i 9 ^.- ': ^^•iF^"^31''' '"VA^' HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. Crimjnal Appeal No.645 of 1989 l^ 'yy ^i^ll APPELLANTS: RESPONDENT: Chhattar Singh and another Versus The State of M.P. (now C.G.) JUDGMENT FORCONSIDERATION Sd/- T.P. Sharma Judge ^1-11-2009 , HON'BLE MR. JUSTICE R.L. JHANWAR Sd/- R.L. Jhanwar Judge 2-3 -11-2009 -«1 Post fQGBronouncement of jydament on °?<. November, 2009 Sd/- T. P. Sharma Judge }y ~rr^~ w ".'\ -?. ^•<>"-11-2009 fll|< )• •/'^. ,6. 'T"*^^ r;"^ '''°'•. 11s':liisSS,. "~fS y.^ H1GHCOURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.645 of 1989 1. Chhattar Singh aged 47 years s/o Kripal Sahu, Cultivator, APPELLANTS: (In Jail) RESPONDENT: 2. Rohibai aged 40 years wife of Chhatar Singh, Cultivator, Both Resident of Village Marda, P.S. Kaldol, Tahsil Balodabazar Distt. Raipur M.P. (nowC.G.) Versus The State of M.P. (now C.G.) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. R.S. Marhas, counsel for the appellants. Mr. Ravindra Agrawal, Panel Lawyer for the State/respondent. JUDGMENT (o-s^" November, 2009) The followina iudament of the Court was passed bv T.P. Sharma, J: - 1. By this appeal the appellants have challenged legality & propriety ofthe judgment of conviction & order of sentence dated 6-7-1989 passed by the 3 Additional Sessions Judge, Raipur, Camp Baloda Bazaar in Sessions Trial No.27/88, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of the - offence of murder in sharing common intention, convicted them under Section 302 read with Sectton 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life. 2. Judgment of conviction & order of sentence is challenged on the ground that without any clinching and credible evidence the Court below has 4 ft-^ .-. ;'i ~'\ •<'-<st&. ii '""% y -.^ ^i convicted & sentenced the appellants as aforementioned and thereby committed illegality. 3. Case ofthe prosecution, in brief, is that on 13-11-87 at about12 noon-1 p.m. at village Marda, Police Station Kasdol, Distt. Raipur, both the accused persons were quarreling with Bodhram (since deceased) inside the house. Samaylal (PW-1), nephew of the deceased, went to the house and calledthe deceased, the door was closed on which Samaylal pushed the door and went inside the house, both the accused persons were present inside the room, dead body of Bodhram was lying on the floor and injury was present on the scrotal sac of Bodhram. Samaylal (PW-1) went to Police StationKasdol, which is 18 kms. away from the place of incident, on the same day, and lodged report at 18.45 hours. The Police also registered merg intimation and left for the place of incident. After summoning the witnesses vide Ex. P-2, the notice, inquest over the dead body of Bodhram was prepared vide Ex.P 3. The dead body of Bodhram was sent for autopsy to the Assistant Surgeon, Baloda Bazaar vide Ex.P-16 and autopsy was conducted by Dr. R.P. Pandey (PW-13) vide Ex.P-13 who found following injuries: - (i) one lacerated wound of 1" x %" x %" just above the right ear; (ii) one lacerated wound of 1" x %" x %" over right eye; (iii) lacerated wound of %" x %" x %" over right jaw, bone beneath the injury was visible; and (iv) laceration of scrotum, right testis came out from the scrotum. Injuries were caused by hard & blunt object. On internal examination, 4 & 5th ribs of right side and-.g"'1, 3rd & 4th ribs of left side were found fractured, chest was filled with blood, 3" cut was found in trachea, the injuries were ante-mortem and sufficient for causing death. Death was due to shock as a result of excessive haemorrhage. IIWft ^) 4. Blue towel, one pair of plastic shoes, one matoh box, three burnt match sticks, bloodstained & plain soil, burnt piece of Bidi stained with blood, three pieces of bricks stained with blood, twenty broken pieces of bangles fourteen pieces from one room & six pieces from another room, ten big & twenty-five small pieces of bricks and one pointed piece of stone were seized from the spot vide Ex.P-12. Clothes were seized from accused Chhattar Singh vide Ex. P-7. Sealed clothes of the deceased were seized vide Ex.P-8. Documents were seized vide Ex.P-9. At the time of inquest, two broken pieces of bangles & hairs from the spot and hairs from the hands of the deceased were seized vide Ex.P-11. Accused Chhattar Singh was also examined by the docto'" vide Ex.P-14 and one abrasion of 3" over right thigh was found. Cloth stained with blood & bangles after removing from the hands of accused Rohibai were seized vide Ex.P-17. Nails of both the accused were seized vide Exs.P- 18 & P-19. One kanthimala stained with blood was seized from accused Chhattar Singh vide Ex.P-20. Seized articles were sent for chemical analysis and presence of blood on bricks, piece of Bidi, pancha (towel), clothes of accused Chhattar Singh, pieces of nails of Chhattar Singh, kanthimala of Chhattar Singh, hairs, nails of accused Rohibai and her clothes was confirmed vide Ex.P-25. Pieces of broken bangles recovered from the spot and bangles removed from the hands of accused Rohibai were examined by the F.S.L. Sagar vide Ex.P-27, and they were foupd identical. / 5. Statementsof the witnesses, were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Additional Chief Judicial Magistrate, Baloda Bazaar, who in turn, committed the case to the Court of Sessions from where learned 3 . Additional Sessjons Judge, Raipur received the case on transfer for trial. iq j)i';;.«j t>.;i 11 6. In order to prove the guilt of the accused persons, the prosecution has examined as many as fifteen witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication. The accused had taken the defence in their examination that accused Rohibai was present in her house and while she was alone, deceased Bodhram caught her, her bangles were broken, the deceased dragged accused Rohibai inside the other room, when she objected, he threatened her and pushed her, she fell down, he pressed her breasts and when she cried for help, he pressed her neck. When the deceased was sitting over Rohibai and trying to commit rape on her, accused Chhattar Singh came and challenged on which the deceased pelted stone over Chhattar Singh and caused injury over thigh, thereafter, both the persons (accused Chhattar Singh & the deceased) scuffled with each other, in order to save her husband, Rohibai pressed the scrotal sac of the deceased on which the deceased fell down. Both the accused went to the house of Kotwar for lodging the report and went to the Police Station. The accused had also taken the defence that both the parties were having enmity relating to land. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellants vehemently argued that conviction & sentence of tMe appellants are based on conjectures & surmises, nobody has seen the incident, only orithe assumption that the accused persons had committed the murder of the deceased, the Court below has convicted & sentenced the appellants. The appellants have taken the defence that the deceased, who was having inimical terms with the / 'appellants, went to the house of the appellants when acci:sed/appellant t. % ^Jf^^^ tl ^ttSS£g^^ ^ ^Sf^SSl ^ Rohibai was alone in her house, and tried to commit rape on her, when she objected and her husband Chhattar Singh challenged him, he caused injury to Chhattar Singh and tried to cause grievous injury whereupon under the apprehension of causing grievous injury or death by the deceased, the accused/appellants used minimum force in exercise of their right of private defence of person. The appellants have not committed any murder and they have not exceeded their right of private defence. Learned couns'el further argued that Samaylal (PW-1), Maharathi (PW-5) & Bhojram (PW-6) had not seen the incident. Learned counsel also argued that suspicion howsoever grave cE'nnot take the place of evidence and without any credible and clinching evidence sufficient for conviction & sentence of the appellants, the impugned judgment of conviction & order of sentence is not sustainable. Learned counsel placed reliance in the matter of Mohd. Ramzani v. State pf Delhi (1980 Supp SCC 215) in which the Apex Court has held that in case of plea of the right of private defence, onus on accused is to establish right of private defence only with balance of probability, but burden still lies on prosecution to prove the guilt beyond reasonable doubt which never shifts. No rigid rule regarding the extentto which the right may be exercised is possible. Due allowance to be made where right is over-exercised in the heat of the moment. Learned counsel further placed reliance in the matter of Sham Sunder v. Puran and another {(1990)'4SCC 731} in which the Apex Court has hetd that in / absence of any specific plea of the right of private defence same can be inferred on the basis of evidence and in case the right of private defence is exceeded conviction would be under Section 304 Part 1 of the I.P.C. and not under Section 302 of the I.P.C. >r"k ^'^. ^•"^ '\ :;j's: "^'ra»'. i ii ,'i l-..!p ^- it.toiNi 9. On the other hand, learned State counsel vehemently opposed the appeal and argued that in the present case, Samaylal (PW-1) after hearing that the accused persons were quarrelling with Bodhram went to the house, the door was closed, he called and finally pushed the door and went inside, both the accused persons were present, they came out and went to the house of Kotwar. Bodhram was lying dead with injury over scrotal sac and other parts. Injuries found over the body of Bodhram were sufficient for causiffg death and the death was homicidal in nature. These facts are unchallenged and are sufficient for drawing inference that both the accused are the persons who have caused homicidal death of Bodhram. Case of the prosecution also finds support from the scientific report of the Forensic Science Laboratory, Sagar, presence of blood on the nails of the accused persons, presence of clothes of the accused persons and presence of broken pieces of bangles of accused Rohibai near the place of incident. Learned State counsel further argued that though the case of the prosecution does not rest on the defence of the accused persons, but even the accused persons have specifically admitted that the deceased was present inside the house and they have caused injury. The accused persons also claimed that both the parties were having enmity relating to field (land). Therefore, the plea of love affair or attempt to rape itself is not natural and no ordinary person will believe such a contradictory defence. 10.1n order to appreciate the contentions of the parties and to establish the complicity of the accused pejsons in the crime in question, we have examined the evidence adduced on behalfofthe prosecution. 11.1n the present case, homicidal death of the deceased as a result of injuries is not substantially disputed by the appellants, on the other hand, ' it is established from the evidence of Samaylal (PW-1), Khojuram (PW- rif"^ '"-f. i?--~-^ 1 ^? t1 ,'• /. ^ i!a!iBi; 2), Laxmidas (PW-3), Dharamdas (PW-4), Maharathi (PW-5), Bhojram (PW-6) & Dr. R.P. Pandey (PW-13) and the documents ot F.I.R. Ex.P-1, inquest Ex.P-3 & autopsy report Ex.P-13. 12. Dr. R.P. Pandey (PW-13) has deposed that on 14-11-1987 he conducted autopsy of Bodhram and found injuries mentioned in para 3 of this judgment. Defence has not cross-examined this witness on the point of injury. He has further deposed that the injuries found over the body of the deceased were sufficient for causing death and the cause of death was shock as a result of excessive haemorrhage and the injuries are ante-mori:em in nature. 13.1n order to establish the complicity of theaccused/appellants in the crime in question, the prosecution has examined the evidence of the eyewitnesses. 14.Khojuram (PW-2) has deposed in his evidence that at the time of incident he was going to take both along with Laxmidas, at that time, the accused persons were quarrelling with deceased Bodhram, appellant Rohibai pelted stone over Bodhram and caused injury near eye, Bodhram was standing in front of the door and Rohibai was inside the room, Bodhram fell down on which Rohibai dragged him inside the room. But in his cross-examination, this witness has admitted that he has not stated that Rohibai dragged the deceased inside the room. Laxmidas (PW-3) has corroborated theevidence of Khojuram (PW-2). Bhojram (PW-6) has / deposed that between 10-11 a.m. Kanak came to him and informed that the accused persons were quarrelling with Bodhram whereupon he went to his house, his son Samaylal was not present in his house, then he . went to the pond and told his son Samaylal that they were quarrelling and also directed him to intervene. :'r-:l;< :"- :."'l';:j^ 8 15.Samaylal (PW-1) has deposed in his evidence that his father Bhojram told him that the accused persons & the deceased were quarrelling on which he rushed to the place of incident to intervene in the quarrel, he called Bodhram, but Bodhram did not reply on which he pushed the door and went inside, the door of second room was also closea, then he saw from the hole of the door, both the accused persons were present inside the room, they were indicatingeach other by gesture to flee away, he pushed the door and went inside, the dead body of Bodhram was lying there. Both the accused persons fled away through second door. He came out from the house and shouted that they have killed his uncle. The accused persons went inside the house of Kotwar. Thereafter, he enquired about the Kotwar and came to the spot alc'sg with other persons and found injury over eye, chest was depressed and scrotal sac was crushed. He lodged the report vide Ex. P-1. 16.Maharathi (PW-5) has corroborated the statements of Khojuram (PW-2) & Bhojram (PW-6). Defence has cross-examined Samaylal (PW-1). In his cross-examination, Samaylal (PW-1) has admitted the relationship between him & the deceased and stated that they are relatives. He has also admitted that there was dispute between Bodhram C. the accused persons relating to land and the dispute was resolved 4-5 days prior to the date of incident in which it was decided that Bodhram will not live in house of the accused. In his cross-examination or in the cross- -examination <^f other witnesses, defence has not been able to elicit . anything to discredit their te&tunony. The defence has not suggested anything to this witness about attempt of rape by the deceased with accused Rohibaior inflicting the injuries in exercise of their right of private defence. "i£i. iSISi'" sv fSSfl ^ 17.1n the present case, the accused persons have taken the defence that the deceased was trying to outrage the modesty of accused Rohibai and attempted for committing rape on which in exercise of the right of private defence, they have caused minimum injury. However, they have neither adduced any evidence to this effect nor made any suggestion to the witnesses adduced on behalf of the prosecution. Defence is not required to prove its defence like the prosecution. Defence is only required to cast doubt upon the case of the'prosecution. Defencd is also not required to take specific plea of the right of private defence of the person or property and same may be inferred from the evidence and circumstances of the case. In the present case, specific defence has been taken by the accused persons that when accused Rohibai was alone in her house, the deceased entered into her house and tried to commit rape on her, he pressed her breasts, threw her on the floor and was sitting over her, when the deceased was challenged by accused Chhattar Singh, he pelted stone upon Chhattar Singh and quarrelled with him, whereupon in exercise of the right of private defence, the accused persons inflicted minimum injury on the deceased and to make the deceased unable to inflict any further injury, they pressed his scrotal sac. But the defence has not made any suggestion to the witnesses of the prosecution, especially who had seen the accused persons & the deceased quarrelling in front of the house and who had seen the deceased & the accUsed persons inside the room which was closed from / inside. Even they have not examined themselves in defence under Section 313 ofthe Cr.P.C. to prove the fact oftheir knowledge. 18.The Apex Court in the matter of nflohd. Ramzani (supra) has held that onus on accused is to establish right of private defence only with balance ofprobability while burden lies on prosecution to prove the guilt beyond 10 .--•: reasonable doubt. In the present case, the prosecution has adduced sufficient evidence toprove the guilt, but the accused had not adduced any evidence to establish the right of private defence. On the other hand, the defence has suggested the witnesses that both the parties were in inimical terms. In case of such inimical terms and relations, the defence of attempt to commit rape by the deceased does not appear logical and natural. The case of Mohd. Ramzani (supra) is distinguishable on facts to that of the present case. 19.1n the matter of Sham Sunder (supra), the Apex Court has held that specific plea of the right of private defence is not required by the defence which can be inferred from the evidence. But in the present case,except the defence taken by the accused persons under Section 313 of the Cr.P.C. nothing has been adduced by the defence or asked by the y defence to the prosecution witnesses. In absence of any material it is difficult to hold that the defence has exercised the right of private defence and caused injury to the deceased in exercise of their right of private defence. 20. Nails of the accused persons and their clothes were found stained with blood and no explanation has been offered on behalf of the defence. Presence of human blood on clothes & nails of the accused persons also corroborate the case of the prosecution. In the present case, the evidence of Samaylal (PW-1) is corroborated by the evidence of Khojuram "(PW-2), Laxmidas (PW-3), Dharamdas (PW-4), Maharathi (PW-5) & Bhojram (PW-6) wh'b had seen different parts of the incident. Their statements are corroborated by the medical evider><;e. Samaylal (PW-1) had lodged the F.I.R. Ex.P-1 promptly. The evidence adduced on behalf of the prosecution is sufficient, it inspires confidence, it is 'trustworthy and sufficient for drawing inference that the accused/ 11 appellants are the persons who have caused fatal injury to the deceased and caused his homicidal death. 21.After appreciating the evidence available on record, learned Additional Sessions Judge has arrived at a finding that the appellants are the persons who have caused hpmicidal death of deceased Bodhram. The finding of the Additional Sessions Judge is based on credible and clinching evidence sufficient fordrawing inference against the appellants. 22.As regards the intention of the appellants for causing the murder of the deceased, the material adduced on behalf of the prosecution shows that the deceased was found inside the room which was closed from inside, both the accused persons were present inside the room, the deceased was not armed with any weapon and according to the autopsy report, age of the deceased was 50 years. Ageof appellant Chhattar Singh at the time of the commission of the offence was 40 years and the accused persons were two in number. The accused persons have crushed the scrotal sac of the deceased and as a result of such injury testis came out from the scrotum which is fatal injury sufficient for causing death and shows the cruel manner of causing injury. Motive is the only aid in criminality and in case of direct evidence it loses its importance. Motive can be inferred pn the basis of the nature of injury, part of the body injured, weapon used and the manner of inflicting the injury. The aforesaid facts and circumstances are sufficient for drawing inference that the appellants had caused homicidal death of the deceased amounting to murderwith intehtto causehis murder. 23.Both the appellants have shared common intention in causing the homicidal death of the deceased and in furtherance of that common intention they have caused the murder of the deceased. Conviction and 't^?. .„ "%» "'^ 't-'s-^ .t '"c^/'' •^-^^' •!»' 12 ^r7 sentence of the appellants are based on credible and clinching evidence sustainable under the law. The Court below has awarded minimum sentence of imprisonment for life. 24.For the foregoing reasons, we do not find any substance in the appeal, same is liable to be dismissed and it is hereby dismissed. 25.As the appellants are on baU, their bail bonds are cancelled and they are directed to surrender before the Chief Judicial Magistrate, Raipur, immediately to serve out the remaining sentence. Sd/- T. P. Sharma Judge Sd/- R.L. Jhanwar Judge Soma YOGENDRA SINGH KANWAR Digitally signed by YOGENDRA SINGH KANWAR Date: 2025.02.20 13:04:26 +0530