':i^fs^^ii]Si!ii^si-^1:i^it^^^ HIGH COURT OF CHHATTISGARH. BILASPUR DIVISIONBENCH CORAM: HON'BLE MR. T.P. SHARMA AND HQN1BLEMR;R.L.JMANWAR,JJ, Criminal Appeal No.547 of 2004 Modak Lal -Versus- State of Chhaftisgarh \:: JUDGMENT FOR CONSIDERATION HON'BLE IVIR. JUSTICE R.LJHANWAR Sd/- T.P. Sharma Judge \ ^•. an: 3uAse ^ar ;\... Post for Dronouncement of iudament On 6th SeDtember. 2010 Sd/- T.P. Sharma Judge ^ HIGH COURT OF CHHATTISGARH. BILASPUR DIVISIQNBENCH :,!t, ./I .•",(.'-•,.:•"•'•. CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLEMR.R.L.JHANWAR,JJ. APPELLANT: (InJailCustody) RESPONDENT: Criminal Appeal No.547 of 2004 Modak Lal, aged 45years at present age 58 years, son of Shri Jaipal Satnami, resident of village Dharampura, police station Jarhagaon, district Bilaspur (Chhattisgarh) Versus State of Chhattisgarh, thrpugh the pplice station Jarhagaon, district Bilaspur (Chhattisgarh) {Crjmihal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mrs. Kiran Jain, counsel for the appellant. Mr, Neeraj Mehta, Panel Lawyerfor the State/respondent. JUDGMENT ^th (6tnSeptember,2Q10) The Judament ofthe Court was delivered by T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 26-4-2004passed by the 2ndAdditionalSessionsJudge (F.T.C.), Mungeli, in Sessions Trial No.420/2003, whereby & whereunder leamed Additional Sessions Judge after holding the appellant guilty for commissjon ofculpable homicide amounting to murder of Uttimdas @ yttamdas, attempt to commit murder of Sadaram and illicit possessibn of prohibited arm knife, convicted the appellant under Sections 302, 307 of fhe I.P.C. & 25 (1B) (b) read with Section 4 of the Arms Act, 1959 and sentenced him to undergo imprjsonment for life & pay fine of Rs.2,000/-, in default of payment of fine to further undergo R.l. for one year; to' undergo R.l. for ten years & pay fine of Rs.1,500/-, in default of payment offineto further undergo R.l. for one year; and to undergo R.l. for three years & pay fine bf Rs.1,000/-, in default of payment offine to further yndergo R.l. fpr six months, respectively. ^l,.""v, 1 ^ 2. Conviction is impugned on the ground that without any iota of eviclence and without considering the defence of the appellant that firstly the appellaht was assaulted by the complainant party then in right of exerciseof private defence he has caused minimum injuries to save himself, the trial Court has Gonvicted & sentenced the appellant, and thereby committed illegaljty. 3, Case oftheprosecution,inbrief, is that on the fatefuldayof 19-7-2003 at about 6 p.m. Sadaram (PW-1) - injured witness & father of Uttamdas (since deceased) was present in his house; his grandson Prampd came to him and informed that the appellant iscausing injuries tp Uttimdas @ Uttamdas by knifeon whichhe rushed to the spot and tried to save his son whereupon the appellantassaulted him also by knife over his abdomen; other witnesses Dharmendra & Rajendra tried tp save him; Uttamdas was badly injured. Sadaram (PW-1) went to the police statiQn and lodged FIR vide Ex.P-1. Uttamdas & Sadaram were senf for medical treatment and examination to • Community Health Centre,, Myngeli. Uttimdas @ Uttamdas was examined by Dr. G.K. Suryawanshi (PW-20) vlde Ex.P-19 and following injuries were found on his person: - (1) Incised wound with bleeding overleft arm of 3" x 1^" x 1A". . (2) Incised wound with bleeding over left thigh of2" x 1/2" x1/^". (3) Incised wound with bleeding upon left side of chest on lower costal sternumendof3"x1"x1". Uttimclas @ Uttamdas was referred tp Surgical Specialist, CIMS, Bilaspurfor furthertreatment. During the course of treatment, he died 6n 20-7-2003 at about 4 p.m.. Merg was intJmated vide Exs.P-12 & P-31. Injured Sadaram was also examined by Dr. G.K. Suryawanshi (PW-20)' vide Ex,P-20 and ineised wound with bleeding of1" x 1" x 1" on lefttower costal margin of chesl was found, he was also referred to Surgical Specialist; CIMS, Bilaspur for further treatment. Blood stained shirt was seized from Sadaram vide Ex.P-2. After summoning the witnesses vide Ex.P-3, inquest over fhe dead body of Uttimdas @ Uttamdas was prepared vide Ex.P'6. Blood stained cloths were seized from Sadaram vide Ex.P-SA. Dead body of Uttimdas @ Uttamdas wasSent for autQpsy to MedicalCollege, Bilaspur vide Ex.P-17A, autopsy was conducted by Dr. P.C. Sahoo (PW-15) vide Ex.P-17and fpllowing injuries were found: - (1) Stitched wound below right axila, blood mixed air was coming out fromthe injury. ^. (2)Stitched stab woynd of 7 cms. length over left chest which was' ' surgically treated up to chest cavity deep. (3) Stitchedstab wound over left axila up to chest cavity deep. (4)Stitched woundover leftshoulder. (5) Stitched wound over left thigh. On jnternal examination, right lungs were found cut and one litre blood was found inside the foresic cavity, liver was also found fractured and mode of death was shock. During the course of inyestigation, the appellant was taken into custody on 21-7-2003, he made discloser statement of knjfe Goncealed under thegrass vide Ex.P-6A and same was recovered at the jnstance of the appellant vide Ex.P-7. • Bloocl stained clqthes after removing from body of the appellant were seized vide Ex.P-8. Blood stained & plajn soil were recovered from the spot Yide Ex.P-10. On the basis of jntimatipn by doctor vide Ex.P-11, merg was recorded vide Ex.P-12. Patwari prepared spot map vide Ex.P-13. Sealed clothes of the deceased were seized vide Ex.P-16. Knife was examined by Dr. G.K. Suryawanshi (PW-20) vide Ex.P-22. Other articles were also examined by the doctor; Seized articles were sent for chemjcal examination vide Ex.P-34 and presence ofblood over knjfe& clpthes of the appellant was confirmed by the chemical examiner vide, ,; Ex.P-36. The Investigating Officer also prepared spot map vide Ex.P-38. 4. Statements of the witnesses were recorded under Seetion 161 of the Cr.P.C. arid after completion of jnvestigation, charge sheet was flled before the Court of Judidal Magistrate First Class, Mungeli who commjtted the case to the Court of Sessjons, BJIaspur, from where the 2nd Addjtional Sessions Jydge (F.T.C.J, Mungeli, recejyed the case on transferfbrtrial. 5. In orderto prove the guilt ofthe appellant, the prosecutjon has examined as many as twenty-No witnesses. The sfccused was examined under- , Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. The appellant has taken specific defence that Sadaram, Ramkalesh & Rajendra three persons threatened him and assaulted with stick & knife; deceased Uttimdas @ Uttamdas was holding him at the time of incident, SadaFam tried to assault him with knife and at that time he some how saved himself and Uttimdas was injured by the assault of Sadaram. Ear of the appellant was cut, he went to Police Station Mungeli for Ibdgjng /' • ' .f-;-•'.•.••'"'' ^^.^^^^^v^^w^w^^,"'. Feport, he was examined bythe doctorand he has not committed any offence. The appellant has examined defence witness Chandra Kishore Chauhan (DW-1) - employee of jail who hasdeposed that during judicial custodyof the appellant, the appellant was examined by X-ray specialist vjde Exs.D-6 to D-8. Another defence witness Dr. G.K. Suryawanshi' (DW-2) has deposedthat on examination of the appellaht on 24-5-2003 vide Ex.D-5, one lacerated woundoverleftearandcontusion,swelling& abrasion were foynd over the body pf the appellant. yishnu-Prasad Dubey (DW-3) - Cpnstable has proved roznamcha Ex.D-10. Anand Das (DW-4) has deposed that at the time of incident deceased Uttimdas & the appellant were quarrelling for the last one-two hours then Uttimdas called his father Sadaram whereupon Uttimdas, Sadaram & two bther perspns, tbta! four persons, quarrelled with the appellant. Dular Sai (DW-5) - Constable has proved Ex.D-5, requisition for examination of the appellant. Likewise, Tulsi Das (DW-6) has deposed that Uttimdas & Niranjan took him to Dharampura from village Sodhar where they assaulted him. Q. After affording opportunity of hearing tp the parties, learned Additional Sessions Judge cpnvicted & sentenced the appellant in the aforesaid manner. 7. We have heard learned counsel for the peirties, perused the judgment impugned and record ofthe trial Court. 8, Leamed counsel for the appellant vehemently argued that deceas^d' Uttimdas @ Uttamdas, Sadaram & two other persons have firstly assaulted the appellant, deceased Uttimdas was hplding the appellant and when Sadaram was trying to cause injury to the appellant, the appellant twisted his head and thereby deceased Uttimdas sustained the irijury caused by his father which resulted in the death of deceased Uttimdas @ Uttamdas. The complainant party has badly injured the appellant, doctor has examined theappellant and found five injuriee ori his person. The compiainant party was four persons and the appellant was only pne person, the appellant has caused injury to the complainant party but has not caused the death of Uttimdas. Even otherwise, the appellant was entitled to protect his body by causing minimum injuries. In case pf threat or danger to life of person it would not be possible to presumethat howmuch injurywouldberequiredforsavingthepersonor '•.^.: '&'y' '::^^r;'^' property, it cannot be measured in goiden scale. Injuries found over the body ofthe appellant are not trifle, six injuries were found over the body of the appellant whichshows that his life was in dahger, but the trial Court has not considered the aforesaid facts and the right available to theappellant. 9. Qn the other hand, learned State counsel opposed the appeal and submitted that by adducing cogent and clinching evidence the prQsecutJon hasproved itscasebeyondallreasonabledoubts.Evidence, of injured witness Sadaram (PW-1) is sufficient for drawjng jnference that the appellanthas caused culpable homicjde amounting to murder of Uttrmdas @ Uttamdas and has attempted to commit the myrder of Sadaram. After appreciating the evidence, the trial Court has righlly CQnvicted & sentenced the appellant. 10. In order to appreciate the arguments advanced dn behalf of the parties, we have examined the material available on record. 11. In the present case, homicidal death of Uttimdas @ Uttamdas as a result offatal injuries found over his body and fatel injuries foundoverthe body, of injured Sadaram (PW-1) have not been substantially disputed on behalf of the appellant. Even otherwise also, it is established by the evidence of Dr.G.K. Suryawanshj (PW-20), medical examinatjon report pf deceased Uttimdas Ex. P-1 9, medical examination report of injured Sadaram Ex.P-20, evidence Dr. P.C. Sahoo (PW-15) and autopsy report Ex.P-17, that lungs & liver of cleceased Uttimdas were fpund cut by stab injury and death of deceased Uttimdas was homicidal in nature. Likewise, stab jnjury was found over the chest of Sadaram which was faital in nature. ../' 12.As perthe defence evidence, the appellant has lodged roznamcha Ex.D- 10 pn 19-7-2003 atabput 6 p.m, in which it has been mentioned that at the time of incident Sadaram, Uttamdas, Ramnath & soh of one Raju assaulted him by stick and caused injury over his ear; he was sent to hospital for medical examination on the same day vide Ex.D-5 and he was examined by Dr. G.K. Suryawanshj (DW-2), who has also examined injured Sadaram & deceased Uttamdas, on 19-7-2003 at 8 p.m. vide Ex.D-SA and following injuries were found on his person: - (1) Lacerated wound of 1" x ^" x %" over pinna of left ear. (2) Contusion of 6" x 1 1/^" over left supra'scapular region. '^ 'T ••^: /'. //_„- '^^ ^•^, ^f' y%i;S^' ^ -^•;V.VBlt^^ /; ^^^^ ^^•^^!" 6 M (3) Contusionof 5" x 1 l^" over left infrascapular region. (4) Swelling of 3" x 2" over left ealf muscle leg. (5) Swelling of3"x 2" over left calfmuscle leg. ,, (6) Abrasion of 2" x 1" on right knee joint. The appellant was advised for x-ray and as per the x-ray report Ex.D-7, riofracturewasfound. . 13.EvJdence of Chandra Kishore Chauhan (DW-1), Dr. G.K. Suryawanshi (DW-2), Vishnu Prasad Dybey (DW-3) & Constable Dular Sai (DW-5) are suffjcient for drawing inference that at the time of incident, the appellant also sustained aforesaid six injuries and the appellant has lodged report, in that case, the appellant wasGomplainant and, therefore, his evidence and dbouments must be given proper weightage to establish his defence. If his first report roznamcha Ex.D-10 is consideredto be true in its face value, then jt would reveal that at the time of incident Sadaram, Uttamdas, Ramnath & son of one Raju i.e. injured Sadaram, deceased Uttimdas @ Uttamdas & two other persons have assaulted him by stick and caused injury over left ear and other parts of the body. The gforesaid six injuries and lacerated woynd over pinna of left earsupport Ex.D-10. Defence is not required to prove its case like that ofthe prosecution, defence is only required to cast doubt bn the case of the prosecution or to show that the defence version may betrue. 14.EX.D-10 roznamcha and Ex.D-5A, the alleged medical examination report, clearly reveal that the appellant was not assaytted by any sharp edged weapon, thbugh he has taken specific defence in answering question No.245 put to him in his examination under Section 313 of the Cr.P.G., that when he twisted his head the attempt made by Sadaram with knjfe to cause injury to him fell on the body ofUttamdas, thereafter his ear was cut by the use ofknife. As per his defence, Sadaram was tiaving knife and has caused injury over his ear by knife and while attempting to cause injury tp him by knife, Sadaram had caused injury to Uttamdas by knife. This fact does not find.support from the immediately lodged rbznamcha Ex.D-10 in which the accused has not mentioned abput use of knife and injury caused to him by knife. IS.Another defence witnessAnand Das (DW-4) has deposed that Uttamdas & the appellant were quarrelling for the last ohe hour, thereafter Uttamdas called his father and at that time Uttamdas were four in r number and the appellant was alone. As per his evidence, he was present on the spot. As per the case of the prosecution, the appellant has paused fatal injuries by knife to Uttamdas resulting in death of Uttamdas and also eaused fatal injuries to Sadaram which find corroboration from medjcal evidence. As per the defence version, the appellant has also sustajned jnjuries which also find support from medical evidence. However, for the reasQns best known to this witness' ' ' {Anand Das (DW-4)}, thjswitnesswas presenton the spotatthe time of commission of the incjdent, but he has not stated about any of the injuries to any of the parties. 16.Another defence witness Tulsi Das (DW-6) has deposed that he was assaulted by Uttimdas & Niranjan who took him to Dharampura from his village Sodhar. We are unable to understand that how hjs evidence is relevant in this case. He has not stated anything relating to the incident and he has not lodged reportagainst Uttimdas & Njranjan. Presence of Niranjan has notbeenadmittedbythe appellant in hisdefenceorat the, y " time of lodging roznamcha Ex.D-10. The evidence of this witness is totally irrel^vant in this case. 17.As regards complicity Qf the appellant in the crime in question, cohviction ofthe appellant is substantially based on the evidence of Sadaram (PW- 1) - injuredwitness, who has deposed that at the time of incident he was present in his house; son of Uttamdas (since deceased) namely Pramod came to him and jnfprmed that the appellant is assaulting his father i.e. Uttamdas on which he went to the spot; his son Uttamdas was lying in jnjured condition; the appellant was standing near Uttamdas; when he „ asked the appellant as to why he has assaulted his son, the appellant assaylted him also with knife and caused injury over his chest; at that time, Rajendra & Dharmendra also came to the spot and they jmmediately took Uttamdas to Jarhagaon. Uttamdas made dying declaFatJon before him that the appellant has assaulted him. 18. Saheb Das (PW-2) has deposed in his evidence that he has not seen the actual incident, but the appellant, injured Sadaram, Rajendra Kumar & Jaikumar were present oii the spot where deceased Uttamdas was lying ininjuredcondJtiQn. ••.^ 19.Pramod Kumar (PW-3) - son of the deceased has categorically deposed that on the fateful day he was present near Bus Stand, Dharampura 9!PKS^ '•^. \c:''1. '••"'" 8 since 3 p.m., at aboutS p.m. the appellant'quarrelled with hisfatherand,, caused injuries by knife, then he went to his house and called his grandfather Sadaram whocame with him on the spot. Ramkalesh (PW- 6) has deposed in his evidence that the deceased has made dying declaration before him that the appellant has assaulted him. Kaliram (PW-7) has supported the evidence of Ramkalesh (PW-6). 20.As perthe evidence of child witness Pramod Kumar (PW-3) who was present on the spot and has seen the ineident, the appellant ha$ caused injury by knife to his father. In his detailed cross-examination, defence has tried to show that this witness is a tutored wjtness, but it has not been able to elicit anything in his cross-examination to discredit his testimony. In his detailed cross-examination, he has fully corroborated the case of the prosecutiQn. He js child witness, his evidence cannot be discarded only on the ground that he is child and relative of the deceased.In case of child witness, the Court is required to ensure that the child witness understands his duty to speak truth and able tp answer thequestions put to him. Defence has cross-examined this witness in detaii and this witness has answered the questions put to him. His evidence issubstantially corrpborated by the evidence pf Sadaram (PW- 1) who is injured witness. As per the eVidence of Sadaram (PW-1),< when he reached to the spot where the injured body of his son Uttamdas was lying, the accused was also present there with knife, then he asked the accused as to why he has assaulted his son on which the accused assaulted him also with knife. Presenceof the appeltant on the spot is also admitted by Saheb Das (PW-2), 21.As per the evidence of Ramkatesh (PW-6) & Kaliram (PW-7), the deceased has made oral dying declaration before them that the appellant has eaused injuries to him. Although the accused has not named Ramkalesh in Ex.D-10, the immediately lodged roznamcha, but after , examinatipn of witness Ramkalesh (PW-6), the appellant has stated in his examination under Section 313 of the Cr.P.C. that Ramkalesh was also present on the spot and has assaulted him. This shows that when Ramkalesh has suppprted the case of the prosecutjon, the appellant has stated against him. , 22.Defencehas cross-examined these witnesses in detail, but has hot been able to elicit anything in their crQss-examination to discredit their . st,' ;,^''' .".:••". . /' ' '.(•"•' /\.-.. ^- 9 evidehce. Evidence of thesewitnesses and the specific defence taken by the appellant reveals that the appellant was having knife and has caused injuries to Uttamdas& also to Sadaram and that Sadaram was not having any knife. Definjtely, the prosecution has not explained the injuries found over the body of the appellant. Although the appellant was immediately examined by docfor, but injuries foundover the body of the appellantvide EX.D-5A reveal that the injuriesWere ofsmal} dimension; eontusion, swelling &abrasion andone lacerated wound which wasalso ofsmaltdimension. 23.Although the prosecution witnesses have not explained the injuries, but case of both the parties reveal that the appellant & Uttamdas were quarrelling for some time. Theappellant was aged about 45 years and the deceased was aged about 37 years, In these circumstances, it would not be possible that the appellarit will cause jnjury and the' ' deceasedwill remain idle orthat even after causing ofsuch fatal injury to Uttamdas (since deceased), relatives of Uttamdas who subsequently reached to the spot, will remain idleor will not causeany injury or will not chase the appellant. 24.Therefore, some trifle injuries found over the body of the appellant are not only natural, but even essential to consider the human nature and normal human conduct. However, nobody will admit the fact that the deceased has committed offence or hascaused injury to the accused. But, pnly on the ground that the complainant party has not admitted ttie' ' factthatthey have caused injuries, theirevidence cannot be discarded. 25. Evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant who was quarrelling with Uttamdas has caused homicidal deathofUttamdasand has alsocausedfatal injuries to Sadaram by knife and thatthe appellantwas holding knife in yiolation of the notification issued by the State Government under Section 4 of the ArmsAct, 1959. 26,After appreciating the evidence available on record, learned Additional Sessions Judge has convicted the appellant under Sections 302, .307 of' the I.P.C. & 25 (1B) (b) read with Section 4 ofthe Arms Act, 1959 and sentenced him as aforementioned. Conviction of the appellant is based ontegal.substantiveandcQgentevidenceSustaJnableunderthelaw. ^*y..^-.5^^<«B.WW»£a&» 1.4 r^'.. ; • '^^^' 10 27.As regards sentence, learned Additional Sessions Judge has awarded minimum sentence prescribed under Section 302 of the I.P.C.. Hbwever, considering single injury over the body of Sadaram and the cjrcumstances, sentence of ten years' R.l. & fine of Rs;1,500/- imposed upon the appellant are excessive. Likewise, sentences imposed upon the appellant under Section 25 (1B) (b) read with Section 4 of the Arms Act, 1959 are also excessive. 28.Consequently, the appeal is partly allowed. Convictjon & sentences bf, the appellant under Section 302 of the I.P.C, are hereby maintained. Conviction of the appellant under Sections 307 of the I.P.C. & 25 (1B) (b) read wjth Section 4 of the Arms Act, 1959 are also maintained, However, instead of sentence of R.l. for ten years & fine of Rs.1,500/- imposed upon the appellant under Section 307 of the I.P.C., the appellant is hereby sentenced to undergo R.l. for seven years & pay fine of Rs.1,500/-, in defaultof paymentoffine to furtherundergo R.l. for one year. Instead of sentence of R.l. for three years & fine of Rs.1,000/- imposed upon the appellant under Section 25 (1 B) (b) read with Section 4 of the Arms Act, 1959, the appellant is sentenced to undergo R.l. for' one year & pay fine of Rs.1,000/-, in default of paymentoffine to further unclergoR.l.forsixmonths. I Soma Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ..^:'. ^A; > ./1.' • ^••^ •:"••".