•;'31i;>. f ^s ^•.,^^s^ i "ssy" y^ HIGH COUS.T OF CHHATTISGARH AT BIL&SPUR &»mlnalAppeal No. 294191 APPELLANT Tejram s/o Paachi-am, 25 years, resident of •village Raikera, P.S. Sitapur, District Sarguja (M.P.) (Now C.G.) RESPONDBNT State of Madhya Pradesh (Now Chhattisgarh) fhrough P.S. Sitapur, CRIMINAL APPEAL UNDBR SECTION 374 ( 2 i OF THE CODE OF CRIMIHAL PROCEDURE Appearaace: Shri A.K. Prasad, couasel for the appellaat. Shri Saudeep Yadav, Dv. Govemuient Advocate for ffa.e State. Hoa'ble Shrl T.P. Sharma & Hoa'ble Shri R.L.Jhaawar.JJ Per T.P.Shaiina, J. (04.02.2010) 1. ChaBenge in this appeal is to tfae judginent ofconviction aad order of sentence dated 28.1.1991, passed by fhe Sessions Judge, Sarguja at Aiabikapur ia Sessions Trial No. 18/1990, whereby and whereunder the learaed Sessions Judge after holdiug fhe appellaut guilty for coiiuuission ofculpable homicide, auiouiiting to niurder of Samaru aud causing grievous hurt to Lachan, convicted the appeUant under Sections 302 and 323 of the IPC aad sentenced to undergo imprisoiunent for life and S.I. for 3 inonths. "•"^; 'sBP^I J w'y ^u 2. The judguient itupugned is chaUenged on ttie ground that without aay iota of evidence, the learaed Sessions Judge has convicted and sentenced the appeltaiit as above aad thereby committed iUegaIity. 3. The case of fhe prosecution in brief is that on the day of Diwali festival i.e. 30.10. 1989, at about 8.00 p.m. at village Raikera, fhe appeBant -Tejram along wifh GIiasia assaulted Lachan ia the house of Karam. Suigh. Thea Sanaaru (scai of Lachau), Ghasia aud Birbal went to the house of Karam. Singli. Saoiaru asked Karain Siaeh about his fafher aud he cauie to kuow that the appeUan.t-Tejram has assaulted his father by stick aad his father has gone to fhe house of Bignurain. He also went to tbe house of Bignuram. When he was coiniag to his house along with his faftier, while he was passing beside Khalihaan (a place in. the field where crops are kept) of Doaua Nagvaashl, the appeUant came fi'om back side aad ater abusiag Samaru, assaulted 1iim by sti.ck. Samaru feU dowii. Biguuram tned to iatervene and snatched the weapon (piece of Behaaga) froni the appeUant. Lachaa fled away fi~oni ftie spot aud fhereafter, appeUaut also fled away fiioxn the spot. Samaru was taken to his house, where he died ia the ni^ht. Bignuram. (PW-1) went to Police Station aad lodged F.I.R. Ex. P/l. Merg iatunation was recorded vide Ex. P/12. The Investigating Officer left for fhe scene of occurrence and after suminoniug ftie witaesses vide Ex. P/ 2, iaquest over ttie dead body of Sainaru was prepared vide Ex. P/3. The dead body was sent for autopsy to P.H.C. Sitapur vide Ex. P/9. Autopsy was conducted by Dr. K.K.Dutta (PW-12) vide Ex. P/ 10 aad fourtd foUowmg mjuries: i. A lacerated wound 2" x Ya" x bone deep over fronto parietal region. ii. A lacerated wound 4" x 3/ 4" x bone deep over left part of fhe head. iii. Two abrasions 2" each over back. iv. Left temporal boue was found fiactured. The Doctor opined fhat fhe cause of deafh was coma as a result of haeinorrhage and deafh was homicidal in. nature. Tte accused/ appeUaat was taken iato custody on 1.11.1989. He made disclosure stateiuent of stick vide Ex. P/4. The stickwas recovered at the instauce of the accused/appellaat vide Ex. P/5, Blood staiaed soU aud plam soU was recovered flx>in the spot vide Ex. P/6. One piece of Behanga (heavy wooden piece) was seized froin Bignuram vide Ex. P/7. Sealed clothes and viscera offhe deceased were seized after autopsy vide Ex. P/8. Injured Lachan was sent for niedical examiaation. He was exaiiiiued by Dr. K.K.Dutta (PW- 12) vide Ex. P/ll-A and found fiacture of clavicle bone and coiitusioa over the left arm and x-ray was also taken. Spot inap was prepared vide Ex. P/ 16. Sealed ardcles were sent for chemical examiaation and human blood was found over the stick, recovered fi-om fhe appellaiit. Statemeuts of the witnesses were recorded uader Section 161 of fhe Code of Crimiaal Procedure, 1973 (iu short"Code"). 4. After coiapletion of iavestigation, chai^e sheet was filed before fhe Judicial Magistrate First Class, Aaibikapur, who iu turu, coTnmitted the case to the Court of Sessions, Sai^uja at Aiubikapur, who conducted fhe trial. 5. In onler to prove the guilt of the accused/appeBant, prosecutiou has examiaed as many as 14 witaesses. Accused was examiaed under Section 313 offhe Code, iu which, he denied the circuirLstaaces appeariag against him aad he has taken specific defence fhat the coinplainaiit parly has assaulted his father by stick ttieu he has tried to save his lafher. He bas examiued his father-Paachram. as defence witaess, who has deposed that the coiuplaiaant- deceased Samaru along with soine other persoi came to his house aud assaulted hiTn by stick aud caused uijiuy -g^/ fhen his son - Tejraia cam.e aad savcd tiim. He has been also exammed by Dr.K.K.Dutta (PW-12). Dr. K.K.Dutta (FW-12) has exaixuned Panchrani vide Ex. D/5 aad found one lacerated wouad of 2 */2 " x 1/2" x bone deep over trontal region. One lacerated wound of 1/2" x 1/4" x skia deep of scalp over head. He was advised fbr x-ray. 6. After affoidiag opportunily of hearing to the parties, learued Sessions Judge has convicted and sentenced the appeUaat as aforeiaentioned. 7. We have heard Shri. A.K.Prasad, learaed counsel for the appeUant and Shri Saudeep Yadav, leamed Dy. Govenuiient Advocate for fhe State, perused the judgiuent aud iccord of fhe trial Coiut. 8. Learaed coimsel for the appeUaat veheiaently argued that the deceased-Saiiiaru aud his relatives had assaulted the fafher of the appeUan.t aud caused grievous injuiy over his head ftien vriQs. a view to save his father, fhe appeUaat has caused iniatmuin uijury to fhe deceased. He has caused injury to the deceased in exercise of right of private defence of the person nainely his father. He has not exceeded his right of private defence. Leacaed counsel further argued fhat the act of tiie appeUaat shows fhat when the deceased assaulted his fafher then he lost his temper aud provoked and on sudden provocation at ftie iastance of the deceased, tbis incident took place aad if the case of the prosecution is considered to be true then also tfae act of the appeUant does not travel beyond fhc scope of Section 304 II offhe IPC. 9. On fhe other baad, leamed counsel for fhe State opposed fhese arguinents aad subnutted that fhe appellaat has not caused aay iajury to fhe deceased at the tune of firat incident ia the house of Karam Siagh. WIule fhe deceased was goiag to his house with his fafher, the appeUant has caused fatal and repeated btows over the head of fhe deceased. He has not caused this injury to flie deceased in retaliation aad iu right ofprivate defence. 10. In order to appreciate the aiyunents advaaced on behalf of the parties, we have examined the evidence adduced on behalfof the prosecution. 11. In fhe present case, the accused/appeUaat h^ not substaatiaUy disputed the houucidal deafh of the deceased as a result of fatal injury. On the other hand, it is also established by the evidence of Dr. K.K. Dutta (PW-12) and autopsy report Ex. P/10, which reveal that fhe fatal injuiy was found over the head uicludiag fhe fi-acture of temporal region aad fh.e death was hoinicidal in nattu-e. 12. As regards coinplicity of the accused/appeUaat ia cruue irt question is concemed, ftie appeUant has teken speci&c defence ftiat in exercise offhe right ofprivate defence ofthe pcrson i.e. his fafher, he has caused minimiiTn iajury to the assailant i.e. the deceased-Samaru. He has examiaed his father -Paachram as a defence witaess, who has deposed that Samaru and other persous came to his house aud Saaiaru assaulted him bv stick fhen his son cam.e to save liirn- Thereafter, fhey went to the house of Netram and narrated the incident and also went to Police Station and lodged fhe report. He has been examiaed by Dr. K.K.Dutta (PW-12). la para 7 and 9 of his cross examiaation he has speci&calty admitted that the incident which has taken place ia his house aad the iacident of assault wifh Samaru by his son near the KhaJthaan of Doaua Nagvanshi, are two ditferent incidents. He was assaulted ia Iiis house, but he did not kuow where the quarrel with Samaru took place. T.iKti"n'""Ti''"r['i' "<'t,:ts .* 6 3) This shows fhat both iacidents are separate. Bignuram (PW- 1), wh.o has lodged fhe report Ex. P/1 has deposed that while Samaru was goiag towards 1ais house, ttiis appeUant came froin back side and assaulted over his head by heavy wooden piece i.e. Behanga. He snatehed fhe Behanga titien the appeUant ^ain assaulted him with stick by giviag repeated blows over the head of Sacaaru and fled away. Thereafter, he took Samaru to his house aad lastly he died at 3.00 O' clock in the rt^ht. He went to PoHce Station aad lodged the report. 13. Lachan (PW-3) has deposed ia his evidence that on the date of iacident, he was present ia fhe house of Karam Siagh. KarEan Singh is son-ia-law of Paachram. Karam Siagh and his wife were quarreUing aad while he was tiyiag to iatervene the quarrel, the appeUaiit came to the house of Karam Singh and assaulted Wm with stick over his head and his clavicle bone was fractured. He has deposed ul para 2 of his evidence fhat he has not seen the iticident relatuig to his son. Puflibai (PW-4) has deposed fhat while fhe deceased was coming froin the house of Karam Siagh, the appeUaat canie from. back side and has assaulted him. Karam Singh (PW-11) has corroborated the evidence ofthose witnesses. 14. Defence has cross examiaed this witaess at lengtti, but fhe fa.cts reniained unchallenged that the appeUaat has caused injuiy over fhe head offhe deceased. White fhe deceased was goiug to his house, at that time, fafher of the appellant was not present. The deceased has not assaulted the father of the appellaut on fhc spot aud previously the appeUaut has assaulted the fafher of the deceased-Lachaa aad caused grievous iujiuy to him. If the evideuce of prosecutiou aad defence is considered together, it clearly reveals that firstiy fhe appeUatit assaulted Lachan, father of fhe deceased aad then the deceased went to the house of the appeUaat aad assaulted to fafher of the appellant, Then fhird part of fhe iacident took place, while fhe deceased was comiiig back to his house, the appeUaat assazdted the deceased bn the way by giving repeated blows over his head. At the tturd part of fhe incident, no right of pnvate defeace was available to fhe deceased. As regards the question of provocation is concemed, firstly, fhe appeUaat has caused grievous injuiy to the father ofthe deceased- Lachan fhen fhe deceased has caused simple iajury over the head offather offhe appellant Even accorduig to the evidence offafher offh.e appellaat, both iacidents are uot one and same and are separate incidents. At the tiine of third part of fhe incident, there was no reason for causing any such iujiuy to the deceased. 15. At fhe tuae offhird part offhe incident, there was no quarrel aad reasoa for causiug any such injuiy to the deceased aad the appeUant has caused gnevous injuiy to the deceased, which shows his grave uitention for casiag the death offhe deceased. 16. After appreciation of fhe evidence available on record, the leamed Sessions Judge has convicted and sentenced the appeBant under Sections 302, 323 of fhe IPC. The evidence adduced on behalf of the prosecution and fhe evidence of defence witaess- Panchram. is sufficient for drawing aa inference tfaat fhe appeUant has intentionally caused homicidal death of fhe deceased- Saniaru amouiitiag to luurder. The conviction of fhe appeBaat is based on credible aad clinchiag evidence, sustaiaable uuder law. 17. On close scrutiny, we do not find any substance in fhe appeal. The appeal is liable to be disinissed aiid it is hereby disixussed. The present appellaat is on bail. He be sent iminediately to fhe conceraed Court for serving reiaaiiim.g part of the sentence. „ >. _-—- R-L. Jhanwar Judge ^Tn/^ Sd/-i. - k- T.RSharma Judge