CF0000059336 INTiiE HIGH COURT U}? MADHYA ?RNDESH AT J'ABALR. FU >6€§ OF 1991. CRIMINAL APPEAL NO. ?PELAN'I‘:— f3ukhiram 5cm of Neetram, agec‘x 25 years, §agaikiya, Occ upatién~Agriculture; Resident Gf-Village, $oer, Thana, Sitapur, Tahail $eetagur, $istrict Sur@uia,;§§dhVa Pra§esh. kA SE RESPQNEENTz‘ S "LWTE OF I‘WA kl)”E Through P.S. $itapur Bistt. Sur@uj$. / PPEAL UNDER {SECT0N §7/4/ OF 'I‘HE €03J‘E OF CRXMINKIQ PROCEED URE. / AL / $ VER$U g ¥ ’ Honb HIGH COURT OF CHHATTISGARH AT BILA3PUR CLAn’peal No.665l 9 1 Sukhjmm —Versus— State of Madhya Pradesh (now Chhattisgarh) JUDGMENT FOR CONSIDERATION H x - ’S’d/ giaDilip Raosaheb Deshmuk Judge e Shri Justice Fakhruddin a OTu 1‘ ‘ Fakhruddigj Sdl- I §‘ J "<‘\Judge / / x‘ Post for 02.08.2905 ‘ Sd/- 7 l Fakhruddin Judge ’5; lay? a 1 / ‘ f X ¥ / h GORAM: HON’BL‘E SHRI FAKHRUDDHV, HON’BEE SHRI DILE RAOSAHEB DESHMUKH JJ ‘ Shn Shallendra Shukla, Counsel for the appellant Shn Aklnl Mlshm and Shn Ravmdra Agawal Panel Lawyers for the State ‘Per Dilip Raosdheb' Deshmukh, J. This appeal is directed against the judgment dated 11.4.1991 delivered by Shri B.B.L.Agawal, Sessions Judge, Ambikapur, Surguja in sessions trial No. 812/ 1990 whereby the appellant was convicted under Section 302 I.P.C. for committing murder of'his brother Kunwar Sai on 1.2.90 at about 8.00 P.M. in village Soor, Police Station Sitapur, Tahsil. Sitapur, District Surguja and sentenced to undergo imprisonment for life.‘ 2. ,Admittedly the appellant and the deceased Kunyvar Sai were real brothers. Manimm P.W.6 is the fathcr and Harmunia P.W.4 is the mother of the appellant. 3. The‘factual matrix lies within a narrow compass. Maniram had partitioned the agricultural lagd between the appellant and ' the deceased. The deceased had sold his lands and used to ask i HIGH COURT OF CHHATTISGARH A Cr.Appeal No.665/91 Snkhiram -Versus- State of Chhattisgarh J U D G M E N T (Delivered on 02.08.2005) T BILASPUR the appellant to leave the house Deceased Kunwar Sai was a hab1tua1 drunkaxd and often used to quarrel and beat Sukhlram and Ins parents under the miluence of hquor. On 1 2 1990 at , about 8.00 QP.M. the deceased Kunwar Sai came in an intoxicated V state and étarted quarxelling with the appellant The appellant snatched the ‘Basula’ dom the deceased and dealt 4 to 5 blows W1th the ‘Basula’ on the head of the deceased Kunwar Sa1 dled on the spot. Appellant made exua Judlclal confess1on before the village Chowlddar Mangal Das P.W. 1,who lodged the F.I.R. ,EX.P.1 at Police Station Sitapur at about 22.15 hours on 1.2.90. Marg intimation Ex.P.2 was mg'stered. Investigating OEcer R.N’.Yadav mached the spot‘on 2.2.90 and prepared Panchnama of the body of the deceased Kunwar Sai, Autopsy was conducted by Dr. K.K.Dutta P.W.8 on 2.2.90 Who found the following extemal injulies on Kunwar Sai:- i Inc1sed wound 2” x 3A over h‘ontal legon ) I (forehead) near m1d lme on left Side vertically placed and was bone deep ii) i: Inc1sed wound 2” x V2 x bone deep Just parallel ‘ and lateral to mJury No 1 iii) ‘ Lacerated wound 3, V2” x 1" x deep upto bone. i Bram material had come’out through wound over left tempotal reglon dn‘ectmg lateral to medially upwards A lacerated wound ‘2 1/2” x 3/4” X bone deep and brain deep as brain material protruding out, and site was left tempem occipital reg'on behind- mJury No 3 and obliquely placed home antenolaterally to posteno medially and ‘. upwaxds Abrasion 1” x V2” over back ‘and left shoulder joint aiea.‘ n Contusion 1 1/2 x 1" over right side of ont of chest at 5th inter-coastal space 1n m1d clawculm‘ hne vi). On dissecu'on, it was found that: In the Opinion ofthe Dr. K.K.Dutta, external injuries No.3 85 i 4 Were suEcientjn the ordinary course of nature to cause death since the hurt was so powerful that brain material prou'uded out ‘ and deceased had died instantaneously after sustaining the injury. r In his report Ex.P.10 Dr. K.K.Dutta‘opined that death was due to coma and hemorrhagic shock within 12 to 14 hours prior to examination. 4. Investigating O$cer R.N.Yadav seized. the plain soil and blood stained soil nom the spot vide EX.P.6 and also seized n‘om t the spot one iron Basnla with a wooden handle which had blood like stains vide Ex.P.7. Vide seizure memo Ex.P.8 he also seized one geen‘ Lung and S_ando Banyan having blood like stains nomr. the accused on 2.2.90. After completion of investigation, the accused was prosecuted for an‘oha'ence under Section 302 IP.C. & . i) , Fracture of mutal bone in two pieces sizing 2” x ' 1 V2” rectangular piece each and depressed in ‘ nature. Onl removing pieces haematoma was present over brain and conesponding to extemal ‘ injury No. 1 and 2. ii) ,Multiple nactm‘es in left temporal region and brain material coming out. Few pices were 3 buried ini brains matter, haematomae present underneath the nacture site. Llt corresponds to > extemal injm'y No.3 & 4. L iii)’ / ‘ Fracture of 5th 8r. 6‘h ribs in clavicular line under ’ r and corresponding to external injury No 6 No ‘ mJuIy over pleura and lung 5. The accused abjured his guilt. However, in his examination . under Scciion 313 Cr.P.C. he stated that Kugwar Sai had sold his L portion of the land and used to quarrel with him and his pamnts evely now and then.‘ On many occasions, Kunwar Sairhad assaulted him i 0n the night of occurrence Kunwar Sai in" an ' mtomcatsd state assaultsd Ins father Manuam on the head by I Basula whereupon Mannam had dealt 2 — 3 lathl blows on the head >of Kunwat Sai. Kunwar Sai then also assaulted him by Basula on :the shoulder whereupon exercising the’right of private defence, he had snatched the Basula h‘om the deceased and had V I mmcted only one mluly over the cheek of Kunwar Sa1 by Basula No ev1dence m defence was adduced 6. Counsel for the appellant has assauled the conv1ct10n of the appellant under Sectlon 302 I P C mainly on the ground that the defence of exerCise of right of private defence ‘of person by the appellant is totally home out horn the cross-examination” of Harmuma PW4 Nanba1 PWS and Mamram PW6 and also angal Das P W 1 The learned counsel for the appellant has also argued that the ocular evidence read Wlth the ev1dence~of Dr. K.K.Dutta P.W.8 proved that the fatal injuries sustained by the deceased (Kunwar Sai were indicted by Manilam P.Vy.6. 0n the other hand, the learned Panel'Lawyer suppbrtcd the‘judgment of the m’al Conn ‘ 7. Prosecution exammed as many as 13 Witnesses 1n this case Mangal Das P W 1 has deposed that 1n the night of occurrence the appellant Sukhu‘am came to his house at night and told him that / H‘ x killrd his brother by Basnla whereupon he had taken the he had \. i elln to Police Stah'on Sitapur and lodged the F.I.R. In cross— appat examjnation paragraph 5 onwards, this Witness has fully- or the defence version and deposed that Snkhimm pllan) had’told him ’that Kunwar Sai wanted to assault (P W 6), Harmunla (PW 4) and the appennnt and smce Mammm an 1mm1nent danger to ms hfe he had snatched the there was rom Kunwar Sa1 and had assaulted Kunwar Sal by the a Basnla f s order to save h1s own hfe. He also adlmtted that Kunwar Banla 1n drunkard and'had sold his share of the lands and was Sai was a reatedly beatlng the appellant as well as hls palents ep Danpat Bal P W 2 ls the w1fe of Mangal Das P W 1 and has 8. h e at at mght the appellant came to thelr house and sald deposd th a e adik‘illecf his brother. However, in cross-examination, she tht h h deposed that since‘the appellant and her husband were at‘ a” ‘ he could not hear their conversation. ‘ distance s Jath P.W.3 did not support the prosecution version and 9. ain s red hostile. Harmunja P.W.4 is the mother of the wa tun n In her examination—in-chief she has deposed that appenat nwar al had hurled hlthy abuses to her due to which she had ’ Ku S r a hom the house and when she returned at about 8 00 un way ; P. she saw that Kunwar Sai was lying runconsc1ous m an ;M ixicaed state In cross-examination, she has admitted that Kuar Sai was a habitual drunkard and used to beat them She nw L admitted‘that‘Kunwar Sal had assaulted Sukhiram by a! has also t Tangia about two years prior to the Occurrence and used to suppted (apet £ ntot threaten them wereupon they ad odged report against Kunwar h h l Sal on sevcml occas10ns. At the mne of, occurrence when she returned with her huSband-Maniram to the house of the appellant, Kunwarlsai in an intoxicated state was abusing Sukhiram While holding Ba‘sula. ‘ When Kunwar Sai saw Mauiram, he assaulted - him on thefhead by the Basula. On this, her husband—Maniram dealt 2 — 3 iathi blows on the head of Kunwar Sai Thereafter, the deceased assaulted ~Sukhiram by'a BaSuIa over his shoulder. At this juncture, SI‘Ikhiram had snatched the Basula nom Kunwar Sai and had assaulted him on the cheek with the Basula In thls way, this Witness has also supported the defence vers10n 1n toto 10. “Nanbai P.W.S has, 1n cross-exammatlon paragraph 2, completely supported the defenceversion that KunWar Sai had assaulted Maniram by Basula on the head whereupon Maniram had dealt 2‘ — 3 lathi blows on the head of Kunwar Sai, as a result ‘ of which blood started oozing out of the head oft Kunwar Sai. Thereafter, Kunwar had aSSaulted Sukhiram by Basula on the shoulder whereupon Sukhiram had snatched'the Basula and inflicted one blow on the cheek of Kunwar Sai by Basula. 11. Maniram P.W.6, the father of the appellant, has in his ' examination-in-chief stated that Sukhiram had assaulted Kunwar ' rSai whereupon blood started oozing horn the cheek of Kunwar Sai who died thereader. However, in cross-examination, eVen this ‘ o witness has completely supported the defence version and has X admitted that Kunwar was abusmg Sukhnam in an intoxrcated state While holdmg Basula and when Kunwar assaulted Mannam on the head by the Basnla, e eat with 2 —- 3 lathi blows on the h dl head of Kunwar whereupon a quarrel ensued between Kunwar and Snkhimm. 12. P W 7 Mohanmm ls the w1tness of selzure of 5011 and 1ron Basula horn the place of occunence Dr. K.K.Dutta P.W.8 who conducted the post-mortem report Vlde Ex P 10 has deposed that extemal mjunes No 3 & 4 mentioned above 1n paragraph 3 were fatal smce they were mjhcted w1th such force that the bram material had com‘e out and the deceased had died instantaneously. "Pammeshwar P.W.9 is the Patwari who had prepared the spot map. Ismail P.W.lO is the witness of the seizure of one sealed packet Phutkl Ba1 PW 11 the Sister of the deceased has not supported the prosecunon case and was declared hostile Prem Sa1‘ P.W.l2 3d1d not depose against the appellant. Chamru Prasad Gupta P.W.13 is the Witness of Panchnama of the dead body of Kunwar Sai and constable Dineshwar Pandey P.W. 14 has deposed about taking a sealed packet to the Forensic Science Laboratory, Sagan 13. The purpose of describing the evidence adduced by the prosecution in details in the above pmagaphs is to show that there is not even an iota oi evidence which would go to show that .the external injuries No 3 8r. 4 on Kunwar Sai mentioned above in parayaph 3 which had proved fatal were caused by the appellant a The testimony of Harmunia P W 4 and Mammm P W 6 and Nanbai P.W.5 has to be lead as a whole. The prosecution did, not seek permission ‘h'om the trial Court,to reexamine Harmunia P.W.4,f \‘z ‘ ‘ \ i m i l ‘ Nanbai P.W.5 and Mam'ram P.W.6 after they had supported the defence version in toto in cross—examination. It is settled law that ‘ the statement of the accused appellant in, the examination under Section 313 Cr.P‘.C., has to be read as a Whole. The inculpatory part cannot be excluded and used for pulpose of proving theguilt of the appellant. T The burden of provjng the guiltof the accused beyond Ithe" shadow of donbt always rests on the pmsecuu'on and never shifts. The pros’ecuh'on cannot sepalate the threads &om the cmss—examinah'on. of the prosecnh'on Witnesses Who11y supporting the defence version’to prove guilt against the accused appellant. .The entire evidence adduced by the prosecution leads only to the irresistible conclusion that deceased Kunwar Sai had in‘ an intom'cated state assaulted his father Manjram P.W.6 with the Basnla on the head whereupon Maniram P.W.6 had dealt the fatal blows on the head of the deceased by means of a lathi. Thereafter, when the deceased assaulted the appellant by a Basula, the r appellant snatched the Basula and had indicted only one injury on the cheek of the Kunwar Sai. No doubt, there is a strong ‘possibility that Harmunia P.W.4, Nanbai P.W.5 and Maniram P.W.6 have in order to save the appellant developed the story of assault) by? Manimm by lathi on the head of Kunwar Sai. . However, if the above menu'oned tesu'mony of these witnesses is to ' be igiored, then there is absolutely no other evidence to show that V ‘ death of Kunwar Sai had occurred due 'to the assault by Basula by ' - the appellant. Manitam P.W.6 in his examination-in—chief has only i i deposed that the appellant had assaulted Kunwar but has not o Iw ‘ mentioned the Weapon of assault Nanbai P.W.5, Manilam P.W.6, Haxmum'a‘ P.W.4 and Mangal Das P.W.l have taken a CompEte _somelsault in the moss-examination and have completely supported the defence version. 14 We have éOnsideled the evidence led by the prosecuu‘on in tins case and have glven out thoughtful conslderahon to the f arguments advanced We hnd that the defence vers10n 1s wholly plausible that the deceased had assaulted Manimm by a Basula whereupon Mannam had dealt the fatal blows by a lathi on the ' skull of Kunwar Sai whereafter Kunwai‘ Sai had assaulted the appellant by a 'Basula and it was then that the appellant had snatched the Basula and assaulted Kunwar Sal only once by the Basula. We nnd that the learned t1a1 Judge had shetched his ' magnanon too far for amvmg at the conclusion of the guilt of the appellant for comnnttmg munier of Kunwar Sal. We also hnd that the prosecutlon has fa1led to pmve beyond reasonable doubt that the accused appellant had dealt the fatal blows by a Basula on Kunwar Sal and the defence versmn appeals to be plausible that exemlsmg the nght of pnvate defence Mammm (P W 6) had hrst ‘ dealt the fatal blows on Kunwar Sai and‘therealter when Kunwar L Sai had assaulted the appellant by ,Basula, the appellant’snatched :the Basula and had assaulted Kunwar Sai only once If the rteshmony of Mangal Das PW 1 Harmuma PW4 Nanbai PWS and Mamram PW6 1n cross exammanon 1s to be Ignored as p :umehable, then there remains no ev1dence on Iecord to show that the app‘ellanthad dealt the fatal blqws by a Basnla on Kunwar Sai. § p I The testimony of Mangal Das P W 1 mgaldmg the extra Jud1c1al confessmn made by the appellant ls mndemd wholly unmhable due to his statement 1n paragraph 9 Wherem he has taken a complete , somersault and suppoxted the defence versmn 1n toto The ‘ testimony of Dhanpat Ba1 P W 2 regarding extra Jud1c1a1 confess1on made by/the appellant is also rendered umeliable because in ‘ palagraph‘ 2 of her cross-examinah'on she has admitted that she e could not hear‘correctly what tl1e7appellant had told her husband ‘15V The only question which remains to be Considered now is ' ;whether the appellant had exceeded his right of private defence. The ev1dence led by the pmsecutlon goes to show that the appenant had dealt only one blow by the Basula to Kunwar Sal ‘ after Kunwar Sal had assaulted Mannam by Basula on the head and Mamram had dealt 2 3 lathl blows on the head of Kunwar Sa1. If the versmn of Mammm P.W.6, Hannuma P.W.4, Nanbal P.W.5 and Man'gal Das RW. 1 is to be believed, it shows that there was an imminent danger not only to the life of the appellant but also of Maniram (P.W.6) when the deceased assaulted them by the Basula. ‘During investigation, the appellant was notrsent for medical examinau'on. to hndxout if'he had sustained any injuxy. .‘Since there is no evidence on record to show that the injury sustained by the. Kunwar Sai had been indicted by the appellant by V a means ofia Basula and also, there is no evidence to' show that the appellantihad assaulted Kunwar Sai by the Basula more than once, it cannot be sald that the accused appellant had exceeded / , Mangal D‘as. ‘L’I ‘ V the right of privatevdcfence of his person. If'the version in cmss- examination of the above mentioned witnessesis to be accepted, it clearly shows that the appellant had not exceeded the right of private defence and had merely dealt a smgle blow by the Basula _ over Kunwar Sal who had aheady sustamed the fatal injuries at the hands of Mannam P W 6 True, that the Post-mortem report of Kunwar Sal does not show any Injury over the cheek yet 1f the teshmony of w1tnesses Harmuma PW4 Nanba1 PW5 and Mannam P.W.6 m cross-examination is to be ignored, then there remains no evidence to connect the appellant With the fatal injuries ’ sustained by Kunwar Sal Thus the defence vers10n that the appellant had not mthr‘ted the fatal blows on Kunwar Sal and had only mmcted a smgle mjuly by Basula in the exercise of right of private defence of his person appears to be plausible. The appellant is therefore entitled to the beneht of doubt. The conviction of the appellant under Section 302 I P C for commith'ng murder of Kunwar Sa1 cannot therefore be sustamed 16. In the result the appeal ls allowed The appellant is ‘_ acqurtted of the charge under Sechon 302 of the IPC The I appellant shall be set at hberty, 1f not requrred 1n any other case l/ sai- n /‘ sw- F; Dillp Raosaheb Deshmukhl \jl } l ‘l WAN, t Fakhruddln i i g JXJgdge$ ‘ r.w. «mini