HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon’ble Shri T.P. Sharma & Hon’ble Shri R.N. Chandrakar, JJ. Crimirial Appeal No. 301 of 2004 Shatrughan Sahu, s/o. Kartik Ram Sahu, aged 30 years, occupation Hotel Business, r/o. Bangia Para ‘Il'umgaon, P.S. Tumgaon, Distt. Mahasamund (CG). 2. Sushiia Bai, w/o. Pardeshi Vishwakarma, age 29 years, occupation, Hotei Business, r/o. Gopalpur, P.S. Tumgaon, Distt. Mahasamund (CG). Vs. State of Chhattisgarh, through P.S. Tumgaon, Distt. Mahasamund (CG). Appellants 1‘ (in jail cUstody) Respondent. (Criminal Aeal nr Section 374 (2) of the Cr.P.C.) pp ude Present: M. Nirupama Bajpai, counsel forth appellants. Mr. N.K. Mehta, Govt. Advocate fr the State. ORAL JUDGMENT (Delivered on 25—1 0‘2010) 1 15-1 -2004 2n Additional Sessions Judge, Mahasamund in Sessions Trial No. 177 of 003, wereby and whereunder after 2 h oln th appellants guilty for commission of culpabl homicidal hdig e e death of Sal Rana and causing injury to Murarilal, learned ub 1. Challenge in this ppeal to the judgment dated a is passed by s e o ”‘17 Per T.P. Sharma, J. d Additional Sessions Judge convicted the appellaht No.1 undr Section 325 and 302 IPC and sentenced him to undergo R.l. for 1 1/2 years and to pay fine of Rs.200/—, in default of payment of fine to undergo further R.l. for one month and R.l. for life and to pay fine of Rs.1000/—, in default of payment of fine to further undergo R.l. for three months and convicted and sentenced the appellant No.2 Sushila Bai under Section 325/34 and 302/34 to undergo I R.l. for 11/2 years and to pay tine of Rs.200/—, in default of payment u f of fine to further undergo R.l. for one month and R.l. for life and to paygfine of Rs.1000/—, in default of payment offine to further undergo R.l. fOr three months. All the sentences are directed to run concurrently. Conviction of the appellants is impugned on the ground that without any iota of evidence the court Vbelow has convicted and sentenced the appellants and thereby committed illegality. 3. The case of the prosecution, in brief, is that on 16-2-2003, Murarilal (PW/12) and Annu Baghel (PW/13) went to Chimani Dhaba, situated at National Highway No.6 between Gyani Dabha and village Kaunjhar for illegal purpose where they quarreled with the appellant No.1 Shatrughan Sahu. owner of Chimani Dhaba. When the appellant No.1 Shatrughan sahu tried to assault Murarilal and Annu Baghel with stick, they snatched the stick from and started assaulting him. At that time, appellant No.2 Sushila Bai brought one axe from Dhaba and handed over‘the same to Shatrughan Sahu. When the appellant No.1 started to assault Murarilal by axe, Annu Baghel ran away from the spot. Hearing e the commotion one person namely Subal Rana came to the spot of incident and tried to intervene the quarrel who was assauited by Shatrughan with axe as a result of which he sustained grievous injuries. Seeing the incident, Murariiai ran away from the spot towards forest. Ramadhar Chandrakar lodged FIR vide Ex. PI25 and‘morgue intimation vide Ex.P/11 in Poiice Station Tumgaon on the basis of which Station House Officer prepared spot map vide Ex. P/26. u f The deceased Subal Rana was brought to Primary Health Centre, Mahasamund in injured and unconscious condition where he was A examined by Dr. Girdhariial Chandrakar (PW/17) vide Ex. P/15 and found five injuries and thereafter he was referred to medicai College, Raipur where he died and morgue was recorded by police. After summoning the witnesses vide EXP/20, inquest over the person of the deceased in presence of witnesses was prepared vide Ex.21. Thereafter, the dead body of the deceased was sent for autopsy to Medical College, Raipur vide Ex.P/34 where Dr. Shri Ramchandra Gonnade‘ (PW/7) conducted postmortem vide Ex.P/9 and found the following injuries. 1) Multiple impact abrasions present over lateral aspect of right knee 0.8"cm diameter and 0.4 cm diameter on left side of antero lateral aspect of abdomen 0.5 cm and 1 cm on left lateral epicandyle 0.5 cm diameter on anterior 0.7 cm 8 cm posterior 1 cm diameter of left shoulder above medical part of right eye brow in an area of1.5 cmx1 cm. 2) Multiple scratch abrasions on left hand obliquely ‘ 6 cm over ventral aSpect of left forearm w; medically 2 cm. Contusion present over upper lip all over with laceration of epithelium with broken upper \ central with fracture of maxilla 3 cm. 4) Lower lip also contused . 5) lncised wound semicular present just above lateral and of right eye brow 1x 0.5 cm x bone deep withgmedical surface shows abrasions 1.5 cm 1 cm and also on lateral end of upper eye lid of left eye 2.4 cm x 0.2 cm x skin deep. 6) Incised stab wound present on 3 cm above right knee anterior surface transverse size 0.8 cm x 0.2 cm x 4 cm. ‘, «,f 7) Incised stab wound on left inguinal ligament’s lateral part 1 cm x 0.3 cm x 4 cm. 8) Black eye on left side present. 9) Lacerated wound split present 5 cm above right ear vertical 3 cm x 1 cm x bone deep underlined bone depressed as mentioned at skull column. 10) Split lacerated wound present 3 cm behind left external anditory meatus 3 size 2 cm x 1 cm x bone deep both lacerated wounds and eye wound shows stitches. All injuries were ante-mortem in nature and the same were sufficient to cause death of the deceased and mode of death of due to cardio respiratory failure as a result of head injury. Dead body of deceased Subal Rana was identified vide Ex. 24. Blood smeared soil, plain soil, one black coloured lace shoe and two green coloured socks were‘seized vide EXP/27. Driving licence and diary of the deceased Subal Rana were seized vide Ex.P/28. Statements of Murarilal and Annu Baghel were recorded. Murarilal who was also assaulted by accused was also examined by Dr. GirdharilalChandra and found the injuries: i) fracture on the middle of left hand— measuring 1. 1/2 x 1/2 x “/2 cm, ii) fracture on the middle of right hand measuring 1 x 1/2 x 1/2 cm and iii) on the upper elbow ofthe right hand vide EXP/16. During course of investigation the appellants were taken into custody. On the basis of memorandum of the appellant No.1 Shatrughan .u (EXP/2), weapon of offence axe was seized at the instance of the appeilant vide EXP/3. Biood stained clothes of the accused/appellant Shatrugan were seized vide Ex.P/4 and the clothes of the deceased were seized vide Ex.P/8. Patwari prepared site map vide EXP/19. The seized articles were sent for chemicalsexa‘mination to FSL, Raipur (EXP/31) and a report thereof is EXP/33. 14 After completingtthe investigation, charge sheet was file against the appellants in the Court of .Chief Judicial Magistrate, Mahasamund, who in turn committed the case to the Court of Sessions Judge, Raipur. Learned 2nd Additional Sessions Judge, received the case on transfer, who framed charges under Sections 307, 302/, 307/34 and 302/34 of the Indian Penal Code against the appellants who abjured their guilt. Prosecution in order to establish’the charges against the appellants examined 23 witnesses in all. Thereafter the statements of the accused were recorded under Section 313 of the Code of Criminal Procedure, in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence and false implication. The trial Court after hearing counsel for the respective parties, convicted and sentenced the appellanas mentioned in paragraph t one of the judgment. “‘1‘ x d 9. Ms. Nirupama Bajpai, learned counsel appearing for the appellants submits that the trial Court utterly failed to connect the appellants with crime in question. As per evidence of PW/12 Murarilal and PW/135Annu Baghel, their conducts are unnatural. Deceased Subal Rana was assaulted by some unknown persons near Dhaba but injured body was ‘found 200 meters away from Dhaba. Prosecution has not a‘dduced any evidence to establish that the appellant No.1 - Shatrughan Sahu assaulted Subal Rana when he trie‘d to intervene the quarrel. ln absence of such evidehce, conviction and sentence of the appellants could not be sustainable under law. As per prosecution witnesses, appellant No.2 - Sushila Bai has not played any vital role and she has not caused any injury to any person, except to prOvide axe to the appellant No.1 Shatrughan Sahu to save himself. Thus, appellant No.2 Sushila Bai is not liable for the offence. Learned counsel further submits that if any injury is presumed to be caused by appellant No.1 to the deceased and Murarilal in the altercation that was due to sudden provocation‘and in order to right of private defence. Learned counsel for the appellants in support of her arguments placing reliancejin the. matter of Birappa and another vs. State of Karnataka, reported in 2010 AIR SCW 5391 submitsthat unnatural conduct of the witnesses and in absence of substantive piece-of evidence the prosecution case w; becomes doubtful. On the other hand, Shri N.K. Mehta, Government Advocate, appearing on behalf of the State supported the impugned ,ri mam Wm“ judgment and vehemently argued that PW/12 Murarilal and PW/13 Annu Baghel are injured witnesses and there was no g reason to doubt their evidence. The court below after considering i all the aspects of the case has rightly convicted and sentenced the accused/appellants. We have heard Iearned counsel for the parties and perused the record of the trial court as atso the impugned judgment. 12. The trial Court has convicted the appellants on the basis of the at t evidence of EW/12 Murarilal , PW/13 Annu Baghel and Dr. Shri Ramchandra Gonnade (PW/7) who conducted postmortem vide $ a Ex.P/9. ‘ 13. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced by the parties. i/ 14. In the present case, murder of Subal Rana is not in dispute and the same is established by the evidence of Dr. Shri Ramchandra % Gonnade (PW/7)who conducted postmortem vide Ex.P/9. 15. As regards the involvement of the appellants in crime in question is concerned, conviction of the appellants is based on the evidence of PW/12 Murarilal and PW/13 Annu Baghel. As per their evidence, they were habitual visitors to Chimani Dhaba and they went to Chimani Dhaba where they demanded girls to satisfy their lust. Some dispute took place there between them and the owner of Dhaba i.e., Shatrughan, who picked up stick and started assaulting them. Then they snatched the stick from Shatughan and both started assaulting Shatrughan. Thereafter they tried to 11. flee away from the spot by scooter, but Shatrughan pushed the scooter from where they fell down and at the same time appellant No.2 Sushila Bat brought the axe and handed over the same to Shatrughan, who assaulted Murarilal by axe over his hand. At that time one person came there to intervene the quarrel who tried to intervene, then Shatrugan abused and assaulted him also by axe Meanwhile PW/12 Murarilal and PW/13 Annu Baghel fled away from the spot Thereafter Murarilal telephoned to his friend namely Jltendra lndikar stating that while he was passrng from Chimanl Dhaba he met wrth an accrdent and his scooter was damaged, therefore, he sought help from him Thereafter he proceeded towards ‘Tumgaon and on his way he saw one unknown person lying on the ground in injured condition where scooter was alsotlying in damaged condition. On presumption that the person who was lying on the road, was Annu, he tried to talk and wake him up. Thereafter he asked help from some other persons also but could not succeed and went to Tumgaon Chowk where he met Jitendra‘ Lalwani and Ashok Agrawal to whom he narrated that Annu was lying in seriously injured condition near the scooter and asked‘them to go and bring him. Then they told him that Annu was alright and he was coming back by another vehicle. Murarilal (PW/12) concealed the truth and was not examined by Doctor. After some time, when the p'olice ’ enquired the matter, Murarilal (PW/12) narrated the real story to Police. PW/13 Annu Baghel also narrated the same to Police. The evidence of these witnesses has not elicited anything but £ discredited their testimonies in their cross examination. Thus, definitely their conduct is unnatural and it is revealed from their evidence that their intention was not legal and when the incident took place they tried to conceal the truth but finally it came to the knowledge of the Police when they investigated the matter and PW/12 Murarilal and PW/13 Annu Baghel gave different versions regarding the incident to Police which was most relevant for plaging reliance upon their evidence. Their evidence clearly shows that-the appellant No.1 Shatrughan caused serious injuries to SubaJ Rana and also to Murarilal and the same was established by ‘ Dr. Girdharilal Chandrakar (PW/17) vide his reports EXP/16, 17 and 18. 16. As per evidence of PW/12 Murarilal and PW/13 Annu Baghel, Subal Rana was not known to the prosecution witnesses till his post-mortem and there was no occasion for committing murder of unknown person. Initially accused/appellant No.1 assaulted them by stick which was snatched by them and they started assaulting him. In the meanwhile, appellantNoZ Sushila Bai brought an axe and provided him and due to sudden provocation, in order to save himself he assaulted Murarilal and Annu by axe. At the same time when unknown person came there to intervene the quarrel, he was also assaulted with the axe by appellant No.1 who was identified afterwards as Subal Rana, the truck driver. The intention of Shatrughan was not to cause death, but he was having the knowledge that with the. assaultrof that weapon of offence,.death of the person may be caused. i w w y m Accused/appellant No.1 Shatrughan caused grievous injury to Murarilal (PW/12), but from the evidence of PW/12 and PW/13 (Murarlilal and Annu Baglhel) it‘is clear that when they assaulted the appellant No.1 by stick, he assaulted Murarilal in his right of private defence, theiefore, he is not Iiable for conviction of offence of grievous hurt caused to Murarilal. Further, from the evidence of PW/12 and PW/13 Murarilal and Annu, it is clear that appellant No.2 Sushila Bai came with an axe and provided the sar‘fief to appellant No.1 Shatrughan to assault Murarilal and Annu in orderto save himself due to which Murarilal sustained r 4 - ‘ 7 grievous injury. ‘ At that time, deceased Subal Rana was not present on the spot. The prosecUtion has not adduced any evidence to show that appellant No.2 Sushila Bai has provided the axe to Shatrughan for causing injury to unknown person who was aften/vardsvidentmed as Subal Rana. The prosecution has also not adduced any evidence regarding the overt act committed by Sushila Bai by providing axe to Shatrughan in order to prove the fact that Shatrughan caused death of Subal Rana With the common Intention of appellant No 2 Sushila Bai Thus conwctlon and sentence of accused appellantN02 Sushila Bai under Section 325/34 and 302/34 of the IPC for causmg grievous hurt to, Subal Ram and Murarilal, is not sustainable under the law, but definitely the appellant'No.1 Shatrughan was having knowledge of the fact that his act may cause death of Subal Rana despite he has not caused injury to Subal Rana-with an intention to kill him, therefore, the act of the appellant No.1 Shatrughan does not travel beyond the scope of 304 Part ll of the IPC. While convicting the appellants Shatrughan and Sushila Bai under Sections 325 and 302, 325/34 and 302/34 of the IPC, the court below has not considered the aforesaid aspects of the case and Sushila Bai has neither assaulted Suhal Rana nor provided an axe to Shatrughan with an intention to cause injury to Subal Rana. Shatrughan caused grievous hurt to Murarilal in exercise of his right of private defence, therefore, the court below has committed illegality in convicting and sentencing them as mentioned in the impugned judgment. Considering all the facts and circumstances and material available on record, we are of the considered Opinion that the prosecution failed to prove the case under Section 325/34 and 302/34 of the IPC against the appellant No.2 — Sushila Bai, 19. Accordingly, theappeal is partly allowed. Conviction of the appellant No.2 — Sushila Bai under Sections 325/34 and 302/34 of the IPC is set aside. She is acquitted of the charge under Sections 325/34 and 302/34 of the IPC and she be set at liberty forthwith, if not required to be detainedin any other case. Conviction and sentence of the appellant No.1 Shatrugan under Sections 325 and 302 of the IPC is set aside and same is altered under Section 304 part ll of the IPC and he is sentenced to undergo RI for eight years and to pay fine of Rs.1000/- in default ‘) of payment of fine to undergo further RI for three months. ‘ w; J n _r a_ 2,. Sd/— _ Sdl- T.P. Sharma R.N.Chandrakar Judge . ~ Judge