^l APPELLANTS: (In Jail) RESPONDENT: - Versus - /^.o) .F^ HIG1LCOURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.2646 of 1999 Sampat Singh & others State of Madhya Pradesh (now Chhattisgarh) JUDGMENT FOR CONSIDERATION L.C HON'BLE MR. JUSTICE DHIRENDRA MISHRA POST FOR JUDGMENT^)N^^'JULLY^2007 Sd/- /i^.7.2007 A< "\ HIGH COURT OF CHHAmSGARH, BILASPUR Criminal Aopeal Np^2646_oL1999 APPELLANTS: (In Jail) 1. Sampat Singh, S/o Pooran Singh, aged about 45 years, 2. Jel Singh @ Jal Singh, S/o Purushottam Singh, aged about 37 years, 3. Niranjan, S/o F'urushottam, aged 47 years, 4. Naval Singh, S/o Purushottam, aged 28 years, 5. Chatur Singh, S/o Purushottam, aged 27 years, 6. Tulsi Bai, W/o Naval Singh, aged 27 years, 7. Padam Singh, S/o Pursati, aged 50 years, 8. Satbati, S/o Sampat Singh, aged 20 years, 9. Vandana @ Madna Bai, W/o Chatur Singh, aged about 25 years, 10. Peeli Bai, W/o Niranjan, aged 42 years, 11. Upendra Singh, S/o Niranjan Singh, aged 18 years, 12. Pooran Singh, S/o Motiram, aged 70 years, 13. Kameshwar Singh, S/o Sampat Singh, aged about 18 years, 14. Ugresh Singh, S/o Niranjan Singh, aged about 18 years, 15. Devendra Singh, S/o Dharam Singh, aged 18 years, ?"3S: :'-^S!fS-'yi,^'-''i-"-~: 16. 17. 18. 19. - Versus - RESPONDENT: Balmati @ Timay, W/o Jel Singh, aged 35 years, Champa Bai, W/o Pooran Singh, aged about 52 years, Janki, D/o Sampat Singh, aged about 18 years. Domeshwari, D/o Jel Singh, aged about 20 years, All residents of Village Sonabal, P.S. Kondagaon, District Bastar, M.P. (now Chhattisgarh) State of Madhya Pradesh (now Chhattisgarh) (Criminal Appeal under Secdon 374 (2) of the Criminal Procedure Code) Present: Shri R.P. Tripathi, Advocate: For the appellants. Shri U.N.S. Deo, Addl. Public Prosecutor: For the State/respondent. CORAM: - HON'BLE SHRI L.C. BHADOO AND HON'BLE SHRI DHIRENDRA MISHRA, JJ. JUDGMENT (Delivered ons- ^...July. 2007) The followinK iudgment of the Court was delivered bv L.C. Bhadoo, J: - 1. These 19 accused/appellants faced "trial before the Court of 3Td Additional Sessions Judge, Bastar at Jagdalpur, S.T. No.64/98, for commission of offence punishable under Sections 148, 302 read with Section 149 8s 307 read with Section 149 of the IPC for committing riot with deadly weapons, causing death of Smt. Gajmati, Smt. Lakhmi Sc, Ms. Daimati and attempting to cause death of Phooldeyi. Learned Additional Sessions Judge after conclusion of the trial convicted all the 19 accused/appellants vide judgment dated 7-9-99 for the aforesaid offences and sentenced each of the accused/appellants to undergo R.I. for 3 years & to pay a Ene of Rs.5,000/-, in default of payment of fine to further undergo R.I. for one year under Section 148 of the IPC, to undergo imprisonment for life & to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo R.I. for one year under Section 302 read with Section 149 of the IPC and to undergo R.I. for 10 years & to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo R.I. for one year under Section 307 read with Section 149 ofthe T.P.C. 2. By this appeal, accused/appellants have questioned legality and correctness of their conviction and sentences imposed upon them. 3. The prosecution case, in brief, is that Loodari Bai (PW-3) lodged a report on 19-11-97 at 7.15 p.ra. in the evening in the Police Station Kondagaon to the effect that she is residing along with her husband and family members in village Sonabal. Today, after taking lunch her mother-in-law, sister- in-law Lakhmi, Phooldeyi and Gajmati had gone to Bhurkawahi agricultural field Khar. They were digging in their Wi acres land. At about 4 p.m. accused Sampat, who is brother-in-law (Jeth) of Loodari (PW-3) and other accused persons with a common object came crying carrying axe, knife, one Kodki in their hands. Kame was carrying axe and in one hand he was carrying knife. Accused Ugresh, Upendra, Deva SE Sampat were carrying axe. Accused Sampat was also carrying one wood in his hand. Accused Pooran was carrying Kodki. Accused Ranjan, Jalo, Naval and Chatur were empty hand. Accused Kame attacked her mother-in-law Daimati with axe on her neck. Accused Ugresh attacked Gajmad with axe on her neck. Accused Sampat assaulted Lakhmi. Accused Pooran assaulted Phooldeyi on her head and neck. Accused Ranjan, Deva and Naval were catching them. Accused Upendra and Chatur ran after her to catch her, somehow she was able to escape and entered the house of Jhitku Muriya. Attack was witnessed by Indro Kalar and Jaisingh Muriya, thereafter the accused persons left. She saw that Lakhmi, Gajmati SE Daimati had succumbed to the injuries. Phooldeyi was lying in injured condition. She was writhing in pain. Husband of the applicant and villagers had taken Phooldeyi to the hospital. The accused persons have attacked ladies on account of land dispute. 4. Receiving this report, Station House Officer, Police Station registered offence under Sections 147, 148, 307 and 302/149 of the IPC under Ex.-P/21. The 10 left for scene of occurrence and prepared inquest Ex.-P/22 on the body of Daimati, Ex.- P/23 on the body of Lakhmi and Ex.-P/24 on the body of Gajmati. The body of Gajmati was sent for postmortem examination to the Primary Health Centre, Kondagaon under Ex.-P/3 where Dr. Anita Agrawal 8s Dr. Rajendra Singh Doonger conducted postmortem, prepared postmortem report Ex.-P/4. They opined that cause of death was neurogenic shock (brain death) due to injuries of spinal cord at C-6 and C- 7 level. Death was homicidal in nature. Doctors nodced one incised wound over neck on the right side in the size of 8 cm x 4 cm x 10 cm and multiple abrasions all around the body. Dr. Doonger prepared injury report Ex.-P/2 also. The body of Lakhmi was sent for postmortem examination to the Primary Health Centre, Kondagaon under Ex.-P/7 where Dr. Anita Agrawal and Dr. Rajendra Singh Doonger conducted the postanortem. They prepared postaiiortem report Ex.-P/S. They opined that cause of death was shock due to excessive haemorrhage because of cutting of blood vessels of right side of neck and cutting of trachea and oesophagus. Death was homicidal in nature. The body of Daimati was also sent for postmortem examination to the Primary Health Centre, Kondagaon under Ex.-P/11 where Dr. Anita Agrawal and Dr. Rajendra Singh Doonger conducted the postmortem. They opined that cause of death was shock due to excessive haemorrhage because of rupture of all the major blood vessels of neck and due to cut through trachea. Death was homicidal in nature. Dr. Doonger while examining injuries found 3 incised wounds on the neck and scapular region. Injuries of Phooldeyi were examined by Dr. S.K. Kanwar (PW-8). He prepared injury report Ex.-P/40. He noticed as many as 7 ^ ^ 4 7. 8. injuries; 4 incised wounds over neck, left temporal region, right side of face and parietal region. Mandible and parietal bones were fractured. Movement of neck was restricted. There was swelling on the neck. He opined that all the injuries were caused by sharp edged weapon. Injuiy No.2 was simple in nature. He advised for X-ray and stated that injuries were grievous in nature and dangerous to life. Merg intimations Ex.-P/42 with regard to death of Daimati, Ex.-P/43 with regard to death of Lakhmi, Ex.-P/44 with regard to death of Gajmati were given by the Investigating Ofiicer. During the course of investigation, accused Ugresh gave memorandum Ex.-P/25 regarding the place where he kept axe SE his clothes, in pursuance of that he got recovered axe and his clothes under Ex.-P/31. Accused Kame gave memorandum Ex.-P/26, in pursuance ofthat he got recovered axe and his clothes under Ex.-P/32. Accused Sampat gave inemorandum Ex.-P/27, in pursuance of that he got recovered axe and one lathi under Ex.-P/33. Accused Pooran gave memorandura Ex.-P/28, in pursuance of that he got recovered axe under Ex.-P/34. Accused Devendra gave memoranduni Ex.-P/29 regarding axe, in pursuance of that he got recovered axe under Ex.-P/36. Aecused Upendra gave memorandum Ex.-P/30, in pursuance of that he got recovered axe under EX.-P/35. From the place of occurrence 2 spades, 2 iron pots which were used for carrying sand, 2 clothes and 2 broken pieces of red colour bangles, plain soil and blood stained soil were seized. Seized articles were sent for cheinical examination under Ex.- P/26 to the Forensic Science Laboratory, Raipur. After completion of the investigation, charge sheet was filed in the Court of Judicial Magistrate, 1st Class, Kondagaon, who in turn committed the case to the Sessions Judge, Jagdalpur from where learned Additional Sessions Judge received the case on transfer for trial. The prosecudon in order to establish fhe charge against the accused persons examined 14 witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C. in which they denied material appearing against them in the prosecution evidence. 9. After hearing learned counsel for the respective parties, leamed Additional Sessions Judge convicted and sentenced the accused persons as aforement'ioned. 10. We have heard Shri R.P. Tripathi, learned counsel for the appellants and Shri U.N.S. Deo, leamed Addl. Public Prosecutor on behalfofthe State/respondent. 11. Learned counsel for the accused/appellants has not disputed homicidal death of Gajmati, Lakhmi and Daimati. Moreover, eyewitnesses PW-2 Phooldeyi and PW-3 Loodari Bai have stated that the accused persons attacked Gajmati, Lakhmi and Daimati with axe and other weapons, as a result of which they succumbed to the injuries on the spot. Their evidence is corroborated by medical evidence of Dr. Rajendra Singh Doonger (PW-1), who has stated that he conducted postmorten-i on the bodies of Gajmati, Lakhmi and Daimati. Their death was homicidal in nature. Therefore, based on ocular and medical evidence, it is established that death of Gajmati, Lakhmi and Daimati was homicidal in nature. 12. As far as involvement of the accused/appellants in crime in question is concerned, Shri Tripathi argued that land in question where deceased Gajmati, Lakhmi & Daimati, injured Phooldeyi and Loodari Bai started digging land, was in possession of accused Sampat. He was cultivating the land regularly. There was paddy crop of accused Sampat which was being harvested by these accused persons. On the fateful day, they were also in the field. The complainant party trespassed the land and started digging the land. When they were asked not to trespass the land, instead of leaving the place, they attempted to attack Sampat 8s party there. The complainant party was aggressor. In the right of private defence Sampat and others attacked, therefore, no offence was committed by the accused/ appellants. They have wrongly been convicted. He also argued that since the accused persons were in their field and they were busy in harvesting and collecting the crop in their field, no unlawful assembly was formed in terms of the provisions of Section 141 of the I.P.C., as such, conviction of the accused/appellants with the aid of Section 149 of the I.P.C. is illegal. Even persons who were not carrying deadly weapons have also wrongly been convicted under Section 148 ofthe I.P.C. 13. He submitted that as far as accused/appellants namely, Tulsi Bai, Vandana @ Madna Bai, Peeli Bai, Balmati @ Timay, Champa Bai, Janki, Domeshwari, Satbati and Padam Singh are concerned, even their names do not find place in the FIR. In FIR itself, it has been mentioned that accused Jel Singh, Niranjan, Naval and Chatur were not having any weapon, therefore, they have wrongly been convicted. While drawing attention of the Court towards evidence of PW-2 Phooldeyi, Loodari Bai (PW-3), FIR and police case diary statement of Phooldeyi, he argued that there are material contradictions in respect of the part played by each of the accused persons. On account of these material contradictions the prosecution has not been able to establish crime against the accused persons beyond reasonable doubt. He also argued that in the present case, first inforination report was not sent to the concerned Magistrate promptly in terms of the provisions of Section 157 of the Cr.P.C. FIR was manipulated, as such, conviction of the accused persons is bad. He placed reliance on the judgment of the Apex Court in the matter of State of Bihar V. Nathu Pandey aad others reported in AIR 1970 SUPREME COURT 27. 14. On the other hand, Shri U.N.S. Deo, AddiUonal Public Prosecutor, supported the judgment of the trial Court. 15. Having heard learned counsel for the respective parties, we have perused reeord as well as judgraent of the trial Court. Coming to the first point raised by learned counsel for the accused/appellants, Section 96 of the IPC envisages that "nothing is an offence which is done in the exercise of the right of private defence". Section 97 envisages that "every person c 16. has a right, subject to the restrictions contained in section 99, to defend his own body and the property". Section 99 envisages that "there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. 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." Section 100 provides for the right of private defence of the body which extends to causing death. In the matters where an assault, as may reasonably cause the apprehension that death or grievous hurt will otherwise be the consequence ofassault. Section 102 provides that "the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it is continues as long as such apprehension of danger to the body continues". Section 103 provides that "the right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any harin to the wrong-doer, if the offence, the committing of which, or the atteinpting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely; 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 exercised . Section 105 deals with a situation where the right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. In the matter of Onkarnath Singh and others V. The State of U.P. reported in AIR 1974 SUPREME COURT 1550 the Apex Court held that: °A right of private defence given by the Penal Code is essentially one of defence or self protection and not a right of reprisal or punishment. It is subject to the restrictions indicated in S.99 which are as important as the right itself. One of them is that the harm inflicted in self defence must be no more than is legidmately necessary for the purpose of defence. Further, the right is conterminous with the commencement and existence of a reasonable apprehension of danger to body from an attempt or a threat to coramit the offence. It avails only against a danger, real, present and imminent. 17. In the matter of Rajesh Kumar V. Dharamvir and others reported in (1997) 4 Supreme Court Cases 496 the Apex Court held that: "................fascicle of Sections 97 to 106 thereof lays down the extent and limitation of such right. From a plain reading of the above sections it is manifest that such a right can be exercised only to repel unlawful aggression and not to retaliate. To put it differently, the right is one of defence and not of requital or reprisal. Such being the nature of right, the High Court could not have exonerated the accused persons of the charges leveled against them by bestowing on them the right to retaliate and attack the complainant party..........the accused party came out in the lane and attacked the complainant party after the latter had damaged the outer door of their house is a proper one. The offence that was committed by the complainant party by causing such damage would amount to "mischief within the meaning of Section 425 of the Indian Penal Code and, therefore, in view of Section 105 of the Indian Penal Code the accused would have been entitled to exercise their right of private defence of property so long as the complainant party continued in the comraission of the mischief, In other words, after the damage was done, the accused had no right of private defence of property, which necessarily means that when they attacked the complainant party in the lane they were the aggressors." 18. In the matter of State of M.P. Versus Ramesh reported in (2005) 9 Supreme Court Cases 705 the Apex Court held that:- "The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been cominitted but not until there is that reasonable 10 A y apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. As soon as the cause for reasonable apprehension disappears, there can be no occasion to exercise the right of private defence." 19. In the matter of Shajahan SB Ors. V. State of Kerala 65 Anr. reported in 2007 AIR SCW 2123 the Apex Court held that: "The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circurastances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindicdve, aggressive or retributive purpose of offence." 20. In the light of above legal position and law laid down by the Apex Court, if we scrutinize evidence available on record, it is admitted position that both the parties are closely related. On the fateful day at about 4 p.m. Gajmati, Lakhmi, Daimati, PW- 3 Loodari Bai and PW-2 Phooldeyi went to Bhurkawahi field with spade and iron pots meant for carrying sand. PW-2 Phooldeyi has stated that when they were digging field, the accused persons came there, they encircled them and attacked. In paras-5 & 6 of cross-examination, this witness has stated that total area of the agricultural field was 5 acre, out of that 2'/2 acres belongs to Daimati and 2V2 acres belongs to Sampat. She has further stated that she does not know that whole 5 acres land was allotted to Sampat 20-22 years back. His family members used to sow and harvest crop. They were not able to cultivate the field because Sampat and his family raembers used to threaten them with axe and other weapons. They went to dig sand because there was stay of the Court in their favour. As there was a passage in the boundary for flowing water and they wanted to block that passage by putting sand that is why they started digging land. They did not tell the accused persons about the stay order. PW-3 Loodari Bai in paras-5 8s 6 of her cross-examination has given similar evidence. She has also admitted that Bhurkawahi land was being cultivated by accused Sampat and his family members for the last 2 years. She has further stated that their 11 21 advocate did not provide them the copy of stay order of the Court. For the last 2 years the accused persons used to cultivate land by threatening with axe, spade and sickle. PW-4 Shivcharan has also stated that the land in question was being cultivated by Sampat. PW-13 Jaisingh and PW-14 Indro Kalar whose presence have been mentioned in the first information report Ex.-P/21, who have been declared hostile, have stated that on the fateful day Gajraati, Lakhmi, Daimati, PW-3 Loodari Bai and PW-2 Phooldeyi were digging the land in the field. Kame and Ugresh were standing in their field. They ha.ve stated that Bhurkawahi field was being cultivated by Sampat and his family meinbers. Therefore, it is admitted position that when the complainant party went to Bhurkawahi field for digging and for repairing boundary, the accused party was in possession of the said land, harvested crop of the accused party was lying there, as per the evidence available on record, after harvesting the crop, they already took soine crop from the field and some crop was lying there, admittedly, the complainant party trespassed land. But, now question remains as to whether, on the given facts and circumstances, the accused party, in the first instance, were having imminent apprehension of causing death or grievous hurt by the complainant party if such right is not exercised. In the present case, victim party i.e. 5 ladies went to the said field for digging and they started digging when the accused party was also there. Learned counsel for the accused/appellants while drawing attention of the Court towards evidence of PW-13 Jaisingh and PW-14 Indro Kalar argued that PW-I3 Jaisingh has stated that at that time Lakhmi was holding axe. Accused Kame came near to her and snatohed axe. He attacked Gajmati, Lakhmi, Daimati, & Phooldeyi. In cross-examination, he has stated that at that time, accused Kame and Ugresh asked these ladies that they should not dig the land. Daimati &, party said that the field belongs to them, therefore, they will not go. It is correct to say that at that time Kame and Ugresh were chasing Lakhmi carrying axe in their hands. Accused Kame snatehed axe and 12 started brandishing the same in air. PW-14 Indro Kalar has also stated that Kame and Ugresh started brandishing the axe in the air. After snatching the axe, Kame and Ugresh attacked Daimati, Gajmati and Lakhmi. Even though these two witnesses have been declared hostile but from their evidence it has been established that accused persons Kame and Ugresh snatched the axe from the complainant party. In cross- examination of PW-2 Phooldeyi and PW-3 Loodari Bai defence has not been able to elicit anything that victim ladies in any manner were attempting to attack Sampat, Kame and Ugresh or any other accused persons. On the contrary, as per the evidence of independent witnesses, even though they have been declared hostile, it has come on record that the accused persons snatched the axe from victim and thereafter, they attacked. In the first instance, accused persons being male, they were more sturdy and powerful than vicUm ladies. In the second place, they stanched the axe from the ladies. There is no evidence that there was any apprehensio.n of death or grievous hurt to the accused party from the victim ladies. The only evidence is to the extent that the accused party asked thera to leave the field, but the victim ladies continued to dig the land and said that they will not leave the field. Even axe and other instruments were snatched and they were attacked by the accused persons. Therefore, in fact, the accused party was aggressor and they attacked the deceased persons mercilessly without any danger to their life. Merely because the ladies trespassed the field of the accused persons, simply the act of the complainant party that they were not leaving the field even after asking by the accused persons, cannot entitle the accused persons to retaliate or attack in merciless inanner. In the first instance, if at all these ladies were not moving out of the field, there was enough time with the accused party to have recourse to the protection of the public authorities. As per the provisions of Section 99 of the I.P.C. they had no right of private defence to assault the ladies with deadly weapons and cause death of 3 ladies namely, Gajmati, Lakhmi and Daimati and attempting to cause death of Phooldeyi by 13 causing grievous injuries to her with deadly weapons. At the most being sturdy and powerful raen they could have pushed them out of the field, but they had