p^. U -Oi. - HIGH COURT OF CHHATTISGARH. BILASPUR Division Bench: Hon'ble Shri Sunil Kuinar Sinha SB. Hon'ble Shri Radhe Shyain Sharma, J J Criminal Appeal No. 337 of 1995 Mangaldas & Another Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) iUUDGMENT —E£tLCQK.sid..e];atien Sd/- Sunil Kiimar Sinha Judge —I HON'BLE SHRI JUSTICE RADHE SHYAM SHARMA °^ eLSi-Att-^. . Sd/- R.S.SStarma Judge -. / Post for Judgment : ^ 1/09/2011 '•*»- Sd/- Suni! Kumar Sinha Judae ?:."..i-s!i ~^»^~,^t Vftf'SSSi' iN >» AP^-. '-T^^l\- HIGH COURT OF CHHATTISGARH, BILASPUR Division Bench: Hon'ble Shri Suail Kuinar Sinha fis Hon'ble Shri Radhe Shyam Sharnia, J J APPELLANTS RESPONDENT Cnmmal Appeal No. 337 of 1995 1 Mangaldas, aged 30 years 2 Sukhdas, aged 40 years Both sons of Dhirkidas 85 residents of Vmage Pandarbhatta, P.S. Dharsiwa, Tahsil and District Raipur Versus The State of Madhya Pradesh (NowState of Chhattisgarh) (Criminal Appeal^underSection 374 (2) ofTheCode of Criminal Procedure. 19731 Appearance: Mrs. Renu Kochar, Advocate for the appellants. Mr. Ravindra Agrawal, Panel Lawyer for the State. JUDGMENT (21.09.2011) Following judgment of the Court was delivered by Sunil Kuniar Sinha, J. (1) This appeal te directed against the judgment dated 9th of >. / January, 1995 passed in Sessiqn ffial No. 94/93 by the Fourth '*«». Additional' Session Judge, Raipur. By the impugned judgment, the appeUants have been convictedu/s 302/34 IPC and sentenced to undergo imprisonment for life. s> 'li: ;1 Criminal Apoeal No. 337 of 1995 titk^ (2) The facts, briefly stated, are as under:- The case of the prosecution is that on 27.9.92 at about 9.30 a.m., deceased- Gangaram was ploughing the disputed field. The appellants, who are real brothers, went to the field and asked Gangarain not to plough the field and taking serious objection, th.e appellafits untied the buffaloes from the plough. Thereafter the deceased again brought the buffaloes and tied them with ,the plough and again tried to plough the Eeld. On this, the appellants assaulted the deceased by lathi and Chatwar. The deceased received multiple injuries and succumbed to those injuries. There were 3 eye-witnesses to the incident namely- Jhulbai (PW-4 - wife of the deceased), Munnalal (PW-7) and Bhuklu (PW- 11). First Information Report (Ex.-P/l) was lodged by Santram. (PW-1). The Investigation OfGcer reached to the place of occurrence, gave notice (Ex.-P/2^-to the Panchas and prepared inquest (Ex.-P/3) on the dead body of the deceased. The dead body of the deceased was sent for post- mortem to D.K. Hospital, Raipur vide requisition Ex.-P/17. The post-mortem examination was conducted by Dr. D.C. Jain (PW-9). He noticed following injuries on the dead body of the deceased:- (i) v Lacerated wound 2 inch x Va inch x *4 inch on the left portion of the face; Lacerated wound 116 inch x Vi inch x IA inch on the right porti&n-of fehe-feee-abGwe mj'ury no. 1; Lacerated wound 1 Va inch x % inch x 1/4 inch on the left portion ofjaw; . Lacerated wound 1 % inch Ya inch x % inch on the left eyebrow; ^, Lacerated swound 2 inch x l/z inch x % inch on the middle of the forehead; Lacerated wound 2 inch x Y2 inch x % inch on ;the left portion ofthe skull; (vii) Lacerated wound 2 inch x 'i/t inch x % inch on , - the middle ofthe skull; (ii) (iii) Jiyj' (V) (vi) — "^;..1&! lii. n Y Criminal Auoeal No. 337 of 1995 (viii) Lacerated wound 2 inch x ^ inch x % inch on the back portion of the skull; (bt) Lacerated wound 3 inch x 1 inch x V2 inch on the left leg. Bones were found fractured 8s (x) Lacerated wound 2 inch x 'A inch x % inch on the upper pjortiorrofthe4'eftrteg. On internal exainination, it was found that there was fracture in the skuU bone. The Autopsy Surgeon opined that the injuries were sufficient to cause death in ordinary course of nature; cause of death was cbma due to the above injuries and the death was homicidal in nature. The post-mortem reportis Ex.-P/ll. In further investigation, appellant- Mangaldas was taken into custody and his meniorandum statement (Ex.- P/9) vt/-s 27 of the-EvideEie&-Aet-wass~i?eeQFd«d-aHd-©tetoaF was seized froin his go.ssession. Various other articles were also seized duriag the course of investigation and were sent for their chemical examination to Forensic Science Laboratory, Sagar, from where, a report Ex.-P/21 was received. According to the F.S.L. report, blood stains were found on many articles, .including the danda [chatwar] seized from the possession of appellant- Magaldas. Though the above articles were sent for their.Serological examination vide Ex.-P/22, but no report could be filed. (3) Mrs. Renu Kochar, learned counsel appearing on behalf of the appellants, argued that it was not established tj-iat the appeUants had/ass&ulted the deceased; the eye-witnesses are not . / • reliable; Jhulbai (PW-4) is inter^sted" witness being the wife of the ''•&-. deceased, therefore, her evidence should be discarded. Altematively, she argued that the appellants were in settled ;possession of the_disputed~field sirrce last- 15 years; there^was a land dispufe between both the parties; the appellaHt and the II ' .-.—..-_.:—.:-.;., s f rf' Criminal Apoeal No. 337 of 1995 deceased were members of the different branches of th< same family; the appellants firstly removed the deceased from the field and when the deceased again tried to plough the field, he was assaulted, therefore, the appellants acted in right of private defence of property and they cannot be held liable for punishment u/s 302 IPC. (4) On the other hand, Mr. Ravindra Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments. He argued that all the eye-witness are reliable; the appellants have not taken the plea of right of private defence and the case is not one of; nght of private defence, therefore, the learned Session Judge wa& fully justified in awarding the convictibn and sentences to the appellants u/s 302/34 IPC. f (5) We have h^ard leamed counsel for the parties at length and have also perused the records ofthe sessions case. (6) Jhulbai (PW-4) is the wife of the deceased. She deposed that on the fateful day, she had gone to the disputed field along with the deceased. They were also accompanied by their son- Raju. Her husband was ploughing the. disputed field and she was cleaning the spineS-{/canta) near the field.^The appellants cam.e there and v*te- .! they untied the buffaloes from the plough of her husband. Thereafter her husband again brought the buffaloes and tried to tie them fpr ploughing the field, on which, the appellants assaulted her husband. AppeUant- Sukhdas was having lathi and ^'.// ^ .V lii : 1 Criminal Aripeal No. 337 of 1995 appellant- Magaldas was having tangia. She admitted in the cross- examination that the appeUants are sons of uncle of her husband. A case is pending between the appellants and her husband relating to the disputed .field. She further admitted that her husband (deceased) was prosecuted in a criminal-case for cutting the crops of the said field. She further admitted that the disputed land was in possession of the appellants since last 10-15 years and the appellants were sowing crops in the said field and they never allowed the deceased to plough the field because the appeUants were claiming that it was their field and fhey will not allow the deceased to enter in tiie said field. She also admitted that almost every year they tried to forcibly enter in the field, but the appeUants used to resist them, therefore, they could not get the possession of the field. (7) Munnalal (PW-7) is an injured witness. He also deposed that the deceased was assaulted»bythe appellants. He also admitted in fee er&ss-exarnirratron^rhattfa-eappellaarts-weFe i»pessessioa-of the disputed field and a dispute betwreen the appellants aad the deceased was going on. .(8) Bhuklu/^PW-11) has also supported the evidence of Jhulbai (PW24) and Munnalal (PW-7Jjh1at the appellants had assaulted the deceased in the disputed'field. BIR • v / 1 i- Criminal Appeal No. 337 of 1995 (9) The evidence of the above eye-witnesses is corroborated by the medical testimony of Dr. D.C. Jain (PW-9) who noticed the above injuries. (10) Though the above eye-witnesses have been put to lengthy cross-examination by the defence, but the defence has not been able to elicit any such circums.tance on which either theu- testimonies may be discarded or it may be said fhat they were unreliable witnesses and were falsely implicating the appellants in crime in question. Mrs. Renu Kochar has argued that Jhulbai (PW-4) was wife of the deceased, therefore, she was interested witness. The Supreme Court has said time and again that merely because the eye-witnesses are family members their evidence cannot be per-se discarded. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible (Harbana Kaur and another -Vs- State of Hciruana. 2005 AIR SCW 2074: Namdeo -Vs- State of MaKareishtra, SQQT./^SCW 1S35& SofteFhtt-Vs-Steete-cffM.P., ZOQS^SR-SeW ». / 7988). We have scrutinizec^ the evidence of Jhulbai (PW-4} and other witnesses with great caution and we do not find any infirmity in their evidence. It was a day time incident, eveiy one was known to ea.ch other. The presence of the witnesses also WT ;- K.:'s*%^ ~4 vli • f.w'S!-: 'i ^:.'^:;^^'^.^ ^^ ff ^^^^i^ ^.y Criminal Apceal No. 337 of 1995 cannot be doubted because PW-4 has accorapanied her husband from their house and the ofher witnesses were working in their nearby fields. Therefore, it was estabUshed beyond all reasonable doubts that the appellants assaulted the deceased in the disputed field who received multiple injuries and succumbed to those mjunes. (11) Now we shall consider the arguments relating to right of private defence. (12) Learned State counsel has argued that the plea of right of private defence was not taken by the appeUants before the trial Court, therefore, it cannot be argued herein appeal. In Kashi Rdm and others -Vs- State of M.P., AIR 2001 SC 2902, the Supreme Court held that though S. 105 of,.Evidence Act, 1872 enacts a rule regarding burden of proof but it does not follow therefrom that the plea of private deferice should be specifi.cally taken and if not taken shall not be available to be considered though made out from the evidence av&ilable in the case. A plea of self defence can be taken by introducing such plea in the cross-exammation of prcrSecution witnesses or in the statement of the accused persons recorded under ^. 313, Cr.P.C. or by adducing defence evidence. »• / ' And, even .if the plea is not introduced in any one of these three •«a- raodes still it can be raised during the course of submission by relying on the; probabilities artd-circuinstances obfaining in the case. i.'. /• M '^ Criminal Anoeal No. 337 of 1995 ^-.t (13) When the right of private defence of property extends to causing death has been provided in Section 103 IPC. The right of private defence of property extends, under fhe restrictions inentioned in section 99, to the voluntary causing of death or of any other harm to the wrpng-doer, if the offence, the committing of wliich., ar tbe att-&mptiag ta -cctmmit which, Qccasinns- -fhe exercise of the right, be an offenee of any of the descriptions hereinafter enumerated, namely:- First- Robbery; Secondly.- House-breaking by night; Thirdly.- Mischiefby fire committed on any building, tent or vessel, which building, tent or vessel is used as a humsih dweUing, or as a place for the- custody pf property; Fourthly.- Theft, mischief, or house-trespass, under such circumstances 9.8 may reasonatoiy eause apprehension that death or grievous hurt wiU be the consequence, if such right of private defence is not exercised. (14) When such right extends to causing any harm other fhan death has been provided in Section 104 IPC. If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the. right of private defence, be thett, ./ mischief, pl'/criminal trespass, n9.t of any of the descriptions ^-^ -. enumerated in the last preceding section, that right does not extend to the voluntaiy causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causirtg to-the wrong-doer 6f any harm other than death. .^>a" !,t>'. :3 !. >-iB ys&':.::?~°^1^. » fc..A 'h—• Criminal Appeal No. 337 of 1995 (15) In the present case, there is sufficient evidence to hold that the disputed field was in possession of the appellants since last 10-15 years. It was in cultivating possession of them. The appeHants were claiming.since long that the disputed field was their property and they will not aUow the deceased to interfere with their possession. AU these are admissions in the evidence of Jhulbai (PW-4). Jhulbai (PW-4) also admitted that a case was pending between the appellants and her husband relating to the said field. She also admitted that, earlier, her husband was prosecuted in a criminal case of crop-Tjattfaig relating to the disputed filed. The case of the prosecution is that on the date of incident, the deceased sfarted ploughing the field by buffaloes^ plough. When the appellants came to know about it, they went to the field and asked the deceased not to plough the Eeld and thereafter they untied the buffaloes from the plough. After this, the deceased again brought the buffaloes to the field and tried to tie feesi with theptou^-and afee-tried-be-plough t-h«field. tt ir&-on this event, the appellants assaulted the deceased by lathi & chatwar which is normaUy carried by villagers. The appellants were in settled possession of the disputed field, and on the evidence on record, it is clear.that they assaulted the deceased in right ofrpnVate defence of their property. The question is whether the appellanfs were having right of private defence of property to the extent of eausing d^ath or theirjdght was restricted to-cause other .harm than the deafh ? We ean find the answer to this quesfion in Sections 103 & 104 IPC. The right ofprivate defence of -/ —•—•-f it y .^s' i^''1' laifc. •f!i~i:-"T' 10 Criminal Appeal No. 337 of 1995 the property extends to causing death in the circumstances which are mentioned in Section 103 IPC which does not include the "criminal trespass" which in fact, the deceased has committed in the present case. Therefore, the right accrued in favour of the appellants could not extend.to causing the death. In fact, the right accrued in favour of the appellants would extend to causing any harm other than death which is clear from Section 104 IPC which includes an instance of "criininal fa-espass" which the deceased did in this matter. Therefore, the appellants eertainly exceeded their right by causing death of the deceased. (16) Section 304 IPC provides punishment for culpable homicide not amounting to murder. It draws a distinction between the -penalty to be inflicted in eases,- sidierer-arLintentiojcLto Mll-being present, the aet would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300, and cases in which the crime is culpable homicide not araountmg to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 applies where there is intention, whereas the second part applies where there is ^Knowledge but the important thing is that before holding fhe accused guilty under any part of Section 304, it has to be otiserved that a death must have been caused by him under any 6f the circunistances mentioned in the five Exceptions to Section 300, which" inelude death eaused while deprived of power 7;^ —'-'>••-.: • ~ 11 Criminal Apoeal No. 337 of 1995 of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. Knowledge of. consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attoracting the former part of Section 304, an element of mtention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. i -° (17) In the present case, we are of the view that in the facts and circumstances of the case, the appeUants exceeded the right of private defence of property by causing death of the deceased as there is no occasion to cause his death in right of private defenee of property as the deceased did not do any such act on which such right was available to fhe appellants u/s 103 IPC. The appellants ought to have caused any other harm to the deceased, but ought not have caused his death under the right accrued in their favour U^sylQ4 IPC and thus, the act of the appeUants was one of .exceeding right of privatis^defence of property. We are of the view that in the above facts and circuinstances of the case, an offence u/s 302 IPC would not be made out and the appellants would be liable fQrpunishment u/s 304 Part-II IPC. '••^ 'att 12 Crimmal Appeal No. 337 of 1995 (18) For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to the appellants u/s 302/34 IPC are set-aside. Instead thereof, the appeUants are convicted u/s 304 Part-II/34 IPC. and sentenced to undergo rigorous impri&QrtirLent far 5 yeais, The-appfillants^shall be entitled-to set- off the period already undergone. Sd/- Sunii Kuaiar Sinha Judge Sd/- R.S. Siiarma Judge ^. / 'wa..