..-t^ '';<* ..-. /: ^"•Bth('|nih|f) xs <mB.^<a'eo S:,G?^j®mfiAmjw;.^?j^^EOR^,c««^^ . .GBIMINM.. A6ES 'No» LV.Or2-S_.^7'' ..aBSSbu&gT 'y\ ^fSil= r^etaba&ilaa. ;a®ea'4.l^years,,v.:.:'",: '.• ^.3/&';'.;<^BK!e»tJ^tOa/%<0:,, .:,,... :*narkot;^' •EGlfee^•S^a.tiiisat.SaEayg^i, •Eah 8. »ahasaaaa<a. KAIPBS fM. B. 1 ^ •• Y/S- WSS^^S^-^ /SWts ,of K.P. •k^^v^ ^foll^s!s*n —•w'' ]SatsyE>all»''Sis^s •':$giE^^!{«I^^:';-;• :m ^- ^' a^i^Mi. laiffiR s^%os_a241.,^^._oi_2HE ei3i%;GS,ex:E^a»L PROGSDUREs ;-: : ! ' ' '. : ^ ,.-,,^,.,.:.:- •l.ij •^^ >. / tii! -t- XI-HC-22 . ^SET ^ffqRTq, 'sfNpre, fawwy fli*reiT <h<ii«i sn^r ^RR? ^^^A.^7 SD^I^iT. h-u^i s^s s^ic»i^if?^ f»""^ 2. sn^iwnw^riN. DIVISION BENCH: HON'BLE &HON'BL SHRIL.C.BHADOO rSHRl DHIRENPRA MISHRA, JJ Appetlant CRIMINAL APPElAL N0.1023 of 1997 Chhlabilal Respondent Vs. Stat|e pf Madhya Pradesh Shri J. A. Lohani,learnedcouni Shri U.N.S.Deo, learned Addlitional Ravindra Agrawal, learned Panel Law^i ORAL JU (12,041 L.C.Bhadoo.Ji By this appeai underSection 3] the accusect/appetlant has questioned] of the judgmentof conviction and ord^r by learned Additional Sessions Jud^e whereby the teamed Additional accused/appellantguiltyforthecpmml the IPC for committing the murder of to undergo imprisonment fqr life and t4 payment of fine to further undergo Rl f^i Case of the prosecMtion, in brief ,/' • ' , • :-•,'- -jhat ori 12.06.94 af aboyt 4.00 p.m./. his brother Saheb Ram (Complainant) :<^l^'4l'+lffl-}^lT'^ IT^ ^^I^K ^ 3ifi<n aii^r etfortheappeliant. :' Publjc Proseeutor with Shri 'erfortherespondent/State. DGM&NT 2006) f4(2) ofthe Crimjnal Procedure Code, ]th.e legality, propnetyand correctness ir of sgntence dated 25.03,97 passed i, Mahasamund inS.T.No. 384/94 iessions Judge after holding the Ission of offence under Section 302of ()ne Sakoor Soura and sentenced him pay aflne of Rs. 1,000/-, in defauit of »rthree months. nec^ssaryfordisposalofthisappealwas Sakoor Soura went along with d4ceased tn the agriniiltiiral field on a traGtQr 6f [TTt^ ^io^ —— »v XI-HC-22 ^^ "'•ll'tll<'l'T, afllwis, (sKii'uy 3Ti^?r i^g? IIICTI sht|l<* .O.^..0fc^ snt^i'^i ^ R-lidl 311^1 sh^iGti 'M'l.Sfl ISh. sn^i ^RITOT ^ifer 2-- wals Sclura. S&ura Solura (he one Mukesh Sahu (Mphdawale) for th^ field. Accused/appellants Ankur and side. Accused/appellant Chhabilal started quarrelling with Sakoor assaulted twice with axe on Sakoor Sbui this Saheb Ram got terrified and left informed aboutthe incident whereupo(i site and by that time Sakoor complainant Saheb Ram atong with Saraipali and lodged the repbrt D-y registered the case against the acc« offence under Section 302/34 of the IP); prepared panchnama P-5 of the bod^ deceased were taken into possessicjn while in the'pdliee custody gave m^ where he kept the weapon of recovered the blood stained axe und^r accused/appellant i.e. one cotton Dhop 4. The recoVered articles were sent Scienc& Laboratory, Raipur. Bpdy of examinatioh to ths Primary-Health Cerjtre A. K. Koshariya conducted the post reportP-18 inwhich he opihed thatth4 brain substance, haemotoma and OfRcer took into possession plain soili] of occurrence-urffler P-12. He also one liamboo basket, one key of the offencel-axe chi-tfi<n<i1T) TTR^f'^ f^'<^ <n>t-<-$i< ^3iPg*T3ii^r pyrpose ofploughing and sowing the (phhabilal came there from the village ?a|s canying axe in his hand and they ,'Thereafter aceused- Chhabilal pn account of which'he died.At (he place. He went to the village and the Kofrivar - Ekadasiya went to the was already dead. Thereafter Kotwar went to the.police station -|1. pn receiving the report, S.H.O. |sed persons for commission of the and left for the scene ofoecurrence, of deceasedSakoor. Clothes ofthe uhder P-6. The aecused/appellant imorandum P-2 regarding the place and in pursuance -of that he got P-3 from his jiouse. Clothes of the was taken into possession ynder P- for chemical examination to Forensic Safcoor was sent for post mortem s, Saraipali under P-10 where Dr. V. ntortemand prepared ttie post mortem death is. due to injuries causedto ,the of vital bones. The inyestigating ]and blood stairied soil from the place into possession one fertilizer- bag, >icycle and one pair of plastic slipper [tit^^fig^ fratture tdok 'XI-HC-22 ^si •^fPfKPf.'SSt^S, hwwy, WRfTthfllch CT^E?T .........£L<.^Qto^.l^ fc|'b<liT' 3II^T?iT R;-<N) sii^r ^ti<^ y^in. sni^r ^iw^ift? -2>- *l'i|fd<fll 'WRff '9 fest <(»l^lt ^? aipgiT ail^r 3. 4. 5. 7. (chapps/) under P-11. Site plan ofthe| the Patwari under P-14. KhatoUni 6f possession under P-16. After coniplel(on was filed in the Court ofJudicial Magisf turn eommitted the case tp the Se$^i learned Additional Sessions Judge, transfer for triat. place of occuitence was prepared by the land record was atso taken into of the investigatjon chargesheet trate-First Class, lyiahasamund who in ions Judge, Raipur from where the Mabasamund received the case on The prosecution in order to establish th| examined fifteen witnesses. Statement recorded. under Section 313 of thej prosecution evidence appeanng againjst falsely implicated in the crime. How| during trial in Central Jail, Raipuf; crime against the acpused/appellant ofthe accused Chhabilal was also Cr.P.C. in which he denied the him and stated that he has been 'ver, accused^appetlant Ankur died After hearing the fespective counsel | Sessions Judge convicted and sente^ced mentioned in paragraph one ofthisjudfi|ment for the parties; learned Additiona) accused/appellant Chhabilal as We have heard Shri J; A. Lohani, accused/appellant and Shri U.N.S.Deo, with Shri Ravindra Agrawsd, P.L. on be^alf of the tearned counsel on behalf of the leamed Additionat Public Prosecutor State. Hoimicidai death of Sakoor Soura is not(n dispute .i<; As far as the invQlVement of the ac ' '•-/ . -- : '.'. ' '':'' .' . .concerned, P.W.-1: Phulbutoo (compla Cused m the crime in question js nant) who lodged the report in the [''ft^^Rrt =F XI-HC-22 sn^fi^i !<•»*ss^v Sfi^ ^ffifl •'^ 8. 9. 10. l^-k ~5^i '<iniflsl, &V\VIG, hvwy. 3ITi?T1T3^ ^............e^&-^_^ iitiwrshi-ira? "W( 200 l^ff" W^T^giWHfef —M~ police station Saraipali, hasstated tt he was at his agricultural field whi Sakoor was also worKing in the Accused/appellants Ankur and Chha|)ilal Chhabilal was carrying axe in his Deceased Sakoorwas assaulted thrji away to the village and becanie deceased Sakoor was his uncle's s< poljcestation. . )|at on the fatefulday at about 4.0D p.m. i(A is adjoining to the field of Sakoor. Ifield which was of accusecl Ankur. cartiefrom ttie side ofthe village.ae |hand anel Ankur was empty handed. (se arid theteafter, being terrified, he ran unconscious. He further stated that (n and then he lodged the report in the In the cross examination, in paragrajph that the field in which the incidenttodk and they were in possesston; Oecj village namely Patherapali. He had r^o had a separateagricultural filed. tn tfie fact that he went atong With Sakoor given the statement to the police. Ev( P.W.-3 Mukesh had stated thaton th( the .field on a tractor where both th^ quarrelling. He does not know th^' witness has been declared hostile. From the evidence of P.W.-1, it| ^assaulted thric? yith the axe onth^ recoveredat the .instance 6f the aecl ^>i*f[ci<tli ^if^<riT ^ T^^dT '<f^f-^,l< ^aipgirsn^i three of his evidenGe he has sfated place belongsto th'e aecused persons sased Sakoor used to live in another relatlon with the disputed filed and he cross examinatkin he has denietf the in atractorand he said that he had not n this portion oftheFIR he has denied; date 'of incjdent, hewent forplbughing b.rothers namely Ankur & Sakoor were the field belongs to whom and this s established that accused/appellant Chhabilal was carrying axe in his ^iand at the time of the offence and he deeeased and the axe in question wss sedfrom his house. Therefore from the [^^fe4 XI-HC-22 '3^ 'tiHi'9i{, y^ww, Kv\w'y. aT(^T»XR^? IWWI CbNlch • afi^r^iT R;-<i.°b sn^i' ^^^) ^lf^T SIT^I'^niwdfCT —s-t i*i<<ifi4i-i ii'-icit 'ff ft^:<r<fl<^i< • ^aiNqsii^r . 'M"' '• 11. 12. 13. <">-.. V- evidence of this witness the inyoh/em^nt of the accused Chhabilal assaulting thedeceased withtheaxe isestablishted. . Learned counsel fortheaccused/app^ field was in possession of Ankyr started, ploughing, the accused plough the field, thereafter quarrel assaulted him in a heat bf accused/appellantChhabilatdoesnot] llaftt argued that since the agriculturat Chhabilal and when the deceased went there to persuade him nbt to place and in that process Chhabilal pas^ion and therefore offenee against ;fravel beyond Section 304-1 ofthelPC. arld per§o|is todik On the other hand Shri U.N.S. Deo, behalf of the State supported the judg^nent i^arried Additional Public Prosecutor: on of thetrialCourt. parU^s per^ons Having heard th6 counsel for the evicfent'from the evidenceof P.W.-1 was in possession Qffhe accused a separate village namely Patherapajli field where the incident took plaice as] statement ynder 161 ofthe Cr.P.C. witness has stated elearly that on th^ and took him along with him.with a his field thoiigh the field was in Chhabilal assaulted the deceased wit that in any manner deceased Sakoor] the -above cjrcumstances, wa ar^ aceused/apR&Jlant ChHabilal exceededthe >, wehave perused the evidence.It is ffhulbutoowho had stated thatthefield and the deceased Was resfding in ajli and he had no conneidion with the |he had his ^parate Tield. Even in the ih the First Informatibn Report.this fateful day Sakoor came on a tractor toshow him the field and way to ofAnkurand Chhabilal, however th axe and there is nothing on; record Itriedto assault Chhabilat therefore, in of the considered opinion ttiat pght of private defence. : [ii©ifiri ahd rejquest posse^sion -t- XI-HC-22 ^q ?qpirerq, •gTatHTS, i«i<'it'yy 311^1 »CR[^ ^.....a^A^ *<1<4CTI ShNI<*l IN^g' an^rqiT [<•<!+ 9f^V gMwafOT 14.. »! 15. B». XT' 311^1 TRIWgf^T ^Hf?ra^tWMf'?is^t^R?R IT SlPgfT SD^t -Q^, As per the provisions of Section 99] of the Cr.P.C. "the n'ght fo privste defenceinno case extencls totheinfli^ingofmoreharm Ifian it is necefsary to inffict fbr ffw purpose of detenc^" and Section 103 of the Cr.P.C; postulates "the circumstances under\ property extendstocausedeafh". which-fte right of private defonw of The present case is not covered i|inder the circumstances which are enumerated in Section 103 of the pr.P.C. as sueh accuse<Vappeltaht Chhabitat had exceeded the right ol| privats defence to property white inflicting the injurieswith axe onthe bo|jyof Sakobr therefore, we are ofthe [considered opinion that the offence ag^iinst the accused/appellant does not [travel beyond 304-1 of thelPCandth4convictionof the aceused/appellant [under Section 302of thelPC canhot belsustained. |ln the result, the appeal of accused/ap((ellant Chhabilal partlysucceeds and |the conviction arid seotence imposed uiton hJnd under Section 302 ofthelPC |are set aside. lnst$ad ftereof the ac|cused/appeltant is convicfed under pection 304-1 ofthelPCandsentence4to uhdergo Rl for ten years.As per fhe record, the accused/appellant is in c]ustody since 13.06.94 which has not (?een disputed by the leamecl Additiortal Public Prosecutor and thus, the ticcused/appeflant has .already yndergo^e the seritence imposed upon tiim ^ndas such he shall be set at liberty J|orthwith if.notrequired in any other case.__ "G.Bhndoo '" ,/ Judge ^ j ^ .;-1-;—.-.,..-.^/ .. '•'•.' Sd/-. DhirendraMishra Judge [•qll^t^