<4!«o-'''Itt^ ..-^••"^ "^ %,-^fe:^i/- SV^S£3i HI6H COURT OF CHHATTES6ARH AT BILASPUR Criminal Appeal No. 1060/1995 APPELLANT Jagwa ©Jageshwar s/o Tejram aged about 30 years, R/o Amtahi, P.5. Kusmi, District Sarguja (MP) (Now C©) State of AAadhya Pradesh (Now Chhati'isgarh) Through Poiice Station- Kusmi, bistrict Sarguja. Shri Abhay Tiwari, counsel for the cppeilont. Shri Sudhir Bajpai, by. ©overnmentAdvocate for the State. '.P, Sharma & ,.!... .M ORAL JU&6MENT (01.04.2010) 1. Chailenge in this appeal is to the judgment of conviction ond order of sentence dated 12.06.1995, passed by the 1 Additiona! Sessions Judge, Ambikapur, District Sarguja in Sessions Trial No. 155/94, whereby and whereunder, the learned Additional Sessions Judge after holding the appellant guilt/ for commission of cuipable homicide, amounting to murder of Krishna, convicted the appellant under Section 302 of 1+ie IPC and sentenced to undergo •<- ^ ^•% l imprisonment for life and to pay a fine of Rs.2000/-, in default of payment of fine to furl+ier undergo R.I. for 6 months. 2. The conviction is impugned on the ground that without any iota of evidence, Court below hcis convicted and sentenced the appetlantas aforementioned and thereby committed iilegaiity. 3. The brief case of the prosecution is that on fateful doy of 6.3.1994 in between 10 to 11 p.m., deceased Krishna was found inside ths house of this appeliant- Jagwa in presence of the wife of Jagwa. The appeiiont came to his house and assaulted Krishna. He took out Krishna from his house cmd assautted him by a wooden club. He also pressed his neck. Bhagwan (PW-1) and other persons after hearing the sound came to rescue ond took Krishna to his house from the house of the appeltant and on second day mornino, Krishna died. Bhagwoin (PW-1) went to Police Station and lodged F.I.R. vide Ex. P/l. Merg intimation was also lodged vide Ex. P/2. Investigating officer !eft for the scene of occurrence and after summoning the witnesses vide Ex.P/3, inquest over the dead body of Kr'ishna was prepared vide Ex. P/4. Spot map was prepared. One wooden club uucs seized vide Ex.P/5. The dead body was sent for autopsy to P.H.C. Kusmi vide Ex. P/ll, where &r. T. Sai (PW-8) conducted the autopsy vide Ex. P/ll-A and found fo!!owing injuries: i. One abrasion of 3 x 2cm over upper part of the ri9ht eye ii. One abrasion over left parietal region of4 x 3 cm iii. One abrasion over tempora! region of 5 x4 cm iv. One abr-asion over right side of the chest of 4 x 2 cm 3i "^*'r') v. Tempora! bone was found fractured. vi. Broin membrane wias ruptured and laceration was present in the brain. Mode of death was coma and death was homicida! in nature. Wooden club was examined vide Ex. P/12-A. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 ( inshort the Code). 4. After completion of the investigation, charge sheet was filed before the Judicial Magistrate First Class, Ambikapur, who in turn, committed the case to the Court of Sessions, Ambikapur, from where the learned 1 Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellant prosecution has examined as many as 8 witnesses. The accused was examined under Section 313 of the Code, where he denied the circumstances appearing agninst him, innocence and faise implication in crime in question was ctaimed. 6. After affording opportunity of hearing to the parties, the learned 1 dditional Sessions Judge has convicted and sentenced the appeltont as aforementioned. 7. We have heard Shri Abhay Tiwari, leamed counsei for the appellant ond Shri Sudhir Bajpai, Dy. Sovernment Advocate for the State, perused the judgment impugned and record of the Court ''^^ •<;i,,. ^ '•^^.ar^^ 8. Learned counsel for the appellant at the outset, vehemently argued that although the conviction of the appel!ant is based only on the statement of Bha9wan (PW-1), he is not disputing the injury caused by the appellant to Kr'ishna but, he is only disputing the conviction tand sentence on the ground of mitigating circumstances that on assumption of right of private defence avaiiable to him, the appeilant has caused minimum injury to the deceased while he was present inside his house in presence of his wife in between 10 to 11 p.m., therefore, his act does not travel beyond the scope of Section 304 Part IL of the IPC. 9. On the other hand, learned counsel for the State vehemently opposed the petition and submitted that present appellant has assaulted the deceased inside his house as well as out of his house. The appeliant succeeded in takin9 out the deceased from his house then there was no occasion for causing any fatal injury or any other injury to the deceased and thereafter right of private defence even otherwise does not exists. 10. In order to appreciate the arguments advanced on behatf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case homicidal death as a result of ante mortem fata! injury to the deceased Krishna hos not been substantially disputed on behalf of the appellant, on the other hand, i& I y s it is established by the evidence of Dr. T. Sai (PW-8) cnd autopsy report Ex. P/ll-A and the death was homicidal in nature. 12. As regards comp!icity of the accused/appellant in crime in question is concerned, conviction is based on the evidence of Bhagwan (PW-1), who has deposed that at about 10.00 p.m., he heard the sound fronn the house of the appellcnt Jagwa and he atong with Lakhuram and Bodha went to the house of Ja9wa, where they saw that Jagwa was assaulting Krlshna by stick, he caused injury to Krishna on his back. Thereafter Krishna became unconscious then they took Krishna to his house. Kr'ishna was unconscious and bleeding wais coming from his mouth ond at about 7.00 a.m. in the morning Krishna died. They went to Police Statlon cind lodged F.I.R. vide Ex. P/l and merg intimation vide Ex. P/2. Other witnesses have corroborated the evidence of Bhagwan (PW-1) that Krishna was lyin9 unconscious in front of the house of appellouit Jagwa. This evidence is sufficient to establish the fact that the oppellant has caused fatal injury to Krishna. 13. As regards motive is concerned, it is the case of prosecution and F.I.R. Ex. P/l and Merg intimation Ex. P/2 clearly revealed that between 10 to II p.m. in the night, Krishna was present in the house of Jagwa. He was sleeping inside the house of Jagwa. Wife of Jagwa was also present in the house. When the appellont came to house, he saw Krishna inside his house then he assaulted him. These facts are sufficient for drawing an inference or drawing an assiiinption that ttie deceased has entered in the house of the •••f ..^' /^; oppellant, where his wife was present alone, with an intention to commit intercourse with her. In these circumstonces, the right of private dsfence in terms of Clause 3 of Section 100 of the IPC was avaitable to the cppellant. The injury found over the body revealed thoit the appellant has lost his temper and in a heat of passion, he has assaulted the deceased, which was not unnatural. But, while causing injury, the qipellant has exceeded the alleged ri9ht of private defence available to him ouid has caused injury to a person, who was not holding any weapon. This shows that the appelltint has not caused injury with intention to cause the death of the deceased and at the time of causing injury, he was not having knowledge that by his act, the deceased may die, therefore, his act does not fall within the ambit of Section 302 of the IPC, but it falls within the ambit of Section 304 Part TL of the IPC. While convicting the appellant, Court below hos not considered this aspect of the case and therefore, commifted illegality. 14. For the foregoing reasons, the oppeal is partly allowed. Conviction of the dppetlant under Section 302 of the IPC is altered into Section 304 Part II of the IPC and sentenced for impr'isonment of custodia! period, which he had already undergone i.e. from 8.3.1994 to 29.11.1994 and 12.6.1995 to 22.8.2003 for about more than 8 years. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge J/Ui^/