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2009 DIGILAW 828 (MP)

Pramila w/o Jawahar Lal v. State of Chhattisgarh

2009-07-21

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2009
JUDGMENT Sunil Kumar Sinha, J. 1. Appellant Pramila stands convicted under Sections 302 and 201/34, IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 100/-and RI for 2 years and to pay fine of Rs. 100/- respectively with default sentence of 1 month, with a further direction to run the sentences concurrently, by the First Additional Sessions Judge (FTC), Ramanujganj, District Sarguja (CG) on 31st of August, 2006. 2. The facts, brieily stated, are as under: Deceased Ramlal was the father of the appellant. Co-accused Norashiya Bai is the wife of the deceased. Co-accused Jawahar is the husband of appellant Pramila and co-accused Ramnath Gond is brother of Norashiya Bai and brother-in-law (Shala) of deceased Ramlal. The allegations are that prior to 23-11-2005, the accused persons namely Pramila (present appellant), Jawahar and Norashiya Bai committed murder of deceased Ramlal and took the dead body to a distance place in Saharapani forest and buried the same with the assistance of co-accused Ramnath Gond for causing disappearance of the evidence of murder. On 23-11 -2005, Rajaram and Dubraj saw some portion of the dead body buried in the sand. They immediately went to other villagers and narrated the story and thereafter a merg intimation (Exh. P-1) and a First Information Report (Exh. P-2) were registered. The Investigating Officer reached to the scene of occurrence, gave notice (Exh. P-3) to the Panchas and prepared inquest (Exh. P-4) on the body of the deceased. Some pieces of stones, plain sand and blood stained sand were seized from the place of occurrence under Exh. P-5. After taking the accused persons into custody, their memorandum statements (Exhs. P-8 and P-9) under Section 27 of the Evidence Act were recorded and 2 pieces of bamboo sticks were seized at the instance of accused Jawahar under Exh. P-6 and a bronze tumbler was seized at the instance of accused/appellant Pramila under Exh. P-7. The dead body of the deceased was sent for its post-mortem to Govt. Hospital, Ramanujganj, where the post-mortem examination was conducted by Dr. S.K. Sinha (P.W. 7), who prepared his report (Exh. P-15). He noticed 3 external injuries on the skull of the deceased. One was on the right fronto-temporal region, another was on the left temporal-occipital region and the third one was on right temporal occipital region. Hospital, Ramanujganj, where the post-mortem examination was conducted by Dr. S.K. Sinha (P.W. 7), who prepared his report (Exh. P-15). He noticed 3 external injuries on the skull of the deceased. One was on the right fronto-temporal region, another was on the left temporal-occipital region and the third one was on right temporal occipital region. On internal examination, he found corresponding fractures on right fronto-temporal bone, left temporal-occipital bone and right temporal-occipital bone. The Autopsy Surgeon opined that the cause of death was shock due to internal haemorrhage & injury to the brain and it was homicidal in nature. The prosecution came with a case that the deceased died homicidal death in his house on account of injuries caused on his head by the aforesaid tumbler and it was done in furtherance of common intention of accused Jawahar, Pramila and Norashiya Bai. After the death, the dead body of the deceased was taken to the forest area and it was buried in the sand in which accused Ramnath Gond also assisted the other accused persons. 3. The learned Sessions Judge came to the conclusion that the appellant alone participated in commission of murder of deceased, whereas, other accused persons Jawahar and Smt. Norashiya Bai participated in causing disappearance of the dead body. Therefore, the appellant was convicted and sentenced as aforementioned and the other two co-accused persons were convicted under Section 201/34 of the IPC and sentenced to undergo RI for 2 years with fine sentences and the last accused Ramnath Gond was acquitted of the charges framed against him. 4. It is a case in which appellant Pramila herself appeared as a defence witness and deposed that on the fateful day, when the deceased tried to assault her with an intention to commit rape upon her, she assaulted the deceased by a tumbler resulting into his death. 5. Mr. Abhay Tiwari, learned Counsel appearing on behalf of the appellant, argued that the appellant exercised the right of private defence of body and the deceased was assaulted by the appellant when he tried to commit rape upon her, therefore, the act of the appellant would be covered under Section 100, IPC and conviction of the appellant cannot be sustained. 6. Mr. Praveen Das, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. 7. 6. Mr. Praveen Das, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. 7. We have heard the learned Counsel for the parties at length and have also perused the records of the sessions case. 8. Right of private defence falls in the category of General Exceptions define under Chapter IV of the IPC. Section 96 provides that nothing is an offence which is done in the exercise of the right of private defence. Sections 96 and 98 confer a right of private defence against certain offences and acts and Section 99 provides acts against which there is no right of private defence. It clearly provides that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though the act, may not be strictly justifiable by law. It further provides that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law and further that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Extent to which the right may be exercised, it provides that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Extent to which the right may be exercised, it provides that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 provides that the right of private defence of the body extends under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions, i.e., "First--Such an assault, as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly--Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly--An assault with the intention of committing rape; Fourthly--An assault with the intention of gratifying unnatural lust; Fifthly--An assault with the intention of kidnapping or abducting and Sixthly--An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release". 9. The law in our country places the burden of proof of guilt upon the prosecution. The presumption of innocence has to be dislodged by the prosecution by leading evidence pointing to the guilt of the accused. However, under Section 105 of the Indian Evidence Act, the burden of proving the existence of circumstances bringing the case within any of the General or Special Exceptions is placed on the accused. Sections 102 and 105, IPC deal with commencement and continuance of the right of private defence of body as well as property. It commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed, but not until there is reasonable apprehension. We mean to say that such right is co-extensive to the reasonable apprehension of the danger to the body continues. 10. Therefore, if claim is being made that the appellant acted in exercise of power of right of private defence, she must show that there were prevailing circumstances giving rise to reasonable apprehension that the alleged assault was being made to her by the deceased with the intention of committing rape upon her. 10. Therefore, if claim is being made that the appellant acted in exercise of power of right of private defence, she must show that there were prevailing circumstances giving rise to reasonable apprehension that the alleged assault was being made to her by the deceased with the intention of committing rape upon her. If the burden has not been discharged to satisfy the above requirement, right claimed by the appellant was not available to her. 11. Now we shall examine the case on hand on the above principles. Admittedly, the accused persons and the deceased were residing together in the same house. The deceased was the father of the appellant. The appellant was aged about 24-25 yeas on the date of incident. She deposed in her evidence that on the fateful day, she was all alone in her house. Her husband and her mother were not present in the house. In the evening at about 6.00 p.m., the deceased came in drunken condition and started molesting her. She resisted saying that she is his daughter but the deceased did not stop and he threw her on the ground. The deceased (father) was trying to commit rape upon her, on which, she assaulted the deceased with the tumbler and ran away out of the house. In the cross-examination, she admitted that the relations between them were not cordial. She also admitted that the tumbler was a heavy tumbler which she hit on the head of the deceased and the deceased died out of the injuries caused by it. She also deposed that she alone had taken the body to the Nala where it was buried. In fact, the appellant was cross-examined by the Additional Public Prosecutor (APP) at length but the APP could not bring any such circumstance in the cross-examination on which it may be said that the appellant was giving a false version in examination-in-chief or she was making a false ground to avail the plea of right of private defence. 12. Learned Session Judge disbelieved the evidence of the appellant merely on the ground that no such plea was taken by the defence while examination of the prosecution witness. 12. Learned Session Judge disbelieved the evidence of the appellant merely on the ground that no such plea was taken by the defence while examination of the prosecution witness. In catena of decisions, the Apex Court held that even if a plea of right of private defence was not specifically taken by the appellant at the stage of trial, but, if in fact, it was available to him, he may raise the plea on the probabilities and the circumstances obtaining in the 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 adducing the defence evidence. [Please see: Kashi Ram and Ors. v. State of M.P. AIR 2001 SC 2902 ; Bishna alias Bhiswadeb Mahato and Ors. v. State of W.B. (2005) 12 SCC 657 and Salim Zia v. State of Uttar Pradesh AIR 1979 SC 391 ]. This view was also taken by this Court in the matter of Akhilesh Kumar and Ors v. State of C.G. 2008 (1) CGLJ 85 (DB). 13. Therefore, we are of the considered opinion that in the facts and circumstances of the case, the learned Sessions Judge completely erred in law in discarding the plea of right of private defence on such a ground as also the version of the appellant, who established by her evidence that on the fateful day, the deceased had tried to commit rape upon her and she assaulted the deceased by a tumbler, resulting into his death, in exercise of right of private defence of her body and her such act would be covered under Clause Thirdly of Section 100, IPC and and she would be entitled for acquittal. 14. In the result, the appeal is allowed. The conviction and sentences awarded to the appellant under Sections 302 and 201/34, IPC" are set aside. She is acquitted of the charges framed against her. It is stated that the appellant is in jail since 27-11-2005. She be set at liberty, forthwith, if not required in any other case.