- (1.) In this appeal by special leave directed against the order of the Andhra Pradesh High Court, the only question canvassed on behalf of the appellants before us relates to the plea of private defence raised by them at the trial. The appellants who are ten in number were tried on as many as 22 charges by the Court of Additional Sessions Judge, Masulipatam and acquitted of all the charges. On appeal by the State against their acquittal there was a difference of opinion between the two Judges of the High Court constituting the Division Bench hearing the appeal. Whereas Sharfuddin Ahmed, J., upheld the order of acquittal on the basis of the plea of private defence, Mohd. Mirza, J., was of the opinion that the prosecution case was proved by overwhelming evidence. The case was in consequence laid before Basi Reddy, J., as provided by Section 429, Criminal Procedure Code. That learned Judge accepted the prosecution case and convicted the appellants on some of the charges. He expressed his final conclusion thus: "I shall now indicate the charges upon which the accused should be convicted and the sentences that should be imposed: On charge No. 2, I would convict accused 1, 3 and 5 to 9 under Section 147, Indian penal Code and on charge No. 3 accused No. 2, 4 and 10 and sentence each of accused 1, 2, 3, 4 and 5 to pay a fine of Rs. 500/-, in default each to suffer six months' rigorous imprisonment. I would sentence each of accused 6 to 9 (who are farm servants) to pay a fine of Rs. 100/- in default to suffer two months' rigorous imprisonment. I would sentence accused 10 to suffer rigorous imprisonment for two years. 2. On each of charges Nos. 4, 5 and 6 which pertain to the three counts of murder, I would convict and sentence accused 10 to suffer imprisonment for life under Section 302, Indian Penal Code. 3. On charge No. 11, I would convict and sentence accused No. 10 to suffer two years' rigorous imprisonment under Section 326, Indian Penal Code for having caused grievous hurt to P. W. 6 by shooting at him with the gun. 4. On charge No. 22, I would convict accused 10 under Section 19 (a) of the Indian Arms Act and sentence him to suffer one year's rigorous imprisonment. I would direct all the sentences of imprisonment passed on accused 10 to run concurrently. I would uphold the order of acquittal on other charges. The net result will be that accused 10 will have to undergo imprisonment for life; accused 1 to 5 will each have to pay a fine of Rs. 500/-; and accused 6 to 9 will each have to pay a fine of Rs. 100/". The final order of the High Court on appeal followed the opinion expressed by Basi Reddy, J. The charges on which the appellants were convicted are these: ".... .... .... .... .... .... Secondly: that you accused Nos. 1, 3 and 5 to 9 along with accused Nos. 2, 4 and 10 at about 10 a. m. on 10-9-61 at the same place and in the course of the same transaction as set out in charge No.1 above, formed yourselves into an unlawful assembly, and in prosecution of the common object of such assembly viz., beating and killing the members of the party that came in support of the occupiers of Gabbilalakunta, committed an offence of rioting punishable under Section 147, Indian Penal Code and within my cognizance; Thirdly: that you accused Nos. 2, 4 and 10 along with accused Nos. 1, 3 and 5 to 9 at the same time and place in the course of the same transaction as set out in charge No. 2 above, were members of an unlawful assembly and did in prosecution of the common object of such assembly, viz., beating and killing the members of the party that came in support of the occupiers of Gabbilalakunta, did commit an offence of rioting and that at that time, the accused Nos. 2 and 4 were armed with deadly weapons to wit, 'spears' and the 10th accused was armed with a D. B. B. L. Gun and thereby committed an offence punishable under Section 148 of the Indian Penal Code and within my cognizance; Fourthly: that you accused No. 10 at the same time and place and in the course of the same transaction as set out in charge No. 2 above, did commit murder by intentionally or knowingly causing the death of Anne Ramarao, son of Seetha Ramarao of Atkur by shooting him with a D. B. B. L. gun and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance; Fifthly: that you accused No. 10 at the same time and place and in the course of the same transaction as set out in charge No. 2 above, did commit murder by intentionally or knowingly causing the death of Bodapati China Anjaiah S/o Danaiah of Mustabada by shooting him with a D. B. B. L. gun and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance: Sixthly: that you accused No. 10 at the same time and place and in the course of the same transaction as set out in charge No. 2 above, did commit murder by intentionally or knowingly causing the death of Boddapati Lakshmaiah S/o Kotaiah of Medaripalem, hamlet of Verdupavuluru by shooting him with a D. B. B. L. gun and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance: .. .. .. .. .. .. Eleventhly: that you accused No. 10 at the same time and place and in the course of the same transaction as set out in charge No. 2 above, voluntarily caused grievous hurt to Kolli Nagabhushanam, son of Venkaiah of Davajigudem by means of a D. B. B. L. gun an instrument for shooting and thereby committed an offence punishable under Section 326 of the Indian Penal Code and within my cognizance and that the said act having been done in pursuance of the common object of the unlawful assembly consisting of you all the accused herein, all of you are guilty of the offence under Section 326 of the Indian Penal Code read with Section 149, Indian Penal Code and within my cognizance, or alternatively under Section 326 read with Section 34, Indian Penal Code and within my cognizance; .. .. .. .. .. .. . Twentysecondly: that you accused No. 10 at about the same time and place and in the course of the same transaction as set out in charge No. 2 above, were armed with a D. B. B. L. gun without licence under the Indian Arms Act and thereby committed an offence punishable under Section 19 (e) of the Indian Arms Act and within my cognizance."
(2.) In this Court, as already observed, the appellants' learned Advocate confined his submission only to the question of right of private defence. According to the prosecution case there is a low lying area covering about 11 acres known as Gabbilalakunta (hereafter to be referred as the Kunta) about one mile away from Surampalli village but within its limits. This Kunta serving as a tank is fed by rain water. The village of Surampalli was a Mokhasa village in the erstwhile zamindari of Mirzapuram. Under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, the zamindari of Mirzapuram was taken over by the Government in 1950. As a result thereof the entire estate including Surampalli village and the Kunta became vested in the Government free from all encumbrances. This Kunta thus belonged to the Government. Some poor landless persons like P. Ws. 13 and 14, Shaik Madarsaheb and Kandavalli Anandam, began cultivating a part of this Kunta and started raising wet and dry crops. This started in the year 1953. Their occupation being unauthorised the Revenue Authorities collected penalty cist from the occupants. Accused Nos. 1 to 4, Gottipulla Venkatasiva Subbarayanam, Gottipulla Bapaiah, Gottipulla Seshaiah Gottipulla Subba Rao, who are the former Mokhasadars have their lands measuring about 80 acres to the south of the Kunta. There is a big tank called Erracheruvu located about three or four furlongs to the north of the Kunta. There are some channels through which water flows from this tank to various fields and one such channel serves to irrigate the field of the accused Nos. 1 to 4. According to the prosecution the lands of these accused persons should be irrigated by means of the channel running along the western side of the Kunta. According to the accused persons, however, their fields should receive water from the Kunta through sluices in its southern bund. In 1958 the Settlement Authorities registered the Kunta as a source of irrigation for an ayacut of 34 acres. Prior to that, sometime in August 1957, the occupiers of the Kunta had instituted a suit for injunction restraining accused Nos. 1 to 4 from interfering with the possession of the occupiers and also claiming damages on the allegation that the defendants had spoiled their crops and an interim injunction was actually granted on August 21, 1957.
(3.) Accused Nos. 1 to 4 also filed an application seeking to injunct the occupiers from opening the sluices (outlets) or making breaches in the bund of the Kunta during the pendency of the suit. On this application also the Court, by an order dated August 29, 1957, granted a temporary injunction in the following terms: "Pending disposal of this petition, the respondents are restrained from opening the sluices or outlets or cutting any breaches to the bund of the tank situated in S. No. 44 if there is any bund. ......." On February 3, 1960 the Court confirmed both the orders of injunction mentioned above. The land in the Kunta was not cultivated in the years 1958 to 1960 because of failure of rains. In June, 1961 cultivation was resumed by P. W. 13 and P. W. 14, along with four other persons, raising paddy crop in a part of the Kunta. Another part of the Kunta was prepared for raising jonna crop. The suit mentioned above was still pending when on September 4, 1961 it was adjourned to some other date. It rained heavily that night and the rain water collected in the Kunta. On the following morning when P. W. 13 and P. W. 14, along with some other occupiers passed by the side of the Kunta they saw a new bund raised on its western side so as to prevent the rain water collected therein from flowing westwards. This resulted in submerging the crop grown on the eastern portion of the kunta. The new bund was about 3' high, 2 1/2' wide and 25 yards in length. There being no one present at the bund P. Ws. 13 and 14 and their companions made a breach therein to let the water flow westwards. In the evening when they came back to the Kunta they found that the breach in the bund had been repaired and the bund restored to its original position. There were also two improvised huts set up to the south of the bund and all the ten accused were present keeping a watch. The occupiers pleaded with the accused persons to remove the bund pointing out that otherwise their crops would be damaged but the accused persons did not listen to their entreaties and threatened to beat them if they dared to interfere with the bund. The occupiers thereupon went back to their village. On the following day, September 6, 1961, P. W. 12, Yelamanchili Malikharjuna Rao, a medical practitioner at Surampalli and a leading member of the Communist Party was approached by the occupiers to assist them in representing to the authorities against the high-handed action of the Mokhasadars. A report was prepared by P. W. 12 which was addressed to the Sub-Inspector of Police. The Sub-Inspector promised to send his constables to the spot and on this assurance the occupiers went back to their village. On September 7, 1961, under the direction of the Police Sub-Inspector two police constables went to the Kunta with the object of getting the bund removed and if possible to bind over the parties. The Kunta was full of water and the paddy crop was submerged. Six of the occupiers were also present at the spot. The police constables informed the persons present keeping a watch on the bund, which included accused No. 1 Gottipulla Venkatasiva Subbarayanam, accused No. 2 Gottipulla Bapaiah and accused No. 10, Charugulla Vijayaramarao, that the Sub-Inspector had directed the western bund to be removed so that water may flow westwards. Accused Nos. 1, 2 and 10 asked for Government orders to that effect and declined to allow the bund to be removed in the absence of such an order. The police constables asked the parties present to meet the Sub-Inspector on the following day. Neither party, however, went to the police station as required. The Tahsildar also appears to have been approached to get the bund removed but he declined to do so on the ground that it was not his business and that it was for the Revenue Divisional Officer to look into the matter. On September 9, 1961, the Sub-Inspector sent a head constable along with the constable who had gone there on September 7, to enquire into the complaint made to the police earlier. According to the report prepared by the head constable accused No. 10 was firm and emphatic that the bund could not be removed in the absence of a Government order to that effect. Bonds were, therefore, secured from accused Nos. 2 and 3 and also from the occupiers for appearance before the Sub-Inspector on the following morning. It appears that these steps by the police produced no tangible result. The occupiers realising that their crops were being irreparably damaged made frantic efforts to get the bund removed and with that object they approached some ryots of the surrounding villages to intervene on their behalf and to persuade the Mokhasadars to remove the bund. After the police party had left Surampalli on the evening of September 9, P. W.s 13 and 14 and some other occupiers proceeded to Gannavaram and approached some persons belonging to the Communist Party and apprised them of their plight. The occupiers were assured of their support on the following morning. On the morning of September 10, P. W. 11, Katragadda Pedavenkatarayudu accompanied by P. W. 6, Koli Nagabhushanam, and Anne Rama Rao (deceased No. 1), went to Mustabada on their way to Surampalli. At Mustabada they contacted Chinna Anjayya (deceased No. 2) and P. W. 15, Pendyala Venkateswara Rao, and from there they all proceeded to Surampalli. At the Panchayat Board Office at Surampalli they collected P. W. 1, Madhukuluri Satyanarayana, P. W. 4, Kolampatta Venkata Subbayyachari, P. W. 5, Jasti Ramrao, P. W. 7, Carimella Subbarao, P. W. 8, Carimella Venkataiah, P. W. 9, Mukkala Veeraiah and deceased No. 3, B. Lakshmayya and also the six occupiers of the Kunta and two or three other persons. P. W. 12, Y. Mallikarjuna Rao also arrived there. A message was sent through P. W. 13 to bring accused Nos. 1 to 4 to the Panchayat Board Office but they were reported to be at the Kunta. Then all the persons gathered at the Panchayat Board office numbering about 20 proceeded to the Kunta at about 10 a. m. on September 10. Accused Nos. 1 to 9 were found near the huts whereas accused No. 10 with a gun was standing about 25 yards to the southeast of the huts. Accused Nos. 2 and 4 had spears whereas accused Nos. 3 and 5 to 9 had sticks with them. P. Ws. 1, 4, deceased No. 1, P. W. 11 and others are stated to have requested accused Nos. 1 to 4 to remove the bund and save the growing crop belonging to the poor men. The accused, declined to do so. Thereupon the six occupiers went towards the bund about 25 yards to the north of the huts and started themselves removing a portion thereof with their hands. Accused Nos. 1 to 9 thereupon rushed at them to beat them. At that stage P. W. 5, Jasti Ramarao, P. W. 7, Garimella Subba Rao and some others who had come to mediate intervened but they were beaten by the accused. The prosecution witnesses in turn snatched the sticks from some of the accused persons and retaliated causing injuries to some of them. At this point of time accused No. 10 who was standing near the huts shouted that the party of the occupiers would not go back unless shot at and asked his companions to come back. Accused Nos. 1 to 9 started retreating towards the huts. Deceased No. 1 and P. W. 1 who was about 10 yards southeast of the huts at that time went towards accused No. 10 challenging him to shoot if he dared and saying that they were prepared to be shot for a just cause. Accused No. 10 then stepped forward and fired at deceased No. 1 from a distance of about 10 yards. Crying out "Abba" deceased No. 1 fell down and died on the spot. A pellet grazed the nose of P. W. 1 who was a couple of yards behind deceased No. 1 and he too fell down. According to the prosecution version accused No. 2 hit P. W. 1 at the back as a result of which P. W. 1 also fell down unconscious. Accused No. 10 is stated to have fired another shot towards the west as a result of which P. W. 6 was injured. Accused No. 10 then re-loaded his gun and fired a shot towards the west and this hit deceased No. 2 who also fell down dead. The fourth shot was fired by accused No. 10 in the northwestern direction which hit deceased No. 3 who was about 25 yards away from the huts and he too fell down dead. P. Ws. 2, 3, 8, 9 and 10 also received pellet injuries in the course of this firing. This, broadly speaking, is the prosecution case.;