.J.^.-KI^ • r CF0000058060 / INTH_EHIGH_COURTOFMADHyA PBADESH : JABAI.PUR Crimlnal Appeal No» "^^^ /1994 </AT l^ .1 ^><^'^'..^££y^ISi 4»Mandraa son of Munurain Sadu £\ ';s^ ^^, 'y\c^r ^S^Ei-^.. ^^^4 ,^> 6. lo D.6. ^^-^ JP —agod 48 ycars,y 2. MohanlaVson of Nandraro Sahu aged 25 years, •/ Both resident of village Godt, Police Station Tamnar, District Raigarh (M.«Pa) / Versus BESPONBENT.' : S,tate of Madhya Pradesh CBIMINAL APPEAL UNDER SECTION 374(2) OF THE CODE (T BBIMIKAL PBOCEDURE 1973- . iiW! ..teei'liUbu.a.. s^ r~'--J i '' ^' A-r-^ ^jlpf^ APPELLANTS RESPONDENT HIGH COURT OF CHHATTISGARH_ATBLLASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 782 of 1994 Nandram and another VERSUS State of Madhya Pradesh Shri H.S. Patel counsel forthfe appellants. Shri Ravindra Agrawal PL for respondenVState. CRIIVIINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIW11NAL PROCEDURE. JUDGMENT (29.06.2010) IA No. 1 for deleting the name of accused/appellant Nand Ram who isreported to have expired during the pendency of this appeal, is allowed. Counselfor the appellants is permitted to delete his name from the memo ofappeal. - 2. This appeal is directed against the judgment and order dated 18.07.1994 passed by Additional Sessions Judge, Raigarh, in Sessions Trial No. 150/1993 convicting the accused/appellants under Sections 304 (Part-1) read with section 34, and section 323/34 IPC andsentencingeach of them to undergo rigorous imprisonment for seven years and pay fine of Rs. 1000, in default of payment of fine to further undergo rigorous imprisonment for one year u/s 304 (Part-1), and to pay fine of Rs. 500, in default to further undergo rigorous imprisonment for one month u/s 323/34 IPC. 3. Briefly sketched prosecution case is that on 27.9.1992 FIR (Ex. P-1) was lodged by/injured Savitri Bai (PW-1) - wife of deceased Santram •alleging that on that day at about^ a.m, accused/appellants had assaulted her, her husband Santramand'one Triveni Bai (PW-2) and that on account ofthe injuries caused by them, her husband Santram died, Based on this FIR, an offence under Section 302/34 IPC was registered against the accused/appellants.-After investigation, challan was filedon 10.11.1992 "undfiF-:Sectiohs 302/34 and 323/34 IPC and their prosecution moved on {aceordingly. ~^ ~ . ^ 1 ^t -? - "~ £- ~ 4. Soas to hold the accused/appellants guilty, prosecution has examined 17 witnesses in support of its case. Statements of the accUsed/appellants were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 5. After hearing the parties, the trial Court has acquitted the accused/appellants ofthe charge under Section 302/34 IPC but convicted and sentenced them as described in paragraph No.1 of this judgment. As mentioned above, during the pendency of this appeal, accused/appellant Nandram has expired, this appeal now is concerned with accused/appellant Mohanlal only. 6. Heard counsel for the parties and perused the material available on record including the judgment impugned. 7. Counsel for the appellants submits that in the present case the accused/appellants had als~o sustained injuries which is clear from their medical reports (Ex. P-18 and P-20). Hesubmits that first of all when the accused/appellants were assaulted by'the deceased and his family members, in exercise of their right of private defence they too caused injuries to the members of the complainant party. He submits that the prosecution witnesses have exaggerated their version just to ensure the conviction of the accused/appellants. He submits that it is not revealed from the record that the accused/appellants were having any prior intention to commit the murder ofthe deeeased and that the incident had occurred on the spur of moment due fo some dispute between both the parties. Substantiating his arguments in respect of exercise of right of private defence, counsel for the appellants has referred to the statements of Triveni Bai (PW-2^), Kariya alias Damodar (PW-3), Khemsingh (PW-6), Kartekesliwar (PW-7), Rekram (PV\U4) and Natthuram (PW-16). r' '""'"'""'"''' ' " '"' '"' ' " '' 8. .Supporting the judgment impugned counsel for the respondent/State submits that looking to the manner in which the accused/appellants had -^ssaulted the deceased makes it clear that they were predetermined to i'-:ttause his-death. He submits that their act in chopping off the right hand and iight-feg of the.deceased was very brutal and thus the findings of the r--:.y <\ \ \\ ^ ^, -3- Court below in convicting and sentencing them as mentioned above is just and proper and requires no interference in this appeal. He submits that as the defence has not elicited anything that the accused/appellants had been put to imminent danger of life or property which had constrained them to take such a heinous step of causing death of the deceased and injuries to the surviving victims, the right of private defence is not available to them. 9. Undisputedly, in the present case there are six eyewitnesses to the incident including injured Savitri Bai (PW-1) and Triveni Bai (PW-2). This apart, Kariya alias Damodar (PW-3), Khemsingh (PW-6), Kartekeshwar (PW-7), Rekram (PW-14) ahd Natthuram (PW-16) have also supported the case of the prosecution to the fullest possible extent. Medical report of Savitri Bai and Triveni Bai (Ex. P-19 and Ex. P-28 respectively) are duly proved by the doctor who had medically examinedthem. Dr. B.R. Banjare (PW-10) who had conducted post mortem examination on the body of the deceased has vide Ex. P-15 opined that his right leg and right hand were chopped off. Savitri Bai (PW-1) - the wife of the deceased has stated that accused/appellant Nandram is her elder brother-in-law whereas accused/appellant Mohanlal is his son. She has stated that there was some dispute between the accused/appellants and the deceased as on the same piece of land the accused/appellants and the deceased, both had sown groundnut. She has-statedWatwhen~she herself, herson Hemant, mother-in-law Triveni Bai, brother-in-law Rekram and the deceased had gone to the filed to dig out the groundnut, the accused/appellants who were already standing on the bund came to them and asked as to why they had come there. Meanwhile, accused/appellant Mohanlal picked up a long piece-ofbamb6o1ying1ntheffe]d,cutitiritotwopieceswith the help ofaxe which he was already carrying with him, gave one piece thereofto accused/appellant Nandram and thereafter both the accused/appellants ass.aulted the deceased with the sarQe as a result of which he fell down on the ground. Then, after tyjng the.deceased to a cart with the help of rope, accus6d/appellant Mohanlal chopped off his right leg and right hand. Statement of this witnessis duly supported by Triveni Bai (PW-2) who too lias categorically stated-as to the manner in which accused/appellants had killed the rteceased and caused injury to her as also to Savitri Bai (PW-1). Thoygh witness KaFiya-alias Damodar (PW-3) and Narayan Singh (PW-4) ^ ..1^^-»»S->-. ^^ ""'•'•'i^_ '•^•^ -<-1 - have turned hostile, they have also made allegations against the accused/appellants. Khemsingh (PW-6) and Kartekeshwar (PW-7)- the witnesses of memorandum and seizure have also supported the case of the prosecution. Dr. B.R. Banjare (PW-10) who had conducted post mortem examination on the body of the deceased has stated in his evidence that his right leg and right hand were chopped off. This witness had also examined the injured Triveni Bai (PW-2) as also the accused/appellants. Haricharan Patel i(PW-12) is the Patwari who too has supported the case of the prosecution. Rekram (PW-14) and Natthuram (PW-16) - the independent witnesses to the incident have descriptively stated as to the manner of assault made to the deceased at the hands of the accused/appellants. Dr. Rakesh Verma (PW-15) who had medically examined injured Savitri Bai has stated that he had noticed one abrasion on her right arm and one on right sideofthe head. According to him, both the injuries were caused with ^ome hard and blunt object. Station House Officer -Narendra Sharma (PW-17) who had conducted the investigation has supported the case ofthe prosecution. 10. Law in respect of right private defence is well settled that where the assault is imminent by use of force, it would be lawful to repel the force in self defence and the right of private defence commences, as soon as the threat becomes so imminent. If the fact situation shows that in the guise of self-preservation, what really has Been done is to assaultthe original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence has to be legitimately negatived. The person facing a reasonable apprehension of threat to himself, cannot be expected to modulate his defence step by step with any arithmetical exaetitude ofonlythat much which is required in the thinking of a man in ordinary times or under normal circumstances. '•»=%- 11.;Dealingwith the question of private defence in the matter of Mbhinder Pal Jolly v. State of Punjab reported in 1979 Cri.L.J. 584, the Supreme Coyrt has held as under:- ^ ^..^1 ' The law regarding the right of private defenceof 10 ^ ^: f- —^-— property or person is well settled and may be briefly recapitulated here. The onus is on the accused to establish this right not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explieitly or might not adduce any evidence in support of it but he can succeed in his plea if he is able to bring out materials in the records of the case on the basis of the evidence of the prosecution witnesses or on other piecesof evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or person or both. But the exercise of this right is subject to the limitations and exceptions provided in S. 99 ofthepenal Code the last one being- "The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence." As to when the right of private defence 6f the body extends to causing death is provided for in S. 100. The appellant's case is not covered by it. In the view which we have expressed above we think that the appellant had not only the right of private defence of his property but also his body to a limited extent within the meariing ofS. 101 subject to the restrictions mentioned in S. 99. This did not extend to the inflicting of so much harm to Sant Ram and causing his death nor the right of private defence of property ^vaiiable to the appellant extended to causing his deatfi as it was not covered by any ofthe clauses 6fS. 103. Mr. Mulla tried^o bring it under '4thly'which says:-. "Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehpnston that death or grievous hurt will be the cohsequence; if such right of private defence is not jjllff r> -^i S !<•" )(!;E! »II -£~ • exercised." Mischief was caused to his property but it was not caused under such circumstances as may reasonably cause apprehension in his mind that death or grievaous hurt would be the consequence if such right of private defence was not exercised. A mere claim of such apprehension is not enough. The Court on objective test and on the facts and circumstances of .each case must arrive at the conclusion that the situation was such as was likely to reasonably cause such apprehension. The right of private defence of property also, therefore, in the appellant's case extended to causing of any harm other than the death. Undoubtedly the appeallnt did exceed this right of private defence and appargntly the murder which he committed within the meaning of clause'4thly' of S/ 300 squarely fell within Exception 2 thereof. He exceeded the power given to him by law and caused the death .of Sant Ram against whom he was exercising such right of defence. He did so without premeditation and without any intention of dping more harm than was necessary for the purpose of such defence. He thought that by indulging in this imminently dangerous act he would be able to scare away the labourers and stop them from continuing their unjustified agitation, the raising of the slogans ahd the throwing of the brickbats. But then, although the intention, wa§not to kill or cause such bodily injury as was sufficient in the ordinary course of nature to cause death, yet he must^have committed the act knowihg-.that it was so'imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death of the worker or workers standing on the other side of the boundary wall." ^, \ x- %Q -7- 12. Having thus seen the entire material available on record, this Court could not lay hand even on a single piece of evidence suggestive of the fact that the complainant party.was aggressor or that their act was as such which had posed any imminent danger to the life or property of the accused/appellants. On the contrary, the record shows that some dispute arose between both the parties regarding digging out of the ground nut sown on the land allegedly belonging to both of them in which accused/appellants first assaulted the deceased with bamboo pieces and then with the axe chopped off his right hand and right leg. According to this Court, the act of the accused/appellant being a ghastly one deserves no lenient consideration. 13. Consequently, the appeal being devoid of merit is liable to be dismissed. It is dismissed assuch. Conviction and sentence of the sole surviving accused/appellant Mohanlal is thus maintained. He is reported to be on bail. His bail bonds stand cancelled. He be sent to jail immediately for serving out the remaining part ofthe sentence imposed on him. Sd'. Pritinker Siv/akcr Jadge