-a. HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANTS: RESPONDENT: Criminal Appeal No.974 of 1992 1. Ramratan son of Dauram Suryawanshi, aged 35 years, 2. Dauram son of Lachchhiram Suryawanshi, aged 55 years, (DIED) 3." Kapilram son of Dauram Suryawanshi, All Resident of village Darri, Thana Pamga.rh, Tahsil Janjhgir, Distt. Bilaspur (M.P.) (now C.G.) Versus State of Madhya Pradesh (now Chhattisgarh) {Criminal appeal underSection 374 (ii) ofthe Code of Criminal Procedure, 1973} Present: Mr. Abhay Tiwari, counsel for appellants No.l & 3. Mr. Rajendra Tripathi, Panel Lawyer for the State/respondent. Division Bench: - Hon'ble Mr. T.P.Sharma and Hon'ble Mr. R.L. Jhanwar, J3 ORAL 3UDGMENT (19-4-2010) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 17-8-92 passed by the 1 Additional Sessions Judge, Bilaspur in Sessions Trial No.8.9/90, whereby & whereunder learned 'Additional Sessions Judge after holding the appellants guilty for commissiop orculpable homicide amounting to murder of deceased Sukhram', convicted the appellantsunder Section 302 of the I.P.C. and sentenced each of th-em to undergo imprisonment for life. .2. Conviction is impugned on the ground that without any clinching and credible evidence, learned Additional Sessions Judge has convicted & sentenced the appellants in the aforesaid manner and thereby comm-ittedillegality. . SSteK^aaSJiK^c^^ "-U-T II 11; 3. On account of the death of appellant No.2 Dauram, the appea' it relates to appellant No.2 Dauram abates. ar 4. Case ofthe prosecution, in brief, is that Parmanand (PW-14) - son of deceased Sukhram & son-in-law of deceased appellant Dauram, whose wife Urmila Bai was residing with the appellants, received letter Ex.P-12 relating to delivery of one female child, on 28-10-89 he along with the deceased came to village Darri from his village Khokhra and after discussion with the members of the village when they were going back to their village Khokhra, they were followed by deceased appellant Dauram & appellant Kapilram who were holding stick, appellant Ramratan & three other female accused were coming from village Bhadesar after milling the paddy, appellant Ramratan was carrying rice with the help of kawad, he saw Parmanand (PW- 14), his brother-in-law, and he chased Parmanand with kawad and assaulted him. Co-accused deceased Dauram after snatching stick from Sukhram assaulted him over his head with stick, when Sukhram fell down Parmanand (PW-14) fled from the spot and shouted for help on which persons of village Bhadesar came and at that time all the appellants were assaulting his father i.e. deceased Sukhram and lady accused were pelting stones over Sukhram. After intervention of the villagers, the accused persons fled from the spot and at that time, Sukhram was alive. Parmanand went for bringing water and when he came with water his father was dead. Thereafter, he went to the Police Station and lodged merg intimation vide Ex.P-10 and F.I.R. vide Ex.P-11. He was examined by Dr. K.K. Bhutani (PW-1) vide Ex.P-1 who found swelling over left hand. The Investigating Officer after summoning the witnesses vide Ex.P-3, prepared inquest over the dead body of Sukhram vide Ex.P-4. Dead -b'ody was sent for aytopsy to Block Medical Officer, Primary Health Centre, Janjgir'vide EX.P-19A. Dr. U.C. Sharma (PW-13) conducted autopsy Vide Ex.P-19 and found following injuries: - (l)Lacerated wound o.y Vi" x Vz" x 1/4" over right temporal region comprising fracture ofskull bone. (2)Lacerated wound of 4" x l" x 1/2" over ternporal region, brain matters were co'ming out from the injury comprising fracture of temporal bone. (3)Lacerated wound of 1" x 1/2" x 1/2" over left temporal region. ^nrtSsSaa:la» (4)Lacerated wound of 2" x 1 1/2" x 1/2" over occipital region comprising fracture of occipital bone and brain matter was coming out. (S)Lacerated wound of 1" x 1/2" x 1/2" over right side of temporal region. Cause of death was haemorrhage as a result of injuries over scalp and death was homicidal in nature. 5. Rice and bran were seized from the spotvide Ex.P-5. Blood stained & plain soil were seized from the spot vide Ex.P-6. One cycle, one tendu stick and four pieces of bricks were seized from the spot vide Ex.P-7. Clothes of the deceased were seized vide Ex.P-2. During the eourse of investigation, accused Kapilram was taken into custody, he made discloser statement of bamboo stick vide Ex.P-8 and the same was seized from Kapilram vide Ex.P-9 along with kawad. Letter Ex.P-12 was seized vide Ex.P-13. Patwari prepared spot map vide Ex.P-14. Seized articles were sent for chemical examination and presence of blood over stick & bahanga were confirmed vide Ex.P-22. 6. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before the Cpurt of Judicial Magistrate First Class, Janjgir who in turn, committed the case to the Court of Sessions, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. 7. In order to prove the guilt of the appellants, the prosecution has examined as many as sixteen witnesses. The accused were examined underSection 313 ofthe Cr.P.C. in which they denied the circunnstances appearing against them, pleaded innocence and false imp.lication. The accused persons have taken the defence that while they were eoming after milling the paddy, deceasfed Sukhram, / Shankar, Parmanand (PW-14) & Maniram caught hold of them and tried to drag them on viffiich they shouted and cried for help whereupon Ramratan came and rescued womeri, then Parmanand & others fled from the spot. 8. After affording. opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting the other three women ..,.-.__-_.._-„._<,.. • Tiai61B.3S'lil;3.7,:'3ssi:-taST^t 1 ^issniags^ /^?'^"1"'^^.. /' ff'"^"^ ^ ^^•, A'b a'-E^'accused namely, Kevribai, Gulapibai & Terasbai, convicted & sentenced the appellants herein as aforementioned. 9. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. lO.Learned counsel for appellants No.l & 3 vehemently argued that in the present case, as per the case of the prosecution the incident took place near village Bhadesar while appellant Ramratan & other persons were going to their house after milling the rice, deceased Sukhram & his son Parmanand, residents of village Khokhra, came and assaulted Ramratan & others on which in exercise of the right of private defence, Ramratan has caused injuries. Learned counsel frankly admits that while exercising the right of private defence, appellant Ramratan has exceeded his right of private defence and has caused the death of Sukhram, but other accused persons have not caused any injury. Ifthe evidence ofthe prosecution is admitted in its face value, the act ofthe accused will fall under the category of Section 304 Part-I ofthe I.P.C. ll.On the other hand, learned State counsel opposed the appeal and submitted that the evidenceof Parmanand (PW-14) - injured witness is sufficient for drawing inference that all the appellants have caused fatal injuries to Sukhram & others and have caused the death of Sukhram. l2.In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. l3.In the present case, homicidal death of deceased Sukhram as a r^sult of ante mortem fatal injuries has not been substantially disputed on behalf of the appellants, otherwise also it is established . - by the evi^ence of Dr. U.C. Sharma (PW-13) and autopsy report Ex.P-19 that the death ofthe deceased was homicidal in nature. l4.As reg.ards conviction of appellants No.l & 3, conviction is substantially based on the evidence of Parmanand (PW-14), eyewitness Kheekharam Yadav (PW-9)/ Maniram (PW-10) & Ravishankar Sahu (PW-12). "-iSParmanand (PW-14) - injured witness has deposed that deceased -appellant Dauram was his father-in-law and appellants; Ramratan & m^ Kapilram are his brothers-in-law, their relations were not cordiaT and his wife who was residing with the appellants gave birth to a female child, then he received one letter Ex.P-12 from village Darri on which he along with his father went to village Darri from his. village Khokhra and while they were returning back to their village, appellant Ramratan, Gulabibai, Terasbai & Kevribai were coming from village Bhadesar a-fter milling the rice, appellant Kapilram & deceased appellant Dauram followed them, they were holding stick and after some altercation relating to sending his wife, appellant Ramratan assaulted him on hjs hand with kawad and he fled from the spot, then all the accused assaulted his father Sukhram with bricks, stone & stick, he shouted for help on which villagers came and saved them. His father was badly injured. He went to the Police Station and lodged report vide Ex.P-11. In his cross-examination he has admitted enmity between both the parties. He has denied the suggestion that they were dragging other co-accused Gulabibai, Terasbai & Kevribai. He has also denied the suggestion that he has assaulted Ramratan. l6.Another witness Kheekharam Yadav (PW-9) whom the prosecution has declared hostile has deposed that firstly, deceased Sukhram was creating pressure on the accused persons, later on he fell down and died. l7.Maniram (PW-10) has deposed that Sukhram was holding stick, when he fell down, appellant Ramratan assaulted him with /cawatf and other accused Kapilram & Dauram (since deceased) were not present there. l8.Ravishankar Sahu (PW-12) has also deposed that appellant Ramratan was quarrelling with Khokhrawala i.e. Sukhram. The person present with Sukhram was assaulting accused Gulabibai, Terasbai /&. Kevribai, Ramratan quarrelled with Khokhrawal and assaulfed Khokhrawala who also assaulted Ramratan then they fled from the spot. He has stated in para 5 of his cross-examination that Dauram (since deceased) & Kapilram were not present on the spot. l9.Kheekharam Yadav '(PW-9) whom the prosecution has declared tiostile and 'who has hot supported the case of the prosecution, ^- .Maniram (PW-IO^ & Ravishankar Sahu (PW-12) have deposed that Sukhram_'was assaulting Ramratan on which Ramratan assaulted -^^i( WW%i ,!**'^<"*h] Sukhram. Inimical witness Parmanand (PW-14) who has lodged the F.I.R. promptly has given the details in the F.I.R. in which he has mentioned the names of all the accused and the roles attributed to them. He is injured witness and his presence on the spot cannot be doubted. He is son of deceased Sukhram and he is relative witness. Relative witnesses are the last persons who screen the offenders and implicate the innocent persons falsely, though Parmanand (PW-14) - injured, interested & inimical witness has categorically deposed that two accused followed them and other accused came towards Bhadesar, then they assaulted him & his father. Five injuries were found on the body of Sukhram comprising fracture of skull bone. 20.Evidence of Kheekharam Yadav (PW-9), Maniram (PW-10), Ravishankar Sahu (.PW-12) & Parmanand (PW-14) reveals that on account of previous enmity both the parties quarrelled then Sukhram raised stick for causing injury to Ramratan on which Ramratan has caused fatal injuries to Sukhram resulting into his death. This shows that firstly appellant Ramratan has used criminal force in exercise of the right of private defence of person but when Parmanand (PW-14) fled from the spot and Sukhram (since deceased), aged about 60 years, fell down, there was no danger or apprehension of any injury to Ramratan or other persons, but even after falling down of Sukhram, Ramratan has repeatedly caused injuries to Sukhram which shows that Ramratan has exceeded the right of private defence and has lost his temper and caused injuries to Sukhram wha died on the spot. Evidence adduced on behalf of the prosecution shows that originally the deceased & his son Parmanand came to village Darri, then the quarrel took place, otherwise there wasno occasion for any quarrel or incident. Appellant Ramratan was coiTiing from the rice mill after milling his paddy, he was carrying rice & bran. This further shows that he was not chasing or following the - deceased anef at that time he was not having intention to cause the dea.th of deceased Sukhram. When all of a sudden the quarrel took place, he assaulted Sukhram. But while assaulting Sukhram, he has .exc.eeded his right of private defence. Therefore, his act squarely falls within the ambit ofS.ection 304 Part-I oftheI.P.C. ZI.Affer appreciating the evidence available on record, learned ,.'/ ^ 7. Additjonal. Sessions Judge has convicted & sentenced the appellants v-byt has not; considered the aforesaid aspect of the.case that '"'^ f ^ Soma ^SSh '^^^ 7 "appellant R.amratan, who has caused injuries in sharing common intention with Dauram (since deceased) & Kapilram, has not caused any injury with intent to cause the death of Sukhram, and thereby committed illegality. 22.0n close scrutiny of evidence, weare of the view that the acts of appellants Ramratan & Kapilram squarely fall within the ambit of Section 304 Part-I of the I.P.C. in sharing common intention for causing homicidal death not amounting to murder of Sukhram. 23.Consequently, the appeal so far it relates to appellants Ramratan & Kapilram is partly allowed. Coriviction of appellant R.amratan, under Section 302 of the I.P.C. is altered to Section 304 Part-I of the I.P.C. and conviction of appellant Kapilram under Section 302 of the I.P.C. is altered to Section 304 Part-F read with Section 34 of the I.P.C.. They are sentenced to imprisonment for the custodial period already undergone by them i.e. their period of detention from 29-10-89 to 3- 12-200t for about twelve years. They be released forthwith, if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge 1 /-'