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2011 DIGILAW 226 (CHH)

BRIJMOHAN v. STATE OF C. G.

2011-07-11

R.N.CHANDRAKAR, T.P.SHARMA

body2011
JUDGMENT T.P. Sharma, J 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 31.10.2003 passed by the Additional Sessions judge. Sakti, in Sessions Trial No.406/2002, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for formation of unlawful assembly armed with deadly weapons having its common object to cause homicidal death amounting to murder of Gangaprasad and simple injuries to naratram. Mehattar Ram and Ramkumar in furtherance of common object of unlawful assembly convicted them under Sections 302 read with Section 149 or the I.P.C. 148 read with Section 149 of the I.P.C. and 323 read with Section 149 or the I.P.C. and sentenced to undergo imprisonment for life and fine of Rs.500/-, in default of payment of title to further undergo R.I. for one month R.I. for one year. R.I. for one month, R.I. for one month and R.I. for one month. 2. Conviction is impugned on the ground that without there being any iota of evidence, especially relating to formation of unlawful assembly for commission of offence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. Counter case in ST. No. 160/2003 has been registered and tried against the complainant namely Ramkumar, Mahettarram, Reshamlal and Baratram and, they have been convicted and sentenced for the offence punishable under Sections 323/149, 325/149 and 148/149 of the I.P.C. Appeal filed against the aforesaid judgment has been disposed of by this Court today itself (11-7-2011) ill Criminal Appeal No. 1229 of 2003. 4. As per case of the prosecution, on 22.6.2002 at about 11 p.m. complainant Ramkumar (PW-3) was chiding to his sons, the appellants whose house is situated in front of complainant's house thought that complainant Ramkumar has chided them they opposed and came out with axe and sticks from their house. complainant party also came out from the house then the appellants assaulted by axe and sticks to Gangaprasad and caused instantaneously death of Gangaprasad and also caused simple injury to complainant Baratram, Mehattarram and Ramkumar. Complainant party took Gangaprasad to Civil hospital, he was dead. The doctor intimated the police relating to brining dead body of Gangaprasad. Merg was recorded vide EX.P/3. Ramkumar Satnami (P.W.-3) lodged dehati nalishi vide EX.P/5. Spot map was prepared by investigating officer vide EX.P/6. Complainant party took Gangaprasad to Civil hospital, he was dead. The doctor intimated the police relating to brining dead body of Gangaprasad. Merg was recorded vide EX.P/3. Ramkumar Satnami (P.W.-3) lodged dehati nalishi vide EX.P/5. Spot map was prepared by investigating officer vide EX.P/6. After summoning the witnesses vide EX.P/8 inquest over dead body of deceased Gangaprasad was prepared vide EX.P/9. Bloodstained Soil and plain soil were recovered from the spot vide EX.P/10. Final F.I.R. was lodged vide EX.P/21. Dead body of deceased Gangaprasad was sent for autopsy to Community Health Centre, Kharsiya vide EX.P/23 where Dr. Rajesh Kumar Singh (PW -14) conducted autopsy vide EX,P/24 and found following injuries: (i) incised "found of 3" x 11/2 x penetrating into scalp cavity comprising fracture of skull bone. (ii) Incised wound of 1" x 1/2" x skin deep near right eye. (iii) Lacerated wound of 1" x 11/2 skin deep over forehead. (iv) Both the eyes were red. (v) Lacerated wound of 1/2 x 1/2 x skin deep over maxillary region. (vi) Lacerated wound of 1" x 1/2' x skin deep over right jaw. Mandible was found cut and teethes were broken. (vii) Swelling of 9" x I" over left side of the chest. (viii) Swelling of 8" x I" over left side of the chest. (ix) Lacerated wound of 3" x 1" x skin deep over right tibia bone. (x) Swelling of 5" x 1/2' over right thigh. (xi) Swelling of 5" x 1/2' over right thigh. (xii) 3rd left rib was found fractured. Cause of death was coma and death was homicidal in nature. Dr. Sajan Kumar Agrawal (PW-15) examined Baratram vide Ex.P/27 and found lacerated wound of 4" x 1" over right parietal region. He also examined Mahettar vide Ex.P/29 and found lacerated wound of 1" x 1/2' with swelling of 3" x 2" just above left eye, contusion of 2" x I" over left palm, contusion of 2" x I" over left side of back, contusion of 7" x 1" over left side of back, contusion of 8" x 1" over right scapular region and contusion on" over right scapula region. He has also examined Ramkumar vide EX.P/31 and found stitched wound over left side of occipital region, healed abrasion of 8" x I" over left shoulder, healed abrasion of 1" x 1/2" over right leg and contusion of 6" x 3" over left leg. He has also examined Ramkumar vide EX.P/31 and found stitched wound over left side of occipital region, healed abrasion of 8" x I" over left shoulder, healed abrasion of 1" x 1/2" over right leg and contusion of 6" x 3" over left leg. Axe and sticks were seized from the appellants. 5. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Sakti, who in turn committed the case to the Court of Sessions. Bilaspur, from where the Additional Sessions Judge, Sakti received the same on transfer for trial. 6. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as eighteen witnesses. Statements of the accused/ appellants were recorded under Section 313 of the Cr.P.C., in which they denied the circumstances appearing against them and claimed innocence and false implication in the crime in question. They have also examined Or. Gorelal Miri (DW-1) who was examined appellant Amar Prasad vide Ex.D/13, appellant Anujram vide EX.D/14 and Brijmohan vide Ex.D/15 and fracture of skull bone of Amar Prasad was found. The appellants have taken the defence that the complainant party has assaulted them and caused fatal injuries and fracture to Amar Prasad, thereafter with a view to save themselves in exercise of right of private defence they have caused injuries, they have not exceeded the right of private defence available to them. 7. After affording opportunity of hearing to the parties, the Additional Sessions Judge has convicted and sentenced the appellants as aforementioned. 8. We have .heard learned counsel for the parties, perused the judgment impugned al}d record of the trial Court. 9. Learned counsel for the appellants frankly submits that in the light of evidence of prosecution witnesses and defence taken by them he is not disputing the presence of the appellants at the time of incident and he is also not disputing homicidal death of Gangaprasad and simple injuries to Barat am, Mehattarram and Ramkumar. 9. Learned counsel for the appellants frankly submits that in the light of evidence of prosecution witnesses and defence taken by them he is not disputing the presence of the appellants at the time of incident and he is also not disputing homicidal death of Gangaprasad and simple injuries to Barat am, Mehattarram and Ramkumar. Learned counsel further submits that complainant party has caused fatal injury to Amar Prasad and simple injures to other appellants, therefore, in exercise of right of private defence they have caused aforesaid injuries and have used minimum force although at the time of exercising of such right of private defence they have rightly exceeded the right of private defence which resulted into homicidal death of Gangaprasad but they have not committed homicidal death with intent to cause his death. Learned counsel contended that circumstances in which incident took place that too on petty ground that the complainant party was chiding his sons for agricultural purpose and the appellants who were also residents of same vicinity residing in front of house of the complainant thought that complainant Ramkumar is chiding them, the) objected and thereafter both the parties came out with sticks' and axe and caused injuries to each other shows that there was no premeditation, there was no intention and there was no motive for causing such injuries; Incident took place on a spur of moment. therefore the act of the appellants does not travel beyond the scope of Section 304 Part-II of the I.P.C. 10. On the other hand learned State counsel supported the judgment impugned and submits that at the time of causing injury over the head of Gangaprasad the appellants were having knowledge that by their act they may kill Gangaprasad. This shows that the present appellants have caused homicidal death of Gangaprasad with intent to cause his death in furtherance of common object of unlawful assembly which they have formed. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 12. In the present case, injuries to both parties, grievous injury to appellant Amar Prasad and homicidal death of Gangaprasad have not been substantially disputed on behalf of the appellants. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 12. In the present case, injuries to both parties, grievous injury to appellant Amar Prasad and homicidal death of Gangaprasad have not been substantially disputed on behalf of the appellants. Even otherwise, aforesaid injuries and homicidal death of deceased Gangaprasad have also established by the evidence of Dr.Rajesh Kumar Singh (PW-14) and autopsy report Ex.P/24, Dr.Sajan Kumar Agrawal (PW-15) and injury report Exs.P/27, P/29 and P/31. Death of deceased Gangaprasad was homicidal in nature. Complainants Ramkumar and his sons Mehattarram, Reshamlal and Baratram have also been tried for the offence punishable under Sections 323/149, 325/149 and 148/149 of the I.P.C. in S.T.No.160/2003 and they have been convicted for the commission of aforesaid offence. Their Criminal Appeal No.1229 of 2003 have also decided today itself, in which while maintaining the conviction of the appellants their sentences have been modi lied to the extent of till rising of the Court and fine. 13. Simple injuries have been caused to other complainants namely, Baratram, Mehattarram and Ramkumar. The appellants have not disputed the incident, same is also established by the evidence of Mehattar Satnami (PW2), Rajkumar Satnami (PW-3), Santoshi Bai (PW-5), Panchram Satnami (PW6), Sawantram (PW-7) and Baratram (PW-8) which are sufficient to establish the tact that the present appellants came out from their house, they were holding axe and sticks and they have caused injury to Gangaprasad resulting into his jeath and simple injuries to complainants Baratram, Mahettarrant and Ramkumar. Evidence of Dr.Gorelal Miri (DW-1) is also sufficient to establish the fact that -appellants Brijmohan, Anujram and Amar Prasad have also received injuries including fracture of head of skull bone of Amar Prasad. 14. As per evidence of aforesaid witnesses while complainant Ramkumar was chiding to his sons relating to agricultural operation the appellants heard chiding and thought that Ramkumar was chiding them then they opposed and thereafter both the parties came out with sticks and axe the appellants were also holding axe and sticks and have caused aforesaid injuries. Both the parties have caused injuries to each other show that just after hearing of chiding they have formed unlawful assembly but their intention were not to kill any person but to teach lesson to complainant party. Both the parties have caused injuries to each other show that just after hearing of chiding they have formed unlawful assembly but their intention were not to kill any person but to teach lesson to complainant party. The accused party has also received injuries including fracture of skull bone of Amar Prasad shows that both the pat1ies have received grievous injuries. This fact clearly reveals that the present appellants have not caused homicidal death of Gangaprasad with intent to cause his death but at the time of causing such injury they were having definite knowledge that by their act Gangaprasad may die. They have caused injuries to complainant party in right of their private defence but they have exceeded their right of private defence. These circumstances clearly reveal that they have not caused homicidal death of deceased Gangaprasad with intent to cause his death. Therefore the act of the appellants docs not travel beyond the scope of Section 304 Part-II of the I.P.C. 15. While convicting and sentencing the appellants under Section 302 read with Section 149 of the I.P.C. the trial Court has not considered the aforesaid circumstances and thereby committed illegality. 16. For the foregoing reasons the appeal is partly allowed. Conviction and sentence of the appellants under Sections 148 read with Section 149 of the I.P.C. and 323 read with Section 149 of the I.P.C. are hereby maintained. However. conviction of the appellants under Section 302 read with Section 149 of the I.P.C. is altered to Section 304 Part-II of the I.P.C. and sentenced them to undergo R.I. for five years. The appellants, who are in jail be released forthwith if not required in any other cases. Appeal Partly Allowed.