^ HIGH COURTOF CHHATTISGARH AT BILASPUR CTUMmALAPPEAL N0, 743 OF 2001 APPELLANT BiraaSingh Versns NON-APPLICANT State of Chliattisgarh t IH:i'i\. :i:l .\ JUD6MEHT FOR CONSroERAlION aai-~ ' -: - Dhirendra Mishra Judge HON'BLE SHRI JUSTICE L.C. BHADOO Sd/- L.C.BHADOO Judge POSTFOR JUDGMBNTOBr i?s-05-2007 ''if JUDGE -7 /05/2007 ?i HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL N0. 743 OF 2001 DIVISION BENCH: NON-APPLICANT HON. SHRI L.C. BHADOO, 65 HON. SHRI DHIRENDRA. MISHRA, JJ Biraii Sin.gh son of Amamath Singh Kauwar, aged about 30 years, resident of ViIlage-Charra, Tahsil Katghora, Distt. Korba (Chliattisgarh) •-/ ^Versus State of Chhattisearh .:^S^^j Present: Ms. J.A. Khaii, counsel for the accused/appeUant. Mr. Akhil Mishra, P.L. for the State/respondent. JUDGMENT (DeUveredon & May 2007) PER DHIRENDRA MISttRA. J The appeUaiit has preferred fhis appeal under Section 374(2) of the Code of Criimnal Procedure against the unpugned judginent dated 19.6.2001 passed by learued VII Additional Sessious Judge, Bflaspur ta Sessions Trial No.280/2000, whereby the learaed trial court after holding fhe accused/appellaat guflty for causin; honiicidal death of Budhwar Singh aud his wife Harkiuiwar, convicted him under Section 302 of the IPC and sentenced him to uudergo imprisoiunent for Ufe separately for causiag deatii of Budhram aad Harkunwar. 2. Case of fhe prosecution, ia nutsheU, is that Ramlal, son of Budhwar Siugh, gave Dehati Merg mtimation (Ex.P/1) on 28.6.2000 to Police Station Baugo, vfllage Chan-a, to fhe effect that in the nioming at about 9.00 a.iu. he along wifli his younger brother Shvamlal had gone to Jhabar field. After soine tim.e his niofher Harkujiwar (suice deceased) also reached the field aiid asked Korainiya Kauwar @ Bu-an Kaawar not to plough the field, who was getting the field ploughed by Harirani Aghariya in front of his house. At.that tune his father Budhwar Stagh (since deceased) along with Buddhu Aghariya, Pratap Kanwar, Budhwar Kaiiwar and Puran_ Gond reached fhere and persuaded Biraa and retumed back. His fafher and he reinained there. His father uprooted the wooden pe; fixed by Biran oa fheu- laad, at that tiine Biran cam.e wifh an axe froin his hoine and ^assaulted Budhwar Siagh on tus neck froin behind as a result ofwhich he feU, down. His inofher Harkunwar was witaessiag fhe iilcident froin a nearby field. Biraa ran after her and also assaulted her bv axe an her neck aad she also feU down. Bofh of his parents died and he reti,inied hoine weeping aiid narrated fhe iacident to his elder brofher Raniprasad aad sister Ram.kuiiwar. On fhe basis of fhis infonnation Deha.ti Nalishi (Ex. P/ 2) was registered on fhe spot itselfand fhereafter, Merg intiination ofEx.P/3 and First Infomiation Report of Ex.P/3 werc recorded ia the police station. Inquests of Ex.P/5 on fhe dead body of Budhwar Singh aad Ex.P/6 on the dead body of Harkunwar were prepared ia. fhe presence of witnesses afiter giviag notice to fhem.. Dead body of Harkunwar was sent' for autopsy to Pninscry Health Center, Podi under Ex.P/10-A where Dr. G.S. Jaha and Dr. (Smt.) K.B. Sonlcar conducted postniortem. and subiiutted their report Ex.P/10. SmiUarly, dead body of Budhwar Siugh was sent for autopsy vide Ex.P/11-A to P.H.C. Podi wherc agaia the same doctors conducted postniortein and subinitted their report of Ex.P/ 11. Spot inap of Ex. P/ 14 was prepared by the Halka Patwati. Weapon of offence axe was taken iato possession froin the appeUant vide Ex.P/ 15. Bloodstauied baniyan of the appeUaat Biran was takeu iato possession vide Ex.P/16. Axe and baniyan were sent for exartuiiation under Ex.P/12-A aud report of the doctor is Exs.P/12 & P/13. Station House Of&cer, P.S. Baago also prepared spot inap ofEx.P/ 17. Seized articles i.e. plain & bloodstauied soil, bloodstained clottuiig of deceased Budhwar Siagh and Harkuitwar and accused/appeUant Btran and the bloodstaiaed axe were sent for chemical examtoation to Forensic Science Laboratory, Sagar vide Ex.P/18 and rcport of F.S.L. is Ex.P/19 saad P/20. The articles seized during uivestigation were further sent to the serologists aad report of the serologists is Ex.P/23. 3. After conipletion of uivestieation charge sheet was fUed ia the Court of' Jiidicial Ms^istrate First Class, Katghora who in tura "•.f-0 coiniiutted fhe case to the Court of Sessions Judge, Bilaspur and the sauie was received on transfer for trial by the trial Court. 4. Leanied trial Court fram.ed charge uiider Section. 302 of fhe IPC. The accused/appeUaiit abjurcd his guilt. Prosecution in order to establish fhe charge against the accused exaaxined 11 witnesses. Thereafter, stateiuent offhe accused was recorded uader Section 313 of fhe Cr.P.C. in^ which &C denied the cu-cuiiistances appearuif against him in the prosecution case aad pleaded tnnocence and false miplication. He stated that witness Pratap aud Harirain nourished aniDiosity against his brother-in-law. 5. Learaed trial Court after hearing counsel for fhe respective parties convicted and sentenced the accused/appeUaat as inentioned above. 6. Homicidal deafh ofdeceased Budhwar Singh and Harkunwar is not in dispute. Even ofherwise, eyewitn.ess PW-1 Ranilal has stated fhat he saw fhe appeUant assaulting his fafher Budhram aud inother Harkunwar with axe, as a result ofwhich they died. FW-2 Harirara has stated fhat he saw fhe appeUaut assaulting Budhwar wifh axe over his neck, fhereafter he rau towards the Basti aad infonned the viUagers. When he caaie back he saw that dead body of Harkunwar was also lyuig with soDie distaace froin fhe place ofoccurrence, there were iajuries on her neck aad according to him, she was also inurdered by Biraa. Dr. G.S. Jawa who conducted postniortein on the body df bofh the deceased persous, found injuries on the person of Harkunwar aiid Budhwar Stn.gh as inentioned below: - laiuries on the body of deceased Harkuawar Oa external examination 1. Sharp cut edged wound, 2 l/t" x 2" x 4" deep, oblique (post lateraly), inedial side of right shoulder upper part (bone is fi-actured); ^-^^s^ 2. Sharp cut edged wound 2.2" x 1" x 4" deep oblique, right, postero-auterior side of neck, middle part; The edg^s are swoUen aud everted aad wound ;ape, blood Uke stain of fhe edge of the wound, coagulated blood in. the wound. Oa dissectlon oftl^e wound, uijuiy No. (1) 7th vertebrae is fractuTed in two parts and obUque (sharp cut) and spinal cord is divide ia two part froin 7th vertebrae, (2) fifth cervical bone is feactured in two parts oblique (sharp cut) and spiaal cord is divided ia two parts froni fifth cervical vertebrae. Arteries and vetus arouiid the vertebrae is cut. Injuiy No. (1) & (2) is antunortein in nature caused by hard & sharp object. Duration within 12 to 48 hours before postmorteia. The cause of death is haeinorrhagic and neurogenic shock due to bleeduig froin iiyured parts and ruptuTe of spiaal cord. Injuries on the bodT ofdeceased Budhwar Slarfi Oa eiEteraal exaaainatioa Sharp cutting edged wouad 2.2" x 1" x 4" deep transverse, tniddle and post side of neck. The edges are sweUen and everted wouiid gape, blood like staia on the edge offhe wound, coagulated blood ia fhe wouiid. On dissection ofwound : Fifth cervical bone is fractured ia two parts (sharp cut), spinal cord is divided ui two parts froin fifth cervical vertebra, arteries and veuis arouild the vertebia is cut. The wound is antiDiortein in natiire aad caused by hard and sharp object, duration wittun 12 to 48 hours befoic postniorteiii. ?SSi- •^'-^^•.^-s-^ The cause of death is haeinorrhagic aad neurogenic shock due to bleeding froni iujured parts aad rupture of spinal cord. Therefore, in view of above ocular and inedical evMence, it is estabUshed fhat death of Budhwar Siagh aad Harkunwar was honucidal ia nature. 7. Case of tlie prosecution agamst fhe appeUaat is m.amly based on the statements of Ramlal, (PW-1), Hariram. (PW-2), Pratap Singh (PW-3) as also-on fhe report ofcheinical aaalysts and serologists. 8. Leamed counsel for the appeUant submits fhat PW-1 Ramlal is a child witness, a^ed about 9 years, he has claimed hunself to be an eyewitness, however, fi-om the cross-exaiaiaation of this wituess it would be evident fKat he is not a witness oftrufh aad he has deposed on being tutored by his elders. The aaother eyewitness FW-2 Hariram is a witness of assault by the appeUaat to deceased Budhwar Singh and he has not seen fhe appeUaut assaultiag Harkuiiwar, his presence on fhe spot is doubtful as is evident froiu the stateiiient of PW-3 Pratap Singh Kanwar. In fhe alteruative it is further argued fhat froiu fhe case of the prosecution it is clear that fhat deceased Budhwar came to the field amied wifh axe when the appeUant was ploughing his field aad tned to dispossess him aiid in fhese circunistaiices, fhe appeUao.t exercised his right of private defence. 9. On the other haad, leamed coiuisel for the State supported fhe impugned judgiaent offhe trial Court. 10. We have heard learaed counsel for fhe respective parties and perused the niaterial available on record includuig the icapugned judgment of trial Court. 11. PW-1 Ramlal, nirie-year-old son of fhe deceased, who has lodged Dehati Merg intunation as also Dehati Nalishi, was found by the trial Court. trustworthy as he was coinpetent witness to understand fhe saactity of oath aad thus, his statement on oath has been recorded. He has stated that he recognizes fhe appeUaat who is resident of viUage Charra, deceased Budhwar is his father, he does not know fhe naine ofhis niother, The incident is of 10.00 a.in., at fhe time of iacident he was standiag near Kosam tree aud his father was at a distaace of 15-20 hands, when his fafher was uprooting the wooden peg, at that tiaie accused assaulted his father with axe on his neck, as a result ofwhich his fafher died. His inother was standias near his house by the side of Kosam tree, the accused/appeUaiit assaulted her also on her sho^ilder and she also died. He narrated about fhe tncident to his brother Raiupiasad. His younger brother Shyamlal was also wifh Tiim aud thereafter miinber of vfllagers caine fhere. After the iacident poUce reached the spot, he narrated the iacident to the poUce aad put his signature on Dehati Mers uitimation of Ex.P/1. Dehati NaUshi (Ex.P/2) also bears his signature. In fhe cross-exaniiaation this witness has stated that he used to take his cattle out ofvfflage for graziug, however, on the date of iacident he did not go for graziag his buffalos. On that day one labour Saritosh had gone to graze the buffalos. It is correct to say that seeing the iacideut he was fiightened aad out of fear he ran away froin there. He had seen various persons ploughiag their fields and he could not understand how the uicideat occiirred. When he reached hoine he saw his brother aad sister weepuig and he joiaed them in weepiag. He has adiiiitted that he along wifh his raother had ;one to the field siuce inoming and his father arriyed fhere inuch after. There is a quarrel between ffae accused and his ruofher and her inother had abused fhe appeUant. However, he has denied fhe suggestion ffaat he had goae to catl his father on seeiag fhat his m.0ther was involved ia quarrel aud stated that his fafher has coine on his own wifh an axe, there was no quan-el between the accused and his fafher. On the coutrary, his fafher tried to reasou that accused Biraa fhat he should not plough, however, fh.e accused was adamant to plough aad he was not aggreable to the suggestion of his parents. 12. Leamed counsel &r the appeUaat referrmg to paragraph 16 of fhe statement of PW-1 Ramlal has aigued that this witaess is a tutored witaess as he has admitted that he lodged the report as tutored by his brofher Raraprasad aad Pratap Siagh (PW-3). He has F '^'::?^5;:^i§, '"- ^•^^4.^^ denied fhe suggestion that in fhe quarrel axe of his father hit his father and inother aad he is deposing before fhe Court ou beiag tutored. 13. PW-2 Haru-am has stated that on the date of iucident he had ^one as a labour-to plough the field ofaccused Birau. At about 10.00 a.in. when he was ploughing fhe field, Ramprasad, Budhraru aud Budhwar, resident of Baago, Puran, Ramlal cam.e there aad asked accused Birau not to plough aad plough only after the decision is taken. After coiinselmg they left, however, he aad Biran continued to plough. Deceased Budhwar went towards wooden peg and uprooted it, seetng this accused Btran stopped ploughing and ran towards the fencing, took up aa axe and went towards Budhwar and assaulted tmn wifh axe over his aeck, as result of which Budhwar feU ou fhe grouad and blood started ooziug. Seeing fhis he left fhe place aad ran towards the village. He nan-ated the in^cident to Pratap, Sarjal and Hariya Siugh. Thereafter, aU of tttein along wifh Kotwar went towards fhe place of incident. At soine distance froni the place of iacident dead body of Harkunwar was lying, she had also sustauied uijllries over her neck aad according to him Biran had assaulted her also. Patwari prepared fhe site plaii ia his presence. This witness has been cross-examiued at lengfh by the defeace, however, he has stuck to his version given ia examination-in-chief aad the defence could not unpeach the credibilily aiid reliabflity ofthiswitness. 14. PW-3 Pratap Singh is also a witness offhe fact that on fhe date of iacident at about 10.00 a.in. when he was ploughiag his field Budhwar Siagh came fhere aad on his request, he along with four other persons went to the field where Biraa was ploughing and asked BiraD. to stop ploughiilg, fhe niatter wUl be resolved ia the evening by Panchas and thereafter, he should act in. accordance wifh fhe decision of fhe Panchas. After so advisuig they retumed but Budhwar Siagh reniaiaed fhere. At the sanie tune when he along wifh ofhers was ploughing his field, Harirani,. came fhere ruTininj and infomied that Birau has chopped Budhwar. Hearing this they ran towards fhe place of incident and saw Budhwar aad his wife, .they were dead. Budhwar had sustained injuries over his neck. However, he could not see the injui^7 sustauied by Harkunwar, but blood was oozing. In the cross-exacaiaation on fhe foUowing day, he has stated fhat Harirain did uot infonn him aaything. 15. Ifwe go through the stateineut of Ramlal, nine-year-old cluld, who has been cross-exainuied at lengfh by the defence counsel we fiud that fhis witaess has stuck to the examiaation ui chiefto a great extent and his version is'duly corroborated by the Merg intunation aad Dehati Nalishi lodged 'by himsetf imiaediately after the incideat. His stateiaent is further corroborated bv the stateinent of Harirain who was hitnself ploughing the field as a labour of the appeUant. The stateinent of this witness also stands corroborated by the postinorteia reports of both the deceased persons which have beeu proved by the doctors. The fact that fhe axe and baniyan seized fiom. the appeUaat contamed blood as per report of the F.S.L. (Ex.P/19) farfher substaatiates the involveiaent of the accused in fhe crtuie ui question, fhough ia fhe serologists report origin. aud group of fhe blood found on the seized articles could aot be ascertaiued. 16. The argument ofcoiuisel for the appeUant based on paragraph 15 aud 16 of fhe deposition of PW-1 Ramlal fhat fhis witness is a tutored witaess, is not acceptable because he has stuck to his claim fhat he went to fhe place of occurrence along with his inother siuce moming and he has detailed fhe quarrel between his inofher aad fhe appeUant even before the incident. He has stoufly denied fhe suggestion fhat he has not seen fhe in^cident and fherefoie, siraply on the basis of his adinission fhat he lodged the report as per advice of his brother Ramprasad, wUl not unpeach his credibility because advice, if aay, by flie elder brother of this witaess to lodge report about the incident as seen by hirn, to the police, caunot be considered tutoriiig. Presence of bofh Uie deceased persons Budhwar Singh and Harkunwar at tfae place of incident at ftie timc. when uicident occurred is also estabUshed by stateinent of P.W. 3 Pratap Singh aad immediately thereafter dead body of both the persons was fouiid there. 17. So far as altemative defence taken by fhe appeUaat fhat fhe appeUan.t was in settled possession of the laud in question, fhe deceased Budhwar Stngh anned with axe and fhe deceased Harkunwar went fhere to dispossess him aud, therefore, right of private defence of property was avaflable to fhe appeUaut is conceraed, the abovg arguinent is unacceptable because tliere is no evideuce that fhe deceased forcibly tried to dispossess the appeUaiit from. the •field of his possession. There is also no evidence that any iajuiy was sustained by fjie appellant in the incident, inoreover, fhere is evidence that the deceased and ofher viUagers tried to couusel the appellant not to plough fhe field and get the niatter resolved in Pauchayat, however, the appeUant kifled two persons by assaiiltm^ fheni wifh axe on their vital part of the body i.e. ueck wifhout any provocation aad as such, no right of private defence of property as claimed was available to fhe appeBaiit. 18. On the basis of aforesaid analysis, we are of fhe consideicd opuiion. that the learaed trial Court has not coBaiiiitted any iUegaIity or iufinnity while convicting ttie appeUaat under Section 302 offhe IPC for comnussion of niurder of Budhwar Sm.gh and Harkuuwar and sentencing hun for Ufe imprisonTnent as fhe sauie is based on evidence avaflable ou record. 19. In the result, the appeal preferred by fhe appeILaut being devoid of substance deserves to be dismissed and is accordingly, disiaissed. Sd/- L.C.BHADOO Judge Sd/- Dhirendra Mishra Judge ^ll^