LexABID versus STATE OF U. P.
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A B [2009] 10 S.C.R. 322 ABID v. STATE OF U. P. (Criminal Appeal No. 785 of 2004 and Ors.) JULY 7, 2009 [V.S. SIRPURKAR AND R. M. LODHA, JJ.] Penal Code, 1860 - s.302 rlw s.149 ands. 149 - Murderous assault by accused armed with weapons - Death C of victims on the spot - Incident witnessed by close relatives of victims - Conviction u/s.3021149 and s. 149 by courts below - Interference with - Held: Not called for - Accused formed unlawful assembly and shared common object of committing murder - They were armed with deadly weapons D and inflicted large number of injuries - Accused were aggressors - Victims were unarmed when the incident occurred - Plea of private defence not available to accused - Evidence of eye-witnesses-close relative trustworthy - Failure to assign specific injuries to each accused by them E not fatal. According to the prosecution case, D 1 and D 2 purchased certain agricultural land from G along with the crops. On the fateful day, they found that A1 to A7 were harvesting the crop from their land. On being asked, A1 F and A2 replied that they had purchased the said land from G. Thereafter, A1 to AG armed with ballam, gandasa and lathi caused fatal injuries to D1 and 02. D1 's son-PW 1 and his nephew-PW 2 came to the scene of occurrence. Trial court convicted the accused u/s. 302 rw s. 149 IPC G and sentenced them to life imprisonment; and also u/s. 149 and imposed nine months rigorous imprisonment. During pendency of the appeal, AG and A7 died. High Court upheld conviction of A1 to AS. Hence the present H 322 - - ABID v. STATE OF U. P. 323 appeals. A Dismissing the appeals, the Court HELD: 1.1. The post mortem reports as well as the evidence of PW-3 and PW-5 leave no manner of doubt that the death of D-1 and D-2 was homicidal. The deadly B weapons with which appellants were armed and large number of injuries inflicted on D-1 and D-2 clearly show that the appellants shared common object of committing murder. That the accused persons were more than five and formed unlawful assembly is amply established. D-1 C and D-2 died on the spot. The conviction of the accused under section 302 read with 149 IPC does not suffer from any legal flaw. [Paras 15 and 26] [331-E; 337-E-F] 1.2. PW-1 and PW-2 are closely related to D-1 and D- 0 2. PW-1 deposed regarding the occurrence of incident. He was cross-examined at quite some length and except few minor contradictions, there is nothing that is sufficient to discredit his testimony. Merely, because he made no effort to save D-1 and D-2 from attack, it cannot E be said that he was not present. His presence few paces away from the place of incident does not seem to be unnatural at all. PW-2 also deposed about the incident. PW-2 has not at all been shaken in the cross-ex'"lmination. It is true that PW-1 and PW-2 are related to D-1 and D-2 but they would not let real culprits go scot free. It does F 'not sound to-rea~on that they would have spared the actual assailants and falsely implicated the accused appellants. When as many as seven persons armed with deadly weapons attacked D-1 and D-2, it would not have been possible for PW-1 or PW-2 to attribute specific G injuries to each accused. Thus, the trial court and the High Court ~id not commit any error in accepting the evidence of PW-1 and PW-2. [Paras 16, 17, 18, 19 and 20] [331-E-F; 332-A-E-F-G; 333-D] H 324 SUPREME COURT REPORTS [2009] 10 S.C.R. A Anna Reddy Sambasiva Reddy and Ors. vs. State of B Andhra Pradesh JT 2009 (5) SC 617, referred to. 1.3. It is for the accused to establish plea of private defence. The plea of self-defence is not required to be proved by the accused beyond reasonable doubt. What is required of the Court is to examine the probabilities In appreciating such a plea. Nevertheless, the accused has to probablise the defence set up by it. In the instant case, the accused has miserably failed to establish much less C probablise, right of private defence. The evidence on record shows that the accused persons were aggressors. 0-1 and 0-2 were unarmed when they asked accused persons as to why they had harvested the standing crop. Assuming that the accused persons had purchased the agricultural land from G by registered sale D deed and they were in possession but there was no justifiable reason for them to attack 0-1 and 0-2 with deadly weapons like ballam, gandasa and lathis, even if 01 and 02 questione
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