HIGH COURT OF CHHATTISGARH: BILASPUR Coram : Hon'ble Shri T.P. Sharma and Hon'ble Shri Rajeshwar Lal Jhanwar, JJ. (3 APPELLANT (In Jaill RESPONDENT Cr.ADpealNo.53of1994 Shobharam, S/o Ratan Yadav, aged about 40 years, resident of village Rohidasnagar, Mochi Mohalla, P.S. Supela, Dist. Durg Versus State of M.P. (now Chhattisgarh) CRIMINAL APPEAL UNDER SECTION 374 OF THE CRIMINAL PROCEDURECODE.1973 <^ Appearance: Ms. Sangeeta Mishra, counsel for the appellant Shri Sandeep Yadav, Dy. Government Advocate for the State ORAL JUDGMENT (Delivered on 26.04.2010) The following judgment was delivered by T.P-Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 06.10.1993 passed by the 5th Additional Sessions Judge, Durg in Sessions Case No. 350 of 1992 whereby and whereunder after holding the appellant guilty for the commission of culpable homicide amounting to murder of Eidi, the Court below convicted the appellant under Section 302 ofthe I.P.C. and sentenced to life imprisonment. 2. The conviction is impugned on the ground that the deceased was trying to commit rape on the wife of the appellant, therefore, in exercise of right of private defence, the appellant assaulted the deceased and caused injury thereby he has not committed the offence. 3. The prosecution case in brief is that on fateful night at 3.00 a.m. on 31.08.1992 the appellant was sleeping with his family in his house. The deceased came to his house and on pretext of demanding drinking water, he --f /i:—^^- :"""i i ^-sy -^T^,^" pushed the wife of the appellant on the floor and tried to press her mouth whereupon the wife of the appellant shouted. Upon hearing the shouts of her wife, the appellant came out and caused repeated injury over the head of the deceased and caused his death. The appellant immediately called his neighbours and narrated the incident to them. Thereafter, P.W.2 Gitaram went to the police station and lodged F.1.R. vide Ex.P.5. Merg was recorded vide Ex.P.6. Investigation officer left for scene of occurrence and after summoning the witnesses vide Ex.P.3, inquest over the dead body was prepared vide Ex. P.4. Bloodstained soil, plain soil and one steel box and one crowbar stained with bloodwere seized from the spot vide Ex.P.2. Dead body was sent for autopsy to Government Hospital, Durg. Dr. R.B.Agrawal, P.W.5 conducted the autopsy vide Ex.P.9 and found the following injuries: 1. Lacerated wound on occipital region of 3" x 1/^" x 5". 2. Lacerated wound on occipital region of 2" x ^" x 5". 3. Lacerated wound on occipital region of scalp of 2" x 1/2" x 4". 4. Lacerated wound over back of the head of 2" x 1A" x 5". Brain matter was broken into pieces. Frontal, parietal and occipital bones were found fracture. Brain membrane was also broken into pieces. Mode of death was shock. One undergarment ofthe accused was seized vide Ex.P.7. Sealed cloths of the deceased were seized vide Ex.P.11. Spot map was prepared vide Ex.P.13 and Patwari also prepared spot map vide Ex.P.12. 4. Statements of the witnesses were recorded under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Code). After completion of investigation, charge sheet was filed before the C.J.M. who in turn committed the case to the Sessions Court. The learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution examined as many as 8 witnesses. The accused was examined under Section 313 of theCode where he denied the circumstances appearing against him and innocence and false implication in crime in question was claimed. The accused has taken a specific defence that the deceased was trying to commit rape with his wife, therefore, with a view to save his wife, he has ^ \ t.. fe ~ 3 M' assaulted the accused. He has examined his wife Sohagabai D.W.1 and Mohana D.W.2. 6. After affording opportunity to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 7. Ms. Sangeeta Mishra, learned counsel for the appellant and Mr. Sandeep Yadav, learned Dy.G.A. are heard. The judgment impugned and the record of Court is perused. 8. Learned counsel for the appellant vehemently argued that in the present case, the homicidal death, as a result of ante-mortem fatal injury, has not been substantially disputed by the appellant. Even the appellant is not disputing the fact that he caused injury to the accused. It was further argued that at 3.00 a.m. at night the deceased came to the house of the appellant and on pretext of demanding drinking water, he was trying to commit rape with his wife and with a view to save his wife, he has caused injury exercising right of private defence in terms of Section 100 I.P.C. 9. On the other hand, learned counsel for the State opposed the appeal and submitted that although the circumstances revealed that the appellant was having right of exercise of private defence but at that time the deceased was not having any weapon, therefore, there was no occasion to kill the deceased and assault upto some extent was permissible in exercise of right of private defence to save his wife. Therefore, the person has caused right of private defence available to him and the act of the appellant squarely falls within the ambits of Section 304 Pt. II ofthe I.P.C. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. In the present case, homicidal death as a result of ante-mortem has not been substantially disputed on behalf of the appellant otherwise also established by the evidence of P.W. 5 Dr. R.B.Agrawal and autopsy report Ex.P.9 and death was homicidal in nature. 11. As regards the c.omplicity of the appellant in crime in question, as per F.1.R. Ex.P.5 and the evidence of P.W.1 Manharan Dewangan, P.W.2 Gitaram, P.W.3 Ram Prasad and P.W.4 Kacharabai, the deceased went to the house of the appellant at 3.00 a.m. at night in the odd hours. He ^ ^ ^! <- 4 klN^- 1 ^ derraanded water from the wife of the deceased and caught hold of her and pressed her mouth. After hearing the sounds of his wife, the appellant came and caused injury. The defence has also examined the wife of the appellant Sohagabai D.W. and D.W. 2 Mohana who have deposed that while the appellant and his wife were sleeping in his house, the deceased came and knocked the door asked for water. On this,wife of the appellant came out with water, then after throwing the water the deceased fell her down and pressed her mouth. At the same time, the appellant came out and assaulted the deceased. The evidence of both the defence witnesses is clear and sufficient to establish the fact that the deceased came to the house of the appellant at odd hours at 3.00 a.m. at night and knocked the door and when the wife of the appellant came out with water, then the deceased made assault with intent to commit rape with her and thereafter with a view to save his wife, the present appellant has used the criminal force and caused repeated injury on the head of the deceased, due to which, the deceased died as a result of such injury. 12. In the present case, clause 'third' of Section 100 of the I.P.C. will come into play and the appellant was having right to exercise his private defence of the person extending to causing death of the person. In the present case, the appetlant has used his right of private defence and while exercising his right of private defence he has caused fatal injury resulting into the death of the deceased. This is not a case in which after fleeing the deceased from the spot the appellant has caused the injury. The evidence revealed that when he came out from his house at that time the deceased was holding the wife of the appellant and was trying to press mouth. 13. In the instant appeal, the right of private defence extending to causing death was available to the appellant and has rightly used his right of private defence of the person. The learned A.S.J. while convicting the appellant has not considered the right available to the appellant and thereby committed illegality. 14. For the foregoing reasons, the appeal is allowed. Conviction of the applicant under Section 302 and the sentence awarded thereunder is set aside. The appellant shall be set at liberty at once. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge F;'; F., ; ,M<^