^. .' i x: HIGH CQURT OF CHHAmSGARH AT BILASPUR DtVISION BENCH CQRANs . ,...;;-^: •%syg^ HON'BfcE MR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR. JJ. CRIMINAL APPEAL No. 674/2004 VERSUS ^%^B>. ''~s''^^i^^ ^1=/ Ramprasad @ Balloo aged about 23 years, S/o Sarhooram Kenwat, C''ultivator, Resident of village Dangania, Police Station Seepat, District Bilaspur (C.G.) The State of Chhattisgarh Thi'ough- Police Station- Seepart, District BUaspur (C.G.) UUNDBR SBCTION 374(2) OF THE CRIMINAL PROCBDURE CODE. Present:-Ms. Sangeeta Mislira, Advocate for the appellant. Mr. Sandeep Yadav, Dy. G.A. for the State/respondent. ORAL-JUDCrEMBNT (Passedon 06/01/3011} The followtng iudement of the Court was Rassed bv 1. Challenge tn fhis appeal is to fhe judgment of conviction and order of sentence dated 15/7/2004 passed bv 9th Additional Sessions Judse (F.T.C.), Bilaspur in SessiQns Trial No. 18/2004 whereby and where under after holding fhe appeUant guflty for the commission of ofience of culpable homicide amountin^ to murder of Johanram, convicted the appellant under Section 302 of the Indian Penal Code and sentenced i *s"a 'sSSS' "'sr;: :i~"'i-''!as'<is<S5^^ imprisonment for Ufe & fine ofRs. 1000/-, tn default of payment of fine ainount additional rigorous imprisonment for 6 months. 2. Conviction is iiupugned on fhe ground that wifhout any iota of evidence siifficient for conviction of fhe appellant, Courtft)elow has convicted and sentenced fhe ;il- appellant as aforementioned and thereby committed an Ulegality. 3. As per case of the prosecution, on account of some dispute relating to issuance of warrant present appellant was having enmity with deceased Johanram. On fateful day of 9/9/2003 between 6:00-7:00 A.M. whHe deceased Johanrain and PW2 Bhagela were gotnj towards the vegetable lield from the house, appeUant met them. Appellant assaulted Johanram. by axe and caused his tnstantaneous death. Bhagela shouted for help thereafter, PW1 Smt. Kadambai wife ofJohanram and PW5 Shivkumar (S> Chhotu son of Johanram came to the spot and who saw the dead body of Johanram lying beside fhe, road. AppeUant went to fhe Potice Station and lodged First Information Report vide Ex. P- 9. M.arg intimation was recorded vide Ex. P-10. Investigating officer left for scene of occiirrence and after suinmoning fhe witnesses vide Ex. P-4. Inquest over the dead body of deceased Johanram was prepared G., '""s'i;sisia25^a ^^^•S^s^^^^t^^^^s F' :v-^'-'s:sfss:sgy^^ 4. vide Ex. P-3. One blood statned axe, one blood stained \ shirt, one cycle and documents were seized from the spot on his production to Police at fhe tiine of lodgin^ Fu-st Information Report vide Ex. P-5; Blood statned, plain soil and one letter were seized from fhe spot and from the pocket o,E deceased Johanram vide Ex. P-2. ,,f Ofher papers relating to CKhattisgrah Nishad (Kenrat) Committee were seized from one Ramakant vide Ex. P- 1. Dead body of Johanram was sent for autopsy to Govermnent Hospital, Seepat vide Ex. P-11. FW13 Dr. Rajesh Kumar conducted autopsy vide Ex. P-11-A and found followuig iniuries:- (i) Extensive deep wound over parieto lateral aspect of left side of neck region of 4 c.m. below from the left angle of mandible of 8 c.m. below from fhe left mastoid process size- 13 c.m. x 8 c.m. x 7 C.HI. (ii) Cutting of left side of neck muscles, blood vessels, nervous and cervical vertebra and spinal cord of fhe neck. (iii) Incised wound over right side of chest of 6 c.m. x 1 % c.m. x 1 c.m. (iv) Three cervical vertebra were found cut. Mode of death was shock and death was homicidal in nature. Spot map was prepared vide Ex. P-12. AppeUant was also assaulted by deceased Johanram, dunng coiirse of quarreling, he also received 3 mjuries. He was &/ ^y •y 4 ^ ^•^f'^w^i^^'^Sff^^i ! 6. examined by PW13 Dr. Rajesh Kumar vide Ex. P-13-A and found 2 bruises of 10 c.m. x 1 c.m. 85 8 c.m. x 1 % c.m. upon right scapular region and left ann. One abrasion of ^ c.m.. x 2 c.m. over right index finger. Sealed clofhs of the deceased Johanram was seized vide Ex. P-8. Sealed ^ncriminating articles were sent for chemical exainination and presence of blood on fhe axe, shirt offhe accused was confirmed vide Ex. P-20. Statements of the witnesses were recorded under Section 161 of the Code of Crtminal Procedure, 1973 (m short the Code^. After completion of the investigation charge sheet was ffled before the Judicial Magistrate First Class, Bilaspiir who tn tum committed fhe case to the Court of Sessions, Bilaspur from where leamed 9th Additional Sessions Judge (F.T.C.), Bilaspur has received the case on transfer for trial. In order to prove fhe guilt of the appeUant/accused prosecution examined as many as 13 witnesses. Accused/appellant was examined under Section 313 of the Code where he denled the ctrciimstances appeanng against him, tnnocency and false implication is clatmed. Accused/appeUant also exainined defence witness DW1 Harprasad who has deposed that on the date of incident PW2 Bhagela brother of Johanram was :r^ not present in the viUage, he was present in BUaspur and he has not seen fhe incident. 7. After affording an opporturuty of hearing to fhe parties leamed 9tfa Additional Sessions Judge (F.T.C.), Bilaspur has convicted and sentenced the appellant as a&rementkined. <; 8. Ms. Sangeeta Mishra, leamed counsel for the appellant and Mr, Sandeep Yadav, Dy. G.A. for the State/respondent are heard. Judgment impugned and record of Court below perused. 9. Leamed coi.insel for the appellant vehemently argued that conviction is substantially based on the evidence of PW2 Bhagela whose evidence does not inspire confidence and trustw?orthy. His evidence is self contradictoty and is not sufficient for drawing an inference that appellant has committed fhe aforesaid offence. In absence of any cogent and reliable evidence, conviction of the appellant is not sustainable under fhe law. 10. Leamed counsel for the appellant further argued that even as per case of the prosecution specially requisition for medical examination of appeUant Ex. P-13 reveals that deceased Johanram has assaulted htoi and caused 2 braises and 1 abrasion, it was not possible for deceased Johanrain to cause any injur;' after receivins 'i^fea=i£ii..»tB. """E£ata®s -s^saissssss^A ^"^y^^^^^^^ uijury by accused fhat too over neck and chest therefore, only inference woiild be possible that firsfly deceased Johanram has assaulted fhe appeUsint and caused injury thereafter, with a view to save himself in exercise of right of private defence, appeUant has caused uijur;' to decgased Johartrain however, he has exceeded ui causing such injury therefore, if the case of prosecution is admitted tn its face value then even in the light of exercising the right of private defence, act of appeUant does not travel beyond the scope of under Section 304 Part-II of fhe Indian Penal Code. 11. On the other hand, leamed Dy. G.A. for fhe State/respondent opposed tlie.appeal and submits that evidence of PW2 Bhasela is well corroborated bv the evidence Qf PW1 Smt. Kadambai & PW5 Shivkumar @ Chhotu wife and son of deceased Johanram. 12. Leamed counsel for fhe respondent/State further submits fhat in fhe present case, appellant himself has lodged First Information Report and has produced incriminating articles like axe and blood stained clofhs which were examtned by chemical examiner and presence of blood was cortfirmed on fhe axe and shirt recovered at the instance of appeUant. These facts are sufficient for drawuis an inference that onlv appellant ^ b •? :^'';;^?s^;t^^^^^^^^ has committed culpable homicide amounting to murder \. ofjohanram. 13. In order to appreciate the argiim.ent advanced on behalf of fhe parties we have examined fhe evidence adduced on behalf of the prosecution. 14. In the present case,,: homicidal death as a result of fatal .^ . uijury found over fhe neck and chest of deceased Johanram. has not been substantially disputed on behatf of the appeUant on tfae other hand, otherwise also established by the evidence of PW13 Dr. Rajesh Kuiuar and autopsy report Ex. P-11-A and deafh was homicidal in nature. 15. As regard the complicity of the appellant in crlme m question, conviction is substantiaUy based on fhe evidence of PW2 Bhagela who has deposed in Para-3 of his evidence that while along with Johanram were ^omg towards vegetable field, appellant met them in a way, he caught hold the collar of Joham'am and he dragged the deceased Johanram thereafter, he shouted for help. After hearing the sound for help, wife and son of deceased Johanram came to the spot tliereafter, they found chopped body of Johanram beside the road. He along with wtfe and younger son of Johanram also seen the appeUant who was ninning from fhe spot by cycle. Prosecution has declared him hosfile. In Paras-5, 8, 10, ^ •"/~ .•.-••" ;,. ...,<-ssS«SSttSa ii!.; -.!;.i.l^:^:47;'^;;S^S?2:^£-s?-;y 11 & 12 of his cross-examination, he has not well supported the case of prosecution. In one place he has stated that appeUant was not holding any weapon. Appellant has causing inji.uy to deceased Johanram before him, he had not knew fhe appellant but in other place he has depose§that he knew fhe appellant and ,'':1 appellant has dra^ed fhe deceased Johanram from the road. Virtually, fhis witness is partly reliable and it may be safely inferred from his evidence fhat at the time of incident he was with deceased Johanram, sanie ttme appellant came, caught hold fhe collar of deceased Johanraai and dragged Johanrani towards fhe road. Thereafter,.he shouted for help then wife and son of deceased Joham'am came tfaere, all fhree persons have seen the chopped body of Johanram lying beside fhe road and appellant. was running from the spot by cycle. Evidence of tliis witness is furfher corroborated bv the evidence of PW1 Smt. Kadaaibai wtfe of deceased Johanraui who came unmediatelv after hearing fhe sound of Johanram and saw the mjiired body of her husband, same facts is also corroborated by the evidence of PW5 Shivkumar (®Clihotu son of deceased Johanram who also has heard tfae soiind of Johanrani, he came to fhe spot then he saw the chopped bodv of (^ -!'^^=<S---^;;g^^^ his father, appeUant was runntng by cycle, he was \. keeping axe tn liis cycle. 16. In the present case, fhe incident took place bet\veen 6:00-7:00 A.M. and present appellant has lodged First Information Report Ex. P-9 8»Marg inttmation Ex. P-10 at 9:35 P.M., 12 kms. away from the spot, alfhough .••lii. incriminating facts against the appellant flnds place in First Information Report and Marg intimation is not admissible in the light of Sections 25, 26 8& 27 of the Evidence Act but the fact fhat after fhe incident appellant reached to fhe Police Station at 9:35 P.M., he was holding axe stained wit-h blood and shirt stained with blood cycle, this part of Ftrst Information Report is admissible in evidence. Blood stained axe and blood stained shu't and cycle of the appeUant has been seized from fhe appellant vide Ex. P-5 on same day at about 10:00 A.M. Presence of appellant in Police Station with blood stained axe, blood stained shirt and cycle and seizure of aforesaid articles corroborates fhe evidence of PW2 Bhagela and PW5 Shivkumar @ Chhotu that bt appellant fled from the spot wifh axe by cycle. Evidence of PW2 Bhagela is partly reliable but same is well corroborated bv fhe evidence of PW1 Srat. Kadambai and PW5 SMvkumar @ Chhotu also finds corroboration from conduct of the appellant that he- himself went to 10 the Police Station wifh blood statned axe and blood stained shirt by cycle which were seized from. fhe appeUant. Presence-of blood on the axe and shirt which were seized from the appellant also finds support from fhe Ex. P-20 chemical examination report. If these facts are considered togethqr fhen only mference would be possible fhat appellant has caused homicidal deafh of Johanrara. 17. As regard the motive and causing injiir^? by fhe appeUant in exercise of right of private defence is concemed, no spectflc plea or claim are required by the appeUant or accused relattng to exercise of right of private defence, same can be mferrecl on the basis of evidence and circuinstances. In the present case, as per docuiaents and evidence of prosecution witness i.e. PW12 A.K. Jatn, Police Inspector, after preparing fhe requisition for medical examination on 9/9/2003 he has sent the appellant for medical exammation vide Ex. P-13. In Para-15 of his cross-examination, he has admitted fhat contents B to B of Ex. P-13 relatmg to fact that deceased Johanram has assaulted fhe appellant has been written by hun at fhe instance of appellant. 18. PW13 Dr. Rajesh Kumar has deposed in his evidence that on 9/9/2003 i.e. on the date of incident at 11:45 11 ^ K ;?~:?H^:iaSS|g^% [:•••• • ,• ..•-.•-•- ''•-^^.i.-S^fiS'ysSQ^^-ff^ A.M.he has examined fhe appellant Ramprasad vide Ex. P-13 A and found 2 bruises of 10 c.m. x 1 c.m. & 8 c.m. x 1 % c.ia. upon right scapular region and left aria. One abrasion f>f 3 c.m. x 2 c.m, over right index finger. 2 fatal mjiiry found over fhe neck and chest of deceased shows fhat.fafter receiving such injury, ^:' deceased would had npt be in position to cause any injur}7 to any person therefore, only inference would be possible fhat firsfly deceased has assaulted the appellant and caused 3 injuries by hard and blunt object thereafter, appellant has caused injury to deceased Johanram which shows that with a. view to right to save himself, appellant has caused injur;7 to Johanram in exercise of his right of private defence but at the ttme of causing such injury definitely, appellant has exceeded his right of private defence and has caused death of Johanram. In these circumstances, the act attributed by the appellant does not fall withtn the ambit of under Section 302 of the Indian Penal Code but squarelv falls within the ambit of under Section 304 Part-II of the Indian Penal Code. While convictmg the appeUant under Section 302 of fhe Indian Penal Code leamed 9th Additional Sessions Judge (F.T.C.), Bilaspur has not considered the most material dociiments Ex. P-13 & P-13-A and First deceased 12 ^ •^•^^^^ss^^, ;si-!SSiasS®ia^^ Information Report lodged by fhe appellant against \ deceased causmg tnjmy to him and it was admissible in evidence. 19. For the foregomg reasons, criminal appeal is parQy allowed. Conviction of fhe appeUant under Section 302 of fhe Indian Penal Code is altered into under Section 304 Part-II of the Indian Penal Code. Present appeHant is in custody since 10/9/2003 and has completed more than 7 years and 4 months that would be sufficient sentence to the appeUant. Consequently, appeUantis sentenced to the period already undergone i.e. 10/9/2003 tiU today. He be released forthmth, if not required in any ofher case. Sd/- T.P. Sharraa fft Sd/- R.L. Jhaiswar Judge