/- 2; • 7;^ HIGH COURT OF CHHATTISGARH. BILASPUR \ CORAM: Hcin'bleShriRaieevGuDta.C.J.& Hon'bte Shri Suhil Kumar Sinha. J. CriminalAoDeal No. 868 bf2006 Pramjia %^ .r' ;i Vs; State of Chhattisgarh JUDGMENT Forconsideration SdA SuGilKumarSmha .S~--~- :Judee •--"y HON'BLE SHRI JUSTICE RAJEEV GUPTA Sd/- ChiefJustice Post for Judgment ^.//07/2009 Sd/- Sunil Kumar Sinha Judge .< "!l"- iUUhuUBi;B^CTS^ttt3BGS^B^jijlJiII y 1 lil ••LiiiiTrT—'Esani Af« ..-^- ^/- HIGH COURT OF CHHATTISGARH.BILASPUR CQRAM: Hon'bleShri RaieevGuDta. C.J.& Hon'ble Shri Sunil Kumar Sinha. J. APPEU-ANT RESPONDENT Criminal ADpeal Nt>. 868of 2006 Pramila W/Q Jawahar Lal, aged about 25 years, R/o Village Kuiudih, P.S. Sanawat, ;,District Sarguja, presently reskient ^|Village Dugru,P.S Sanwal, DistrictSarguja(G.G.) Versus State of Ghhattisgarh Through the Police Station-Sanawal, Distt. Surguja (Appeal under Section 374 (ZlofThe CodeofCriminal Procedurel ADpearance: Mr. Abhay Tiwari, Counsel for the appeltant. Mr. Praveen Das, Dy. Govt. Advocate, fortheState. JUDGMENT (Zl.07.2008) Following judgment of the Gourt was delivered by Sunil Kumar.Sinha. J. !i Hiii .]'-1 ^ w .^' III—;r (1) Appellant Pramila stands coniflcted u/ss 302 S 201/34 IPC and sentenced to undergo imprisonment for life & to pay fine of Rs.100/- and R.t. for 2 yeare & to pay fine of Rs,'f00/-respective!y w'th defaulf sentence of 1 mpnth, with a further dire<stion to run the sentences concurrently, by the First Additiona! "Se&sions Judge (F.T.C.), Ramanujganj, District Sarguja (C.G.) on31st ofAugust, 2006. (2) The facts, briefly stated, areas under- Deceased Ramlal was the father of the appellant. 60- accused Norashiya Bai is the wife of the deceased. Co-accused M li,,,i..i li:ni!'i I i Criminal AnoealNo.868 of 2006 Jawahar is the husband of appellant Pramila and co-accused Ramnath Gohd is brolher of Norashiya Bai and brotheMn-law (Shala) of deceased Ramlal. The aHegations are that priorto 23.11.2005, the accused persons namely Pramila (present appellant), Jawahar and Norashiya Bai committed myrder of deceased Ramlal and took the dead body to a distanee place in Saharapani forest and buried the samewith theassistance ofco- accused Ramnath Gond for c^usjnig disappearance ofthe evidence _fit ^ . _ . . ' ' • of murder. On 23.11.2005, Rajaram and Dubraj saw some portion of the dead body buried in the sand They immediately werrt to other villagers and narrated the story and thereafter a Merg intimation (Ex.-P/1) and a First information Report (Ex.-P/2) were registered. The Investigating Officer reached tothe scene of occurrence, gave notice (Ex;-P/3) to the PanGhasand prepared inquest (Ex- P/4) on the body of the deceased. Some pieces Of stones, plain sand and blood stained sand were seized from tiie |p!aee of occurrence under Ex.-P/S. After taking the accused persohs into custody, their memorandumstatements (Ex-P/8 & P/9} ufe 27 of the Evidence Act were record^and 2 pieces of bamboosticks were seized at the instance of accused Jawahar under Ex.-P/6 and a bronze tumbler was seized at the instance of accused/appellant Pramila under Ex.-P/7. Thedeadbodyofthedeceasedwassentfwitspost-mortem to Govt. Hospital, Ramanujganj, where the post-mortem examination was conducted by Dr. S.K. Sinha (PW-7), who prepared his repwt Ex.-P/15. He noticed 3 extemal injuries on the skull ofthe deceased. One was on thp right fronto-temporal region, another was on tlT¥left tempoFal-oocipital regfon and the third one was on right temporal occipitalregion. On intemal examination, he found corresponding fractures on right fronto-temporal bone, left temporal-occipitat bone ancf right temporal-oceipital bone. The Autopsy Sui^eon opined that fhe eause of death was shoefcdueto internal haemorrhage & (njury to the brain and it was homjcidal in nature. SSSgsSSf Crimmal AooealNo. R68of2006 The prosecutioh Came wth a case that the deceased died homicidal death in his house on aceount of injuries caused on his head by theaforesaid fejmbler and it wasdone in furtherance of common intentionofaccusedJawahar, Pramila and Norashiya Bai. After thedeath, the dead body ofthe deceased wastaken fothe forest area and it was buried in the sand in which accused Ramnath Gond atso assiste<tthe otheraocused pereons. ,fl (3) The Learned Sessions Judge came to the conclusion that the appellant alone partfeipated in Commission of murcfer of deceased, whereas, other accused persons Jawahar and Smt. Norashiya Ba{ parti'cipated in causing disappearance of the dead body. Therefore, the appellantwas convicted and sentenced as aforementioned and the other two co-accused persons wereconvicted under Sectton 201.^34 ofthelPC and sentenced to undergo R.l, for 2 yeare with fine sentences and ttie last accused Ramnath Gond wasacquitted of the charges framed against him. (4) It is a case in which appellant Pramila herselfappesired as a defence witness and deposed that on the fateful day, when the deceased tried to assautt her with an intention to commit rape upon her, she assaulted the deceased by a tumblertresultfng into his death .+ - . : (5) Mr. Abhay Tiwait, leamed couns^ appearing on behalf of the appellant, arguedthatthe appellantexercised the right of private defence ofbQdy and the deceased was assautted by the appellant when he trfed to commtt rape upon her, therefore, the act of the appellant Woyld be coyere(f?ufe100 IPG and conviction ofthe appetlant cannot be stjistained. Cmninal ABpealNo. 868 of2006 (S) Mr. Praveen Das, leamed Dy. Govt. Advocate appearing on behalf ofthe State, opposed these arguments and supported the judgment and order passed by the Sessions Court. 'V. (7) We have heard the learned counsel for the partiesat length and have alsoperused therecordsoftKS sessions case. .^ (8) Right of private defence falls in the category of General Exceptions define under Chapter IV of the IPC. Section 96 providesthat nothing is an offence whjch is done in the exereise of the right of private defence. Sections 96 and 98 confer a right of private defence against certain offences and acts and Section 99 provides acts against whichthere is no right of private defence. It clearly provides that there fs no right of (M'ivate defence agalnst an act whfeh does not reasonabty cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a publfo servant acting in good faith under colour oftiis ofRce, though the act, ma'y rtot be strictly justiflable by law. It further provides that there is no right of private defence against an act which does not reasonably cause the apprehension of death or 6f grievous hurt, if done, or attempted to be done,bythe directibn of a public servant actmg in good faith under colour pf his ofRce, though that direction may not be strictly justifiable by law and further thatt'there is no right of private defence in cases in which there is time to have r®sourseto the protection pfthe jiublicauthorities. Extentto which the right may be exercised, it providies that the right of private Oefence in no case extends to the Jriflictjng of more tiarm than it is Becessary to mfflct fbr the pijirpi^ 1c 'clltehce; Section; 100 provides that the nght of private defen^?ofi||ie|| i J.'nH^KHE.siaitWWU • 3K iill'i U fv Itti^i Ifc. •i f Kt" !! Crinunal Aooeal No. 868 of 2006 body extends under the restrictions mentioned in Section 99, to the \ voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions i.e. "Fffsf- SuQhan assault, as may reasonablycause the apprehension that death wll otherwise be the consequence of such assault; Secondly - Such an eesault as may reasonably cause the .ft . • ^ apprehension that grievous hurt will otherwise be the consequence of such assault; Thtrdly - An assault wlth the intention of committing rape; Fourthly - An assault with the intention of gratifying unnatural lust; FiHhly - An assault with the intention of kfdnapping or abducting & Swthly - An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he wil! be unable to have recourseto the public authorities for his release". (9) The law in ourcountry places the burden of proof of guilt upon the prosecution. The presumption of innocence has to be dislodged by the prosecution by leading evidence pointing to the guilt of the accused. However, under Section 105 of the Indian Evidence AGt, the burden of proving the existence of circumstances bringlngthe case^within any of the General or Special Exceptions isplaced on the accused. Sections 102 and 105 IPC deat withcommencement and continuance ofthe right of private defence of body as welt as property. It commences as soon as A a reasonable appreheTision ofdangerto'the bodyarises from an attempt, orthreat, to commit the offence, although the offence may not have been committed, but not until there is reasonable apprehension. We mean to say that such right is co-extensive to the reasonable appreheRsior(<;^tte 'tiangertothebodycQntinues. ' | 6 Crinunal Ameal No. 868 of2006 '^ (10) Therefore, if claim is being made that the appellant acted in \ _ exercise of power of right of private defence, she must show that there were prevailing circumstances gwing rise to reasonable apprehension that the alleged assauft was heing made to her by the deceased with the intentionof committing rape upon her. If the burden has not been discharged to satisfy the aboy,e requirement, right claimed by the "% ft appellantwas not available to her: (11) Ncw we shal! examine the case on hand on the above pnnciples. Admittedly, the accused pereons and the deceased were residing tc^ether in the same house. The deceased was the father of the appellant. The appellant was aged about 24-25 years on the date of incident. She deposed in herevidence that onthe fatefu! day, shewas at! atone in her house. Her husband and her mother were not present in the house. In the eveningat aboufrS.OO p.m., the deceased came in drunken condition and started molesting her. She resisted saylng that she is his daughter butthe deceased did not stop and hethrew her on the ground. The deceased (father) wastryingtocommitrapeupon her, onwhich, she assaulted the deceased with the tumbler and ran away out of the house. In the cross examination.she admitted that the relations between them were notcordia!. She also admittedthat the tumbler was a heavy tumbter which she hiton the head ofthedecease^and thedeceased died out of the injuries caused by It. She also deposed that she alone had taken the body to the A/ate where it was buried. In fact, the appellant was cross- |$xe»lined by theAdditiona! Public Prosecutor (A.PP) at length butthe 8SB;IBBR9i&u!cl,,'ndt:litiHn9 Baype isaid tha^tfie appellant was giving »falseii/erstO JB any suchcircumstancefnthe cross examjnatiOn SK ^•-; s ^' :-^^' y^SSSSSS^ I"!-- / j. i ! !S : 1 j Criminal Appeal No. 868 of2006 examination-in-chief or she was making a fatse ground to avail the plea \ ~ ~ ^ of right of private defence. (12) Leamed Session Judge disbelieved the evidence ofthe appetlant merely on the ground that no such plea was taken by the defence while examination of the prosecution witness. In catena of decisions, the Apex <? . ! ' . Court held that even if a pf^a of right of private defence was not speeificallytaken by ttieappedant atthe stage oftFial,but,iftnfect,it was available to him, he may raise the p!ea on the probabilities and the circumstances obtainmg in the case. No positiveevidence, afthough, is required to be adduced bythe accused and the burden of proofcan be discharged by eliciting the necessary materia! from the witnesses examined by the prosecution and it can be estabtished by attending circumstances as may come out from the prosecution evidence itself or it can simpty be discharged by adducing the defence evidence fPlease see - Kashl Ram and others -Vs- State of M.P.. AIR 2001 SC 2902: Blshna allas Bhlswadeb Mahato antl others -Vs- State of W.B.. f2006) 12 SCC 857 & Saffm Zia -Vs- State oftMarPradesh. AIR 1979 SC 391t. This view was also taken by this Court in the matter of AkhlSesh Kumar & offiers -Vs- State of C.G.. 200S W C.G.L.J. 85 /DB) ; .1- (13) Therefore, «eare of the con^'dered opinion that in the facts and circymstances of the case.the learned Sessipns Judge comptetely erred in law in discarding the plea of right of private defence on such a ground asalso the version of the appellant, who established by her evidence that oi»the fateful day, the deceased ,had tried to commit rape upon her and ':i;;i:::1/- !:B' Criminal Aooeal No. 86S of2006 she assaulted the deceased by atumbler, resulting into his death, in \ ^ ' . exercise of right of private defenee of her body and her such act would be covered under Clause Tbirdly of Section 100 IPG andshe would be entftled for acquitta!, < - (14) In the resuft, the appeal is aliowed. The conviction and sentences '^ _.. _ ....^ ^.._ ' :! _ . awarded to the appellant uts's 302 & 201^34 IPC are set aside. She is aequittedofthe charges framed-against her. !t is stated that the appetlant is in jail since 27.11.2005. She beset at liberty.forthv'jth, if not required in anyQthercase. 1 'SdA'.,, - ChiefJustice SdA SunilKumarSinha ^•Judge vaffi ;<. ^-'..'^i^ -;j ?j.;:l%^;?ili^ tJIBIISiit ^^^J^