.:%- COURTOFCHHATTISCSARHATBILASPUR Crsniin8iftRRealNo.S5Sof2008 ^DiViSiONSENCH: •ti Ceram::!-is3N:tBLE.MR.T.P.SHARMA:& HQN'BLEMR.R.LJHANWAR, JJ. ABNEt-i^NTS (Iredaii)^ 1. BhoRta S/o Juna Ram Ghssiya, aged- SSvears, 2. Krusiina S/6 Menda Ram Ghasiya, ageci|&K3 years, f't v RESPONDENT Kariman S?'o Qhunaram Ghasiya, sged- 29years, .. 4. Duhan Ram S/o Fhlto Ram Ghasiya, aged-30 years, 5. Shubhram @ Samram S/o IViewa Ram, aged -22 yesrs, / 6. Hariha @ Baishakhu S/o Rameshwar Ghasiya, aged-50 yeare, 7. Ram Qhasiya S/o Gagsmath Gftasiya, ' :'aged-50yeSrs,'': ;.:; :! :.' ,;:.:: 1; Aii are residenis ofVltiags Beikharikha, PoiiGe StatiGR-Darima, DiSitrict-Stirguja Versus StateofC.G. (CRMtNALAPPEAt. UNDER SECT!QN374(2) OF THE GODE CRIMSNAL PRQCEDURE, 1973) OF Pressnt:- :, :, ' . '. , / ! :. . .• : :,'; , .' MrAbhay Tiwari and Mr.Manpj Mlshra, counsei forthe appeli Mr.ArurfSao.Qov&nmentAdyoGatetortheState. —^,. JUDQ? (Passed on 1§.f1.2010) Per T.P.Shamr!a,,J.:- Ghaiienge In this appeai iS to the jydgmsnt of convistisn & order of ^ent^e dated 11.7.2006-passedbythel^ AddjtiemaiS^siQnsJud^^ Ambitepur, Surguja; in Sessions Triai No^TQ/2004 whereynder iearned .1SI'- Aciditionai Sessions. Judge after hblijing tfie whereDy & 'ssa eiaM iiicaS ;:'!«& li*:. lllli appeiianis. guiity for commission of formation of unlawful assembly armedwithdeadiyweaponshavingitscommonobjeGtofcommissionor cuSpaBle ftsmicide amcsy^iting 10 murosr of PhuSeshwar and caysing Simple'hurtyo Nadhiyarobai by appeiiant Hariha @ Batshakhu CQnvicfaj the appeiSants unasr Sectjons 148 and 302/143 of the i.P.C. and senfenced them yndergo R J. for twp ysars, imprisonment for iife and to payf)nsofrRs.1QOO/-,indefaui{ofpaymeRioff|netofurtherRJ.^ year. The triai Court.hasaiso corrvieted appeilarrt Hariha @ Baishakhu under Ssetion 323 of the i.P.C.^anel sentenced him to undei^o R.l. TOr oneyear. ti:s onvictiori is impugnsd on ihe ground that withoat thsre being any iota of evidence, thstriaLCourt has convicted and seRtenced ths appellants asaforemSRtioriedandtherebycommittediileyality. Case of the prosecution, in brief, is that on the fateful dayof 7.3.2004 at about 5.30 p.m.dgceased Phuieshwar wascaiied bythe appeilants in tiis house for cuttjng goaton theeve of Hoii festivai. IntMe h&use ofthe appeliants, some sltercation befween appeiiants and deeeased Phuieshwar tQGk place, After cempeting his job wftile Phuleshwar coming back to h(s houss, the appeliantscayghthoidhimandpushsd, ftiereaSter they assauited htm by axe and caused instsntBneousiy death. When Nadhiyaro Bai <FW-16), sister of deceased Phuleshwar tried to saveherbrother,theRappellantHariha@Baish3Khuslsoassau!tedher. Ineident ^s ihformed to Binesh Marawi (PW-1) who lodged the F.i.R. vlde Ex.P/1 and mei^ intimatiQn vide Ex.P/2. (nvestigating officer proceeded fbr ths scene of occurrence and after summoning the witnssses vide Ex.P/3, inquest &ver fhe dead body of deceased Phuleshwar was-prepared vide Ex.°%. Spot map was preparsd by InvestigafingoffteervicieEx.PXBIOQdstainedsQijipiainstiiiandhairsof the deesased.found nsar ths piace of ii)cident were ssized vlde Ex.FW; Dead Body was sera,-for aiitopsy to ^ovemment Hbspitai,i Ambikapur *.•:.':. • . :'.. .. •.' vide Ex,P/36where Dr.V.K.Shrivastava (PW-IS)conducedautopsyvieie Ex.P/37 and found foiiowiRg injuries- , One incised wound of 6" x 2" x bone Oesp commuted fi^cture of right teraporal region was fbund. Brain! matter wascomingoutfromtheinjiiry. over scalj3, t' •IK '%.3sc'°:y "J'iSs?--..~<t;.;:^'" (»: (li) inclsed wound of 4" x 1" x bone deep near rlght ear, commuted fracture of right temporai and right mandible was found. Brain i^aterwas coming out from the injyry. (iil) inetsed wound of 3° x %" x bone deep over occipital bone, commuted fracture of occipita! gonewas found. Brain matter wascomingouffromtheinjury. v (iv) Lacerated wound of 1" x %" x bone deep over rtght thlgh, cQmmutsd fractureof right femur was found. (v) Abrasionsof 2" x %"^over right eibow joint. Death was as a result of fafai injuries. injured Nadiyaro 3ai was a!so examined by Dr.B.L.Koushal (PW-17) vide Ex.P/38and fpund fo!!owing Injures:- . .. . (i) One lacerated wound aiong with contusion siraight over left cheekwith swelling. (il) Contusion of 2" x 1" over abdomen. Seai! Seai!ed ciothes of the deceased after autopsy were sslzed vide Ex.P/7. Patwari also prepared spot map vide Ex.P/8. , During fhe eourse investlgatton, accused/appeilant Bhokta was taken into custody, he made disclosure statement of axe vide Ex.P/16 and the same was reeovered at hi's Instance vide Ex.P/20, his btoodstained cioth was seized vids Ex.P/14, Appeiiant Kariman was taken into custody, he made disclosure statement of axe vide Ex.P/17 and the same was recovered at his instance vide Ex.P/21. Bioocistained cioth and chappa! of appeiiant Kariman were seized vide Ex.P/13. Appsilant Krushna was taken into custody, he made disctosure statement of axe vide, Ex.P/18 and the same was recoversd at tiis instance vide Ex.P/22, hte bioodstained ciothes and chappal were seized vide Ex.P/15. Appejlant Duhan Ram was taken into cu'Btody, he made disclosure statement of stick vide Ex.P/18 and the same v^as seized at his instance vide f • " " : - ; : , Ex.P/23, hisbloodstainedciothesan^chappaiwsreseizedlvideEx.P/11. C..A,i-?<i.iJ, Cpunier copy ofthe F.i.R. wassentto Magistrafe yids Ex axe was examlned by the doctor vide Exs.P/26 anSP/27.: •A'ere arrested vids arrest memos Exs.P/28 to P/34. Bloodstained cloth of appeiiant Harlha @ Baishakhu was seized vide Ex.P/10. .P/24. Seized The accused IHf li.'j.i J' 4. Btoodstained cioth Qfappeliant Rsm Ghasiya was seized vide Ex.R/9. Ssized articies were sent for chemicai examination vide Ex.P/35. Statements of the wltne&ses were recorded under Sections 161 of the Code af Criminai Procsdyre, 1973 (in short 'the Code') and after compietion of investigation, chargs sheet was fiied before the Couri of Judiciai Magistrate First Class, Ambikapur, who in-turn commstted the case to the Court of Sessions, Ambikapur, Surguja, from where iearned 1 Additional Sessions Judge, Ambikapur received the case on transfer fortrial. if, ,:H 5. !n order to prove the gutity sf the accused/appeiiaRts, the prosecution . examined as many as 17 witResses. Statements of thffl iecused/appeilaniswere recordedunder Section 313 of t'ne Code where they denied the circumstances eppearing against them and ciaimed innocence and false impiicatlon in the orime in question. Appeliant Bhokta has taksn defencs that the deceased was assaultlng io other members, he aiso assauStsd appellant BhoMa, therefors, under apprehsnslon that deceased Phuieshwar will kili them, in exerciseof right of private defence he has eaused minlmum injury to save themseives. Decessed Phuieshwsr has caused injury to Bhoida, Baishakhu and Kariman. 6. After providing opportunlty o Addjtional Ssssions Judge has as aforementioned. F 'nearing to the parties, iearned 1st convicted and ssntenced the appsiiants 7. Vtfe have hsard iearned counset for the parties, perused the judgment impugned ana' record ofthe iriai Court. Learned counsei forthe appsiiants yehemeniiy argued that as per case of the prosecution, deceased Rhuieshwar was cailed by the appsilants fpr cutting goat for preparation of megt; he came v/ith betsi axesnd sfter some altercation, theappeiiants havS caused his death.As per defence pfboththe parties, appelisnts Btiokta, Hariha @ Baishakhs.i and Kariman have aiso received injuries which havs not been sxpiained by the prosecution. Injuriss found over the body of the decessea were fatat in nature, therefore, ali injuries found over the dead bodyiwsre fatai in iw? II"" ii:l nature resuiting jnto fracture of scaip bone and femur, therefore, it was not posstble for ths deceased to cause injuries to three appelisnts afier receiving any of fatai inj^ries found over hjs body. Thls shows that firstly the deceased has assauited three appeliants nameiy, Bhokta, Hariha Baishakhu and Kariman. Inclsed woundcf 3 %" x %" x 1" found on the teg of appeiiant Bhokta aiong wth other two injuries further shows that the appeilants were in danger oftheir life and the deceased was hoidin; batet axe withln a CiOSS dlstance from the appeilants, therefore, no option except to cause fata! injyries to the deceased for saving the iife of more persons was !sft tothe id^peltants, therefore, in exercise of right of their private defence they have caused minimum injuries required to savethem. They have not exceeded the right of private defence. As psr evidence of prosscution witnesses, the deceased was butiy (gunda)and the vlliagers were having apprehension. In ths present case, appeliant Bhokta has adduced sufficient evtdence and has suggested the defence witness that theytiavesxercisethe right of their prlvate defence. In case oftaking defence, defence was not required to provs iheir defence iike" requirement of the prosscution. Degree of proof of defence is not siffiilar for provlng the case of the prosecutJon. Defence is Gnly required to cast doubt uponthecase oftheprosecution.Atthetime of exereislng ofright of private defence, force used and force rsquired, cannot be weighed in piden scaie and in caseof eminent danger of iife, the accused persons were entitied tp cpmmit culpable homicide ofthe complainaht or victim to save their ilfe. On the other hand, iearnedState counssi supported the judgment impugned and argued that as per case of the prosscution, decsased Phulsshwar was caiied by ths appeiiants for cutting goat for putting meat, some altercation took Riace and fhe appeilants asssuited the deceased. Multipjs fataS injuries found over the body of the cjeceased show that after pushing down the Qecgased, the appeiiants have caused muitiple fatai iRjuries. it aiso shows that whsn the deceased fetiing dowri on the floor he was helpiess and there was no occasion fbr causing by ihs deceased, at that juncture apprehsnsiQn and in danger pf life came to an end, therafore, ihe appellsnts were r,ot entiUed to cause any injuries to.the deceased.Single deceased was within the qlutehes ofths &' s ^"an^ssS1 appeliaRtsandoSherfaFriilymembersoftheappeijanisandtherewasiFso possibie for causmg sny hurt or injuries by the deceassd, thsrefore, the appeliants were not entit|sd to cause injuries after faHing dowo of the dsceased snd danger of eminent of the appeiiants came to an end, but the appeilanfs h^vs caused muitipie fatai injuries to ihe deceased after Ris failing down shows fhat they have committed cuipable homicide of deceased Phuieshwar amounting to murder after formation of uniawfui assembiy havlng its common object. After appreciating the evidence avaiiable on record, ieajned,',yiriai Court has rightly convicted and '!'i ' , sentenced the appellants as afttrementioned 10. in order to appreclate the argurrients advaneed on behaif of the parties, we have examined the evidence avaiiable on record. 11. in the present csse, bomicidal death as a resuit of fatai injuries found overthe bodyof Phuieshwarand sinfiple injur/ofNadhiysro Baihase not been substantialiy drsputsd cn behaif of the appeliants, on the other hand, aiso estabiished by the evidence of Dr.V.K.Shrivastava (PW-15), autQpsy report Ex.P/37, evidence of Dr.B.L.ttoushai (PW-17) and medicai report Ex.R/38 which show that cieath of Phuieshwar was homteidai in nature snd simple injuries wsre found over the body of Nadhiyaro 3ai.As per para 40 of investigating officer V. Pradhan (R/V-13) and evidenee of Dr.B.L.Koushal (DW-3) for whom the proseGution has exammed as PW-17, he has examined appeiiant Baishakhu o" 8.3.2004 i.e. same day vide Ex.D/6 and found foilowmg injures:- , (i) Laceratedwound over middie ofthe head of 3" x 1/3" xVf. (ii) Lacerated wound over lower iips of 1" x %" x %". He has aiso examined appeilant Kariman vfde Ex.D/7 and found contusion over ieft wrist of 2" x j2' aiong with sweiling and tendemess, confusion over right wristpf 2" x 2" ai^g with sweliing andtenasmess. ' Ne has also examined appeilant Bhoktaram vide Ex.D/8 and found snclsed wound of 3 %" x %" x 1"over left !eg, three abra^ions oyer ieft eibowjoin{of2"x 1" in size andtwoabrasionsoverieftKFiieeof I" x%" in size, it shows that appejlants Baishakhu, Kariman andiBhoStfa have aiso receivea injuriesinthe same incident. f'-!1 :f1 If'""'1 12. As regardsthe question offomnation of un!awfui a^embly armecs with deadiy wsaponswith common object of causing murder of Phuieshwar and causing injuries ta^ Naeihiyaro arici commission of the aforesaid offence by the appeiiants, convietion is bassd on the eviaenee of eyewitnesses. As psr eyidenes of Govinda (PW-2), ©huneshwari (PW-3), wif& of the deceased, Gupta Prasad (PW-4), chiia witness Chhotu(PW-5),Brunda(i5W-S),Uja9ir(PW-10),Purushottam@Pieharu (PW-11) and Nadhiyaro Bai (PW-16), the appeliants have caused injuries to Phuieshwar, they h^ve caltedPhuleshwarfqr cutting goatfcr s. :..:•: • ..: .•_.-... '~ ~. ' cooking meat and thereaftsf'ithey have assautted Phuieshwar by axe and stick. Except UJagir (PW-1 0$ artd Rurustiottam @ Picharu (PW-11) vi^om the prosecution has dectared hosti!e, other eyewitnesses are reiativewiinsss^.AspercaseBftheprosesutiGn.incidenttGokpiaceat about 5.30 p.m. at svening on ths eve of Hoiy festtvat. House of the appsiiarrtsandthedeceasedareinsamevicinitywithinaciosedistance, AfSer hearing cemrootion, witnesses came in front of house 6f the appeliaRtsand hsve seen the incident. Injuries found ovsr the body of Phuieshwar have not been substantially dispyted by the apipeilants; on the other hand, appeitarit Bhokta tias admltted thaf tie has eaused injuriestothedeceased.OutoffiveinjurieSiinjurtesfoundoverthehead were indepehdehtly fatai for iife and 4 ihjury comprising commuted fracture of femur was aiso seriQus which show that four grieyous^fa^l injurjes werecauseci atthetimeofinGicfenf. 13. Except Ujagir (PW-10) and Pumshotiam @ PiGharu (PW-11), rest syewftnesses are reiativeS witness^, but their evidenee canrwt be discarded only on the grouna of reiatioh, even otherwise, a ciose reiafion wouid bs the iast to screen the reai culprit and faiseiy impiicate an innpcentperson.btjtthsirevid^iGerequlrsminuteserutiny.Theineident took place at abput 5.30 p.mtPresencs of these witnesses near the piace of inciden^^is natyral. Th^ haye speciflcafiy deposed that Phuieshwar was Galled by the appeiiants for cutting goat, {h^reafter some aiterc^ion took in ihe courtyard of the appeilants, then the , appeilants cayght hojd him anci assaulted by axe and ^ick anri caused fatai iRjuries resultjng into deafn of PhufesSwar. White injUred Nsahiyare . Bai went towards the housejof the appeiiants for saving her brothsr,the| 14. appeiiants aiso assaulted her. They havs not stated anything reiatihg to injuriesof{hreeappeHants.injuryfoundOverthe!egofappeSiantBhokta of3 %" x !4"x 1" havingt.sufffeient length and brsath and that was visibie injury. liKewise injury found over ihe head and iips of appellant Baishakhu were also visibie injury. injury found over the leg of appeiiant ShOkta is not trifie in nature, The prosecution has not expiaihed these injuries. Eviderice pf^ Dr.B.LKoushai (DW-3) and investigatlng offlcer V.Pradhan (PW-13) is suffieient for drawing iRference that three appsliants have a!so received^injuries during thesame iRcident which .^'•c' : •: ' - . have not been expiained on b^half of the prosecution: As psr evidence of the aforesaid witnesses, the appeiiant pushed thedeceased andafter falling down ihe deceased ihe appeilants have caused fatai injuries. injuries found over ths body of the appeiiants, espectaliy injury found over the leg of appeiianf BhoRta is sufficient for drawing jnference that ihey were in eminent danger totheir iife from deceased Phuieshwar and exercise of right of private defence was avallabie to them, but whsn they pushed the deceased on the floor, then emlnent danger came toan end but they have pushed the deceased and assaulted hlm by axe and have caused his instantaneousiy deafh shows that sams wss simyitaneous action and there was no time gap between pushing down to the deceased and causing further injuries fo him. Incident took piace in $he courtyard Of the appeiiants although the deceasea wastiat'ing betei axe, the appellants wereajsoin safe posltion and thei-efore, definiteiy the appeilants have exceeded in exercising the right of private defence and caussd much injuries rather than injuriss required. 15. Definitely, as per evidence of the prosecution vvitnesses, the deceased wascailedbytheappeilan{sfori5uttinggoatforcookinymeat,theyhave not caiied the deeteased for caasing l?is deafh. When on account of rcation the appeiiants rece^ed some injuries.tnen they have some sitercgti caused death of the deceased shows that at the time uniawfui asssmbiy Was formed, tbey immediateiy tooki wsapons and have caused hbmjcida! death of the deceased by exceeding the right of private defence. of incident, out deadiy y ff!i'!';:ja'i;u:' l :NMll. 1 yiHiB 'INfi- 1^. jn these circumstances, considering the ract that they haye e^ee^ed the right of private asfenGe, the proper conviction Of the appeiiants was under Section 304F>art-i<readwithSeetion ^49 ofthe i.P.C., butthstrial Court has not consldered She sforesaidaspeci In jts perspeetive manner and therebycommitted iiiegaiity. 17. Considering ths aforesaie^eyidenee of both the partiss, conviction of the appeliaRts under Section 302 read with Section 148 ofihei.P.e.isnot sustainabls under ths iaw. 18. ^ jConsequerstly, the appea! is p^rtiy aliowed. ConvictloR and sentencs of ffi,e appsllants under Sectson-148 of the I.P.C. are hersby maintained arid convlcSton antfsentence of appellant Hariha @ Bai^hakhu under Secttan 323ofthe S.P.C. are also hereby maintaiRed Howevsr, of conviction of:the appeiiants under Section 302 read with S|ection 14Q of the l.P.C. is altered to SeGtion 304 Part-i! reaci •A'ith Section 149 of the S.P.C. and sentenced themtoundergo R.i. forseven ysars.; 1 /-• Sdi-T T.P.Sharma Judge Sd/- R.L. Jhanwar Judge « ^l'