Division Bench:" HON'BLE MR.T.P.SHARMA& HON'BLE MR.R.N.Chaiidralcar, JJ. Apoellants (In Jall) Respondent Criir.-.nai Appeat No.1212 of 1. Brijmohan, aged about 65 Years, S/o KanvvaSdhar Satnaml 2. Amar Prasad, aged about 35 years, S/o. Bnjmohan Satnaml 3. Anuj Prasad, aged about 32 years, S/o. Brijmohan Satnami 4. Tseksm Prasad, aged about 23 y^ars, S/o. Brijmohan Satnaml 5. Hemlai, aged ab'out 40 years, S/o Dhumra Satnaml Aii are R/o. Vill.-Kudhari, P.S. & Tah.- Dabhra, DlsttJanjgir-Champa (C.G.) Versus State of-Chhattisgarh (APPEAL UNDER SECTION 374 (2) OF THE CODE OF Cr.P.C.) Mr.Arun Kochar, counsel for the appellants. Mr.D.K.Gvvaire, Government Advocate for the State/respondent. (Passedont 1th July, 2011) PerT.P.Sharma^J.:- 1, Chailenge in this appeal is to the judgment of convlction & order of sentence. dated 31.10.2003 psssed by the Additlonai Sessions Judge, Sakti, in Sesslons Trial No.406/2002, whereby & whereunder iearned Addltlonai Sessions Judge after hoiding the appeisants guiity 'for formation of unlawful assembiy armed with deadSy weapons havlng Its common object to cause homlcida} death amounting to murder of Gangaprasad and slmple injuries to Baratram, Mehattar Ram and RamHumar in furtherance of common object of uniawfui assembiy L. ^. • ^gf^- loc convicted them under Sectlons 302 read with Section 149 ofthe i.P.C., 148 read with Section 14Q ofthe I.P.C. and 323 rsad with Section 149 of the i.P.C. and sentenced to undergo jmprisonment for llre and fine of Rs.500/-, In defauit of payment of fine to further undergo R.l. for one month. R.i. for one year, R.i. forone month, R.i. for one nnonth and R.S. for one month. 2. Conviction is Impugned on the ground that wlthout there being any iota of evidence, especlalSy relating to formation of unlawfuS assembiy for commisslon of offence, the triaS Court has convicted and sentenced the appeiiants as aforementioned and thereby committed iilegaljty. 3. Counter case in S.T.No.160/2003 has been registered and tried against the compiainant nameiy Ramkumar, IVIahettarram, Reshamlai and Baratram and they have been convicted and sentenced for the offence punishabie under Sections 323/149, 325/149 and 148/149 of the i.P.C. Appeal flled against the aforesaid judgment has been disposed of by this Cou?t today itself (11 .7.2011) In Criminai Appeai No. 1229 of 2003. 4. As per case of the prosecutjon, on 22.6.2002 at about 11 p.m. complainant Ramkumar (PW-3) v^as chiding to his sons, the appellants whose house is situated jn front of complalnant's house thought that compiainant Ramkumar has chided them, they opposed and came out . with axe and sticks from their house, compiainant party aSso came out from the house, then the appeljants assau!ted by axe and sticks to Gangaprasad and caused instantaneousiy death of Gangaprasad and also caused simpie injury to compiasnant Baratram, Mehattarram and Ramkumar. Compiainant party took Gangaprasad to Civli Hospital, he was dead. The doctor intjmated the poljce relatlng to brining dead body of Gangaprasad. Merg was recorded vide Ex.P/3. Ramkumsr SatnamS (PW-3) lodged dehati naiishi vide Ex.P/5. Spot map was prepared by Investlgating officer vide Ex.P/6. After summoning the witnesses vlde Ex.P/8 inquest ovsr dead body of deceased Gangaprasad was prepared vide Ex.P^Q. BSoodstained soil and plaln soii were recovered from the spot vide Ex.P/10. Finai F.i.R. was iodged vlde Ex.P/21. Desd body of dsceassd Gangsprasad was sent for autopsy to Community Hesith Centre, Kharsiya vide Ex.P/23 where Dr.Rajesh Kumar Slngh (PW-14) conductsd autopsyvide Ex.P/24 and found foiiowlng Injuries:- (1) Incised wound of 3" x 1 1A" x penetrafing into scalp cavity comprising fracture of skuli bone. (II) incised wound of 1" x %" x skin deep near right eye. (iii) Lacerated wound of 1" x %" x skin deep over forehead. (iv) Both the eyes were red. (v) Lacerated wound of 14" x W x sRtn deep over maxiliary reglon. (vs) Lacerated wound of 1" x %" x sRln deep over right jaw. Mandibie was found cut and teethes were broken. (vli) Sweiling of 9" x 1" over left slde ofthe chest. (viil) SweSilng of 8" x 1" over ieft side of the chest. (Ix) Lacerated uvound of 3" x I" x sRln deep over right tibia bone. (x) S'weSling of 5" x %" over right thigh. (xi) Sweliing of 5" x W over right thlgh. (xil) 3rd left rib was found fractured. Cause of death was coms and death wss homlcidaS In nature. Dr.Sajan Kumar Agrawai (PW-15) examined Baratram vide Ex.P/27 and found iacerated wound of 4" x 1" ovsr right parietal reglon. He aiso examined Mahettar vide Ex.P/29 and found lacerated wound of 1" x %" - wlth sweiling of 3" x 2" just above ieft eye, contusion of 2" x 1" over Seft palm, contusion of 2" x 1" over ieft side of back, contusion of 7" x 1" over teU of back, contusion of 8" x 1" over right scapuiar rsgion and contuslon of 3" over right scapuiar region. He has also examined Ramkumar vlde Ex.P/31 and found stltched wound over ieft slde of occjpitas region, heaied abrasion of 8" x 1" over left shouider, heaied abrasion of 1" x W over right leg and contusion of 6" x 3" over Seft ieg. Axe and stlcks were selzed from the appeliants. 5. Statements of the wltnesses were recorded under Sectton 161 of the Cr.P.C. and after completion of invsstigation, charge sheet was fiied in the Court of Addltlonal Chief Judlciai •a^aglstrate, Sakti, who in turn committed the case to the Court of Sessions, Bllaspur, from Vvhere the Additionai Sessions Judge, Saktj recelved the same on transfer tbr triai. 6. in order to prove the guiit of the accused/appellants, the prosecution has examsned as many as ejghteen wltnesses. Statements of the accused/appeiiantswere recorded under Section 313 of the Cr.P.C., in which they denied the circumstances appearing against them and claimed innocence and false impllcatlon in the crime in question. They have also examlned Dr.Goreiai Miri (DW-1) who was examined appellant Amar Prasad vide Ex.D/13, appdiant Anujram vide Ex.D/14 and BrijmoRan vlde Ex.D/15 and fracture of skuii bone of Amsr Prasad was found. The appeilants have taken the defence that the compiainant party has assauited them and caused fatal Injuries and fracture to Amar Prasad, thereafter wlth a vlew to save themseEves in exercise of rigbt of private defence they have caused injuries, thsy have not exceeded the right of private defence avaiiable to them. 7. After affording opportunsty of hearing to the partses, ths Additlonai Sessions Judge has convicted and sentenced the appeilants as aforementloned. S. We have heard iearnsd counsei for the parties, perused the judgment Impugned and record or the tria! Court. 9. Learned counsei for the appeilants franRly submits that in the light of evidence of prosecution witnesses and defence taken by them he is not disputlng the presence of the appeiiants at the tlme of incldent and he Is also not disputing homlddai death of Gangaprasad and simpis Injuries to Baratram, Mehattarram and Ramkumar. Learned counsei further submits that compiainant party has caused fatai injury to Amar Prasad and simpie injures to other appeliants, thsrefore, In exerclse of right of private defence they have caused aforesald injuries and have used msnlmum force although at the time of exercislng of such rsght of prlvate defence they have rightiy exceeded the right of private defence v^hich resuSted into homlcSdai death of Gangaprasad but they have not commltted homiddal death with intent to cause hls death. Learned counsei contende.d that circumstances in which sncident took piace that too on petty ground that the complainant party was chidlng hss sons for agricuitura! purpose and the appellants who were atso rssldents of same vicinity residing in front of house of the compiainant thought that c- compiainant Ramkumsr is c'niding them, they objected and thereafter both the parties came out with stlcks and axe and caused injuries to each other shows that there was no prsmedltation. there was no jntentjon and fhere was no motive for causlng such Injuries. Encident took piace on a .spur of moment, thersfore, the act of the appeISants does not travel beyond the scope of Sectson 304 Pail-ii ofthe I.P.C. 10.0n the other hand, iearned State counsei supported the judgment impugned and submlts that at the tsms of causing injury over the head of Gangaprasad the appeSiants were having knowiedge that by thelr act they may Ril! Gangaprasad. This shovvs that the present sppeijants have caused homicidal death of Gsngaprasad with intent to cause hls death In furtherance of common object of uniawfu! assembiy which they have formed. 11.in order to appreciats the arguments advanced on behaif of the parties, we have examined the evidence avaiiable on rscord. 12.in the present case, injuries to both parties, grievous injury to appeiant Amar Prasad and homicidai death of Gangaprasad have not been substantiaEIy on behaif of the appejlants. Even otherwlse, aforesald Injurles and homicldai death of deceased Gangaprasad have slso estabiished by the evldence of Dr.Rajesh Kumar Slngh (PW-14) and autopsy report Ex.P/24, Dr.Sajan Kumar Agrawai (PW-15) and Injury report Exs.P/27, P/29 and P/31 . Death of deceased Gangaprasad was homicida! in nature. Compiainants Ramkumar and his sons Mehattarram, ReshamiaS and Baratram have aiso been tried for the offsnce punlshabie under Sections 323/149, 325/149 and 148/149 ofthe i.P.C. In S.T.No.160/2003 and they have been convicted for the commisslon of aforesasd offence. Their Criminaj Appeal No.1229 of 2C03 have aiso decsded today itseif, In whsch whiie maintalning the convictlon of the appeiiants their sentences have been modlfted to the extent of tiil rislng of the Court and fSne. 13.8impie injuries have been caused to other compiainants namely, Baratram, Mehattarram and Ramkumar. Ths appellants have not disputed the sncident, same is aiso estabilshed by the evldence of Mehattar Satnami (FW-2), Rajkumar Satnami (PW-3), Santoshl Bsj ^tT^^,'%. r£...l I ^iliim I -%ffl^.^ y ^^ ^" ./^" ^^^^^" %i^ ^" @ (PW-5). Panchram Satnami (PW-6), Sawantram (PVV-7) and Baratram (PAf-8) which are suffteient to estabissh the fact that the present appeiiants came out from their house, thsy were hoSdlng axe and sticks and they have caused injury to Gangaprasad resuiting jnto his death and slmpie injuries to compiainants Baratram, Mahettarram and Ramkumar,. Evidence of Dr.Gorelal Mlri (DW-1) is also sufficient to estabilsh the fact that appeliants Brijmohan, Anujram and Amar Prasad have also recelved injuries including fracture of head of skulS bone of Amar Prassd. 14.As per evidence of aforesaid wltnesses, whlie complainant RamKumar was chidsng to his sons relating to agricuSturai operation the appsliants heard chldlng and thought that Ramkumar was chldlng them, then they opposed and thereafter both the psrtles came out with sticks and axe, the sppeiiants were aiso hoidlng axe and sticks and hsve caused aforesaid injuries. Both the parties hsve csused injuries to each other show that just after hearing of chsdlng they have formed unsawfui assembEy but thelr intentson were not to kiii any person but to teach iesson to compiainant party. The accussd party -has aiso recesved injurles inciuding fracture of skuii bone of Amar Prasad shows that both the parties have received grievous Injuries. Thls fact cSeariy revsaSs that the present appeiiants have not caused homlcldal death of Gangaprassd 'wlth Intent tocause hls death but at the time of causing such Injur/ they . were having definite knowledge that by thelr act Gangaprasad may dse. They have caused injuries to compSainant party In right of thelr private defence, but they have exceeded thelr right of private defence. These circumstances clearly reveai that they have not caused homicidal death of deceased Gangaprasad v^ith intent to cause hls death. Therefore, the act of the appeilanis does not travei beyond the scope of Section 304 Part-iiofthei.P.C. tS.Whlle convicting and sentencing the appeSiants under Section 302 read with Sectlon 149 of the i.P.C. the triai Court has not considered the aforesald circLsmstances and thereby committed iliegafity. 16.For the foregoing reasons, the appeal is partiy aiiowed. Convjctlon and sentence ofthe appeiiants under Sections 148 read with Section 149 of the i.P.C. and 323 read with Section 149 of the I.P.C. ars hereby ^^g:^ -v!^''.;"'" ' "'^. "'^ ffe^te. 1 •:^Jy \\\ B/- masntaJRed. However, conviction of the appeiiants under Sectson 302 read with Section 149 of the i.P.c. is aitered to Section 304 Part-l! of the iP.C. and sentenced them to undergo R.l. for five years. The appeilants, who are in jaji, be reieased forthwith, if not required in any other cases. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge