HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH ^ CORAM: HON'BLE hflR. T.P.SHARMA AND HON'BLE MR. R.N.CHANDRAKAR, JJ. Criminal ADpeal No.389 of 2006 Saritdas and others - Versus - State of Chhattisgarh JUDGMENT FOR CONSIDERATION HON'BLE MR. JUSTICE R.N. CHANDRAKAR j) a^y^ t^SdA • T.R Sharina Judge Sd/- R.N. Chandrak?u^_^ Judge : th Post for pronouncement of iudament on 6"' September, 2011 .Sd/- T.P. Sharma ii':'i' •::;.'--%• -'t ^S^SSSst. 8 ^sss-^ g . :i'^y/'^/ '^•^,.'s^s^y' HIGH COURTOF CHHATTISGARH AT BILASPUR Criminal Apoeal No.389 of 2006 DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N.CHANDRAKAR, JJ. ^ B:l hn ll:'!r'1il Appellants (InJail) RESPONDENT 1. Santdas, aged about 50 (48) years, Son of Shri Gyan Das Mahant, 2. Manoj Kumar, aged about 28 (26) years; Son of Shri Santdas; .t 3. Ashwarii Kumar, aged about 35 (33) years.'Son of Shri Sant Kumar; 4. Smt.Ram Bai, aged about 33 (31) years, Wife of ShriAshwani Kumar; 5. Nanhi Bai, aged about 42 (40) years, Wife of Shri Santdas; All appellants are agriculturist and resident of Village Bansiya, District Raigarh (C.G.). Versus State of Chhattisgarh (Criminal Appeal under Section 374 (2) of the Cr.P.C.,1973) Mr.P.K.C.Tiwari, Senior Advocate with Mr.Shashi Bhushan, counselfor theappellants: - Mr.Neeraj Mehta, Panel Lawyer for the State/respondent. JUDGMENT (Delivered on 6tn September, 2011) The judgement of the Courtwas delivered by T.P.Sharma, J.:- Challenge in this appeal isto the judgment of conviction & order of sentence dated 15.2.2006 passed by the 4th Additional Sessipns Judge (F.T.C.), Raigarh, in Sessions Trial No.140/2004, whereby& whereunder leamed4 AdditionalSessions Judge whileacquittingco-accused Jiwan Das, Haridas, Smt.Dhanmati and Udidas held appellants Santdas, Manoj Kumar, Ashwani Kumar, Smt.Ram Bai and Nanhi Bai guilty for commission of formation of unlawful assembly armed with deadly i3i '^'e!^3;Hn;ffii-:5'^^ ***ste^gl^i •B^— Bni w weapons having its common object to commit murder of Mehattar Das, causing grievous injury to Gourishankar and simple injury to Purshottam Das and in furtherance of common object of members of unlawful assembly committed murder of Mehattar Das and caused grievous injury to Gourishankar and simple injury to Purshottam Das convicted appellants Santdas, Manoj Kumar, AshwaniKumar, Smt.Ram Bai and Nanhi Baiunder Sections 302/149, 323/149, 325/149, 147 and 148 of the I.P.C. and sentenced them to undergo imprisonment for life & pay fine of Rs.100/-, R.l. for three months,R.I. for one year & fine of Rs.100/-, R.l. fbr six months and sR.I. for one year, in default of payment offine to further undergo R.l. forone month for each default. 2. Conviction is impugned on the ground that without there being any iota of evidence.the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. As per case of the prosecution, on the fateful dayof 8.7.2004 at about 8 a.m. Mehattar Das was digging the land which was objected by appellant Santdas on the ground that they are owner of the land, then Mehattar Das told him that he may convene panchayat, but the appellants were not ready and theytried to assault them.Quarrel took place belween the parties. Both the parties assaulted to each other. On account of previous dispute at about 4 p.m. Purshootam went for betel shop for purchasing betel, at the same time, appellants Ashwani and Manoj caught hold Purshottarri and dragged him inside their house, he shouted for help (sraTSlt—sraTsJt),all the appellants were present on the spot, they were holding axe and sticks. After hearing the sound of Purshottam, Mehatter Das, Arti Das, Sushil Das andGourishankar reached to the spot whom the appellants badly assaulted by the weapons which they were holding. On account of such injuries, Mehattar Das become unconscious and fell down, they immediately took injured Mehattar Das to hospital. He was examined by Dr.Anil Gupta (PW-24) vide Ex.P/24A and found following symptoms/injuries:- (i) Mehattar Das was serious and was in grasping condition. (ii) Fresh bleeding was coming out from the head and nose. Respiration was irregular. -^- Ifrttlil y:7w^vsi^wi^B'^'^'I^syf^?" w -^ lll'fn!;1 (iii) Multiple contusion and heamatoma were found over the head. (iv) Trickling sound coming out from different part of the head on account of suspected fracture of scalp bone and advised for x-ray and shifted surgicalward for further treatment. 4. Bed-head ticket of Mehattar Das was prepared vide~Ex.P/51. X-ray of chest of Mehattar Das was taken vide Ex.P/17and no bony injury was detected. During the course of treatment, considering his serious condition, surgical specialists were called, they tried to save him, ultimately he died at 7.40 p.m;. Death of deceased Mehattar Das was intimated by the doctor to PoliceStation Kotwali, Raigarh. Dehati merg was recorded vide Ex.P/12 and final merg was recorded vide Ex.P/12A. Dehati nalishi was recorded vide Ex.P/50. F.I.R. was lodged vide Ex.P/11. Injured Gourishankar was also examined by Dr.Anil Gupta (PW-24), he was admitted insurgical ward vide bed-head ticket Ex.P/52 and found bony swelling over left hand and four lacerated wounds over the head of 4 cm. x 3 cm. up to bone deep were noticed. He was advised for x-ray vide P/36A andx-ray report vide Ex.P/19 fracture of left ulna was detected. X-ray wastaken by Dr.D.K.Tandon (PW-11). Another injured Sushil Das was examined by DrAnil Gupta (PW-24) vide Ex.P/53 and found two lacerated wound of4 cm. x 3 cm. x 2 cm. and one lacerated wound of 3 cm. x 2 cm. over occipital and parietal region, bruise of 2 cm. x 4 cm, over left thigh and contusion over left shoulder. He was advised for x-ray vide Ex.P/26A. X-ray was taken by Dr.D.K.Tandon (PW-11) vide Ex.P/18, no bony injury was found. Another injured Purshottam was also examined by Dr.Anil Gupta (PW-24) vide Ex.P/54and found bruiseof4 cm. x 2cm. over both thigh having undurable pain. Moment of right shoulder was restricted. He was also advised for x-ray vide Ex.P/27A. Dr.D.K-Tandon (PW-11) took x-ray Of Purshottam vide Ex.P/20, no bony injury was detected. InjuredArti Das (PW-22) was also examined by Dr.AnilGupta vide Ex.P/55 and found lacerated wound of 12 cm. x 2 cm. over left side ofthe head.lacerated wound of 3 cm. x 3 cm. x 2 cm. over left pariato temporal region and- bruise over right shoulder. Moment was restricted, he was advised for -=-tas»BS]ian»saim!Ba ^';....-:-:°i'a.^s. :^--*-•"""'•, ",::;.^KSSS< A. fclj 5. -^ l;i!ili] x-ray vide Ex.P/28A. Dr.D.K.Tandon (PW-11) took x-ray of ArtiDas vide Ex.P/21, no bony injurywas detected. After summoning the witnesses vide Ex.P/16 prepared inquest over dead body of Mahettar Das vide Ex.P/16A. Dead body of deceased MehattarDas was sent for autopsy to Govt.K.G.Hospital, Raigarh vide Ex.P/15 where Dr.S.Lakra (PW-17) conducted autopsy vide Ex.P/15A and found following injuries: (i) Lacerated wound of4 % cm. x 3 % cm. up to bone over back part of the head . (ii) Contusion over left shoulder of 2 3/2 cm. x 2 Vi cm. up to skindeep. (iii) Heamatoma in the head and fracture of temporal bone. Cause of death was shock as a result of head injury. Cloth stained with blood of Purshottam wasseized vide Ex.P/22. Clothes stained with blood of Sushil Das wereseized vide Ex.P/23. Sealedclothes of the deceased were seized vide Ex.P/56. Spot map was prepared vide Ex.P/57. Bloodstained clothes of appellant Santdas, accused Hari Das, accused Jivan Das, appellant Manoj Kumar, appellant Ashwani Kumar, Surendra Das Manikpuri and Anil Das Manikpuri were seized vide Exs.P/3 to P/9. During the course of investigation.accused Udi Das made disclosure statement of stiek vide Ex.P/1 and samewas recovered at his instance vide Ex.P/2. Accused Anil Das made disclosure statement of stick vide Ex.P/29 and same was recovered at his instance vide Ex.P/48. Accused Hari Das made disclosure statement of rod vide Ex.P/30 and same was recovered at his instance vide Ex.P/42. Appellant Manoj Das made disclosure statement of axeand stick vide Ex.P/31 and same were recovered at his instancevide Ex.P/39. Appellant Sant Das made disclosure statement of stick and rod vide Ex.P/32 and same were recovered athis instance vide Ex.P/41. Accused Surendra Das made disclosure statement of stick vide Ex.P/33 and same was recovered at his instance vide Ex.P/47. Accused Jivan Das made disclosure statement of rod vide Ex.P/34 and same was recovered athisinstance v.jde Ex.P/43. AppellantAshwani Das made disclosure statement ofaxe and stick vide Ex.P/35 andsame were recovered at his ihstance vide Ex.P/40. Appellant Nanhi Bai made disclosure statementl of axe vide a';'^' -i^-;" tlil'l Ex.P/36 and same was recovered at his instance vide Ex.P/44. Accused Dhanmati Bai made disclosure statement of stick vide Ex.P/37 and same was recovered at his instance vide Ex.P/45. Appellant Rambai made disclosure statement of stick vide Ex.P/38 and same was recovered at his instance vide Ex.P/46..Seized articles were sent for chemical examination and presence of blood over the articles recovered from the appellants and clothes seized wereconfirmed vide Ex.P/58. 6. Statements of the witnesses were recorded under Sections 161 of the Code of Criminal Procedure, 1Q73 (in short 'the Code') and after completion of investigation, charge sheetwas filed in the Court of Chief Judicial Magistrate, Raigarh, who in turn, committed the case to the Court of Sessions, Raigarh,-from where learned 4 Additional Sessions Judge (F.T.C.), Raigarh received the caseon transfer for trial. 7. In order to prove the guilty of the accused/appellants, theprosecution has examined as manyas 26 witnesses. Statements of the accused/appellants were reeorded under Section 313 of the Code, in which they denied the circumstances appearing against them and claimed innocence and false implication in the crime in question. They have taken specific defence that they have not caused any-injury to complainant party, but twice the complainant party has caused injury to accused party. The accused party has also lodged the report in Crime Nos.436/04 at 8.50 a.m. against Arti Das, Gourishankar and Mehattar Das and .offence has been registered under Section 294, 506 and 323/34 of the I.P.C. at Police Station Kotwali, Raigarh and when they come after lodging report then the appellants again assaulted them and also caused injuries to them. Again Haridas lodged report against Artidas, Mehattar Das, Gourishankar Das, Sunil Das, Nanhu Das, Chandramani Das in CrimeNo.438/04 at Police Station Kotwali, Raigarh and offence upder Sections 147, 148, 149, 451 and 323 of the I.P.C. have been registered. DrAnil Gupta (PW-24) has examined appellant Santdasvide Ex.D/11 and found one bruise along with bony swelling over left shoulder of 4 cm. x 3 cm.He was advised for x-ray. Dr.Anil . Gupta (PW-24) also examined acquitted accused Haridas vide Ex.D/'L2 and fbund one lacerated wound of 4cm. x3 cm. x2 cm. over left forehegd and one abrasion of 3 cm.X 2 cm. x 2 cm. over left palm. He J was also advised for x-ray. Dr.D.K.Tandon (PW-11) tookx-ray of Haridas and as per report Ex.D/3, there was fractured of parietal bone. Dr.S.Lakra (PW-17) has examined appellant Ashwani Kumar S/o Santdas vide Ex.D/4 and found swelling with redness over shoulder & hand and pain over forehead, he was complaining pain over chest. in Crime No.438/04 during the course of investigation, one stick was seized vide Ex.D/5 from witness Sushil Das, spade was seized vide Ex.D/9 from witness Arti Das andone iron rod was also seized vide Ex.D/10 from witness Arti Das. Spade was examined by Dr.Anil Gupta (PW-24) vide Ex.D/14. Spot map was prepared vide Ex.P/15. Spot map in Crime No.438/04 was prepared vide Ex.P/22. Statements of the witnesses of the appellants werg recorded vide Exs.P/16 to 21 and P/23 to P/32. At the time of quarrel, when the complainant party was assaulting accused party, Mehattar Das fell down and received injuries over the head. Even otherwise, there is no bonyinjury over the head of deceased Mehattar Das at the time of his examination. As per Ex.P/24A,he was advised for x-rayof scalp, but reason best known to the prosecution, the prosecution has taken x-ray of chest of Mehattar Das and as per x-ray report Ex.P/17, no bony injury was seen in the chest, but at the timeof autopsy bonyinjury has been detected. Defence has also taken the 'defence of rightof private defence. 8. After providing opportunity of hearing to the parties, learned 4 Additional Sessions Judge (F.T.C.), Raigarh while acquitting accused Jivan Das, Haridas, Smt.Dhanmati and Udidas has convicted & sentenced appellants Santdas, Manoj Kumar, Ashwani Kumar, Smt.Ram Bai and Nanhi Bai as aforementioned. 9. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 10. Learned counsel for the appellants vehemently argued that on 8.7.2004 at about 7.30 a.m. initially the complainant party quarreled andassaulted the appellants party on account of boundary dispute and caused injury to appellants Santdas, Nanhi Bai, accused Haridas and appeltantAshwani, appellant Santdas has lodged F.1.R. in CrimeNo.436/04 on the same dayat about 8.50 a.m. They were examined by the doctor. Thereafter -Y ^' . . . "• ^ f!;i:Ui' ^.^ .r.: .SlSSS '.s'A :i "®;IS&. w? ; ik ^'-. ^•^' •li|a»<y^' ^•^i ' L!':!I the complainant party including deceased Mehattar Das quarreled and committed house tress pass in the house of appellant Santdaswhere they assaulted Haridas at 4.15 p.m., accused Haridas went to the Police Station and lodged the F.I.R. at 7 p.m. in Crime No.438/04. Spade, rod and other articles have been seized from the complainant party vide Ex.D/5 in Crime No.438/2004, vide Ex.D/9 in Crime No.436/04 and vide Ex.D/IOin Crime No.438/04. As per case of the prosecution, incident took placeat 6 p.m. on 8.7.2004 and they have lodged dehati nalishi at 20.45 p.m. vide Ex.P/50. Merg intimation of Mehattar Das Was Ex.P/12 at 8.30 p.m. in which they have claimed that the appellants have assaulted Mehattar Das and.other complainants in the house of Santdas. These facts are clearly reveal that Crime No.438/04 lodged by appellants' party and Crime No.440/04 registered on the basis of dehati nalishi Ex.P/15 against the appellants are counter-case relating to same incident, in which both the parties have assaulted to them. Injured Haridas who has lodged the F.I.R. in Crime No.438/04 was examined by Dr.AnilGupta (PW-24) vide Ex.D/12 and found lacerated woundof4cm. x3 cm. x2 cm. over left front part of the head and abrasion of2 cm. x2 cm. over right palm. He was advised for x-ray. Dr.D.K.Tandon (PW-11) has taken x-ray and as per his report Ex.D/3, fracture of left. parietal bone was detected.lf the complainant party has not caused injury to Haridasat the time of such incident, then it was not possible for the doctor to examine and detect such injury, that too on vital part. Any witness ofthe complainant party or injured witnesses have not stated anything that they have caused injury to accused persons. These all injuries are trifle in nature and not required to be explained, but injury found over the head of Haridas was ofconsiderable dimension, grievous in nature and over vital part (head), but the prosecution has not explained such injuries. Incident took place in inner courtyard of appellant Santdas. Both the parties are relatives andneighbours.At morning the complainant party has caused injury to the appellants and they have lodged reportin Crime No.436/04. These all circumstances clearly reveal and establish that by causing injury to the appellants at mprning time the complainants were not satisfied and thereafter at evening they have again caused injuries and in absence 6f any '••'f.vis:lsS\3S^r- x explanation theonly inference would be possible that the complainants were aggressor and they have committed criminal house tress pass and have caused injuryto Haridas, 61 years old person, then to save Haridas and in exercise of rightof private defence ofthe person and property,the appellants have caused-minimum injuries to the complainant party or when they challenged and chased the complainant party then they rushed to the house of appellants and at the time of running, Mehattar Dasfell down and received injuries over the head which was the cause of his death. The present appellants have not caused any injury with intent to cause death of Meh^ttar Das and have not caused any grievous or simple injury to other injured witnesses, inter alia, they have caused injury to oust the complainants from their house and tosave the person and property, they have rightly exercised their right of private defence available to them under the law. Force used in exercise of right ofprivate defence cannot be weighed in golden scale and there may be chance of eXceeding such right, but by exceeding such right thepresent appellants have not committed any offence. Even otherwise, considering the grievous and fatal injuries found over the body of Haridas.theappellants were having apprehension that the-.pomplainants who committedcriminal house tress pass in the house of Santdas willkill Haridas and others. In these circumstances, even the appellants were having right of private defence to the extent of causing death of assailant/complainants in terms of Section. 100 of the I.P.C. 11. Learned counsel further argued thatas per evidenGeof Sushil Das (PW-19), Purshottam has gone for purchasing betel to betel shop, while he was coming after purchasing betel.appellants Ashwaniand Manoj, whowere standing in front of their house, dragged Purshottam in the house of Santdas, they were holding rod, sticks and axe, they started assaulting him, Sulochana Mahant(PW-21), eldersisterpfPurshottam shouted, then deceased Mehattar Das rushed to the house ofappellant Santdas without any weapon to save Purshottam whom appellants Ashwani, Manoj and Santdas assaulted bystickover his head, Mehattar - Das fell down and became unconscious, then Arti Das and Gourishankar Das rushed to save them whom all the appellants eaused injuries by stick, rod and axe, but as per evidence of Sulochana IVIahant (PW-21), --J. appellants Manojand Ashwini were not standing in front of their house, inter alia, daughter of Haridas and daughter of Ashwani were standing in front of their house, they informed Ashwini and Haridas that Purshottam was coming from betel shop, then Ashwani and Manoj rushed and dragged Purshottam and took their house, but reason best known to the prosecution, the prosecution has not examined Purshottam t6 unfold real story. Evidence of Cliarandas Mahant (PW-7), Premdas Manikpuri (PW-15), Gourishankar (PW-18), Sushil Das (PW-19), Khushi Das (PW-20), Sulochana Mahant (PW-21) and Arti Das (PW-22) who are relatives, injured and complainants does not inspire confidence and trustworthy. Two F.1. R. lodged by the appellants and evidence of both the parties clearly reveal that both the parties were in inimical terms and these witnesses are interested witnesses and on account of death of Mehattar Das and as a result of injuries found over the body of them they have tried to incash the aforesaid opportunity or falsely implicating these appellants, Gourishankar (PW-18), whose injury is grievous in nature, has not deposed anythingto other injured person including Mehattar Das that how other persons have received injuries. Injuries to other persons are simple and trifle in nature. No explanation is required, although this is the case of alleged culpable homicide amounting to murder of Mehattar Das, formation of unlawful assembly and causing grievous and simpleinjuries, but only on the ground of gravity of the offence, liabiljty cannot be fastened upon any personwithout any strict proof.,Heavy burden was upon the prosecution to prove theoffence beyond all shadow of doubt, but evidence adduced on behalf of the prosecution is not sufficient to discharge burden, inter alia, defence are not required to prove their defence like the.prosecution.Only creating suspicion or making two views is sufficient for defence to discharge their burden. In the present case, defence have successfully discharged their burden and in these circumstances, burden to prove the case of the prosecution and to rebut the case of defence was of higher decree upon the prosecution, but the prosecution has failed to discharge initial burden. Even otherwise, if it is considered that some appellants have caused homicidal death of deceased Mehattar Das in ithe afbresaid quarreland given case then it may be thecase of exceeding the right of ^^—^•^fflR?' 10 private defence and the attributed to the present appellants may be the offence punishable under Section 304 Part-11 of the I.P.C., for which appellants Santdas, Manoj Kumar and Ashwaniare in custody since 11.7.2004 and have completed more than seven years and same would be sufficient sentence. 12. On the other hand, leajned Panel Lawyer for the State/respondent opposed the appeal and argued that evidence adducedon behalf of the prosecution is suffident to establish the case. Evidence of the aforesaid complainants inspires confidence and trustworthy and thetrial Court has rightly convicted and senteneed the appellants as aforementioned. As per three F.I.Rs., the present case is not counter-case of Crime No.438/04. Both .. are independent incident. Even otherwise, the appellants have not filed any application for trial of aforesaid cases as given case and after lapse of more than seven years these grounds is of no help to the appellants. Considering the injury found over the body of Haridas, the trial Court hasacquitted 1-laridas and considering the act attributed to the present appellants, the trial Couri: has rightly convicted and sentenced the appellants as aforementioned. Much has been argued relating to genesis and origin of the incident, who was aggressor and the appellants have caused injuries in exercise of right of their private defence of the person and property which does not hold water and evidence of Ramdhan (PW-8), independent witness, Jagat Das (PW-IO)are ^uffrcient to demolish such defence whose evidence clearly reveal !that when they reached nearthe house of theappellants, house of the appellants was closed from inside and same was opened with the intervention of Kotwar, then they found injured dead body of Mehattar Das lying in inner courtyard ofthe appellants. This fact itself explanatory that the appellants have not caused fatal injuries to complainant party and Mehattar Das, but they have not permitted to take Mehattar Das for immediate treatment to save him. 13. In order to appreciate the arguments advanced on behalfof the parties, we have examined the evidence available 6n record. 14. In the present case, homicidal death as a result of fatal injuries found over the head of deceased Mehattar Das has not been substantially 11 (^ disputed on behalfofthe appellants, even otherwise, it is established by the evidence of Dr.Anil Gupta (PW-24), medical examination report Ex.P/24A, evidence of Dr.S.Lakra (PW-17) and autopsy report Ex.P/15A, although Dr.S.Lakra (PW-17) has admitted in hiscross-examination that injury found over the head.of Mehattar Das may be caused due to fafl, but multiple fracture of scalp bone and in the absence of any evidence of falling with force upon hard object, it is difficult to hold that injury found over the head of the deceased was as a result of falling, therefore, death of Mehattar Das was homicidal in nature. Grievous injury found over the body of Gourishankar and simple injury found over the body of Sushil Das and Arti Das have also not been substantially disputed on behalf of the appellants, same is also established by the evidence of Dr.Anil Gupta (PW-24), Ex.P/52, EX.P/36A, Ex.P/53, Ex.P/55 and x-ray report Ex.P/19. Injury found over the body of Gourishankar was grievous in nature and injury found over the body of Sushil Das and Arti Das were simple innature. 15. As regards the complicity of the appellants in crime in question, conviction is based on the evidence of injured witnesses and eyewitnesses. As per evidence of Gourishankar (PW-18),Sushil Das (PW-19), and Arti Das (PW-22), they were present on the spot, they are injured witnesses and their presence cannot be doubted. As per evidence of Gourishankar (PW-18), he was assaulted by Haridas, Nanhi Bai and acquitt6d accused Jivan Das and as a result of injury caused by Nanhi Bai, his hand was fractured. He has not stated anything against other appellants. He is son of Haridas acquitted accused. Inhis detailed evidence, he has admitted pendency of trial against him and other complainants under Section 147, 148, 149, 452 and 323 of the I.P.C. He has also admitted the incident of morning in his para 21. Jivan Das has been acquitted by the trial Court. He has not deposed anything against appellants Manoj, Ashwani and Rambai. 16. As per evidence of Sushil Das (PW-19), Khushi Das (PW-20), Sulochana Mahant (PW-21) and Arti Das (PW-22), initially appellants Manoj and Ashwani dragged Purshottam inside their assaulted him, after hearing the sound for help of house and Purshottam Gourishankar (PW-18), Sushil Das (PW-19) and Arti Das (PW-22)