..»iyv.;.*??:•"?'•'•'*•"'l' ^^ i I 'l APPKLLAN'l*: HIGH COURT OP CHHATTISGARH, BILASPUR Ctiminal Appeal No.23Qj»f2g06 Jayjasasia. Versus KESPONUKNT State of Chhattisgarh ^ Post foi pKonouncement offndanaetrt on f \ Noveab»,2008 Sd/- T.P. Sharma Judge :al ? + "a.s> ~fc ^-y APPBLLAN'f': HIQH COURT OF CHHATTISGARH. BILA8PUR C^iminal Aopeal No.330 of 2006 Jagmania, W/o Peelu Kodaku, aged 40 years, R/o ViUage Kotsari, P.3. Raipur, Distt. Sai^uja (C.<5.) KBSPONUBN'l': Versus State of Chhattisgarb., through FoMce Station Rajpur, Distfc Sai^uja (C.G.j {Crimmal appeal uxider Section 374 (2) ofthe Code of Crimiaal Procedure, 1973} PFesent; Mr. Hanumaa Prasad Agrawal, counsel tbr the appeitant. Mr. Ashisfa Uupta, Panel Lawyer for the State/respondent. Siad®BeBcli; Hoa'ble Mr. T.P, Sltatma, J JUD6MBNT (UeUvered on JJ^November, 2008) 1. 'l'his appeal is directed agamst the judgment of conviction & order of sentence dated 2-3-2006 passed by fhe 3Td Additional Sessions Judge (K'l'.C.), Ambikapur m Sessions 'l'rial No. 166/2005, whereby leamed Additional Sessions Judge after holding the appeUant guilty tbr commission of offence under Section 304 Part-11 of the l.P.C., sentenced him to undergo rigorous imprisonment tbr seven years & pay a fine of Ks.200/-, in default of payment of fine to further undei^o rigorous imprisorunient for onc month. 2. The judgment is challenged on tiie grouad that without any credible aad reJiable evidence, Court below has convicted and sentenced the appcliant ia the aforesaid ma&ner. 3. Case ofthe prosecution, ia brief, is that thc accused/appellant is residinj in the house of Somari Bai, her sister-ia-law ie. sister of her husband. On 26-1-2005 deceased Kamdev @ Kogaha caine to the house of Somari Bal, wife of Basdev Kodaku, K/o Chahlapatrapara, firom his viUagc Kharaota, to invite them tbr his son's mamage aud he stayed in the house of Somari Bai who is his sister-in-law. After takmg meals they went for sleep. Somari Bai was sleeping with her son, accused Jagmania was sleeping near the son ofSomari Bai and deceased Kamdev was sJeeping at. a distance of S' ftom accused Jagmaxiia. At about 12 mid night the ^€?"^" ^ ^' deceased touched the accused on wliicb the accused after bjaiiiing the deceased assaulted him with the help of a burat wooden piece. Somad Bai raised cries where upon persons of the vicmity came and iatervened. 'l'he deceased went away fiom the house of Somari Bai. Thereafter, they slept ia tfaeir faouse. Negrt day laomiag Soinari Bai saw that the deceased was present near Sarai tree iu iajured condition and at about 12 noon, he died. The F.1.K. was lodged by Kooplal (PW-7) vkle Bx.P-8. Inquest over thc dead body of Kaindev was prepared vide Bx.P-3. Plaui soil, blocxi stained soil aad burat wooden piece were seized vide Bx.P-2. The dead body of Kamdev was sent for autopsy to Coauniuuty Health Centre, Kajpur vide Bx.P-13 aad autopsy was conducted by Ur. S. Orewal (PW-b) vide Ex.P-S who foumd foUowing iajuries on the body ofthe deceased:- (i) one lacerated wound over clun faavmg dimension of3 cias. x 1 cia.; (ii) one lacerated wound just below the right eye ia the size of 2 cins. x 1 cm. x bone deep; (iii) one Jacerated wound just the side ofleft cye in the size of3 cms. x 1 cm. x bone deep; (iv) one Jacerated woimd below the nose in the size bf1cm. x l cm.; (v) one lacerated wound above the left eye in tfae sizc of 1 cm. x 1 cm. x bone deep (vi) one lacerated wotind of 3 cms. x 2 cms. x skm deep over the occipital reglon; & jvii)one lacerated wound of % cm. x % cm. near riglit knee, bleeding &oni nose was present. 4. On intenial exaiiunation, fiacture of rigbt leg was found aad mtemal oi^aas became pale. Cause ofdeath is syncope due to excessive bleediag. Injuries werc daugerous for lite. Clothes of the deceased were seized vide Bx.P-1. Spot map was prepared vide Ex.F-4. TJie accused was taken into custody and she made disciosure statement of the bumt wooden piece vide lix. F-14. Seized articles were sent fbr cheiuical examiaation and presence of blood ia blood staiaed soil and on the clothes of the deceased was confinned vide Bx.P-17. / 5. After recoiduie the statements under Section 161 ofthe Cr.P.C. aud afiter completion of investigatlon, cJiat^e sheet was filed before the Court of Judicial Magistrate, l''irst Class, Ambikapur, who iu tum, comiaitted the case to the Coiut of Sessions Judge, Ambikapur, from where leamed 3rd Additioaal Sessions Judge, Ambikapur received the case on traasfer tbr trial. 6. ln ordcr to pnive the guilt of the accused, the prosecution has examined as maay as 12 witnesses. Statement of the accused was recorded under Section 313 of the Cr.P.C. ia whicfa sbe denied the cireumstances appeariag agamst her, pleaded innocence and talse unplication. 7. After affording the opportunity of hearfug to the parties aad conclusion of trial, ttie trial Court has convicted and sentenced the appeliant as afoicinentioned. 8. I have heard learued coxmsel for the parties and. perused the record ofthe trial Court as also the impugned judginent. 9. Lcamed counsel for the appellant argued that accordiag to the case of the prosecution, on the fateful day, the accused, who is a woman, was sleeping in tbe house of oue Somari Bal, wife of Basdev Kodaku, wfaere the deceased was also sleepiag at a distence of S', but during mid n^ht at 12 O' clock wliite the accused was sleepiag, thc deceased came near the afdised and tried to cotnmit sexiial inten'oiirsc (<!^'wial) with Tier, whereupon she used force with a view to save hersetf and she causcd injiuies on the body of tbe deceased m exercise of the right of private detence wtaich was avaitable to the accused uadcr clause (3) of Section 100 of the l.P.C. Tbe accused has net exceeded her right of private detence and she has not caused aoy fatal injuiy on thc deccased although iu exercise of the right ofprivate defence ayaaaat the assault with nitention to commit rape, right of private defence of the body may be extended to cause death. 10.0n the other hand, tbe judgment ^ supported on behatf of the Statc/ respondeat and it is submitted that there was no danger to the life of the accused, the accused has voluntarity caused grievous & dangerous injuries to the deceased aad as a result of such iajuries, the deceased died. 'l'he act of the aceused squarely talls under Seetion 304 Fart-tl of the 1.P.0. ll.in order to prove the complicity ofthe accused in the crmie ia question, the prosecution has adduced ocuiar aad medieal evidence. 12.As regards tfae honucidal death of deceased Kamdcv, it has not been disputed by the defencc, otherwlse also it is estabiished by the ocular evidence of Arvmd Kumar Paikra (PW-4), Jamath Kaikra (PW-S), yomri (PW-8) - wife of the deceased, Kajeshwar (PW-9) & Somari Bai (FW-10) - sister-in-law of the deceased. Ur. S. Urewal (PW-6) lias stated in his 4 evidence that on 29-1-%)05 he has conducted autopsy on the body of Kamdev aad foiuid injuries as mentioned ia para 3 of this judginent, he prepared the autopsy report Ex.P-5. He bas also stated that the cause of death is syncope as a resuit of excessive bleeding and the iajuries found over the body ofthe deccased were dangerous to life. to view ofthe above evidcnce, it is estabUshed that deceased Kamdev died as a result of thc injuries caused at the tune of tbe incident. 13.As regards the compUcity ofthe accused ia the crime in question, Arffind Kumar Paikra (PW-4) has stated in his cvidence that at the time of incident, the accused was standing with club, Kamjataa & Bhacat were spectfyiag hcr, afterwards, he came to know that the accused has assaulted Kogaha and second day, Kogaha dicd. Jajnath l^ikra (PW-5) has stated ia his evidence that Kogaha died as a restilt of the injuries caused by her daughter-ia-law i.e. the accuscd. Bharat (KW-11) has atso stated in his evidence that he caine to know that Kogafaa was beaten by the accused. 'l'he evidence adduced on behatf of tfae prosecution reveals that the accused has assaulted the deceased, but the prosecution witnesses have stated that they came to know that thc deceased was assaiilted by the accused. 14.After appreciatmg the evidence avaUable on record, the Court bclow has arrived at a findiag that at the tiaie of incident the accused was standmj ^, with club to whom other persons were advisiag & '^ccifying and they came to know that she lias assaulted the deceascd. Tfaesc witaesses have also admitted m their cross-examination that the deceased, who was elder brottier-in-law of the accused, liad tried to cominit rape on the accuscd whereupon, the accused has saved herseif by usiag force with the help of a small wooden piece. Arviad Kumar Paitera (PW-4) bas admitted in his cioss-examiaation para '2, that on the fateful iiight the accused iuformcd him. that while she was sleepiag, the deceased camc close to her body. Jainath Paikra (PW-S) has admitted in para 2 of liis cross-cxaBamation that he came to know that the deceased has tried to commit rape on the accused and the accused saved herself. 15.1t is also revealed from the statements recorded under Section 161 ofthe Cr.F.C, that on the fatefiil night the deceased touched the accused and she assaulted the dece^ed. According to the stetements oftbe vritoesses, it appears that touclm^ meaas attemptuag to coinmit sexual mtercoursc. '^ IS.Although the prosecution has not adduced credible evidence against the accused/appellant to prove the fact that the accuscd had caused fatal injuries to the deceased, but the prosecution witnesses have adinitted that the deceased had tried to coxiunit sexual intercourse with the accused upon wtaich the accused assaulted the deceased with a small club (bumt wooden piecc), thereafter, the deccased went way fiom the house of Somari Bai, he was sittmg near one tree and died after 12 faours. It is also revealed j&-om the statenients of the witaesses that nobody has tried to help the deceased for bia treatment aad the dcceased died aa a result of non-availability of treatiaent in proper tuae. Statexaents of the wltaesses show that the deceascd had tried to assault the accused with intention to cominit rape on her, whcreupon with a view to save herself, the accused bas caused injuiy to the deceased by a woodcn piece which was available at the place ofoccurrence. 17.1n accordance with clause (3) ofSection 100 ofthe I.P.C. thc accused was having the r^ht of private defence of her body and in exercise of such right of private defence, she has caused iujuries on the person of the deceased. At the tixne of iacidcnt, the accused, Somari Bai & one cfaild were sleepiag in the house, whereas thc deceased was the only male meinber present ia the house and therc was no occs^fon for the accused to get help finm aay person. After the incident the deceased went away flsom the housc at nud n^ht and he was sitting under a tree tiU hls death for about 12 hours. The trial Court has amved at a finding that the right of private defence was available to ttie accused, but she lias exceeded her rigfat and caused itiji.irics and luore hann to the dcceased. Causing injury in exereise of the right of private defence caanot be we^hed iu a golden scale, although ia thc case of assault with intentfon to coaunit rape, the accused has the right to causc injuxy aad it inay be extended even up to causing death to the assaitant But in this case, when the deceased has left the accused aad went away fi-om the house, tfae accused has not caused any iajury or she has not chased the deceased. On the spur of the moment, sJh.e faas caused six mjuries to the deceased and most of the injuries were on the face of thc deceased. 18.1n the iastant case, talring into consideration the assautt niade by the deceased with iatent to conunit rapc, the injuries caused by the accused in exeicise of the right of pnvate defence are not excessive and the accused has not exceeded her lunit. Individualfy no injury was sufl&cient to cause the death ofthe deceased, but as a cumulative efifect, in absence '*%•, 8 '^ ^- of any treatment tlie deceased died as a resiilt of excesswe bJeeduig especialfy in the nionth of Jaauary which is the most chilliag (winter) season wiule he was sitttng outside under the roof of a tree. 'Vbe trial Court has rigfatly arrived at a finding that the right of private defence was available to the accused, but wrongly arrived at a finding that she baa exceeded the right, and thereby convicted the appellant iinder Section 304 Part-11 ofthe l.F.C. In the instant case, the accused has not exceeded her nght of private defence and she has caused uyuries on the person of the deceased in exercise of thc right of her private defence, TJierefore, her act does not fall withia the ambit of Section 304 Fart-11 of the l.P.C, or the offcnce punlshable for causing hiut or grievous hurt or homicidal death of the deceased. 19.Consequentty, the appeat is allowed. Conviction & sentciices imposed upon the appellant under Sectioa 304 Part-li ofthe l.P.C. is sct aside aad she is acquitted of the said cbsaye. She be set at liberty forthwith, if uot required ia any other case. ll'in.e amount, if any, deposited by the appellaat shall be refiinded to her. _^__^^^^=^— T.P. Sharma Judge Soma