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2012 DIGILAW 142 (CHH)

JADURAM v. STATE OF M. P.

2012-05-10

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J 1. This appeal is directed against the judgment dated 27th of June, 1996 passed in Session Trial No. 66/90 by the Second Additional Session Judge, Bastar at Jagdalpur. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.500/- with default sentence of R.I. for 2 months. 2. The facts, briefly stated, are as under:- Deceased-Ramnath was resident of village Taragaon. He had some landed property (agricultural field) in village Dewda, which was adjacent to the house of the appellant. There was dispute relating to the said land between the appellant and the deceased. Some matter was also pending before the Court. Deceased- Ramnath had cultivated the field. He used to come to the field along with his two servants namely - Suddhu (PW-9) and Lakhmu. He used to leave field in the night after reaching of those persons. On 27.1 0.1988 when the servants of the deceased came to the field, they did not find him there. After making search, they informed son of the deceased namely - Ramsukh (PW-1). Ramsukh came to village Dewda. He met Lakheshwar (PW-2 - Kotwar) ana Chhediya (PW-3 Sarpanch) who informed him that the appellant has committed murder of his father (deceased) in his house as he had made extra-judicial confession before them. Ramsukh (PW-1) lodged the First Information Report (F.I.R.- Ex.-P/1). The Investigation Officer reached to the place of occurrence, gave notice to the Panchas and prepared inquest (Ex.P/2) on the dead body of the deceased. The dead body was lying in the third room of the house of the appellant. The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr. Pradeep Pandey (PW-5). He noticed following injuries on the dead body of the deceased:- (i) Incised wound 5 x 22.5 cm on the front portion of neck. Trachea and esophagus were completely cut; (ii) Incised wound 8 x 26 cm on the back portion of the neck. The post-mortem examination was conducted by Dr. Pradeep Pandey (PW-5). He noticed following injuries on the dead body of the deceased:- (i) Incised wound 5 x 22.5 cm on the front portion of neck. Trachea and esophagus were completely cut; (ii) Incised wound 8 x 26 cm on the back portion of the neck. Vertebral column was partially cut; (iii) Incised wound of 5 cm on the left portion of neck; (iv) Incised wound 4 x 0.8 cm on the left side of the umbilicus; portions of intestine were coming out; (v) There were injuries on the jaws and incisor teeth were uprooted; (vi) Incised wound 1 x 3 cm on the left side coastal border; (vii) Incised wound 1.5 x 3 cm near the injury no. (vi); (viii) Incised wound 2 x 1 cm on abdominal region; & (ix) Though a rope was found around the neck but there were no ligature marks. On internal examination, it was found that there were cut injuries on large intestine. The Autopsy Surgeon opined that all the injuries were ante-mortem caused by sharp and hard object and the cause of death was shock and hemorrhage due to the abdominal injuries and the injury over the neck and the death was homicidal in nature. The post-mortem report is Ex.P/11. In further investigation, the appellant was taken into custody and his memorandum statement (Ex.-P/14) u/s 27 of Evidence Act was recorded and a sword was seized at his instance vide seizure memo Ex.-P/15. Clothes and other articles were also seized during the course of investigation. A spear (bhala/ballum) and one set of plastic chhappal, both belonging to the deceased, were also seized from the house of the appellant. The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar, from where, a report Ex.P/19 was received. According to the F.S.L. report, blood stains were found on almost all the articles including the sword. 3. There was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following are the circumstances, on which, the prosecution relied:- (i) The appellant made extra-judicial confession before Lakheshwar (PW-2) and Chhediya (PW-3); (ii) There was land dispute between the appellant and the deceased. 3. There was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following are the circumstances, on which, the prosecution relied:- (i) The appellant made extra-judicial confession before Lakheshwar (PW-2) and Chhediya (PW-3); (ii) There was land dispute between the appellant and the deceased. A quarrel had taken place at the day time on the date of the incident; (iii) The dead body of the deceased was found in the house of the appellant which the appellant himself has disclosed; & (iv) The appellant gave discovery statement (Ex.-P/14), on which, a sword was seized and blood stains were found over the sword in F.S.L. report. Blood stains were also found on the clothes of the appellant. 4. The appellant took the plea of right of private defence. It was contended that the deceased entered into his house with spear and was blowing the spear, therefore, the appellant assaulted him exercising right of private defence. 5. The plea of right of private defence was not accepted by the Session Judge. The learned Session Judge, on the above set of circumstantial evidence, held that it was proved beyond all reasonable doubt that the appellant committed murder of the deceased, therefore, he was liable for punishment u/s 302 IPC. However, 2 co-accused persons namely- Jaiti Bai, wife of the appellant and Lagni Bai, mother of the appellant who were admittedly the inmates of the house and charged u/ss 302/34 & 201 IPC were acquitted. 6. Mr. Vishnu Koshta, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. He has also not disputed that the dead body of the deceased was found in the house of the appellant. He has argued that the learned Session Judge erred in law in not accepting the plea of right of private defence, raised by the appellant. 7. On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and submitted that the learned Session Judge was fully justified in rejecting the plea of right of private defence, raised by the appellant. 8. We have heard learned counsel for the parties at length and have also perused the records of the session case. 9. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and submitted that the learned Session Judge was fully justified in rejecting the plea of right of private defence, raised by the appellant. 8. We have heard learned counsel for the parties at length and have also perused the records of the session case. 9. In catena of decisions, the Supreme 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 others Vs. State of M.P. AIR 2001 SC 2902, Bishna alias Bhiswadeb Mahato and others Vs. State of W.B. (2005) 12 SCC 657 & Salim Zia Vs. State of Uttar Pradesh AIR 1979 SC 391). This view was also taken by this Court in the matter of Akhilesh Kumar and others Vs. State of C.G. 2008(1) CGLJ 85 (DB) and Pramila Vs. State of Chhattisgarh, Cr.A.No. 868/2006. 10. Section 96 IPC provides that nothing is an offence which is done in the exercise of the right of private defence. Section 97 provides that every person has a right, subject to the restrictions contained in section 99, to defend his own body, and the body of any other person, against any offence affecting the human body. 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 arid 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. Sections 102 and 105 IPC deal with commencement arid 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. Such right is co-extensive to the reasonable apprehension of the danger to the body continues. 11. Now we shall examine the argument of Mr. Koshta in light of the above principles. 12. We firstly look into the evidence of Lakheshwar (PW-2). Lakheshwar (PW-2) was village Kotwar. He deposed that at about 7-8.00 a.m., the appellant, his mother and his wife came to his house. The appellant told him that he had brutally assaulted deceased- Ramnath in his house (in house of the appellant). The appellant stated in clear words that he alone had assaulted the deceased as he had land dispute with the deceased. In Para-6 of the cross-examination, Lakheshwar (PW-2) admitted that the appellant had told him that deceased-Ramnath entered into his house with a spear (bhala) for killing him. His spear (bhala) is also lying in his house. The spear (bhala) of the deceased was seized by the police. 13. Chhediya (PW-3) was village Sarpanch. He also deposed in clear words that the appellant had made extra-judicial confession before him. He also deposed that the appellant stated that he had killed the deceased in his house (house of appellant). He further deposed that he had gone to the house of the appellant and had seen that the dead body of the deceased was lying in the third room of the house of the appellant. In Para-8 of his cross-examination, he admitted that the appellant had also stated to him that the deceased had entered into his house along with spear (bhala) for killing him and he was blowing the spear (bhala) inside his house. Therefore, he had killed the deceased. 14. Chotki (PW-7) is wife of the deceased. She has also deposed that her husband (deceased) had gone to the field along with ballum (bhala) and torch. 15. The spear (bhala) and chhappal of the deceased were seized from the house of the appellant. These articles were put for identification. The identification was conducted by Visveshwar Prasad (PW-8). 14. Chotki (PW-7) is wife of the deceased. She has also deposed that her husband (deceased) had gone to the field along with ballum (bhala) and torch. 15. The spear (bhala) and chhappal of the deceased were seized from the house of the appellant. These articles were put for identification. The identification was conducted by Visveshwar Prasad (PW-8). In the identification, Suddhu (PW-9) identified those articles as the articles belonging to the deceased. The identification memo is Ex.-P/19 (F.S.L. report has also been marked as Ex.-P/19). Suddhu (PW-9) was the servant of the deceased who was daily accompanying the deceased. Therefore, he had identified the spear (bhala) and chhappal which were belonging to the deceased. Moreover, it was the case of the prosecution that the above articles were belonging to the deceased and were seized from the house of the appellant. 16. On appreciation of the above evidence, it is clear that the deceased has entered into the house of the appellant with a spear (bhala) and when he started blowing the spear (bhala), the appellant assaulted him by sword. The fact of blowing the spear (bhala) by the deceased has come in the evidence of Lokheshwar (PW-2) and Chhediya (PW-3) who deposed that while making the extra-judicial confession, the appellant told them that the deceased was blowing spear (bhala) inside his house. Even if we keep out the above evidence from consideration, at least one thing is clear that the deceased entered into the house of the appellant with a spear (bhala) in his hands. Admittedly there were 3 inmates in the house of the appellant i.e. appellant himself, his wife-Jaiti Bai (A-2) and his mother- Lagni Bai (A-3). The incident took place in the night. If the deceased had entered into the house of the appellant in the night having spear (bhala) in his hands, the appellant was right in conceiving a reasonable apprehension that the deceased would assault him or his family members and in such situation, right of private defence had certainly accrued in favour of the appellant. 17. Now question arises as to whether the appellant exceeded his right of private defence. The contents of the post-mortem report (Ex.-P/11) would show that the deceased had received 8 incised wounds. The above injuries must have been caused by repeated blows given by the appellant. 17. Now question arises as to whether the appellant exceeded his right of private defence. The contents of the post-mortem report (Ex.-P/11) would show that the deceased had received 8 incised wounds. The above injuries must have been caused by repeated blows given by the appellant. If the deceased had entered into the house of the appellant in the above manner having spear (bhala) in his hand and it is believed that he was blowing the spear (bhala) even with an intention to commit murder of the appellant or to commit serious injuries to the appellant or other inmates of the house, single blow or the first blow given by the appellant would have been sufficient to defend himself or his wife and mother. We are of the view that in light of the above material available on record, the appellant had exceeded his right as he gave repeated blows to the deceased which caused multiple serious injuries on the person of the deceased and ultimately resulted to his death. 18. Exception 2 to Section 300 IPC provides that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. We are of the view that the case of the appellant would be covered under Exception 2 of Section 300 IPC and in such situation, he would not be liable for punishment u/s 302 IPC, but he shall be liable for punishment under Part-I of Section 304 IPC. 19. For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant u/s 302 IPC are set-aside. Instead thereof, the appellant is convicted u/s 304 Part-I IPC and sentenced to undergo R.I. for 7 years. Appeal Partly Allowed.