Neelkanth vs State of Chhattisgarh

L.C. Bhadoo, J.—Accused/appellant Neelkanth has preferred this criminal appeal u/s 374 (2) of the Code of Criminal Procedure, 1973 being aggrieved by the judgment of conviction and sentence dated 21/05/ 1992, passed by the learned Second Additional Sessions Judge, Raigarh in Sessions Trial No. 1 of 1992 by which the learned Second Additional Sessions Judge after holding him guilty of the offence punishable u/s 302 of the Indian Penal Code convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 200/- in default of payment of fine to further undergo rigorous imprisonment for two months.

The case of the prosecution in brief is that some quarrel had taken place between Ravinarayan (since deceased) and accused Neelkanth in the year 1984 and since then their relations were strained. Ravinarayan took the agricultural land of one Onkar Bharti for the purpose of sowing the crop and for that purpose he ploughed the land. This land was adjacent to the agricultural land of accused Neelkanth. The manure of accused Neelkanth was lying in the land which had been taken by Ravinarayan from Onkar Bharti. On account of ploughing the land by Ravinarayan the manure scattered and their relations were further strained. On the fateful day i.e. on 18/10/1991 at about 12 noon when Ravinarayan was coming back from agricultural land accused Neelkanth assaulted him with Lathi and the lower part of the wooden plough. While beating he was saying "Maar Dalunga" (i.e. he would kill him). On hearing the sound of Maarpeet, Jairam (PW-1) who was sitting near the scene of occurrence in the house of barber came to the scene of occurrence and saw the accused assaulting Ravinarayan with the lower part of wooden of plough. Jairam (PW-1) immediately reached the scene of occurrence and caught hold of the accused. By that time Mayaram (PW-2) also reached there. Ravinarayan died instantaneously. The other villagers also arrived at the scene of occurrence. When Kotwar Kunjram (PW-5) came to know about the incident he called Banshidhar (PW-4) and Bheekham (PW-9) and narrated the incident. The villagers saw the dead body of Ravinarayan. Thereafter Kunjram (PW-5) went to Gharghoda Police Station and lodged the report. On the basis of this report Merg (Ex.P/3) was registered and the first information report was recorded under Ex.P 5. After registering the case the Investigating Officer reached the place of incident. The Investigating officer issuing notices (Exs.P/1 & P/19) to the witnesses prepared the inquest Panchanama (Ex.P/11) of the dead body of the deceased. The plain soil and the blood stained soil, a bamboo club, a part of the wooden plough - weapon of offence, and one blood-stained towel were seized under Ex P 2. The blood stained Dhoti of the accused was seized under Ex P/12. The dead body of the deceased was sent for post mortem examination under Ex.P/7 along with Constable Umashankar. Dr Rajeev Shrivastava (PW-8) conducted the autopsy on the dead body of the deceased and prepared the autopsy report (Ex.P/8).The seized articles were sent for chemical examination. The accused / appellant was also medically examined by Dr. Rajeev Shrivastava (PW-8). Dr. Shrivastava after examining the accused / appellant prepared the medical report (Ex.P/10).

The Police after completing the investigation filed the charge sheet against the accused / appellant for the offence punishable u/s 302 of the Indian Penal Code in the Court of Judicial Magistrate First Class Gharghoda who in turn committed the case to the Court of Sessions, Raigarh from where the learned Second Additional Sessions Judge received the case on transfer.

The learned Second Additional Sessions Judge after hearing the counsel for the parties and after perusing the records was of the opinion that there was sufficient material on record to frame charge u/s 302 of the Indian Penal Code against the accused. Accordingly he framed the charge against the accused for the commission of the offence u/s 302 of the Indian Penal Code and the same was read over and explained to the accused / appellant. The accused / appellant denied the charge and claimed to be tried.

The prosecution in order to prove the charge against the accused/ appellant examined in all fourteen witnesses at the trial. The statement of the accused/ appellant was recorded under. Section 313 of the Code of Criminal Procedure. He denied the evidence of the prosecution witnesses and stated that he was innocent and he has been falsely implicated in the case.

The learned Second Additional Sessions Judge after hearing the arguments of the learned Additional Public Prosecutor and the learned counsel appearing for the accused/appellant and after believing the evidence adduced by the prosecution held the accused / appellant guilty of the offence u/s 302 of the Penal Code convicted and sentenced him as mentioned above.

We have heard Shri Vivek Ranjan Tiwan, counsel for the accused/ appellant and shri P.S. Koshy, Govt. Advocate, for the State/respondent.

As for as the nature of the death of deceased Ravinarayan being homicidal is concerned, it is not in dispute. Dr. Rajeev Shrivastava (PW-8) in his evidence has stated that on 20/10/1991 he was posted at Primary Health Centre, Gharghoda as Assistant Surgeon. On that day on the requisition (Ex.P 7) of Gharghoda Police Station he conducted the autopsy on the dead body of deceased Ravinarayan and he found the following injuries on his body.

(a) One lacerated wound on right occipital region obliquely placed from behind forwards and downwards, size 2 1/2" x 1/4" x bone deep.

(b) One lacerated wound on scalp right parietal region obliquely place, size 2 1/4" x 1/2" x bone deep.

(c) One contusion on forehead above left eyebrow with hematoma, size 2 1/2" x 2" - reddish in color.

(d) One contusion extending over both the eyelids of the left eye -blue colored with sub conjunctival hemorrhage in left eye.

(e) One contusion on left shoulder at the root of neck 2" x 21/2" reddish blue colored.

(f) One abrasion on left shoulder 1 1/4" x 1/4" with clotted oozed blood.

(g) One abrasion on left side of back 2 1/2" x 1/4".

In the opinion of the doctor the mode of death is coma due to compression of brain following fracture of skull. The death is homicidal in nature. The post mortem report is Ex.P/8. In view of the evidence of Dr. Rajeev Shrivastava (PW - 8), it stands proved that the death of deceased Ravinarayan was homicidal.

On the question of involvement of accused / appellant Neelkanth in the murder of deceased Ravinarayan, Jamkunwar (PW-3), wife of the deceased, has stated that her husband had taken the land of Bharti Maharaj and had ploughed the same. This land was adjacent to the land of the accused and on account of that the accused / appellant quarreled with her husband saying that his manure was lying on the land of Bharti Maharaj, which her husband scattered. On this her husband, the deceased, said that he would return the manure. Yadav Prasad (PW-10) has also corroborated the testimony of Jamkunwar (PW-3). It has also come in the evidence on record that the relations between the deceased and the accused were strained since long because some quarrel had taken place between them prior to the present incident.

Jairam (PW-1) is the eyewitness to the incident. He has stated that on the fateful day at the relevant time he was sitting in the house of Mangaloo barber. As Mangaloo was not in the house, he was talking with his wife. At that time on hearing the sound of Maarpeet he came out of the house of Mangaloo and saw Ravinarayan lying on the ground and accused Neelkanth assaulting him with the lower portion of wooden plough saying that he would kill him. He rushed toward the place and caught hold of the accused and asked him not to beat Ravinarayan. Thereafter Mayaram also came out of his house. The other villagers also came there. Ravinarayan died instantaneously. Blood was oozing of his head, nose and from the other parts of his body. Mayarm (PW-2) corroborates this testimony.

Banshiram (PW-4) has stated in his evidence that on the fateful day when he was returning from his field Choukidar came to him and said that in the street Ravinarayan was lying dead. He went to the place and saw Ravinarayan lying dead in street. Two Lathis were also lying near the dead body of the deceased. At that time accused Neelkanth confessed that he had murdered Ravinarayan. Thereafter Kunjram went to lodge the report. The Kotwar of the village namely Kunjram (PW-5) has corroborated the evidence of Banshiram (PW-4). Kunjram has stated that he reached the scene of occurrence. Accused Neelkanth came there and said that since Ravinarayan had beaten him, he had murdered Ravinarayan. At that time he saw that blood was oozing out of the forehead of the accused. The accused said that if they were going to lodge the report, he would also accompany him to lodge the report. Bheekham (PW-9) has also corroborated the above evidence. He has stated that he went to the scene of occurrence. Accused Neelkanth also came there and said that Ravinarayan first assaulted him, that is why he committed the murder of Ravinarayan. As per the evidence of Jairam (PW-1) and Mayaram (PW-2) the accused assaulted the deceased with the wooden portion of the plough. Jairam (PW-1) has stated that he intervened and caught hold of the accused and asked the accused not to beat the deceased. Immediately thereafter Mayaram (PW-2) also came there. In view of the testimony of these two witnesses, it stands proved that the accused / appellant assaulted the deceased.

Apart from this, the accused / appellant made extra judicial confession before Banshiram (PW-4), Kunjram (PW-5) and Bheekham (PW-9). These witnesses have stated in their evidence that the accused / appellant confessed before them that he had committed the murder of the deceased because the deceased first assaulted him. In view of the evidence of the eye witnesses and the extra judicial confession made by the accused / appellant, it stands proved that the accused by assaulting the deceased with a wooden portion of the plough committed his murder.

Learned counsel appearing for the accused / appellant argued that in view of the evidence available on record it is difficult to say that the accused / appellant assaulted the deceased with the intention to cause his death. He further argued that it has come in the evidence of the prosecution that the deceased first assaulted the accused; thereafter the accused assaulted the deceased. As per the medical report one lacerated wound was found on the forehead of the accused which has been proved by Dr. Rajeev Shrivastava (PW-8). The accused/appellant had also gone to the Police Station to lodge the report.

After perusing the evidence available on record, we are of the opinion that there is some force in the argument of the learned counsel appearing for the accused / appellant. It is true that regarding the right of private defense Jairam (PW-1), Mayaram (PW-2) and the Investigating Officer have not been cross examined in this case.

Hon''ble the Apex Court in Nizamuddin Vs. State of Madhya Pradesh, , has held thus:

It is well settled that the accused need not prove his defense. It is enough if he can show by preponderance of the probability that the plea taken by him is plausible and raises a reasonable doubt. Then he is entitled to the benefit. Having examined the material on record and the nature of the injuries found on the accused and the injuries on the deceased as held above, the accused has exceeded the right of private defense.

The Hon''ble Apex Court in Yogendra Morarji Vs. State of Gujarat, has held thus:

The mere fact that the accused did not assess the necessity of firing each successive shot does not negative good faith on his part in the exercise of his right because a person placed in peril is not expected to weigh "in golden scales" what amount of force is necessary to keep within the right. Thus, this is a case in which the accused has exceeded this limit of the right of private defense available to him u/s 101, Penal Code.

Now, in the light of the above-referred principles laid down by Hon''ble Apex Court, we will consider the evidence of the prosecution. It has come on record that there was some dispute between the accused and the deceased on account of the fact that the manure of the accused was lying in the field of Bharti Maharaj which the deceased had taken from Bharti Maharaj for ploughing and by ploughing the field he scattered the manure of the accused and on account of that there was some dispute between the accused and the deceased. Mayaram (PW-2) in his examination-in-chief has stated that when he and the villagers called the accused, he came and said that since the deceased assaulted him that is why he committed the murder of the deceased. Similarly Banshiram (PW-4) before whom the accused made extra judicial confession has stated in his examination-in-chief that accused Neelkanth came and said that because the deceased assaulted him that is why he had committed the murder of the deceased. Similar is the evidence of Kunjram (PW-5).

It is not in dispute that one lacerated wound was found on the forehead of the accused and blood was oozing out of it. Dr. Rajeev Shrivastava (PW-8) has proved this injury sustained by the accused and no explanation has been offered by the prosecution regarding the injury sustained by the accused. It has also come in evidence that two bamboo clubs were lying at the scene of the occurrence, Jairam (PW-1) has stated that the accused was assaulting the deceased with the wooden portion of the plough. By that time Mayaram (PW-2) reached the spot the deceased was already lying on the ground. In the light of this evidence of the prosecution on record the defense of the accused that in the first instance the deceased assaulted him on his forehead and thereafter he assaulted the deceased has to be considered.

There is no direct evidence. Nobody has seen the deceased assaulting the accused in the first instance but there was an injury found on the forehead of the accused and the blood was oozing out of it and two bamboo clubs were lying on the scene after the incident. Therefore, we are of the opinion, having regard to the facts and circumstances of the case, that it can be inferred that the accused had the right of private defense u/s 101 of the Indian Penal Code. Thus, the prosecution has not been able to prove the offence u/s 302 of the Indian Penal Code against the accused. However, it has proved that the accused caused such injury on the head of the deceased which was not necessary in the facts and circumstances of the case on account of which the deceased died instantaneously. Thus he had exceeded his right of private defense. Therefore, we are of the opinion that the offence committed by the accused falls u/s 304 Part -1 of the Indian Penal Code and not u/s 302 of the Penal Code

In the result, the appeal of the accused / appellant is partly allowed. We set aside the conviction and sentence of the accused / appellant u/s 302 of the Indian Penal Code. Instead we convict him for the offence u/s 304, Part-I, I.P.C. and sentence him to undergo rigorous imprisonment for ten years. If the accused has undergone the said period of imprisonment and if he is in jail, he be set at liberty forth with if not required in any other case.