Mohammad Khan & Ors. v. State of Madhya Pradesh

Dua, J. These two appeals by special leave arise out of D common judgment of the High Court of Madhya Pradesh which disposed of two criminal appeals by two rival factions belong· ing to two different villages situated at a small distance from each other which were involved in the occurrence in question dated February 4, 1965. E Village Siloda in Tehsil Sanwer, district Indore was inha­ bited by Muslims but it was divided into two gtoups, the rela· lions between whom were strained and differences rose to such a pitch that one group felt compelled to leave the village and shift to a ne\Y site for their residence. The new village formed by this group was called Naya Siloda. The original village F Siloda was thereafter given ~he name of Juna Siloda. It appears that in spite of the departure of one group for Naya Siloda the differences between the tw.o groups remained unresolved and the bitterness did not abate. The two villages virtually became inimical to each other. The animosity between the two villages was not confined to any specified individuals but the entire G population of each village considered itseJf as the enemy of the entire population of the other. The incident giving rise to the two cross-cases which are the subject matter of the two appeals before us took place on February 4, 1965 which was the day of Id. Many people had 11 collected at Sanwer mosque to offer their prayers and the resi­ dents of the two Silodas had also gone there in the morning. They met at the prayer time but they apparently remained peace­ ful at that auspicious moment. Some evidence' does seem to 11-L256SuJ).Cll72 15 4 SUPREME COURT REPORTS [1972] 2 S.C.R. hav.e been led suggesting that some threats were given by the A inhabitatants of J una Siloda to the inhabitants of Naya Siloda. According to the High Court it was not possibUe to base a firm conclusion in support of this allegation. After the prayer was over the inhabitants of Juna Siloda on their way back to their village had· to pass through Naya Siloda. In the opinion of the High Court the residents of Juna Siloda had gone to Sanwer in B a cart with children and weapons. The inhabitants of Naya Siloda also went there but it was a matter of controversy whether they too had weapons with them. After the conclusion of the prayer the Naya Siloda people with weapons in their hands were found waiting on the route at a small distance from their vil­ lage. The inhabitants of Juna Siloda, after sending their child­ ren in advance, back to the village, came by the same route and were confronted by the Naya Siloda people on the outskirts of their village. At that spot two old men out of the inhabitants of Juna Siloda, namely, Rasul Khan and Nazim Khan, got down from the carts and proceeded to pacify the inhabitants of Naya Siloda and to plead with them to !iv~ peacefully. Without giv- 0 ing any definite finding as to whether these two persons were challenged by the inhabitants of Naya Siloda, according to the High Court, there was an attack and a counter-attack in which fire arms .were used by the inhabitants of Naya Siloda. The inhabitants of Juna Siloda also got down from the carts and killed Latif Khan of the opposite faction and seriously injured several other members of the Naya Siloda group. The inhabi- E tants of Naya Siloda also killed Majid and Yasin of the Juna Siloda group and injured several others, the number of the in­ jured on both sides being almost equal. Amongst the injured on the Naya Siloda side were Abdul Karim, Amir Khan, Chhote Khan son of Ramzan, Garu Khan, Chhote Khan son of Latif, Kallu Khan and Munshi Khan. Amongst the rival faction the F persons seriously injured were Roshan Khan, Manjoor Hussain, Abdul Kadar, Mohammad Khan, Najini Khan, Kallu Khan and Faqru. These injured persons were on both sides in addi- tion to those who had lost their lives. The persons out of the group from J una Siloda who were arrested after investigation were charged, under· s. 302, 1.P.C. for the muder of Latif Khan, and under s. 148, I.P.C. for being members of the unlawful assembly which had the common object of committing the mur- der of Latif Khan and of causing injuries to the inhabitants of Naya Siloda. They were further charged under s. 307, I.P.C. for attelmpting to commit murder of the persons mentioned earlier tQ have been seriously injured. Charges under ss. 302 and 307, I.P.C. read with s. 149, I.P.C. were also framed in H the alternative for the offences for which charges under ss. 302 and 307, I.P.C. were framed. 8 MOHD. KHAN ii. M.P. STATE (Dua, J.) 155 The inhabitants of Naya Siloda who were arrested and pttt up for trial were charged for the murder of Yasin Khan and Majid Khan under s. 302, I.P .C. and also charged under s. 148, l.P.C. with the common object of murdering and caus­ ing hurt to the people of Juna Siloda. They were also in addi­ tion charged under s. 307, l.P.C. for committing the murder of the people mentioned earlier to have received serious injuries. In their case too charge on identical lines under ss. 302 and 307, l.P.C. read with s. 149, l.P.C. was framed in the alternative for the offences which were the subject of charge under ss. 302 ·and 307, I.P.C. The two trials were held by the same Judge. In the trial of the accused from Juna Siloda, Mohammad Khan, Roshan Khan, Rasul Khan, Munshi Khan, Mohd. Hussain, Chhote Khan, Kallu Khan, Shakoor, Nazim, Faqru Khan and Manjoor Hussain were convicted under s. 302 read with s. 149, I.P.C .. and sen­ tenced to rigorous imprisonment for life. The charge under s. 148, I.P.C. was also proved and on this count they were sen­ tenced to rigorous imprisonment for two years. Chhote Khan was convicted under s. 325, l.P.C. and sentenced to three years' rigorous imprisonment. Mohammad Hussain, Chitu Khan, Mahrat and Mohammad Khan were also convicted under s. 323, I.P.C. and sentenced to rigorous imprisonment for six months each. Kallu was convicted under s. 324, I.P .C. and sentenced to rigorous imprisonment for one year. - All the sen­ tences were to run concurrently. All the accused were acquit­ ted of the substantive offences under ss. 302 and 307 and also under s. 307 read with s. 149, I.P.C. In the case against the accused from N aya Siloda all of them were convicted under s. 302 read with s. 149, I.P.C. for the mur­ der of Yasin Khan and Majid and sentenced to rigorous impri­ sonment for life. They were further held guilty of the offence under s. 148, I.P.C. and sentenced to rigorous imprisonment for two years each. Kallu Khan and Abdul Karim were also con­ victed under s. 326, I.P.C. and sentenced to rigorous imprison­ ment for three years. Amir Khan was convicted of an offence G under s. 324, l.P.C. and sentenced to rigorous imprisonment for one year. Chhote Khan son of Ramjan and Gammu Khan were in addition sentenced to rigorous imprisonment for six months each under s. 323, I.P.C. All the sentence' in their case were also to run concurrently. H The High Court first considered the case against the accuse~ from Juna Siloda. The only point raised on their behalf was that they had a right of private defence and whatever injuries were inflicted by them were in the exercise of that right. According to their case they carried the weapons because they were always A in ain apprehension of assault from the inhabitants of Naya Siloda. It may be pointed out that the trial court had not accepted the right of private defence pleaded by either side and according to that court this was a case of free. fight there being no occasion for the exercise of the right of private defence on the part of either faction. It was on this basis that both parties B were convicted as already stated. After considering the argu­ ments addressed .before it the High Court considered one basic fact to be clear that none of the witnesses had seen how the assault had started and all that could be said was that somehow the quarrel did start between the two factions. The fight had taken place on the cart track and both groups which were inimi- c cal to each other met there when they had arms with them and they both were seen assaulting their opponents. The High Court, after considering the evidence on the record and the circums­ tances of the case, came to the conclusion that the object of Juna Siloda people was to chastise the Naya Siloda people and this appeared. to ·be evident from the circumstance that they had sent back their children earlier and they took the path through D Naya Siloda. Since they were aware of the inimical attitude of the people of N aya Si!oda through which village they had to pass and there was no question of J una Siloda people being taken unawares while passing through Naya Siloda, according to the High Court, there was no question of any right of private de­ fence being available to the people of Juna Siloda. The High E Court further observed that the right of private defence, if at all available, must be claimable by all members of the group and there was no question of considering the case of each indi­ vidual accused for the purpose of determining this right apart from the entire assembly. After so holding the High Court considered the case of. each member of the group from J una F Silo1:Ia for determining whether he was present at the spot as a member of the assembly. Holding them all to be present their appeal was dismissed. The High Court similarly dealt with the appeal presented by Naya Siloda group. In that Court's view the mere failure of .the accused from Juna Siloda to satisfactorily prove their G right of self-defence could not serve to clothe the accused from Naya Siloda with such a right. The two cases having been tried separately each case, according to the High Court, had to be decided on the facts established on its record with the result that in the appeal of the Naya Siloda group they had indepen­ dently to prove that ·Juna Siloda people were the aggressors and the Naya Siloda group were, therefore, entitled to claim the right of private defence. After considering the evidence in the case the High Court came to the conclusion that the Naya Siloda MOHD. KHAN v. M.P. STATE (Dua, J.) 157 people had gathered under the Kabit tree on the road by which the J una Siloda people were returning from Sanwer to their village after the prayers. The Naya Siloda people had not gone to Sanwer with arms but had returned to their village after Id prayers a little earlier and after collecting the arms had gathered under the Kabit tree waiting for the Juna Siloda people to come. In these circumstances the Naya Siloda people were also held disentitled to claim any right of private defence. According to the High Court if Naya Siloda people had merely assembled inside their village for self-defence appreb,endipg aggression on the part of Juna Siloda people then they might have been able to put forward the plea of self-defence. But having gone out of c their village fully armed and gathered on the road under the K abit tree which was the only route for the carts of JU)la Siloda people when returning to their village from the Mosque the plea of self-defence could by no means be open to them. The Naya Siloda people, according to the High Court, on the cireumstances of the case could also have approached the police with a com- D plaint that they were apprehending assault from the J una Siloda people who were armed with dangerous weapons and were to pass through their village on the return journey from the Mosque. Negativing, the claim to the right of private defence on the part of the Naya Siloda people their appeal was also dismissed by the High Court. In the concluding portion of its judgment the High Court observed that the trial court had erroneously acquit­ ted some members of the unlawful assemblies for offences under s. 302, I.P.C. because by virtue of s. 149, I.e.c. they weie- all liable to be committed pursuant to the common object of the assembly. But there being no appeal against acquittal the High Court was content merely with this observation. In this Court Shri R. L. Kohli addressed elaborate . argu- F ments on behalf of the appellants from Ju,na Siloda (Cr!. A. No. 204 of 1967). According to the counsel right of private defence had been fully established on the record so far as his clients are concerned and the courts below have misread the evidence while considering the plea of private defence. Great emphasis was laid on the fact that Majid and. Yasin out of the G appellants' group had been killed and it was thereafter that the appellants used their weapons in exercise of their right of private defence. The counsel drew our &ttention to the following passage from the judgment of the High Court in which the right of private defence on the part of the Naya Siloda people was negatived: H "There is also the story of Rasulkhan and Najim- khan going to pacify them. . Whether this is true or not is not very material for this case. They got down, ' they got injured in the fight that took place. There­ fore there cannot be any question of self-defence for the Naya Siloda people in general when we .find that they had gathered under the Kabit tree on the road by which the carts w.ere going. These people did not go to Sanwer with arms. They came to Naya Siloda earlier, collected the arms and waited for Juna Siloda people to come. Under these circumstances Naya Siloda peoplt: cannot claim any right of private defence though the J una Siloda people may or · may not be having a right of self-defence." B. The counsel laid emphasis on the fact that, according to the C High Court, the J una Siloda people had not gone to Sanwer with arnis whereas the Naya Siloda people had returned earlier to their own village, and after collecting the arms lay in wait for the J una Siloda people to come: thereafter when the two un­ armed men from th~ group of Juna Siloda people got down from their cart they were injured. On this premise, according to the counsel, the J una Siloda people were clearly entitled to D· protect themselves against the aggressive assault by the Naya Siloda people. Shri Kohli drew our attention to the evidence of Kallu Khan (P.W. 16) of Naya Siloda who was himself injured during the occurrence. According to him Latif Khan was arm- ed with a gun and had fired three or four shots and it was there­ after that he was surrounded by the people from Juna Siloda & and beaten with dharia and farsi. According to counsel Latif Khan was clearly assaulted after he had used his gun against the inhabitants of Juna Siloda and therefore they were entitled to plead the right of private defence. Reference was also made to the evidence of Munshi Khan of Naya Siloda (P .W. 18). AccordiQg to him a woman handed over a gun to Latif Khan which he used against the people of Juna Siloda. Latif Khan, according to this witness, was surrounded when he had exhaust- ed his ammunition. This according to the counsel, also sup­ ports the .,Plea of private defence on the part of the inhabitants of Juna Siloda. The coul)sel, however, seems to us to have ignored that part of the statement of this witness where he says y that the people of Juna Siloda were already assaulting the party G of the witness with lathis. Shri Kohli then submitted that there is no evidence on the re­ cord justifying the observation of the High Court that the people of Juna Siloda had sent back their children earlier. He added that the evidence of some other prosecution witnesses, according to whom the Juna Siloda people had passed .through Naya Siloda H on. their way to the Mosque in the morning with various dan­ ger0us weapons, is wholly incredible and untrustworthy. MOIID, KHAN v. M.P. STATE (Dua, I.) 159 The Iearned counsel for the State conceded that in this case there was no evidence that the children had been sent away earlier by the people of Juna Siloda, In fact evidence to this effect was only led in the counter-case which admittedly could not be used in the present case. He referred us to the judgment of the High Court where it is stated that the Juna Siloda p•wple B knew that the only route was through Naya Siloda and they should have, therefore, avoided the cart track. The High Court, after so observing, proceeded: "It was not incumbent for them to come by carts only. It is not that Sanwer was at a long distance so that they could not go without a cart. We are not considering the case of a person ignorant of the situa­ tion. We are considering the facts with the back­ ground of mutual hostile relationship. It was such that the parties could not live in the village and the authorities were forced to find out a different place to live. It is true that there is evidence that there was a tree over the Nala on the other route so that carts might not go, but if one did not want to fight which was inevitable in that route one would have avoided going through N aya Siloda. We are not saying that the law teaches us cowardice but law does not encour- age bravado. The right of self-defence only arises if the apprehension is unexpected and one is taken un­ awares. If one enters into an inevitable danger with the fullest intimation before hand and· goes there arm­ ed to fight out, the right cannot be claimed. Under these circumstances we do not think that Juna Siloda people had any right of private defence." F We find it difficult to agree with this approach of the High Court. The peo11le of J una Siloda had a right to go for prayer to Sanwer on the day of Id and merely because the only route pass­ ed through Naya Siloda the people of which were inimical towards them, it cannot deprive them of their right to use that route for going to Sanwer. If while exercising that right they G were attached without justification, the right of private defence cannot be denied to them. And then the Juna Siloda people having gone to Sanwer for Id prayers in their carts, they had to come back with their carts, which they could not be expected to leave behind, merely because there was an apprehension ia their mind that on their way back the Naya Siloda people were H likely to confront them. The only cart-route being the one that passed through Naya Siloda they had no alternative except to use that route. When in the lawful and bona fide exercise of the right to go back to their village in their carts by that route 160 SUPREME COURT REPORTS (1972J 2 S.C.R. they were confronted by the Naya Siloda people who were armed A with dangerous weapons and were waiting for them, they were fully justiped in using force to defend themselves against unlaw- ful aggression. When enacting ss. 96 to 106 of Indian Penal Code, excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggres­ sion, the legislature clearly intended to r.rouse and encourage B the manly spirit of self-defence amongst the citizens, when faced with grave danger. The law does not require a law-abiding citizen to behave like a coward when confronted with an immi­ nent unlawful aggression. As repeatedly observed by this Court there is nothing more degrading to the human spirit than to run away in face of danger: G. V. S. Subramanyam v. State of c Andhra Pradesh(1 ). The right of private defence is thus design- ed to serve a social purpose and deserves to be fostered within the prescribed limits. Not only is the approach of the High Court erroneous in law but the High Court also wrongly held without any evidence that the J una Siloda people had earlier sent back their children by another route for the purpose of hav­ ing a confrontation with the Naya Siloda people. We, however, must not be understood to endorse the view of the High Court that the Jact of Juna Siloda people having actually sent back their children would, if true, have deprived them of the right of private defence while lawfully going back to their home by the. route through Naya Siloda. However, once the above approach of the High Court is held to be erroneous and it is also part of the E Juna Siloda people to arm themselves for confrontation, the only permissible conclusion open· on the record is that the J una Siloda people had used force only in justifiably exercising their right of private defence. It may be recalled that the Naya Siloda people had returned from the prayers early and gone out of their village after equipping themselves with arms in order to F wait for confrontating the Juna Siloda people on their way back home from their Id prayers. It was nobody's case before us that if there was the right of private defence, it was exceeded by the Juna Siloda 11eople. We have, therefore, no hesitation in allow- ing this appeal and acquitting the appellants which we hereby do. G On the view taken by us in Cr!. A. No. 204 of 1967, the other appeal (Cr!. A. 83 of 1968) presents no difficulty. Hav­ ing known the origin of the conflict about which there is no contrary finding in Cr!. A. No. 83 of 1968 it cannot but be held that the people of N aya Siloda were the aggressors and they had no right of private defence against the people of Juna Siloda. H Indeed, the learned counsel for the appellant in Cr!. A. No. 83 (I) A.LR. 1970 S.C. 1079 at 1087. t MOHD. KHAN v. M.P. STATE (Dua, !.) 161 A of 1968, Shri Ganpat Rai, did not put forward any serious or sustained argument that the appellants from N aya Siloda were compelled to use force to defend themselves against unlawful aggression. Naturally there was no argument in regard to the guilt of any individual appellant nor was any argument addressed on the question of sentence. Criminal Appeal No. 83 of 1968 rl must, therefore, fail and the same is hereby dismissed. Cr. A. No, 204 of 1967 allowed. S.N. Cr. A. No. 83 of 1968 dismissed.