprooted the cactus and thorny fencing, it was
evidence that their object was to consolidate the encroachment on Gana's
land right upto northern bank. Judged in that background, it could be
safely concluded that when on the following day they came armed with axes c
and sticks and inflicted 40 injuries on their adversaries, they were the
aggressors. As regards the injuries found on the person of the accused the
High Court observed that they were minor and superficial and the evidence
on record was so clear and cogent to prove that the appellants were the
aggressors that it far outweighed the effect of the omission on the part of D
the prosecution to explain the injuries. In making the above observations
the High Court drew inspirations from the judgment of this Court in
Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263 and Ramlagan Singh
v. State of Bihar, AIR 1972 SC 2573. Lastly the High Court took up the
question as to what was the common object of the unlawful assembly which
caused the death of Gana and Sopan and injured others. The finding of E
the High Court in this regard is as under :

"The extent of violence indulged in by them and the damage
brought on Gana and party, leaves no doubt about the common
object of the Assembly. Needless to says, it was to commit mur- F
derous assault on Gana and his associates. The lower Court has
resorted to a strange reasoning for its conclusion that the common
! object was restricted to causing ordinary injuries only. The learned
judge observes that had the accused persons really intended to
commit murderous assault, then they would not have spared lives
of Jalinder, Eknath, Nivrutti, Vithal, his brother MU:nja, Devaibhai · G
and others who had come to the rescue of the deceased. The
learned Judge also feels that if the common object was to commit
murrier the assailants would have dealt greater number of axe
blows on the heads of the deceased and other victi~s of assault.
We cannot persuade ourselves to endorse this queer reaspning. H
420 SUPREME COURT REPORTS [1996] 2 S.C.R.
J I
~
A The learned Judge is pegging his standards too high, when he
thinks that the assembly would have killed alt the eight persons or
at least used their axes more liberally than they actually did, if the
common object was to mount a murderous assault: We reiterate
our finding that the performance of the assembly is spectacular
enough to credit them with the common object of committing
B murderous assault. As the barest minimum, the members did know
that it was quite likely that in a:n assault by a group of eight armed
with axes and sticks, the offence or murder could be committed. ·
The latter part of Section 149 IPC also stands squarely attracted."

C We have heard the learned counsel appearing for the parties and
have considered th~ judgments in the light of the evidence on record. In
view of the concurrent findings of the learned Courts below, that the
deceased were the owner and in possession of the land under the Na/a and
that the appellants had no right, title, interest or possession therein it must
D be held that appellants were not entitled to any right of private defence of
property. As regards the manner in which the incident took place the
prosecution rested its case upon the evidence of Vithal (P.W. 1), Jalinder
(P.W. 2), Narayan (P.W. 3), Eknath, Nivrutti, (PW. 11). Their claim that
they had witnessed the incident stands corroborated by the fact that they
were named as the rioters in the counter case. The fact that Nivrutti
E
(PW-11), and Jalinder (PW 3) sustained injuries in the incident also goes
a along way in support of the probative value of their evidence. Their
evidence unmistakably proves that the appellants had come to the field
armed with axe and lathis and attacked the complaintant party without any
provocation whatsoever. When their evidence is read alongwith the medical
F evidence that the injurious sustained by the four accused were minor and
superfluous, it cannot but be said that the fmding of the High Court that
the appellants were the aggressors and therefore, they had also no right of
private defence of person is unexceptionable.

G Coming now to the question as to what was the common object of
the unlawful assembly it is evident from the circumstances leading to the
incident, the manner in which it took place, the weapons used and the
natiire, number and location of the injuries inflicted upon the two deceased
that the appellants had come to the field for murderous assault. The High
H Court was, therefore, fully justified in reversing the finding of the trial
AR. YELVE v. STATE [M.K. MUKHERJEE, J.] 421

Court in this regard and holding that the appellants shared such a common A
object.

Mr. Lalit brought to our notice quite a few omissions in the police
statements of the eye witnesses as regards the individual role played by the
appellants in the assault. Having carefully gone through those omissions we ...
are unable to hold that they are material omissions, for they related only B
to the actual portions of the body where the individual appellants inflicted
the blows and not to their participation in the assault itself. Mr. Lalit also
strenuously argued before us that even if the entire prosecution case was
accepted that appellants Bajira:o and Dagdu who assaulted the deceased
with axes could be held liable under Section 302 read with Section 34 of C
the Indian Penal Code for they might have the common intention to cause
the death of the two victims but it could not be said that all the members
of the unlawful assembly shared such a common object as they had only
used sticks for which they could be liable under Section 325 or 323 IPC
with the aid of Section 149 IPC. We do not find any substance in this
contention for the evidence on record clearly shows that it was only after D
the two deceased were assaulted with axes by the two appellants that the
other appellants started beating them with lathis resulting in a number of
injuries, which according to the doctor could be caused .thereby, including
fractures; and that clearly indicates that they also wanted to ensure their
deaths. E
On the conclusions as above we do not find any merit in these
appeals, which are accordingly dismissed. The appellants, who are on bail,
will now surrender to their bail bonds to serve out the remainder of the
sentence.

v.s.s. Appeals dismissed.