HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.547 of 1989 .Cor‘am: HON’BLE MR.T.P.$HARMA & HON‘BLE MR.R.L.JHANWAR, JJ. Vikram Nair, son of Padmanaban Nair, aged 26 years, residem of ‘Charcha Coliier'y, Poiice Sfa‘rion ’Baikun’rhpur‘, Dis’rr'ic’r Sarguja APPELLANT Versus Sfafe of Madhya Pradesh (now Chhah‘isgarh) RESPONDENT (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present— Mr Surendm Singh Senior counsel wi‘rh Mr.Neeraj Mehfu & Mr' M K Beag, counsel for fhe appellanf Mr‘ Ashlsh Shukla Governmenf Advocate wu‘rh Mr Sandeep Vadav Depu‘ry' Governmen‘r Advoca‘re for The Sfafe/responden’r. JUDGMENT 'Passed on 2-§”' November, 2009) ( l it The judgmenf of The Court was delivered by T.P.$harma, J3- 1. By This appeal, ‘rhe appellant has challenged the legality and propriety of the judgment of conviction and order of sentence dated 31.3.1989 passed by the Additional Sessions Judge, Baikunthpur, District Surguja, In Sessions Case No.40/88 whereby 8i whereunder learned Additional Sessions Judge after holding‘the appellant guilty for the commission of offence of murder punishable under Section 302 of the Indian Penal Code 'J sentenced him to undergo imprisonment for life. 2. Judgment 6i order impugned are challenged on the ground that the Court e“ below l'las not considered the right of private defence of the person and isa\\ V mg Is \>‘ \}‘ N I l is: w m, \>\ \" evidence adduced on behalf of fhe prosecution and fher'eby committed illegality. . Case of the prosecution in brief is that the present appellant is‘distant relative of the deceased V.S.Vijay Kumar. The present appellant went to the shop of Tapan Chakravarti (PW-5) on 14.9.1987 at about 4 pm. situated at Ghutari, Tahsil Baikunthpur. The deceased also went to the shop of Tapan Chakravar'ti. Both started quarreling and assaulting to each‘ other by hands. Tapan Chakravarti (PW-5) ousted both the persons from his shop and went to other place. After half an hour when he came back, he came to know that the present appellant has assaulted the deceased by scissors of his shop and as a result of such injury. He was shifted to the hospital by Ashok Singh (PW-2) and Badru Jama Khan. He was admitted in/ hospital vide Indoor Patient Case Record EXP/9. Dr.Vijay Shankar sharma (PW—13) has examined the deceased and found following injuries over the body of the injured V.S.Vijay Kumar: i) One punctured wound below left nipple of % " x %"jx %" ii) One punctured wound over 7’h rib of right side ‘o %" x % x 1 1 u i iii) One punctured wound over middle of the chest o %" x %” x 1 %il 1n Punctured wound near 3rd injury of %" x %" x 2 v) One Punctured wound over right auxilla of 2" x -§-" x %" vi) Punctured wound over left side of the neck above clavicle $1: vii) Multiple abrasion over left side forehead ~ viii) Punctured wound over right parietal bone of %" x %" bone of 1 %" x z. x %" Condition of the deceased was serious. During the course of treatment he succumbed to the injures sustained by him within 15 minutes. The doctor intimated the death of the deceased vide EXP/14. FIR. was: registered on the basis of EXP/14 vide EXP/1 at about 4.10 p.m.\ on 14.9.1987. The appellant went to the police station Baikunthpur and lodged Rojnumacha Sunha vide EXP/8. Police officer leff for the hospiful and offer summoning The witnesses vide EXP/4 inquest, over fhe body of The deceased V.S.Vijay Kumur was prepared vide EXP/5. Dead body was senT for aufo‘psy f0 Primary Healfh Cem‘re, Baikunfhpur vide EXP/10A. Au‘ropsy was conducwd by Dr.Vijay Shankar Sharma (PW—13) vide EXP/10 and noficed The aforesaid injures. The docfor has opined That fhe cause of deafh was shock. Injuries were anTe-mor‘iem and caused by pointed and sharp aged scissors knife. Spot map was prepared by pafwari vide EXP/2. The appellan’r was examined vide Exs.P/3 and P/4 and found one Iacerafed wound over right occipifai region of 1 c.m. x 1 c.m. Spot map was prepared by 1‘he inves'rigafing officer vide Ex.P/5. The appellan’r was faken info custody. He made disciosure statement of the Scissors vide Ex.P/6 and at, the instance of disclosure statement of the appellant, scissors was recovered vide EXP/7. $cissors was sent for chemical analysis to the doctor and the doctor was opined that injury found over the body of the deceased may be caused by the scissors vide EXP/11. Sealed clothes of the deceaSed were recovered vide EXP/12. Seized articles were sent for chemical analyses vide EXP/18. Presence of blood over Scissors recovered from the accused was confirmed vide analysis report EXP/19. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code’) and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Baikunthpur who in turn committed the case to the Court of the Sessions Judge, Surguja from where Second Additional Sessions Judge, Baikunthpur received the same on transfer for trial. In order to prove the guilt of the appellants/accused, the prosecution examined as many as 15 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code where he denied the circumstances appearing against him and claimed innocence and false implication. He has taken the defence that he along with his deceased Feau /L7}\t,_ ¢ @ brofher‘ V.S.Vijay Kumar wen? +0 *eashop of wi’mess Ramnaresh for Taking ‘rea. While They were wai‘ring for Tea u‘l' ‘rhe shop of Tapan Chgkmvurfi (PW-5), the deceased wen1' from The shop and affer' some’rime he came back and used filfhy language To him and assaulfed by pelfing sfone over The head and oTher‘ parTs of The body. The appeIlanT fell down, The deceased siT over' his chesT and Tried To cause injury by poinTed parT of umbrella. He cried for help. Tapan ChakrovarTi (PW-5) inTercepTed, Then The appellanT wenT Towards cooperaTive sTores and lodged The reporT. 6‘ AfTer' affording an opporTuniTy of hearing To The parTies, learned AddiTional Sessions Judge, BaikunThpur has convicTed and senTenced The appellanT as aforemenTioned. 7. We have heard Mr.Surendra Singh, Senior counsel wiTh Mr.Neeraj MehTa & Mr.M.K.Beag, counsel for The appellanT & Mr.Ashish Shukla, GovernmenT AdvocaTe wiTh Mr.Sandeep Yadav, DepuTy GovernmenT AdvocaTe for The STaTe/respondenT and perused The judgmenT impugned and record of The CourT below. I 8. Learned counsel for The appellanT vehemenTly argued ThaT The presenT appellanT was siTTing in The shop of Tapan ChakravarTi where The deceased came and afTer' abusing assaulTed him. Tapan ChakravarTi inTercepTed The quarrel Then The deceased Tried To ossaulT The appellanT by umbrella. Tapan ChakravarTi (PW-5) caughT hold The deceased and advised The appellanT To flee away from The spoT, buT afTer pushing Tapan Chakravarfi, The deceased chased The appellanT for causing grievous injury/murder. ResT parT of The incidenT has noT been seen by any of The wiTnesses. The deceased has peITed sTone over The head of The appellanT and caused laceraTed wound of 2 c.m. x 1 c.m. over his occipiTal region. ifie himself has lodged The reporT To The police. He wasexamined by The docTor vide Ex.P/3. Learned counsel furTher argued ThaT The appellanT has noT caused any homicidal deaTh To The deceased. He has caused some injuries To The i i deceased in exercise of The righT of privaTe defence of The person and even if he exceeded the righf of privafe defence of the person, Then The same is no’r punishable under Section 302 of the Indian Penn! Code. Learned counsel also argued that at the worst his act may fall under Exception 4 of Section 300 of the Indian Penal Code. Exception 4 would apply if death is caused without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and offence does not travel beyond Section 304 Part' I of the Indian Penal Code. 9. Learned counsel placed reliance in the matter of Madan & Ors. v. State of Madhya Pradeshi in which the Apex Court has held that the right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat or commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. Learned counsel further placed reliance in the matter of Rakesh v. State of M.P.z in which the Apex Court has held that in case of sudden fight without premeditation in a sudden fight in the heat of passion without taking undue advantage or acted in cruel or unusual manner, the offence falls under Exception 4 of Section 300 of the Indian Penal Code and punishable Under Section 304 Part I of the Indian Penal Code. Learned counsel also placed reliance in the matter of Bihari Roi v. State of Bihars in which the Apex Court has held that the number of injuries is not always a safe criterion for determining who the aggressor was and while taking right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. Theburden is on the accused to show that he had a right of private defence which extended to causing of death. Learned counSel further placed reliance in the matter of ‘AIR 200's sc 3083 2m: zoos sc 1229 3AIR 2009 sc 18 Mm 2009 501923 x 5 (1974) 3 scc 639 Samokh Singh v. S‘ra're of Punjab" in which ’rhe Apex Cour‘r has held fhaf in The absence of any evidence 1‘0 show fhaf There was apprehension abouf the safety of the persan, it cannot be said that the accused has exercised the right of private defence of causing death, conviction would be under Section 304 Part I of the Indian Penal Code. 10.0n the other hand, learned State counsel supported the judgment impugned and argued that in the present case, both the persons were quarreled with each other in front of shop of Tapan Chakravarti (PW-5). The deceased was having umbrella and apprehension of causing grievous hurt or death to the appellant was reasonable at that circumstances, but when the deceased went away from the shop of Tapan Chakravarty armless (weaponless), then there was no occasion to cause as well as 8 punctured wound over the different parts of the body mainly over the chest by scissors taking from the shop of Tapan Chakravarty. These facts clearly show that after leaving the shop of Tapan Chakravarty by the deceased, there was no occasion to exercise the right of private defence because there was no reasonabie apprehension of danger to the appellant and in the absence of such apprehension, 8 injuries caused by the appellant after taking scissors from shop of Tapan Chakravarty shows the intension of the appellant of causing death of the deceased. Learned counsel further argued that the Court below has rightly convicted and sentenced the appellant as aforementioned. Learned counsel also argued that the accused himself has lodged the report which is sufficient to establish his presence at the time of incident and motive of the crime. 11. Learned counsel placed reliance in the matter of Thakarda Lalaji Gamaji v. The State of Gujrat5 in which the Apex Court has held that FIR. lodged by accused can be used by prosecution to show motive and presence of accused at the scene of occurrence. F.I.R. lodged by accused showing deceased to be unarmed. No act of deceased suggested or proved to VQ‘A\ $\ v‘ wc xv; i$‘§\._ @ jus’rify self-defence, #he accused held f0 be The aggressor. Learned counsel furfher‘ placed reliance in The maf'rer of Bher‘u Silwgh s/o Kalyan Singh v. State of Rqiasfhan‘ in which the Apex Court has held that F.I.R. lodged by accused can be used against the accused as evidence of conduct under Section 8 of the Evidence Act and relating to disclosure of facts admissible under Section 27 of the Evidence Act. 12.In order to appreciate the contentions of the parties, we have carefully examined ocular and documentary, evidence adduced on behalf of the é prosecution. In the present case, homicidal death of the deceased as a result of injury is not substantiaiiy disputed by the appellant, otherwise also proved by the statements of Ashok Kumar Singh (PW-2), Chaganmal (PW-3), Ramnaresh (PW—4), Tapan Chakravarti (PW—5), Ramji (PW-6), Bharat (PW-7), Bhaiyalal (PW-8), Dr.Vijay Shankar Sharma (PW-13), Rajnamcha Sanha lodged by the accused himself (Ex.P/8), admission ticket 7 of the deceased (EXP/9), autopsy report (EXP/10), intimation of death (EXP/14) and FIR. (EXP/1). 13. Dr.Vijay Shankar Sharma (PW‘13) has specifically deposed in his evidence that on 14.9.87 at about 4 p.m., he has examined the deceased V.$.Vijay Kumar and found the aforesaid injuries and same were sufficient for causing death. He has also examined scissors vide Ex.P/11 and opined that injuries found over the body of the deceased were caused by scissors. 8 punctured wound were found over the body of the deceased mainly over the chest. Injury was in grasping stage. Pulse and blood pressure were not recordable. 14.As regards the complicity of the appellant in the crime in question, the present appellant has not disputed the fact that he was quarreled with deceased in front of the shop of Tapan Chakravarti. He has also taken the defence in his statement recorded under Section 313 of the Code that he along with his deceased brother V.S.\(ijay Kumar went to teashop of is(1994) 2 5C6 467 \ «w» w-w wwwvvv‘n—W’ @ witness Ramnaresh for Taking Ten. While They were waiting for 1ea af ‘rhe shop of Tapan Chakr'avar‘ri (PW-5), The deceased wen’r from The shop and after sometime he came back and used filthy Ianguage ”to him and assauhed by pel’ring sfone over fhe head and wher por’rs of The body. The appellam’ fell down, The deceased sh“ over his ches’r and tried To cause injury by poim‘ed par‘r of umbrella. He cried for help. Tapan Chakravarfi (PW—5) infercepfed, Then the appellanf wen? towards coopera‘tive stores ‘ / and lodged The report. Tapan Chakravarfi has also deposed ‘rhaf while The appellanf was sifting in fronf of his shop the deceased came and after abusing him, assaulfed The appellant The appellan‘i fell down, The deceased assaulTed him by umbrella. He inTercepTed and snaTched umbrella and caughT hold The deceased. He also advised The appellanT To flee away from 1 ?’ The spoT. The appellanT fled away Towards cooperaTive sTor'es, Then The deceased afTer pushing him ran away Towards The accused/appellant He wenT To purchase some arTicles To The shop of Mulla. AfTer some’rime, 7 Ramji and BharaTlal came To his shop and informed him ThaT The deceased died in The hospiTal. The prosecuTion has declared him hosTile on The poinT of scissors Taken by The appellanT from his shop. Ramnaresh (PWe4) has also corroboraTed The firsT parT of The incidenT and also deposed ThaT The deceased has pelTed sTone over The head of The appellanT and caused laceraTed wound. Even The deceased Tried To assaulT The appellanT by umbrella. When The deceased fell down, The appellanT assaulTed bu’r he has noT seen ThaT by which objecT The appellanT assaulTed The deceased. 5. OTher wiTnesses have deposed ThaT They saw The deceased lying near The road in The injured condiTion. They Took him in The hospiTal. Ramnaresh (PW-4) and Tapan ChakravarTi (PW-5) are The wiTnesses of The firsT parT of The incidenT. According To Their sTaTemenTs, The deceased was \ aggressor and_has caused injury To The appellanT, buT The deceaSed has caused laceraTed wound over The head of The appellanT by pelTing sTone and even he was caughT hold by Tapan ChakravarTi. The accused ran away from The spoT, Then The deceased chased him Towards cooperaTive sTores 1 Q where fhe deceased was finaHy found in a badiy injuwd condifion. Ramnaresh (PW—4) has admif‘red in para-3 of his cross-examinafion Thm‘ The deceased was frying To insert pointed par? of umbrella in abdomen of fhe appellanf. Tapcm Chakravarfi (PW-5) has also admh‘fed in para-14 of his cross-examinalion fhat The deceased was stronger fhan The appellant. He has admif’red in paras-17 and i8 *ha? ”the deceased has made homicidal oTTack upon The appellanT and if he had noT infercepfed and caughT hold ’ umbrella of The deceased, Then The deceased would have been inserted poinTed parT 'of umbrella in abdomen of The appellant. The prosecuTion has declared him hosTile relaTing To Taking of scissors by The appellanT and Tried To explain in paras—4 and 19 ThaT when The deceased came To his shop, Then he kepT some arTicles over his Table may be meTallic objecT and when The deceased wenT from his shop, Then he saw ThaT arTicle was noT presenT in The Table of his shop. IT appears ThaT he has Tried To show ThaT The deceased came wiTh some meTallic objecT buT The same was noT found in his ‘shop’ when The deceased wenT from his shop. IT shows ThaT The deceased has Taken meTallic objecT wiTh him or The accused has Taken meTallic objecT aT The Time of Second parT of The incidenT. The accused himself has lodged Rojnamcha Sanha vide EXP/8 in which iT has been menTioned ThaT The deceased pelTing sTone over his head and caused injury. He was holding scissors by which he has caused injury To The deceased. Confessional parT i.e. The appellanT has caused injury To The deceased is noT admissible in evidence in Terms of SecTion 27 of The Evidence ACT, buT The facT ThaT The appellanT was presenT along wiTh The deceased and The appellanT was having scissors is admissible in evidence. AV\ ”\b xi ’\\_ ’1 16. As held by The Apex CourT in The maTTer of Bheru Singh (supra), The parT of F.I.R. lodged by The accused can be used by prosecuTion To show moTive and presence of The accused aT The scene of occurrence and show conducT of The accused. Para-17 and 19 of The said judgmenT reads as under:— “17. Where The firsT informaTion reporT is given by an accused himself To a police officer and amounTs To a confessional sTaTemenT, proof of The confession is prohibiTed by SecTion 25 s 10 of The Evidence Act No par'f of fhe confessional sfafemenf can be proved or received in evidence, excepf to fhe exfenf if is permiffed by Secfion 27 of the Evidence Act The firsi informafion report recorded under Section 154 CrPC is not a substantive piece of evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving» the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the first information report by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act. 19. From a careful perusal of this first information report we , find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which according to him he committed the murders. In our opinion the first information report Ex. P-42, however it not a wholly confessional statement, » ’ but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of his sister'in-Iaw PW 11 do not amount to the confession of committing any crime. Those statements are non-confessional and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production ‘ and seizure Of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only the other portion of the first information report EXP-42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence." a 17.‘According to‘the case o‘f the prosecution, the incident took place in two ‘\ parts. The first part of the incident took place in front of shop of Tapan Chakravarti where the deceased was aggressor and even he has tried to causa grfevous injury to the appellant and assaulted. During first part of §v\r w\i‘x‘s‘ i9 \. \ 11 The incidenf which Took place‘ in from of the shop of Tapan Chukravar'fi. The appellanf was jusfified and he was enTiTled To use The said force in exercise of righT of his private defence avaikxbk ’ro him under Sections 99 and 100 of. fhe Indian Penai Code. 18. As regards The second part of The incident is concerned, the evidence of Tapan Chakraverfy reveals that firsfly, The appeilanf fled away in from of i his shop Towards cooperafive sTores, fhen fhe deceased chased him and afferwards The deceased was found in injured condiTion. EXP/8 reporT lodged by The appeiianT himself shows ThaT The deceased assaulTed him near The shop of Tapan Chakraver'i'y and he was also holding scissors. Baldau Singh (PW-11) and Bhaiyalal (PW—8) have noT supporTed disclosure sTaTemenT and recovery of scissors. R.N.‘/adav (PW-15) STaTion Officer has supporTed disclosure sTaTemenT of scissors and recovery of scissors aT The insTance of The appellant Same is corroboraTed by reporT lodged By The accused (EXP/8). In The lighT of EXP/8 reporT of The accused, sTaTemehT of R.N.Vadav can be safely relied upon ThaT scissors has been recovered aT The insTance of The appellanT and he was holding scissors aT The Time of incidenT. QvA\ 19. According To The sTaTemenTs of Ramnaresh (PW~4) and Tapan ChakravarTy (PW-5), The accused and The deceased wenT Towards cooperaTive sTores and wiThin shorT‘ Time The deceased was found in injured condiTion. The appellanT has iodged The reporT To The police sTaTion BaikunThpur aT 5.10 p.m. vide EXP/8. OTher wiTnesses have seen The deceased in injured condiTion beside The road and They Took him in The hospiTal aT aboiiT 4 p.m. which has been menTioned in EXP/9‘ Second parT of The incidenT/injury caUSed To The deceased is closely connecTed wiTh The firsT parT of The incidenT and even There was no Time gap beTween firsT parT of The incidenT and (iT The Time of second parT of The incidenT only Two persons i.e. The appellanT and The deceased were presenT near cooperaTive sTores. The appellanT susTained injury in The firsT parT of The incidenT, buT The \’§ deceased susThined as well as 8 puncTured wound over viTal parTs of The '§\: s @ 12 body mainly upon The chesf of the ’rime of second part of ’rhe incident According fo Dr'.Vijay Shankar' Sharma (PW-13), The injuries can be caused by scissors recovered from The appellan’r in open condii'ion which shows Thai by one stroke two injuries may be caused and as o resuh' of 4 ‘ro 5 sfroke/cmacks, The aforesaid injuries have been caused To fhe deceased. Scissors was senf for chemical analysis and presence of