GOURI SINGH Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal is directed against the impugned judgment of conviction and order of sentence dtd. 30/9/2009 passed by the Second Additional Sessions Judge (FTC), Surajpur, District Surguja, in Sessions Trial No. 74/2009, wherein and whereunder the appellant has been held guilty for commission of offence under Ss. 302 IPC and sentenced to undergo for life imprisonment and to pay fine of Rs.1000.00 with default stipulation.

(2.) The prosecution case, as unfolded from the record of the case and the impugned judgment is that on 13/9/2008, at about 12.00 PM in the afternoon, the appellant is alleged to have assaulted and killed Jagmohan (the deceased). FIR (Ex.P-8) was lodged at around 17.30 hours on the same day by Dularsai (PW-4). In the FIR, it was stated that while informant was sitting at home, he was informed that Jagmohan was assaulted by appellant Gouri. When he reached the spot, he found that Jagmohan was laying injured, there was injury of axe on his neck and blood was oozing out. The father of the deceased states that he does not know why the appellant murdered his son. After recording of FIR, the police proceeded to the place of occurrence and inquest over the dead body, in presence of witnesses, was prepared vide (Ex.P-2). Dead body of the deceased was sent for postmortem to CHC Ramanujnagar. Dr. D.K. Vishwakarma (PW-22), conducted postmortem over the dead body and prepared postmortem report in (Ex.P-17). In the opinion of the doctor, cause of death was coma due to head injury. The axe allegedly used in commission of offence was also seized and a query report in (Ex.P-15) was given that the injury could be caused by the said axe. Articles seized during the course of investigation were also sent for FSL and a report (Ex.P-19) was received from the FSL proving blood spot on the axe allegedly seized from the possession of the appellant. Upon completion of investigation, the police filed charge sheet. The appellant was subjected to trial on the allegation that he murdered Jagmohan. In order to prove its case, prosecution examined as many as 22 witnesses. Thereafter the appellant was examined under Sec. 313 Cr.P.C. in respect of incriminating circumstance and evidence led by the prosecution against him. No defence witnesses were examined. The trial Court relying upon the evidence stated by the prosecution, found the appellant guilty for commission of offence of murder.

(3.) Learned counsel for the appellant would argue that the judgment of conviction and order of sentence suffers from gross illegality and perversity inasmuch as, the learned trial Court has ignored the prosecution evidence that deceased Jagmoha himself was the aggressor, he had come to the house of the appellant and he was holding an axe in his hand and beating the door, thereafter, he caught hold of the wife of the appellant and when attempt was made to rescue her, there was some scuffle and Jagmohan fell down and sustained injuries by the axe which he was holding in his hand. It is argued that this specific evidence of Kiran (PW-14) and Sanmat (PW-15) has been disbelieved by the trial Court only because they happen to be the wife and the daughter of the appellant. Learned counsel for the appellant would submit that the story of Jagmohan (the deceased) coming to the house of the appellant is also supported from the evidence of other prosecution witnesses who have seen Jagmohan in front of the house of the appellant, meaning thereby that Jagmohan had actually come to the house of the appellant and therefore, the evidence of the prosecution itself gives rise to a very possible and plausible defence that the deceased was the aggressor, he had come with a weapon and during scuffle, he fell down and sustained injuries though there was no assault given by the appellant on him. The alternate submission of learned counsel for the appellant is that even if, it is held that the appellant had assaulted the deceased, in the circumstance of the case, it is a case of exercise of right of private defence and therefore, not an offence in view of provision contained in sec. 96 of the IPC. Learned counsel for the appellant would further argue that the prosecution evidence, overwhelming in nature, is that the deceased had come to the house of the appellant and kicked the appellant and thereafter, he went back and came back along with an axe which, if used as a weapon, is deadly. He was beating the door and he caught hold of the wife of the appellant and starting dragging her and he had warned the appellant to come out otherwise he would be killed. It is argued that in these circumstances which are proved from the evidence of the prosecution witnesses do make out case and create reasonable apprehension in the mind of the appellant that if the deceased is not counter attacked, he may kill the appellant or his wife or may even cause grievous hurt to any of them and may be that he could rape the wife of the appellant. There was no time left to seek any help from anyone and at the spot itself, the appellant had to do something. If in such an incident, some injury was caused to the deceased, all that was done was only in exercise of right of private defence.