HIGH COURT OF CHHATTISGARH : BILASPUR Division Bench : Hon'ble Shn Dhirendra JWishra and Hon'ble Shri R.L.Jhanwar. JJ. Criminal Appeal No.449jof1^9l Appellant Kedar Prasad Sahu, son of Ram Kishan Sahu, aged 19 years, resident of Section 11, Zone I, Road No. 20, Quarter 4-G, Bhilai, District Durg. Versus ResDondent State of Madhya Pradesh (now State of Chhattisgarh) APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE Present: Shri Neeraj K. Mehta, counsel for the appellant. Shri Ashish Shukla, Government Advocate for the State. ORAL JUDGMENT (Deliveredon 25.01.2010) The foriowing Judgment of the Court was delivered by Dhirendra Mishra, J. This criminal appeal is directed against the judgment of conviction and order of sentence dated 18th March, 1991 passed in Sessions Case No. 15/1990 wherebythe tearned 1s Additional Sessions Judge, Durg has convicted the appellant under Section 302 of the I.P.C. and sentenced him to life imprisonment for causing homicidal death of K.Chiranjeevi. The other accused persons namely Sukhdev Sao, Amit @ Ambika Singh and Ramdev have been acquitted from the charges under Section 302/34 and 323/34 of th^ I.P.C. The appellant has also been acquitted from the / charge under Section 323/34 ofthe I.P.C. for causing simplel hurt to father ofthe deceased i.e. K. Shimadi-rand K.Duryodhan. 2. Case of the prosecution, as projected in para 2 of the impugned judgment, is that the deceased K. Chiranjeevi and K. Duryodhan P.W.1 are the real brothers whereas P.W.2 K. Shantamma is their sister and she i^-^fff^sa ^ studied in Class - IX. The appellant Kedar resided opposite the quarter of K. Shantamma. The appellant was resorting to eve teasing K. Shantamma since last two months and used to send love letters to her. On the previous night of-the incident at about 9.00 p.m., the appellant again teased her whereupon the deceased - K. Chiranjeevi, K. Duryodhan, his father and elder brother went in front of house of Kedar to forbid him. However, the appellant started abusing them. He went inside the house, came with knife and other accused persons with club. The appellantKedar stabbed the deceased and gave several blows by knife on the abdomen of the deceased and thereafter the accused persons fled from there and went inside the quarters. 3. Report ofthe incidentwas lodged by K. Duryodhan P.W.1 at 9.15 P.M. on 26.09.1988 vide Ex.P.1 against the appellant and other co- accused persons. 4. After registering the offence, the police proceeded for thescene of occurrence, conducted inquest over the dead body of the deceased vide Ex.P.2 and sent the dead body of K. Chiranjeevi for autopsy to main hospital, Durg where Dr. K.P. Chandrakar P.W.12 conducted post-mortem and gave his report. On the disclosure statement of the appellant (Ex. P.4) weapon of offence knife, stained with blood, was discovered from bush vide Ex.P.3. The knife was sent forexamination to main hospital, Durg. Dr. K.P. Chandrakar examined it and gave his report of Ex.P.13. The injured K. Duryodhanand K.Shimadri were sent for medical examination. Articles seized during investigation including knife seized from the appellant were sent for chemical examination to Forensic Science Laboratory, Sagar. The report of Forensic Science Laboratory, Sagar is &.P.19, according to which, the knife was stained with blood. However, the report of Serofogist is not available. / 5.» After completionof investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Durg'against appellant and 3 other accused persons, who in turn committed the case to the Court of Sessions Judge, Durg and the same was received on transfer for trial by the learned AdditionalSessions Judge. ,.<s?^, ' ?;? ^ ~;- -i '^,. .y' .as 6. The learned trial Court framed charges under Section 302 read with Section 34 of the I.P.C. against all the accused persons for causing homicidal death of K. Chiranjeevi and under Section 323 read with Section 34 of the I.P.C. for causingsimple hurt to K. Shimadri and K. Duryodhan. In the alternative, a charge under Section 302 of the I.P.C. was also framed against the appellant. 7. During trial, the prosecution 'examined 14 witnesses in order to establish the charges against the accused persons. Thereafter, their statement under Section 313 of the Code of Criminal Procedure was recorded in which they denied circumstances appearing against them in the prosecution case and pleaded innocence and false implication. 8. The trial Court after hearing the counsel for the respective parties convicted and sentenced the appellant as mentioned in paragraph 1 of this judgment. However, the trial Court acquitted the other accused persons from all charges and also acquitted the appellant under Section 323/340fthel.P.c. 9. Homicidal death of the deceased K. Chiranjeevi is not in dispute even otherwise from the evidence of K. Duryodhan P.W.1 and K. Shantamma P.W.2, who allegedly witnessed the incident and further from the evidence of Dr. K.P.Chandrakar P.W.12, who has conducted the post- mortem and proved his report.of Ex.P.12 and in which he found the following injuries on the person of the deceased and further opined that the cause of death was as a result of excessive haemorrhage and multiple injuries and the injuries over leftlungs and heart were sufficient to cause death in the ordinary course of nature. Thus, homicidal death of K. Ghiranjeevi is established. INJURIES f i) " dne incised (stab) wound on left axillery fold 1 1/2" x 1" x %". ii) One stab wound o'rrleft middle axillery line about 3 inches away from left nipple %" x %" x 6". iii) Stab wound on right palm %" x %" x %" iv) Stab wound on left deltoid muscle on back 1 %" x %" x 3/4". v) Stab wound on middle up left arm on back 1" x %" x %" it,: I'iK IB-NIWIi 'iiiiitiiwitmB) w'ys^, ~s :.'Ss.i®: !l!^!i? S.iNII vi) Stab wound on left scapular region %" x %" x %". vii) Stab wound on left post axillery line about 7" away from left shoulder%"xy2"xy4". viii) Stab wound just below the above mentioned wound size %" x Vz" x V,". ix) Stab wound below above wound of size 2" x %" x 6", x) Abrasion on right shoulder. xi) Abrasion on right side of~eye. On internal examination, he found piereing stab injury on two places on left lung, right thoracic cavity was full of blood and parricidal sack was also full of blood. Injury was over left atrium on heart. 10. Shri Neeraj K. Mehta, learned cbunsel for the appellant submits that though the involvement of the appellant in crime in question is established from the evidence of eye witnesses K. Duryodhan and K. Shantamma, however, taking into consideration the circumstances in which the incident pccurred and the fact that K. Duryodhan and the deceased went to the house of appellant in an agitated condition and they picked up quarrel with the appellant on the pretext that he was involved in eve teasing their sister - K. Shantamma, the conviction of the appellant under Section 302 of the I.P.C. was erroneous and the trial Court ought to have held that the appellant, in exercise of his right of private defence, assaulted the deceased which resulted in his unfortunate death. He further submits thatfrom the evidence of Dr. K.P.Chandrakar, it is evident that though the deceased sustained multiple stab wounds, however, none of the injuries were caused on the vital part of his body and in the circumstances, the trial Court oughtto have convicted the appellant under Section 304 Part II of the I.P.C. for culpable homicide not amounting to murder. f 11. Reliance is placed in the matter of Moorthy v. State of Tamil Nadu, 2009 AIR SCW 457. Ramiit &ors. v.State of U.P.. 2009 AIR SCW 618 and Shivanna & others v. State ofKarnakata, 2007 (DSupreme Bound Reports.219. IIIK: .esssu ^•€v\ "IISS§Ma 8 ^ass^ .. •^,,es-sl 3 S 12. On the other hand, Shri Ashish Shukla, learned Government Advocate has supported the impugned judgment. 13. We have heard learned counsel for the parties and have perused the record of trial Court as also the impugned judgment. •» 14. P.W.1 K. Duryodhan deposed that on the date and time of the incident, he along with his brother K. Chiranjeevi, who is dead, went to the house of Kedar to ask him as to why he eve teases their sister. Kedar threatened him with life and filthily abused him. In the quarrel, Kedar dealt knife blow on the chest of K. Chiranjeevi, as a result ofwhich, he died. In cross-examination, he stated that exchange of letters between Kedar and his sister was continuing for the last ,1 % months. When his sister complained, then both of them got agitated and they went to his house to stop him from these activities whereupon he attacked Chiranjeevi with knife. 15. P.W.2 K. Shantamma has also deposed that the appellant used to eve tease her while she used to go to school. She complained about the same to her family members whereupon both of her brothers K. Chiranjeevi and K. Duryodhan went in front of house of Kedar. She was present in her home. Her house and house of the appellant are in the same lane though not in front of each other but slightly away. Kedar's house is visible from her house. On hearing commotion, she and her parents came outof house and saw that the appellant was dragging Chiranjeevi to a distance of 2 - 3 houses. He assaulted him with knife on his chest. Her brother fell on the ground. Thereafter, the appellant went inside his house. In cross-examination shestated that the distance of their house from the house of Kedar is 80 feet. She came out of her house when the appellant and her two brothers were engaged in hurling abuses to «ach other. She denied the suggestion that she also wrote letters to Kedar. '16. There is virtually no cross-examination by the defence with respect to assault by the appellant on the deceased K. Chiranjeevi. The evidence of the above two witnesses is further corroborated from the medical evidences, the allegation present in the promptly lodged first information iililk,lliia ,i' 1 'qr'i'Sft B ^jaaa^./^ '3!....' report. Thus, the involvement of the appellant in crime in question is established. 17. The question for our consideration is whether the offence was committed by the appellant in the exercise of right of private defence and his conviction under Sectidn 302 of the I.P.C. is erroneous and he could be convicted only under Section 304 Part II ofthe I.P.C. 18. In the matter of Shivanna & others v. State of Karnakata (supra), considering the right of private defence under Section 96 of the I.P.C., it has been held by the Supreme Court that the accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil pase that the preponderance of probabilities is in favour of his plea. 19. InMoorthy v. State of Tamil Nadu (supra), the deceased sustained as many as 17 stab injuries and three lacerated wounds. The trial Court acquitted the accused while extending the benefit of doubt. In appeal against acquittal by the State, the High Court re-examined and re- evaluated the entire evidence on record and come to a definite conclusion that acquittal of the appellant is not sustainable and convicted the appellant under Section 304 Part-1 of the I.P.C. The State did not prefer any appeal against acquittal from charge under Section 302 of the I.P.C. Dismissing the appeal by the accused, it was observed by the Supreme Court that we have not examined whether in the facts and circumstances, the High Court was justified in converting the sentence from Section 302 I.P.C. to Section 304 Part 1 ofthe I.P.C. because there is no appeal bythe State. 20. In the matterofRamjit& ors. v.State ofU.P(supra), the conviction of the appellants under Section 302 read with Section 149,Section 307 rpad with Section 149 and Section 148 of the I.P.C. was confirmed by the Division Bench of AllahabaS High Coyrt. Partly allowing the appeal preferred by the accused persbns, the Supreme Court altered their conviction under Section 304 Part 1 read with Section 149 ofthe I.P.C. on the ground that the incident occurred as a result of sudden quarrel. l;..<si> :!., . 21. In the instant case, from the evidence of two eye witnesses i.e. K. Shantamma and K. Duryodhan, we find that the deceased and K. Duryodhan went to the house of the appellant unarmed when they learnt that the appellant is harassing and eve teasing their school going sister. They went to warn the appellant from indulging in such activities. However, the accused gave numerous knife blows on the various parts of the body causing fatal injuries over left lung and heart resulting in instantaneous death of K. Chiranjeevi. From the evidence available on record, we find that there is not even a whisper that the deceased and his brother, in any away, provoked or threatened the deceased and there is not even defence by way of suggestion to the prosecution witnesses that the accused assaulted the deceased in exercise of his right of private defence. On the contrary, there is evidence that the appellant dragged the deceased for a distance, and therefore, we are of the considered opinion that there is no material available on record which entitles the appellant any right of private defence and the trial Court was fully justified in convicting the appellant under Section 302 of the I.P.C. The case law cited by the learned counsel for the appellant is fully distinguishable on facts. 22. In view of the above, there is no substance in this appeal. The same deserves to be and is accordingly dismissed. Sd/- Dhirendra Mishra Judge Sd/- R.L. Jhanwar Judge ~\ !~