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Vw ers Sfate (f ’i M3: t i RBIs?03mm - z / E 3? v \ V ; m 3 “ ‘ n t ‘ ‘ g §,§;// V/ // HIGH COURT OF CHHATTISGARH AT BILASPUR ‘ Cr. Appeal No. 233/ 1992 Niranjan Singh @ Bhagat Vs. State of Madhya Pradesh (now Chhattisgarh) JUDGMENT FOR CONSIDERATION ¥ Sdl— 2 Dilip Raosaheb Deshmukh w Judge 1 1907-2005 { ‘ l K l I \ ‘ x ,\ K ‘¢ \ ‘ 1 J l } \ ‘ ‘ \ ‘ ‘ ‘ V ‘ ‘ Hon’hle Shri Justice Fakhruddin *” m- 1 s Fakhrudd'm Judge’w’r W / ""’§éo7-2005 // & Post forrA6-o7i2oos ‘ Sd/- M Fakhruddin Judge / g6 -o7-2005 JUDGMENT FOR CONSIDERATION Sdl- Dilip Raosaheb Deshmukh ‘ Judge 75—07-2005 Hon’ble Shri Jusfice Fakhmddin §<°jii/s’dIT » / Fakmuddm Judge <1 ’ ;éo7-2005 // Q V‘ Post fo1;/16 —07-2005 " sw— Fakhruddin 1A Judge I g6 -o7-2005 aw’w? (Awr‘w‘g)’ ,1 y vmgl I H ’ ,,,_»_ HIGH COURT OF CHHATTISGARH AT BILASPU§ Cr. Aggeal No.233l 199? Nimnjan Singh @ Bhagat Vs. State of Madhya Pradesh (now Chhattisgarh) CORAM; HON’BLE SHRI FAKHRUDDIN & x HON’BLE SHRI DILIP RAOSAHEB DESHMUKH, JJ. Shri Arun Kochar for the appellant. ’\ I Shri Raviidra Agrav‘val, P.L. for the State. JUDGMENT IDelivered on -O7-2005) Per Ding Raosaheb Deshmukh, J. 1. This appeal is directed against the judgment dated O3“ December, 1991 delivered by Shri C. B. S. Patel, Vlth Additional Sessions Judge, Bilaspur in Sessions Case No. 259/90 whereby the accused appellant has been convicted under section-302 of the I.P.C. for committing munier of Gowanihan Das Manikpuri on 28-06— 1990 at about 4 P.M. in Village-Belsara, Police .Station-Takhatpur, Disgrict-Bilaspur and sentenced to imprisonment for life. n“ Briefly stated the prosecution story is that due to the previous enmity on account of quarrel during Gram Panchayat and Lok Sabha Election duty, the accused appellant Niranjan Singh @ Bhagat assaulted Gowardhan Das Manikpuri @ Muswa by an iron Kudari andBambooiilathi in the field of Jagananth Mochi " at about 4 P.M. on 28~06~1990. Gowardhan das Manikpmi 2, Malkham PW~3, Shiv Kuman PW—13 saw the occurrence. alias Muswa succumbed to the injuries on the spot. Jhaduram PW— i 3. Govind Das, bmther of the deceased lodged F.I.R. EX.P- 13 in Police Station-Lormi. During Investigation on 30-06-1996, on the basis of memorandum vide EX.P~1 of the accused appellant, one Bamboo stick, one iron kudaxi, one old lungi hiaving blood like stains, one cotton chaddi having blood like stains were seized nom the accused appellants vide EXP-2. 4. Dr. R.K. Bhange, PW-6 conducted the autopsy on the dead body of Gowardhan Das and found the following external ‘3 injun'es : i ‘ (i) Incised looking wound 2X1c.m. 85 1x1]2c.m. muscle deep over left leg. (ii) Incised looking wound 1 cm x V2 cm just below Knee. (iii) Deep incised looking wound 4x1 1/2 x 3 ya cm. over lateral corner of left eye. (iv) Both upper &. lower lid of left eye not clearly identined. In left orbital fossa, blood clot 8t. piece of muscle piesent. There is no left eye ball. (v) Skin deep incised wound 5 x 3 c.m. present over left side of pal'ietomccipital legion of head. (vi) Incised looking wound 4 x 1 can. present over left parietal scalp of head. Dr. Bhange found nactme of left parietal hone 10 cm. in size, hactuxe of left side occipital bone 6 cm. in size, nacture of left lateral comer of orbital (nonto-temporal) in 3 cm. single pieces, rupture of left parietal reg'on of membrane with liqdined brain matter. He opined that cause of death was due to loss of blood and head injury and death was homicidal in nature. On examination of lathi and kudri seized hom the accused appellant, Dr. Bhange opined that the injmies sustained by ' Gowanihan Das Manikpuri could be caused by them. n“ rix ’On 01-07-1990, on being informed by the accused that the deceased had also assaulted him by lathi and had also pressed his throat by nails the accused appellant was sent for medical examination. Dr. Habib found the following injuries on the person of the accused appellant: /f (i) Minor scratch mark on Right side neck 1” lateral to mid line. (ii) Minor scxatch V2” lateral and to the left side of nebk. (iii) Linear scratch mark 2" on the left temple. (iv) Fading contusion diEuse on the left side behind ear. (v) Complaint of pain in back of chest wall. No visible mjuxy seen. Upon completion of investigation, the accused appellant was prosecuted under section-302 of the I.P.C. 6. The gccused appellant ébjured his guilt, pleaded innocence and false implication in defence and led no evidence. The piosecution‘ examined as many as 16 Witnesses. The trial Comt placed reliance upon the ocular version of Jhadu Ram FW-z, Malkham, Pw-3, Shiv Kumari, Pw-13, who had seen the accused appellant assaulting Gowatdhan Das Manikpun‘ and convicted the accused appellant under section-302 of the I.P.C. for committing murder of Gowaidhan Das. The learned counsel for the appellant has mainly contended that there is serious discrepancy in the testimony of Jhadu Ram PW-2, Malkham, PWw3, Shiv Knmari PW— 13 relating to the weapon of odence by which the accused appellant was alleged to have assaulted Gowardhan Das Manikpuri. He also argued that the testimony‘of Jhadu Ram PW-2, Malkhani: PW-3 that the accused appellant had assaulted Gowanihan Das by a lathi was rendered wholly umeliable due to the testimony of Dr. Bhange PW-6, who did not nnd any such injury on the dead body of the deceased which could be caused by a lathi. He also contended that the prosecution had failed to explain the injuries sustained‘by the accused appellants as a result of :which‘defence of the appellant taken during arguments was plausible that he had sustained. injmies during the occurrence at the hands of Gowardhan Das 'Manikpuri, who was the aggressor. It was also argued that if the testimony of ocular witnesses was to be believed, it must be held that the accused i @ had assaulted Gowardhan Das Mam‘kpuri in the exercise of Iight of pn'vate defence and oeence if any committed by the accused appellant could not 11ave1 beyond section-30441 of the 11.P.C. Reliance was placed on the case of Duttl Shamran §Valakc Vs. State of Maharashtr Lreported in 2005 Cr.L.J 1(2555) and sn t o: Rgstnan Vs. Bnanwar mu reported in Volume-IV (2004)CCR-8(SC) and Siddha Gapal Vs. St l __of :U.P. reported in 2003 Cr.L.J.-4116 and State of U.P. Vs. Shyam Veer mported in 2005 Cr.L.J.-2606 and Suresh :c‘hZudnart Vs. state or 3mm repoxted in 2003 Supreme Court Cases (Criminal) 801. i e a On the other hand, learned Panel Lawyei' for the State argued that the testimony of ocular Witnesses inspired conhdence and were rightly relied upon by the trial Judge. It was also contended that the injuries sustained by the appellant were minor linear scratch marks and fading contusion on the left side behind ear and complaint of pain on the back of chest wall with no visible injury present. These injuries could have been sustained by the accused appellant While he was chasing Gowardhan Das Manikpuri in the nled to assault him, It was contended that the defence raised by the accused appellant in arguments definitely established the presence of the accused appellant at the scene of occurrence and assault by him over Gowardhan Das. The nature of injuries esustained by Gowardhan Das and the manner in which he was chased and assaulted by the appellant clearly established the intenh'on of the accused and therefore the oEence could in no case fall under section~304 part~II of the I.P.C. 10L We have considered"'1:l1e rival submissions and have also perused the record. So far as the homicidal nature of death of Gowaldhan DasManikpuri is concerned, Dr. Bhange has in his report described the injuries No.1 to 3 as incised looking wounds. Nowhere in his report or in his opinion relating to cause of death did he mention that these injuries had been caused by,a shaxp object. In his cmss-examjnation-in-chief pémgraph-ll also he has deposed that the injuries sustékned by Gowanihan Das.could be caused by the lathi and Kudri which were sent for his examination. Nothing has been elicited in: cross—examination by the defence in this regani. In paragraph 15, he has opined that the deceased had sustained injuxies caused by lathi and had also sustained other incised injlun‘es. The fact that Gowardhan Das had sustained nacture size 10 cm of left parietal bone, nactme size 6 cm. of left occipital bone and fracture of left lateral comer of nonto- ten‘iporal bone in single pieces With ruptme of left parietal region of membrane clearly proves beyond doubt that death of Gowardhan Das was homicidal. This nnding of the uial judge was not assailed by the learned Counsel for the appellant in this appeal. 11:“ The trial Judge has convicted the appellant mainly on the tesu‘mony of ocular witnesses namely Shiv Kumari P.W.13, Jhaduram P.W.2 and Malkham P.W.3. We shall therefore examine Whether the ocular testimony of these witnesses is reliable and brings home the guilt of the appellant under Section 302 I.P.C. 12. Shiv Kumari P.W. 13 is the daughter of the deceased. °She has deposed that at the time of occunence when she was 'sitting in the Nalah to attend nature’s call, she heani the cries of her father &om the held of Jagannath whemupon she got up and saw that the accused appellant was chasing her father and assaulted him on the head and near the eye by kudri whereupon her father fell in the held. On seeing this, she got hightened and ran straight‘t‘owanls her home. This testimony is wholly unrebutted in cross-examination as no question has been asked regarding the occurrence to this witness. In the spot map Ex.P.12 prepared by Samaylal Lahare, Patwan' P.W.1O the place nom where Shiv Kuman' saw the occurrence has been shown which matches with the testimony of this witness. Apparently. this Witness saw the occurrence from quite a distance. Jh‘aduram P.W.2 has‘deposed that on the date of occunenhe at abpuxl\4.00 P.M. When he was returning from the neld, he saw that Gowardhan Das was standing in the held of Jagannath. The accused appellant came mm behind and stalted assaulting Gowaldhan by lathi. Gowardhan had a Tutari in his hahd by which he blocked three assaults by the accused and when he could not do so any mom he ran away whereupon the accus‘éd also started chasing him and continued assauln’ng him by lathi. In moss—examination, he has deposed that he saw the occurrence hom about 50 to 60 yards‘and could not count the number of lathi blows dealt by the accused appellant on Gowaidhan Das. No question to rebut his above testimony has been asked in cross—examinau'on. The spot map Ex.P.12 cormborates the testimony of this witness. l3. G 14. Malkham P.W.3 has deposed that on the date of occurrence at about 4.00 P.M. While he was returning nom the held and had reached the bank of Bandhwa tank, he saw the accused assaulting Gowaidhan Das by lathi. He has also deposed that Jhaduram was following him hum behind with a plough in his hand. In cross-examination, this witness has stated that he did not count the number of lathi blows dealt by the accused and could not say whether the appellant was holding a Tutan' in his hand or not. He has also tesu'hed that he could not disclose as to one What parts of the body of Gowardhan Das did the appellant strike with lathi. According to this witness, he went home after seeing the occurrence and did not go to see the dead body astter there was a gossip in the evening in the village that GoWaidhan‘ Das was dead. We nnd that in cross— examinan'on, the testimony of this Witness has also not been rebutted. 15. The inquest EX.P-7 of the body of Gowardhan, which was done by A.S.I. C.K. Gajbhiye (PW-16) on 29-06- 1990 also does not niention the presence of Shiv Kumari {PW~13), Jhadurm§(PW- 2) and Malkham (PW-3) and explains why the name of the assailant does not mld place in Dehati Nalishi EX.P- 13 lodged by Govind Das on 28-06- 1990 and inquest Ex.P—7 dated 29—06- 1990. Presence of these Wimesses at the scene of occurrence is natural and has not been challenged in cross-examination. Nothing has been elicited in cross—examination to show that th‘ese Witnesses bore any’grudge against the appellant or had an§3eason to falsely implicate him. Nothing has been elicited in cross-examination of Shiv Kumari P.W.13, Jhaduram P.W.2, Malkham P.W.3 to show that the accused was hrst assaulted by the deceased or had sustained injuries during the occunence at the hands of the deceased. In the statement under Section 313 Cr.P.C. also no such defence was taken, The counsel for the appellant has merely on the basis of the injuries sustained by the accused, made an abortive attempt to argue that the injuries were sustained by the accused appellant during occurrence and that deceased was the aggressor. On a careful consideration of the testimony of the three ocular Witnesses mentioned above, we hnd that this argument is neither plausible nor tenable. The testimony of Jhaduram P.W.2 clearly shows that the deceased was defending the persistent lathi blows of the appellant by a Tutan' and thereafter ran away to save his life. The accused appellant thereafter started chasing and assaulting Gowardhan Das, It clearly shoWs that the accused appellant was the aggressor and had dealt the fatal blows on Gowardhan Das. So far as the discrepancy relah'ng to the weapon of ohence is concerned, it “appeals natural because the witnesses had seen the occurrence from quite a distance. So far as the injuries sustained by the accused appellant are concerned, he had only superhcial scratch marks on the neck and left temple and fading contusion on the left side behind ear. There is absolute no evidence on record to Show that these injuries were inflicted on the accused appellant by the deceased. Not a single question in this regard has been asked to any of the three eye Witnesses. The injuries mentioned in para-5 (supla) found on 01-07—1990 on the accused appellant were medically opined to thave been caused due to nail scratches and thus could also be ; self inflicted. 17. On a careful consideration of the evidence led by the : prosecution of ocular witnesses Shiv Knmari P.W.13, i Jhadnram P.W.2 and Malkham P.W.3 read with the testimony qfsDr. Bhange, we nnd’ that the tn‘al Court rightly relied upon the ocular testimony for holding that the accused appellant had intentionally caused the death of Gowanihan Das. So far as {the natu‘re of odence is concerned, the tesn‘mony of Jhaduxam P.W.2 clearly shows that the accused appellant repeatedly assaulted Gowardhan Das over the head and after Gowardhan Das ran away, he chased him and repeatedly assaulted him by lathi on Vital parts till he died. The nature of injuries and fractures on parietal, nontal and occipital bone sustained by Gowardhan Das clearly go to show that the accused appellant intended to cause the death of Gowardhan Das. 18. We have considered the case law relied upon by the learned Counsel for the accused appellant and hnd that the facts and circumstancesiin these citations are clearly distinguishable. So far as the case of Suresh Choudhari Vs. State of Bihar (Supra) is concerned, there were glaring omissions and contradictions in the testimony of sole eye Witness and serious discrepancy between oral and medical evidence regarding the use of Bomb in that case. Multiple gun shot injuries were found on the deceased person, but only one empty cartridge was found at the scene, which was sent to ballistic expert. However, in the present case, no such situation exists. The ocular testimony of three witnesses mentioned above is not only natural but stands wholly unrebutted in cross- examination. The case of Dattu Shamrao Valake Vs. State o[:Mah htra (Supra) 1s also clearly dlsungulshabls smce m that casc 1t was held that there was sudden pmvocatlon followed by %e @ht between th€ parues and lt was not poss1ble to say as to who mmatsd the dght. In that case, the aceused No. 1 had hred shots only in the air and not oh the deCeased and had thereafter picked up an axe and dealt blow on the neck of the deceased who succumbed to the mJunes From hJs conduct and manner of attack on old person 1t was mferred that he was havmg knowledge that the sald act was hkelx to cause death but he had no Intention to cause death ,e‘ Therefore h1s conv1ct10n under section-302 of the IP C was alteled to Sectlon—304 Part-I of the I.P.C. However, in this case § there is absolutely no evidence of sudden and grave provocatlon There 1s not even an Iota of ev1dence to show that the deceased was e1ther aggressor or had mthcted any mjuly on the appellant The manner 1n wh1ch the accused appellant repeatedly assaulted the deceased ‘by lathi and continued assaulting him on vital parts while chasing him, does not bring the case of the appellant within the exception-2 to section-300 of the I,P.C. The case of State of Rgsthan Vs. Bhanwar Singh (Supra) is also distinguishable, since, the three eye witnesses in that case had remained silent after witnessing the assault. These three ocular witnesses were sent by the widow ’ to go and hnd out the body of her husband It was, therefore quite unnatural that these Witnesses had remained Silent after w1tness1ng the assault There is no such situation 1n this case and nothing has been elicited in the cross-examination of the ocular Witnesses as to why did they not report the matter to anyone or why did they not come to the spot at the time of inquest. In the absence of any such cross-examination, no adverse inference could begdrawn against the ocular witnesses 1n this case. Thus, this citation also does not come to the aid of the appellants. The Case of Stddha Gog Vs. State of U.P. (Supra) relied upon by the appellant is also clearly distinguishable and does not come to the aid of the appellants. In fact, it was held that the injuries caused by the appellants l @ 10 were such that it showed that the appellants had common intention to commit murder. In fact, we flnd that this citaetion goes against the appellant. The Case of State of U.P. Vs. Shyamvccr (Supra) relates also to a case of grave and sudden provocation in which the accused persons Were found entitled to the benefit of exception-1 to section~300 of the I.P.C. As mentioned earlier no such situation exists in the instant case. We, therefore, nnd that the citations relied upon by the learned Counsel for the appellant do not help the appellant in any mamr. We, therefore, affirm the hnding of the trial Court that the accused appellant intending to cause death indicted fatal injuries on Vital parts of Gowaldhan Das resulting in his death and was thus guilty under Section 302 I.P.C. for-committing murder of Gowanihan Das Manlkpun l9. 20. In the result, we find no substance in this appeal, which is accordingly dismissed. EH Anjanii/satish .li Sd/. e e A Sdl- Fakhruddin ' Dilip Raosaheb Deshmukh ,,,,,Judge 999'? t ,_ Jew-2005 ’ , u —n7-2905