Full Judgment Text
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CASE NO.:
Appeal (crl.) 1378 of 1999
PETITIONER:
LATEL
Vs.
RESPONDENT:
STATE OF CHHATTISGARH
DATE OF JUDGMENT: 11/09/2001
BENCH:
U.C. Banerjee & N. Santosh Hegde
JUDGMENT:
SANTOSH HEGDE, J.
The appellant herein was accused No.1 in Sessions Trial
No.39/93 before the III Additional Sessions Judge of Sessions
Court, Bilaspur (M.P.). He along with 11 other persons were
charged under Sections 148, 302 and 307 read with Section 149
IPC for having committed the murder of Sahdev Tiwari and his
son Ashok Tiwari and for having attempted to cause the death
of Vijay Kumar Tiwari. The learned Sessions Judge convicted
the appellant and 8 others under Sections 302 and 307 read with
Section 149 IPC for the death of Ashok and Sahdev Tiwari and
convicted them under Section 302 read with Section 149 IPC
for causing the death of Sahdev Tiwari and sentenced them to
undergo RI for life. He, however, did not convict the appellant
for the offence under Section 307 while he did so in regard to
some others. On appeal, the High Court of Madhya Pradesh at
Jabalpur while confirming the sentence of the appellant herein
under Section 302 IPC for the murder of Sahdev Tiwari and
sentencing him to life imprisonment also convicted the
appellant along with one Bhajan for the offence punishable
under Section 307 IPC for having caused the death of Ashok
and on this count sentenced them to undergo rigorous
imprisonment for 10 years under Section 304, Part I, IPC. It is
against this order of conviction and sentence, said Latel*
* prosecution
case that the deceased Sahdev Tiwari, his sons Ashok and Vijay
Tiwari along with Jeetram, Manharan, Rajaram and some
labourers had gone with a plough to this land for sowing. It is
stated that no sooner than they commenced ploughing their
land, the accused persons including the appellant appeared on
the scene armed with deadly weapons and surrounded Sahdev
and others and launched a blistering attack. It is further stated
that the appellant along with the acquitted accused conjointly
assaulted the complainant party in which the acquitted accused
Chandrabhan and Bhajan who stands now convicted for offence
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under Section 304, Part I assaulted Vijay Kumar son of Sahdev
who survived the attack and who is examined as PW-10 with
’Tabbal’ and Latel and Bhajan attacked Ashok with ’tabbal’ as
a result of which Ashok and Vijay both fell down on the ground
and became unconscious. Vijay on regaining consciousness saw
the appellant, Bhajan, Chandrabhan and Bundaru assaulting
Ashok with ’tabbal’ and lathi. His pleading with the accused
not to cause further injuries to Ashok proved to be of no avail.
Seeing this, it is stated that Vijay and his father Sahdev started
fleeing from the said field. It is the further case of the
prosecution that that accused persons chased the duo (Vijay and
his father) and one of the accused persons threw a ’tabbal’ at
them which, according to the prosecution, hit the deceased
Sahdev. This was also noticed by PW-2 Lalakram and other
persons in the neighbouring fields, who pleaded with the
accused persons not to beat Sahdev and Vijay any more. In the
melee, it is stated that Vijay escaped from the said place and
ran towards his house. Thereafter, he proceeded to the Police
Station at Mungeli where the complaint Ex. P-27 was lodged
with C.K. Tripathi, SHO, PW-21. As per the said complaint,
Vijay is supposed to have told that he does not know whether
his father is dead or alive. Accordingly, the Police registered a
case being Crime No.138/87 under Sections 147, 148, 307 IPC
and the investigating officer immediately rushed to the village
and learnt from Kotwarin Ram Bai that Ashok and Sahdev had
been done to death and accordingly a village unnatural death
information Ex. P-35 was recorded. It is the further case of the
prosecution that the appellant herein also lodged a report at the
Police Station Mungeli on the very same day stating that he was
in possession of an agricultural field since long and had sown
his crop about 8 days prior to the incident but the deceased
Sahdev and Ashok along with Vijay and servants had come to
the field and had belaboured them. This report was recorded in
the general diary at serial No.170 which is marked as Ex. P-36.
Since there is no appeal against the acquittal for the
purpose of disposal of this appeal, suffice it to say that the High
Court on consideration of the material on record came to the
specific conclusion that from the record available before it it is
clear that at no point of time Sahdev was put in possession of
the property pursuant to his purchase of the same. It also held
that having come to the conclusion that Sahdev was not in
possession of the property, the one and the only corollary was
that the appellant Latel was in possession of the land. On this
basis, it came to the conclusion that so far as the first part of the
incident which took place in Survey No.435/1 is concerned, it is
an admitted fact on sides that the incident in question did take
place. The High Court came to the conclusion that the appellant
and his party had the right of private defence available to them
in defending their possession of the property but so far as the
appellant and Bhajan are concerned, they exceeded their right
of private defence to the extent of causing injuries which led to
the death of Ashok. Hence, they are liable for the consequences
of their acts and are liable to be punished under section 304,
Part I, IPC, to serve a sentence of 10 years’ RI.
In regard to the latter part of the incident, namely,
causing the death of Sahdev, the High Court held the appellant
alone guilty for which it relied on the testimony of Lalakram
PW-2, Ramcharan PW-3, Prem Singh PW-4 and injured
witness Vijay Kumar PW-10.
Ms. Santosh Singh, learned amicus curiae appearing for
the appellant, contended before us that so far as the finding of
the High Court in regard to the second part of the incident is
concerned wherein the appellant has been held guilty for having
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caused the death of Sahdev, there is absolutely no material and
a perusal of the evidence of the witnesses on whom the High
Court has relied upon to come to this conclusion itself, would
show that none of these persons stated that they saw the present
appellant beat Sahdev. Per contra, Ms. Geetanjali Mohan,
learned counsel representing the respondents, contended that
though there is no specific reference to the overt act of the
appellant in regard to the attack on Sahdev, it is clear from the
motive alleged in regard to the attack and sequence of events
that took place that the death of Sahdev was caused either due
to attack by the appellant or at the instance of the appellant.
Therefore, the High Court was justified in coming to the
conclusion that the appellant was guilty of having caused the
death of Sahdev.
We will first consider the case of the prosecution in
regard to the second incident which led to the death of Sahdev
consequent to which the appellant is before us, having been
sentenced to life imprisonment. The High Court relied on the
evidence of evidence of Lalakram, PW-2 for basing its
conviction on the appellant. A perusal of this evidence of PW-2
which is made available to us in the paper-book, shows that this
witness has stated that he saw the accused persons including the
appellant coming to his field chasing Sahdev Maharaj
(deceased), Vijay Maharaj (PW-11) and the appellant and other
accused persons asked him to go and do his work. Therefore, he
went away from there due to fear and the accused persons ran
after Sahdev Maharaj. We have perused the entire evidence of
PW-2 and we are unable to find in statement of this witness
anything about seeking the attack on Sahdev or that Latel was
responsible for the death of Sahdev. Therefore, the evidence of
PW-2, according to us, is of no avail to the prosecution. We
now consider the evidence of Ramcharan, PW-3, who is a
servant of deceased Sahdev. He in his examination-in-chief has
stated that he accompanied Sahdev and his sons to the field and
when the incident in question took place in the disputed field,
due to fear he took to his heels in the direction of the rising sun
in which direction the village is located. He further says that in
the village he told a wise man named Bhagat that Ashok Tiwari
is being beaten at Bindraban Khar. He also specifically stated
that he did not tell this Bhagat the names of the persons beating
him. In his evidence there is no reference to the second part of
the incident at all, therefore, the question of relying on the
evidence for the purpose of unearthing the names of the
assailants of Sahdev does not arise. The next witness relied
upon by the High Court is Prem Singh, PW-4, who also
accompanied Sahdev to the field on the fateful day. In regard to
the second incident he stated in his examination-in-chief : "In
the meanwhile the younger Vijay Kumar Tiwari of Ashok
Kumar Tiwari got up and ran away from the place of
occurrence and his father Sahdev Tiwari also ran. They people
ran in the southern direction from the place of occurrence and
after them all the four accused persons and two lady accused
ran and there were other people round about there but I am not
able to identify them. After covering some distance, Ashok
Tiwari’s father and brother were caused blows by throwing the
tabbal at them but I am not able to pin point as to what
particular persons threw away the tabbal because I was at some
distance. I went on seeing till the distance beyond 100 yards.
After that the bushes of besharm came and beyond that I could
not see." This is all that is stated in the examination-in-chief in
regard to the second incident by PW-4 and we are unable to
find any material whatsoever to implicate the appellant in the
assault on Sahdev in this evidence of PW-4. The next witness
relied upon by the High Court is Vijay Kumar, PW-10, who
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apart from being an injured witness is also the son of deceased
Sahdev. In regard to the second incident, this witness states that
after the first incident and after he regained consciousness he
stood up and suggested his father "Let us flee from here." Then
both of them started running. While so running, he saw Govind
throw a ’tabbal’ at him and which struck on the elbow of his
right hand. He continued to run towards Bhattgaon and his
father too moved towards Bhattgaon. While still on the run, he
has stated that the people who were chasing them, started
hurling Farsa at them but no Farsa struck him. Then he states
that perhaps it struck on the head of his father on the back side
because he had seen blood oozing from the back side of his
father’s head. He further states that while running they passed
from Kutu’s field where Kutu was working and he and his
father pleaded with him to save them and continued running till
they reached the field of Lalka where the family members of
Lalka were sitting and they were having water. He and his
father drank one glass of water each. He further states that
thereafter both of them started running from there. Then Lalka
asked him whey they were running as he was present there then
Lalka called Latel and asked him not to do anything as
whatever happened should be left. The appellant is then
supposed to have told Lalka to keep quiet because today they
will cut them. Then the accused persons went towards
Bhattgaon following his father and the witness turned towards
his village Khera. He further says that after this while running
he thought he would go to the rescue of his father and turned
then he saw the accused Gorasy throwing a ’Danda’ at his
father and the appellant was saying "Today I shall cut him into
pieces". "therefore, I under fear fled away towards my village."
His evidence given thereafter is of no consequence in regard to
what happened to his father thereafter. Having carefully
perused the evidence of these witnesses on whom the High
Court relied for the purpose of passing a conviction under
Section 302 on the appellant, we find that there is absolutely no
material which could establish beyond doubt that the appellant
could be held guilty for his individual act of having committed
the murder of Sahdev, therefore, in our opinion, the High Court
was not justified in convicting the appellant under Section 302
consequently the sentence of life imprisonment is also not
justified.
We will now take up the incident that took place in the
disputed field. The High Court in regard to this incident, having
come to the conclusion that the possession of the disputed field
was with the appellant, held that the appellant had a right to
private defence to the extent of protecting the property of which
he was in possession but after examining the evidence available
on record it came to the conclusion that so far as the appellant
and Bhajan son of Latel are concerned, they have exceeded this
right and are liable to be punished under Section 304, Part I,
IPC, for having committed the murder of Ashok Tiwari. Here
we are in unison with the finding of the High Court. From the
evidence of the witnesses which have been discussed by the
High Court in regard to this incident, it is clear that the
appellant and Bhajan had attacked on Ashok Tiwari even after
he had fallen down on the ground with ’tabbal’. Dr. Chandel,
PW-20, who gave evidence as a prosecution witness has stated
that the death of Ashok Tiwari was the consequence of two
head injuries which had also resulted in fracture of parietal and
occipital bones and these injuries were sufficient in the ordinary
course of nature to cause death and from the evidence of the
prosecution, the High Court rightly came to the conclusion that
these 2 injuries were caused by the appellant and Bhajan by
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exceeding their right of private defence. At the same time, the
High Court in our opinion was justified in coming to the
conclusion that the act of these two persons, namely, the
appellant and Bhajan came under Exception II to Section 300
and amounted to culpable homicide not amounting to murder
because the same was done in exercise of the right of private
defence of their property and taking into consideration nature of
attack it held that their act does not come under Section 302
IPC but only under Section 304, Part I, IPC. We agree with this
conclusion both in regard to the act of the appellant and Bhajan
as also the nature of offence as held by the High Court. It is to
be noted that Bhajan though convicted under Section 304, Part
I, IPC for 10 years’ RI has not preferred any appeal and the
appellant has chosen to prefer this appeal from jail, and having
considered the material on record and the evidence, we agree
with the High Court in regard to its findings with reference to
the death of Ashok Tiwari and find the appellant guilty of
having been a party to the death of Ashok Tiwari. He is liable
to be punished under Section 304, Part I, IPC, and we feel that
the sentence of 10 years’ RI imposed on him is justified.
For the reasons stated above, while allowing this appeal
in part, we hereby set aside the conviction and sentence
imposed on the appellant i.e. RI for life under Section 302 for
having caused the death of Sahdev Tiwari. We confirm the
finding of the High Court and the conviction and sentence
imposed on the appellant of 10 years’ RI under Section 304,
Part I, IPC. Accordingly, the appeal is partly allowed to the
extent indicated above.
..........................J.
(U C Banerjee)
.........................J.
September 11, 2001. (N Santosh Hegde)
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