f HIGH COURT OF CHHATTISGARH AT BILASFUR Cr. A. No. 28Q/2QQ2 APPELLAN-TS Jora Lal aiid another Versus Respondent State of Clihattisgarh Judgment for consideration Sd/- JUDGB ^-7-2007 Hon'ble ShriJustice L.C. Bhadoo Sd/- L.C. Bhadoo Judge Judge post for ^7-2007 Sd/- DhirendraMishra Judge ^") ^ HIGH COURT OF CHHATTISGARH AT BIIASPUR Cr. A. No. 2SQ/2Q02 APPBLLANT-S KESPONDENT 1. Jora Lal, s/'o Peru Satnaiiii, aged 57 years, oecupation CLiltivation 2, Babu Lal, s/o Peru Satnaiai, aged 35 years, occupatiQn cultivation Both resident of village Khajri, Talisil Kheragarh, District Rajnandgaon. Versus The State of Chhattisgai'h, througli me District Magistratc, Rajuaiidgaon D.B. Hon?bie Shri L.C. Bhadoo and Hon'ble Shri Dhiresadra Mishra, JJ. Shri Shashank Thakur, counsel for the appeUmits, Mis^'a, Additional Public Prosecutor, for the Shri Akhil State/ respondent. JUDGMENT Per Dhirendra Mishra, J. : The instaiit appeal is directed against the judgment of conviction and order of sentence dated 12-2-2002 passed by me Addl, Sessions Judge, Khau'agarh, Rajnandgaon ui S/T\ No, 19/2001, whereby appellant Jeeralal and deceased accused Babulal have been convicted under section 302 of I.P.C. and Sections 302 read with Section 34 of I.P.C. respectively aiid each of the accused persons has been sentenced t.o unclergo unprisonment for life aiid fiae ofRs. 2000, in default ofpayment offine,to fiirther undergo R.I. for 10 montiis. 2. Case of the prosecution as unfolded from the First Information Report is that Amrita Bai lodged a report in Police Station Khairagm'h on 6-6-2000 mentioniiig therem that in the morning at about 7.30 a.m., she along with her fafher Rugu and younger bromer 'T'ukaraai had gone to the field situated near their honie for closing the water outlet. of the fleld, His father Rugu was sittmg on tlie boundaiy whereas she along wifh her brother was near U-ie water outlet. 'T'ukarani was diggmg the soil near the stump ofjujube tree, At that tinie, Jeeralal armed wifh axe and Babulal aniied with Lathi carae froni neighboring fleld and abused her father angrily allegmg that 'after cuttmg the stumps you intend to encroach his field' and started assaulting her father by axe and iafhi, whereupon she shouted "help", however they feU her father by assaulting and contuiued to assault. The incident was seeu by the villagers however they did not mtervene. Her father had received injuries over head, left cheek, below the ear, left haiid, left leg and right leg and blood started oozuig. He died on the way while he was taken to fhe hospital by bullock cart. 3, After registering the offence, investigation was conimenced. After giving notice Ex. P-2 to the panchas, inquest Ex. P-3 over the dead body was prepared. After preparmg inquest over the dead body in presence of witnesses, dead body was sent for autopsy to Prmiaiy Health Centre, Khau'agarh where Dr. R.R. Jindani conducted post niortem ai-id submitted his report of Ex. P-11. On tlie menioraiidum of Ex. P-6 of appellant Jeeralal, weapon of offence axe was seized vide Ex, P-7. Investigating Offlcer prepared site plaii of Ex. P-5. Seized articles-weapon of offence, lathi, axe and blood stained wearmg appareis of the deceased were sent for chemical examination and the report. of F.S.L. is Ex. P-14. After usual uwestigation, charge sheet was filed m the Court of Additional Chief Judicial Magistrate, Khairagarh who in tuni comniitted the case to the Court of Sessions Judge, Rajnandgaon aiid the sanie was received on transfer by the leanied Addl. Sessions Judge for trial. 4. Charge under Section 302 of I.P.C. was fraiiied against appellant Jeeralal and deceased Babulal who abjured theu' guilt. The prosecution examined m all 7 wimesses. Thereafter stateuient of accused persons was recorded under Section 313 ^ of Cr.P.C. The appellaats denied the circiuristances appearmg against them and pleaded innocence and false implication. However, Uie learned Addl. Sessions Judge convicted and sentenced the appellants as mentioned above, 5. Homicidal death of the deceased Rugu is not m dispute. Even other wise from the sta.tement ofAm.rita Bai (P.W. 1} and Tukarani (P.W. 2) as also the post mortem report which has been produced by Dr. Juidani (P,W\ 6), ui which he has found the injuries described below: 1. Bruise in size of 3 x 1/2"' above left thigh; 2. Bruise in size of 6 x W on left fhigh below injury no. 1; 3. Bruise 4 x 1/2"' above the left thigh at a distance of '"• ? 4. Bruise SYa x Ya over left thigh below the injury no. 3; 5. Bruise in size of 2 x W over left ariii, 4?? below the elbow; 6. Abrasion in size of %" below the left knee 7. Incised u7ound in size of 1 x W skin deep on the left thigh; 8. One tncised woiind ui size of ¥2 x i/2?? over right thigh 1/2" above the aiikle; 9. One mcised wound in size of 2 !/2 x W on left side of head, corresponding to fhis uijury there was a fracture of bone in size of 1 1/2 " in length and fhe brain was visible; 10* One incised wound ui size of Va x W> on left side 011 head W above the injuiy no. 9, m this injury , there was a fracture of 1??; 11. One incised wound in size of 1 x A/4?? on occipital region of head. t, Injuiy no. 1 to 6 were caused by hard and blunt object whereas iniuries no. 7 to 11 were caused by some sharp eclged article, and has opined that the cause ofdeathis the injuries present over head and other parts of the body, homicidal deatli of Rugu is established. 6. Leanied counsel for the appellant submitted that from the evidence available on record, it is evident that the complainant party was aggressor as they were digguig the boundmy of the fleld ofthe accused persons with aview to take possession and the accused persons have exercised the right of private defence of thetr property. D.W. 1 Peelaram Chandel, Revenue Inspector has proved fhe demarcation report in which the encroachmeut by constructing house over 0. 12 acre land by Meghnath, son of the deceased has been mentioned. There is a defliiite embellishment m the statement of T'ukaraiii as in the Courfc statemeut he has alleged that the deceased was assaulted by nieans of stones whereas there is no allegation in his dimy stateuient about the smiie. There are niaterial oniissions and contraclictions in fhe statement of the alleged eye-witness Anirita Bai, as pomted out in pai'a 35 of the judgment. 7. D.W. 1 Peelaraiii Chandel, Revenue luspector has proved the deniai'cation report. in which the encroacrmient by constructing house over 0.12 acre iand by Meghnath, son of the deceased has been nientioned. As per report of the F'.S.L., no blood stains were foiu-id over the weapon of offence and independent witnesses have not supported the prosecution case. 8. On the other hand, leanied counsel for the State supported me impugned judgment. 9, We have heard leanied counsel for the parties, 10. Conviction is based on the statenieRt of complainant Amrita Bai (P,W. 1) and Tukaram (P.W. 2) who are the eye- witnesses of the mcident. Anirita Bai has stated that on the date of incident at about 7,30 a.ni. her fafher Rugu was sitting on the boundar^7 of the field where she was closhig the water outlet whereas her brother Tukaram was digging the soil to remove the stunip, at that tinie Babulal armed with lathi and Jeeralal arnied with axe canie there. They started assamtmg her father saying that he is supervising the digging of soil. Jeeralal assaulted her father wim axe over his head, anii, bofh legs and near neck aiid Babulal also assaulted with iathi. Her father feU on the eartli whereupon she shouted* She snatched the axe of Jeeralal, iu me meanwhile, viuagers had come there and accused persons went away. Villagers were taktng her father m bullock cart and she was accompanying them. However her father died on way. She had produced the axe in the police station and lodged the report. In cross-examination, she has denied that theu' house was constructed over the land of the accused persons and any Panchayat was convened for this purpose. She has adniitted that there was sonie land related dispute of her father aud brother Meghnath witli Bahur Sn'igh and Sukhram and her father had lodged report against Bahur and Bhikham Smgh etc. She has denied fhat the stunip was situated ui the ffled of accused persons and the dispute was hi relation to forceful possession by her father on tlie field belongmg to the accused persons. She has also denied the suggestion that she reached only after hearing noise and she was not present at the tiiiie of incident. In the cross- examination of this witness, the defence has not been able to elicit anv material contradiction or omission in her statement except some trivial contradictions which do not go to the root of the matter. Statenient bf this witness is con'oborated ui material particulai's from the statement of her brother 'Ti.ikarani who has also stated that he along with his father and sister Amrita Bai were present in the place of mcident, his father was sitting whereas her sister was closing the water flow and he hunsetf was digging the soil and at that time the accused persons came armed with axe aiid lathi and started assaulting Rugu as a result of V7hich he sustained injuries over his body and he died while he was being taken on a bullock cart. in the cross- exaiiiination of this witness also, the defence has not been able to impeach the credibility of this witness though he has made certain embellishiiient regarding assault by stone weighmg 10- 10 kgvS. However, smiply because there are some omissions and contradictions here and there or some embellismiient in the statement of these eye-witnesses, their testimony cannot be discarded< Except the minor omissions aud contractions as pointed out, these two wimesses are stuck to their claiiu regardmg me majn incident i.e. assault by axe aiid latni by the accused persons. The statement of these two witnesses are further corroborated by the promptly lodged FJ*R. in which naiiie of Uie accused persons, the weapon by which assault was made and the presence of these two witnesses on the spot has been mentioned. Their statenients ai'e further coiToborated by the statement of Dr. D.R. Jindani (P.W. 6} and post mortem report in which the uijuries coiTesponding to the mjm'ies narrated by these two witnesses have been found. 11. So far as defence of the appeUant that the complainant party was aggressor as ftiey were trying to encroach the land m question, there is no evidence available on record that the land in question belonged to the accused persons, D*W. 1 Peelaraoi Chaiidel has not ^tated that on demarcatiou, eucroachment of deceased was found over the land of the accused. Even other wise from me evidence available on record, it is clem' tiiat the deceased was only sitting on the boundai^ aiid at that tinie, the accused persons came there aniied with weapon axe ancl latlii and staited assaultmg without any provocation, fherefore, fhe argiiment that the accused persons acted ui the right of private defence of theu' property carmot be accepted. So fai' as the fact that ui the report of F\S.L,, blood stains have not been found over the weapon of offence is concen-ied, in view of the fact that involvement of the accused persons in the crime m question is esta.blished by the statements of eye-witnesses^ Negative F\S.L. report does uot in aiiy mamier creates any doubt about the prosecution case, 12. On fhe basis of the aforesaid aiialysis, we are of tlie considered opinion that the prosecution has proved the involvenient of the appellant in crime iu question beyond reasonable doubt and fhe trial Court has not comniitted anv illegality or intimiity in convictmg aiid sentencing the appellaiit by the iiiipugued judgiiient. 13. The appeal bemg devoid of substance deseives to be disniissed and it is hereby dismissed. -^ " i~ . 1 Sd/- L.C. Bhadoo Judge Sd/- Dhirendra Mishra Judge