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2011 DIGILAW 324 (CHH)

MANGALDAS v. STATE OF M. P. (NOW C. G. )

2011-09-21

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2011
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J.:- 1. This appeal is directed against the judgment dated 9th of January, 1995 passed in Session Trial No. 94/93 by the Fourth Additional Session Judge, Raipur. By the impugned judgment, the appellants have been convicted u/d 302/ 34 IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under:- The case of the prosecution is that on 27.9.92 at about 9.30 a.m., deceased Gangaram was ploughing the disputed field. The appellants, who are real brothers, went to the field and asked Gangaram not to plough the field and taking serious objection, the appellants untied the buffaloes from the plough. Thereafter the deceased again brought the buffaloes and tied them with the plough and again tried to plough the field. On this, the appellants assaulted the deceased by lathi and Chatwar. The deceased received multiple injuries and succumbed to those injuries. There were 3 eye-witnesses to the incident namely- Jhulbai (PW -4 - wife of the deceased), Munnalal (PW -7) and Bhuklu (PW -11). First Information Report (Ex.-P/1) was lodged by Santram (PW-1). The Investigation Officer reached to the place of occurrence, gave notice (Ex.-P/2) to the Panchas and prepared inquest (Ex.-P/3) on the dead body of the deceased. The dead body of the deceased was sent for postmortem to D.K. Hospital, Raipur vide requisition Ex.-P/17. The post-mortem examination was conducted by Dr. D.C. Jain (PW-9). He noticed following injuries on the dead body of the deceased:- (i) Lacerated wound 2 inch x 1/2 inch x 1/4 inch on the left portion of the face; (ii) Lacerated wound 1 1/2 inch x 1/2 inch x 1/4 inch on the right portion of the face above injury no. D.C. Jain (PW-9). He noticed following injuries on the dead body of the deceased:- (i) Lacerated wound 2 inch x 1/2 inch x 1/4 inch on the left portion of the face; (ii) Lacerated wound 1 1/2 inch x 1/2 inch x 1/4 inch on the right portion of the face above injury no. 1 ; (iii) Lacerated wound 1 1/2 inch x 1/2 inch x 1/4 inch on the left portion of jaw; (iv) Lacerated wound 1 1/2 inch 1/2 inch x 1/4 inch on the left eyebrow; (v) Lacerated wound 2 inch x 1/2 inch x 1/4 inch on the middle of the forehead; (vi) Lacerated wound 2 inch x 1/2 inch x 1/4 inch on the left portion of the skull; (vii) Lacerated wound 2 inch x 1/2 inch x 1/4 inch on the middle of the skull; (viii) Lacerated wound 2 inch x 1/2 inch x 1/4 inch on the back portion of the skull; (ix) Lacerated wound 3 inch x 1 inch x 1/2 inch on the left leg. Bones were found fractured; & (x) Lacerated wound 2 inch x 1/2 inch x 1/4 inch on the upper portion of the left leg. On internal examination, it was found that there was fracture in the skull bone. The Autopsy Surgeon opined that the injuries were sufficient to cause death in ordinary course of nature; cause of death was coma due to the above injuries and the death was homicidal in nature. The post-mortem report is Ex.-P/11. In further investigation, appellant- Mangaldas was taken into custody and his memorandum statement (Ex.-P/9) u/s 27 of the Evidence Act was recorded and Ckatwar was seized from his possession. Various other articles were also seized during the course of investigation and were sent for their chemical examination to Forensic Science Laboratory, Sagar, from where, a report Ex.-P/21 was received. According to the F.S.L. report, blood stains were found on many articles, including the danda (chatwar) seized from the possession of appellant- Mangaldas. Though the above articles were sent for their Serological examination vide Ex.-P/22, but no report could be filed. 3. Mrs. Renu Kochar, learned counsel appearing on behalf of the appellants, argued that it was not established that the appellants had assaulted the deceased; the eye-witnesses are not reliable; Jhulbai (PW-4) is interested witness being the wife of the deceased, therefore, her evidence should be discarded. 3. Mrs. Renu Kochar, learned counsel appearing on behalf of the appellants, argued that it was not established that the appellants had assaulted the deceased; the eye-witnesses are not reliable; Jhulbai (PW-4) is interested witness being the wife of the deceased, therefore, her evidence should be discarded. Alternatively, she argued that the appellants were in settled possession of the disputed field since last 15 years; there was a land dispute between both the parties; the appellant and the deceased were members of the different branches of the same family; the appellants firstly removed the deceased from the field and when the deceased again tried to plough the field, he was assaulted, therefore, the appellants acted in right of private defence of property and they cannot be held liable for punishment u/s 302 IPC. 4. On the other hand, Mr. Ravindra Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments. He argued that all the eye-witness are reliable; the appellants have not taken the plea of right of private defence and the case is not one of right of private defence, therefore, the learned Session Judge was fully justified in awarding the conviction and sentences to the appellants u/s 302/34 IPC. 5. We have heard learned counsel for the parties at length and have also perused the records of the sessions case. 6. Jhulbai (PW-4) is the wife of the deceased. She deposed that on the fateful day, she had gone to the disputed field along with the deceased. They were also accompanied by their son- Raju. Her husband was ploughing the disputed field and she was cleaning the spines (kanta) near the field. The appellants came there and they untied the buffaloes from the plough of her husband. Thereafter her husband again brought the buffaloes and tried to tie them for ploughing the field, on which, the appellants assaulted her husband. Appellant- Sukhdas was having lathi and appellant- Magaldas was having tangia. She admitted in the cross-examination that the appellants are sons of uncle of her husband. A case is pending between the appellants and her husband relating to the disputed field. She further admitted that her husband (deceased) was prosecuted in a criminal case for cutting the crops of the said field. She admitted in the cross-examination that the appellants are sons of uncle of her husband. A case is pending between the appellants and her husband relating to the disputed field. She further admitted that her husband (deceased) was prosecuted in a criminal case for cutting the crops of the said field. She further admitted that the disputed land was in possession of the appellants since last 10-15 years and the appellants were sowing crops in the said field and they never allowed the deceased to plough the field because the appellants were claiming that it was their field and they will not allow the deceased to enter in the said field. She also admitted that almost every year they tried to forcibly enter in the field, but the appellants used to resist them, therefore, they could not get the possession of the field. 7. Munnalal (PW-7) is an injured witness. He also deposed that the deceased was assaulted by the appellants. He also admitted in the cross-examination that the appellants were in possession of the disputed field and a dispute between the appellants and the deceased was going on. 8. Bhuklu (PW-11) has also supported the evidence of Jhulbai (PW4) and Munnalal (PW -7) that the appellants had assaulted the deceased in the disputed field. 9. The evidence of the above eye- witnesses is corroborated by the medical testimony of Dr. D.C. Jain (PW-9) who noticed the above injuries. 10. Though the above eye-witnesses have been put to lengthy cross-examination by the defence, but the defence has not been able to elicit any such circumstance on which either their testimonies may be discarded or it may be said that they were unreliable witnesses and were falsely implicating the appellants in crime in question. Mrs. Renu Kochar has argued that Jhulbai (PW4) was wife of the deceased, therefore, she was interested witness. The Supreme Court has said time and again that merely because the eye-witnesses are family members their evidence cannot be per-se discarded. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible (Harbans Kaur and another Vs. State of Haryana1; Namdeo Vs. State of Maharashtra2 & Sonelal Vs. State of MP3. We have scrutinized the evidence of Jhulbai (PW-4) and other witnesses with great caution and we do not find any infirmity in their evidence. It was a day time incident, every one was known to each other. The presence of the witnesses also cannot be doubted because PW 4 has accompanied her husband from their house and the other witnesses were working in their nearby fields. Therefore, it was established beyond all reasonable doubts that the appellants assaulted the deceased in the disputed field who received multiple injuries and succumbed to those injuries. 11. Now we shall consider the arguments relating to right of private defence. 12. Learned State counsel has argued that the plea of right of private defence was not taken by the appellants before the trial Court, therefore, it cannot be argued herein appeal. In Kashi Ram and others Vs. State of MP4, the Supreme Court held that though S. 105 of Evidence Act, 1872 enacts a rule regarding burden of proof but it does not follow there from that the plea of private defence should be specifically taken and if not taken shall not be available to be considered though made out from the evidence available in the case. A plea of self defence can be taken by introducing such plea in the cross-examination of prosecution witnesses or in the statement of the accused persons recorded under S. 313, Cr.P.C. or by adducing defence evidence. And, even if the plea is not introduced in anyone of these three modes still it can be raised during the course of submission by relying on the probabilities and circumstances obtaining in the case. 13. When the right of private defence of property extends to causing death has been provided in Section 103 IPC. And, even if the plea is not introduced in anyone of these three modes still it can be raised during the course of submission by relying on the probabilities and circumstances obtaining in the case. 13. When the right of private defence of property extends to causing death has been provided in Section 103 IPC. The right of private defence of property extends, under the restrictions nentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing if which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:- First. - Robbery; Secondly. - House-breaking by night; Thirdly. – Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; Fourthly.- Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. 14. When such right extends to causing any harm other than death has been provided in Section 104 IPC. If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.. 15. In the present case, there is sufficient evidence to hold that the disputed field was in possession of the appellants since last 10-15 years. It was in cultivating possession of them. The appellants were claiming since long that the disputed field was their propel1y and they will not allow the deceased to interfere with their possession. All these are admissions in the evidence of Jhulbai (PW-4). Jhulbai (PW-4) also admitted that a case was pending between the appellants and her husband relating to the said field. She also admitted that, earlier, her husband was prosecuted in a criminal case of crop-cutting relating to the disputed filed. All these are admissions in the evidence of Jhulbai (PW-4). Jhulbai (PW-4) also admitted that a case was pending between the appellants and her husband relating to the said field. She also admitted that, earlier, her husband was prosecuted in a criminal case of crop-cutting relating to the disputed filed. The case of the prosecution is that on the date of incident, the deceased stal1ed ploughing the field by buffaloes-plough. When the appellants came to know about it, they went to the field and asked the deceased not to plough the field and thereafter they untied the buffaloes from the plough. After this, the deceased again brought the buffaloes to the field and tried to the them with the plough and also tried to plough the field. It is on this event, the appellants assaulted the deceased by lathi & chatwar which is normally carried by villagers. The appellants were in settled possession of the disputed field, and- on the evidence on record, it is clear that they assaulted the deceased in right of private defence of their property. The question is whether the appellants were having right of private defence of property to the extent of causing death or their right was restricted to cause other harm than the death? We can find the answer to this question in Sections 103 & 104 IPC. The right of private defence of the property extends to causing death in the circumstances which are mentioned in Section 103 IPC which does not include the "criminal trespass" which in fact, the deceased has committed in the present case. Therefore, the right accrued in favour of the appellants could not extend to causing the death. In fact, the right accrued in favour of the appellants would extend to causing any harm other than death which is clear from Section 104 IPC which :ncludes an instance of "criminal trespass" which the deceased did in this matter. Therefore, the appellants certainly exceeded their right by causing death of the deceased. 16. Section 304 IPC provides punishment for culpable homicide not amounting to murder. Therefore, the appellants certainly exceeded their right by causing death of the deceased. 16. Section 304 IPC provides punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 applies where there is intention, whereas the second part applies where there is knowledge but the important thing is that before holding the accused guilty under any part of Section 304, it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. 17. In the present case, we are of ~he view that in the facts and circumstances of the case, the appellants exceeded the right of private defence of property by causing death of the deceased ,as there is no occasion to cause his death in right of private defence of property as the deceased did not do any such act on which such right was available to the appellants u/s 103 IPC. The appellants ought to have caused any other harm to the deceased, but ought not have caused his death under the right accrued in their favour u/s 104 IPC and thus, the act of the appellant was one of exceeding right of private defence of property. We are of the view that in the above facts and circumstances of the case, an offence u/s 302 IPC would not be made out and the appellants I would be liable for punishment u/s 304 Part-II IPC. 18. For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to the appellants u/s 302/34 IPC are set-aside. Instead thereof, the appellants are convicted u/s 304 Part-II/34 IPC and sentenced to undergo rigorous imprisonment for 5 years. The appellants shall be entitled to set-off the period already undergone. Appeal Partly Allowed.