‘IEHGEICKNUR P(HF(3HEU¥PTISGHHRH[AHLEHLA§§NUR1 DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. R.L. JHANWAR, JJ. CRIMINAL APPEAL NO. 827 OF 2004 x JUDGEMENT FOR CONSIDERATION « ff, Ti r Sdl- T P Sharma Judge 28/09/2010 &’ «a I ” / R» s¢§g F \7 Hon’ble Mr. R.L. JHANWAR J. \ / Post for Judgment on: 28 [92! 20 10 Sd/- T.P. Sharma Judge 28/ 09/ 20 10 C APPELLANTS Rémratan Suryavanshi and another u f VERSUS RESPONDENT State of Chhattisgarh @ HEGH CQURT OF CHEATTISQARH AT BILA$_PUR DIVISION BENCH § I CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. EL. JHANWAR,‘ JJ. CRIMINAL APPEAL NO. 827 OF 2004 1. Rami“'atan Suryavanshi S/o ‘ Charitram aged about 45 years, APPELILANTS R/o Hardidih RS. Sarkanda, Distt. Bilaspur [C.G. ]. Harprasad Suryavanshi, S/o Chalitram, aged 28 years, R/o Hardidih, RS. Sarkanda, Distt. Bilaspur [C.G.]. RESPONDENT State of Chhattisgarh Through: Station House Ofiicer, Police Station Sarkanda, Distt. Bilaspur [C.G.]. CRIMINAL APPEAL UNDER SECTION 374 [2] OF THE CODE OF CRIMINAL PROCEDURE. Present:— Shri Abhay Tlwan, Advocate for the appellants. Shri Ashish Shukla, G.A. for the State/respondent. JUDGEMENT (Passed on 28/09/2010) ~ The following judgent of the Coult was passed by T.P. Shanna, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 30/7/2004 passed by First Additional Sessions Judge, Bilaspur in Sessions Trial No. 387/2003 whereby and where under after holding the appellants guilty for the commission of offence of culpable homicide amounting to murder of vr Santosh Yadav and Natthulal in sharing common intsntion, gonvicted the appellants under Section 302 in alternate 302 / 34 of the Indian Penal Code and under Secticn 302 in alternate 302/34 of the Indian Penal Code and sentenced‘rigorouS imprisonment for life and rigorous imprisonment for life. Conviction is impugned on the ground that without any : iota of evidence sufficient for conviction of the appellants Court below has convicted and sentenced the appellants as aforementioned land thereby committed an illegality. 3. As per case of the prosecution, on fateful night of 26/6/2003 at about 10:30 P.M. Santosh Yadav and ,Natthulal since deceased had consumed liquor, they were under intoxication. They were moving with stick in the village, they were abusing the villagers then appellants stopped them. Appellant Harprasad Suryavanshi pelted stone on the head of Natthulal and caused injury likewise appellant Ramratan Suryavanshi pelted stone on the head of Santosh Yadav and caused injury, both the persons fell down then they assaulted them by stick and caused their death. PWI Shivkumar Yadav, son of deceased Santosh Yadav, aged about 13 years narrated the incident to his mother PW4 Smt. Parvatibai likewise PW2 Virendra Kumar Suryavanshi, son of deceaséd Natthulal who was also present on the spot also went to his house and narrated the incident to his mother PW3 Smt. Kantibai. Second day on 27/6/2003 PWI Shivkumar Yadav lodged the First Information Report {zide Ex. P~1.Marg intimation was recorded vide Exs. P—2 8a P—3. Investigating Ofhcer left for scene of occurrence and after summoning the Witnesses vide Exs. P~7 8t P—8, inquest over the dead body of Santosh Yadav and Natthulal were prepared Vide Exs. P—9 85 P— 10. Blood stained stones and blood stained 85 plain soil were seized from the spot Vide Exs. P—6 85 13—7. On 26/6/2003 at about 1:50 at night, both the appellants went to the Police Station and lodged Rojnamcha Vide Ex. P—15 and they stayed in the Police Station at night. They were examined by doctor Vide Exs. P- 16A 85 P—17A and found injuries. Dead body of Santosh Yadav was sent for autopsy to District Hospital, Bilaspur Vide Ex. Pa 18A, PW15 Dr. N.S. Chandel conducted autopsy Vide Ex. P- 18 and found following injuries:~ (i) Lacerated wound of 10 x 4 c.mi x bone deep over parietal region underlying bone fracture into multiple pieces and brain matter was coming out from wound. (ii) - Lacerated wound of 8 x 3 c.m. x bone deep over left parietal region underlying bone fracture into multiple pieces and brain matter was coming out. (iii) Lacerated wound of 6 x 4 c.m. x bone deep — over right temporal region underlying bone fracture into multiple pieceS and brain matter was coming out. (iv) Brain membraneyvas crust. 4 Dead body of Natthulal was also sent for autopsy to “f District Hospital, Bilaspur vide Ex. P-19-A. PW15 Dr. $ N.S. Chandel conducted autopsy Vide Ex. P—19 and found following injuries:- (i) Lacerated wound over maxillary reg’on of 4 x 1 c.m. x bone deep, maxillary bone was found fracture. (ii) Lacerated wound over left temporalregion of 2X 1 c.m. x bone deep, with fracture of bone. (iii) Outer ear was crushed. (iv) Lacerated wound over left parietal region of 3 x 1 c.m. x bone deep, with fracture of bone. r l (V) Hemotoma over left elbow joint of 12 x 10 C.In. ‘ (vi) Hemotoma on left mandible region with fracture of mandible bone. (vii) Oral cavity was full with blood. (V111) Depress fracture of left parietal bone. Spot map was prepared by Patwari vide Ex. P—13. Investigating onicer also prepared spot map vide Ex. P~ 21. Seized artiqbs were sent for chemical examination vide EX. P—26. Statements’uof the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was med before the Chief Judicial Magistrate, Biiaspur who in turn committed the case to the Court of Sessions, Bilaspur from Where learned First Additional Sessions Judge, Bilaspur received the case on transfer for trial. In order to prove the guilt of the appellants/accused prosecution examined as many as 16 witnesses. Accused persons were examined under Section 313 of the Code where they denied the circumstances appearing against them, innocency and false implication are claimed. Appellants have taken specific defence that deceased i.e. Santosh Yadav and Natthulal were in habit of consuming liquor and creating terror in the village by abusing the persons at night. 0n the date of incident at about 10:30 P.M., after consuming liquor they moving in the village and they were abusing them. They entered into premises of appellants and they were assaulted them then with a view to save themselves in exercise of their right of private defence; they have pelted stones probably other villagers also pelted stones upon the deceased i.e. Santosh Yadav and Natthulal and aS a result of such injury they may have died. This fact was nét within the knowledge of appellants, they immediately went to the Police Station and lodged the report vide Ex. P— 15. They were examined by the r doctors and injuries were found over the body of appellants. They have not intentionally caused death of Santosh Yadav and Natthulal. After affording an opportunity of hearing to the parties learned First Additional Sessions Judge, Bilaspur has convicted and sentenced the appellants as aforementioned. Shri Abhay Tiwali, learned counsel for the appellants and Shri Ashish Shukla, G.A. for the State/respondent are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellants vehemently argued that deceased i.e. Santosh Yadav and Natthulal were men of bad character, after consuming liquor they were moving in the village. They were abusing the villagers, they entered into premises of appellants and assaulted them then in exercise of their right of private defence, they have pelted stones. They have not caused death of Santosh Yadav and Natthulal even they have not caused injury to them. The evidence adduced on behalf ‘@ of the prosecution is sufticient for drawing an inference that Santosh Yadav and Natthulal were men of bad character, they were holding stick and were moving in the village. After consuming liquor for last two hours and creating nuisance therefore, nobody came to save them even after hearing the cries. 11?? Learned counsel for the appellants placed reliance in i ‘ the matter of Ranbir Singh and Others v. State of ,Haryana% in which Supreme Court has held that number of injuries on accused side by itself may not be sufficient to establish right of private defence, accused may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in cross—examination of prosecution witness or by adducing defence witness. In these circumstances, offence would not be punishable under Section 302/34 of the Indian Penal Code but would be punishable under Section 304 Part—I read with Section 34 of the Indian Penal Code and imprisonment for 9‘ years would be sumcient sentence. 12. Learned counsel for the appellants further placed 0 reliance in the matter of Naveen Chandra v. State of UttaranchaP in which Supreme Court has held that in 1 (2010) 3 SCC (Cri) 236 (2010) 3 SCC (Cri) 321 2 cas€ of three murder of relatives of accused exercised right of private defence, but exceeded it by continuing attacks after threat to life had ceased in that case conviction was altered into under Section 304 Part-I of the Indian Penal Code and custodial sentence of 10 r years was found proper‘ 13? Learned counsel for the appellants also placed reliance in the matter of State of M.P. v. Khujji3 in which High ) Court of Madhya Pradesh has held that incident took place in the courtyard of accused persons, injuries on accused unexplained, right of private defence is available to them and acquittal was proper. On the other hand, learned Govt. Advocate for the respondent/ State opposed the appeal and submits that in the present case, although deceased i.e. Santosh Yadav and Natthulal were not having good character. They have consumed liquor and moving in the village but they are not abusing to‘other persons of Village or appellants, they are abusing to each other. There was no occasion for causing merciless brutal injuries to deceased persons which appellants have caused. The evidence adduced on behalf of the prosecution is sufficient for drawing an inference that present appellants have committed murder of aforesaid two 3 MP. Weekiy Notes, 1997 (II) Note 24 \ persons namely Santosh Yadav and Natthulal and W Court below has rightly convicted and sentenced the appellants as aforementioned. 15. In order to appreciate the argument advanced on behalf of the parties, we have‘exammed the evidence adduced r on behalf of the prosecution. 16.‘ €111 the present case, homicidal death of Santosh Yadav $ and Natthulal have not been substantially disputed on behalf of (the appellants on the other hand, otherwise also established by the evidence of PW15 Dr. N.S. Chandel and autopsy reports Exs. P— 18 85 P— 19. Death of both the persons i.e. Santosh Yadav and Natthulal were homicidal in nature. As per evidence of PW13 RM. Tripathi, Head Constable, on 26/6/2003 at about 1:50 at night, both the appellants went to the Police Station and lodged Rojnamcha Ex. P115 and they were sent for medical examination Exs. P— 16 8a P- 17 . As per evidence of PW14 Dr. A.S. Khan, he has examined the appellant Ramratan Suryavanshi vide Ex. P— 16A and found one contusion of l" x 1/2” over right palm. He has also examined the appellant Harprasad Suryavanshi vide EX. P— 14 and found contusion of 1/z” x 1/2" over right palm and contusion of 1/2" x 1/2" over knee. These injuries and report have also not been disputed by any of the party. 17. As regard the complicity of the appellants in crime in question, as per evidence of eyewitnesses PW1 Shivkumar Yadav 8s PW2 Virendra Kumar Suryavanshi, child witnesses, aged about 13 8r, 12 years respectively, son of deceased Santosh Yadav and Natthulal who were present on the spot. At the time of incident, both the " 5 deceased i.e. Santosh Yadav and Natthulal were abusing to each other. They were coming in a way; both the appellants stopped them and advised not to abuse. Both the deceased i.e. Santosh Yadav and Natthulal were under intoxicating condition, they did not stop to abuse then Harprasad Sulyavanshi picked up one stone and pelted on the head of Natthulal. Appellant Ramratan Suryavanshi also pelted stone over the head of Santosh Yadav then both Santosh Yadav and Natthulal fell down on the land then both the appellants assaulted them by stick when PW1 Shivkumar Yadav tried to save his father then Harprasad Smyavanshi caught hold his neck, anyhow he rescued himself and iled away from the spot then appellant Harprasad Suryavanshi chased him. He went ' in his house and narrated the incident to his mother and on second day, he went to the Police Station and ‘ vr lodged First Information Report Ex. P— 1. PW2 Virendra Kumar Suryavanshi has corroborated the evidence of PWI Shivkumar Yadav, he has deposed that when he tn’ed to save his father then appellant Harprasad Smyavanshi thrown stick upon him and caught hold the neck of Shivkumar then they fled from the spot. They are child witnesses, after insuring the ‘ “‘3 fact that they are able to answer the questions, tlial i ‘ Court has examined them. Defence has cross-examined £ g these witnesses at length and in detail cross- examination of PWI Shivkumar Yadav, he has admitted that his father and Natthulal were in drunken condition. they were abusing each other. He has also admitted in Para-3 of his cross—examination that he may not quarrel with Natthulal. PW2 Virendra Kumar Suryavanshi has admitted in Para—’3 of his cross— examination that his father was holding stick and they were abusing each other. In Para-5, he has again admitted the same thing and has deposed that he was afraid that his father and Santosh Yadav may not quarrel with each other. Factum of intoxication of deceased i.e. Santosh Yadav and Natthulal has been \ V supported by PW5 Rajkumar 85 PW6 Manakram. He has also stated in Para—6 of his cross-examination that deceased i.e. Santosh Yadav and Natthulal were in habit of drinking liquor and creating nuisance. PW11 Shatrughan haé also corroborated the same thing. 19. PW16 Nikolas Khalkho, Investigating Omcer has admitted in Para— 12 of his cross—examination that after lodging report both the appellants stopped in the Police Station, they are afraid from the deceased i.e, Santosh w: Yadav and Natthulal. The evidence of aforesaid Witnesses reveal that deceased i.e. Santosh Yadav and Natthul‘al were in habit of drinking liquor and creating nuisance and terror in the village. On the date of incident, they were intoxicating condition and they were creating nuisance. Spot map Ex. P—13 prepared by Patwari reveals that dead body was found in the kitchen garden of appellant Ramratan Suryavanshi. In the present case, present appellants have lodged Rojnamcha Ex. P— 15 in which they. have specifically taken the defence that deceased i.e. Santosh Yadav and Natthulal have assaulted them, they were having injuries and they have examined by doctors. There was no occasion for causing injuries to- deceased i.ei Santosh Yadav and Natthulal by appellants. There was l ‘ J no previous enmity. These circumstances reveal that x! #4 when deceased i.e. Santosh Yadav and Natthulal creating nuisance for last two hours by abusing the villagers then appellants stopped them and advised not ;w to abuse then they did not stop abusing then on sudden provocation incident took place because . deceased were holding stick thereafter, appellants have pelted stones upon the deceased Le. Santosh Yadav and Natthulal. They were also having injuries, which clearly shows that there was endanger to their life and with a View to save themselves in exercise of right of private defence, they have pelted stones upon the deceased i.e. Santosh Yadav and Natthulal and caused injuries to them. Definitely, they have caused the death of two persons i.e. Santosh Yadav and Natthulal but circumstances in which injuries were caused to deceased is shows that they have not caused any injuries to them with intent to cause their death. The evidence shows that they have succeeded in establishing the preponderance of probabilities of exercise of their right of private defence. While dealing with such circum stance in case of Ranbir Singh and Others (Supra) Supreme Court has held that in these circumstances the conviction would be under Section 304 Part—I read with Section 34 of the Indian Penal Code. While dealing with the same circumstance in case of Naveen Chandra (Supra) Supreme Court has held that offence falls under Section 304 Part—I of the Indian Penal Code. In the @ , 14 present case, Without any intention in aforesaid circumstances appellants have caused injuries to deceased iie} Santosh Yadav and Natthulal resulting into their death which squarely falls under the categmy of culpable homicide amounting to murder punishable under Section 304 Part-I of the Indian Penal Code. ‘ ‘tf While convicting the appellants Court below has not considered the aforesaid circumstances and thereby committed an illegality. 22. For the foregoing reasons, criminal appeal is partly allowed. Conviction of the appellants under Section 302 in alternate 302/ 34 of the Indian Penal Code and under Section 302 in alternate 302/34 of the Indian Penal Code is altered into under Section 304 Part—I of the Indian Penal Code in alternate 304 Part-I read with Section 34 of the Indian Penal Code and under Section 304 Part—I of the Indian Penal Code in alternate 304 Part-I read with Section 34 of the Indian Penal Code and sentenced rigorous imprisonment for 10 years and rigorous imprisonment for 10 years. ‘ l/l/ K Sd/— t \t. ‘ P Sd/— t O T.P. Sharma 'I L R-L- JhanWéf - Judge , \ Judge xi; _ l” 23/09/2010 V i”, r, Um: 2a 109/2010