@ ML HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH % CORAM: N’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Ap£e_al No.308 of 1989 APPEULANTS: Lakhan and hers ot Versus The State of M.P. (now C.G.) RESPONDENT: JUDGMENT FOR CONSIDERATION “ u . Sd/- T. P. Sharma Judge Q? —1 1-2009 'HON’BLE MR. JUSTICE R.L. JHANWAR Sd/- 9 Qw& R.L.Jhanwar Judge -1 1-2009 Post for pronouncement of judgment on if November, 2009 Sdl- T. P. Sharma Judge ;§_-1 1-2009 W HO @ HIGH COURT OF CHHATTISGARH BILASPUR DIVISION BENCH IFK CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Apgeal No.308 of 1989 {Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. RS. Gupta, counsel for the appeiiants. Mr. U.K.S. Chandei, Panel Lawyer for the State/respondent. JUDGMENT ( § g’ November, 2009) The following iudqment of the Court was passed b_y T.P. Sharma, J: - . By this appeal the appellants have challenged legality & propriety of the“ judgment of conviction & order of sentence dated 28-2-1989 passed by the 2nd Additional Sessions Judge, Raipur in Sessions Trial No.118/87, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of the offence of murder, convicted them under Section 302 read with Section 34 of the l.P.C. and sentenced each of them to’undergo» impriSonment for life. 5, , .2. Judgment of conviction & order of sentence is challenged on the ground \l \ a ie' '~ z t that the Additional Sessions Judge has not considered the case of right of private defence and committed illegality. \ APPELLANTS: 1. Lakhan son of Dhurau, aged about 29 (ln Jail) years 2. Dhurau son of Sunder, aged about 50 years 3. Jeewan son of Gaya Ram aged about 28 years All residents of Village Saragaon P.S. u- Kharora, Distt. Raipur. Versus RESPONDENT: The State of M.P. (now C.G.) l“ 57 3. Case of the prosecution, in brief, is that on 31-12-86 at about 9.30 p.m. appellant No.1, owner of the hotel situated at village Saragaon, Distt. Raipur, was present in his hotel; deceased Suryakant, witness Raj Kumar Mishra (PW-5) & Ramlal‘(PW—1) came into the hotel of accused/ appellant No.1 Lakhan; they consumed liquor and also ate non— vegetarian; appellant No.1 demanded money from Raj Kumar Mishra (PW-5) and during the course of demand, he used some unhealthy words on which Raj Kumar Mishra (PW-5) caught hold of the collar of appellant No.1 Lakhan. Deceased Suryakant intervened and appellant N04,.Lakhan used mthy’words on the deceased also. Deceased Suryakant & Raj Kumar Mishra (PW-5) went out from the hotel, took betel from the betel shop of Rajesh Kumar (PW-4) and again they went inside the hotel. Appellants No.2 & 3 came inside the hotel, appellant No.2 Dhurau was holding iron pipe, he used filthy language on deceased Suryakant & Raj Kumar Mishra (PW-5) on which deceased Suryakant took out one wooden club and ran out of the hotel, while he was passing nearby appellant No.1 Lakhan, Lakhan received injury on which Lakhan took out the wooden club and went towards deceased Suryakant. Raj Kumar Mishra (PW-5) intervened in the dispute. Appellant No.1 Lakhan assaulted the deceased with wooden club over his neck as a result 0 deceased Suryakant fell down. Again appellant Noe Dhurau & appellant ‘ No.1 Lakhan assaulted Suryakant and also chased Raj Kumar Mishra (PW—5) who fled away from the spot. Suryakant died on the spot. 4. Dehati Nalishi was lodged by Ramlal (PW-1) in the intervening night of G 31-12-86 & 1—1-87 at about 2 a.m. vide Ex.P-1. On the basis of Dehati Nalishi (Ex.P-1), F.l.R. was registered vide Ex.P-1(A). Dehati Merg was recorded vide Ex.P-16 and registered merg was recorded vide Ex.P—17. Investigating Officer proceeded for the spot and after summoning the witnesses, inquest over the dead body of deceased Suryakant was prepared vide Ex.P-1 1 . Dead body of Suryakant was sent for autopsy to District Hospital, Raipur vide Ex.P—14(A) and autopsy was conducted by Dr. K.L. Gopawar (PW-8) vide Ex.P-14 who found following injuries on the body of deceased Suryakant: - l(1) Lacerated wound 4 cms. x 1 cm. vertically placed scalp deep on right side of frontal region; l(2) Abrasion 5 cms. x 1 cm. horizontally placed on right side of neck; :(3) Abrasion 0.5 cm. x 0.5 cm. on posterior aspect of left elbow joint; (4) Bruise 0.5 cm. x 1 cm. irregular shaped on outer aspect of left wrist; & o‘ . G ?(5) l Fracture of hyoid bone & larynx, and compression of larynx ‘\'& trachea. On internal examination, fracture of right temporal bone and separation & suture of fronto parietal bone was found. Cause of death was coma as a result of head injury and compression of larynx & trachea. 5. Plain soil and bloodstained soil were recovered from the spot vide Ex.P- 6. A pair of slippers was recovered from the spot vide Ex.P-7. One pair of Chappal was recovered from the spot vide Ex.P-8. ‘The appellants were taken into custody. On the basis of discloser statement Ex.P-2, two. . wooden clubs were recovered at the instance of Lakhan vide Ex.P-4. On the basis of discloser statement of appellant No.2 Dhurau vide Ex.P-3, iron pipe was recovered vide Ex.P-5. One lock & key of the hotel were recovered from appellant No.1 Lakhan vide Ex.P-9. Sealed cloth of the deceased was recovered from the constable vide EXP—12. Spot map was prepared vide Ex.P-13 by the Patwari. Seized articles were sent for "examination vide Exs.P-15A & 16A. Injured Raj Kumar Mishra (PW-5) was also examined by Dr. Mahendra Dewangan (PW-10) vide Ex.P-28 and following injuries were found on his body: - (1) 2 oval abrasions over left knee joint; v (2) A linear 1” abrasion over right middle finger; (3) An oval abrasion 1" x 1/2“ just below left eye; & (4) An abrasion 1/2" over left eye. Spot map EXP—22 was prepared by the Investigating Officergand seized articles were sent for chemical analysis vide Exs.P—23 & P—24. During the course of investigation, statements of Ramlal, Rajesh Kumar & Raj Kumar Mishra were recorded under Section 164 of the Cr.P.C. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed befdre the Judicial Magistrate First Class, Raipur, who in turn, committed the case to the Court of Sessions from where learned 2““ Additional Sessions Judge, Raipur received the case on transfer for trial. a a . ln order to prove the guilt of the appellants, the prosecution has examined as many as ten witnesses. The accused persons were examined under Section 313 of the Cr.P.C. in which they denied the guilt and claimed that in exercise of the right of private defence with a view to save themselves. they have caused simple injuries. . After appreciating the evidence and affording opportunity of hearing to ‘ the parties, learned Additional Sessions Judge convicted & sentenced €‘ the appellants in the aforesaid manner. . During the pendency of the appeal, appellant No.2 Dhurau was released on completion of his sentence. 10.We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. l 11.Mr. R.S. Gupta, learned counsel appearing on behalf of the appellants, vehemently argued that appellants No.1 & 3 have not caused any fatal injury to the deceased. The deceased was aggressor and has caused injury to appellant No.1 Lakhan on which in exercise of the right of l . ‘ privte defence of the person, appellant No.1 Lakhan has used wooden a clu to save imself. According to the case of the prsecution, the b h o decased the witnesses came to the hotel of, Lakhan for eating food, he consumed liquor and ate food, at that time there was no fntention of j te committing any offence, even there was no sharing of common inntion for ommission of any crime, the alleged offence was committed on te spur of moment at the intance of deceased Suryakant after s j o e & s 161 f the Cr.P.C.‘The witnesses have exaggerated and improved eir o th stateents. No fatal injury has been caused by the appellants when te m h deceased fell down. Learned counsel placed reance in the matter of li Anmol Singh v. Asharfi Ram & Ors.1 in whi it been held by the ch has Ape Court that f there is aterial difference between F.l.R. and Court version of the sole eyewitness, the evidence o such itness s not reliale. Learned counsel furthe placed reliance in the matter of Gopal and thers v. The State of Rajasthanz in which it has een held by thef i Ape Cout that more injuries to the accused persons support the case of dence that the. injuri which were inflicted by the accused were caused in defence of teir person when they had een attacked by the h b complainant party. Learned counsel also laced rliance in the matter of p e State of M.P. v. Sakhawat3 in which it has been eld by the M.P. High Cou tha vital omission as‘to actual incident is fatal to prosecution. Leared counsel relied upon te matter of Deo Narain v. State of .P.4 in wich it has been eld by the Apex Court that in case of the right of d h } s who conuming liquor assaulted Lakhan. The prosecution has adduced the evidence f the witnsses: but there are material contradictions omisions in their evidence and their statements recorded under Section 1 1998 SAR (Criminal) 736 1 2 AIR 1972 so 1838 j 3 1985 WN 331 4 AIR 1973 so 473 e & ty x i m f w i b r o b x r C ef es h rt t n h U h h private defence, receiving of actual injury is not necessary. Learned counsel further relied upon the matter of Seriyal Udayar v. State of Tamil Nadu5 in which it has been held by the Apex Court that no specific pleajof the right of private defence is necessary, it can be EnferQred on the t basis of the manner in which the incident had taken place. Learned coun‘sel also relied upon the matter of ldrish Bhai Daudbhai v. State of Guja‘rat6 in which it has been held by the Apex Court that in absence of any pre-planning, sharing of common intention is not possible. ; 12.0n the other hand, learned State counsel supported the judgment and s argued that the deceased died as a result of head injury and, compression of trachea. According to the case of the prosecution and the evidence, when deceased Suryakant fell down, the appellants pressed his neck. This shows the grave intention of causing the death of the deceased. Learned State counsel further argued that according to the case of the parties, the complainant party has consumed liquor, but defence have not consumed liquor and have not lost their control. 13.ln order to appreciate the contentions of the parties, we have examined a the ocular & documentary evidence available on record. G 14. In the present case, homicidal death of deceased Suryakant Dewarankar as a result of the injuries sustained by him is not substantially disputed, othenivise also established by the evidence of Ramlal (PW-1), Rajesh Kumar (PW-4), Rajkumar Mishra (PW-5), Dr. K.L. Gopawar (PW-8), Sub Inspector L.K. Pandey (PW§) and the documents of Dehati Nalishi ' i (Ex.P—1), F.I.R. {Ex.P-1(A)}, inquest (Ex.P-11), autopsy report (Ex.P-14) which reveal that the injuries mentioned in para 4 of this judgment were found over the body of Suryakant and cause of death was coma as a _ 5AIR 1987 sc 1289 6 2005 (2) Ac 93 (so) 7 result of head injury, compression of larynx & trachea, breaking of larynx cartilage and fracture of hyoid bone. 15.ln order to establish the complicity of the appellants in the' crime in question, we have scrutinized the evidence. Case of the prosecution rests on the evidence of the eyewitnesses and the medical evidence. 16.Ramlal (PW—1) has deposed that on the fateful day at about 9 p.m., he was present in appellant No.1 Lakhan’s hotel, deceased Suryakant and another person namely, Mishra, the teacher, were sitting inside the hotel, teacher Mishra asked liquor from Lakhan whereupon Lakhan provided liquor to them, thereafter, he along with the deceased & Mishra consumed liquor. Thereafter, they demanded meat and after eating mea when apellant akhan asked for payment, Mishra told hi that t p L m they will pay money tomorrow on which some altercation took place and Mishra caught hold of the collar of appellant akhan which was L intercepted by him and deceased Suryakant and thereafter, again some ltertion took place. Ramlal (PW—1) has further deposed that the decesed abused and inflicted injury on apellant Lakhan and appellant _ a p . Lakhan also picked up the wooden lank and inflicted injury over the p hea of the deceased. Lakhan and the deceased went“ 10-15 ft. forwad d r where the deceased fell down. Appellant No.2 Dhurau was holding on ir r nd appellant No.3 Jeevan was holding torch. Dhurau pressed the neck f the deceased with iron rod and Lakhan assaulted the deceased with stick 5-6 times. Te accused/appellants tried to assault Mishra als, ut shra ran awa from thvspot on which they chased Mishra, Mishra fell down and the appellants assaulted him. After the incident, teacher Mishra fled away from the spot and the accused persons also fled away fm the spot. Finally Suryaant succumbed to the injuries sustained by him. Q ‘ c ..\ aca H‘ od a o h o b Mi y e ro k 17.Rajesh Kumar (PW—4) has corroborated the testimony of Ramlal (PW-1) and deposed that during the course of quarrel, deceased Suryakant fell down, even thereafter, Lakhan assaulted him with stick and Dhurau pressed his neck with rod. 9 18.Defence has cross-examined Ramlal (PW-1) & Rajesh Kumar (PW-4) in detail. In para 10 of his cross-examination, Ramlal (PW-1) has stated that Lakhan has not inflicted injury on deceased Suryakant for saving himself. Ramlal (PW-1) has specifically deposed that as a result of injury thedeceased fell down, even then also Lakhan assaulted him with stick. Rajesh‘ Kumar (PW-4) has denied the suggestion in paia 7 that after falling down of the deceased the accused persons have not assaulted him. Both the witnesses were present at the time of incident and they have stated about the incident in detail. Evidence of both these witnesses shows that both the parties quarrelled and caused injuries to each other. Deceased party & the deceased had consumed liquor. The deceased fell down as a result of the head injury and when he fell down the accused persons assaulted him and pressed his neck with rod. Dr. K.L. Gopawar (PW-8) had conducted autopsy on the dead body of the deceased and found head injury including fracture of fronto parietai bone, fracture of hyoid bone, breaking of larynx agd compression of H: larynx & trachea. 19.Ramlal (PW-1) has lodged the report within 4 1/2 hours of the incident vide Ex.P-1 in which it has been mentioned that when the deceased fell down, even then, the appellants assaulted him with stick, pipe, rod, ‘ ’hands & fists. cix 20.ln the present case, as held by the Apex Court in the matters of Deo Narain & Seriyal (supra), exercise of the right of private defence to l l l @ cause injury to the deceased was available to theappeHants during the quarrel when both the parties were quarreling with each other and receiving of actual injury was not necessary. In case of the right of private defence, no specific plea of the right of private defence is necessary, it can be inferred on the basis of the manner in“ which the incident had taken place. Evidence of both the eyewitnesses Ramlal (PW-1) & Rajesh Kumar (PW-4) reveals that the right of private defence was available to the appeiiants during the course of quarrel but when the deceased fell down as a result of serious head injury including fracture of temporal & fronto parietal bones, the deceased was not in a position to inflict any injury to the appellants, and at that time, apprehension of danger ‘came to an end was not existing in favour of the appellants for exercising the right of private defence and causing injury to the deceased. Virtually when the deceased fell down as a result of serious head injury, he was helpless and was not in a position to inflict any injury to the appellants. However, the appellants have not caused only simple injury to the deceased but they caused grievous injuries by pressing neck with iron rod/pipe resulting into fracture of hyoid bone, breaking of larynx and compression of larynx & trachea which alone was sumcient‘ for causing death. by respiratory obstruction. After inflicting injuries to the é deceased the appellants tried to cause injury to another person i.e. teacher Mishra and they chased Mishra which shows their intention. t 21.ln the matter of Anmol Singh (supra), the Apex Court has held that in case of difference between F.l.R. and Court version of the sole Eyewitness the evidence o‘f‘such witness is not reliable. ln the present case, two persons viz., Ramlal (PW-1) & Rajesh Kumar (PW—4) have seen the incident. There is improvement in their evidence before the Court & F.l.R. but such improvement is not of substantial nature 10 @ especially relatingto causing fatal injury by the appejlants over the neck of the deceased when the deceased fell down and was not in a position to attack. Therefore, the case of Anmol Singh (supra) is distinguishabie on facts to that of the present case. 22.in the matter of Gopal (supra), the Apex Court has held that more injuries to the accused persons support the case of defence that they have caused injury to the deceased in defence of their person when they had been attacked by the complainant party. Evidence ofthe eyewitnesses reveals that’appellant No.1 Lakhan also received injury at thexti‘me of first part of the incident, but Lakhan has not adduced any evidence to show that how many injuries he has received, even he has not stated in his examination under Section 313 of the Cr.P.C. about the number & nature of injuries. Appellant No.1 Lakhan has not received injury after falling down of the deceased. ln absence of any material, it is difficult to hold that the accused party has received more injuries. The case of Gopal (supra) is also distinguishable on facts to that of the present case. 3.ln'the present case, there is no discrepancy as to the actual incident. ln' the present case, the defence of right of private defence available under Sections 97 to’101 of the l.P.C. was available to tfte appellants during mst part of the incident, but when the deceased fell down as a result of serious injuries inflicted over his head, he became helpless and was not in a position to cause any injury to any person, then the apprehension of danger came to an end,_therefore, the defence of right of private defence ’of person was not available to the appellants at the time of commission of second part of the incident. ~ ¢ 2 e ) dedeased amounting to murder. V - (supfa), the Apex‘Court has held that in absence of any pre-pianning, sharing of common intention is not possibie. In the presenttcase, ali.the accused persons have been convicted under Section 302 read virith Section 34 of the l.P.C. Evidence adduced on behalf of the prosecution reveals that all the three accused/appellants 7- have participated in causing injuries to the deceased when he fell down. Specific rote attributed to them has been stated by the eyewitnesses in their evidence. Causing injuries to the deceased by aii the three accused/appellants when the deceased fell down and he was not inva position to attack, that too the fatal injuries, shows sharing of common ~‘ intention of the accused persons. the matter of Yallappa v. State7 has held that common intention can itself and such common intention can be generate on the spot reasonably inferred from the facts and circumstances of the case and nature of injuries cauSed by the accused. While dealing with the same ' r‘ l question, the Apex Court in the matter of Pulla Reddy v. State8 has held 7 (1994) i scc 730 j .8 1993 Cn' LJ 2246 (so) 12 @ that in case of common intention no specific injury by ail accused is necessary. 28.Causing injury by three persons when the deceased fell down, that too fatal in nature and presence of ail the accused persons near the 9 deceased at the time of causing injury are sumcient for drawing inference that all the accused/appeliants have caused homicidal death of the deceased in sharing of their common intention. Intention or motive of the accused can be inferred on the basis of 'the injuries caused, part of the body chosen by the accused and the weapon used. u - 29.Afte‘r appreciating the evidence available on record, learned Additional Sessions Judge has convicted & sentenCed the appellants under Section 302 read with Section 34 of the l.P.C. Conviction & sentence of the appellants are based on credible and clinching evidence sustainable under the law. The Court below has not committed any illegality or irregularity in convicting & sentencing the appellants. i 30.For the foregoing reasons, we are of the considered view that the Court below has rightly convicted & sentenced the appellants under Section 302; read with Section 34 of the l.P.C. The appeal is devoid of merit, the? ' same is liable to be dismissed and it is hereby dismissed. G 31.Appellant No.2 Dhurau has served Out the sentence‘imposed upon him. Appellants No.1 & 3 shall surrender themselves before the Chief Judicial Magistrate, Raipur immediately for serving the remaining/sentence Soma kiwi imposed upon them. - l. Sd/— \ Sd/— R.L. Jhanwar ¥l‘ P. Sharma Judge Judge £941 1-2009‘