LexTRILOKI NATH AND ORS. versus STATE OF U.P.
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.. t TRILOKI NATH AND ORS. A v. STATE OF U.P. OCTOBER 28, 2005 [S.B. SINHA AND R.V. RAVEENDRAN, JJ.] B Penal Code, 1860: Section 99-Right of private defence-Exercise of-Extent- Complainants piled up wood on the plot belonging to the accused on the C occasion of 'Holika Dehan'-The complainants were chased away from the plot-Accused, apprehending injury, killed the deceased-Incident took place 300 paces from the plot-Trial court convicted the accused under S. 302- High Court affirmed the conviction rejecting the plea of private defence raised by the accused-Correctness of-Held: Accused must show the existence of D grounds that death or grievous hurt would be caused to him-Even in such cases the right of private defence could not be exceeded so as to cause more harm than necessary-However, right of private defence is not available to the aggressor-As the accused was the aggressor right of private defence could not be claimed by him-Conviction upheld. Section 149-Unlawfal assembly-Common object-Forming of-Basis- He/d: For the purposes of attracting S. 149, it is not necessary that there should be a pre-concert by way of a meeting of the persons of the unlawful assembly as to the common object-If a common object is adopted by all the persons and shared by them, it would serve the purpose. Maxim: "Falsus in uno, Falsus in ombibus ".-Meaning and applicabiliiy of E F According to the prosecution, the plot in dispute was in the possession of the accused. The complainants had piled up wood on the plot in dispute G on the occasion of 'Holika Dehan' which was removed by the accused persons after chasing them away from the plot. Two persons on the side of the accused suffered lacerated wound on their heads. The said injuries were simple ones. The said incident took place about 300 paces from the 931 II 932 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R. A plot in dispute. One of the accused persons fired a shot at the deceased who died on the Spot. PWs 2 and 3 had also suffered lacerated wounds on their heads. The complainant and others who were accused in the counter FIR had been acquitted and the judgment of acquittal had been affirmed up to this court. B The trial court convicted the accused persons for the offence under Section 302 read with Section 149 of the Penal Code, 1860. The High Court affirmed the conviction rejecting the plea of private defence raised by the accused persons. Hence the appeal. On behalf of the accused persons, it was contended that the injuries C sustained by the accused were not explained; that the accused had caused the deceased's death in the exercise of his right of private defence and that as the entire incident took place within 2 to 3 minutes, there was hardly any occasion to form an unlawful assembly and a common object on the spot. D E Dismissing the appeal, the Court HELD: I. 'Falsus in uno, Falsus in ombibus' is not a rule of evidence in criminal trial and it is the duty of the court to disengage the truth from falsehood, to sift the grain from the chaff. [945-C] 2. rt is essential for an accused to show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him, burden wherefor lies on him. (945-F) F 3. It is true that while exercising the right of private defence a person is not expected to weigh in golden scales on the spur of the moment and in the heat of circumstances, the number of injuries required to disarm the assailant who is armed with weapons; but it is also true that the right of private defence cannot be exceeded so as to cause more harm than G necessary. Circumstances, thus, are required to be viewed, with pragmatism. It is also well-settled that a right of private defence is unavailable to the aggressor. The need to act must not have been created by the conduct of the accused in the immediate context of the incident which was likely or intended to give rise to that need. (945-G, H; 946-AI H Bishna@Bhiswadeb Mahala v. State of West Bengal, (Criminal Appeal ... ' TR!LOKI NATH v. STATE OF U.P. 933 Nos. 1430-1431 of 2003), relied on. 4. I. The Appellants being in possession of the disputed land were entitled to protect it but having regard to the past practice of performing 'Holika Dehan' on the land in question on the eve of 'Holi' which takes place once in a year, the complainants party evidently did not want to dispo
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