^s^ (O Ravikuinar Siagh and an.oth.er The State of M.P. (Now C.G.i POST ON y.S AUGUST, 2009 Sd/- R.L.Jhanwar Judge •'\ A' "i>. '~'iiit '<:\. 1 '6W»sssa| j %. .. J .1' i;;%. '^!?:-y ^p^ I.JL »U] BENCHs HON'BLB RAJESHWAR LAL JHANWAR, J. RavikuDiaT Singh, son of Jagatpal Siiigh Chaiidel, aged 24 years Bankebiharisiagh son of Sautsillgh Chaadel, aged 32 years, Botb R/o vmage Kosa, P.S. an.d Tahsil Pamgarh, Disttict, Biiaspui', M.P. (Now C.G.) The State ofM.P. ( Now Clihattisgarh) Sbri Manindra Shrivastaya, Sr. Advocate with Shri U.K.S. Chaadel, counsel for the appellan.ts. Shri D.K. Gwalre, Gov-t. Advocate for fhe State/'respondent. (Delivered onj??/8/2009) 1. Tbis criliLtaal appeal is dtrected agamst tlie judgiaent of conviction aiid order of sentence dated 17.9.1991 passed by the leanied lEt Additional Sessions Judge to the Court of Sessions Judge, BUaspur iii S.T. No, 224/1989, whereuy the leamed Additional Sessions Judge has couvicted fhe appellaats for coinnussion of offence punishable uncler Section 304 part II read with Section 34 of the IPC aad senteaced each oftiieni to undereo R.I for 5 vears. 2. The prosecution story, iu brief, is that ou 30.8.1989 at about 10:00 am.. m. fae village Kosa at Purama Poild sonie boys naniely Punnuram Chaudraram, Rajendra Kumar, Deshi Ram aiid their few ofher friends were fishiag. Puraiiia Pond had taken by fh.e appellaiits on contract to cultivate fishes. When deceased Deshi Ram aiid his frieE.ds were fisbirig, Baiike Buiari caine fh.ere, whereupon som.e quarrel betweeu Deshiram and Bankebihan was erupted. Baakebihan went to his house and retumed along with Ravi. Ravi had one tabbal. On. beiug iast^ated by sanke Bihari, Ravi gave a tabbal blow on fbe leg of Deshiraia . Thereafter, aiiotlier blow wifh the saiae iabbal was given by Baiikebib.ari on ofher leg of Deshirami. Both thereafter left fhe spot. Incident was witaessed by Devkali @ Beudari (P.W.l). Oa receiving iaformation ric~—^— ^_.—^——— '.. "\" ;^£^ Radhesliyam (P.W.12), Rajedora Kumar (P.W.14), Chaadram. @ Bhurwa (P.W.15) and Piumu Lal (P.W.17), Chunnu (P.W.18), Sonuau Ram (P.Vu.ll) faUier of deceased reaclied the spot aad saw Deshi Ram. lyiag mjiu-ed thsre, blood was ooziag from his legs. He along with otaers took Desbi Ram for lodgiiig report to poUce station Pamgai'li, however, on fhe way Deshi Ram died. FIR, Ex.P-15, was lodged by Rajaraia (P.W.10). Investigation took place, dead body of Deshiram was sent for postm.ortem. Autopsy was done by Dr. J.K. BIiutaui (P.W.5). He foimd ftvo simple iacised iiijuries on both tlie legs; cause of deafh wss due to severe blood loss froni the wounds. Witnesses were exaniiaed U/S161 Cr.P.C, 3. After coinpletion of investigation, charge sheet was JESed under Section 302/34 ofthe IPC agamst the appeUaats before Judicial Magistrate First Class, Jaagir, who, ia due course coaimitted the case to tlie Court of Sessions, Bilaspur. The leanied Sessions Judge uiade over fhe case to tlie 1st Additional Sessions Judge, BHaspur for trial. 4. TIie Ist AddiUonal Sessions Judge fraiued charge uiider Section 302/34 of the IPC aad read over aad explaiaed to tbe appeUants who abjured fhe guflt and pleaded fhat fhey are uuioceiit aiid liave been falsely uaplicated m. fhe case. 5. T'he leamed 1st Additional Sessions Judge Bilaspur after evaliiating the evidence avaitable on record aad Iiearmg fhe counsel for respecti.ve parties acquitted the appellants of the charge under Section 302/34 of the IPC aad iustead convicted both offhem under Section 304 part 11/34 offhe IPC and sentenced each offhein to luidergo R.I, for 5 years. 6., I have heard learued counsel for bofh tiie parties at length and perused tiie record ofthe trial Court. 7. So fai~ as right ofprivate defence clauned by fhe appeUanfcis conceiTied, froni fhe evidence on record it is clear fhat wlien bofh the appeUaats reached the spot, ttie deceased was not cate'hmg fishes; therefore claim of private defence stating fhat fhe appeUaafe assaulted Desluraiu ia order to protecf their property (fish) has no substance. Leamed trial Court has elaborately discussed this question in para 51 & 52 of the impugned jiidgineitt, I do aot fiiid any laaterial to disagree with fhe findiags of trial _l_^-v—--—--—•-—^"""'~'" > Jiidge so far as it relates noa-appUcabitifcr of right of private defence ia this case. i. Learaed counsel for fbe appeUaiite suDinitted that fhe. case agamst botli the appeUaiits does not fall wifhiii fhe aiabit of Sectioa 304 Part-II iead wifh. Section 34 of fhe IPC, but only offence inade out agaiast fhe appellaitts falls uilder Section 324 ofthe IPC. 9. On fae ofher Iiaad leanued coiuisel for fhe State supported fhe irapugned judguient. 10. Dr. J.K. Bbutani (P.W.5) iu his statenient deposed fhat he found iiicised woiuid on back side of left leg below knee aud anofiier hicised wouiid oa right leg on back side of aSae^K. kaee . Froni his stateinent it is A^ cleai' that iiicised wound was found up to exposiire of bone. No other iajuries were found on the body of Deshiram. He also deposed Uiat both fhe iajuries were not siifficieat to cause deafh of Deshiram. He has further stated that if oozing of blood would have been prevented the death. of Deshiram would have been prevented. 11. From the statements of DevkaU @ Bendari (P.W.l), Radheshyam (P.W.12), Rajednra Kumar (P.W.14) Chandram @ Bhurwa (P.W.15) Puiuiu Lal (P.W.17) aud Chuiinu (P.W.18) it has been foiind beyond doubt ttiat both the above injuries have been caused by fhe appeUants with tabbal. AppeUant Ravi gave one blow with tabbal on one leg of Deshiram aad thereafter appeUaitt Bailkebitiad gave one blow with tabbal on anotb.er leg of Deshiram. Section 299 offhe I.P.C. reads as under- 299. Culpabie hoiniclde.- Whoever causes death by doin.g aa act with fhe intention of causiag death, or wifh the iatention of causiug sucb. bodily uijur)r as is likely to cause death, or with fhe kaowledge fhat he is likely by such act to cause deafh, commits the offence of culpable hoiuicide. Explanation 1. - A persoa who causes bodily iajury to anofher who is labouring luider a disorder, disease or bodily iafiiraity, and thereby accelerates fhe deafh of fhat other, shaU be deemed to have caused his deafh. Explanation 2- Wheic deafh is caused by bodily nijiuy, fhe person who causes such bodily uijury shall be deeiaed to have caused the deafti, alfhough. by resortuig to pK>pe.r reiaedies and skilful treatm.ent ftie death niight have been prevented. 1.-V. ^___.. ._^ .-^^•;^..., 1 I. . B J tiis. rltE';(":..ff';" .^'' '*»•':. 'sr'r^' Explanation 3.- The causiug of fhe deafh of a cluld in fhe laother's wonib is not homicide. But it luay amount to cuJpable hoinicide to cause tlie death of a Uviag chfld, if any part of that cluld has been brought forfh, fhough fhe chfld may not have breafhed or beeo. coiapletely bom. 13. Oiily one simple iajui^' on oiie leg below knee has been inflicted by appeUaat Ravi by tabbal and anotiier siiziple iajun' iiiflicted by Baiucebihad by tabbat on aiiother leg. Botb. siraple iajunes eloquent that bofh of theia neifher inflicted to MU Deshiram iior diev Iiave lcnowledge tb.at those inj'iiry caused by them. raay cause fhe death of Deshiraia. Therefors, fheir act does not faU under ttie defirtition of ciilpable hoiEiicide and when their act does not fail xnfhiu fhe defiuition of culpable hoinicide, fhey caanot be conxacted for fh.e offence relatmg to causing culpable hoinicide not ainounting to murder, At the most bofh Uie appeUaiits could have been held guilty under Section 324 of fhe IPC because boffa of fhein were responsible for iaflictiiig siaiple icjiir)r found O-D. the person of Deshiram which were caused by sharp weapou- tabba!. 14. Ill fhe result, fhe conviction and seatence recoried by trial Court linder Section 304 part -II read wifh Section 34 of the IPC caanot be sustained aad is accordiagly set as1de and iiistead of 'that the appeUants are couvicted for coiniiuttiag the offeuce punishable u/S 324 of.IPC. As they have already undergone sentence for more than 2 years, therefore, to ineet the ends of justice, they ai'e sentenced to the period ab'eady fl> uudergone by fheia. The appeal is accordiagly partly allowed, ,^ - 'T- A R.^ 3ha^ar 3udSe I— A^ e