1; ; minal AgEeal o. 367’ of zoz . APPELS LANT Akhllesh Kumar, S/o C Prem Bagh m HIGH CE R URT OF CHHATTISGARH BILAS’PU cfi n q 1 29 ears ' y Sa1esh @ Shallesh Kumar So rem Bagh 22 ear C P g, 7 . rem Bah :2 ENT tate o hattlsgarh Throug lst alstrat sa- adal ' hl / C P ys , gamesh‘ S/ ars. Rjh S Prem Bagh 25 years aes /O‘ C ures S/o C Prem Bah ag bout 2O ear l o V1 Kasturl Gudapara P agar Naar Dlstt Bastar (C G Vrsus e S f Ch h Dt Mge Dlstt Batr Jgpur. Section 374 (2l of Cr P eayanc h s Sri Prafull Bharat counsel for the appellant Sr1 Akll Mlshra Panel Lawyer for the Stateresonde h h /pnt '( H) BIVIsroN BENC L SHRI L C BHADOO 8 HON’BLE SHRI SUNIL KUMAR SI 14.09.2007 olowmg Judgment of the Court was dehvered b un umar Challenge 1s made to the udment of conv1ct10n f snt S Juge essmns d th Marc 2002 passed b the 4th Adltlna galur '(ast Kl, o. ye Sh g ed a ys ‘ Al R/ 11 S N ) RESPOND (Apgeal under C 1 Agge HON’BE 5 NHA JJ JUCDGMENT' ‘ () Fl y Sil K (1) Jg and order o eence date l 1 h y dol adpf Bar, f Criminal Appeal N’o‘. 367 o 2002 ' ‘ 302/ 149 I.P.C. andtsentenced to undergo imprisonment for life ‘ ? a‘nd, to pay flne of‘Rs.500/-, in default Qf payment of fl-ne/to ‘ fuyther undergo R.I. for 6 months. Apart from that appellants 1 No. 1, 8, 4 85 5 have also been convicted u/s '147 I.P.C.‘ and i sentenced to undergo R.I. for 2 years and to pay f1ne of Rs.IOO/, in default of payment of fine to further undergo R.I. for 1 month and appellant No2 has been convicted ‘u/s 148 I.PtC. and sentenced to undergo R I for 3 years and to pay fine of Rs 200/, a v 1n default of payment of fine to further undergo RI for 2 months The respectlve sentences have been directed to run concurrently (2) The allegatmn are that on 6 11 2000 at about 12 1n the Noon, Kahcharan, along Wlth h1s servant Gopalu, was gomg on a bullock-cart to the fleld of his uncle Yisucharan for taking i paddy crops On the way, the accused persons armed With, Lathis 85 Tangia, attacked him He received many injuries resulting into his instantaneous death (3) The matter was reported by Yisucharan (PW- 1s) to police station- Nagar Naar vide EX —P/ 1 The Investigating Officer left for seen of the occurrence, recorded a Merg Intimation under Ex P/2 and gave notice to the Panchas under Ex P/ 17 t i prepared inquest on body of the deceased under Ex P/3 and sent the dead body for post—mortem examination to Primary Health Centre, Nagar Naar Site plan was prepared under Ex - " P/4 During the course of investigation, after taking accused i Shailesh @ Shailesh Kumar in custody, he recorded his memorandum under Ex —P/5, in pursuance of which Tangza was seized from his possess1on under Ex P/6 memorandum of accused Akhilesh was recorded under Ex —P/8 in pursuance of which a Danda was seized from his possessmn under Ex P/9 * memorandum of accused Kamlesh was recorded under Ex P/ 10 7d a Danda was seized under Ex P/ 13 memorandum of accused Rajesh Kumar was recorded under Ex -P/11 and a Danda was seized under EX P/14 memorandum of accused y, {f li ‘r: i .' uv v l :1 :‘ i r Suresh was recorded~under Ex P/ 12 and a Danda was se1zed'3 under EX P/15 Plaln SO11 and blood stalned $011 were also ‘ selzed from the place of occurrence known as “V11san Ka Marhan’ (desert land of V1lsan) under Ex P/7 Post—mortem L examlnatlon was conducted by Dr Sujeet V1shwas (PW 1 l), who prepared h1s post-mortem report under Ex P/2O He not1ced the ' followmg Injurles on the body of the deceased i) - Two stab 1nJur1es (Inc1sed), 6x 6 x’ 8cm. .- , 85 6 x 7 X 8 cm on’the posterior aspect of I‘ neck at n/middle. There were cutting of v musCles,’-skin5 vertebra (2nd — 3rd cervical Vertebra‘fsp‘ace), spin-a1, cord,‘ major 8a ' V, minor vessels (artery 85 veins)"(ca‘rotid V. + A.). ii) Incised wound on‘ the left side 'of left shoulder size 3 X 2 X 2 cm. iii) Incised wound 'on the front of left shoulder size 8 x 8 X 3 Cm. iv) Abrasions on the medial aspect of right forearm, 8 cm above to wrist (a) Size 4 X 4cm &(b)3x2cm v) Abraslon on the front of left leg (below knee) Slze 3 x 2 cm ext - According to him injuriesrNo 1 2 3 85 Sk‘were ante mortem' whereas injury No 4 was post-mortem 1n nature Injury No 1 2 85 3 were caused by sharp object and other 1nJur1es were caused by hard and blunt object 1n between 6 tol2 hours prlor to post—mortem examination He gave h1s op1n1on that the cause of death was shock and asphyx1a due to neurogemc shock as a - g ‘ I resultmg of cutting of splnal cord at the level of C2 C3 and' I __ excess1ve hemorrhage (4) In further investigatlon, the seized articles were sent for chem1cal exammation to Forens1c Selence Laboratory Vide EX - P/25 from Where a report Ex —P/27 was recelved Accordmg to ' i the sald report blood stams were found on the clothes of the r5 l W, Criminal Appeal o Criminal Amgeal No. 367 :of2002 t}; deceased, stained soil and Axe seiz'ed from the possession of- accused Shailesh, Whereas no blood stains were found on the plain soil. (5) After completion of usual investigation, the charge-sheet was tiled in the Court of Judicial Magistrate First Class, Jagdalpur who in turn committed the case to the Sessions“ Judge Jagdalpur from where 1t was recelved on transfer by the [Court of Fourth Additional Sess1ons Judge Jagdalpur, Where the trial was conducted. (6) Prosecutlon 1n order to establish the1r case, examlned 13 t Witnesses statement of accused persons were recorded under Sectlon 313 CrPC 1n which they denied the material appearing agalnst them 1n the prosecution ev1dence and took the plea of false implication. The defence examined 6 Witnesses, particularly taking the plea of alibi. Learned Additional Sessions Judge, vafter hearing the. arguments of respective parties, convicted and sentenced the appellants as aforementioned. (7) The cOnviction of the appellants is based upon the testimony of 3 eye witnesses namely Gopalu (PW-2); Mahesh (PW—5) 85 Yogendra (PW—6). The learned trial Judge held that the testimony of 3 eye witnesses'are’trustworthy and dependable and the plea of alibi raised by the accused persons was not acceptable. 8) Learned counsel for the appellants firstly argued that the testimonies of 3 eye Witnesses are not reliable and the conv1ction ased upon their such testimonies cannot be sustained He econdly argued that the appellants, were in settled possessmn of ’ ' i, the disputed field, on which, their unriped crop was standing, i _ ‘ and as per the prosecution case, as the complainant party started harvesting the crop, the appellants were hav1ng right of ‘ private defence of their property, which was exerc1sed by i appellant Shailesh only and other appellants have been falsely 4 . ( b s C‘ e 6 'vrimina1A ai N9: 37‘ of 2002 ." 1mpl1cated 1n the case Lastly, he argued that the defence of alzbl ‘ has wrongly been rejected 3(9) On the contrary, learned counsel for the State opposed these arguments and supported the Judgment of conv1ct10n and , , . order of sentence passed by the trlal Court (10) We have heard the learned counsel for the partles at length and have also perused the records of the Sess1ons Trlal (11) PW 2 Gopalu has deposed that on the fateful day when V he was gomg along w1th the deceased Kallcharan on the bullock- ee, the ccused persons ap"'eared _ nda thereafter accused ngta, and after seelng all thls he ‘ ecame unconscmus When he gamed consc1ousness he saw that the body of Kahcharan was lymg under the bullock cart There were 3 1njur1es on h1s neck and there was also 1nJury of - Tangla on h1s shoulder He has spec1f1cally deposed Vlde Para-2 u that Shallesh had assaulted Kahcharan by Tangla and other accused persons had assaulted h1m by Danda In cross- r ’ exammauon he has adm1tted that the deceased Kahcharan was son of Ylsucharan In Para-10 of hls examlnatlon he has been shown h1s pol1ce statement regardmg saymg that the accused ; persons came out from the bushes, wh1ch was not sald by h1m ' 1n the court statement except thls, nothmg materlal has been brought 1n h1s cross exam1nat10n for hold1ng h1s test1mony unrehable (12) ?’W 5 Mahesh ls the other eye w1tness who deposed that on the fateful day 1 e on 6 ll 2000at about 11 3O 12 1n the day, was s1tt1ng along w1th Yogendra and Dharmendra on a if, culvert (Pulzaya) 1n the wllage At that t1me Kahcharan and ‘ Gopalu were takmg bullock cart towards the field All of a sudden Shallesh and h1s four brothers (whom he does not fr a _ p _’ I I H V _ p x a b 6 Criminal Appeal No. 3 67 of 2002 accused persons had came togethervto the seen'of occurrence and'after assaulting the deceased, they ran away from the seen o_f occurrence. In Para—3 of his deposition, he has deposed about the manner of assault and has said that he and Yogendra I disclosed the incident to Yisucharan and Vishwas’. In cross- examination vide Para-7, he has stated that Yisucharan and Vishwas were near the desert land of Vilsan (Vilsan Ka Marhan) and he has told the story at that place In Para-14 he has admltted that the dead body of the deceased was lying 1n Vilsan s desert land It has been argued by learned counsel for the appellants that when the place of occurrence was desert land of V11san and the dead body was also lying there then the vers1on of this w1tness that “he went to tell the story to Ylsucharan and V1shwas, who met him near the desert land of Vilsan” appears to be false. This argument advanced by the learned counsel for,the appellant does not appear to be convincing because it was just possible that they had met them, after sometime, ‘near the .desert land of Vilsan and that by itself does not render his testimony unreliable. His meeting with Yisucharan and Vishwas near the place of occurrence or‘ at some village. The scheduled timeof beginnihg of match wasi12 Noo but since ‘a murder took 'place in the village,‘ the match was r cancelled The students from Nagar Naar had came at 12 Noon‘ for playlng match and when they were 1n h1s house h1s brother N1rma1 came and sald that smce the murder had taken place 1n the village, the play will not take place. It is argued that since this witness has'admitted that he was in the‘house and his " brother came and told h1m, therefore, he has not w1tnessed the occurrence It was also argued that he has deposed that they a had gone and had told the story to Kedar Mashih and they had i ' ,l not told the story to any body else, therefore, either vers1on o s andw one else About the first i “,1 t that h1s b other told In that a murder has taken place 1n the Village, 1t has not been clarified by the defence in cross— ' examination as t0 when he came to know about murder? By disclosure of his brother or he was knowmg about the murder and brother only said it and told that on account of murder the , match Will not take place. If Simple meaning 1s given to his such statement after reading the entire paragraph, (not in isolation'),’}it would appear that his brother had only told him that they will net play the match on account’ofdeath in the Village. About the _ actum of disclosure of story, there is contradiction Mahesh told hat he and Yogendra disclosed the story to Yisucharan and ishwas and this Witness says that they had disclosed the story to Kedar Mashih But on such contradiction only, their entire ,r ji ” eVidence which appears to be natural and reasonable cannot be isbelieved It is settled prinCiple that minor contradictions ‘ ich do not go to the root of the matter and which do not dit the entire credibility of a Witness cannot be given much v ‘ J L “ mportance to disbelieve the testimony of such Witnesses If on n re eVidence of the Witness his testimony appears to be nspiring the confidence of th riminal Appe’a‘lNor. 367 of 20 C 02 ~ - h, , f h n f t V d ‘h l e i , e i ev 8 Criminal Appeal No. 367 of 2002 r deposed that he had also seen Gopalu therefore, he should be j dlsbelleved Thls may be an omlssmn but the questlon 1s as to Whether the omlss1on ls of such a nature, on wh1ch the entlre ‘testunony of th1s W1tness should be thrown out? In our consxdered oplnlon only on the ground that th1s w1tness has not ‘ * said that Gopalu was also there Wlth Kahcharan 1n absence oft l effectlve cross examlnatlon on th1s pomt h1s testlmony cannot be dlscarded The om1ss1on 1s not so v1tal whlch goes to the root of the matter and not nammg Gopalu as a person accompanymg ’ ‘ the deceased on the face of other ev1dence on record does not r make any d1fference 1n th1s case d by the learned counsel - 3 ifor the appellants that these 3 eye Wltnesses are not rehable as ‘ B :they are contradlctlng on materlal. facts w1th each other cannot :be accepted In fact eye Witnesses are not contradicting on material facts, on the contrary, they are corroboratmg each other on the matenal facts 1 e on the fact of assault bemg made by all the accused persons, and on the bas1s of mlnor‘ contradictions, referred to above in their evidence, their testimony cannot be discarded. (15) So far as right of pr1vate defence of property 1s concerned his plea was not taken by the accused persons before the trlal r urt Learned counsel for the appellants argued that even 1f the ea was not taken that can be raised 1n appeal He relied o A t y o l n _ l herefrom that the plea of pr1vate defence should be spec1f1call - taken and 1f not taken shall not be available to be con31dered llable 1n the case A plea ' f self defence can be t e t a o ak ’— 7 , 9 criminal Appeal No. 367 of 2002 :;\ addu‘cing'" defence evidence And even 1f the plea Is not ' mtroduced 1n any one of these three modes stlll 1t can be ra1sed l‘ durmg the course of subm1ss1on by relylng on the probab111t1es ‘ and c1rcumstances obtammg 1n the case (16) About the r1ght of prlvate defence 1t has been observed by i the Apex Court 1n the matter of Bishna ahas Bhiswadeb I ahato and others —Vs- State Io , WB 2005 12 SCC 657v v1de Paras— 74 to 78 as follows A “74 “Rlght of prlvate defence 1s not defined Nothlng 1s an offence 1n terms of Sect1on 96 of the Penal Code 1f ‘1t 1s done 1n exerc1se he rlght o t f ,: extends not only t the p s exerc1s1ng the rlght ‘9 I but to any other person The nght may be exerc1sed I 1n the case of any offence agalnst the body and 1n the ‘ case of offences of theft robbery, mlsch1ef or crlmlnal _ trespass and attempts at such offences 1n relat1on to L 3 5" ' property Sectlons 96 and 98 confer a rlght of prlvate _ defence agamst certam offences and acts Sectlon 99 ,. lays down the 11m1t therefor The rlght conferred upon , V a person 1n terms of Sectlon 96 to 98 and 100 to 106 I ls controlled by Sectlon 99 In terms of Sectlon 99 of the Penal Code, the nght of pr1vate defence, 1n no , r case extends to lnfhctmg of more harm than 1t 1s mecessary to lnfhct for the purpose of defence Sectwn 100 prov1des that the rlght of prlvate defence of the body extends under the restrlct1ons mentloned 1n the last precedlng sectlon to the voluntary caus1ng of death or of any other harm to the assallant 1f the I he exerc1se of the rlght be of _ 'erated therem namely, I as, may reasonably cause he apprehensmn th :de ’h’L‘Wlll otherW1se be t M of o t m , t he criminal A “eal Nd. 367 6f200é cchseque'ncé of such assault; Secbndly —"Such ’an, ; 7 ‘ E assault as may reasonably cause the apprehenswn ~ , ' ‘j' ‘ that grlevous hurt W111 0therw1se be the consequence- of such assault” To clalm a r1ght of pnvate defence extendlng to voluntary causmg of death the accused L must show that there were c1rcumstances g1v1ng r1se‘ V to reasonable grounds for apprehendmg that e1ther _ death or grievous hurt would be caused to h1m The N burden 1n th1s behalf 1s on the accused r ” I ' 75 Secuons {102 and 105 IPc deal wuh’ contmuance of the rlght of ommencement a c n reasonable apprehenslon of‘ I danger to the body‘a‘riSes from an attempt or threat to comm1t the offence although the offence may not, M I L, have been committed but not untll there is", reasonable apprehenswn In other words, the right lasts so long as the reasonable apprehensmn of the' 1 danger to the body contmues t 76. So far as exerc1se of the r1ght of prlvate defence of property extended to causmg death 1s concerned the same 1s covered by Sectlon 103 of the ‘ Penal Code Such a r1ght 1s avallable 1f the offence the \ \\ m1ss1on of wh1ch or the attemptmg to comm1t wh1ch occas1ons the exerc1se of the r1ght be an offence of any of the descrlptlons enumerated v12 robbery, housebreak‘ gg by nlght m1sch1ef by fire ‘ L' L commltted on any bu dlng, theft m1sch1ef or house— trespass The sald prov1s1on therefore, has ,no apphcatmn 77 Sect10n 104 prov1des that 1n relatlon to the ' ' offences as enumerated 1n Sectlon 103 the r1ght of prlvate defence c exerc1sed to the voluntar aus1ng‘to the wrongdoer of any harm other th 10 a m an e y c an rimmal Ap‘p/eai’liNéI 36'7”of 200 C 2 " m contlnuance of the nght of pr1vate defence of property whlch reads as under ' / “105 Commencement and continuance of the ' nght of pnvate defence of property The rlght of prlvate defence of property commences when a' reasonable apprehensmn of danger to the property; / _ commences The rlght of pnvate defence of property agalnst theft contmues t111 the offender has effected hls' retreat Wlth the property or elther the ass1stance of , the pubhc authentles 1s obtalned or the property has been recovere. , The rlght of p vate defence of property agalnst , robbery contlnues as long as the offender causes or‘ attempts to cause to any person death or hurt or‘ wrongful restramt or as long as the fear or 1nstant death or of Instant hurt or of 1nstant personal restralnt contlnues The right of private defence of property against crlmlnal trespass or mischlef contlnues as long as the offender contlnues 1n the commissmn of cr1m1na1 trespass or mischlef. L ‘ I The right Of private defence of property against housebreakmg by n1ght contlnues as long as the r house trespass whlch has been begun by such housebreaklng continues ' V 78 Section 105 of the Ev1dence Act casts the burden of proof on the accused who sets up the plea of self defence and 1n the absence of proof 1t may not .be pos51ble for the court to presume the correctness or otherw1se of the said plea No pos1t1ve ev1dence although 1s required to be adduced by the accused 1t is poss1ble for h1m to prove the said fact by e11c1t1ng the necessary matenals from the w1tnesses examined by the prosecutmn He can establish h1s plea also ‘ i d * s ‘ 12 Cn'minal’Appeal No. 367 ofzooz :3“ r from the attending circumstances, as may transpire from the eVidence led by the prosecution itself.” 117) Inthe matter of Salim Zia -Vs- State o Uttar Pradesh <AIR 1979 SC 391, the Apex Court said vide Para- 9 that it is 30f self defence is not as onerous as the one which lies on the prosecution and that While the prosecution is required to prove zits case beyond reasonable doubt, the accused v need not establish the plea to the ihilt and may discharge his onus by establishing a'me‘re preponderance of probabilities either by laying basis for that plea iri‘the cross—examination of prosecution true that the burden on an accused person to establish the plea’ ‘ witnesses or by adducing defence evidence. (18) Therefore, it is iclear that even if a plea of right of private defence of property was not taken by the accused persons at the stage of trial, but, if in fact, it was available to’them, they-may obtaining inthe case. No positive evidence’although is required to be adduced by‘the accused and the burden of proof can be discharged by eliciting the necessary material from the Witnesses examined by the prosecution and it can be established by attending circumstances as may come out from the prosecution evidence itself or it can simply be discharged by addu'cing the defence evidence. y (19) In the present case, admitted position is that a civil suit was pending between Yisucharan and Hastimani (mother of the appellants) and the property was claimed by both of them. During the pendency of civil suit, 145 Cr.P.C. proceedings were also drawn at the instance of the police by the Executive Magistrate and the case, which was registered on 17.10.2000 'Wa‘s fixed for 7.1 1.12000 by the said Magistrata It comes from the evidence of DW-l, Vasudeo Mandavi (Reader of S.D.M. Court) raise the plea on the probabilities and the circumstances _ L that on 20.10.2000, copy Ofju'dgment passed by the Civil Judge; ' g Class-II, Jagdaipur in Civil suit No. 82A'/98,o_n 30.9.2000 was; _ , iled before the Executive'Magistrate, on which, the Magistrate f Criminal Apgeal No. 367 of 2002 ' {f r dismissed the prbceeding‘s under Sectiori 145 Cr P C in the said ' proceedmgs, there was no d1rect1on by the Maglstrate as to, Whlch party has to be glven possessmn of the land He has admltted 1n cross exammatmn that party No 2 was not 1nformed' I about the proceedlngs of d1sm1ssal of the case whlch took place“, -, on 20 10 2000 He has proved the copy of the order—sheets recorded by the Executwe Maglstrate on 2O 8 2000 27 9 2000 17 10 2000 and 2O 10 2000 as EX D 1A (20) Hastlmam Bal has been examlned as DW 4 She has deposed that the land was possessed by her It has also come 1n n u the ewdence of PW 1 Ylsucharan, V1de Para~13 that the land " was 1n possessmn of Hast1man1 Ba1 and on the date of 1nc1dent the crop of the sa1d land was be1ng harvested by them Therefore I 1t 1s clear that 1n fact the land was cultlvated by