HIGH COURT OF CHHATTISGARH AT BILASPUR B: Hon’ble Shri Dhirendra Mishra & Hon’ble Shri R.N. Chandrakar, JJ. Criminal Appeal No. 847 of 2004 Appellants 1) Dharamlal, S/o. Ramavtar Satnami, (in the custody) aged about 32 years, r/o. Village Panchbahara, P.S. Takhatpur, Distt. Bilaspur (CG). Shyam Kartik, S/o. Guhiraram Satnami, aged about 32 years, r/o. Village Keshruwadha, P.S.'Takhatpur, Distt. Bilaspur (CG) Respondent State of Chhattisgarh. (Criminal Appeal under Section 374(2) of the Code of Criminal Procedure) Present: Ms. Sharmiia Singhai, counsel for appeilant No.1. Shri G.S. Ahluwalia, counsel for appellant No.2. Shri U.N.S. Deo, Govt. Advocate forthe State. JUGMENT D (Delivered on 1 —9-2010) Per Rangnath Chandrakar, J. This cfiminal appeal is directed against the judgment of conviction and order of sentence dated 21—9—2004 passed in Sessions Trial Case No. 292 of 2003, whereby learned Ist Additional Sessions Judge, Bilaspur, has convicted the appellants under Sections 302 read with Section 34 of the Indian Penal Code for committing D . murder of Vasudev Yadav and sentenced them to undergo life imprisonment. The case of the prosecutidn, in brief, is that on 17-4—2003 at about 11 — 12 O’ clock in the noon the deceased Vasudev Yadav along with Mahendra Singh went to village Amli Kapa by bus and when they descended from the bus at bus stand, the accused persons Dharamlal having club and Shyam Kartik having sword were present there. As soon as the accused persons saw Vasudev Yadav and Mahendra Singh, they started abusing them and assaulting the deceased with fists and sword on the pretext that they did not give liquor on credit basis and had come in search of raw wine. In the mean time, Madho Singh, Brijnandan Singh and Aditya Qupta reached there who along with cqmplainant tried to intervene and stop the assault but the accused. persons assaulted the deceased by means of Iathi and sword as a result of which the deceased died. Report of the incident (Ex. P/12) was lodged against the appellants by complainant Mahendra Singh (PW/8) in Police Station Takhatpur on the same day i.e‘.,‘ 17-4-2003. After registering the crime, the police proceeded to place of occurrence and prepared inquest (Ex.P/2) over the person of the deceased in presence of witnesses. Thereafter, the dead body of the deceased was sent for autopsy to Primary Health Centre, Takhatpur, where Dr. (Smt) Manju Tirky (PW/14) conducted postmcrtem and gave her report (Exp/1 5—A). Spot map (EXP/10) was prepared by Halka Patwari — Mukesh Verma (PW/13). One sealed packet containing blood w stained underwear of the deceased received from hospital, Takhatpur, was taken into possession vide Ex.P/5. During investigation, on memorandum of accused/appellant No.2 Shyam Kartik (Ex.P/7), weapon of-offence sword was seized (EXP/9) and the seized articles were sent to FSL for chemical examination (Ex. P/1 3). After completing the investigation, charge sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Bilaspur, who in turn committed the case to the Court of Sessions Judge from where the case was transferred to learned First Additional Sessions Judge who framed charges under Section 302 read with Section 34 of the Indian Penal Code against the appellants who abjured their guilt; ln order to bring home the g'uilt against the appellants, prosecution has examined 15 witnesses in all. Thereafter the statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence and false implication. The trial Court after hearing counsel for the respective parties convicted and Sentenced the appellant as mentioned in paragraph one of the judgment. Homicidal death of deceased Vasudev Yadav is not in dispute. Even otherwise, from the deposition of Dr. (Smt) Manju Tirkey (PW/14) who conducted postmortem and found the injuries on the person of deceased as described in paras 17, 18 and 19 of the $ impugned judgment and opined that cause of death was shock due to hemorrhage caused by rupture of Iiver and the same was homicidal in nature, homicidal death of Vasudev Yadav is established. 8. Learned counsel appearing for the appellant No.1 Dharamlal submits that the trial Court erred in accepting the evidence of g, prosecution witnesses. There are several discrepancies in I testimonies of the prosecution witnesses, which have been over looked by the trial Court. There are contradictions in the depositions of prosecution witnesses on material point. Learned counsel further submits that in the same incident, the accused appellant No.1 also'sustained injuries and in this regard, report against the deceased person was lodged in Police'Station. The evidence of single eyewitness cannot be believed, even though the case does not travel beyond Section 304 part ll of the IPC. 77/9. In support of the aforesaid arguments of learned counsel for appellant No.1, Mr. Ahluwalia, learned counsel appearing for respondent No. 2 Shyam Kartik submits that the trial Court has not appreciated the right of private defence. 10. On the other hand, learned Government Advocate, appearing or. behalf .ef the State supported the impugned judgment. 11. We have heard learned counsel for the parties and perused the record of the trial court as the impugned judgment. V , 12. Conviction of the appellants is based on evidence of eye-witness Brijnandan Singh (PW/11) and Mahendra Singh (PW/8). Brijnandan Singh (PW/1 1) has deposed that he knew the accused D -ffh's persons.‘ On the date of incident, i.e., 17—4-2003 at about 11.15 a.m. when he was going to village Amora along With Aditya Gupta on a motor cycle and reached near bus stand Amli Kapa, they saw both the accused persons assaulting Vasudev Yadav. At that time, Dh‘aramlal assaulted the deceased by sword and Shyam Kartik by olub. When both the accused persons saw him and Aditya Gupta, they rushed on them and thereafter they returned to village Takhatpur and informed about the incident to one Vashistha Gupta. At the time of incident, this witness did not know the reason as to why the accused persons assaulted the deceased but knew the reason after the incident that due to search of raw wine the accused persons assaulted the deceased. He also deposed that Mahendra Singh‘ lodged the reported in Policeéstation about the incident. ln his cross examination he admitted'that when he reached the spot, the accused Shyam Kartik was assaulting the deceased with sword and Dharam was assaulting the deceased with club. There are some contradictions and omissions in his statement but the same are not material by which his entire evidence can be disbelieved. Mahendra Singh (PW/8) who is also another eye—witness has deposed that on the date of incident, he along with deceased Vasudev Yadav was going to village Amli Kapa by bus and when they reached the bus stand near about 11.00 a.m., the accused persons Shyam Kartik holding sword and Dharam Satnami holding club, met them and quarreled with Vasudev Yadav on the pretext that they did not give them liquor and had come in search of raw 0 wine, assaulted him with club and éword. After 2- 3 assaults, the deceased out cried and asked him to save On this when he went to Intervene both the accused persons rushed to hlm due to which he fled away from there and saw two staff members of llquor shop namely Brunandan Smgh and Adrtya Gupta coming‘ from Takhatpur. Though he raised alarm, they did not hear his voice. Thereafter, he went to Police Station, Takhatpur and lodged the report _(Ex.P/12) and morgue intimation (Ex.P/13) against the appellants. Though, some contradictions and omissions have been pointed out by the defence in his cross-examination, he remained consistent and unrebutted on material point. Moreover, his version is duly corroborated by the evidence of Brijnandan Singh (PW/1 1) Apart from this taking note to the fact that the FIR (Ex P/12) was lodged by this wrtness by name against the accused appellants hls' evrdence cannot be discarded. Vashistha Sahu (PW/4) has deposed that on the date of incident i.e., 17-4—2003 he was manager of country made liquor shop, Takhatpur. On hearing the uproarnear the liquor shop at Takhatpur that some employee of liquor shop was killed at Amlikapa he accompanied by 2—4 persons proceeded to Amlikapa on agjeep where he found that the dead body of Vasudev Yadav was lying near the bus stand. The people standing nearby were talking that the accused persons killed Vasudev Yadav with sword. After about one and half hours Mahendra Singh (PW/8) came there with police party who informed them about the incident. Mahendra Singh specihcally told them that Shyam Kartik assaulted he k t N t deceased Vasudev Yadav by sword and thereafter both the accused persons fled away from the scene of occurrence. He further deposed that on memorandum of appellant No.2 - Shyam Kartik, weapon of offence sword and blood stained shirt of accused Shyam Kartik were seized in his presence. He admitted his ignatures on seizure memo of blood smeared earth and plain arth (EXP/6), memorandum of accused Shyam Kartik (EXP/7), memorandum of accused Dharam Lal (EXP/8), seizure memo of sword (EXP/9) and seizure memo of blood stained shirt of accused ’hyam Kartik (EXP/10). He was cross-examined at length but S nothing could be elicited by the defence, which makes his estimony untrustworthy to be relied upon, r. ’ Manju Tirkey (PW/14) has deposed that‘.:on 17-4-2003 she conducted postmortem over the body of deceased Vasudev Yadav and gave her report (Ex.P/15-A). She opined that the cause of death was shock due to hemorrhage caused by rupture of liver and the same was sufficient to cause death in ordinary course of nature. She further opined that the burn injuries found over the body of the deceased were antimortem and the symptoms found over the dead body go to show that the death of the deceased was homicidal in nature. Thus, on re-appraisal of the evidence of aforesaid witnesses, it is found that the deceased was assaulted by the appellants with sword and club due to which he sustained multiple injuries and died on the spot. The incident was witnessed by the eye witnesses Mahendra Singh (PW/8) and Brijnandan Singh (PW/11). Their t# x \ r s e t D statements are duly corroborated by Vashistha Sahu (PW/4) who found the dead body of the deceased Iying on the spot. Apart from this, the weapons of offence i.e. sword and club were seized at the instance of the appellants, which were proved by Vashistha Sahu (PW/4) and the investigating officer J. Toppo (PW/15). The prosecution case is further corroborated by the medical evidence of Dr. Manju Tirkey (PW/14). Therefore, there‘ is no room to disbelieve the statements of aforesaid witnesses. 17. ' So far as the contention of learned counsei appearing for the appellant No.1 that the case does not travel beyond Section 304 Part ll of the IPC is concerned, it is evident that the appellant No.1 Dharamlal was present with the appellant No.2 Shyam ‘Kartik during the entire incident and took active part» in assaulting the deceased as a result of which he died on the spot which is categorically stated by the eye-witnesses Mahendra Singh (PW/8) and Brijnandan Singh (PW/11). Apart from this, as per deposition of Dr. Manju Tirkey (PW/14) and her postmortem (Ex.P/15-A), multiple injuries were found on the person of the deceased. Thus, intention of the appellants was very clear invcommitting the murder of Vasudev Yadav. Therefore, none of the appellants can take shelter of Section 304 Part ii of the IPC. 18. As far as the right of private defence is concerned, admittedly the deceased along with Mahendra Singh (PW/8) had gone to Amlikapa in search of raw wine where the deceased was assaulted by the appellants on the pretext that the deceased did not give them liquor on credit basis and had come in search of raw wine. (Q 3‘ Thus, the question of right of private defence does not arise as the deceased was the employee of lIquor contractor and had the nght to search about the raw wme and Inform the Excrse Department as manufacturing of raw wme can rum the busmess of hquor contractor Dr V K Som (DW/1) was exammed by the appellants In therr defence who found two Incrsed Injuries on nght knee and left I palm of appellant No 2 — Shyam Kartik, who‘ was referred to Drstnct Hospital for x-ray and further treatment. He opined that the injuries were caused by sharp edged weapon and the injuries were possible from the sword like weapon. He admitted in his cross- examination the fact to be true that if the injuries were caused by . the same sharp edged weapon on vital part of the body death was possrble but he admitted that no injury was foundon Vital part of the body Thus from the evrdence of Dr V K Som (DW/t) it is not established that the deceased was aggressor and the appellants ssaulted the deceased in their private defence. Apart from this, j no injury was found on the vital part and no Weapon of offence was seized from possession of the deceased or his companion. ln view of the aforesaid discussion, the appellants do not get any benefit of right of private defence. In view of the aforesaid discussion, we are of the opinion that the prosecution has successfully proved the involvement of the appellants in the crime in question beyond all reasonable doubt nd the Sessrons Court rightly found the appellants guilty for the offences charged against them We do not find any illegality or «\ a a 10 infirmity in the impugned judgment convicting and sentencing the Sd/- Dhirendra Mishra Judge accused/appellants in the manner mentioned above. 2. in the result, the appeal fails and is hereby dismissed. 0 A l \ ‘ r ”‘ ’w