APPELLANT (m Jail) HIGH COURT OF CHHATTIwARH AT BILASPUR pg: Hon’me shri Dhirenura mama a; Hon'blg $hri RN, (mandrgkar. Jé Criminal Apggl No. 1 1 32H 989 Vs. Bachalai, - son of Lampuchiya, Ra£ident of village Biharpur, CultiVatot, P.S. and Tahsil Manandragarh, Dsitrict Surguja, MP. sue of Madhya Pradesh Through PIS. manendtagath, District Surguja, M.P. (Now Chhawwarh) (griminai Aggeal under Section 374(2) of the Cr.P.C_J Present: r Shri Shakti Raj Sinha‘ counsel for the appellant. ’ ,Shri GD. Vaswanl, Govt. Advocate for lhe State. The kllowina judgment of mo “an was hm.“ byhlltra‘tdm “shin, J. The appellant has preferredthis criminal appeal under Section 374(2) of the Code of Criminal Procedure agaln&‘the judgment of conviction and order or sentence dated 24"? November,1989 passed in sessrons Trier, L No.192/87, whereby leamed Additional sessions Judge, Manondragarh‘ has convicted the appellant under Section 302 of the lndlan Penol Code and sentenced him to undergo life imprisonment for committing murder of hie, own brother Malsai. ORAL JUDGMENT (23.07.2010) 2. Case of the prosecution, in brief, is that, deceasedsMalsai, Jagsai‘ (PW-7) and Uaduram (DW-1) are real brothers of appellaot, whereas, Manmati (PW-8) is widow of Maleai. They reside in the neighbourhood. 0n 26.06198; in the evening, appellant went to the house of Malsai and Malasi asked the appenant for his bullocks, in the presence of his vdfe Manmati and Mahadev, however, he refused. They quarreled with each other and Mahadev separated them. Thereafter, appeuant retumed his house. The deceased went to the house of the appeltant with a club and abused him in his courtyard, whereupon the appeliant assaulted him with a spade, as a result, he died on the spot. 3. Report of incident was lodged by Dhaniram (PW-10) vlde Ex—P13(A) ’ and merg intimation vide Ex.P/9(A). Before registration of crime, dehati nalishi (Ex—P/3) was recorded on the information of the appellant on 29.06.87 at about 12.10 noon. After conducting inquest over’uie person of deceased vide Ex-P/11, dead body was sent for autopsy to Government Hospital, Manendragarh, where Dr. A.P. Rat (PW-4) conducted the postmodern and gave his report vide Ex-P/5. Onmemorandum of appottant (Ex-P/13), weapon of offence - spade and bamboo club were taken into possession vide Ex—P/4. Articles seized during investigation were sent to doctor for his opinion vide Ex—PI7(A) and doctor gave his report vide Ex—PI? and opined that injury described. in the postmortem report could bemused by spade. Articles were further sent to Forensic Science Laboratory for chemical examination and the report of Forensic Science Laboratory is Ex.P/1 5, according to which, spade - seized at the instance of the appellant - was stained with blood. However, for confirmation of blood group of the. bloodstains on the seized articles, he forwarded the articles to Seroiogist and the Serologist vide his report Ex—PI1 7, has opined that blood group of V the stains present on the item4awde with handle could not be determined as it was disintegrated. @‘i 4. After completing investigation, charge sheet was filed in the Court of . Chief Judicial Magistrate, First Ciass, Manendragah, who in tum, oommltted the case to‘the Court of Sessions Judge and the same was received on, transfer for trial by leamed Additional Sessions Judge Rajnandgaon. 5. Leamed Additional Sessions Judge framed oharge under Section 302, of the Indian Penal Code against the appellant, who abjured his guilt. The prosecution, in order to establish charge against the appellant, examined 11 witnesses in all.’ Thereafter, statement of accused was recorded under Section 313 of the Code of Criminal Procedure, ins-which he took the defence that he picked up the spade to defend himseif from the attack of club. He further stated that Matsai, Jagsai and others had beat him,r as he I did not give Malsai the bullocks. After intervention, Malsaioame to his house with a club and asaulted him, whereupon he defended himself. He also examined Daduram in his defence. E\‘ \s The' trial Court, after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph one d, this judgment. ‘6. 7. Homicidal death of Malsai is not in dispute. Even otherwise, fromathe evidence of eyewitnesses Mahadev, Jagsai and Manmati, who ctaimed to have witnessed the assault on the head of the deceased with a spade and from the evidence of Dr.A.P.Rai (PW-4), who conducted postmortem and proved his report of Ex-PI5 and in which he found the following injuries on the person of deceased and opined the cause of death as a§resuit of head injury, which was homicidal in nature, homicidal death of deceasedMaleai is established. evidence of Mahav (PW-6), it is evident hat o th date n tie of de t n e ad m ”incident, irst quarrel took place bwee he appellant n the ecease i f etn t ad dd n hl, d th, , l, t the courtyard of Bacala he separate em thereafter Bachala wen , we his counyard, at that time Maisai came with a club and went inside External Injuries (1) Lacerated wound on the top of the skuu at middle of 10 cm x 8 Cm bone exposed. (2) Lacerated wound on the right temporal region of s 6 cm x \§. 2 cm x 1 cm. (3) lncised wound on the back - intra scapula region .Ieft side 4 cm" / x 1 cm x1 cm. ’ (4) Bruise on the back below scapula of size 6cm x 2cm x 3 om (5) Bruise on the neck belowoccipital region of sue 3cm x 2 cm. (6) Lacerated wound on the occipital region of size 6 cm x 1 crn bone deep. Intemal Injuries (1~) ’ Bones of the skull broken. (2) Frontalttemporal and parietal bones were broken and pierced in the brain. (3) Brain matter was lacerated, bloodclot was present.- He opined that all the injuries were anti-mortem in nature. Injury No.1 was sufficient to cause death in ordinary course of nature. He also deposed that injuries sustained by the deceased could be caused by spade, which was brought for examination; 8. Leamed counsel for the appellant vehemently argued that from the the courtyard of the appellant. and the appellant assaulted him by spade, which was Iying in his courtyard, to defend himseif. He further suhmiited that Jagsai (PW—7) has also deposed that the appellant and the deceased were engaged ih the first quarrel, which took place in the houseof Malsal. When they were engaged in scuffie, they were separated by Mahadev. The appellant came to his house, however, the deeeased went to the house of the appellant with club in an agitated mood and entered into his courtyard, I - He was abusing the appellant in his own house and when Malsal tried to attack him by club, the appellant picked upspade lying on the courtyard and assaulted him by backside of it. Thus, from the evidence of prosecution witnesses, it isevident that it is the deceased who started quarrelling‘ even after they were separated \by the villagers. He went to the house of the appellant with the club with an intention to assault the appellant and thus, theappellant, in exercise of the right of private defence, assaulted the}; deceased from the backside of spade, which was lying in the courtyard and therefore, his conviction under Section 392 is erroneous. j 9. 0n the other hand, teamed counsel for the State supported the impugned judgment. 10. w We have heard learned counsel for the parties and perused the record as also the impugned judgment. 11. Undisputedly, the incident occurred in the courtyard of, the appellant. Report was lodged by Dhaniram (PW-10), Sarpanch of the village. in the report, thecomplainant has mentionedthat the appellant came to his house and confessed that he murdered his brother by assaulting him with backside _ of spade. lt is also mentioned that when the deceased demanded bullocks \K‘ H from him, he refused to give it to the deceased and therefore, the deceased, Jagsai and wife of the deceased threw him on ground and beat him. Thereafter he (appeiiant) retumed to his home However the deceased again came to his house wrth a club and tried to assault him He picked up the spade and assauited him twice on his head. 12. Mahadev (PW-6) is aiso an eyewitness of the incident. He aiso. deposed that both the brothers were engaged in the scuttle, they were f separated by him. Thereafter, Bachaiai went to his house, at'that time, : Maisai also went to the house of Bachalal with a club and entered in his courtyard, where'Bachalal was standing. At that time, Bachalal assaulted him with a spade twice on his head. ln paragraph-25 of his cross- examination, he has deposed that Bachalal was frightened and therefore, he pickedrup the spade and assaulted the deceased in his defence. \‘ 13. Jagsai (PW-7) is brother of the appellant and the deceased. He has ‘ also deposed in his cross-examination that initially the appellant and the deceased were engaged in the scuffle, and after they were separated, Bachalal retumed to his house. However, the deceased was saying that he would ask for bullocks from Bachalal and if he does not give bulloclts, he shall kill him, and some times thereafter, he rushed towards the house of Bachalal with a club. He along with Mahadev and Manmati also rushed after him. He also deposed that Maisai was abusing Bachelat in his own house by standing in his courtyard. When Bachalaivcame out, Malsai ttied to attack him by club and at that juncture, the appellant who was empty handed, picked up the spade, lying on the courtyard and assaulted the deceased from its back on his head. 14. Thus, from the evidence of above prwecution witnesses and the allegation in the first intormation report, we find substance in the arguments oi teamed counsel for the appettant that after the first quarreL the appeiiant and the deceased were separated , thereafter, the appellant returned to‘his house, however, the deceased went to his. house in an agitated mood with. club and started abusing the appellant in his courtyard and when he tried to [attack the appellant with club, he picked up the spade lying in the courtyard Xand gave two bloWs from backside of the spade. l ‘r / 15. From perusal of the evidence available on record, it is clear that the deceased died as a result of injury caused to him bythe appellant. However, fromthe evidence availabie on record, we find the deceased to be _ ’¢/ wuf’y as the incident occurred V in the house of the appeilant. However, . looking to the injuries sustained by the deceased, we rind mat the appellant exceeded his right of private defence as he gave more than one blow to the deceased which resulted in multiple fractures of skull bone of the decease d as described in the postmortem report. _16. For the aforesaid reasons, we are of the opinion that the trial Court was not justitted in convicting the appellant under Section 302 of the lndian Penal Code as the offence committed by him does not travel beyond Section304 Pad-ll of the IPC. 17. Accordingly, the appeal is partly allowed. Convictionof the appellant under Section 302 of the IPC and sentence imposed thereunder, are set aside. instead, he is held guilty under Section 304, Part-ll of the IPC and g ‘ ‘ K s sentenced to undergo ten years‘ imprisonment. 18. It is stated that the appeuant has atready undergane 10 years of jait sentence as he was in jail during trial from 30.06.19a7 tin the date of judgment date¢ 24.11.1989; he was reieased on bail on 23.08.1990 and thereafter, taken into custody on 05.05.2003 and ,since'thenrhe is in jaii tin i date. In view of above, we direct that the appeuant be set at liberty a 5% forthwith, if he is not required to be detainedin any other case. I 2e Sdz. [x 75M , _ iDmNDRA MISHRA j ‘ ZRN. Chaniii'akar Junge i 3 , judge V. . .