I‘N TEE HIS-EngOImT 01';jiADHggggmDESH. AT JwA‘gLw $9 92 g‘ £ aw? Criminal Am eal Nor._w Ramsugaha/gon of $hriagda; Bind; aged. about 7G ye rs, resident of H‘amalyara,’ Kharsiya, district—Raigarh . Qur‘i ‘ 4 , 2—- Nancilal/écn of shri Siyam’oar Bind, /aged about, 50 yéars, resident of: Kharsiya, aistwb.» -‘;\ R aigarhe )1 We 5m Brajlal éon of $ku2i Bgv‘w -p G'VQI‘ 6\"( . Bin6.,/aged residerxt bf about Hamalp ’22 31‘s., years ’ f, - harsiya, distt.-Baigarh; K /, / 4— Ramarayan Ganeshram son Bind, cf S'haai aged about "‘ diSticih-Raigarljx; 25Jyears, resiaen‘s \ 0f Khargiyay ’ ‘ ~‘ 5w- Bind, Devdas age<i '$on of about $‘m‘i 4o Mahavir years . resident cf Ehmalpara,“ Khamsiya,aligtrictaRaigarh. 6~ Nanhm’amvaias RamaarayanA 2‘ ,w ‘ ‘ ~! son of Shri whmvrc Bind, " ~ aged aboui‘. 45 yearS, vl-esiifletit ' of Eamlyara, Kharsiyag‘ districtaaigarhv / - Navmulal son of, smi-aamsum’ Bind, aged. a'bcut 4.1 ’yearS, ‘ resident 0f Kharsiya, aistrictélaigarhé ‘ g.» ritainbarlal ’son bf 3mm , f; // Ramshukha 25' yeam‘s,’ Bind; resident aged 03?; abautg é \ ‘w \ "Khars§.ya , dist? ictwRa wax-”21 — Vereus — x ‘ix ‘1» , State of Maame Emde‘shi; v thl'Ough POliceVStatJ-“Onn V/ VKMrsWa, eigtr tuRa yh e .a- . REemmEg-‘gg ,‘\ 39 F‘c CO i , r a , ' l M é ‘, \ i g w2~ DER SECTIuN 214(2LQF mm: CODE RIMTNAL PROGEDURE VT SENTENCE R.I £03: two yeaf gzehw Us :n 304 Partml/149 0f LE. (For al he appellan‘bs) mnmmkAPEmL UN OF C CONIGION s / G l t HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 685 of 1992 Yavnesh Kumar Sahu and others. APPELLANTS VERSUS [RESPONDENT State of Madhya Pradesh. Shri Ashish Shrivastava counsel for the appellants. Shri Pravin Das Dy. GA forthe respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (04.01 .201 1) This appeal is directed against the judgment dated 26.6.1992 passed by the Sessions Judge Raigarh in Sessions Trial No. 186/1990 convicting the appellants under Sections 304 (part-I)/149, 323/149 and 147 of the lndian Penal Code and sentencing each of them to undergo rigorous imprisonment for two years, six months and six months on each count. 2. Case of the prosecution in brief is that on 18.5.1990 deceased Beni Madhav had erected a fencing in his field and it is alleged that am the accused persons had fiiied up the plinth dug by him. On protest being made by deceased Beni Madhav, firstly accused Ghasiram and Nandlai assaulted him on his head and thereafter when the deceased fell down, all other accused persons also assaulted him with club and caused injury on his head, both hands and left leg. On that day itself .Dehati Nalisi Ex. P-22 was lodged by deceased Beni Madhav and based on that FIR Ex P—23 was registered for the offences under j Sections 147 307 and 323 IPC against the accused persons Further case of the prosecution Is that on 7 6 1990 Beni Madhav expired Merg Intimation Ex. P-73 was given to the police and after investigation challan was tiled on 8.8.1990 against the 12 accused persons including the préSent appellants under sections147, 148, 149, 307 and 302 IPC. \ 3. o s hold cused/appells ilt, rcu s examined s many 9 witne in supprt of its cas. Ses he aused/appellan re also recoed under stion 3 f t o f Ciii rcedr in hich h denied the es lvlled agt t n led ti innocnce and fae plicn h ‘e. This apart. two witnesses amel Bu (D—) r. S.P. Gupta (DW~2) re examined by the de in uppt of is cas m at d ri a ra nd ajanand h pired. S a to the acant guy posetion ha a as 1 sses o e tatemnt of t ccts we rd ec 31 o he Cde o rmna Poue w tey charg ee ains hem ad pade her e ls imatio in te Vcas ny dlu Ram W1 and D J we efenc sor t e. lt is infored th uring tal ccused Ghasim a G ave ex ' 4. ft hearing the atie h l Cu has toh itd present apllts of t ee ur Seti 302 I, it ovit tm under Sectis30 (prt—l)/149, 3349 147 . w, he on4 a 2/1 and IPC Hoever cud Kaila lis Dhurva, Aditya Sha'kr nd Raiurhi alia acse sh aa na a pn s am ai hav een quittd of all the crges lvled aaist Kla B e b ace ha eel gn thm Drngt ende o applan o1 Rams has e. ui/he pncy f this appeal elt N. ukh a ex now the prse aeal relate to ed/allt \Nalal, Bjlal, Ganhra; Devdas, Nnhuram, Natthull and Pitablai only. 5. Herd col for t pai and ped th r able on rcd inludg thejudnt ipugned. 6. Coul for the lnts ubits tht prest apr t ce of self efence here deceased Beni Mada had st aaultd the accused pss and in an attet to ve‘ tei lis, se injuries ere causd to t deceed hich ufoely resud i is dath. He suits th specific aegaon is only ain acc Gh‘aSm wh did durig trial ad ced lal He subits ta agt the othe reman accused persns all the allens geeral n nu He sub at accorg to the pt orte rer deased had ssned e o e s a which of the accused had cad wh ury to He sbs a in the abSence of any specuftc allegation against each of the Aer prs te tria ort hug acqute the pean he offnc nde con PC cnced lso pired and ent pp s accusppeans nd ra esm a a mar a unse he rtes erus e mateial avail eor cin gme m nse appela sm a en peas o be a as d w hv fir sse eron mp sa hr ve om w e he as w nrtunat lte n h e bm at llti gast used ira o e n n acus Nand m ht ains r inig o gatig are n I atre mits th as din os mm pot the ec utai nin injuries it cannt b aid s to use hic inj him umit tht _.3-‘ accused/appellants they cannot be convicted for any offence. He submits that the appellants have wrongly been convicted under Section 304 (part-l) IPC for the reason that there was no intention on their part to cause the. death of the deceased. He submits that the incident had taken place on 18.5.1990 whereas the deceased died on 7.6.1990 i.e. after about 20 days and therefore their conviction under the said ' section is palpably unsustainable in the eye of law. He submits that the injuries caused to the deceased were not fatal otherwise he would not have survived for 20 days from the date of incident and that being so <. the appellants cannot be convicted under Section 304 (part-l) or even 304 (part-ll) IPC. He submits that the judgment of the trial Court is based on conjecture and surmises and therefore also the same is liable to be set aside necessitating the acquittal of the appellants. Counsel for the appellants also makes an alternative submission that the appellants may be given the benefit of Probation of Offenders Act. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that all the accused persons have been named in Dehati Nalisi Ex. P-22 lodged by the deceased. He submits that injured eyewitness Roshanlal (PW-1) and Roshni (PW-13) — the son and daughter of the deceased have categorically supported \ the case of the prosecution. He submits that Shila (PW-12) and Ramesh Kumar (PW-14) are the independent witnesses and they have also supported the case of the prosecution. He submits that a categorical statement has been made by the witnesses including the deceased that initially accused Ghasiram and Nandlal had given lathi blows to the deceased and thereafter all other accused persons also assaulted him. He submits that as many as 09 injuries were caused to the deceased including fracture on head, hand and leg. He submits that once all the accused persons assaulted the deceased, their conviction with the aid of sections 149 and 147 is strictly in accordance l, with law and there is no infirmity in the impugned judgment. He submits l l / s (part-l), they cannot escape from the same u/s 304 (part-ll) IPC a because they had the knowledge that the injuries caused by them were that if at all the appellants cannot be convicted under Section 304 ._Zi, likely‘to cause death of the deceased. He submits that Roshanlal (PW— 1) had also sustained 09 injuries including fracture on his head and right leg and therefore the conviction of all the accused/appellants ls ln accordance With law. He submits that the deceased died as a result of shock and hemorrhage because of multiple injuries attributed to the assault made by the accused persons. Thus according to the State counsel the conviction and sentence awarded to the accused/appellants is strictly in accordance with law and does not call for any interference in appeal. 8. While convicting the accused/appellants Court below has given a categorical finding that Dehati Nalisi Ex. P—22 made by the deceased becomes a dying declaration after his death and based on that the conviction has been awarded to the accused/appellants. A bare reading of the Dehati Nalisi reveals the manner in which the deceased was assaulted and there is no occasion for this Court to disbelieve the said document as the same has been duly proved by the prosecution and therefore this Court is of the opinion that the said finding of the Court below. in respect of dying declaration is in accordance with law and conviction of the appellants for causing death of the deceased is proper. V9. ln view of above factual matrix and judicial pronouncement of the decision of the Supreme Court in the matter of Mohinder Pal Jolly v. State of Punjab reported in 1979 Cri.L.J. 584, this Court has no hesitation to say that the act of the accused/appellant does not fall within the precincts of the “right of private defence”. Relevant portion of the above pronouncement of the Supreme Court reads as under:- The law regarding the right of private defence of property or person is well settled and may be briefly a recapitulated here. The onus is on the accused to establish this right not on the basis of the standardrof proving it beyond doubt but on the theory of preponderance of probability. Heamight or might not J __. 5v take this plea explicitly or might not adduce any evidence in support of it but he can succeed in his plea if he is able to bring out materials in the records of the case on the basis of the evidence of the prosecution witnesses or on other pieces of evioence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or person or both. But the exercise of this right is subject to the limitations and execeptions proviced in S. 99 of the Penal Code the last one being-. “The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.” As to when the right of private defence of the body extends to causing death is provided for in S. 100. The appellant’s case is not covered by it. ln the view which we have expressed above we think that the appellant had not only the right of private defence of his property but also his body to a limited extent within the meaning of S. 101 subject to the restrictions mentioned in S. 99. This did not extend to the inflicting of so much harm to Sant Ram and causing his death nor the right of private defence of property available to the appellant extended to causing his death as it was not covered by any of the clauses of S. 103. Mr. Mulla tried to bring it under ‘4thly' which says:- “Theft, mischief, or house-trespass, under such» circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercis‘ed.” Mischief was caused to his property but it was not caused under such circumstances as may reasonably cause apprehension in his mind that death or e grievaous hurt would be the consequence if such right of private defence was not exercised. A mere claim of such apprehension is not enough. The Court on objeotive test and on the facts and circumstances of each case must arrive at the conclusion that the situation was such as was likely to reasonably cause such apprehension. The right of private defence of property also, therefore, in the appellant’s case extended to causing of any harm other than the death, Undoubtedly the appeallnt did exceed this right of private defence and apparently the murder which he committed within the meaning of clause’4thly’ of S/ 300 squarely fell within Exception 2 thereof. ’He exceeded the power given to him by law and caused the death of Sant Ram against whom he was exercising such right of defence. He did so without premeditation and without any intention of doing more harm than was necessary for the purpose of such defence. He thought that by indulging in this imminently dangerous act he would be able to scare away the labourers and stop them from continuing their unjustified agitation, the raising of the slogans and the throwing of the brickbats. But then, although the intention was not to kill or cause such bodily injury as was sufhcient in the ordinary course of nature to cause death, yet he must have committed the act knowing that it was so imminently dangerous that it» must in all probability cause death or such bodily injury as was likely to cause death of the worker or workers standing on the other side of the boundary wall.” e 10. Injured eyewitness Roshanlal (PW-1)‘has categorically stated that on 18.5.1990 i.e. the date of incident, after hearing the shouts of his father when he came out of his house, he saw the accused persons a assaulting his father by surrounding him. He has named the appellants prosecutin and named a the accused p assaulted her father. Shila (PW- eyewitness to the incident but fro had not seen the actual occurren and injured Roshaniai bleeding lying on the floor. This witness has named all the accused persons saying that they were having clubs and iron rods with them. Similar is the position with Ramesh Kumar who ersons saying that they had 12) has been projected as another m her statement it appears that she ce rather she had seen the deceased also has not seen the actual occurrence but only saw accused persons carrying weapons in their hand and that the Roshaniai were surrounded by them. deceased and injured 11. This Court finds no force in the argument that‘as the deceased died after 20 days it cannot be said that he died because of the injuries caused by the accused persons. Post mortem repott of the deceased Ex. P-16 clearly reveals that cause of death is shock and hemorrhage as a result of multiple injuries. This Court also finds no force in the argument that as the deceased was a heart patient‘and taking treatment from Dr. Bal Chand Singh Chandel (PW-7ft, he could have died because of heart disease. Once the post mortem report is specific and the doctor has not said anything else, it is established that the deceased died on account of the injuries sustained by him. o “ n _g# 12. Thus the record clearly shows that the accused/appellants were having the prior intention to kill the deceased as is clear from the evidence that while assaulting the deceased as also the injured Roshanlal (PW-1) they were uttering the word “kill him”. It is also clear from the record that the accused persons had left the deceased only ‘ after they thought that he was no more. Thus the argument that at the most the appellants’ act would fall under Section 304 (part-ll) and not under Section 304 (part-l) IPC is not acceptable to this Court. 13. This Court 'also finds no substance in the argument of the counsel for the appellants that the appellants should be given the benefit of Probation of Offender Act because from the evidence it is clear that the'accused/appellants have caused nine injuries including four fractures to the deceased and nine injuries to injured Roshanlal (PW—1). 14. . Thus, the appeal has no substance at all and that being so it is liable to be dismissed. lt is dismissed as such. Judgment impugned is hereby maintained. As the accused/appellants are on bail, their bail bonds stand cancelled. They be sent to jail forthwith. / ' Sci/— l Pritinker Diwaker it r r Judge WW mm “Hi 200 The cause title of the judgm nt dated 4.1.2011 is corrected accordingiy. In lace of “Yavnesh Kumar Sahu and 4 others“ let it be read as “Nandlal and others“. M 1 ‘1 pRmNKER DIWAKER Judge 1 1 Sdl- p Wat 7 31mm W mam WWW mwewfegm Wm ‘ SB: Hon. Mr. Justice Pritinker Diwaker 20.01 .201 1: Matter is listed on office note dated 18.1.2011 for correction in the cause title of the judgment dated 4.1.201‘1 where name of the appellant has wrongly been typed as “Yavnesh Kumar Sallu and others” which in fact should have been “Nandlal and others”