HON'BLE -SHPJ R.N. CHANDRAKAR^y APPIU-ANTS 1, IN JAIL 2. 3. Versvs Crimlnal Apoeal No. 273 of 2004 RAMDEO S/0 SHRI SHSVPRASAD, AGED ABOUT 27 YEARS, DULARSAI, S/0 SHR! SHiVPRASAD, AGED ABOUT 38 YEARS. NANDLAL S/0 SHR! SHIVPRASAD, AGED ABOUT 30 YEARS SHiVPRASAD S/0 SHRi PREMSAI, AGED ABOUT 75 YEARS, THE ABOVE NAMED APPELLANTS ARE RESiDENT OF ViLLAGE KHONPA, POLiCE STATiON JASNAGAR, (POLiCE CHOUKi-KARANJ!) DISTRICT SURGUJA (CG) : STATE OF CHHATTISGARH, THROUGH THE POLiCE STATiON JAINAGAR, (POL!CE CHOUKI- KARANJ!) DISTRiCT SURGUJA (C.G.) Pi^sent Mr, Rakesh Pandey, learned counsei'fbrthe appeSIants. Vr. Kishore BSiaduri, learned Dy GA for the Stats. . (Delivered on 5th October, 2009) Per Mishra, J 01. The appe!lants have preferred thls crimina! appeal under Section 374(2) of the Code of Crinilnal Procedure against the judgment of convjction and order of sentence 232.2004 passed in Sessions Trial No,326/01, whereby li Addltional Sesslons Judge (FTC), Surajpur, Dlstt. Surguja holdlng the appeilants guiSty under Section 302/34 of the IPC for causing homjcidal of Nohar and under Section 323/34 of th©iPC on three counts for causing simple hurt to injured Somaru, Shobhna and PyarilaL has sentenced each of them to undergo iife imprisonment, pay a fine of RsJ.OOO/-, in demu!t, to undergo additiona! Rl ofslx months, and Rj for one year cn each count, respectlveiy. Ail the sentences have been dlrected to run concurrently, 02. Case of the prosecutlon, m brlef, Is that on 28,6,2001 at about 7 am the appeiiants and co-accused Lalobal were pioughlng and sowlng the disputed fje!d of compjainant Somaru. Complainant Somaru, Nohar, Shobhna, Pyariial, Chhatarpal, went to their disputed: field and stopped them, whereupon a!l the accused persons attacked 'them with crowbar a.nd club, as a result, comp8aina.nt and other witnesses sustained jnjuries^ Nohar fe!! on the ground whereas complainant and other witnesses rushed to the Police Outpost-Karanji and lodged a report (Ex.P/1). 03. Pojice party proceeded for the scene of occurrence, prepared Inquest over the dead body of Nohar vide ExP/3 in the presence of wltnesses, Dead body of Noharsal was sent for autopsy to Community Health Center, Vishrampur, where Dr, Amar Slngh (PW-6) conducted postmortem a.nd gave his report of ExP/B, Injured Pyaribai, complainant Somaru, 'Shobhna and Nohar were sent for medicai examlnatlon to CHC, Vlshrampur vide Ex.PMA, P/5A, P/SA and P/7A. Dr. Amar Singh gave their medico iega! examination reports vide ExP/4, P/5 and P/Q,. He also informed that injured Nohar explred at 12 noon cn 28,8,2001 vlde Ex,P/7. On the basis of document of Ex,P/1, Crime No.105/01 was registered in Potice Statlon-Jainagar vlde ExP/15. Statlon House Offjcer prepared spot map vide ExP/19. Bloodstained and pialn soi! from the piace of incident were taken into possession vlde ExP/20. On the memorandums of the accused persons vide Ex,P/21 & P/23 of Ramdev, and Nandiai, weapons of offence crowbar and club were taken into possession vlde ExP/22 & P/24, SSoodstained shirt was taken Into possesslon from appelia.nt Shobhnath vlde Ex.P/25» Two pieces of bamboo club stained with biood and soi! were taken Into possession from the piace of inddent vide ExP/26. Bioodstalned Baniyan was taken into possession from Somaru-compjalnant vide Ex.P/27» Bloodstained artlcles selzed during investigatlon were sent to Forenslc Science Laboratory, Sagar vide ExP/35 and report of the FSL is Ex.P/37. 04. completing Investigatlon, charge sheet was fiied against the accused persons in the Court of Judlciai Maglstrate First Class, Surajpur, who, in turn, committed the case to th-e Court ofSesslons Judge, Ambikapur and the same was received on transfer for trial by the learned Additlona! Sessions Judge, '') 05, Learned Additjonal Sessions Judge framed charges under Section 147, 148, 323/149 of the !PC on three counts for causing simple hurt to three injured witnesses and Section 302/149 of the for causjng murder of Nohar against'the appellants and acqultted accused .Laiobai, who abjured their guiit. The prosecutjon In order to establish charges a.gainst the accused persons. examined 15 wltnesses in a!L Thereafter, statements of the accused were recorded under Section 313 of Cr,P,C., in whlch they denied the circumstances a.ppearing against them in the prosecutlon case, and submltted that they were ploughlng thelr field after sowing paddy v^/hen deceased Nohar, Somaru, Shobhna, Santoshi, Chhata.rpa.S, Pya.rila.i, Santiat armed with fathy, danda and rod came there with an Intentlon to murder them and beat them. They also stated tha.t. they beat Nohar. They are innocent and have been l^lsely impilcated on account of iand related anjmosity. They also examlned three wltnesses in their defence. 06.. Learned trlal Court after hearing counsel for the respectlve partles, convicted and sentenced the appeSiants as mentioned in para-1 of thls judgment. However, co-accused Lalobai was acquitted of a!! charges by extending her benefit ofdoubt,. 07. Homicjdal death of Noharsai is not in dispute, Even other\¥Jse, from the evldence of Injured witnesses Shobhnath (PW-1), Somaru (PW-3), Pyariram (PW-4), eyewltness Santoshl (PW-2), Chhatarpal (PVV-5) and also from the evldence of Dr. Amar Slngh (PW-6), who gav.e medico Segai report (Ex.P/7) ofdeceased Nohar and postmortem report of Ex.P/8, whereln he found following Injurles on his person and opined cause of death as shock due to injuries present over the body with fracture of bones and internal hemorrhage at the slte of fracture, homicidal death of deceased Noharsai is estabilshed. |njyr|es,systained_bvdeceased,Nohar: (1) lacerated wound 3x1 cm on the vertex anteriorily, (2) Eacerated wound of 1 xVz cm on the ieft parietai region, (3) contusion of8 x 6 cm cn the {e-ft slde at the site of chest affd abdomen, (4) abraslon of1 x 1 cm in front of ieft shouSder joint, ''^^' I%^BKS£ 4 (5) muitiple fracture of radius and ulna above wrist of right forearm, on cuttlng bones are in pieces and excessive hemorrhage, {6} muitEple fracture of tibia and fibula and huge hemorrhage of right !eg in lower 1/3 of Jeg, (7) muitipie fracture of tlbia and fjbula of left leg in lower % of leg with hemorrhage. 08. • Shri Rakesh Pandey, learned counsel for the appellants, submits that from the evidence avaSiabie cn record, it wouEd be evldent the appellants are recorded owner and possessor of the disputed Ssnd bearing Khasra No.1081/2. They had purchased the same through a registered sa.Ie deed., On the date of Incident, they were pioughing their after sowlng paddy when the accused persons, seven in number, came there and a.ttacked them with, an intention to dispossess them from thejr land and in that process, they caused jnjuries to aSI the four appeilants over their vital organs. .Appellant Duiarsai sustained fracture of tibia and f.ibula bone of hls right !eg. On the report of a.ppelia.nt Nandial, Crime No.106/01 dated 28.6.2001 under Sections 323, 325, 147, 148, 149, 307 of the !PC was reglstered against complainant Somaru, Pyarilal, Shobhnath, deceased Noharsai, Santoshi, Santial, Chhatarpal. The prosecutlon'has dellberateiy suppressed genesis of the cnme and the injuries sustalned by the appeiiants in the same incident. it has a!so faiied to explain the injuries present over the person of the appellants. The appe!iants were ' in possession of the land in dispute whereas the complainant party were aggressor as they ca.me to their field armed with weapons and opened assauit with a view to dispossess the appellant frosr. the iand. Finding of the trial Court that deceased Noharsal was In actual possession prior to and on the of Incident and that the appe!lants were aggressor, Is based on improper appreciation of evidence avai-iable on record and the same has been arrived at by Ignoring the evldence of Haika Patwari Mohd. Tabrez (PW-7) and Revenue Inspector Shyam Narayan Singh (DVV-3). 09. On the other hand, iearned counsei for the Stats has supported Impugned judgment of the triat Court. ^•-c^. -? ySh^.^" ^ 1 • ,-(;3ffs^ i; ''s>~. .. y ">-—.'^ 10. lA/e have heard learned counsel for the parties and perused the record of the trial Court as aiso the impugned judgment^ 11. The trla! Court reiying upon the evldence of V.P. Dwlvedl (PW-4), Inspector and investigating Officer, has he!d that recovery of crowbar on the memorandum of.appellant Ramdev and recovery of weapon of cEub on the memorandum of appeijant Nandlal is establlshed. Further relying upon the evldence of Shobnath, Pyari, Santoshi, Chhatarpal and also considering; the admisslon of the appeilants in thelr statements under Sectlon 313 of Cr.P.C,, it has been heid that on the of incident the appejiants were present on the spot and the complainant party forbade .them from cuitivatjng the iand of Noharsald. it has been further heid that the land in question was In the name of Nandial, Duiar and Ramdev cn the basis of registered sale deed executed by Sukhmen and Bhaiyaial Further relying upon the evidence of prosecytion witnesses Soma.ru, Santoshi, Pyari, Shobhnath, Chhatarpal and a!so referring to the FIR lodged by appeiiant NandiaS in the counter case, Et has been held that Somaru and Noharsai were in possession over the disputed land and accused persons were aggressor, Relying upon the evidence of injured eyewltnesses Somaru, Shobhna.th, Pyari and other eyewltnesses Santoshl and Chhatarpal, it has been heid that the appellants wlth a common intention assauited Noharsai, Pyari, Somaru and Shobhnath when they forba.de tEiem from. pioughing thelr fleld and In the process, they caused death of Noharsai and simple hurt to other three jnjured witnesses. The appejlants are not entitied to the benefit of of private defence- as they were encroachers over the land of the complainant party« Even otheroise, they have not taken the piea of right of private defence. However, accused Lalobai has been acquitted by giving her benefit of doubt and the appeiiants have been convlcted wlth the aid of Sectlon 34 of !PC. 12. From the evidence avaiia.ble on record we find that the root cause of the dispute betv^een the partles is possession over the disputed land bearing Khasra No.1081/2, area 0.45 decimal. From the documents avaiiabie on record, it appears thatthe above iand was mutated in the names of Nandlai, Duiar and Ramdev as per order /^v:^ t^^ •"^^. 1 6 dated 10.7.1997 of Naib TehslEdar vlde Ex.D/SC. There was a partition case betvveen the partles before the Revenue Court. The compiainant party had flled a clvii suit for deciaratlon and partltion agajnst the appellants. The trial Court has aiso recorded a flnding in para-42 of the judgment th.at the compEainant party and the accused party are famijy members. On the date of Incident the appeliants were pioughing the field for the purposes of sowing paddy when the compialnant party reached there and quarre! took piace befr^een them. !t is aiso not In dispute that in the sa.me Incjdent, ail the appellants sustalned injuries. Appetiant Dular aiso sustained fracture of tibia and fibu!a bone of hls right leg, apart from other Injuries, On the compiaint of appelia.nt NandSa!, Cr.No.106/01 dated 28.6.2001 for the offence punishable under Sectlons 323, 325, 147, 148, 149, 307 of the IPC was registered agalnst accused Shobhnath, Santoshl, Pyari, Somaru, Santial and Chhatarpal and also against deceased Noharsai. Charge sheet was fiied against them befor.e the triai Court and the same was registered as S.T,No.325/02 and the trial Court acquitted the compiainant party vlde Judgment dated 23.2.2004. Appei!ant Nand!a! had preferred Criminai Revision No.171/04 agalnst the judgment of acquittal. 13.. The question for our consideratjon is ~ whether the trial Court was justlfled In recording a findlng that the complainant pariy were in possesslon over the Sand and the appeESants were aggressor? 14., PW-7 Mohd. Tabrez has proved Nazri Naksha of the p!ace of incident (ExP/12) and Panchanama of Ex.P/13. !n the cross- examination, he has admltted that the disputed !and was demarcated in the presence of iand hoiders of the viclnity and the vilSagers. Ramdev, DuJarsai etc. are owners of the land, Khasra No.1081/2, where the Incjdent occurred. However, he expressed Ignorance whether the disputed iand was in possesslon of the accused persons or not. 15, DW-3 Shyam Narayan Singh, Revenue inspector, has also proved Khasra Panchshaia of ExD/6 for the year 2000-01, in which Nandiai ete. have been shown as owner and possessor of the dlspu.ted land. He has aiso proved the document'of Ex.D/7, in whlch aiso names of Nandlal ete. have been recorded as owner. .A^ Sn the cross-examination, he has aiso admitted that though the revenue record shows that Nandlai ete. are in possession, but he does not know as to who is in physical possession over the land. The above witness has also admitted that in Khasra Panchsha.la for year 1998-99 names of Nandlai etc. have been shown as possessor of dispuNland. 15. Defence wltnesses Amrikan Rajwade (DW-1) and Madhuram (DW- 2) have aiso deposed that the appeHants were In possession over the disputed land after they purchased the same from Bhalyala! and Sukhmen whe.reas prosecutlon witness Shobhnath has deposed that they were in possession over the disputed since their ancestors5 time. They had already sown the disputed ian.d. He was informed by Noharsai that the accused persons are pioughlng their fleid, whereupon they went to the fieid and forbade them from sowlng, cn which the accused persons attacked them. !n the cross.-examinatlon, he has admitted that Bhiayalal and Sukhmen had sold their share to the accused persons through reg'stered sa!e deed. In para-10, he has admltted that they have ,no right over the disputed land and Santoshi and others have flled a civi! suit against the aocused persons with respect to tiie sa.me iand. He has further admitted that when they reached the piace of incident, the accused persons were pioughing the fiied and sowing paddy. in para-23, he has admltted that three days before the Incident, police came to the viliage and.stopped both the partles from ploughlng the disputed field. He has further admitted in para- 25 that there Is a. case pendlng wlth respect to the dlsputed land betv/een the compfainsnt and accused parties slnce iong.In para- 29, this wltness has admitted that they dld not go to piough the fleld before the date of incldent because the land did not belong to them, 17. PW-2 Santoshi has also admitted that on the date of incident, appejtants Ramdev and DuSarsai were pioughlng the flefd, whereas appeilant Nandiai and Shivprasad were sowing paddy. They.were forbidden by the complainant party; however, they claimed to be the owner of land, Thls wltness has stated that Noharsai was owner •of the dlsputed iand, the same was sold by Sukhmen and Bhalyalal without hls knowledge. In para-10, he has admltted that he iearnt about the transfer of land oniy when the accused persons took possession. Simiiar Is the evldence of Pyari-and Chhatarpai. 18, Envestlgafjng Officer V.P. Dwlyedi jn paraM18 of hls deposltion has admitted that appeiiant Nand!a! had iodged a report on 28,6.2001 stating therein that they ha.d purchased the disputed !and from Bhaiyala! and Sukhmen In the year 1997 and after purchasjng the Sand they got it demarcated, The complainant party attacked them cn account of dlspute with respect to the above iand. 19. After close scrutlny of evidence of the aforesaid witnesses and the documentary evldence avai!able cn record, it Is estabiished that on the date of Incjdent the accused persons were recorded owner of tlie disputed fand. Khasra Panchshaia for the releva.nt ye'ar aiso shows possession ofthe appellants over the disputed !and, At! the fbur appeiiants and Laiobai were present In the and they were pEoughlng the iand for sowing paddy when the complainant party, seven in number, InciudJng deceased Noharsal went there and in that process, dlspute arose between them. 20. None of the'wltnesses has stated as to on what date the compjainant party had sown paddy over the disputed iand. The tria! Court referring to the unexhlbited photocopy of the First information Report has observed that appeliant Nandiai has mentioned possession of Somaru a.nd NoSiarsai over the disputed land. However, the above document 1s not part of the record nor any question has been put to the appeliants in tSiis regard ynder SectEon 313 of Cr.P.C. and in these clrcumstances, the triai Court was not justlfled to record a flnding against the a.ppeijants based on unexhibited FIR lodged by NandEair 21,, On the basis of aforesaid discusslons, we are of the oplnion that flnding of the tria! Court that deceased NoharsaE was in possession of the disputed on and before the date of incident and the a.ppe!Eants were aggressor, js contrary to the evidence avaiiable on record. 22. Conviction of the a.ppellants is based on the evidence of injured eyewitnesses Shobhnath, Somaru, Pyari and eyewltness Santoshi and Chhatarpai. There is no dispute that in the same incldent ai! the four appeSlants sustained Injuries and on their report, the above 9 eyewltnesses and two others were prosecuted for the offence punishable under Sectlons 323, 325, 147, 148, 149, 307 of the IPC. Both the sessions trial were tried together by the learned Addi. Sessions Judge, who acquitted the -compia.jna.nt party vide Judgment dated 23 February, 2004. As the appeliants hereln also sustained various injuries over their person in the same inddent alSegedly caused by the compiaina.nt party; appel!ant Dular also sustained bony injury on hjs right tibia and fibuia, however, the prosecution witnesses deliberately suppressed the injuries present over the person of the accused party and this fact has aiso been suppressed in the charge sheet fited against the appe!!ants, as is evident from the evidence avaliabie on record that there was on- golng dispute betv/een the complainant and the accused party, and the prosecutlon evidence consists of Enterested and jnimicaj wltnesses, faEiure to explaln Injyries on the accused person casts serlous doubt on the verslon of the prosecutlon wltnesses and the sa.me Is fatal to the prosecution ca.se, '23. . From the evidence of PW-S Dr. Amar Singh, we find that apart from deceased Noharsai, other three injured witnesses namely Shobhnath, Pyari and Somaru sustained simpfe Injuries, whereas ail the appeliants have also sustained injuries over their head and other parts of the body. The Incldent occurred when the appe!iants were sowing paddy over the dlsputed land when the complainant party reached there. 24. Et is settled !aw that In appropriate cases, if from the evldence avai!able on record the Court is satisfied that the accused assauited the victim whlle exercising his right of private defence, the rlght of private .defence may be exlended to the accused without accused taking the plea of right of private defence In hls statement under Sectlon 313 of Cr.P.C. i(2003) 2 SCC SSf, Vs. Stete of Chh^ttisgarh]. 25, !n the matter of Genda Singh Versus State of U.P^ reported in CRI.LJ. 3818 (SC), while deai'ng wlth the plea of right of private defence, it has been heSd that the same cannot be based cn surmises and speculation. !n order to find whether the right of private defence is avallable to an accused, the entlre jncident must be examined \¥ithcare and viewed In its proper setting. Sectjon 97 ll%fe-. ^fel%:^ % 26. 10 deajs with the subject matter of right of private defence. The piea of right comprises the body or property (1) of the person exercjslng the right; or (ii) of any other person; and the right may be exercised In the case of any offence against the body, and In the case of offences of theft, robber/, mischief or criminal trespass and attempts at such offences in reiation to property, Section 99 jays down the limits of right of private defence, Sections 96 and 98 give a right of private defence against certatn offences and acts. The rlght given under Sections 96 to 98 and Sectlon 100 to 106 Is controjled by Sectlon 99. To clalm a right of private defence extending to vojuntary causing of death; the accused must show that there were clrcumstances giving rise to reasonable grounds for apprehending that eitner death or grievous hurt would be caused to him. The burden is on the accused to show that he had rlght of private defence which extended to causing of death. Sections 100 and 101 !PC deflne the llmit and extent of right of private defence, in paragraph-13, a caution has been sounded as under:- "f3. The' of is essentiaiiy a defensive circumscrib^! by the govemlng LB the IPC, ayailabie only when the drcumstances ciearfy justify It it should not be altow&d to be pleaded or availed as a pretext for a vindicilve, or purpose of offence. It te a nght of defersce, not of retnbutlon, expected to repel uniawfijl aggression and not as retallator/ measure. While for exerclse of the right, care has in iPC not to proviae and has not devised a mechanssm ys/here&y a/? aftac^ may he a pretence for kHifng. A right to def6nd does not indude a right to Saunch an offensfve, partlcuian'y when fhe ne&d to no sun/iv^l" We have already held that the trial Court was not justified in recordlng a findlng that deceased Noharsai was In possession of the dlsputed iand and tSie appellants were encroachers and aggressors, On the contrary, we have observed from the documentary and oral evidence available on record the appellants were recorded owner and possession hoider of the dlsputed iand. On the date of incident aiso, they were sowing the disputed land when the complainant party, seven In number, reached there and as such, the compSainant party were aggressor- Once It is that the appeliants were in posses.sion of the jn question, in such event, they cannot be to be aggressors. €S3^ € ?^,. '^^A-^~,._ '. U ^ ^^%^-:'- B ;'/^s^ i -\ ^ ^ .^ "•-..'-":--^^'/ 27. 28. 11 Case of the defence that they were defendjng their possession when the members of prosecution party soughtto dlspossess them by use of force may be probabifised. We have already observed that ail tSie four appeiiants sustained injuries in the aforesaid jncident and on their report the complainant party were prosecuted fbr the offence punishable under Section 307 aiso as one of the sustained grievous injuries. These injuries have not been explalned by the prosecution, which further probabifises the case of the defence that the prosecution party was a.ggresso.r, Once it is heid that defence party was in possesslon of the property in question, they in exercise of their right of private defence of property resisted the attenipt of the prosecution to dispossess them from their iand, they were assauited by She prosecutlon party, that gives rise to the right of private defence of person to the defence party as weS!. Th.us, taking into consideratjon the overa.!! evidence avai.lable on record, we have no hesitatlon in holdlng that the appeiiants were In possession of the disputed Eand cn the date of incident, they were sowlng paddy when the compiainant party reached there and tried to dlspossess them and in the process, they caused injuries to the appellants, who, In turn, in exercise oftheir right of private defence of property as we!l as their person assaulted the compjalna.nt party, vvhich resuited in death of Noharsai and simple injuries to Shobhnath, Pyari and Somaru. Sn the resuit, the succeeds, Conviction and sentences imposed upon the appeiiants under Sections 302/34 and 323/34 of IPC on three counts, are set aside, They are acquitted of the charges» Appeilants NandEal and Shivprasad are on ball, thelr bai! bonds are discharged and they need not surrender. AppeJlants Ramdev and Dularsai are In jaii, they be reieased forthwith uniess required to be detained in any other case. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge ^<