El I ‘ g2 HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Apneal No.1220 of 2003' Ra s/o Dayalu Yadav, aged about 30 year, ‘/o village Budhanbhath, Tehsil 8n P.S. Chui Khadan Distct Rajdgaon (CG) State f Chhattisarh Thmugh P.. Ch Dismct Rajnndgaon CG) ‘ ‘ RIMINAL CRIMINAL APPEAL U/S 374 l2) OF THE CODE OF C PROCUDERE Appeare: ' anc Shn' K.K. Singh, counsel for the appellan . Shri S.R.J. Jaiswal, Panel Lawyer for the State. Division Bench:- Hon’ble Shri T.P. Sharma & Hon’ble Shti R.L.Jhanwar,JJ ORAL JUDGMENT (20.01201 1) ‘ Per T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 12.9.2003, passed by the Additional Sessions ‘Judge Khairagarh, Dismct Rajnandgaon (CG) in S.’I‘.No.01/ 2003, whereby and Where under the learned Additional Sessions Judge, after holding the appellant guilty for commission of culpable homicide amounting to murder of Kishun and Painam, in sharing common intention, convicted the appellant under Section 302/34, 302/34 of the IPC and sentenced for life imprisonment. The sentences were directed to run concurrently. «w mww wSW ymm».m um z. APPELLANT ma s R ri nan VERSUS o g S nikhadan, a RESPONDENT 2. The conviction is impugned on the round that without there being an iota of evidence swcient for convicn'on of the aellan the learned Additional Sessions udge ha onvicte n snced the appellant as aforementioed and Therby committed illality. ca , a 50 h a t tt ime t g y d tr e nd 1), sn of Paitram seen the incident. Jaggu narrated th incident to Sukhram (PW2), wh immedtely went to Police Statio n loded merg intimation vide Ex. / 1 and Ex. P/2 and FIR vide Ex. P/3. The €estigating Oilicer left for te scene of occurrenc nd after summoning Witnesses, inquest over the dea bodies of th deceased was prepared vide Ex. P/4 and Ex. /5. pot'a as prepared vide Ex. P/6. Blood stained stone and iece of stic wa recovere vide Ex. P/9. P soil and blood taid soil was recovered from th spot vide Ex. P 10 and x. P 1 . Dead bod of Kishun was sent for autos to P.C. Chui Khadan ide E P/ 18(A), where Dr. M.G. Tiwan' PW-9) coucted utops vid E P/ 18 and found followin injuries : i. ead was lacerated. One lacerated wound over left side o H f the head of6 x 2 cm 3. As per se of pmsecution on 18.11.2002, t about .3 pm, Caim nd Kishun were coming with their cattle, a ha f, he appellant alon with Duiodhan, assaulted Chaitram an ; ?4 Kishun with sticks and stones and thereby caused hei instantaneous death. Court witnss Jaggu and Vio (PW— o \x i Lacerated wound of 3 x 2 cm over right side of head. Brain matter was coming out from the injury. 1n Lacerated wound over nose of 3 x 2 x 1 cm. Blood was coming from ear. iv. Fracture of head and face. Contusion over the face of 4 x 3 cm. Brain was badly damaed. g y ppt, J s cd adt ente n e eg e ~ o ia n ad - g P In h e a d e P Smp w p k s d lain sne e / E / 1 y py .H v x. ( nd ay e x. g g vi. Frontal, parietal and andible bones and maxillaxbone were found fractured. Dead bod of Paitr was se o autopsy to PH. Chui Khadau vide Ex. P/ 19(A), whele Dr. M.G. Tiwari (PW—9) oncted autops Vide Ex, P/ 19 and ond following injuries : ‘ . n Contusion of x 2 cm over left side of the ches 3 t - acerated wound of 10 x 3 cm over parieta nd occipital region Br matter was coming out n‘ the injur. Lacerated wound of 8 x 3 cm over left prietal regon. Brai m y s Parietal, temora, maxillary and frontal oes er found fractured. pl bn we Case of death wa severe head inur. Accused R a taken into custody. He made disclosure statement of stick and bo stained clothes ide x. P 12; it wa recovere t t nstance of the appellant vide Ex. P/ 14. Disclosure statemenof uvenile oEender Duryodhan vide Ex. / 1 an recovery o stic pp . d articles were sent or chemical exanation vide x P/ 27. Presence of blood was connrmed over the clothes of the appellant vide Ex. P/28. . Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). 4. After complen'on of investigation, charge sheet was med before the Additional Chief Judicial Magistrate Khairagar-h, who in turn, committed the case to the Court of Sessions, Rajnandgaon, from where the learned Additional Sessions Judge received the case on transfer for trial. 1 Head was severely deformed Contusion of 8 X 2 cm on chest. atter was coming out from the injur. Vi. Left ear wa found cut. lod :v E / s d a he' i t j P 3 d f k, and clothes was reared vide Ex. P/ 16 and Ex P/ 17. Seize f mi E. . m y- y am nt fr ..C cdu y fu L l a ; ain om y a i n u s jy ama ws 5. In order to prove the guilt of the accused/appellant, prosecution examined as many as 1G witnesses. Jaggu was; , xamined as Court Witness. Accused was examined under Section 313 of the Code, in which, he denied the cimumstances appean'ng against him, innocence and false implication in cn'me in question was claimed. Defence has examined Bihari Ram Yadav as defence ,7 V witness (DW— 1), Head Master of the School, who has deposed that on 18. 11.2002, Vinod (PW-1) was present in School up to 4.30 pm. 6. After anording opportunity of heaxing to the parties, the learned Additional Sessions Judge convicted and sentenced the -' appellant as aforesaid mentioned. 7. We have heard Shri K.K.Singh, learned. counsel for the appellant and $hii S.R.J. Jaiswal, learned Panel Lawyer for the State, perused the judgment impugned and record of the trial Court. 8. Leaxned counsel for the appellant vehemently argued that conviction of the appellant is solely based on the evidence of Vinod‘ (PW- 1), who b son of deceased— Paitram and he is interested and tutored witness. His evidence falsihes the evidence of Bihari Ram Yadav (DW- 1) Head Master of the School, as per whose evidence, this witness was present in the School and he has not gone for grazing the cattle. He argued that if the evidence of this witness is relied then the injury found over the body of Paitram and Kishun has been daused by the cattle. ' He further argued that the deceased Paitram was facing trial for commission of murder, in which, juvenile oEender Duryodhan was an important witness; he w has tried to absent this witness in court. On the date of incident, » Kishun and Paitram tried to kill Duryodhan— nephew of this ’ i” appellant then in order to save themselves they had caused 1 or 2 blow and when they fell down theirbodies were crushed by the cattle. e ' Q. On the other hand, learned counsel for the State vehemently opposed these arguments and submitted that conviction of the appellant is substanu‘ally based on the evidence of sole eye witness Vinod (PW-1), son of deceased Paitxam, who was present at the time of incident. His evidence is reliable and trustworthy and su$cient for conviction of the appellant. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecutiOn. 11. In the present case, death of Kishun and Paitram as a result of fatal injury has not been substantially disputed on behalf‘of the appellant, on the other hand, it is established by the evidence of Dr. MG. ’I‘iwar (PW-9) and autopsy Ieports Ex. P/ 18 and Ex. P/ 19. l2. \‘Q As regards complicity of the accused/appellant in crime in question is concerned, conviction of the appellant is based on the evidence of Vinod (PW—1) and court witness Jaggu. Court has w examined the child witness Vinod (PW- 1) after testifying that he is competent and is capable of understanding the questions put to him and answering those quesh'ons properly. Vinod (PWal) has categorically deposed that he was coming with cattle along with his father Paitram and grandfather Kishun; appellant Rama and his nephew Duryodhan met them in the way and they assaulted Kishun and Paitram and thereby caused their death. He shouted from the spot and narrated the incident to Jaggu, who narrated the incident to elder brother of his father Sukhram and Sukhram immediately went to Police Station and lodged FIR. ln his detailed cross-examination, he has admitted in para 22, 25, 26 and 28 that he was tutored by the counsel. In para 16, 17 and 18 he has also admitted that during the comse ofincident Kishun and Paitram fell down and they were crushed by the cattle, but he h nied a as de the suggestion in paxa 20 that the appellant and Dulyodhan has not assaulted his father and grandfather. His evidence is well corroborated by the evidence of Jaggu, who is a Court witness, which is also 11nd substantially supported Mm his statement recorded under section 161 of the Code vide Ex. D/3. 13. Vinod (PW-1) 8 years child is a tutored witness and his detailed evidence revealed that he has seen the incident; he was present at the time of incident, appellant—Rama and Duryodhan assaulted Kishim and Paiuam and when they fell down between the cattle, they were crushed by the cattle. He has denied the suggestion that he has not seen the incident and has admitted that r he was also tutored by the counsel. This evidence clearly shows that he is an eyewitness of the incident, who saw that the appellant has assaulted Paitxam and Kishun by stick and when they fell down they were crushed by the cattle and he was tutored by the counsel. His evidence does not reveal that he is the only tutored witness and has not seen the incident, but he has deposed on the basis of tutoring. His evidence is well corroborated by the evidence of court witness Jaggu and Sukhram (PW-2), to whom Jaggu has narrated the incident and the promptly lodged FIR by Sukhram, Ex. P/3. As per injury found over the dead body of the deceased Kishun and Paitlam, Dr. M.G. Tiwari (PW-9) has admitted in his cross examination that the same fatal injury may also be caus‘ed by the animal. In para 11 of cross examination, Vinod (PW- l) has specifically admitted that some altercation took place between Paitram and Duryodhan i.e. juvenile oh‘ender. Both abused each other; Paitram also directed Duryodhan not to go for. giving evidence. He has also admitted that Kishun threatened Duryodhan that ifwill give evidence then he may also be murdered like Dayalu. In para 12 of his cross examination, he has admitted that Duiyodhan told Paitram that he Will discharge his duty and court may decide the case. He has also admitted in para 12 that '9 3 / \ A“? his father Paitram called his grandfather Kishun and told that they are having opportunity and Duryodhan is present before them. In para 13 he has also admitted that Kishun had again threatened Duryodhan that he should not give evidence in Couxt, which was refused by Duryodhan; at that time, Paitram and Kishun were holding sticks. In para 14, he has speciiically admitted that Duryodhan was between Kishun and Paitram. Firstly, Kishun assaulted Duiyodhan by stick upon his back and told Paitram that- they will km Dmyodhan today, on which, Duxyodhan went between the cattle then Kjshun raised stick for causing injmy to Duryodhan, but anyhow Duxyodhan saved himself and the stick hit to the cattle and the cattle of Duryodhan became uncontmlled. Para 11,12,13,14 and 15 of the evidence of Vinod (PW~ 1) clearly revealed that the deceased Paitxam and Kishun have threatened Duryodhan, nephew of Rama and have assaulted him and tn'ed to kill him on account of giving evidence in comt. Although, present accused is the uncle of Duxyodhan and he has not taken specihc defence of right of private defence of a person, but the above evidence clearly revealed that they have caused injury to Paitlam and Kishun in exercise of right of private defence of person. Para'3 ‘of evidence of this witness revealed that they have not caused severe or multiple injury to the deceased persons, but when Kishun and Paitram assaulted them, they went between the cattle to save themselves and they alsofell down and received crushing injurx's by the cattle. Defence has not examined the injury received by Duryodhan, but aforesaid admission is sumcient for drawing such inference and it gives enn'tlement to cause minimum injury in exercise of their right of private defence. In these circumstances, definitely, the death of Painam and Kishun is homicidal in nature and the appellant along with Duryodhan, in sharing common intention, has caused homicidal death of Paitram and Kishun, the accused petsonswere entitled to cause injury to a save their life, but as p€r evidence of Vinod (PW- 1) after receiving one injury to Duryodhan, the appellant and Duryodhan eauscd the aforesaid injury to the deceased persons, which shows that they have caused the injuries in exercise of right of their private defence, which resulted into death. This evidence is suficient for drawing an inference that the appellant has not caused culpable homicide amounting to murder of Paitram and Kishun, but the role attributed to this appellant is completely Within the ambit of n Sech'on 304 Palt II of the IPC. 14. While convicting the appellant under Section 302/34, 302/34 of the IPC, Court below has not considered para ll to 15 of the evidence of Vinod (PW- 1) and the right of private defence of the appellant. for causing such injury and athexeby committed illegality. Definitely, present appellant has caused injury in sharing common intention, which falls under Section 304/34, 304/ 34 of the IPC. 15. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302/34, 302/34 of the IPC is altered into Section 304/34, 304/34 of the IPC and ' considering that the appellant has been sentenced for life imprisonment, he is sentenced for the period already undergone i.e. since 20.11.2002 till today for ahout more than 8 years for both the oEences, as both the sentences were directed to run concurrently. He be released forthwith, if not required in any other Q case. Sd/i a] 5w. R.L.Jhanwar \ I sunita ' /