@9 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON’BLE MR.T.P.SHARMA & HON’BLE MR.R.N. CHANDRAKAR, JJ. Criminal Appeal No. 644 of 2007 Appellant 1. Dasrath (in Jail) Died and abated. Naresh Kumar Sahu S/o Dashrath Sahu aged about 30 years, R/o Village Mahuvapara Surajpur P.S. Surajpur Distt. Sarguja (C.G.) Versus Respondent State of Chhattisgarh Through P.S. Surajpur Distt. Sarguja (C.G.) (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE) Present:- Mr. J.K. Shashtri, counsel for the appeHant. Ms. Madhunisha Singh, Panel Lawyer for the State. ORAL JUDGMENT (Passed on 26‘“ August, 201 1) Per T.P.Sharma, J.:— 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 29.06.2007 passed by the Ist Additional Sessions Judge, Surajpur, in Sessions Trial No.178/2006, whereby & whereunder learned Ist Additional sessions Judge after’holding appellants guilty for commission of culpable homicide amounting to murder of Rajesh Sahu (since deceased) and for causing simple injuries to Ved Kumari, Rajni Bai and Umesh Kumar to save himself with common intention convicted l. appellants under Section 302/34 and 323/34 of the l.P.C. and sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/, in default of payment of fin e to further undergo R.l. for three months and simple j f Rs.3,000I-, in ’default of payment I imprisonment for three months & fine o of fine to further undergo simple imprisonment for respectively. compensation of R ground that without there being any iota of ,3 2. Conviction is impugned on the evidence, the trial Court has convicted & sente aforementioned and thereby committed illegality. one months, Out of the 'fine amount Court below directed to give j" s.15,000/- to wife of deceased Rajesh Kumar. nced the appellants as 3. As per case of the prosecution, on fateful day of 06.02.2006 at about nt of irrigation/taking water from water pump of present appellant, appellant Naresh and co-accused Dasrath (deceased) chased Rajesh, they were holding sticks and caused fatal injuries to 9:00 am, on accou deceased Rajesh. Appellants caused injuries to Ved Kumari, wife of deceased, Rajni Bai and Umesh Kumar. injured. His wife took him to the hos Rajesh Kumar was badly pital and also lodged F.l.R. vide EXP/6. Rajesh Kumar was sent for medical examination, PW/1—Dr. S.L. Jayaswal examined him vide Ex.P/1 and found following injuries :— (1) (2) Lacerated Blackish swelling wound on of 1”x the Wx right 1 4" eye over having right difficulty side of forehead. in opening eye. (3) (4) An Bash obliquely with swelling bash of of 2"x “X 1/2” 1/2 over “over left right hand. hand, multiple bash over j. l ‘ (5) Bash right hand, with swelling of 8"x 1/2” over right scapular region. (6) Obliquely bash of 3"X “/2 ” with swelling over left scapular region. d PW/2-Ved Kumari, wife of deceased, vide EXP/2 \ nd with complaint of pain. He has Umesh Kumar vide EXP/3 and found swelling and lacerated wound over left side of forehead. He has also examined PW/6— Rajni Bai vide EXP/4 a He has also examine and found Lacerated wound over left ha also examined PW/3— and complaint of nd found abrasion over left hand K pain in head. Injured Rajesh Kumar was shifted to Mission HospitaL Ambikapur for further treatment. He was serious and under treatment of PW/15 — Dr. Vijay Anand Singh and during the course of treatment deceased died on 07.02.2006. Death was intimated vide EXP/29 and on the basis of intimation merg was recorded vide EXP/22 and Ex.P23. After summoning the witnesses vide EX.P13, inquest over the dead body of deceased Rajesh Kumar was prepared vide Ex.P/14. Dead body was sent for autopsy to Medical Hospitai, Ambikapur. PW/4-Dr.A.Bhagat conducted autopsy vide Ex.P/8 and found following injuries. (1) Diffuse swelling over right front temporal region. (2) ' Diffuse swelling over right eyebrow and bluish colour clotted blood in right ear. (3) Incised wound over right temporal region. (4) Depressed fracture over right parietal and occipital region. (5) Fracture of frontal and parietal bone of 30 cm. in length. 4. During the course of investigation, the appellant was taken into custody. He made disclosure statement of Bahinga and lathi vide Ex.P/1O which is commonly used by agriculturist and same was recovered vide EXP/11. One wooden stick was seized from deceased co-accused vide EXP/12. Blood stained clothes were seized .vide Ex.P/7. Blood stained soil and plain soil were seized vide EXP/9. Seizedarticles were sent for chemical examination. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the ‘Code’) and after completion of investigation, charge sheet was filed before the Court of Additional Chief Judicial Magistrate Surajpur, who in turn committed the case to the Court of Sessions, Surguja (Ambikapur), which learned lst Additional Sessions =\ Judge received the case on transfer for trial. H 6. In order to prove the guilt of the accused/appellaht, the prosecution has examined as many as 15 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. He was also examined DW/1—Dr. Shashi Tirkey. As per medical examination report Ex.D/4, he examined injured appellant Naresh on 06.02.2006. y 7. After providing opportunity of hearing to the parties, learned lst Additional Sessions Judge, Surguja (Ambikapur) convicted & sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties, perused the‘judgment impugned and record of the trial Court. 9. Learned counsel for the appellant vehemently argued that in the present case there is inconsistency between ocular and medical evidence. As per specific evidence of PW/1-Dr. S.L. Jayaswal and PW/2—Ved Kumari, wife of deceased, appellant Naresh caused injury over head and eye of deceased Rajesh Kumar by stick and bahinga object commonly used by agriculturist but no injury of such weapon was noticed by the Dr. He also argued that this is a case of free fight. Both the parties had quarreled and complainant party was also assaulted appellant Naresh and his father Dasrath, but reason best know to the prosecution, prosecution has not explained injuries found over the body of appellant although investigating ofhcer has admitted the fact that he had noticed injuries on the body of appellant & his father co-accused Dasrath (deceased) and he had send them for medical examination. He further argued that complainant party has hrstly attacked upon the appellants, thereafter in order to save @ themselves, in exercise of right of private defence they have caused minimum injuries and not exceeded the right of private defence. He also argued that initiaiiy the case was registered under Sections 294, 506-3 and 323/34 of the IPC shows that three simple injuries were noticed, which are not sufficient for drawing inference that present appellant has not caused serious injuries with intent to cause death of deceased. Appellant has not caused homicidal death of deceased. 10.0n the other hand, Ms. Madhunisha Singh, learned Panel Lawyer for the State opposed the appeal and submits that evidence of PW/2—Ved Kumari, wife of deceased, and injured eye witness is sufficient for drawing inference that present appellant has caused fatal injuries resulting into death of deceased. After appreciating the evidence available on record, the trial Court has rightly convicted & sentenced the appellant as aforementioned. 11.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 12.ln the present case, homicidal death of deceased as a result of fatal injuries found over the body of the deceased Rajesh Kumar has not been substantially disputed on behalf of the appellant, even othenNise also it is established by the evidenceof PW/1-Dr.S.L. Jayaswal & medical examination reports EXP/1, 2, 3 and 4 that injuries found over the body of PW/2-Ved Kumar was simple in nature, evidence of PW/15 Dr.Vijay Anand Singh, death intimation EXP/29, evidence of PW/4-Dr.A.Bhagat and autopsy report Ex.P/8 that death of deceased was homicidal in nature. @v 13.As regard complicity of the appellant in the crime in question is concerned, conviction of the appellant is substantially based on evidence of PW/Z-Ved Kumari, wife of deceased & injured witness, PW/3-Umesh Kumar Sahu, PW/6-Rajni Bai and other injured witnesses. As per their evidence, on account of dispute relating to irrigation of land and taking water from same reservoir, appellants chased and caused repeated injuries over the body of deceased near his house. Other persons tried to intervene the incident then appellant along with co—accused Dasrath (deceased) also assaulted PW/2-Ved Kumar, PW/3-Umesh and PW/6- Rajni Bai. Defence has cross-examined these witnesses at length. Defence has also taken specific defence that complainant party also caused injuries to them. Prosecution was under obligation to explain injuries found over the body of appellant and deceased co—accused Dasrath. ln absence of such explanation only inference would be possible that complainant party was aggressor and present appellant has caused aforesaid injuries in exercise of right of private defence. ln the present case, prosecution has not offered any explanation relating to injuries and its nature found over the body of appellant. As per evidence of PW/1—Dr. S.L. Jayaswal, he examined appellant Naresh on 06.02.2006 at the instance of police station, Surajpur, and found following three injuries. (1 ) Wound over his forehead. (2) Reddish bash over back side of right hand. (3) Pain in finger of left hand. Deceased co-accused Dasrath was also examined vide Ex.D/5 and found abrasion of 0.5x0.5 cm over forehead. PW/14—A.K. Pandey, investigating Officer has specifically admitted in para 20 of his cross- @9 examination that he had noticed injuries over the body of appellant Naresh and deceased co-accused Dasrath, therefore, he had send them for medical examination. As per EXP/25 and EXP/26 appellants were arrested on 08.02.2006 but as per Ex.D/4 and Ex.D/5 appellant Naresh and deceased co—accused Dasrath were examined by Dr. on 06.02.2006 at 7:20 and 7:45 pm shows that both the appellants were within the control of investigation agency from 06.02.2006 and there were no chance for manipulation of aforesaid injuries. ln absence of any explanation and injuries found over the forehead of present appellant and after part reveals that they had also received injuries during the course of quarrel or at the time of incident. Considering the nature of injuries found over the body of appellant & his father and the fact that appellant was having weapon, it was not necessary for him to cause more injuries or serious injuries to deceased Rajesh Kumar or his wife PW/2—Ved Kumari, PW/6—Rajni Bai and PW/3—Umesh‘ child witness, who were present near‘the house and tried to intervene. Evidence of aforesaid witnesses are sufficient to establish the fact that present > appellant along with other co-accused has caused homicidal death of deceased and caused simple injuries to PW/2-Ved Kumari, wife of the deceased, PWI-6-Rajni Bai and PW/3—Umesh, child witness. 14.As regard the question of intention is concerned, definitely at the time of causing injuries appellant and his fatherwere having right to exercise private defence to save themselves but at the time of exercising such right of private defence they have exceeded their right of private defence and caused more injun'es. ln these circumstances, act of the appellant along with other co—accused does not travel beyond the scope of Section 304 Part-H ofthe IPC. 1 5.While convicting and sentencing appeiiant under Section 323/34 of the IPC, Court beiow has not committed any illegaiity but while convicting and sentencing the appeiiant Naresh and his father deceased co- accused Dasrath under Section 302/34 of the IPC, Court beiow has committed illegality requiring reconsideration. y x 16.Consequently, the appeal is partly allowed. Conviction and sentences imposed upon the appellant Naresh under Section 323/34 of the IPC are hereby maintained. Conviction of the appellant under Section 302/34 of the IPC is altered to Section 304 Part—ll of the IPC and the appellant is hereby sentenced to undergo imprisonment for five years and pay fine of Rs.4,000/—, in default of payment of fine further to undergo R.l. for three months. Appellant is in jail from 08.02.2006 till today and has completed more than five years of jail sentence. lf he pays fine amount of Rs.4,000/— (instead of paying compensation of Rs.15,000/—) then he be released. The amount of Rs.4,000/- shall be given to injured PW/2-Ved Kumar, wife of deceased, as compensation. Vljay 2% n. r Sd/- l Sd/— T.P. SHARMA ‘ R.N. Chandrakar 3 Judge