HEGH COURT GF CHHATTISGARH, BILASPUR Judgnent for consideration Sdl Mohan Shrivastava Manindt‘a Judge / \ / H‘on’ble sminhirendra Mishra,J. ? WWW_ 9 wége 6 Post for pronouncement ofjudgment LX‘ 1 2O 10 Sdl — Dhirendra Misma Judge ,7 J \R / Divisian Bench: Hnn’bae Shri Dhirendra Mishra 85 Hon’ble Shri Manindra Mohan Shrivastava, JJ. Crhninal Appeal No.8810f 1990 AP?E&LANTS Shyamlal aiid othars V ‘ Versus t RE§PDNDENT State of MP. (now 0G.) HEGH COURT OF CKHATTISGARH : BELAS?UR Criiminai Aggeal R‘e.38l of 1§9G ‘)r‘ Crimfmal Angea} uls 3’74 I2i of the Cr.P.C. ?resem: Shri Arun Kochar, counsol for the appellaJats. Shn‘ Sandeep Yadav, Dy,. Govt. Advocato for the State. Division Bench: Hon’ble Shri Dhirenka Mishra 85 Hon’ble Shri Manindra Mohan Shrivastava, JJ. J U D G M E N T (Delivered on L5 January, 20 1g) 5 Per Maninéra Mohan Shrivastava, J. . This criminal appoal has boon iiied against the judgment of conviction arxd order of sentence dated 28th August, 1990 passed in S.T. N091! 1987, whereby the leamed 351 Additional Sessions Judge, Raipur Camp Balodabazax, after holding the appeHants guilty for commission of offence punishable under Section 302 read with Section 34 of the WC; sentenced i-x AP?ELLAF§T$: 1. Shyamlal, agad 58 ysars son of Tula‘i Samami 2. Samaylal, aged 33 years, $011 of Shyamial, Samami 3. Balaram, agad 25 yaarsl. S/o Shyamlal Samami 4. Rohitlal, ag€d 25 years, son of Karm'kram ‘ All Agriculturist, V No.1 to 3 residents of Village- and No.4 RIO Village— Tipawan Han'n Bhatta, RS. Palaxi, Tahsil t a Balodabazar, District Raipur Versus RESPONDENT: The Stats of MP. (now C.G.) ’{hem t0 und€rgo life im risonment 3L EO pay a fine af RS. 100] - each in d€fauk a1" payment 0f fme :0 further undargo addiiiona} RE, for 3 month . CaSE of the prosacuiioa, £31 brisf: is that on 3.2.1987 at abeut 16—11 am. decea‘géci-Ramlal was grazing his cattle, near the f1€1d of th€ appaliaxns, whilsHh€ appellants wera haxvesting Tiwara crop in their add. Moti was Takmg his cattle across the bund of the field of the appellants ami some of cattle entered the field of appellants. At this) appellants warned Moti emd u 4‘ caught hold of him. It is said that Ramlal arrived at the spot in the field of appellahts to rescue Mofi and resisted the appellant to avoid quarrel, a whereupon appellants started assaultiag Ramlal with the help of club leading to death of Ramlal 011 the spot. Jhabbu (P.W.l), Panch of the village, at the relevant time was at his residence. Nandu informed him about the incident, upon which he proceeded to the place of incident. While on way, he met Firtu, who also informed him about the incident. When they arrived at the spot, they found Ramlal lying dead, whereupon: first ihformation report of EXP-1 was lodged by Jhabbu (RWJ) in the police station. By the first information report it was reported by Jhabbu that While he was processing Rahar at home, Nandn came and told that the e appellants entered into quarrel with the deceased Randal. He was also told t lat the incident has taken place at Bham' Khar, whereupon he pmceeded to the place of incident along With Hajaii Rawat and on way Firm and Gosai met and told that. deceased Ramlal was assaulted by the appellants and he has died. When they artived at the spot they found that Ramlal was laying dead in the field at Bham' Khwr and blood was oozing out form his mouth. Whereupon after infoiming Kotwar, report was lodged in the police station Vide EX.P— l. Inquesi over tha body of (ieceaSed Ramial wa$ prépaz‘éci Vi€l€ EXP—2 in ”€116 pmS€nce of witnesses. Th6 body of the dscaased Ramlal was $6111 far autopsy Vida EXP-16 by GS. Ojha (P.W.11) Sub Inspector, to Govt. E Hospifai, Balodabazar. In the autopsy report of EXQPiZprepared by Dr. H.N. Naik (P.W.8} fksst. Surgson, Govt. Hospital Balodabazar, ono 1acaraied «Wound moasurjng 3 1/2 x 2 1/2 X 3/4 inch 011 the head towards right obiiquo in natjuro; 011$ lacerated wound containing 3 parts moasuriog V2 x 1/2 X 1/2 inch on tho right sido in choek; blackenmg ofbofh the eyes; abrasion on various parts u of ‘ tho body Wore foimd. Upon oxamination, the doctor has found mtomal injurios namoiy fracture of frontopan‘etal bone; Jaws were broken from bojh the side amd two uprooted teeth were found inside fhe mouth; clotting of blood (haemotoma) was also foua‘d in the parietal region up to. brain and it was found congested. According to the autopsy report, cause of death was coma resulting from congestion caused by the head injury and the doctor opined that the death was homicidal in nature. One club was seized from Rohit vide EXP—S, one club was seized from Balaram vide EXP— 6, Whereas from Samaylal, a club was seized Vide EXP—7. Blood stained Gamachha found on the face of the deceased, blood stained soil and plain soil Were seized Vide EXP—8 from the place of incideut in presence of the witnesses. Vide EXP-9, slipper was seized from the spot. Handful of Tiwczra and crushed Rahar was also seized from the field of Shyamlal, Vide EXP— 10. Map of the spot was prepared by Patwari {P.W.~9) vide EX.P— l3. Clothes worn by the deceased Ramlal and contained in packet were seized vide EXP—14 by Head Constable Abhinath, (P.W.10) of Police Station ~ Palari. Seized articles namely Gamgchha, blood stained soil, plain soil were sent to the State Forensic Science Laboratory, Sagar, whereupon, the report dated 16.6.1987 prepared by F.S.L. was sent vide EXP-17. In the report it was 9‘ opincd That Gamachha, stamed soi} anc‘i 3 clubs saized from th€ aypdiemt$ contained biood, whereas n0 bload was found on ‘Lha plain soi‘x sent far éxamixiam‘on. {t was aiso sta’wd that the blood stains on the clothss wars E nct Suitable for fummr ch€micai oxamma‘rjon. Appellént— Samaylal was sont for medical examina‘iion to Dr‘ Ghanshyam \VAgrawéal (DER/K1), Asst. Surgeon, Pn'maly Health Center Palm, who affer examitiation of the injuries found one bruise- size of 3 x 2 cm. present over left side of neck over the sterno mastoid muscle. It was remarked that the injmy Q‘as simple in nature and likely to be healed within 7 days in mse no complicau'on occurs The duration of injury was found to be 12 hrs. and that the same was cansed by hard and blunt object, Appellant Balaram was also sent for medical examination Vide EX.P*20 and the docior after examination has found a lacerated wound of 3 X 1/2 cm., scalp deep obliquely placed on the Iight parietal region 2 cm. away from the hare line . The doctor remarked that the injury is simple in nature and likely to be healed Within 10 days if no complication occurs. The duration of injury was found to be 12 hrs, caused by hard and blunt object. ; 4. After compleu'on of investigation, charge sheet was filed by the police in the Court of Judicial Magistrate First Class, Baloda Bazar, who in turn committed the case for trial to the Court of Sessions Jadge, upon which the case was registered as Sfl‘. No.91/8’lv. The learned 3rd Additional Sessions Judge, Raipur received the same on transfer. The learned trial Court framed charges against the appellants for commission of offence under Section 302 read with Section 34 of the IPC. Appellants abjured their guilt. 6 .‘x 5. The prosecution examined in all ll witnesses. In the examination under Section 313 of the appellants they denied allegation and stated that Moti n ami m‘an intruded thsi'r catae in thair field and ’th also claiméd T ev mnoczca. m G 6. man-led trial Court Vida mpvgxmd judgment of conviction aad 0rd€r 0f senilce, rdying upon the tosi‘jmony of Dr. H. N. Nayak (P.W.—8), heki that the coased Ramlal sustainod héad injury which was sufficiont to causo his afh in ordinary course of nature. The Gauss of daa’rh was homicidal in do natue. The learned trial Court mlying upon the teetimony of Moti (RWQ) u Firm (P.W.3) and Nandu (P.W.4) held that all four appeliallts caused death of Ramla by assaultixig hi with club, Ii was recoxrleel that While Moti was i m . takig his cattle from nearby me. fieki of appellants, Samaly caught hold. n al of and at that time Ramlal arrived at the spot and intervened. AS th r him e cattle were ruimmg away he rem be £0 collect and catch them and after hind hie retumi he found that the applants were assaulting Ramial with the el help of club. Ramlal fell down and died. 7. The efence of the ppellant was that they only acted in exercise of light of d a their pxivate defence and were assaulted which is proved from injuries sustained by amaylal ahd Balaram. he learned trial Court disbelleved the testimony of Bhtmeshwar (D.W.2), In the result the learned trial Court held that the appellants murdered Ramlal by assaulting‘ihim with club causing fatal injuries on his head by assive blow which resulted into his eath. m d 8. Leained counsel for the appellants submits before us that the learned trial ‘ Court has grossly exred in holding the appellants guilty of commission of offence under Section 362734 of the IPC as both Samayal and Balaram the appellants have been falsely implicated. It has also been argued that from the report of EXP—18 given by appellant —Balaram in the police. station \ l received injuries during the time when Ramlal entered into their field, and l ez da r , ; S T that caitie entered their fleld and Ramlal, Khoso Rawgi. Moti Rawat ami Toran Rawat 311d other persons came to their field. When the appenants told them to take the cattle away from their field, Ramial 3€a11ed aseaultjng aaé inilicted blow by duh on fhe head and the appellemts acted only in exercise of their n'ght of private defence of person and property. It was also argued that the prosecution has failed to explained mjury sustained by the appehants Samaylal and Balaram, which clearly leads to mference that two appellants Samaylal and Balaram received injuries inst and it. is only thereafter that the appellants acted in exercise of right of their private defence of person and property. According to him the prosecution case is liable to 5e disbelieved, as all the prosecution Witnesses Jhabbu (P.W.l), Moti (P.W.2), Firtu(P.W.3) and Nandu (P.W.4) are related to the deceased and they have suppressed genesis of the quarrel as also the injuries caused on the persons of the appellants. Their version does not inspire conhdence as it is inconsistent with the proved circumstances. According to the appellants, it is a case where the appellants were reaping crop in their field wheni the deceased and other persons got their cattle trespassed and entered into field and when the appellants objected, they assaulted on Samaylal and Balaram. They are aggressor and when blow by club was caused by Ramlal on the head of Balaram, appellants acted in exercise of their right of private defence of person and property. it is submitted by learned counsel by the appeilants that in the circumstances and from the evidence available on record, injuries sustained by the appellants and manner in which the incident occurred, the place Where incident occurred, no case for commission of‘oii'ence under Section 302/ 34 of the IPC is made out against the appellants. The judgment of conviction and sentence is illegal and unsustainable in law. ’ tb\ l\ 9, Or; “(he other hand, Earned comssl for the: State has supported the impugned judgment of conviction and sentence and statsd that Ramlal died on account of head injury caussd by the appailants in furtherance of U cammon intentien, which has been proved n‘om the teeiimony of Moti (P.W.2), Firm (P.W.3) and Nandu (P‘WA). . We have considered the submissions made by learned counsel for the parties and have aiso carefully perused the entire records of the case. . From tile testimony of H.N.’Nayai (P.W.8) who performed postmortem over i u the body of the deceased Ramlal, if is evident that Ramlal sustained fatal injury on his head which caused death. He has clearly stated that that ’Lhe injuries caused on‘the head was sunicient in ordinary course of nature to cause his death and ”(he death Was homicidal in nature. . Moti (P.W.2) in his deposition before the Court has stated that while he was taking his cattle nearby the field of The appellants and when appellants Samaylal caught hold of him, Ramlal arrived at the spot and intervened. He further deposes that the appellants assaulted Ramlal with the help of club upon which Ramlal fell and died. He also states that Firtu and Gosai were also present at about 100 steps from the place of incident. In his cross—examination, he has deposed that while Shamaylal was reaping crop, cattle entered the field and he was behind them and at that stage, Samaylal caught hold of him and objected as to how cattle entered their field stating that the cattle are spoiling the crop and asked him to remove the cattle immediately form the held. At that time Ramlal came and intervened. He also statesathat Ramlal is resident. of Junwani, but was grazing his cattle just by the side of field of the appellants. During the course of his cross—examination he was given suggestion that no sooner ‘ / amla} amive at the spot h€ milicted latii blow 011 th6 haad of Balaram R d and Samyalal. H6 was also given suggesiion that Samay and Balaram W€r€ assauited aad said that 116 did not $66 any injury on the h€ad of Balaram. G He has stated that Ramlal was his Samadhi (in—law) and brothar—in~1aw of Jhabbu. From the testimony of this wimess, it is proved that the mcident occumed in the f1e1d of the appellamts where Ramlal had come and there 'i was a dispute with regard to trespass of cattle into the fleld of appellants. It is stated that i11 that course, dispute arose and Ramlal was assaulted. lé. Firtu (P.W.3) has also stated in his testimony that while quarrel was going on and while Moti ahd Torah were qualreling with Samaylal & Shyamlal, and Samaylal 8:. Shyamlal objected to trespass of cattle, Ramlal arrived at the spot and after some time they saw that the appellants were assaulting 2w Ramlal with the help of Club. When he went to spot, Ramlal by that time had fallen to the ground and Samaylal and Shaymlal had left the place. Rohit had also left the field In cross—examination,he stated that Ramlal is his Samdhi and also W that the incident occurred in the field of Shyamlal and found that the catde of Mo’ri and Toran having entered the field, were being collected by Moti and Toranv He further stated that he did not see any injury§ntlicted on Balaram hut later on Balaram went to police station. From his deposition it is found that there is omission in his statement given under Section 161 Cr.P.C. before the police regarding the fact that when Ramlal fell down Balaram had indicted injury on his face and head. ix . Nandu (9W4) has also stated that the incident occurred in the field of appellants and the appellants inflicted injury on deceased Randal with the help of club. x-A @w ‘ 1:1 his cross‘r examination he stated thai flght waS going on between the parties in the field ami he also states that the police did not reconi statemegt in the manner stated by him. He further states that he did not E see any injury over the persons of the appellants and he is unable to explain as to how the appellant received injuzy. He is unable to explain as to hdw the quanel started and who started. . Ramlal (P.W.6,) son of Makadu in his cross—examination has stated that Randal was quamelsome and used to get his cattle trespassed in the field of other; ‘He also deposed that he had seen that Bala and Samay had sustained injury. ‘ . . Hiralal (P,W.5) examined to prove seizure. of club vide EXPS and P-6 has turned hostile. So also Kartikbai (P.W.7), who stated that she had not seen the alleged incident. In her cross examination she has stated that she had stated before the police that Moti brought his cattle in the field of appellants. She has been declared hostile. In her cross examination she has further stated that Ramlal came running with lathi and went to field of Shyam. She has also stated that Firtu stated that we should not look into others dispute and she and Firtu were along working in their field. s 17. From the evidence on record brought by the prosecution it is proved that the deceased Ramlal sustained injures on account of lathi blow on his head which resulted in his death. Three prosecution witnesses namely Moti (P.W.2) Firtu (P.W.3) and Nandu (RWA) have proved this fact in their testimony that Ramlal was assaulted by the appellants. . Dr. Ghansyam Agrawal ('TD.W.1) who examined appellant—Bahrain and Samaylal has clearly deposed that Samaylal sustained injury on the left side of s neck in sterno mastoid muscle of 3 x 2 cm. size. Balaram hi sustain€d injury ami hc found lacaramd Wound 8 x 1/2 cm. scaip deep cauSed; Within 12 hrs of examination by hard ajld blunt object. Ha has; also depGsed that if injury on hiS head would have been causéd forcefully, it might resuit in intema; injury which might lead to death. The prosecution has falled to explam the mjunes Iound on the person of appellants Samaylal and Balaram Balaram sustalned Injury on hls head whxch was scalp deep. The manner in which the incident happened and as deposed by the prosecution witnesses, it is also proved that cattle trespassed in the field of the appellants and {when there was a dispute between Moti and appellants and when Moti and Toran were quarreling with the appellants, Ramlal came nmnipg on the spot with club. Taking into consideration the totality of the evidence on record and the injury sustained by the appellant, sudden quarrel in the heat of passion, the prosecution has failed to prove that there was any common intention on the part of the appellants to cause death and that they inflicted blows by club on the head of the deceased— Ramlal with the common intention to cause his death. On the contrary, it is inferred from the testimony of the prosecution witnesses itself that Ramlal was aggressor. Their cattle had entered in the field of appellants and when the appellants objected, quarrel began at which Rainlal came running into the field with club. As the appellants have proved injury on the peison of Samaylal and Balaram ard the prosecution has failed to explain those injuries, the testimony of prosecution witnesses relating to the manner in which the incident happened cannot said to be wholly true. It creates serious doubt and suspicion regaiding the independence of the prosecution witnesses. Prosec'ntion witnesses thus suppiessed the genesis and origin of occurrence and have not deposed true version and cloud is cast on the entire case of the prosecution. E 'e 19', 1‘: iS es‘rabiish6d Eaat tha occuirence 1€aciing tc {bath of Ramlal toek pEacs without pmmsdiitation‘. in a suddsn ghi, in the h6a‘i. of passion ami it is not a case 0f premeciitated or calculatgd act. As: the incifwnca itseEf ‘iosk H 1 place sudtienly, it cannot b€ held that thsre was a common int€ntion on tho pari of appollants to murder the dgceased Ram1al. On Tho confrary, on the bggis of pmvod fact that the incidont occurred in the field of appellanis and RamEal cams running with club and tho prosacution failing to explain jury on tho parSon of Samaylal and Balaxam, right of private defence of person aotkyroperty did accrue the appellaxlts. The hnpolmt fact that the. occurrence took place in a sudden and unpremeclitated manner resulting in mjury to two of the appellants, though they exceeded in exercise of right of private defence in giving Zathi blow on the head of the deceased, we are mclmed to hold that Exception 2 to Section 300 of the IPC is attracted and thus this act would only constitute offence punishable under Section 304 Part—I of the IPC and not under Section 302 read with Section 34 of the IPC. the result, the appeal is partly allowed. We set aside the conviction of the appellants under Section 302 read with Section 34 of the IPC and convict them under Section 304 Part-l of the IPC and sentence them to undergo RE. for 7 years. The appellants are on bail, therefore, their bail bonds are cancelled and they he taken into custody forthwith to ser‘kle out remaining .. Sinha P€1iod of their sentence. \\ - Sd/_ DWDM Sdl— ’MSHRA Judge J Manindra Mohan Shrivastava Judge