Af^ HIGH COURTOF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal ADpealNo. 176 of 1993 Rajkumar Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- SuniIKumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA <. 5 Sd/- Chief Justice PostforJudgment :/^/11^010^ Sd/- Sunil Kumar Sinha Judge J. BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.06 13:09:10 +0530 HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta.^,J. & Hon'ble Shri Sunil Kumar Sinha^ J. c APPELLANT Criminal Appeal No. 176 of 1993 Rajkumar S/o Suberam Rajput, aged 23 years, R/o Urkura, P.S. Khamtarai, District Raipur Versus The State of Madhya Pradesh (Now State of Chhattisgarh), Through P.S. Khamtarai, District Raipur. (Criminal Appeal under Section 374 (21 of The Code of Criminal Procedure. 1973) RESPONDENT Appearance: Noneforthe appellant. Mr. Akhil Mishra, Dy. Govt. Advocate for the State. JUDGMENT (ifi.11.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) This appeal is directed against the judgment dated 18th of January, 1993 passed in Sessions Trial No. 242/91 by the Third Additional Sessions Judge, Raipur. (2) By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life, ^^\ 3^ ^1—» Criminal Appeal No. 176 of 1993 (3) The facts, briefly stated, are as under:- Ganga Bai (PW-5) is wife of deceased- Chatur Bahadur. Three-four months prior to the date of inddent, Ganga Bai left the house of Chatur Bahadur and started living with the appellant as his wife. Two affidavits in this regard were also prepared by Ganga Bai (PW-5) and the appellant. The affidavits are Ex.-PM & P/5. After 3-4 months, Ganga Bai returned to the house of the deceased. The case of the prosecution is that on 4.3.91, the appellant came to the house of the deceased and demanded those affidavits. The deceased and Ganga Bai denied to give affidavits to the appellant. The allegations are that while the deceased and Ganga BAi were going to Urla, the appellant came there and assaulted the deceased by knife. The deceased received various injuries, out of which, the injuries on the chest and back portion of skull were fatal. Corresponding the chest injury the lung of that side also got injured. Back bone of the skull was cut corresponding to the injury of the skull. In all^the prosecution cited 8 eye-witnesses namely Gukul (PW-1), Kunwarmati (PW-3), Ganga Bai (PW-5), Lokuram (PW-9), Vimesh Kumari (PW-10), Sunita Bai (PW-11), Sukhbati Bai (PW-12) and Tirath Bahadur (PW-13). Out of the above witnesses except Ganga Bai (PW-5) and Vimlesh Kumari (PW-10 - daughter of the deceased), all other witnesses turned hostile and they did not support the case of the prosecution. Ganga Bai (PW-5) admitted that a quarrel took place between the appellant & the deceased and firstly the deceased assaulted the appellant by spear on his head, then the appellant also assaulted the deceased by knife. The appellant took the plea of right of private defence, but the said ,,.s^^^ /^^ \ @ '^SMW^ 1 x^^^.^-,<gl gy f^rf?' Criminal Appeal No. 176 of 1993 -® plea taken by the appellant, was not accepted and the appellant was convicted and sentenced as aforementioned. (4) A perusal of the records would show that the appellant took the plea of right of private defence in his 313 Cr.P.C. statement and pleaded that the deceased assaulted him by spear which hit on his head. The injury received by him was stitched by putting 11 stitches and he was treated in the jail. The appellant has also examined 2 defence witnesses namely Dr. S.K. Adwani (DW-1) and Mirza Sahid Baeg (DW-2). (5) Dr. S.K. Adwani (DW-1) deposed that according to the jail register (OPD - Ex.-D/1), the name ofthe appellant is mentioned in the said register. He deposed that the appellant has stitched wound and the wound was stitched by 11 stitches and the appellant was treated in D.K. Hospital, Raipur. The appellant was later on treated in jail hospital and his stitches were removed on 11.3.91. The entry to this effect isEx.-D/2. Mirza Sahid Baeg (DW- 2) was Assistant Jailor in Central Jail, Raipur. He proved the entries on Ex.-D/S and deposed that the appellant was brought to the jai in injured condition. He had received injury on his head and hands. (6) Now we shall examine the plea of right of private defence. (7) Section 96 IPC provides that nothing is an offence which is done in the exerdse of the right of private defence. The burden of establishing the plea of self-defence is on the accused and the ^.^. Criminal Aopeal No. 176 of 1993 ^^-) ^7 L ^. burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. The right of private defence of the body extends, under the restrictions mentioned in Section 99 IPC, 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 enumerated in Section 100 IPC. The right of private defence commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed, but not until there is reasonable apprehension. In other words, the right is co- extensive to the reasonable apprehension of the danger to the body continues. Therefore, if claim is being made that the accused acted in exercise of power of right of private defence, he must show that there were prevailing circumstances giving rise to reasonable apprehension that either the death or grievous hurt would be caused if the right is not exercised. (8) Mr. Akhil Mishra, learned counsel for the State, has argued that in the facts andcircumstances of the case, the right of private defence was not available to the appellant. We shall examine the said argument in context of the material available on record. (9) Ganga Bai (PW-5) deposed that on the fateful day, the appellant came to their house and demanded the documents (two Criminal Aopeal No. 176 of 1993 ^ affidavits) prepared and sworn by them regarding keeping this witness as wife by the appellant. That was denied by PW-5 as also by the deceased. The deceased and Ganga Bai (PW-5) then were going to Urla. The appellant came on the way and a quarrel began between the appellant and the deceased. Ganga Bai (PW-5) tried to intervene. But, the deceased firstly assaulted the appellant by spear on his head. This is what she stated in the examination-in-chief. In the cross-examination, she categorically admitted that the deceased was having the spear because he always used to keep spear with him. She very categorically admitted that the appellant did not quarrel with the deceased but he simply demanded the papers. She further admitted that since the deceased was annoyed with the appellant, therefore, he assaulted the appellant by spear and the appellant received injury on his head. The evidence of this witness supports the plea of the appellant that he assaulted the deceased in exercise of his right of private defence. According to the defence witnesses, the appellant had received injury on his head and 11 stitches wereput on his injury and he was treated in the medical college hospital and jail hospital at Raipur. It is also established that the deceased was armed with spear and he firstly assaulted the appellant. In the above mentioned facts and circumstances of the case a conclusion can be drawn that when the deceased assaulted the appellant by spear on his head and the appellant received head injury, a reasonable apprehension of danger to the body must have ( ^ /y-^\ Criminal Appeal No. 176 of 1993 arisen and in the facts and circumstances of thecase, the appellant had a right of private defence. (10) Now we shall examine as to whether the appellant had proportionately exercised the right of private defence or he exceeded the power given to him by law by causing death of the deceased. The right of private defence, as stated above, is made subject to certain restrictions. In the first instance, the right, in no case, extends to the inflicting of more harm than it is necessary to inflict for the purposes of defence. If, therefore, a person exercising the right of private defence, causes death where it is not necessary to do so for the purposes of such defence, he exceeds the power so given to him by law under Exception 2 of Section 300 IPC. The question of the operation of Exception 2 arises only if the alleged offender exceeds the right of private defence subject to limitations that he caused death of a person without premeditation and that the death of the deceased was without any intention of doing more harm than what was necessary for the purposes of defence. (11) In the present case, the appellant went to the house of the deceased for demanding the affidavits. An altercation took place between the appellant and the deceased and according to Ganga Bai (PW-5), the deceased firstly assaulted the appellant by spear on his head and then the appellant gave knife blows to the deceased. There is nothing on record to show that the appellant went to the f^:\ 4 .'@£-::;.- Y ^^/ ^- Criminal Appeal No. 176 of 1993 house of the deceased with any arm and the spear, khukhri and knife were seized from the place of occurrence. This shows that the act of the appellant was without any intention and preparation and the appellant had a right of self defence, but the appellant certainly exceeded the right by inflicting more injuries to the deceased which in fact were not needed after he would have protected himself by inflicting one or two injuries to the deceased, and the case of the appellant, therefore, would fall within the ambit of Exception 2 of Section 300 IPC. Therefore, in the above facts and circumstances of the case, the appellant cannot claim acquittal. Though the charges of murder would fail but the appellant would be liable to the convicted u/s 304 Part-1 IPC. (12) Accordingly, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. Instead, the appellant is convicted u/s 304 Part-1 IPC and sentenced to the period already undergone by him, which comes about 4 years in this matter. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. ^ Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti