l'-v HSGH COURTOF CHHATTISGARH : BSLASPUR DIVISEON BENCH: HON'BLE SHRi T.P.SHARMA AND HON'BLE SHRI R.LJHANWAR. JJ. APPELLANTS (in laii) RESPONDENT Crimlnal appea! No.738/2008 1. Nandkishsdore, S/o Shri Chainuram, aged about 50 years, 2. Mukutram, S/o Shri Chainuram, aged about62years, 3. ButuEram, S/o Chainuram, aged about SSyears. 4. Premial, S/o Nandkishore, aged about 21 years. 5. Santosh.S/o Mukutram, aged about 26 years. Al! residents of Viliage - Nariyara, P.S. Hasod, Dlstrict Janjgir-Cham^a (C.G.) VERSUS State of Chhattisgarh, Through Poiice Station Hasod, District-Janjgir-Champa (C.G.) . . •^-:^. - CRISVSINAL APPEAL U/S 374 (2) OF CR.P.C. Appearance: Ms. Sangeeta Mishra, counsei for the appeiiants Shri Vinod Shrivastava, G.A. forthe State. ORAL JUDQI^ENT (Passed on 22.03.2011) ? .:: . Challenge in this appeal is to the judgment of conviction and order of sentence dated 17th Juiy, 2008 passed by ths Additlonai Sessions Judge, Sakti, Sessions Division Janjgir Champa in S.T.No.188/2006 whereby and whereunder after holding the appeiiants gullty for commission of cuipabie homicide amounting to murder of Ram Prasad after forming uniawfui assembly armed with deadiy weapons and in furtherance of common object, the Court below convicted the appeilants under Section 302/149, 147, 148, 323/149 and 323/149 of the i.P.C. and sentenced to imprisonment for life with fine of Rs.200 and in default to payment of fine, tne appeiiants have to further undergo two months imprisonment under Section 302/149 ofthe I.P.C., to undergo R.!. for six S..-t,^r1i^^ h months each under Section 147 and 148 of the E.P.C. for commission of murder of Ram Prasad and to undergo R.I. for three months each under Section 323/149 and 323/149 of the !.P.C. for causing simple injuries to Motiram and Jawahar. 2. The conviction is impugned on the ground that without an iota of evidence on record, the Court below convlcted and sentenced the appellant as aforementloned and thereby committed illegality. 3. As per case of the prosecution, on account of previous dispute reiating to property, on fatefui day of 07.08.2006 the compiainant party l.e. Motiram, Jawahar and Ram Prasad went to poiice outpost sltuate at Hasod and when they v^ere coming after lodging the report, the accused party assauited them at about 7.30 p.m. after forming unlawfu! assembly armed with deadly weapons and in furtherance of common object and caused injuries to Ram Prasad resulting into instantaneous death of Ram Prasad and a!so caused tnjuries to Motiram and Jawahar with stlck and ciub. P.W.5 IViotiram again went to police outpost Hasod and lodged report Ex.P.42. On the basis of Ex.P.42, FJ.R. was lodged vide Ex.P.43 at police station Janjgir Champa. iVIerg was recorded vlde Ex.P.47 and Ex.P.50. investigating Officer ieft for scene of occurrence and after summoning the witnesses vide Ex.P,1 , inquest over the dead body of Ram Prasad was prepared vide Ex.P.2. Bioodstained and plain soiis were recovered from the spot vide Ex.P.3. injured Motiram and Jawahar were sent for medical examination vlde Ex.P.20A and Ex.P.22. Motiram was examined by Dr. K.L.Uraon P.W.11 vide Ex.P.21 and found' follcwing injunes: 1. Sweiling over left shouider of 3" x 1". Movement of shoulder was restricted. 2. 3 Sweiling and tenderness on back of 5" to 6" in iength and r'mbreadth. 3. Sweliing and tenderness on ieft side of clavicle. 4. SweSiing and tenderness on left parietai part of 5" x 6". Contusion and tenderness of 5" x S" over hand. IVIovement 5. was restricted. Jawahar was aiso examined vide Ex.P.23 by Dr. K.L.Uraon P.W.11, who found iacerated wound of %" x 1/8" x 1/9" over middie of .-^T^.. .^y'' ^,,'v: ^••^~%. ^^ ^^^. ffi^i " ^ |f iy^:-"^^r-.... ^ i^^l/ \^^/ 4 frontai area of scatp and sweiling and tenderness over upper part of iefS forearm. Upon X-ray examination of Motiram, fracture on left ciavicle of movement was found vide Ex.P.24. 4. From She appeiiant Nandkishore, one stlck has been recovered vide ExP.4, one axe was recovered from appellant - Premial vide Ex.P.5, one stick has been recovered from appeiiant Mukutram vide Ex.P.6, one stick has a!so been recovered from appeiiant Santosh vide Ex.P.7, one stick from appeiiant Butuiram vide Ex.P.8 has been recovered. Revenue records were seized from Laxmin Bai vide Ex.P.9. Accused persons were arrested vide Ex.P.10 to Ex.P.14. Spot map was prepared vide Ex.P.15. Patwari also prepared on spot map vide Ex.P.40. Dead body of Ram Prasad was sent for autopsy to Community HeaEth Center, Hasod vide Ex.P.37 where Dr.K.L.Uraon P.W.1 conducted autopsy on the dead body of Ram Prasad vide Ex.P.38 and found foElowJng injuries: 1. Incised wound of 3^1/6" x bone deep over ieft side of fronto- parietal region. 2. Cut injury on right externa! ear. 3. Below the injury No.1, intracrania! haemmorrhage and clotted biood was found. EVIode of death was haemmorrhage and shock. 5. Statements of witnesses under Section 161 of the Code of CriminaE Procedure (for short 'the Code') were recorded. After compietion of investigation, charge sheet was fi!ed before the Court of Additional Chief Judicial Maglstrate, Sakti, who in turn committed the case to the Court of Sessions, Janjglr. The iearned Additiona! Sessions Judge has received the case cn transfer. 6. !n order to prove the guiit of the appellants, prosecution examined as many as 24 witnesses. -The accused/appeilants were also examined under Section 313 of the Code in which they denied the circumstances appearing against them and pleaded innocence and faise impiication in crime question. The accused persons have taken defence that complainant party have assaulted them while they were going to todge report to poiice outpost Hasod and they were intercepted by the compiainant party, who caused injury to them i.e. to tEie appeEiant - Mukutram, appellant Santosh, Dayamati, wife of Mukutram and Yadmati, JJ ite-^l^. % 1 xs.iiff^ i (^-- wife of Butulram and during course of such quarrei, compEainant party have also received injuries. The accused persons have also examined themseives as defence witnesses, of them, appeliant - Nandkishore, appeliant Mukutram, appellant-Santosh and appeiEant Butuiram, who have deposed that compiainant party have caused injuries to them and they have not caused any homicidat death of Ram Prasad with intent to cause hisdeath. 7. After providing opportunity of hearing to the parties, the iearned Additiona! sessions Judge, Sakti has convicted and sentenced the appeiiants as mentioned above. 8. Ms, Sangeeta Mishra, iearned counsei for the appeiiants and Shri Vinod Shrivastava, iearned counsel for the State heard. Judgment impugned and record of the Court below perused. 9. Ms. Sangeeta Mishra, iearned counsel for the appel!ants vehemently argued that in the present case, complainant party have caused injuries to Santosh, Mukutram and his wife Dayamati and Yadmati, v/ife of Butulram. However, the prosecution witnesses/injured witnesses/compjainant party have not explained injuries found over the body of accused persons. She further argued that the present appeilants have caused injuries to complainant party in exercise of right of private defence but they have not exceeded their right of private defence. The accused persons have not caused fatal injuries to any of the compiainant party. Even as per evidence of Dr. K.L.Uraon P.W.11 , one trifle injury has been found over the person of deceased Ram Prasad, one incised wound of 3" x 1/6" x bone deep was found over !eft hand of the body, intra cranial haemmorrhage was found beiow the aforesaid injury, which reveal that oniy one incised wound was found over head of the deceased which was not sufficient for causing death of deceased. As per FJ.R. Ex.P.42, the appeilants were not hoiding axe or any sharp edged weapon and they were holdlng only stick and club but injury found over the head of the deceased reveaied that injuries were caused by sharp cutting weapon. There is inconsistency in the medical and ocuJar evidence. Considering the single injury, no liability can be fastened upon ail the appeliants. Even .^'^'; •/••••^ ''yK^'s '<..- otherwise, the appeltants have not exceeded their right of private defence nor have caused aforesaid injuries to compiainant party. 10. On the other hand, Shri Vinod Shrivastava, Searned counsei for the State aEso vehementiy opposed arguments and submitted that evidence of P.W.4 Devanand and P.W.5 Motiram is sufficient for drawing an inference that present appellants have caused fata! injury to Ram Prasad, resuiting into his instantaneous death and after appreciating the evidence avaiiabie on record, the iearned Court below has rightEy convicted and sentenced the appeliants. 11. In order to appreciate the arguments advanced on behaif of the parties, we have examined the evidence adduced on behaif of the prosecution. In the present case, homicidal death as a resuit offatal injury has not been substantiaiiy disputed on behalf of the appellants, but on the other hand a!so established by the medical evidence of Dr. K.L.Uraon P.W.11 and autopsy report Ex.P.38 and death of Ram Prasad was homicidal in nature. Appeiiants have aiso not disputed the injuries caused on Motiram and Jawahar, even otherwise it was aiso established by the evidence of Dr. K.L.Uraon P.W.11 and injury report of Jawahar vide Ex.P.23 and injury report of Motiram vide Ex.P.21. The injur/ found over the bodies of Motiram and Jawahar was simple in nature. 12. As regards compiicity of the appelfants in crime in question, the defence has not disputed the incldent. The appeliants have aiso examined themselves as defence witnesses aEong with Smt. DayamatE D.W.6, wife of Mukutram and Yadmati D.W.7, wife of appeiiant Butulram. As per evidence of P.W.1 1 Dr. K.L.Uraon, he has afso examined appelEant Santosh vide Ex.D.9 and found foiiowing Enjuries: 1. Lacerated wound of 1 %" x 1/6" x 1/8" over the ieft part of the head near ear. 2. Lacerated wound of %" x 1/8" x 1/9" over upper part of left ear, 3. Swelling and tendemess of 4" x 1" over left arm. P.W.11 Dr. K.L.Uraon has also examined appellant Mukutram vide Ex.D.11 and found foliowing injuries: 1. Lacerated wound with sweiiing over left thumb of 2" x 1". 2. Swefiing with tenderness of 6" x 4" over ieft thigh. ^z (t- 3. One injury of 5" x 3" with swelling and biackness over right buttock. As per evidence of Dr.K.L.Uraon P.W.11, vide Ex.D.6, he has also examined appellant Nandkishore and found iacerated wound of 2" x 1A" over !eft side of tempora! region and sweiling with tenderness over left lower part of teft arm. As per his evidence, vide Ex.D.8, he has aiso examined appeilant Butulram and found mild sweliing and tenderness over right side of ank!e. He has atso examined Yadmati, wife of Butulram vide Ex.D.13 and opined that she was complaining of tenderness in back of her body. Simiiariy, he has also examined Dayamati, wife of appellant Mukutram, who was also complaining of tenderness in back. Appellant Nandkishore has a!so lodged F.I.R. against complainant party i.e. Ram Prasad, Motiram and Jawahar vide Ex.D.16. P.W.5 Motiram and P.W.6 Jawahar are also facing trial on the basis of aforesaid F.i.R. and offence punishable under Section 294, 323, 506 B and 34 of the I.P.C. was registered againstthem. 13. As per evidence of P.W.11 Dr. K.L. Uraon, both complainant party and accused party have received injuries. Injuries found over the body of Motiram P.W.5 and Jawahar P.W.6 are simple in nature. injuries found over the body of appellant Nandkishore, Mukutram, Butulram, Yadmati, wife of Butulram and Dayamati, wife of Mukutram are aiso simpte in nature. P.W.5 Motiram and P.W.6 Jawahar have not explained the injuries found over the bodies of above appeiiants and Dayamati and Yadmati and members of their family. Therefore, considering the injuries received by both the parties, the defence of appelEants reiating tp causing injuries in exercise of right of private defence to Motiram and Jawahar finds supports from medicai and ocular evidence and the same is acceptable under the law. While causing simple injuries to compiainant Motiram and Jawahar, present appeliants have not exceeded their right of private defence and they were having right to cause injuries to that extent. Therefore, their conviction and sentence under Section 323/149 and 323/149 for causing injuries to Motiram and Jawahar are not sustainable under the law. 14. As regards causing homicidal death of Ram Prasad in furtherance of common object in pursuance of unlawful assembly and formation of uniawfu! assembly, as per para 13 of cross-examination of P.W.6 of Jawahar, at the time of incident, the appeilants were going to poiice station for iodging report relating to assault made by them, but the fact remains that ali the appellants were present. The evidence of P.W.5 Motiram and P.W.6 Jawahar is sufficient for drawing inference that present appeliants have constituted unlawful assembly when they were attacked by the complainant party and deariy reveaied that a!E the appeiiants have caused injury to Ram Prasad. As per F.t.R. Ex.P.42 lodged by Motiram, appeilants were hoEding stick and club but as per evidence of Motiram, appellants were holding axe and have caused injury with axe. Autopsy report Ex.P.38 and evidence of Dr. K.LUraon PW.11 cleariy revealed that incised wound was found over the head of the deceased. This shows that injury has been caused to Ram Prasad by some sharp edged weapon. The incident took place at 7.30 p.m. The appeiiants were five in number and other persons i.e. Yadmati and Dayamati were aiso injured, therefore, at the time of incident, they were 7 in number whereas compiainant party was aiso at least 4 in number, total 11 persons were present at the time of quarrel. Out of 11 persons, 8 persons were injured. !n these circumstances, it is difficult for a person to see that who is holding what type of weapon and thus any discrepancy relating to weapon is not unnatural. The fact remains that Ram Prasad died as a result of injury received by him in the quarrel. The appeiiants were present on the spot, they were having grudge against Ram Prasad because of dispute reiating to land between the compiainant party and accused persons. These circumstances are sufficient for drawing an inference that only the appeiiants have caused the injury to Ram Prasad over his head. P.W.11 Dr. K.L. Uraon has conducted autopsy vide Ex.P.38. He has not mentioned dimension of cut injury over right externaf ear. Dimension of injury No.1 is 3" x 1/6" x scatp deep over feft fronto- parietal region, craniaf haemmorrhage and blood clotted was seen below the aforesaid injury. !n the absence of any dimension and gravity of injury No.2 found over the ear of the deceased, it is difficuit to hold that injury found over the ear was grievous in nature. Injury No.3 is a corresponding Enjury No.1 which shows that oniy one grievous injury has been found over the head of the deceased that too by sharp edged weapon. !n the absence of other injury and fata! injury over the body of the deceased, it is % ^ . \ ^ "^..^-^••••^- ;; "^%-^^ ^^^ 4: difficutt to hold that the appellants have caused injury to deceased with intent to cause his death, but definiteiy caused injury to deceased in exercise of right of private defence which was available to them and while causing such injury they have exceeded their right of private defence at the time of such incident. Members of unlawfui assembly have caused such injury to the deceased. The above said injury is grievous in nature and caused by dangerous weapon resutting into death of deceased. But in the absence of evidence relating to common object and the fact that the appellants have formed unlawful assembly at the time of incident and oniy one injury has been found over the body ofthe deceased Ram Prasad, it is difficuit to hoid that appeilante have common intention to cause homicidai death of deceased but the injuries found over the body of deceased are sufRcient for drawing inference that appellants have caused grievous hurt by deadly weapon to the deceased after forming unlav/fui assembly and in furtherance of common object of assembly. Therefore, evidence adduced on behalf of the prosecution is sufficient for drawing an inference that present appeliants have formed uniawfuf assembly and in furtherance of common object pursuant to unlawful assembiy, members of assembly have caused grievous injury by deadly weapon to deceased. The act of the appellants making them liable for commission of offence punishable underSection 326/149,147 and 148 ofthe I.P.C. 15. While convicting the appellants under Sectlpn 302/149, 147, 148, 323/149 and 323/149 ofthe I.P.C. the Court belovv has not considered the circumstances in which the appellants have caused injury, nature of injury and number of injuries found over the body of the deceased, right of exercise of private defence available to the appellants and injury found over body of the appellants and also family members and thereby the Court below committed iliegality in convicting the appellants with the aforesaid sections. 16. For the foregoing reasons, the appeal is partiy allowed. Convlction and sentence of the appellants under Section 323/149 and 323/149 for causing injuries to Motiram and Jawahar are hereby set aside. However, conviction and sentence ofthe appellant under Section 147 and 148 ofthe !.P.C. are hereby maintained. Conviction of the appeliants under Section 302/149 of the I.P.C. and the sentence awarded thereunder are also set s's^s mi:ig:iSSSi^ iSiii9iSiiSS sss^' aside. Instead the appellants are convicted under Section 326 read with Section 149 ofthe I.P.C. Present appellants Premlal and Santosh are in custody since 8.8.2006 till today i.e. for about more than 4 years and 6 months. Rest of the appellants Nandkishore, Mukutram and Butulram were in custody from 8.8.2006 till 20.102.008 i.e. for about 2 years and 2 months. They are sentenced for the aforesaid period. Al! the appeilants are sentenced for the period of their detention i.e. for their custodial period. Appeilants Santosh and Premial be released forthwith, if not required in any other case. j Sd/- Sd/- i I R-L. Jhanwar T.P.Sharma I 1 Judge Judge