a'a"i :;i-*2U'SSjEtS "..,--"u! ^ .^. ,rtt7 • ^^ :^ 1<" IN THE HIGH CO®RT OF JUDICATURE AT__J&BALDUE_!i..P_ GRKINAL APPEAL N •of 2000, Appellan't/Accused. .., \ln jaiFT: •" v^ Respoadent Ghaashyam"@ Talsiram son of Jodhya Bhobi, age'd about 46 years, Cultivator, &/o village. Murta, P.S. Naivagarh, Bistt: Durg M.P» . , Versus. Ihe state o£Hadbya Pradesh, Through the District Magistra- Burg Eistt; D'urg M,P. •a'c.f — -^>.-_.^_._.__.. CRmiNAL . APPEAL UEffiER SEGTIW_J74{2l OF IH3 CCBE OF CRMINAL PRCEEDURE. i. : ^ll HI6H COURT OF JUDICATURE AT BILASPUR. CHHATnSSARH (bIVISION BENCH) Criminal ApDeol No.1317 of 2000 iShanshyam © Tulsiram - Versus - State of Madhya Pradesh (now Chhattisgarh) ^ JUD6MENTFQR€ONS!t)ERAT!ON •N -.'r Sd/- L.C.BHADOO Judge HON'BLE MR. JUSTICE!t>ILIP R.bESHMUKH 3^ <a-^/v«-c . 6 / , S(V- . i 1 Dhu-endraMishra| Judge TE^OTTW" H ^m i! il s POST:FORJUE)6MENTON|/ ,'1<.\ Ka Criniinal Appeal No.1317 of 2! 6hanshyam @ Tulsiram - Vsrsus- State of Madhya Pradesh (now Chhattisgarh) Kresent: Mr. V.D. Bajpai Sr. Advocate with i'Ar, Ashok Das Vaishnav. Advocate: ter. M.P.S. Bhatia & Mr. Akhil Mishra, Panel Lawyers: For the appellant. For the State/respondent. DIVISION BENCH: , bILIP R. &E JU&6MENT (Deliveredon i^t- Julv. 2005) 'hefoilowin9juclgmentoftheCourtwasdeliveredbyZ.i£'. Bhadoo, J1.- 1. By this appeni under Section 374 (2) of the Cr.P.C. the accused/appellant has questioned the legality of the judgment of conviction and sentence dated 16-3-2000 passed by Learned Additional Sessions Judge, Bemetara, District Durg in S.T. No.195/98 whereby learned Additional Sessions Judge after holding the accused/appellant guilty for the commissipn of the offence under Section 302 of the I.P.C., sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.I. for 2 months. He also convicted ^the accused/appellant for the cornmission of the offence under Section 324 of the I.P.C. and sentenced him to undergo R.I. fpr 2 years and to pay a fine of Rs,200/-, in default of payment of fine to fyrther undergo R.I. for 1 month. However, iearned Additional Sessions Judge acquitted co- lisH l;;ll ^. accused Sahetrin Bai, wife of the accused Shanshyam, from the charge under Section 302 read with Section 34 cndcharge under Section 324 read with Section 34 of the I.P.C. 2. The prosecution story, in brief, necessary for the disposnt of this appea! is that on 11-4-98 at about 8 am in the morning complainant Leela Bai along with her father-in-law Sokui Sahu and Ssster-in-law Munni Bai went to Aabadi lcnd and they started removing sand after digging the !and. At that time, accused/appeliant fihanshyam appeared on the scene and asked them as to why they are digging the iand and started disputing, He snatched the pickaxe from Leela Bai nnd attacked 6okul Sahu, father-in- law of Leela Bai with the said pickaxe on his head, c'lnest and back. As a result of receiving the injuries inflicted with the pickaxe, 6okul Sahu succumbed to the injuries instantaneously on the spot. VVhen Leela Bci went to intervene 'm order t6 rescue &okul, the accused/appellant atsc assaulted her with snme pickaxe on the back, as n result of which she aiso received simple injucy and blood started oozing out of the injury. The incident was witnessed by Konda Sahu, Budhariya Bai and Uunni Bai. Sahetrin Bai, wife of the accused, was also present there, she exhorted to kifl them. When the complainant started intervening, Sahetrin Bai caught hold of her hands and then ©hanshyam assaulfed her with the pickaxe. Leela Bai immediateiy left for the Police Station and reported the mort'ter st Police Station Navagarh, upon which the Police registered the crime at 5. No.34/98 under Section 302 df the I.P.C. vide Ex.-P/l. 3. After registering the case, the Investigating Officer prepared the rnerg intimation Ex.-P/Z. Under Ex.~P/3 he took into possession The blouse of Leela Bai. Leeia Bai was medically examined by the doctor and the dpctor prepared injury report Ex.-P/5. The doctor ojso prepared the inspection reports Ex-P/6, Ex.-P/7, EX.-P/S <S Ex.-P/9of plQi'n soiE and biood ^tained soii, ciothes of the accused, the blouse cnd the pickaxe respective y. The site plnn Ex.-P/lO was prepared by Pctwari. The Investi3atin9 Officeri ?a^~- -..^... ;f: aft'er issuing the notice Ex-P/11 to the witnesses prepared Panchanama of the dead body Ex.-P/lZ. He sent Ex.-P/13 request for postmortem on the dead body of G'okul. The doctor after conducting postmortem; prepar-ed postmortem report Ex.-P/4. Under.Ex.-P/14 the blood stained soii anc! plain soil were taken into possession from the scene of occurrence. Ciuring the investigation, the accused gave memorandum Ex.-P/16 under Section 27 of the Indian Evidence Act to the Investigating Officer and in pursuance thereof he got recovered the pickaxe under Ex.-P/17. The clothes of the accused were taken into possession-.under Ex.-P/lS. The recovered articles were sent for chemical examination to the Forensic Science Laboratory under Ex.-P/26 and report (Ex.-P/28) was received. 4, After completion of the investigation, charge sheet was filed before the Courf of Judicia! AAagistmte, 1 Class, Bemetara who committed the case to the Sessions Judge, Eiurg, from where learned Additional Sessions Judge received the case on transfer. Learned Additional Sessions Judge affer hear-ing the arguments of Additional Public Prosecutor and counsel for the accused and perusal of the records, framed the charges agdinst the accused which w/ere denied by the accused who c'.aimed to be tried. 5. The prosecution in order to prove the charge against the accussd persons examined as mony as 14 witnesses. Learn.ed Additional Sessions Judge recorded the statements of the accused persons under Section 313 of the Cr.P.C. Accused/appellant ©hanshyam in his statement stated fhat witnesses are faise, he is innocent and he has been faisely implicated in the crime. Similar* statement was made by Sahetrin Bai. wife of the accused. After heoring the arguments of iearned Public Prosecutor and counsel for the accused persons ond placing reliance on the prosecution evidence, learned Additional Sessions Judge passed the impugned judgment convicting and sentencing the accused/appellant nnd acquitting co-accused Sahetrin Bai,wife ofthe accused/appellant. K3• V] 4 tc-' 6. We hc.ve heard Mr. V.D. Bajpai, Sr. Advocate w/ith AAr, Ashok tSas Vaishnav Advocate for the appellant and Mr. AA.P.S. Bhatia with Mr, Akhil AAishra, Panei Lawyers for the State/respondent. 7. Ae far as the question of death of fiokul Sahu being homicidal is concerned, the same has not been djsputed by iearned counsel for the accused/appellant. PW-4 &r. Satish Kumar Sharma has stated that he conducted the postmortem on the dead body on 11-4-98 at about 1:30 pm and he found that there was lacerated wound on the midd!e of frontal region of fore head. Clotted biood was present in the size of 1 i- " xl/2". Fractured piece of skul! bone was fy'ing inside. The torn meninges ond brain matter w/ere lacerated and mixed blood ciots associated complete fracture of middle of right half of frontnl bone extending from wound, margin appears to be sharp but internal structure laceratsd if/ound is horizontai in direction. Lacerated punctured wound under the right armpit in the size of 1 i- "x ? " and dry clotted blood wos present extending up to right side of underneath chest involving fracture of 2 , 3rd, 4 ribs filled with blood, subcutaneous tissues lacerated. Lacerated punctured wound behind the base of ri9ht side of neck in the size of 1 ^" x I- "x 3 deep dissection laceration of underlying structure with a fracture of 8+ cervical. &ry clotted b!ood was present. Ldcerated punctured wound in front of left chest in the size of 1 |- " xl/2" extending deepiy in ieftchest cavity. Lacerated u/ound in ths size of 2"xl/2"x skin and muscie deep on the middle and laterai aspect of "ight arm and dry clotted blood was present. In the opinion of the doctor, the probabie cause of death was muitiple deadiy homicidal u/ounds involving vita! structures, brain and lungs with profuse blood and the nature^ of the death w/as homicida!. PW-3 Leela Kumari, PW-1 Munni Bai, PW-6 Shivkumari and PW-7 AAe9hnath ore the eyewitnesses to the incident and they have categoricaily stated that the accused/appellant assaulted;(?okul with the pickaxe on his head, chest and back. Therefore, in view ofthe 4t above evidence. the triai Court has rightly held that the nature of death of 6oku! was homicidai. Now, coming to the involvement of the accused/appei'ant in comniitting murder of 6okul, PW-3 Leela Kumari, PW-1 Munni Bai, PVI/-6 Shivkumcr-i and PW-7 AAeghnath were the eyeu/itnesses to the incident. Just cfter the incident, PW-2 Jagdishram and PW-9 Thakurram, reached on the spot. All these witnesses have categorically and consistently stated that in the mor-ning at about 8 am Leela Bdi PW-3, along with PW-1 teunni Bai and deceased Sokul wsnt to the land. When they started digging the iand, the accused/appellant co.me on the scene and started hurling abuses. He snatched the pickaxe from the hand of PW-3 and thereafter fiokui (deceased) asked the accused/appellnnt as to why he is taking awoy their pickaxe. t-fe tried to take back the pickaxe and in that process, both of them started pulling the pickaxe to their side. The accused/Qppei!cnt took 6okul towards the house of Dayaram and there he attacked 6okul with the pickaxe on his head, chest nnd back, as a result of whjch 6okut recejved as many as 5 lacerated wounds and out of which the head and chest injur'ies were found to be fatal to the iife as per medical;evidence. The tria! Court after analyzing the evidence and cross-examination, reached to the conciusion that all the four witnesses were eyewitnesses to the incident and they witnessed the crime. Leela Bai from lu/hom the accused snatched the pickaxe when tried to intervene and r-escue fiokul, the accused/appellant also assaulted her with the same pickaxe, as a result of which she received simple injury on the back which is evident from the injury report Ex.-P/5. We have also perused the evidence. We do not find any reason to differ from the finding of the trial Court that all these witnesses were eyewitnesses. One of the eyewitnesses named in the F.I.R. namely, Konda Sahu could not be produced as he died and! Budhariya Bai was also not produced. The trial Court also held that even: though the names of eyewitnesses Shivkumar! and AAeghnath do not find; place in the first inforrnation report, but in view of the evidence on l*' record and the fact that they are the residents of same vicinity, therefore, their presence could not be doubted. We do not find nny infirmity in the above finding of the trial Court after perusing the evidence of these eyewitnesses that they witnessed the crime and the accused/appeliant was the author of the injuries received by 6okui. In the cross-examination ofthese witnesses defence counsel could not elicit anything which makes the evidence of these witnesses unreiiable. The presence on the scene of occurrence of these witnesses cannot be doubted. The evidenee given by these witnesses is corroborated by the medicai evidence and one witness 'Leela Bai if/as injured in the same incident. It is tr-ue that ali of them are related o," are from the scme caste 'Sahu', but merely on this ground their evidence cannot be disbelieved. The postmortem report ofthe deceased in which 5 lacerated wounds were found on the head, chest, hond and back of the deceased corroborates the evidence of these eyewitnesses. Even the pickaxe was taken away by' the nccused which was recovered by the Investigating Officer from the possession of the accused in pursuance of the information given by the accused Ex.-P/16 and that has been proved by the witnesses of two documents viz. memorandum and seizure memo by PW-13 Shiv Kumnr and PW-14 Sahbir and Investigating Officer Loxmiprasad (PW-11). Therefore, in view of the evidence of these witnesses, medica! evidence and recovery of the weapon of offence at the instance of the accused proves the fact that the accused was the person who attacked the deceased with the pickaxe which wos recovered from him. Therefore, argument of learned Senior Advocate about the innocence ofthe accused has no w/eightage and the saine is without substsnce, Learned Senior Advocate urged that when the compiainant party started damaging the msdh (ridge), which was between the !and of the corr.plainant party and the accused persons, the accused/appellant came armless on the spot and objected the some. 1-tow/ever, the complainant party did not stop. Therefore, the act of the accused/appellant falls 7 iroperty. ble Apex under the category of right of private defence of the Learned Senior Advocate relied upon the judgment of the Hon' Court in the matter of SUBRAttANI AND OTHERS ^RSU; TAMIL NADU reported in 2002 Cri.L.J. 4102. He aiso relied upon decisions in the motters of RAte NARAIN & OTHERS UTTAR PRA&ESH reported in AIR 1972 SUPREME n EH >TATE QF RAJASTHAN reported in AIR 1972 S ST At this stage, it would be profitable to have glance over the provisions of right of privote defence before discussing the arguments ndvanced by !earned Senior Counsel for the accused/appellant. Section 96 ofthe I.P.C. envisages that 'nothing is an offence which is done in the exercise ofthe right of pnvate defence' Section 97 env!sa9es that 'Every person has a right, subject to the restrictions contamed m section 99, to defend— First—Hi'sown body, and the body of any other person agaifist any offence affecting the human body; Secondly—Theproperty, whether movabte or immovabSe, of himself or ofany other person, agamst afiy act whi'ch i's an offence falimg under the definition of theft, robbery, mischief or criminal tfespass, or whsch is an atl'empt to commit theft, robbery, mischief or criminal trespass' Section 99 envisages that 'There is no nght of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be str-ictlyjustifiable by law. There is no right of private defence in cases in which there istime to have recourse to the protection of the pubiic authorities.' Further envisages that 'The right of private cfefence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpqse of defence.' Clause 1 and 2 of Section 100 envisages that 'The r'ight of f';- private defence of the body extends to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated namely;- (1) Such an assault, as may reasQnably cause the apprehension that death uvil! otherwise be the consequence of such assau!t; (2) Such an assault as may reasonably cause the apprehension that grievous hurt wilS otherwise be the consequence of such assault.' ss enviscges that The r-ight of private defence of the body commences as soon as a reasonable apprehension of danger to the body orises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.' Section 103'envisages that 'The right of private defence of propert^' eKf'ends, under the restrictions mentioned in section 99, to the votuntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to conrimit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter- enumerated, namely theft, mischief or house-trespass, under such circumstances as rnay reasonobly cause apprehension that death or grievous hurt wilt be the consequence, if such right of private defence is not exercised, B 12. The right of private defence rests on three ideas: (1) there must be no more hnrm inflicted than is necessary for defence; (2) There must be a reasonable apprehension of danger to the body frorn the attempt or threaf to commit the offence; and (3) The right of private defence is subject to r'estrictions imposed by Section 99 and the right is co- ter'minus with the commencement and existence of a reasonQble apprehension or danger to body from an attempt or a threat to commit the offence. It avails only Q9ainst a danger, real and imminent. 13. Now, in the light of above !nw regarding right of private defence, if we exomine the case in hand, in the present case, there is categorical finding of the trial Court that the complainant party was digging their own icnd. They had not trespassed on the land ofthe accused. In this connection, if we iook Into the evidence of Patwari (PW-8) who prepared the site planof the scene of occurrence Ex.-P/lO, he has categorically stated that the deceased party was digging towards the land of Jagdish, son of the deceased and they had started digging on the Medh (ridge) on the side of Jagdish, The witnesses informed that the Medh was between the 'and of Jagdish and ©hanshyam. He had not measured that in whose iand the Medh wcs existing. He has further stated that it is incorrect to saythat the father of Jagdish and others trespassed. It was informed to him that Jagdish, son of the deceased, was already in possession of the land and it is incorrect to say that they had started digging on the side of Shanshyam. PW-11 the Investigatin9 Officer hos clearly stated that at about 9:20 am on the date of the incident i.e. 11-4-98 he inspected the site nnd prepared the seizure memo which bears his signatures 'b' to 'b'. He took into possession the blood stained soil and p!ain soi! from the place of occurrence. In para-5 of his evidence he has clearly stated that at S. No.l in the map the iand was in possession of &okul and that land is (3-overnment land u/hich was under the unlnwful possession of fiokui. The iand at 5. No.5 belongs to accused fihanshyam and the deceased wcs digging at S, No.l in his own land and that iand was in possession of 6okul. In the site plan prepareid by the Investigating Officer at S, No.l the place of di9ging has been shown in the red ink and that has been shoiwn in t'ne possession of 6okul, Therefore, in view of the above evidence, fioku! and others we'fe digging on 1-he fiovernment land which was under their possession, therefore, the trial Court has rightly held that the place ivhere the complainant party s/as digging was not beionging to the accused/appellant. As such, in the circumstances, no right of private defenceto the propertywas availabie to the accused/nppellant. ^ ; 'sw 10 Now, coming to the right of private defence regarding person, learned counsel for the accused/appellant argued that the accused/appellant went armless on the site and the complainant porty started quarreiling and tried to assauit him and it has come in the evidence that the deceased and the accused were pulling the pickaxe on their side and in that process.the deceased received injuries, therefore, the accused cannot be held r-esponsible. But, this argument has also been rejected by the trial Court and after perusing the evidence of eyewitnesses namely, PW-3 Leela Kumari, PW-1 Munni Bai, PW-6 Shivkumari and PW-7 Meghnath in which they have clearly stated that the accused/appellant snatched the pickoxe from Leela Bai and thereafter, when 6oku! tried to take back that pickaxe saying that why the accused/appeliant is taking the pickaxe, in that process, both ofthem started pullingthe pickaxe towards their Side. The accused pulled the deceased towards the house of Dayaram and at that place the accused/appellant attacked the deceased with the pickaxe and took that pickaxe to his place from where it was recovered at his instance under his memorandum. Therefore, merely saying that +he accused went on the scene of occurrence armless and the complainant party u/as having arm, therefore, the right of private defence to the person extending the death of fiokul arose to ths appellant cannot be considered to be genuine. In the first instance, there is nothing on "ecord that the accused received any injury what to talk of any grievous injury which was caused by Sokul and there is no such suggestion in the cross-exomination of the witnessss that the accused/appellant received injury from the pickaxe coused by 6okul. As has been mentioned above, the right of private defence to the body is subject to restrictions imposed in Section 99. The of private defence rests on the ideas that there must be no|more inflicted than is necessary for defence and there must be a reasonable apprehension that death or grievous hurt wil! be the consequence, if the right of private defence is not exercised. In this case, there was no reasonable apprehension to the accused/appellant that II the complainant party is going to nttack him with any deadiy weapon, as the pickaxe was alrecdy snatched by him and even from 6okul he snatched and attacked fiokui with scme pickaxe. Therefore, when the pickcxe came into exclusive possession of the accused/nppellant, there s/as no apprehension or danger to the cccused/appellnnt, as such there wos no reasonable apprehensjon commenced. As per- Section 102 ofthe I.P.C, the right of private defence continues as long as such opprehension of danger to the body continues. As per the provision of Section 102, the accused/appellant was not entitled to attack 6oku! with the pickaxe, a; there wos no apprehension of danger to the body of the accused/appellant. The moment the accused/appellant snatched the pickaxe frorn fiokul right of private defence terminated with that action, as the right of private defence isco-ter-rninus r/ith the commencement ond existence of a reasonable apprehension or danger' to body from an attempf or a threat to commit the offence, Therefore, we do not find any substance in the argument of ieorned counse! for the accused/appeltant that the injuries were inflicfed by the accused/appellant while exercising the right of privnte defence of person, rather the accused/appisllant assaulted 6oku! mercifessly as a result of which he received as many as 5 lacerated wounds resulted into fracture of skutl and ribs. 15. Now, coming to the Judgments cited by lear-ned counse! for the accused/appellant, the matter of Subramani and others (Supro) is of no help to the accused/appellant on facts as in that cass the accused party was jn possession of the field (disputed place) since !ast 50 years. AAoreover, in that case, the appeilants No.2 and 3 received injuries onthe head and vitdl part of the body, therefore, the right of private defence was held to be avai'lnble to the accused party u/hich was not the fact in this case. N 12 16. Similarly, in the matter of Ram Ncraln & Qthers (Supra), the facts of that case were that when accused Ram Narain and others reached on the spot to cut the tree, deceased Sarabjit, (?ur Prasad and the wife of Sarabjit came on the spot where the tree was. They asked Ram Narain not to cut the tr-ee. Then Ram Narain, his son Hari Prasad, Jag Mohan and (Shasitey shouted that Sarabjif and his wife nnd their son should be kitied. They then assaulted them with lathis. Sarabjit, his uvife and son tried to run away. When they reached the neighbouring field of Sr'i Krishna, the ofher appeilants surrounded them so that they couid not run away and further injur'ies were inflicted onthe instigation of those persons by Ram Narain and others. The defence of.Ram Narain and Hari Prasad was that they had acted in self defence. While they were cutting the mango tree which they were entitled to do, Sarabjit and others came and assnulted them with lothies and they hnd to inflict blows in self defence. The Court while reject-ing the right of prsvate defence heid that "the deceased had five injuries, three of which were contused wounds mainly on the head o" in the region of head and the medical evidence showed that there w/as fracture of the skuil, and similar