1-7 fc ^'\ m THE HIGH COURT OF JUDICATURE AT BiLASPUR Criminai Appeal No. 273 of 2002 Applicants (tn Jail) Respondent 1. Chintaram Satnami aged about 60 years, S/o Shri Dukaiha Satnami. 2. Rajaram Satnami S/o ShriChintaram Satnami, aged about 35 years Both resident of viliage Punderdih P.S. Suhela, Distt. Raipur, (C.G.) Versus State of Chhattisgarh RflEMO OF APPEAL UNDER SECTION 374 OF THE CODE OF CRISViJNAL PROCEDURE DB: & HON'BLE SHRi JUSTICE DHIRENDRAIVIISHRA HON'BLE SHRI JUSTICE T.P. SHARMA Preserit: Shri Pawan Kesharwant, Advocate for the Appeltante. Shri Akhi! Mishra, Dy. Govt. Advocate forthe Stat©. ORDER (Passed on 11th February, 2008) 1. This Criminai Appeal is directed against the judgment of conviction and order of sentence dated 4 February, 2002 passed in Sessions Triai No. 246/01, whereby the learned Second Additionat Sessions Judge, Baloda Bazar has convicted each of the appeilants uncter Section 302 read with Section 34 of the Indian Penal Code for causing homicidai death of deceased Bishahuram and his son Ramnarayan and sentenced them to undergo Jife imprisonment and pay a fme of Rs. 1500/- each, in default of payment of fine amount, to undergo additional rigorous jmprisonment for six months each. »A y 2. Case of the prosecution, in brief, is that Chintaram Satnami had sold his land situated at Bhatakha. On 3 of June, 2001 Bishahu and his son along with Hatka Patwari Narendra Kumar, Panch Prabhu Ram Verma, Narayan, Dilip Satnami, Giresh Satnami, Parmeshwar Satnami and Mohanlal Panch ete. had gone to Phunderdih for the purpose of measurement of the purchased land. Rajaram and Chintaram also reached there and assaulted Bishahuram and Ns son with lathi andaxe and caused theSr death. tf 3. The report was given by Kishun Das (P.W.-1) vide Ex. P/1. After registering the offence, the police proceeded for ttie scene of occurrence, prepared ttie inquest over the dead body of Ramnara^in vide Ex. P/9 and Bishahu vide Ex. P/20. Their bodies were sent for autopsy to Primary Health Centre, Pallari where Dr. Prabhu Lal Chandan conducted the postmortem. The poslynortem report of Bishahu Ram is Ex. P/17 and that of Ramnarayan is Ex. P/18. On the memorandum of the appellant Chintaram of Ex.P/10, one biood stained axe, three blood stained lathis and a peace of cioth were taken into possession vjde Ex. P/4. Revenue papers-Khasra Panchshala of Ex. P/5 and copy of document B-1 of Ex. P/6were also seized. Spot map of Ex. P/9 was got prepared. Seized articles were sent for examination for confirmatlon of presence of blood to the doctor and Dr. Prabhu Lal Chandan advised for chemical examination vide Ex. P/14 A. Weapons of offence seized during investigation were also sent for examination to the Assistant Surgeon, Primary Health Centre, PalJari, vide Ex.P/16 and his report is Ex. P/16 "A" in which he advised for chemical examination for confirmation of presence of blood. Seized articles were further sent to Forensjc Scjence 1 s^ ^^ Laboratory for chemical examination vide Ex. P/25. However, the report ofthe F.S.L. was not produced during triai. 4. After competing investigation,the charge-sheet was filed in tihe Court of Judieial Magistrate First Class, Baloda Bazar, who in turn committed the case to the Court of Sessions Judge, Raipur and the same was received on transfer for trial by the learned Second Additional Sessions Judge, Baloda Bazar. 5. During trial, 12 witnesses in all were examined by prosecution. Thereafter, statement of accused was recorded in which they denied the evidence appearing against them in prosecution case and pleaded innocence and false implication. The trial court however convicted the appellants and sentenced them as mentioned in paragraph one of the judgment. 6. Homicidai death of Bishahu Ram and Ramnarayan is undisputed. Even otherwise, from the evidence of the compiainant Narendra Patwari and Prabhu Ram Verma, who are eye witnesses of the incident and the of evidence of P.W.6, Dr. P.L. Chandan, who conducted postmortem on the dead body of Bishahu Ram and Ramnarayan and proved their P.M. reports of Ex. P/17 and P/18 respectively, in which he found folSowing injuries and opined the cause ofdeathas, Shock due to excessive bleeding on account of internal tnjury and the death was homicidal jn nature, it is established that the death of Ramnarayan and Bishahu Ram was homicidai in nature. InLyiies^fBishahyRa^^ I. Lacerated wound below nose of size 3.5" x 1" x O.S" jrregular border. (^. ^^* h— i!. Lac^rated wound over the parietal bone of size 3° x 1" x 0.5" edge irregular border clotted biood was present. iil. Black cotoured clotted blood on the right sjde of the chest on dissection 4th, 5th, 6th and 7th ribs of right side was found broken. Face bone mandible, maxitla and nasal bone were found fractured. The injuries were antemortem and cause of death was shock due to excessive bleeding, as a resuit of injury to the chest, the death was homjcidal in nature. Iniuries of Ramnaravan:- 1. Lacerated wound over right side of the chest of size 5" x 1"x 1" borders were irregular and blood was clotted and on opening 4th, 5th, 6th and 7th ribs was found fractured. Facial bone, mandibie maxilla nasal bone were fractured and cause of death was shock due to excessive bieeding, as a result of above injuries, the death was homicidal in nature. 7. Learned counsel for the appellants submits that conviction of the appellants is based on the statements of Kishun Das and Prabhu Ram. The appeilants were in settled possession of the land. Th@ complainante were aggressor as they had gone with number of persons to the disputed land with a purpose to forcibly dlspossess the appeilants. The land in question is ancestral property of the appellants. Kishun Das Kotwar P.W.1, Narendra Patwari P.W.2 and Prabhu Ram P.W.3 have stated before the Court that no sooner the appellants reached there and requested them to leave the place of incident. They fled from there and thus, they had no occasion to witness the incident. Kishun Das has admitted jn paragraph 8 of his cross-examination that no assauits were made by the accused. Narendra Patwari has only steted that he saw Rajaram assaulting \<:-^.. ^ } Bishahu Ram vvith !athl and thereafter, he fled from there. Even Prabhu Ram fled from the place of incident and thus, it is clear that they are not eyewitnesses of the Incident. Lastly, itwas argued that the complainant party had gone to the disputed land with several persons to take forceful possession of the disputed land and the appeilants have exercised their right of private defence of properiy. 8. On the other hand, learned counsel for ttie State supporting the impugned judgment of the trial court, argued that from the case of prosecution itself, it is clear that deceased Btshahu Ram was the recorded owner ofthe land in question. Documents of Ex. P/5 and P/6 being Khasra Panchashala and B/1 of the disputed land clearly mention that the name of deceased Bishahu was mutated as per the order of the Tahsildar. The deceased persons hact gone with Halka Patwari, Kotwar and Panch of the village for getting the land measured and at that time, the appeilants armed with club and axe asked the other persons accompanying the deceased to leave the place and opened assault. He also submitted that P.W.1 Kishun Das, P.W.2 Narendra Patwari and P.W.3 Prabhu Ram Panch have witnessed the appellants assaulting both the deceased and immediately thereafter, dead bodies ofthe deceased were found lying on the field and there was an attempt to set the dead bodies on fire as the eye witness Prabhu Ram saw the tower portion of the full pant of the deceased Ramnarayan was burnt. 9. We have heard learned counsei for the parties and have perused the record as aiso the impugned judgment of the trial court. 10. The trial court relying upon the evidence of Kishun Das, Prabhu Ram and Halka Patwari Narendra has held that these witnesses had last seen the deceased Bishahu Ram and Ramnarayan in the company of the accused persons. They have aiso witnessed that they had assaulted the deceased persons with lathis. There is motive available to the appellants as there was a land related dispute between the deceased persons and the appellants as they had purchased the above land from Chintaram. Further, that on the disclosure statement of Chintaram, one axe, three tathis and one blood stained piece of cloth were seized and as per F.S.L. report, the clothing of deceased persons, the lathis and axe recovered on the memorandum of the accused persons were found stained with blood and thus, the triat court held that the appellants were author of the crime in question. 11. P.W.1 Kishun Das is Kotwar of the vitlage. He has deposed that Chintaram has sold the disputed land to Bishahu Satnami. He aiong with Narendra Patwari, Shivcharan Patel, Prabhuram Verma, Hariram Yadav and the deceased persons had gone for measurement of the purchased land. They were sitting under the tree and the Patwari was examining the map and Khasra ofthe land. At that time, the appellants came there, Rajaram asked them to run away as they do not have any quarrel with them and thereafter, he assauited Bishahu over his head. They all started running out of fear and while running he saw Chintaram assauiting Ramnarayan with axe and lathi. On account of the above marpit, Bishahu died on the spot and Ramnarayan also died. They went to lodge report with Baynath Dhruw and Prabhu Ram Verma to Suhela Police Station. Axe and Jathi were sejzed on being produced by Chintaram vide Ex. P/4. In paragraph 7 of his cross- examination, he has admitted that the appeilants requested him and ,^^'^%^ /fy\ i 1 i<cy|j '-^s^ ^. 12. others to leave the place, as they do not have any enmity with them. However, he has struck to his claim that after asking them to leave the place, Bishahu was assaulted by Rajaram. He has denied that the persons who had come from Baloda Bazar started marpit. In paragraph 8 of the cross-examination, he has stated that it is true to say that the assault was not made by Kulhadi (axe), though he has mentioned in the merg intimation that Chintaram was holding axe. He has categorically denied the suggestion that the deceased persons had gone to the place of incident for forcefully taking possession of the land of the appeiiants. In the examination-in-chief, this witness stated that the appellant Chintaram was holding axe and lathi and the assaults were not made by axe. He has admitted only that lathi was used for assauiting the deceased persons. There ts no suggestion to this witness that the appellant Chintaram did not assault the deeeased by lathi. Even the injuries present over the persons of the deceased were caused by hard and blunt object and in these cjrcumstances, the admission of the above witness that axe was not used for marpit cannot lead to inference that no marpit was done by the appellants. P.W.2 Narendra is Halka Patwari. He has also deposed in the same line as deposed by P.W.1 . He has stated that while he was examining the revenue records, Rajaram came there and asked the villagers to leave the place and assaulted Bishahu with lathi. He has further stated that while he was running away, Rajaram tried to snatch the map. He has reiterated his version that Bishahu was assaulted by Rajaram. He has denied the suggestion that the persons who had come from Baloda Bazar first assaulted Rajaram. The defence has not been able to elicit anything in his lengthy cross-examinatin, which makes his version untrustworthy or unreiiable. ya'^ L^- 13. The above three witnesses are independent witnesses and they have witnessed Rajaram assaulting Bishahu and Chintaram assaulting Ramnarayan. Their version is further corroborated from the statement of P.W. 3, whose presence is also mentioned in the First Jnformation Report and who has stated that they had gone to the ptace of incident aiong with the deceasedpersons, Hatka Patwari, Kotwar and other viilagers. At that time, Rajaram came there and asked them to teave the place and thereafter, Rajaram assaulted Bishahu with lathi. After Bishahu fell, both the accused persons started assaulting Ramnarayan and thereafter they fled from the spot. in paragraph 5 of his cross-examination, the omission in his diary stetement of Ex.D/1 that there was a dispute between Chintaram and Bishahu in relation to the agriculture field situated at Phundlerdih has been polnted out. Except the above trivial omission, the defence has not been able to extract substantive material contradiction in the statements of the above witnesses, which may make their version doubtful or unreliable. Thus, from the evidence of the above three wifriesses which is corroborated from the medical evidence as also the promptiy lodged First Information Report, the involvement of the accused appellants in crime in question is established. 14. Now coming to the question of the defence that the appeliants were owners of the land in question and they were in settled possession and the deceased party tried to obtain forceful possession of the disputed land, therefore, the appellants in exercise of ttieir right of private defence assaulted the deceased persons. The documents Ex. P/5 and P/6 clearly show that the Tahsildar vide order dated 12.9.20CK) had directed to mutate the record and accordingly, the ,.'::^-. i ""' '^ ^... %. B/- ^; record was mutated on 30.1 1.2000 and the incident occurred on 3rd of June, 2001. There is no evidence that there was any crop standing over the field or the deceased persons were frying to take forceful possession of the same. The only evidence is that the land was being measured at the instance of the deceased persons by the Hatka Patwari of the vjllage and therefore, the defence of right of private defence of property claimed by the appetlants was not available to them. 14. On the basis of aforesaid analysis, we are of Uie considered opinion that prosecution has proved ite case beyond all reasonable doubt and there Js no iilegality or infiirmity in the impugned judgment of the trial court. 15. In the result, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. Sd/- Dhirendra Mishra Judge Sd/- T.P. Sharma Judge