THAMMU PANDURANGA RAO & ANR.versusSTATE OF ANDHRA PRADESH

                         [2013] 5 S.C.R. 455


              THAMMU PANDURANGA RAO & ANR.                             A
                                  v.
                  STATE OF ANDHRA PRADESH
                (Criminal Appeal No. 1132 of 2009)
                           APRIL 26, 2013
                                                                       8
             [P. SATHASIVAM AND M.Y. EQBAL, JJ.]

        Penal Code, 1860 :

        ss.304 (Part If), 323 and 325 - Prosecution for causing        c
    death and injuries - Conviction by trial court u/ss. 304, 323
    and 325 - High Court modified the conviction u/s. 304 to 304
    (Part If) and reduced the sentence - On appeal, held: High
    Court order passed after proper analysis of the evidence -
    Hence does not calf for interference - High Court order upheld.    0
          s.97 - Right to private defence - Exercise of- Held: Right
    to private defence should be used only as a shield to avert
    an attack ~ It should not be vindicitve and cannot be used to
    retaliate - It ca'!not be exercised for causing more harm than
    necessary.                                                         E

    The appellants-accused Nos.1 and 2 alongwith other
3 accused, were prosecuted for causing death of one and
causing injuries to two (i.e. PWs 1 and 2). Appellants-
accused (A-1 and A-2) were convicted by the trial court.               F
A-1 was convicted u/s. 304 and 323 IPC and was
sentenced to 10 years RI and six months RI respectively.
A-2 was convicted u/s. 304 and 325 IPC and was
sentenced to 10 years RI and fine of Rs.500/- with default
clause. High Court partly allowed the appeal of the                    G
appellants, converting their conviction u/s.304 IPC to
conviction u/s. 304 (Part 2) IPC and reducing their
sentence of 10 years RI to 3 years.

I
                                  455                                  H
    456      SUPREME COURT REPORTS            [2013] 5 S.C.R.


A        In appeal to this Court, the appellants-accused inter
    alia contended that they had inflicted the injuries, in
    exercise of right to private defence.

          Dismissing the appeal, the Court
B     HELD: 1. It is the cardinal principle of law that
  everyone has a right to defend his own person and
  property but the right of private defence cannot be
  exercised for causing more harm than necessary or for
  taking revenge. Such right of private defence must be
C used as a shield to avert an attack and it should not be
  vindictive and cannot be used to retaliate. In no case, the
  right of private defence extends to the inflicting of more
  harm than it is necessary to inflict, for the purpose of
  defence. [Para 1O] [464-E-G]
D
         2. On analysis of the evidence on record, it is clear
    that appellant No.1 (A-1) beat PW-1 (son of the deceased)
    on his right wrist with a stout stick with the result his
    hand broke. A-5 also beat him on the right side of the
E   neck with a stout stick. Then the deceased interfered. He
    tried to rescue his son. Then A-1 gave a blow on his head
    with stout stick and caused a bleeding injury. To rescue
    the deceased, PW-2 (wife of deceased) interfered; then
    A-1 and A-4 beat her with sticks on her hands and back
    and caused injuries. Though the deceased was already
F   beaten on his head, when his wife was being beaten by
    A-1 and A-4, he again mustered his strength and tried to
    interfere, when A-2 poked with a stick on his abdomen
    and A-3 beat him with a stick on his back and gave two
    blows. In fact the deceased in his statement before the
G   Police under Ex.P-20 said that A-2 did not simply poke
    in his abdomen by the side of his naval with a stick but
    in fact he pounded at his abdomen with the stick. In fact
    this was the injury that led to the death of the deceased
    because the intestines were ruptured and bleeding took
H   place internally and serious damage was caused to the
THAMMU PANDURANGA RAO & ANR. v. STATE OF 457
           ANDHRA PRADESH
vital organs inside and caused the death of the deceased.        A
[Para 11] [464-G-H; 465-A-D]

     3. The High Court has fully gone into the evidence
of the witnesses examined and injuries sustained by the
deceased and PW-2, and came to the conclusion that the B
cumulative effect of the injuries led to the death of the
deceased and appellant No.1 being the person, who
participated in the commission of the offence, was also.
having common intention to attack the deceased.
However, the High Court in the facts and circumstances
of the case modified the order of the conviction and C
sentence. In view of the facts and circumstances of the
case and the evidence available on record, there is no
reason to interfere with the impugned judgment of
conviction and sentence passed by the High Court.
[Paras 12 and 13] [465-0-G]                               D

    CRIMINAL APPELLATE JURISDICTION : CRIMINAL
Appeal No. 1132 of 2009.

    From the Judgment and Order dated 09.10.2007 of the          E
High Court of Judicature, Andhra Pradesh at Hyderabad in
Criminal Appeal No, 1187 of 2002.

    Venkateswara Rao Anumolu, Prabhakar Parnam for the
Appellants.
                                                                 F
    Shishir Pinaki, D. Mahesh Babu, Suchitra Hrangkhawl,
Amjid Maqbool, Amit K. Nain, M. Bala Shivudu for the
Respondent.

    The Judgment of the Court was delivered by
                                                                 G
      M.Y. EQBAL, J. 1. The present appeal by special leave
is directed against the judgment and order dated 9th October,
2007 passed by the High Court of Judicature of Andhra
Pradesh partly allowing Criminal Appeal No. 1187 of 2002 filed
by the appellants herein (accused Nos. 1 and 2) by inter alia    H
    458     SUPREME COURT REPORTS                 [2013) 5 S.C.R.


A modifying the conviction of accused Nos. 1 and 2 for the
  offence under Section 304 IPC into conviction for the offence
  under Section 304(2) IPC and reducing the sentence of rigorous
  imprisonment of 10 years to three years in respect of both the
  accused and the sentence of rigorous imprisonment of four
B years for the offence under Section 325 IPC in respect of
  accused No. 2 to one year.

         2. The case of the prosecution which led to the conviction
    of accused Nos. 1 and 2 is that the deceased Boddu Maraiah
C   and accused No. 2 were having prior disputes between them.
    The son of said accused loved the daughter of the deceased.
    As the elders did not agree to the proposal, the deceased
    married his daughter to some other person. Even after her
    marriage, the son of accused used to go to her house and tried
    to create problems in her married life, because of which the
D   son of accused was beaten by the deceased and his family
    members which became the subject matter of a criminal case.
    Thus, it was alleged that there was inimical term between the
    two families. On 2.11.1_998 at about 5.30 p.m., while accused
    Nos. 1 to 5 (A-1 toA-5) (accused No. 4 is son of accused No.
E   2; accused No. 2 is the nearest relative of accused No. 1;
    accused No. 3 is his son; and accused No. 5 is a close relative
    of accused Nos. 1 to 4) were returning to their village after
    finishing their fishing work and when they reached near the
    cattle shed of the deceased, they heard PW-2 (wife of
F   deceased) abusing her cattle sarcastically. All are stated to be
    residents of Ramannamodi. The accused suspected that PW-
    2 was abusing them. On PW-2 being questioned by A-2 as to
    why she was abusing them, the deceased interfered and
    attacked A-2. A-1 also interfered and the deceased beat him
G   whereupon A-1 beat the deceased on his head with a stick and
    induced A-2 to A-5 to beat the deceased. A-2 beat the
    deceased by poking against his abdomen with stick near his
    naval, A-3 beat him on his back with a stick, A-1 and A-4 beat
    PW-2 with sticks and caused injuries and A-1 and A-4 beat
H   PW-1 (son of deceased) on his left hand wrist and on his neck
THAMMU PANDURANGA RAO & ANR. v. STATE OF 459
     ANDHRA PRADESH [M.Y. EQBAL, J.]
with sticks. After beating the deceased, PW-1 and PW-2, the         A
accused ran away from the place of occurrence. Later PW-1
went to police station and registered a complaint (Ex.P-13) and
a case under Section 324/34 IPC was started. The deceased,
PW-1 and PW-2 were sent to the Government Headquarters
Hospital, Machilipatnam. After the deceased succumbed to            B
injuries on 4.11.1998 in the hospital, the police altered the FIR
to Section 302 IPC and took up investigation, held inquest over
the dead body, observed the scene of offence, conducted
panchnama, got the post mortem examination done and after
receipt of post mortem report laid the chargesheet under            c
Section 302/34 IPC against A-1 and A-2, under Section 325
against A-2, under Section 323 against A-1, A-4 and A-5 and
under Section 114 against A-5. In support of its case, the
prosecution examined PWs 1 to 14, marked Exhibits P-1 to
 P-23 and also MOs 1 to 26. No defence witness was examined
                                                                    0
but Exhibits D-1 to D~9 were marked on their side.

     3. PW-9 Dr. K. Sanjeevarao who held inquest over the
dead body and issued post mortem certificate opined that the
deceased died of shock due to rupture of mesenteric vessel
and damage to the intestines. The doctor stated that the injuries   E
mentioned in the certificate would have been caused with sticks
like MOs1 to 5 and that the internal injuries 2 and 3 were
sufficient to cause the death in the ordinary course of nature.
The following external injuries were found on the dead body:
                                                                    F
      1.    A three sutured injury 1 Yz" in length on the right
            parietal region.

      2.    A blue black abrasion 3" x X" on the right shoulder.

      3.    A blue black abrasion 1" x X" over the left loin.       G

      4.    A black abrasion 1" x Yz " on the back of right
            lumber region.

      5.    A blue black abrasion 1 Yz " x 1" on the back and
            left lower part of the chest.                           H
    460      SUPREME COURT REPORTS                     [2013] 5 S.C.R.


A         4. On internal examination, the doctor found (1) about 2 %
    litre of blood present in the abdominal cavity and % litre of blood
    present in the pelvic cavity, hemoperitoneum present and all the
    intestines congested; (2) bluish contusion 6" x 1" on the middle
    third of small intestine; (3) the mesentance vessels ruptured and
B   the entire mesentery blood stained; (4) three bluish blood clots
    each 30 grams on the mecentary near the superior mesenteric
    artery; (5) all the internal organs like liver, both the lungs, spleen
    and both the kidneys congested; (6) the stomach empty and
    its mucosa congested; (7) the brain and its menings congested;
c   (8) hyoid bone intact; (9) urinary bladder and the gall bladder
    empty; and (10) the chambers of the heart empty. The doctor
    opined that the deceased appeared to have died of shock due
    to rupture of mesenteric vessels and contusion of the intestines
    and death would have been occurred within 24 hours prior to
    the post mortem examination and Ex.P-7 is the post mortem
0
    certificate he issued. The injuries mentioned in Ex.P-7 would
    have been caused with sticks like MOs.1 to 5 and that the
    internal injuries 2 and 3 are sufficient to cause the death in the
    ordinary course of nature.

E      5. As regards injuries to PW-1 and PW-2, PW-8 Dr. M.
  Polaiah who medically examined PW-1 and PW-2 stated in his
  deposition that he was of the opinion that injury No. 1 i.e.
  "Swelling deformity of lower third of left forearm. Tender"
  caused to PW-1 was grievous in nature and injury No. 2 i.e.
F "Abrasion of 1" x % " over the anterior of triangle of left side of
  neck. Bleeding present" was simple in nature and those injuries
  could have been caused with sticks. As regards injuries i.e.
  "Swelling deformity of left hand and Contusion of 1" x 2" over
  right shoulder blade", the doctor opined that the said injuries
G were simple in nature and could have been caused with sticks
  as alleged.

       6. The trial court on consideration of testimony of the
  witnesses held that a case has been made out against A-1 and
  A-2 (appellants herein) finding them guilty for-the offences under
H Sections 304/34, 324/34 and 325 IPC. Accordingly, they were
  THAMMU PANDURANGA RAO & ANR. v. STATE OF 461
       ANDHRA PRADESH [M.Y. EQBAL, J.]

  convicted for the offence under Section 304 IPC and sentenced        A
  to undergo rigorous imprisonment for 10 years and in default
  to suffer simple imprisonment for three months. A-1 was further
  convicted for the offence under Section 323 IPC and sentenced
  to undergo rigorous imprisonment for six months. A-2 was
  further convicted under Section 325 IPC and sentenced to             B
  undergo rigorous imprisonment for four years and also to pay
  a fine of Rs.500/- and in default to suffer simple imprisonment
  for two months, A-4 and A-5 were sentenced to pay fine of
  Rs.1,000/- each, in default to suffer simple imprisonment for
  two months. All the sentences imposed on respective accused          c
  were directed to run concurrently. A-3 had died on 5.12.1998
  due to ill health while under judicial custody. In arriving at its
  conclusion as regards conviction and sentence of A-1 and A-
  2 {appellants herein), the trial court gave the following
. reasoning:                                                           D
      "21 ...... The oral evidence and medical evidence on
      record clinchingly proved that on account of injuries caused
      by A-1 and A-2 the deceased died, especially the injuries
      caused by A-2. But the common intention of A-1 and A-2
      in beating the deceased is clear. Whether they intended          E
      to kill him is doubtful, though PW-1 stated in his evidence
      that the accused uttering 'SACHADU NA KODUKU' went
      away because that material aspect was not mentioned by
      him in Ex.,_ P-1 or he stated the same before the Police.
      The deceased also did not mention in Ex.P-20 that the            F
      accused left the scene of offence uttering so. Therefore,
      the -intention to cause death to the deceased on the part
      of A-1 and A-2 cannot be inferred from the circumstances
      but the subtle situation led each party to self provocation.
      Consequently A-1 and A-3 beat the deceased as well as            G
      PWs-1 and 2. In fact on both sides there was no intention
      or preparation for the quarrel. It was a sudden and
      unexpected quarrel that arose on account of bitter enmity.
      Passions roused on seeing each other. Both sides
      plunged into a free fight. So it can be safely held that A-1     H
    462         SUPREME COURT REPORTS              [2013] 5 S.C.R.


A       and A-2 in furtherance of common intention beat the
        deceased Maraiah which injuries caused his death in the
        ordinary course of nature. It cannot be held that they have
        committed the offence u/s 302 r/w section 34 IPC, but they
    · ' have committed an offence punishable u/s 304 r/w section
B       34 1PC, in other words culpable homicide not amounting
        to m;.:rder.

          22. . . . it has been established beyond doubt that on
          account of the injury caused by A-1, the left hand of PW-1
          was broken. Not only a reading of Ex.P-1 but also a
c         reading of Ex.P-20 coupled with the oral and medical
          evidence on record this offence against A-1 u/s 325 IPC
          has been established.

          xxx    xxx                  xxx
D
          24. It is the case of the prosecution that A-1 and A-4 beat
          PW-2 and caused her two simple injuries with sticks. PW-
          2 received injuries on her left hand and right shoulder
          blade. The evidence of PW-8 and the wound certificate Ex.
          P-6 corroborates the evidence of PW-1 and PW-2. In Ex.
E
          P-1 and P-20 also these injuries caused to PW-2 were
          attributed to A-1 and A-4. Thus, it has been established
          by the prosecution that A-1 and A-4 beat PW-2 and
          caused injuries to her by beating with sticks punishable u/
          s 323 IPC."
F
       7. Aggrieved by the judgment of the trial court, A-1 and A-
  2 (appellants herein) preferred an appeal before the High Court
  and contended that as their guilt was not proved beyond all
  reasonable doubt, their conviction and sentence ought to be set
G aside. The High Court after going through the entire material
  on record held that the lower court gave sufficient reasons as
  to why the respective accused were convicted for the offences
  under various Sections of IPC; cumulative effect of the injuries
  led to the death of the deceased and A-1 being the person who
H participated in the commission of the offence was also having
THAMMU PANDURANGA RAO & ANR. v. STATE OF 463
     ANDHRA PRADESH [M.Y EQBAL, J.]
common intention to attack the deceased; there was no ground       A
to interfere with the conviction of the accused for the offences
under Sections 304, 325 and 323 IPC; and conviction under
Section 304 could be brought under Section 304(2) IPC and
accordingly modified the same. After taking into consideration
the motive behind the incident, the nature of weapons used and     B
the circumstances, the High Court was of the view that the
accused did not use sharp edged weapons to kill the
deceased but they caused injuries with a knowledge that they
are likely to cause the death. In the result, the appeal of A-1
and A-2 (appellants herein) was partly allowed by the High Court   c
as mentioned hereinbefore. Finally the High Court held:-

          "By taking into consideration the motive behind the
    incident, the nature of weapons used and the
    circumstances explained by the learned defence counsel, ·
    I am of the view that the accused did not use sharp edged D
    weapons to kill the deceased, but they caused injuries with
    a knowledge that they are likely to cause the death. As the
    offence under Section 304 l.P.C. was brought under
    Section 304(2) 1.P.C., the sentence of imprisonment
    imposed on the accused is excessive. Therefore, I am E
    inclined to reduce the sentence imposed against the
    accused for the offence under Section 325 l.P.C.
    Therefore, the sentence imposed against Accused No.2
    for the offence under Section 325 l.P.C. is reduced.
                                                                F
           In the result, the appeal is allowed in part. The
    conviction of Accused Nos. 1 and 2 for the offence under
    Section 304 1.P.C., is modified into conviction for the
    offence under Section 304(2) l.P.C. Regarding Rigorous
    Imprisonment, it is reduced to rigorous Imprisonment of G
    three years to each of the accused. The fine and default
    sentence remain un-altered. The conviction of Accused
    No.1 for the offence under Section 323 1.P.C., and the
    sentence of Rigorous Imprisonment for six months is
    confirmed. Conviction of Accused No.2 for the offence
    J.mder Section 325 l.P.C., is confirmed, but the sentence H
    464      SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A         of rigorous imprisonment of four years is reduced to
          Rigorouos Imprisonment of one year. The fine amount
          remains un-altered. All the sentences of imprisonment
          against each of the accused shall run concurrently."

       8. Mr. Venkateswara Rao Anumolu, learned counsel
8
  appearing for the appellants assailed the impugned judgment
  of the High Court mainly on the ground that the conviction and
  sentence cannot be sustained as the injuries were inflicted by
  the appellants while exercising their right of private defence.
  Admittedly, the accused -appellants were on inimical terms with
C the deceased and the witnesses. Learned counsel drew our
  attention to the injuries sustained by the parties and the report
  of the doctor and submitted that in the facts and circumstances
  of the case, the impugned judgment of conviction is liable to
  be set aside.
D
       9. Mr. Shishir Pinaki, learned counsel appearing for the
  respondent, on the other hand, submitted that the evidence of
  the prosecution witnesses including the injured witnesses and
  the injuries inflicted on the deceased completely ruled out the
E application of right of private defence.

       10. It is the cardinal principle of law that everyone has a
  right to defend his own person and property but the right of
  private defence cannot be exercised for causing more harm
  than necessary or for taking revenge. Such right of private
F defence must be used as a shield to avert an attack and it
  should not be vindictive and cannot be used to retaliate. In no
  case the right of private of defence extends to the inflicting of
  more harm than it is necessary to inflict for the purpose of
  defence.
G
        11. From analyzing the evidence on record which has
  already been noticed by the trial court, it is clear that appellant ·
  No.1(A-1) beat PW-1 on his right wrist with a stout stick with
  the result his hand broken. A-5 also beat him on the right side
H of the neck with a stout stick. Then the deceased interfered.
THAMMU PANDURANGA RAO & ANR. v. STATE OF 465
     ANDHRA PRADESH [M.Y. EQBAL, J.]
He tried to rescue his son. Then A-1 gave a blow on his head      A
with stout stick and caused a bleeding injury. To rescue the
deceased, RW-2 interfered; then A-1 and A-4 beat her with
sticks on her hands and back and caused injuries. Though the
deceased was already beaten on his head when his wife was
being beaten by A-1 and A-4, he again mustered his strength       B
and tried to interfere when A-2 poked with a stick on his
abdomen and A-3 beat him with a stick on his back and gave
two blows. In fact the deceased in his statement before the
Police under Ex.P-20 said that A-2 did not simply poke in his
abdomen by the side of his naval with a stick but in fact he      c
pounded at his abdomen with the stick. In other words, iri
vernacular 'KULLA BODICHI NADU' in fact this is the injury that
led to the death of the deceased because the intestines were
ruptured and bleeding took place internally and serious
damage was caused to the vital organs inside and caused the       0
death of the deceased.
     12. The High Court has fully gone into the evidence of the
witnesses examined and injuries sustained by the deceased
and PW-2 and came to the conclusion that the cumulative effect
of the injuries led to the death of the deceased and appellant    E
No.1 being the person, who participated in the commission of
the offence, was also having common intention to attack the
deceased. However, the High Court in the facts and
circumstances of the case modified the order of the conviction
and sentence.                                                     F
    13. Considering the entire facts and circumstances of the
case and the evidence available on record, we do not find any
reason to interfere with the impugned judgment of conviction
and sentence passed by the High Court.
     14. For the reasons aforesaid, there is no merit in this G
appeal, which is accordingly dismissed. The bail bonds of the ·
accused-appellants stand cancelled. They shall surrender
forthwith to serve out the remaining period of the sentence.

K.K.T.                                     Appeal dismissed.      H