s""'^ ^ ^ o^ ^' .••'1%^ 'y'^^s a.:' SJn.i^t IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Apeal No. ^J 70F 2007. APPELLANT (In Jail) RESPONDENT Mukesh Rathore, S/o Shri Dilharan Rathore, Aged about 25 years, occupation student, R/o New Chandaniya Para, P.S. Janjgir, Distt Janjgir-Champa (C.G.). VERSUS State of Chhattisgarh Through: P.S. Janjgir. APEAL U/S 374 (2) OF THE CRMINAL PROCEDURE CODE .^W^.^w.s.1^, ^- F- ^, HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 957 of 2007 APPELLANT RESPONDENT VERSUS Mukesh Rathore. State of Chhattisgarh. [IC Shri R.P. Tripathi counsel forthe appellant. Shri Vaibhav Goverdhan PL for respondenVState. the CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (26.11.2009) This appeal is directed against judgment dated 03.10.2007 passed by Sessions Judge, Janjgir Champa in Sessions Trial No. 169/2006 convicting the appellant for the offence punishable under Section 307 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for five years and pay fine of Rs. 2000 in default of payment of fine to further undergo rigorous imprisonment for three months. 2. Facts of the case in brief are that FIR (Ex. P-1) was lodged on 10.7.2006 by Nepali Rathore (PW-1) alleging that on that day at about 10.40 p.m. accused persons assaulted him including one Jitendra alias Pintu and Vikas Rathore alias Lala. It is alleged that on that day one Vakil Singh Rathore alias Bablu (PW-3) after being abused by the appellant had taken Jitendra alias Pintu and Vikas Rathore alias Lala near his house. It is also alleged that Vakil Singh Rathore alias Bablu had gone there in connection with some money transaction. It is alleged that as soon as this witness, along with one Jitendra alias Pintu and Vikas Rathore alias Lala reached there, the present appellant and other accused persons started abusing them and when the complainant party protested against such abuses, they took out sword and assaulted them causing injuries on vanous 'i^ ^ 2.— parts of their body. After completion of investigation charge sheet was filed against the appellant before competent Court. 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 11 witnesses. Statement .of the accused/appellant was also recorded under section 313 ofthe Code of Criminal Procedure in which he has denied the charges levelled against him and pleaded his innocence and false implication in the case. However, accused Rajesh and Suresh have been acquitted of the charges levelled against them. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellant for the offences mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. It is to be noted that a counter report was also lodged by the accused/appellant vide Crime No. 378/2006 at about 11.40 p.m. on the same day and on the basis of which a case under sections 456, 323, 34, 147 and 148 was registered against Nepali Rathore, Jjntendra alias Pintu, Vikas alias Lala and Vakil alias Babloo. 7. Counsel for the appellant submits that in fact it is the complainant Nepali Rathore and his friends who were the aggressors and when they entered the house of the appellant and assaulted him as well as other members of the family, the appellant exercising the right of private defence caused some injuries to the complainant party. He further submits that from the FIR it is clear that Vakil alias Bablu Rathore was abused by the appellant and other accused persons on account of which he had taken his friends to the house of the appellant to assault him and other members of his family. He submits that the witnesses have improved their version before the Court and thus taken a totally different story saying that the appellant had called Vakil alias Bablu and as they were sitting near the house ofVakil alias Bablu, he took them to the tl house ofthe appellant where he assaulted Nepali Rathore, Jitendra alias Pintu and Vikas alias Lala. He referred to the statements of Nepali Rathore (PW-1), Jitendra alias Pintu (PW-2), Vakil Singh Rathore (PW-3) and Vikas alias Lala (PW-5). He submits that the doctor who examined the victims has not stated that the injuries caused to them were grievous in nature and therefore the offence under Section 307 IPC is not made out against the appellant. He submits that even if entire case of the prosecution is taken as it is, at best the act of the appellant may fall within the ambit of section 324 IPC. According to him, even if the injuries sustained by the victims are taken to be serious in nature, the act attributed to the appellant can not travel beyond section 325 ofthe Indian Penal Code. 8. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the manner in which the victims have been assaulted, the intention on the part of the appellant to cause their death is writ large. He submits that victim Nepali Rathore has suffered two incised wounds and one fracture on his ring finger, victim Jitendra alias Pintu has suffered six incised wounds and five fractures and victim Vikas alias Lala has suffered three injuries and the fracture of ulna. According to him, looking to the injuries caused tothe victims it appears that they survived luckily otherwise the appellant was determined to cause their death and in these circumstances the conviction of the appellant under Section 307 IPC and the resultant sentence is just and proper and no interference therewith is warranted. 9. From perusal of the FIR and the statement recorded under section 161 of the Code of Criminal Procedure it is revealed that initially Vakil alias Bablu had gone to the house of the appellant for collecting money and there was some dispute between the two. Later, Vakil alias Bablu took the victims to the house of the appellant for collecting money where they were assaulted by him and other accused persons as well. Nepali Rathore (PW-1) has categorically stated as to in what manner the appellant has assaulted Jitendra .r ^ ^ "%. 11 •^^^- -^- ^ 'i^.- alias Pintu and Vikas alias Lala. He has stated that first the appellant assaulted Jitendra alias Pintu with sword and when this witness tried to save him, he was also assaulted by him. He has statedthat when victim Vikas alias Lala tried to intervene, he was also assaulted by the appelalnt with sword. Almost similar statements have been made by Jitendra alias Pintu (PW-2), Vakil Singh Rathore (Pw-3) and Vikas Rathore alias Lala (Pw-5). The statements of these witnesses have been supported by Dr. S.K. Dwivedi (PW-8) and Dr. Mukul Shrivastava (PW-9). Dr. S.K. Dwivedi (PW-8) has found the following injuries on the body of the victims: Lnjuries sustained bv victim Nepali Rathore: (i) incised wound 5 x 1 c.m. x 1/4 c.m. on the right forearm above the wrist. By the side of the wound, fresh blood was there. (ii) Incised wound 6x1x1/4 c.m. on the palm of left hand. Both these injuries have been caused by sharp edged weapon. On x-ray being done fracture was found on the ring finger. Iniuries sustained bv victim Jintendra: (i) incised wound 7x4x2 c.m. on the right wrist above the wrist. On the margin of the cut wound, fresh blood was oozing. (ii) Incised wound 5x3x1 c.m. on the back side of palm of right hand. Fracture suspected and X-ray was advised. (iii) Incised wound 5x2x1 c.m. on the left forearm. Fracture suspected and X-ray was advised. (iv) Incised wound 3x2x1 c.m. on the left thumb. Fracture suspected and X-ray was advised. (v) Incised wound 6x3x1 c.m. on the right parietal region of skull. Injury in the size of 5x2x1/2 c.m. was there on the forehead. (vi) Incised wound on the left knee where fresh blood was present. Pulse rate was 104 per minute. Iniuries sustained by victim Vikas Rathore: (i) incised wound 9 x 1 x 1/4 c.m. on the left forearm abovethe wrist. (ii) Indsed wound 10 x 1 x 1/4 c.m. on the medial aspect of the left forearm. ..:.<«^^?^: ^ j "'t 1 -ST^ ^ (iii) Incised wound on the right forearm. On the backside of the wrist joint, two more injuries were there in the size of 1.5 x 1 c.m. x skin deep and the other one in the size of 2.5 x 1 skin deep. Fresh blood was present and these injuries were caused by sharp edged weapon. Dr. Mukul Shrivastava, Radiologist (PW-9) has found the following fractures on the body ofthe victim Jitendra: Fracture on the femur bone towards the knee joint. One fracture on the radius bone and three on ulna bone in between elbow and wrist. Fracture on ulna bone of left forearm was also found. 10. Though there are contradictions and omissions in the statements of the witnesses in particular the statements of Nepali Rathore (PW-1), Jitendra alias Pintu (PW-2), Vakil Singh Rathore (Pw-3), Dilip Rathore (Pw-4) and Vikas Rathore alias Lala (Pw-5), they have categorically supported the case of the prosecution narrating in detail as to the manner in which the victims were assaulted. Further the medical report given by Dr. S.K. Dwivedi (PW-8) and Dr. Mukul Shrivastava (PW-9) confirms the injuries caused to the victims to be of grievous nature. Though the doctors have not specifically stated regarding the injuries sustained by the victims to be serious in nature, from Section 320(7) of the IPC it is clear that the fracture or dislocation of a bone or tooth are designated as grievous hurt. Thus it is, clear that the accused/appellant has caused grievous injuries to the victims. 11. Now the next question to be considered by this Court is whether the accused/appellant assaulted the victims in exercise of right of private defence? From the record it is clear that it is not a case where after inflicting one injury to each of the victims the appellant had stopped; rather the record shows that all the three victims have been continuously assaulted by the appellant with a lethal weapon i.e. sword. From the injuries sustained by the victims, the appellant appears to have exceeded his right of private defence in continuously inflicting blows with the help of sword to all the three ,^-^^,. j,-; <.. %.^/~ ^,^^'';.--:'. -<o- victims. The right of private defence of person and property is a well recognized valuable right and it is necessary to be preserved for maintenance of the rule of law. Persons have to respect the right of person as well as of property. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not a punitive right. In the case in hand, what emerges from the evidence available on record is that as soon as three victims along with one Vakil alias Bablu had gone to the house of the appellant, they all were brutally assaulted by him. Thus the contention of the counsel for the appellant that the act of the appellant falls within thepurview of right of private defence is not acceptable to this Court. 12. The argument advanced by the counsel for the appellant that the doctor examining the victims has nowhere stated in his evidence that the injuries sustained by them were dangerous to life, is not acceptable for the reason that under Section 307 IPC, the act irrespective of its result, done with the intention or knowledge is to be seen. Further the nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow and the part of the body where the injury is inflicted are some of the necessary factors to be taken into consideration while convicting the accused under Section 307 IPC. Infliction of serious injury is not at all necessary for constituting an offence underthis section. 12. At this stage, counsel for the appellant submits that as the counter case has not been decided by the learned Magistrate, the impugned judgment passed by the Sessions Court in the present case is a nullity as the same violates the legal and fundamental right ofthe appellant. 13. lam afraid that no such ground is available to the counsel for the appellant when he has argued the complete appeal against the impugned judgment. If an application of the appellant was dismissed by the learned Sessions Judge for clubbing and deciding his case ~7- and the counter case is pending before the Magistrate, then the remedy was available to the appellant but the appellant in stead of availing that remedy has participated in the trial before the Sessions Judge and allowed the Court to pronounce the judgment. 14. Thus after considering the overall evidence available on record particularly the injuries sustained by the victims, this Court has no hesitation to say that the appellant was predetermined to cause their death. In this view of the matter the impugned judgment convicting and sentencing the accused/appellant under Section 307 IPC is whollyjustified and does not require any interference. 15. In the result, the appeal being without substance is hereby dismissed. Sd/- Pritinker Diwaker Judge ^