m Va- .5; ONELE MKRT.RMA : HG'B MJANAR J. iaii wa' ae 5 ear‘ 50 r nwar l az a 0 years son 'm R’ anr'. anr é’e sé m5 ruc nr All ragsldvnf a? \nliage Knmbal Slmaur 0151' Surgula Varsus ' eh p i ‘ f Smb 9f fhha+1'l<garh Thruo Pmlc »b‘m1'on Simnur Diswlc Surgula (MP) mow L t7 ) R P ECI ' ‘ CU , Prespn‘!’ — Mr A K Pmsad amuse! ‘For‘ The mpgllgng Mr Asmsh bui hka 60vernmen+ Advom’e c for Tine Sfa‘l‘e (QQAL uME) massed on ifh February, 2010) Thg judgmerz‘r 9f thg ‘; r was d9‘we , P $hema, w:- . Bv‘this anneg'! under Seafibn 374 (2} ef the Cede 0f €mmmal Pmcedure, 197% (m sham“? ‘fhv C9d9’\ fhe ggpeitams have ahalienged me leggmy mac! pmpr‘ieiry‘ 91F fhe judgman'? 9f canvictian & arder- 9f xen’rence‘da‘l'ed 251.1999 gassed by fhe‘ §:ir-s1' Addifigmi 5assi9ns Judge, Ambikapurjin yes.ie.s Tréd! N0.161,/87; whereby &’whemundar ImmadiF‘irs‘! Addiiiizinal $es§en$ 3' d e ffer haidmg Thé apgeihnfs guih’y for the ”offeiftca“ ‘II HIQH QQURT OF €HHATTI€&ARH AT §ILA5PUR Criminai Apni Mo 254 9f 199G 0mm H ?5HA c3 NLE R‘RIHW; J AWE! x ANTQ (1n ) Ram Ruchi Takhu Ka {D a ied nd debated) Kar gd 1 ys / Rajehdm aias Rjndm agd 3 ofRa uché Kwn Mnaira’ agad Zyars n Qamm Knwa (FMTNtd APEAL UNhER QTON 374 (2) OF THE (0 F WRTAkNN PROEDRE, $733 Jwm punishabla under- Secfigns 3Q2/34. 323/34 and 323/34 9f fha Indian "Dma! Code senTanczd fhem To undergo impr§sonmam f0!" life, riggmus imprisanmen? for six. menfhs and rigamus imprisonment for six mcnfias . Judgmenf is impugned 9n 1'he ground That w§fh0uf There beim cmv icfm mF J I evidence, the Ccurt be3pw has canvia‘rad and sen-ranged the cppa!!an+s as aferemenfianed and irherehy committed EHzgaHty. Case m? +¥1e presecu'rion, in br§ef, is fhcr!’ an The fafefu! day of 13 3 87 crr abgu't beiween 12 i'g’ 1 air men, NankLI (PW-4) was’wa'rching his gram craps in his fieid a? viiiagg— Karabei, Disfrisf Ambikapur, he was also uprooiing same gram piam far earring, appgiisn? Rmmrucii‘i, Menindm, Rgjendrg and wife of appeiicm'r Rajentim nameiy Dhaii came. in ‘i‘ne field,”‘!‘hey objecfzd ‘iha‘r why he is uprgoiing gram gianfs, They were holding s‘iicks’ Nanku (PW-4) ebjec‘hzd fha samg and widths? he is owner of fhe land, then the aforesaid three ooouse‘d oersons ossouifed him by sfioks, he showed for help, ’rhen his son Porosno‘ih arid Phulsoi (since deceased) come f0 rescue him, ‘iheri accused persons oiso osssui‘ied to Phuisoi and Parosi Phuisoi fell down and become unconscious. Nonku {PW-4) immediately wen? fo the ooiics sfofion ond iodged the FIR yide EXP/7. He was sent for medical examination vide EX.P.!17A oiong wifh Pores and Nonku vide Ex,P./1§A end PfléA. 'i‘ioey were examined by Drill)” (éuote (PW-10) vide Exs.P/15, W16 arid P/17 and fwo locerc'red wounds were found over The heed and righf elbow join? of Nonku, one iocero‘red wound oh head of right perieml hone, two hedmofomd and we confusion was found over The body of injured , Porosnofh ond locerofed wouhd of 3 %" v %" x. skin deeg; were found over middie of head, froc‘iure of hone wos susoeofed and iocero‘red‘wound of 2" x V_1_u 4‘ x screen deegz was found over forehead Phui Soi become unconscious; ndiuries were grievous in nature. He was odmi'fted in hospital for freofmenf. Aecused ‘ddonehdm was oiso sen? for medicoi exdmino‘rion. He ‘ Mos exomined by Dr. 1D. Emom {PW-10) vide Ex:P/13 and found ohe abrasion and one heamofoma over nose and smouidr region. During Vfhe? I a .‘ a . I Investigaiing Qfficgr gaffer <ummnwng +¥w wmn ¢ - vide E:><.P,/8 prepare-d inquasf ave-r thz body 9f tiaz dacgased yide EXPJQ. Dead bcdy of ‘the deeeased was sent? fa Assis‘ianf Surgean, 6ovemmenf Hospital, Ambikapur vide EXPB‘ Auwnsy was cenducfed by Dr.Q.K.Bajaj {PW—1) Vida Ev 9/1 and feund we stifcii waurd MW rig“ pnvlewi region 9‘ 2 1 " x 1", gna s+x+rh wgLnr} (war- mghi’ §nwh9qd g‘F ?/A" swgilma mmv fowhgnd 9f i n + " heamMovrm nf PM «ze was snunr‘i msd» fhv Mam nhd ‘mc'hm’ 0f arigmi ham was gisa famd. Made on? death was coma as a resui? Qf ma$sive extméum! haamefoma. Acgwad Ramruchi was c1159 examined by Dr’IDIiJpM (PW-1G) Vida EXP!1§ and Twa bru5hes ware faurzd ave-r righ? wibmw and laff shouiderx Sealed cigthes 9f fhg deceagd was seized Vida EXP/4. Pa‘twari greparad 5pm? map vide ExR/10. Khasm 9f the land is xd.P{11 and W12 Blagdsminzd soil and pEain sail werexgcovered fmm the field n‘F Mnhnjnh Uman \Iidp Exp/14 Thrgg s‘l‘irks warp sg§zgd frnm amused Pamrnch! Artvle5 wara <2m For rhemnal 9ydmmm‘lon bJ+ b'ood was n0? faund ovgr sticks. (_ cau ¢e cf +rpa+m0n+ Plsai died. Mgr- mfwa‘hon wag recorded vade au EXP/24 on 14.3.8.7. 1 13A TII ‘ Swi'ementsdf ‘fhe witnesses were racerded under 5edmns 1é1 9F +he (Jade, Affar sompiefien of invesi'iga‘iiani charge sheet was fi!ad in the Court 9f Chief Judicial Magisfrm‘e, Ambikapur, whg in turn commi‘i‘ied Th2 case ‘ia +he. Cdur? 9f Sessions, .Ambik‘dpur, frem wharg ieamed Fir-s? Addifians! .Ezssinns Judge, Ambikagiur receivad the casa on iransfzr‘ far Trial. s In arder 'i'c grails fine guiify 9f ihe accused/appeiidnfs, fhe prosécuiion has examined as .many‘ as 18 witnesses. Sia‘i’emen'ts of fhe accused nrCLsed/npneiian+< were retarded Lmder Section 113 o£ +he Cede where _ Thev denied ‘i‘iw rwcumsi’ancps appear ng againsf ‘ihem and phmded mmwncn nnd fnise imniics‘hm in +he rrime in Hueshori The appeiiani's have iaken specific defence than? the iend in qJes‘rion was aimed and w passessed by fhzmi may have suifivm’ed gram crops we!" the fiehi .Nanku, Parasm‘th and Phulsai went? m The fiald, “they are cammming fhef? of 9mm craps, than in exercise 0f right G15 privafe dafance and praper-Ty mad with a View 1'0 save weir pmgerw and ousfed the comphinan‘!’ party frem The fidd, They used minimum fcracz. The comghjmnf pari’y has alsa assaulted them and They have a!$9 received Eajwias, but injuries m‘ The. accaised pay-sans haye n9? been expiainad Eay ‘i'hz prasecu‘rion. Thay were having right the cause minimum injury in exercise .rrf iiieir right ef private defence 9f pmper‘ry ‘and persans. They have no? zxceedzd ‘ihgir righ'f while exercising their righ? 9f nriya'tz defame, ‘i’herefore, fhey are n0? iiabig fer commission 9f any Qffenca. After afframing an Qpparmni‘iy 9f hearing ‘m the parties, learned First Addifighai 5255iws Judge has canvic’ied and sentenced the appeiieni's as aforementioned. . ‘We‘h’ahve heard iedrned counsel for The parties, perused The judgmenf impugned and recard af the Cour-1' below. learned caunsei for i'he appeiian‘l’s vehemently argued That during the nendency cf the appeai' appeiian? No.1 Ramruchi has expired and his name as been deie‘ied. Learned cwnsei furfher argued the? The iand in questien was owned and passessed by The agapeiiam‘s, they had shown gram crops in The fieid. On fhe dai’e of incident, Nanku, Parasnath and Phui $ai were trying to commit theft of their crops, they directed to go from the field, but the complainant party assaulted them then in eXe.cise of right of. private defenee of property and persons, they applied minimum force. In case of right of private defsnce at property and persons, the injur analied cannot be weighed in goiden scales s iQn the other hand, learned State counsel supported the judgment iniirzugned and argued that the right of oriyate defence was not available to the aaoellants because they have chased the complainant narty and caused ‘ "fatal injuries to their. while they were not holding any weapons and. there i i. i y @ was no f a c ir‘ e. Lear-ma cou’e!‘ rg that the ur? bd MI cgncw a ed ppn fend . In irder 2m aprec’a argumenfs advanced n behglf 9f "h rti, we a axaned fhe zdncg addued n behalf f fha rsatinu n +ho hrem ra smml :r-JJW m anak” Pm<na+n d holda' dant a wsnH F F+nl JLrre c9a<ed hn Sm s no+ e?“ subsmidy‘ dshu e ‘al , tab d he ee 'af D..D.£-.‘:ua (PW-10), injury rear‘‘ sP/ ‘ro 1 Dr‘RKQBag PW-1) and ps}! rpar Pl. 3 rrd$ a 9 e ccedrs i ‘b. d y f aps m3 dgd ? d u z b d u d ranth n c h iiw hav. szcificiy ae a iohf’bf “riahe dfe of, panerfy an Adig T e e‘ a n“ f a di pmper y e n pasan h i her g re k aras nd l $ g grv +rvm + ramn rrnP< whpn If g< ghJagfpd b fim a Phu w g 9 yg w ‘ y aeinis, ‘i'hzn Thy assaui‘re appln anen and deceased Rami and hen i exeise 9 h 9 ria’re df f rort d p ey p m fe . 'e' cas, u (PW4, injure ifes, as po‘ed ‘’ ‘ > case 9f presecu‘iien. He has deposed in his evidence that firs?!yiDhoii came 1'0 The field end quarreied, fhen Vfhe appe!!an1's came ‘i'o‘ the field, They U asseui‘i‘ed ‘i’hem, when he feli down, his sen Parasnaih and another persen Phul $ai came whom The appellants have aiso aimuh'ed. In paras 10 and 11 “ : of his chess-examinefidn, he hns'epecificeiiy admitted 'rhat dispufed iand is - reeerded iniihe'name 9f the apgeiiants and 'They are in possession end have nisn Shown ‘i’rw passession Pewter! Indrnna'l'h (PW 6) h eciw‘i‘caliy +a‘l'ed +ha‘r The land is recorded m +he name af +hv anneilan'h: and +hev 9mim’n dmp!" f +h9 lif d ns aued ? (b aw kw: mgV wd nd saMenc 1+9 aei!nf< n< aoremntige. . g pim the o te paes hve mi vie c e c pesue I ‘se sg, e N and a§ an mm h as ' a' a ms of da Pl ha b t ntl i'rad by Th ppeianfs, an ‘khe ofher hand a!so es s e bv + vidn rIpf p! Ex15 W7, heJ ( dum et Exl ega due ompiicii‘y f Th aus/appahan' in fhe crime n queshon is cancama' virtuall he pa!!am have ? isput The maiden an injries feund aver “th ody 9f injure Nank an Pasa ad, dgp rl Phul §ni Tg agpean e gai tkn The pia af r v‘ eenc r' d persens. acarn O th dafvncp F fha anpaiiJi’s Th9 wie? o +h snL'rad w +he ar i seséi and tgv .. i a hnwn ti mrr Pps bu? Nanu P i ppia e a elat Mdm rueh t n rc f Te righf f gv eence o ppey an ersens, th have apiied inimum orc Tn The nvsem e Nank -) d wns h euprr lhe < were in possession. He’has praved revenue recards ExsiPllO Ta P112. Pamsnaf. (PW—11), 55m. 9f Nanku (PW-4) has alse corrobamfad tha evidence of his father Nanka. Chai?kmnwar (PW-15), wife of Nanku has deposgd In her- evidencg That her fafhgr 5hw1kar' has given the disgufed land 1‘0 her mad civil Iii’iga‘i‘ian is pending between her and tha appellants. She has. supported fha mse 0f iha gresacu'iion, bu? she. has specifically admi‘l‘ied in pam' 6 9f her- cmss-examimfim Thai 34 year$ nrior To fhg incidehT, SmTHendli, seeand wife of her faTher has execuTe-d The sale deed in fcvaur of the appellan'is, altheugh ‘rhe appellan‘rs hava succeded in exacui’ion 9f sale deed by fargeryl $ha has specifically admi'r‘rzd in gar-us 8 nd 9 that? pa'hmri has not ream-dad har poséessian aver The land.‘ The eviéenc- qf fhese wii’nessgs and revenua records clearly shows- Thai Nanku ‘nd Chaifkunwar ware not in gassassim 9f the land and The land was recardgd m ‘iha name of deceased appellan‘r Ramruchi and the appellants were in possessien of The lend and fhey had shbwn 9mm craps. Wife cf Nankui Nanku and Their reiaTives were Trying. Ta remove The craps, same was obgeei‘ed by the appelkm‘is' 33am! and Then ihe incident mek piece. 14lThe evidence adduced an behaif of ihe prosecution clearly reveals The? wifhwt any right 9r pmpr-ie‘ly, Nanku, Chaitkunwar‘ and Pamsne‘rh were presen? in :Phe field 93F the appelldhi‘s and were frying to remeve ‘l'he amps Medicui evidence also 'reveais the? ho‘lh The parties have susTeined injuries The apeellems’ per-Ty haye heT dispuTed TheT They have heT caused gny'ihjuries To The campleimh‘r perTy. Three injuries were found aver The head of deceased Phul 5dii Qn 13.3.8.7, he was asseulTed by The appellen‘l’s end he died an 14.3.8? an The secand day ‘af The incident .Accardihg To The ease uf The preseau‘l‘ian, cifTer The incidenT, The compldihmTbreughT 'PhLl 5ai Te T.e village and he was also shifTed Td The hospiTal‘far TreaTmenT. The appeiiahTs were holding sTichs and They there having sufficienT apparTuniTy Te kill Phul Sai, buT' They have naT caused ‘ furTher injury ar had naT caused insTanTaneausiy deaTh of deceased Phu! S 23 m . @D 15.Whi!e dealing wifh The availability of right Qf priva‘fz defence and its applica'rian and extent ‘rhe Apex Court in the matter of Namin $§ngh & Qrs. vv. 5mm 9f Hwyena (20% AIR SGW 2&41) haS held thaf i?! order m find whether righf of privefe defence is availebk or net 'the injuries received by the accused, 1he imminence 9f ‘rhrea‘r 1’9 his safety, The injuries caused by fhe accused and ‘rhe circumstances whether thu aucused had time ta have recaurse ta public. authorities are aii reievant faetars ta be considered. 16, I. the present case, admittediy bath the parties have sustained injuries. Three injuries were faund aver the head af deceased Phui Sai. The deceased was aiive at the time af incident and he died subsequentiy an the second day. The appeiiants have not caused any injury whiie the camplainant party was taking injured Phui Sai ta the village ar for treatrnent. Seizure af blaadstained soil and plain soil Ex.P./14 reveais that biaadstained sail was seized from the field and alsa fram verandah of Mahajan Uraan. It praves the fact that the incident tank place in the field which was owned and possessed by the appeilants. The evidence adduced an behaif af the prosecutian is sufficient ta grave the fact that the camplainant party had tried ta commit theft of gram crops and they quarreied. with the appellants’ party, they also assaulted appeiiant Manindra and deceased Ramruchi, then the appeilants have assaulted Nanku, Parasnath and Phul Sai, althaugh while exercising the right of private defence, they have caused injuries ta Phul Sai who is nat anywhere connected with the disputed land and had caused grievaus~injury by sticks. Nature af injuries shaws that injuries faund aver the head of deceased Phul Sai resulting inta‘ fracture was caused with heavy waoden stick. Stick has been seized vide EXP/22 shaws that ane heavy club" (samigeda)ihas also been seized which may be turned as’dangeraus weapon. 17.0?! .ciase scrutiny af the evidence, it appears that the appeiiants shave caused simpie injuries ta Nanku and Parasnth and grievous injury ta Phu! ' Sai by dangemus weapon resuh'ing infa his death, but Hazy have n9? ca! any injury wi‘l’h infen‘r to cause death 9f Phu! 5w The. righ? of privafe dafence was available fo'the appellants. While convicfing The apgelhnts under Seétions 302/34, 323/34 and 323/34 9f the Indian Pang! Code, the (bur? belew has net considered The ayaihbilify of righf 9f priva‘l'e defence and infenfion of The uppe!!anfs and fhereby cammif‘red i!!eg'al§1y. med 18.In the present case, fhe appeilan‘rs have caused simp!e injuries To Nanku and Pamsnm‘h which they wereenfnkd To cause in exemise (if their tight of private defence. They have net exceeded their right 9f private defence while causing simpie hurt ta campiainant Nanku and Parasnath, therefore the convietian i and sentence imhosed r u an the anr eiiants under Sectians, 323/34'and 323/34 of the Indian Pena! Code are nat sustainable under the law. 19,. As regards the aanyictian and sentence imposed upan the appeliants under $ectian 302/34 af the Indian Pena! Code is concerned, the appeiiants have xcseded their right 9f private defence and have caused grievous hurt by dangerous weapon, therefore, their act squareiy fat! within the ambit of Section 326/34 of the Indian Pena! Cadet 20.For the foregoing reasons, the appeal is partly ailawedi The conviction d, sentence imposed upon the appellants under Sections 323/34 and 323/34 are hereby set aside and they are acquitted of the said charges. However, the conviction 6i sentence imposed upon the appellants under Section 392/34 of the Indian Penal Code is altered to Section 326/34 of the I! Indian Penal Code and sentenced to their. for the custodial period already, ’ Jnderoone. _, Sd/- /\ "T.P.Sharma W ‘4 .Sd/- ‘ y ‘ l R.L. Jhanivar > Veil Judge image r L w l