'^ (^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.L.JHANWAR, JJ. CrLminalApeea! No.295 oL2007 Ramprasad and others Versus State of Chhattisgarh JUDGMENT FOR CONSIDERATION Hon'ble Mr.R.L.Jhanwar, J. Sd/- T.P, Sharma Judge -—<Ba Sd/- R .L. JHANWAR Judge ; Post for pronouncement ofthe Judgment on : 12/5/2011 Sd/- T.P. Sharma Judge aa«t» ir Ni ^L'^K—i-. \ -s^- ^. t HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.L.Jhanwar, JJ. Appellants (In Jail) Respondent Criminal Appeal No.295 of 2007 1. Ramprasad S/o Dhansai, Aged about- 63 years, 2. Harihar S/o Ramprasad, Aged about-38 years 3. Pyarelal S/o Ramprasad, Aged about- 23 years 4. Manilal S/o Ramprasad, Aged abcdt-30 years 5. Bileshwar Singh S/o Ramprasad, Aged about-35 years All resident of Village-Bishunpur, Police Station-Churcha, District Korea (C.G.) Versus State of Chhattisgarh, Through: District Magistrate Baikunthpur, Distt.l^orea (CRMINAL APPEAL UNDER SECTION 374 (2) OF Cr.P.C., 1973) Mr.Abhay Tiwari, counsel for the appellants. Mrs.Madhu Nisha Singh, Panel Lawyerforthe responden State. JUDGMENT (Deliveredonl 2th May, 2011) The following judgment of the Court was delivered by T.P.Sharma, J.:- Challenge in this appeal is to the judgment of conviction gnd order of sentence dated 13.3.2007 passed by the Sessions Judge, Koriya in Sessions Trial No. 185/2005, whereby & whereunder learned Sessions Judge while acquitting two accused for the charges of 1'Drmation of unlawful assembly armed with deadly weapons and causing murder of Shivbaran and Hari and simple injury to Santri Bai in furtherance of common object convicted the appellants under Sections 148, 302/149, .^.^•i..-^^.;.^ 6- 302/149, and 323/149 ofthel.P.C. and sentenced them to undergo R.l. for one year and fine of Rs.200/-, in default of payment of fine to further undergo R.l. for one month, imprisonment for life and fine of Rs.500/-, in default of payment of fine to further undergo R.l. for three months, imprisonment for life and fine of Rs.500/-, in default of payment of fine to further undergo R.l. for three months and R.l. for one month. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. As per case of the prosecution, on the fateful day of 19.4.2005, unfortunate deceased Hari, brother of Ku.Kamla and unfori:unate deceased Shivbaran, father of Ku.Kamla with a view to taking back their cattle shouted, but same was misunderstood by appellant Ramprasad and went inside the house and came with spear, appellant Pyarelal came with axe and other appellants came with sticks, they assaulted deceased Hari, deceased Shivbaran came to rescue his son, the appellants also assaulted Shivbaran by spear, axe and sticks and caused their instantaneously death. Ku.Kamla (PW-1) along with her sister-in-law Bruhaspati and mother Santri Bai went to save their brother and father, but the appellants also assaulted Kamla. Incident took place on account of previous enmity. Ku.Kamla (PW-1) went to Police station and lodged dehati nalishi vide Ex.P/1 and merg intimation vide Ex.P/29. After summoning the witnesses vide Exs.P/21 and P/22 prepared inquesf over dead bodies of Shivbaran and Hari vide Exs.P/23 and P/24. Dead bodies were sent for autopsy to Government Hospital, Baikunthpur where Dr.D.K.Chikanjuri (PW-6) conducted autopsy of Shivbaran vide Ex.P/25 and found following injuries: (i) Multiple incised wound over neck, chest and cervical vertebra. Blood vessels issofek trachea were found cut. Neck was almost chopped. (ii) Incised wound over left scapula region of 3 %" x 1" x 2 %". (iii) Incised wound over supra scapula region of 3 %" x %" x 4". (iv) Incised wound over left scapula region of 3%" x 3" x 2 y-i' and another injury of 3"x 1" x 2 %". ./ 2< (v) Incised wound of 2 %" x 1" x 1 %" over right scapula region. (vi) Five incised wounds over buttock of 5" x 1" x2 1/2" in size. (vii) Incised wound of 2 1/2" x 1" over left axial. He also conducted autopsy of deceased Hari vide Ex.P/26 and found following injuries:- (i) Incised wound on left abdomen of 4" x 1" x 4" with cut injury on left kidney of 1 1/2" x %" x 1/2". (ii) Incised wound over right scapula region of 2 %" x 1" x 1 1/2". Mode of death was shock and death was homicidal in nature. Santri Bai was examined by Dr.R. Sharma (PW-10) vide Ex.P/31 and found swelling over right scapula region. During the course of investigation bloodstained & plain soil were recovered from the spot vide Exs.P/11 and P/12.Appellant Manilal was taken into custody, he made disclosure statement of stick vide Ex.P/3, same was recovered at his instance vide Ex.P/4. Appellant Harihar made disclosure statement of stick vide Ex.P/5, same was recovered at his instance vide Ex.P/6. Appellant Pyarelal made disclosure statement of axe vide Ex.P/7, same was recovered at his instance vide Ex.P/8. Appellant Bileshwar made disclosure statement of stick vide Ex.P/9, same was recovered at his instance vide Ex.P/10. Investigating officer made search of house of appellant Ramprasad vide Ex.P/20, but no spear was found. Final F.1.R. was recorded vide Ex.P/30. Spot map was prepared by investigating officer vide Ex.P/34. Articles were sent for chemical examination vide Ex.P/35. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Baikunthpur, who in turn, committed the case to the Court of Sessions, Ambikapur, from where learned Additional Sessions Judge, Baikunthpur, received the case on transfer for trial. 5. In order to prove the guilty of the accused/appellants, the prosecution has examined as many as fourteen witnesses. Accused/appellants were examined under Section 313 oftheCr.P.C., in which they denied /• the circumstances appearing against them and claimed innocence and false implication in crime in question. They have examined Semarhin, Dhansai and accused Manilal as defence witnesses who have deposed that they have not committed any offence and there was dispute relating to land between Shivbaran and Kashiram and on the ground of enmity they have been falsely implicated in crime in question. Defence has also examined Dr.D.K.Chikanjuri (P.W.6) relating to injury found over the body of appellant Ramprasad. As per his evidence and Ex.P/28, following injuries were found over the body of appellant Ramprasad:- (i) Lacerated wound over head of 2" x %" x %". (ii) One swelling just above the left eyebrow of 1 1/4" x 14". (iii) One scratch over left hand of 1" x 14". (iv) One scratch over the hand of 3 1/2" x 1". 6. After appreciating the evidence available on record, learned trial Court while acquitting two accused persons convicted and sentenced the appellahts as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellants vehemently argued that although the appeltants have not taken defence of right of private defence, but same was available to them. The prosecution was under obligation to explain the injuries of appellant Ramprasad which are not trifle in nature. Injuries found over the body of appellant Ramprasad and senior most member of appellants' family shows that after receiving injury by Ramprasad, in exercise of right of private defence the aforesaid appellants have caused injuries to complainant party and have not exceeded the right of private defence available to them. Even otherwise, evidence of Ku.Kamla (PW-1) and injured witness Santri Bai (PW-2) are not sufficient for drawing definite conclusion that the present appellants have caused homicidal death amounting to murder of Shivbaran and Hari in furtherance of common object of unlawful assembly constituted by them. fl ^ 9. Learned counsel placed reliance in the matter of Ranbir Singh and others v. State of Haryana in which the Supreme Court has held that the benefit of Exception 2 to Section 300 may be available if the accused was not the aggressor. Number of injuries on accused side by itself may not be sufficient to establish right of private defence but accused may discharge his onus by establishing a mere preponderance of probabilities by laying basis for that plea in cross- examination of prosecutionwitness or by adducing defence evidence. Learned counsel further placed reliance in the matter of Naveen Chandra v. State of Uttaranchal in which the Supreme Court has held that injury on the ground of continuously troubling and hurling by complainant party and injury caused by complainant party gives exercise of right of private defence to the appellant and in case exceeded the right of private defence their offence would be of Section 304 Part-1 of the I.P.C. Learned counsel relied upon the matter of Babu Ram and others v. State of Punjab in which the Supreme Court has held (1) that prosecution has suppressed genesis and origin of the occurrence and has thus not presented the true version; (2) that witnesses who have denied the presence of injuries on person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a rendered probable so as to throw doubt on the prosecution case. 10. On the other hand, learned State counsel supported the judgment impugned and argued that as per case of defence, appellant Ramprasad is injured accused, therefore, his presence at the time of incident cannot be disbelieved. Evidence adduced on behalf of the prosecution is sufficient to establish that two persons namely Hari and Shivbaran have been t^rutally murdered on the spot and present appellants were holding spear, axe and sticks, they have caused injuries to both the persons including simple injury to Santri Bai. After appreciating the evidence available on record, learned trial Court has rightly convicted and sentenced the appellants as aforementioned. \/ ^(2010)3SCC(Cri)236 2(2010)3SCC(Cri)321 3(2008) 2 SCC (Cri) 727 ^ - -/ 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe parties. 12. In the present case, homicidal deaths of Shivbaran and Hari as a result of fatal injuries found over vital part of the bodies have not been substantially disputed on the behalf of the appellants, even otherwise, it is established by the evidence of Dr.D.K.Chikanjuri (PW-6) and autopsy report Exs.P/26 and P/27. Evidence of Dr.R.Sharma (PW-10) and medical examination report Ex.P/31 is also sufficient for drawing inference that simple injury has been caused to Santri Bai. Evidence of Dr.D.K.Chikanjuri (PW-6) and medical examination report Ex.P/28 further reveals that four injuries were found over the body of appellant Ramprasad. 13. As regards the complicity of the appellants in crime in question, conviction is substantially based on evidence of eyewitness Ku.Kamla (PW-1) and injured eyewitness Santri Bai (PW-2). Both are relatives of the deceased. They have specifically admitted that on account of previous land dispute the incident took place. As per evidence of Ku.Kamla (PW-1), sister of deceased Hari and daughter of deceased Shivbaran, deceased Hari shouted for his cattle at the time of incident but same was misunderstood by the appellants and they thought that deceased Hari is condemning them, then they came with spear, axe and sticks and assaulted Hari, Shivbaran came to the spot to rescue his son after hearing the sound of quarrel, then they also assaulted Shivbaran and caused their instantaneously deaths. Other accused persons were pelting stones. Santri Bai was also received injures. Ku.Kamla went to the Police Station and lodged dehati nalishi. Her version has been substantially corroborated by Santri Bai (PW-2), wife of deceased Shivbaran and mother of deceased Hari. She is injured witness. Ramtaran (PW-4) has partly corroborated the evidence of aforesaid witnesses and has deposed that incident took place near the house of the appellants, appellant Pyarelal was holding axe and Shivbaran and Hari were found dead on the spot. 14. By examining Semarhin (DW-1) and Dhansai (DW-2), accused persons have taken defence that at the time of incident two women accused which have been acquitted were not present on the spot. By examining himself appellant Manilal has taken defence that at the time of incident he was not present on the spot but on account of land dispute between Shivbaran and Kashiram, he has been falsely implicated in crime in question, but he not filed any document or has not examined any evidence in his support, although he was having opportunity to examine contractor under whom he was working or other labourers to show prima facie his absence and defence of alibi. In the absence of aforesaid evidence, the trial Court has rightly disbelieved the evidence ofappellantManilal. 15. Defence has cross-examined Ku.Kamla (PW-1) and Santri Bai (PW-2) at length, but has not been able to elicit anything in their cross- examination to show that they have not seen the incident or they have falsely implicated the appellants. 16. As per case of the prosecution, both the parties were in inimical terms. Both the witnesses are relatives and interested witnesses. While dealing with the question of reliability of relatives witness the Supreme Court in the matter of Dalip Singh and others v. The State of Punjab has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 ofthe said judgment reads as under:- "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of J.-'^y AIR1953SC364 prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." 17. While dealing with the same question, the Apex Court in the matter of Guli Chand and others v. State of Rajasthan has held that mere fact that relative witness or his relations is not sufficient to discard his testimony. 18. In the matter of Sharad Birdhichand Sarda v. State of Maharashtra the Supreme Court has held that close relatives of the victim have a tendency to exaggerate or add facts. The Court should examine their evidence with great care and caution. Para 48 of the said judgment reads as under:- "48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis againstthe accused person and in this process ceri:ain facts which may not or could not have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it. 19. Santri Bai (PW-2) is injured witness. Her presence cannot be discarded. Evidence of Ku.Kamla (PW-1) is well corroborated by promptly lodged dahati nalishi Ex.P/1 and medical evidence of Santri Bai and autopsy reports of deceased Hari and Shivbaran. Evidence of aforesaid witnesses are sufficient for drawing inference that on the ground of misunderstanding and previous enmity the appellants came 5(1974) 3 SCC 698 6AIR 1984 SC 1622 ^' '<? with deadly weapons and assaulted Hari and Shivbaran resulting into their instantaneously deaths. 20. Defence has not taken specific defence of right of exercise of private defence, but evidence of Dr.D.K.Chikanjuri (PW-6) and Ex.P/28 reveals that four injuries were found over body of appellant Ramprasad including one lacerated wound over the head. No weapon has been seized from the spot or hands of the deceased. Defence has not taken any defence that except two persons i.e. deceased Hari and deceased Shivbaran other persons were present on the spot with whom quarrel took place. The appellants have also not taken defence by giving suggestion to Ku.Kamla (PW-1) and Santri Bai (PW-2) that they have caused injury to appellant Ramprasad or in other appellant. 21. Virtually the defence has not given any suggestion in cross- examination of any of the witnesses to show that some person has assaulted appellant Ramprasad or deceased Hari and deceased Shivbaran were holding some weapons and thereby they have caused injuries to appellant Ramprasad. Defence has also not taken any defence that after murder of Hari and Shivbaran, somebody has taken weapons used by the deceased persons. 22. In the absence of these suggestions/defence or facts, it is difficult to hold that both the deceased have caused injury to appellant Ramprasad, that too lacerated wound over the neck, same was of small size even by using hands and fists. 23. In these circumstances, considering the number of injures found over the bodies ofthe deceased, it appears that during the course ofassault by the accused persons mercilessly and repeatedly by dangerous weapons and sticks, some injuries would have been caused to appellant Ramprasad at the time of incident or injuries found over the body of appellant Ramprasad have not been caused at the time of incident. In these circumstances, complainant party were not under obligation to explain the injuries found over the body of the accused/appellants, but in the present case on stretch of imagination it would not be possible to presume that injuries found over the body of appellant Ramprasad have been caused by the complainant party or ^- 10 have been caused at the time of incident, therefore, complainant party was not under obligation to explain the injuries found over the body of appellant Ramprasad. Injuries were trifle in nature and were not sufficient for raising presumption that the appellants were not in eminent danger of their life, especially the deceased were not having any arm, therefore, right of exercise of private defence was not available to the appellants. 24. As held by the Supreme Court in the matters of Ranbir Singh and others (supra) and Naveen Chandra (supra), in case of right of private defence available to the appellants and if they exceeded right of private defence, then case will be fall under Section 304 Part-1 and 304 Part-11 of the I.P.C., but in the present case right of private defence was not available to the appellants. Injuries found over the body of both the deceased, number of injuries and weapons used are sufficient for drawing inference that the appellants who were having grudge and enmity against the deceased persons have caused homicidal deaths amounting to murder of Hari and Shivbaran with intent to cause their deaths. Presence of all the appellants on the spot with aforesaid weapons jointly/together shows formation of unlawful assembly armed with deadly weapons. 25. After appreciating the evidence available on record, learned trial Court has convicted and sentenced the appellants as aforementioned. 26. On close scrutiny of the evidence, we do not find any illegality or infirmity in the conviction and sentence imposed upon the appellants warranting interference in exercise ofappellatejurisdiction. • 27. Consequently, the appeal being without substance is liable to be dismissed and it is hereby dismissed. Sd/- T.P, Sharma Judge Sd/- R .L. JHANWAR Judge B/-