JAILAL PATEL Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Facts of the case in short are that on 16.06.2001 at about 7 AM when the complainant party comprising Rooplal (PW-4), Shambhulal (PW-6) and Padman (PW-12) along with others were tilling their land, the accused persons came there and saying the said land to be their own asked complainant party not to cultivate that land and get away from there. The accused persons are also alleged to have abused the complainant party. It is alleged that when the complainant party did not pay any heed to the words of the accused persons, they all started assaulting them with the help of bamboo sticks. On account of the head injury, Bhoglal became unconscious and fell down. He was taken to police station by PW-4, PW-6, PW-12 and others where the report was lodged by Rooplal (PW-4). Bhoglal was thereafter sent to District Hospital, Raigarh from where looking to the seriousness of the injuries suffered by him he was referred to District Hospital, Raipur but on the way thereto he succumbed to the injuries suffered by him at 10 AM. Next day i.e. on 17.06.2001 Merg intimation (Ex.P-24) was recorded by Police Inspector (PW-13). FIR (Ex.P-12) was then reduced to writing at the instance of Rooplal (PW-4) on the basis of which offences under Sections 147, 148, 149, 294, 323 and 506-B IPC were registered and after the deceased breathed his last, Section 302 IPC was also added. During Merg enquiry, inquest on the dead body was done, body was sent to Primary Health Center, Tamnar for postmortem examination which was conducted by Dr. Budhiyar Singh (PW-5) who gave his report under Ex.P-15. Thereafter, memorandum of accused Jailal, Ratan, Khem Sagar and Anandram were recorded vide Ex.P-5, Ex.P-6, Ex.P-7 and Ex.P-8 respectively on the basis which seizure of bamboo stick was made from Jaillal, Kanaksai, Khem Sagar and Anandram under Ex.P-1 to Ex.P-4. After completion of investigation challan was filed by the police against as many as 5 accused persons under Sections 147, 148, 149, 323, 506-B and 302 IPC followed by framing of charge under Sections 148, 149, 302/149 and 323/149 IPC.

(2.) Learned Court below vide judgment impugned dated 09.01.2003 passed in Sessions Trial No.155/2001 acquitted the accused namely Kanak Sagar, Khemsai and Anandram of all the charges levelled against them but at the same time held the accused/appellants herein guilty under Sections 304-II and 323 IPC with imposition of sentence of RI for 5 years and RI for 6 months respectively under each section. Hence this appeal.

(3.) Counsel for the accused/appellants submit that since the co-accused, three in number, involved in the same incident have been acquitted, the accused/appellants herein whose case is also based on the same testimony are entitled to receive the same benefit. They submit that the Court below has fallen in error in ignoring the defence version to the effect that the disputed land was in possession of the accused/appellants and it is the complainant party which tried to take over the possession and cultivate the said piece of land leading to eruption of the quarrelsome activities. They further submit that even the evidence of PW-6 has not been considered in its proper perspective where he categorically stated that accused persons had first cultivated the land in question. They further submit that the prosecution has also not established as to which of the accused persons had caused injuries to the Bhoglal which ultimately became fatal to his life. According to the counsel for the appellant, since the act of the accused/appellants was in exercise of right of private defence of their property, their conviction under any of the aforesaid sections is not sustainable in the eye of law.