{"id":71193,"date":"2009-11-25T00:00:00","date_gmt":"2009-11-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vikram-nair-vs-state-of-madhya-pradesh-now-on-25-november-2009"},"modified":"2018-11-29T10:29:55","modified_gmt":"2018-11-29T04:59:55","slug":"vikram-nair-vs-state-of-madhya-pradesh-now-on-25-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vikram-nair-vs-state-of-madhya-pradesh-now-on-25-november-2009","title":{"rendered":"Vikram Nair vs State Of Madhya Pradesh Now … on 25 November, 2009"},"content":{"rendered":"
Chattisgarh High Court<\/div>\n
Vikram Nair vs State Of Madhya Pradesh Now … on 25 November, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n            HIGH COURT OF CHATTISGARH AT BILASPUR       \n\n\n\n               Criminal Appeal No 547 of 1989\n\n\n\n\n                      Vikram  Nair\n                                 ...Petitioners\n\n\n                           Versus\n\n\n\n            State  of  Madhya  Pradesh now Chhattisgarh\n                                              ...Respondents\n\n\n\n\n\n\n(CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL              \n                      PROCEDURE, 1973)\n\n!     Mr.Surendra Singh, Senior counsel with Mr.Neeraj Mehta &\n      Mr.M.K.Beag, counsel for the appellant\n\n\n^      Mr.Ashish  Shukla, Government Advocate  with  Mr.Sandeep\n       Yadav,    Deputy    Government    Advocate    for    the\n       State\/respondent\n\n\n\nHONBLE MR.T.P.SHARMA,HONBLE MR.R.L.JHANWAR, JJ             \n\n\n\n       Dated: 25\/11\/2009\n\n\n:       Judgment\n\n                          JUDGMENT\n<\/pre>\n
               (Passed on 25th November, 2009)<\/p>\n
 The judgment of the Court was delivered by T.P.Sharma, J.:-\n<\/p>\n
1.    By  this  appeal,  the  appellant  has  challenged  the
\n  legality  and  propriety of the judgment of conviction  and
\n  order  of sentence dated 31.3.1989 passed by the Additional
\n  Sessions  Judge, Baikunthpur, District Surguja, in Sessions
\n  Case  No.40\/88  whereby  &  whereunder  learned  Additional
\n  Sessions Judge after holding the appellant guilty  for  the
\n  commission of offence of murder punishable under Section 302
\n  of   the   Indian  Penal  Code  sentenced  him  to  undergo
\n  imprisonment for life.\n<\/p>\n
2.    Judgment & order are challenged on the ground that  the
\n  Court below has not considered the right of private defence
\n  of  the  person  and  evidence adduced  on  behalf  of  the
\n  prosecution and thereby committed illegality.\n<\/p>\n
3.    Case  of  the prosecution in brief is that the  present
\n  appellant  is  distant relative of the  deceased  V.S.Vijay
\n  Kumar.  The  present appellant went to the  shop  of  Tapan
\n  Chakravarti (PW-5) on 14.9.1987 at about 4 p.m. situated at
\n  Ghutari, Tahsil Baikunthpur. The deceased also went to  the
\n  shop of Tapan Chakravarti. Both were started quarreling and
\n  assaulting to each other by hands. Tapan Chakravarti (PW-5)
\n  hoisted both the persons and went to other place. After half
\n  an hour when he came back, he came to know that the present
\n  appellant has assaulted the deceased by scissors of his shop
\n  and as a result of such injury, the deceased V.S.Vijay Kumar
\n  died.  He was shifted to the hospital by Ashok Singh (PW-2)
\n  and Badru Jama Khan. He was admitted in hospital vide Indoor
\n  Patient Case Record Ex.P\/9. Dr.Vijay Shankar Sharma (PW-13)
\n  has examined the deceased and found following injuries over
\n  the body of the injured V.S.Vijay Kumar:\n<\/p>\n
       i)   One punctured wound below left nipple of + ” x ,” x +”\n<\/p>\n
ii)  One punctured wound over 7th rib of right side of +” x ,
\nx 1 +”\n<\/p>\n
iii) One punctured wound over middle of the chest of +” x ,”\n<\/p>\n
x     1 +”\n<\/p>\n
iv)  Punctured wound near 3rd injury of +” x +” x +”\n<\/p>\n
v)   One Punctured wound  over right auxilla of 2″ x +” x +”\n<\/p>\n
vi)  Punctured wound over left side of the neck above
\nclavicle bone of 1 +” x +” x +”\n<\/p>\n
vii) Multiple abrasion over left side forehead\n<\/p>\n
viii)     Punctured wound over right parietal bone of ,” x ,”\n<\/p>\n
     Condition of the deceased was serious. During the course
\n  of  treatment he succumbed to the injures sustained by  him
\n  within  15 minutes. The doctor intimated the death  of  the
\n  deceased  vide Ex.P\/14. F.I.R. was registered on the  basis
\n  of  Ex.P\/14  vide Ex.P\/1 at about 4.10 p.m.  on  14.9.1987.
\n  The  appellant  went to the police station Baikunthpur  and
\n  lodged  Rojnamacha Sanha vide Ex.P\/8. Police  officer  left
\n  for  the  hospital and after summoning the  witnesses  vide
\n  Ex.P\/4  inquest,  over the body of the  deceased  V.S.Vijay
\n  Kumar  was  prepared vide Ex.P\/5. Dead body  was  sent  for
\n  autopsy   to   Primary  Health  Centre,  Baikunthpur   vide
\n  Ex.P\/10A. Autopsy was conducted by Dr.Vijay Shankar  Sharma
\n  (PW-13)  vide  Ex.P\/10 and noticed the  aforesaid  injures.
\n  The  doctor  has opined that the cause of death was  shock.
\n  Injuries  were ante-mortem and caused by pointed and  sharp
\n  aged  scissors  knife.  Spot map was  prepared  by  patwari
\n  vide  Ex.P\/2. The appellant was examined vide  Exs.P\/3  and
\n  P\/4  and  found  one lacerated wound over  right  occipital
\n  region  of  1  c.m. x 1 c.m. Spot map was prepared  by  the
\n  investigating officer vide Ex.P\/5. The appellant was  taken
\n  into  custody. He made disclosure statement of the scissors
\n  vide Ex.P\/6 and at the instance of disclosure statement  of
\n  the   appellant,  scissors  was  recovered   vide   Ex.P\/7.
\n  Scissors  was sent for chemical analysis to the doctor  and
\n  the  doctor was opined that injury found over the  body  of
\n  the  deceased  may be caused by the scissors vide  Ex.P\/11.
\n  Sealed   clothes  of  the  deceased  were  recovered   vide
\n  Ex.P\/12.  Seized  articles were sent for chemical  analyses
\n  vide  Ex.P\/18.  Presence of blood over  scissors  recovered
\n  from   the  accused  was  confirmed  vide  analysis  report
\n  Ex.P\/19.\n<\/p>\n
4.    Statements of the witnesses were recorded under Section
\n  161  of  the  Code of Criminal Procedure, 1973 (hereinafter
\n  referred  to  as  `the  Code’)  and  after  completion   of
\n  investigation,  charge  sheet was filed  in  the  Court  of
\n  Judicial  Magistrate First Class, Baikunthpur who  in  turn
\n  committed  the  case  to the Court of the  Sessions  Judge,
\n  Surguja  from  where  Second  Additional  Sessions   Judge,
\n  Baikunthpur received the same on transfer for trial.\n<\/p>\n
5.    In  order to prove the guilt of the appellants\/accused,
\n  the prosecution examined as many as 15 witnesses.  Statement
\n  of the accused\/appellant was also recorded under Section 313
\n  of  the  Code  where he denied the circumstances  appearing
\n  against him and claimed innocence and false implication. He
\n  has  examined  the  circumstances that he  along  with  his
\n  deceased brother V.S.Vijay Kumar went to teashop of witness
\n  Ramnaresh for taking tea. While they were waiting for tea at
\n  the shop of Tapan Chakravarti (PW-5), the deceased went from
\n  the  shop  and after sometime he came back and used  filthy
\n  language to him and assaulted by pelting stone over the head
\n  and  other parts of the body. The appellant fell down,  the
\n  deceased  sit over his chest and tried to cause  injury  by
\n  pointed  part  of  umbrella.  He  cried  for  help.   Tapan
\n  Chakravarti  (PW-5)  intercepted, then the  appellant  went
\n  towards cooperative stores and lodged the report.\n<\/p>\n
6.    After  affording  an  opportunity  of  hearing  to  the
\n  parties, learned Additional Sessions Judge, Baikunthpur has
\n  convicted and sentenced the appellant as aforementioned.\n<\/p>\n
7.     We  have heard Mr.Surendra Singh, Senior counsel  with
\n  Mr.Neeraj Mehta & Mr.M.K.Beag, counsel for the appellant  &
\n  Mr.Ashish Shukla, Government Advocate with Mr.Sandeep Yadav,
\n  Deputy  Government  Advocate for the  State\/respondent  and
\n  perused the judgment impugned and record of the Court below.\n<\/p>\n
8.   Learned counsel for the appellant vehemently argued that
\n  the  present  appellant was sitting in the  shop  of  Tapan
\n  Chakravarti  where  the  deceased came  and  after  abusing
\n  assaulted him. Tapan Chakravarti intercepted the quarrel then
\n  the  deceased  tried to assault the appellant by  umbrella.
\n  Tapan Chakravarti (PW-5) caught hold the deceased and advised
\n  the appellant to flee away from the spot, but after pushing
\n  Tapan  Chakravarti, the deceased chased the  appellant  for
\n  causing grievous injury\/murder. Rest part of the incident has
\n  not  been  seen by any of the witnesses. The  deceased  has
\n  pelted  stone  over  the head of the appellant  and  caused
\n  lacerated wound of 2 c.m. x 1 c.m. over his occipital region.
\n  He  himself  has  lodged the report to the police.  He  was
\n  examined by the doctor vide Ex.P\/3. Learned counsel further
\n  argued that the appellant has not caused any homicidal death
\n  to the deceased. He has not caused injury to the deceased in
\n  exercise of the right of private defence of the person  and
\n  even  if  he exceeded the right of private defence  of  the
\n  person, then the same is not punishable under Section 302 of
\n  the Indian Penal Code. Learned counsel also argued that  at
\n  the worst his act may fall Exception 4 of Section 300 of the
\n  Indian Penal Code. Exception 4 would apply if death is caused
\n  without  premeditation in a sudden fight  in  the  heat  of
\n  passion upon a sudden quarrel and without the offender having
\n  taken undue advantage or acted in a cruel or unusual manner
\n  and offence does not travel beyond Section 304 Part I of the
\n  Indian Penal Code.\n<\/p>\n
9.   Learned counsel placed reliance in the matter of Madan &
\n  Ors. v. State of Madhya Pradesh1 in which the Apex Court has
\n  held  that  the  right commences, as soon as  a  reasonable
\n  apprehension of danger to the body arises from an attempt, or
\n  threat or commit the offence, although the offence may  not
\n  have  been  committed  but not until  that  there  is  that
\n  reasonable  apprehension. The right lasts so  long  as  the
\n  reasonable apprehension of the danger to the body continues.
\n  Learned  counsel further placed reliance in the  matter  of
\n  Rakesh  v. State of M.P.2<\/a> in which the Apex Court has  held
\n  that  in  case of sudden fight without premeditation  in  a
\n  sudden  fight  in the heat of passion without taking  undue
\n  advantage or acted in cruel or unusual manner, the  offence
\n  falls  under Exception 4 of Section 300 of the Indian Penal
\n  Code  and punishable under Section 304 Part I of the Indian
\n  Penal  Code.  Learned counsel also placed reliance  in  the
\n  matter  of Bihari Rai v. State of Bihar3 in which the  Apex
\n  Court has held that the number of injuries is not always  a
\n  safe  criterion for determining who the aggressor  was  and
\n  while taking right of private defence extending to voluntary
\n  causing  of  death, the accused must show that  there  were
\n  circumstances  giving  rise  to  reasonable   grounds   for
\n  apprehending  that either death or grievous hurt  would  be
\n  caused to him. The burden is on the accused to show that he
\n  had a right of private defence which extended to causing of
\n  death. Learned counsel further placed reliance in the matter
\n  of  Santokh Singh v. State of Punjab4 in which the Apex Court
\nhas  held  that in the absence of any evidence to  show  that
\n  there  was apprehension about the safety of the person,  it
\n  cannot be said that the accused has exercised the right  of
\n  private defence of causing death, conviction would be under
\n  Section 304 Part I of the Indian Penal Code.\n<\/p>\n
10.   On the other hand, learned State counsel supported  the
\n  judgment impugned and argued that in the present case, both
\n  the persons were quarreled with each other in front of shop
\n  of Tapan Chakravarti (PW-5). The deceased was having umbrella
\n  and  apprehension of causing grievous hurt or death to  the
\n  appellant was reasonable at that circumstances, but when the
\n  deceased went away from the shop of Tapan Chakravarty armless
\n  (weaponless), then there was no occasion to cause as well as
\n  8 punctured wound over the different parts of the body mainly
\n  over  the  chest by scissors taking from the shop of  Tapan
\n  Chakravarty. These facts clearly show that after leaving the
\n  shop  of  Tapan Chakravarty by the deceased, there  was  no
\n  occasion  to  exercise of right of private defence  because
\n  there  was  no  reasonable apprehension of  danger  to  the
\n  appellant and in the absence of such apprehension, 8 injuries
\n  caused by the appellant after taking scissors from shop  of
\n  Tapan  Chakravarty shows the intension of the appellant  of
\n  causing death of the deceased. Learned counsel further argued
\n  that the Court below has rightly convicted and sentenced the
\n  appellant as aforementioned. Learned counsel also argued that
\n  the accused himself has lodged the report which is sufficient
\n  to establish his presence at the time of incident and motive
\n  of the crime.\n<\/p>\n
11.   Learned  counsel  placed  reliance  in  the  matter  of
\n  Thakarda Lalaji Gamaji v. The State of Gujrat5 in which the
\n  Apex Court has held that F.I.R. lodged by accused can be used
\n  by prosecution to show motive and presence of accused at the
\n  scene  of  occurrence.  F.I.R. lodged  by  accused  showing
\n  deceased  to  be unarmed. No act of deceased  suggested  or
\n  proved to justify self-defence, the accused held to be  the
\n  aggressor. Learned counsel further placed reliance  in  the
\n  matter of Bheru Singh s\/o Kalyan Singh v. State of Rajasthan6
\n  in  which  the  Apex Court has held that F.I.R.  lodged  by
\n  accused  can  be  used against the accused as  evidence  of
\n  conduct under Section 8 of the Evidence Act and relating to
\n  disclosure  of  facts admissible under Section  27  of  the
\n  Evidence Act.\n<\/p>\n
12.   In  order to appreciate the contentions of the parties,
\n  we  have carefully examined ocular and documentary evidence
\n  adduced on behalf of the prosecution. In the present  case,
\n  unnatural death of the deceased as a result of injury is not
\n  substantially  disputed  by the appellant,  otherwise  also
\n  proved  by  the  statements of Ashok  Kumar  Singh  (PW-2),
\n  Chaganmal (PW-3), Ramnaresh (PW-4), Tapan Chakravarti (PW-5),
\n  Ramji  (PW-6),  Bharat (PW-7), Bhaiyalal  (PW-8),  Dr.Vijay
\n  Shankar Sharma (PW-13), Rajnamcha Sanha lodged by the accused
\n  himself (Ex.P\/8), admission ticket of the deceased (Ex.P\/9),
\n  autopsy report (Ex.P\/10), intimation of death (Ex.P\/14) and
\n  F.I.R. (Ex.P\/1).\n<\/p>\n
13.  Dr.Vijay Shankar Sharma (PW-13) has specifically deposed
\n  in  his  evidence that on 14.9.87 at about 4 p.m.,  he  has
\n  examined the deceased V.S.Vijay Kumar and found the aforesaid
\n  injuries and same were sufficient for causing death. He has
\n  also examined scissors vide Ex.P\/11 and opined that injuries
\n  found over the body of the deceased were caused by scissors.
\n  8  punctured wound were found over the body of the deceased
\n  mainly over the chest. High bleeding was not regular. Blood
\n  pressure  was  not  countable and  within  15  minutes,  he
\n  succumbed to the injuries sustained by him. These facts are
\n  sufficient to prove that the deceased died as a  result  of
\n  injuries  and  injuries were sufficient for causing  death.
\n  Death was homicidal in nature.\n<\/p>\n
14.  As regards the complicity of the appellant in the crime
\nin question, the present appellant is not disputed the fact
\nthat he was quarreled with the deceased before the shop of
\nTapan Chakravarti. He has also taken the defence in his
\nstatement recorded under Section 313 of the Code that Tapan
\nChakravarti has deposed that while the appellant was sitting
\nin front of his shop the deceased came and after abusing him,
\nassaulted the appellant. The appellant fell down, the
\ndeceased assaulted him by umbrella. He intercepted and
\nsnatched umbrella and caught hold the deceased. He also
\nadvised the appellant to flee away from the spot. The
\nappellant fled away towards cooperative stores, then the
\ndeceased after pushing him ran away towards the
\naccused\/appellant. He went to purchase some articles to the
\nshop of Mulla. After sometime, Ramji and Bharatlal came to
\nhis shop and informed him that the deceased died in the
\nhospital. The prosecution declared him hostile on the point
\nof scissors taken by the appellant from his shop. Ramnaresh
\n(PW-4) has also corroborated the first part of the incident
\nand also deposed that the deceased has pelted stone over the
\nhead of the appellant and caused lacerated wound. Even the
\ndeceased tried to assault the appellant by umbrella. When the
\ndeceased fell down, the appellant assaulted but he has not
\nseen that by which object the appellant assaulted the
\ndeceased. Other witnesses have deposed that they saw the
\ndeceased lying near the road in the injured condition. They
\ntook him in the hospital. Ramnaresh (PW-4) and Tapan
\nChakravarti (PW-5) are the witnesses of the first part of the
\nincident. According to their statements, the deceased was
\naggressor and has caused injury to the appellant, but the
\ndeceased has caused lacerated wound over the head of the
\nappellant by pelting stone and even he was caught hold by
\nTapan Chakravarti. The accused ran away from the spot, then
\nthe deceased chased him towards cooperative stores where the
\ndeceased was finally found badly injured. Ramnaresh (PW-4)
\nhas admitted in para-3 of his cross-examination that the
\ndeceased was trying to insert pointed part of umbrella in
\nabdomen of the appellant. Tapan Chakravarti (PW-5) has also
\nadmitted in para-14 of his cross-examination that the
\ndeceased was stronger than the appellant. He has admitted in
\nparas-17 and 18 that the deceased has attempted to homicidal
\nattack upon the appellant, at that time he has not
\nintercepted and caught hold umbrella of the deceased, then
\nthe deceased would have been inserted pointed part of
\numbrella in abdomen of the appellant. The prosecution has
\ndeclared him hostile relating to taking of scissors by the
\nappellant and tried to explain in paras-4 and 19 that when
\nthe deceased came to his shop, then he kept some articles
\nover his table may be metallic object and when the deceased
\nwent from his shop, then he saw that article was not present
\nin the table of his shop. It appears that he is trying to
\nshow that the deceased came with some metallic object but the
\nsame was not found in his shop when the deceased went from
\nhis shop. It shows that the deceased has taken metallic
\nobject with him or the accused has taken metallic object with
\nhim at the time of second part of the incident. The accused
\nhimself has lodged Rojnamcha Sanha vide Ex.P\/8 in which it
\nhas been mentioned that the deceased pelting stone over his
\nhead and caused injury. He was holding scissors by which he
\nhas caused injury to the deceased. Confessional part i.e. the
\nappellant has caused injury to the deceased is not admissible
\nin evidence in terms of Section 27 of the Evidence Act, but
\nthe fact that the appellant was present along with the
\ndeceased and the appellant was having scissors is admissible
\nin evidence.\n<\/p>\n
15.   As  held by the Apex Court in the matter of Bheru Singh
\n  (supra), the part of F.I.R. lodged by the accused can be used
\n  by prosecution to show motive and presence of the accused at
\n  the scene of occurrence and show conduct of the accused. Para-
\n  17 and 19 of the said judgment reads as under:-\n<\/p>\n
          “17.  Where the first information report is  given
\n          by  an  accused  himself to a police  officer  and
\n          amounts to a confessional statement, proof of  the
\n          confession  is  prohibited by Section  25  of  the
\n          Evidence   Act.   No  part  of  the   confessional
\n          statement  can be proved or received in  evidence,
\n          except to the extent it is permitted by Section 27
\n          of  the Evidence Act. The first information report
\n          recorded   under  Section  154  CrPC  is   not   a
\n          substantive piece of evidence. It may be  used  to
\n          corroborate the informant under Section 157 of the
\n          Evidence  Act  or to contradict him under  Section
\n          145  of  the  Evidence Act in case  the  informant
\n          appears  as  a  witness at the  trial.  Where  the
\n          accused   himself  lodges  the  first  information
\n          report, the fact of his giving the information  to
\n          the  police is admissible against him as  evidence
\n          of his conduct under Section 8 of the Evidence Act
\n          and  to  the  extent  it  is  non-confessional  in
\n          nature, it would also be relevant under Section 21
\n          of  the Evidence Act but the confessional part  of
\n          the first information report by the accused to the
\n          police  officer cannot be used at all against  him
\n          in  view  of the ban of Section 25 of the Evidence
\n          Act.\n<\/p><\/blockquote>\n
          19.   From   a  careful  perusal  of  this   first
\n          information  report we find that it discloses  the
\n          motive for the murder and the manner in which  the
\n          appellant committed the six murders. The appellant
\n          produced   the  bloodstained  sword   with   which
\n          according to him he committed the murders. In  our
\n          opinion  the  first information report  Ex.  P-42,
\n          however  it  not a wholly confessional  statement,
\n          but only that part of it is admissible in evidence
\n          which  does not amount to a confession and is  not
\n          hit  by  the  provisions  of  Section  25  of  the
\n          Evidence  Act.  The relationship of the  appellant
\n          with  the  deceased; the motive for commission  of
\n          the crime and the presence of his sister-in-law PW
\n          11  do  not amount to the confession of committing
\n          any  crime.  Those statements are non-confessional
\n          and  can be used against the appellant as evidence
\n          under   Section  8  of  the  Evidence   Act.   The
\n          production  and  seizure  of  the  sword  by   the
\n          appellant   at  the  police  station   which   was
\n          bloodstained,  is also saved by the provisions  of
\n          the  Evidence Act. However, the statement that the
\n          sword had been used to commit the murders as  well
\n          as  the  manner of committing the crime is clearly
\n          inadmissible  in evidence. Thus,  to  the  limited
\n          extent  as we have noticed above and save to  that
\n          extent  only  the  other  portion  of  the   first
\n          information  report Ex.P-42 must be excluded  from
\n          evidence  as the rest of the statement amounts  to
\n          confession  of  committing the crime  and  is  not
\n          admissible in evidence.”\n<\/p><\/blockquote>\n
16.   According to the case of the prosecution, the  incident
\n  took place in different parts. The first part of the incident
\n  took place in place of shop of Tapan Chakravarti where  the
\n  deceased was aggressor and even he has tried to cause grave
\n  injury to the appellant and assault made by the appellant to
\n  the deceased in front of the shop of Tapan Chakravarti. He is
\n  justified  and  he was entitled to use the  said  force  in
\n  exercise of right of his private defence available  to  him
\n  under Sections 99 and 100 of the Indian Penal Code.\n<\/p>\n
17.  As regards the second part of the incident is concerned,
\n  the evidence of Tapan Chakraverty reveals that firstly, the
\n  appellant fled away in front of his shop towards cooperative
\n  stores,  then  the deceased chased him and  afterwards  the
\n  deceased was found in injured condition. Ex.P\/8 report lodged
\n  by  the appellant himself shows that the deceased assaulted
\n  him  near  the shop of Tapan Chakraverty and  he  was  also
\n  holding scissors. Baldau Singh (PW-11) and Bhaiyalal (PW-8)
\n  have  not  supported disclosure statement and  recovery  of
\n  scissors.  R.N.Yadav (PW-15) Station Officer has  supported
\n  disclosure statement of scissors and recovery of scissors at
\n  the instance of the appellant. Same is corroborated by report
\n  lodged by the accused (Ex.P\/8). In the light of Ex.P\/8 report
\n  of the accused, statement of R.N.Yadav can be safely relied
\n  upon that scissors has been recovered at the instance of the
\n  appellant.\n<\/p>\n
18.   According  to  the statements of Ramnaresh  (PW-4)  and
\n  Tapan Chakravarty (PW-5), the accused and the deceased went
\n  towards cooperative stores and within short time the deceased
\n  was found in injured condition and the appellant has lodged
\n  the  report to the police station Baikunthpur at 5.10  p.m.
\n  vide  Ex.P\/8.  Other witnesses have seen  the  deceased  in
\n  injured condition beside the road and they took him in  the
\n  hospital at about 4 p.m. which has been mentioned in Ex.P\/9
\n  that  second  part  of the incident\/injury  caused  to  the
\n  deceased  is closely connected with the first part  of  the
\n  incident and even there was no time gap between first part of
\n  the incident. At the time of second part of the incident only
\n  two persons i.e. the appellant and the deceased were present
\n  near cooperative stores. The appellant has sustained injury
\n  in the first part of the incident, but the deceased sustained
\n  as  well as 8 punctured wound over vital parts of the  body
\n  mainly  upon  the chest at the time of second part  of  the
\n  incident. According to Dr.Vijay Shankar Sharma (PW-13), the
\n  injuries  can  be  caused by scissors  recovered  from  the
\n  appellant in open condition which shows that by one  stroke
\n  two  injuries have been caused and as a result of  4  to  5
\n  attacks,  the  aforesaid injuries have been caused  to  the
\n  deceased.  Scissors  was  sent for  chemical  analysis  and
\n  presence of blood over scissors was affirmed vide Ex.P\/19.\n<\/p>\n
19.   The  appellant has taken the defence that he has caused
\n  injuries in exercise of right of private defence available to
\n  him even sufficient for causing death of the deceased. Under
\n  these  circumstances  he was having apprehension  that  the
\n  deceased has caused grievous injures to him.\n<\/p>\n
20.   As  held  by  the  Apex Court in the  matter  of  Madan
\n  (supra),  the  right  commences, as soon  as  a  reasonable
\n  apprehension of danger to the body arises from an attempt, or
\n  threat,  or commit the offence. Para 7 of the said judgment
\n  reads as under:-\n<\/p>\n
          “7.   Sections   102  and  105,  IPC   deal   with
\n          commencement  and  continuance  of  the  right  of
\n          private defence of body and property respectively.
\n          The  right  commences  as  soon  as  a  reasonable
\n          apprehension of danger to the body arises from  an
\n          attempt,   or  threat,  or  commit  the   offence,
\n          although  the offence may not have been  committed
\n          but  not  until  that  there  is  that  reasonable
\n          apprehension.  The  right lasts  so  long  as  the
\n          reasonable apprehension of the danger to the  body
\n          continues. In Jai Dev v. State of Punjab (AIR<\/a> 1963
\n          SC 612), it was observed that as soon as the cause
\n          for  reasonable  apprehension disappears  and  the
\n          threat  has either been destroyed or has been  put
\n          to route, there can be no occasion to exercise the
\n          right of private defence.”\n<\/p><\/blockquote>\n
21.   In the present case, admittedly the appellant sustained
\n  injury by pelting stone by the deceased at the time of first
\n  part  of the incident. The deceased has also tried to cause
\n  grievous  injury by using of umbrella at the time of  first
\n  part  of the incident when both the persons went\/fled  away
\n  towards cooperative stores, at that time the deceased was not
\n  having  umbrella. It appears from the evidence of Ramnaresh
\n  (PW-4)  that both the persons were pelting stone upon  each
\n  other, but except one injury over the head of the appellant,
\n  no  other injuries were found to show that the deceased has
\n  caused more injuries to the appellant. At the time of second
\n  part  of  the incident, the appellant was having  scissors.
\n  Injuries found over the body of the deceased would have been
\n  caused  from  scissors recovered at  the  instance  of  the
\n  appellant. No any weapon\/object was found near the place of
\n  incident or any of the injury to show that injured\/deceased
\n  was having any object or weapon at the time of second part of
\n  the incident. In the absence of any injury to the appellant
\n  at  the time of second part of the incident or presence  of
\n  weapon  in hands of the deceased, there was no occasion  to
\n  cause  as well as 8 fatal injuries over vital parts of  the
\n  deceased  by the appellant. Both parts of the incident  are
\n  connected  with each other sufficient for drawing inference
\n  that the appellant is the person who has caused the aforesaid
\n  injuries to the deceased by scissors. At the time of second
\n  part  of  the  incident, right of private defence  was  not
\n  available to the appellant in the absence of apprehension of
\n  causing grievous injury or death especially when the deceased
\n  was  armless and the appellant was having scissors, but the
\n  continuance of quarrel shows that this is the case of sudden
\n  fight   and  the  appellant  has  caused  injuries  without
\n  premeditation in a sudden fight in the heat of passion upon a
\n  sudden  quarrel  and  without taking undue  advantage.  The
\n  appellant has lost his patience when he was without any fault
\n  beaten by the deceased and even the deceased tried to cause
\n  grievous  injury  by  umbrella at the  first  part  of  the
\n  incident, then after loosing his patience, the appellant has
\n  caused the aforesaid injury by using scissors for about 4 to
\n  5 times.\n<\/p>\n
22.   While  dealing with the case of sudden fight, the  Apex
\n  Court  in the matter of Rakash (supra) has held that sudden
\n  fight without premeditation after total deprivation of self-
\n  control, in case of Exception 4, there is only that heat of
\n  passion  which clouds men’s sober reason and urges them  to
\n  deeds which they would not otherwise do. Para 7 of the said
\n  judgment reads as under:-\n<\/p>\n
          “7.The  Fourth Exception of Section 300 IPC covers
\n          acts  done  in a sudden fight. The said  exception
\n          deals  with  a case of prosecution not covered  by
\n          the  first exception, after which its place  would
\n          have  been  more  appropriate.  The  exception  is
\n          founded upon the same principle, for in both there
\n          is  absence  of premeditation. But, while  in  the
\n          case of Exception 1 there is total deprivation  of
\n          self-control,  in case of Exception  4,  there  is
\n          only that heat of passion which clouds men’s sober
\n          reason  and  urges them to deeds which they  would
\n          not   otherwise   do.  There  is  provocation   in
\n          Exception 4 as in Exception 1; but the injury done
\n          is not the direct consequence of that provocation.
\n          In  fact  Exception 4 deals with  cases  in  which
\n          notwithstanding that a blow may have been  struck,
\n          or  some  provocation given in the origin  of  the
\n          dispute  or in whatever way the quarrel  may  have
\n          originated,  yet  the subsequent conduct  of  both
\n          parties  puts them in respect of guilt upon  equal
\n          footing.   A   “sudden   fight”   implies   mutual
\n          provocation  and blows on each side. The  homicide
\n          committed   is  then  clearly  not  traceable   to
\n          unilateral  provocation, nor in such  cases  could
\n          the  whole blame be placed on one side. For if  it
\n          were   so,   the   Exception  more   appropriately
\n          applicable  would  be Exception  1.  There  is  no
\n          previous deliberation or determination to fight. A
\n          fight suddenly takes place, for which both parties
\n          are  more or less to be blamed. It may be that one
\n          of  them  starts  it, but if  the  other  had  not
\n          aggravated it by his own conduct it would not have
\n          taken  the  serious  turn it did.  There  is  then
\n          mutual  provocation  and aggravation,  and  it  is
\n          difficult  to apportion the share of  blame  which
\n          attaches to each fighter. The help of Exception  4
\n          can  be  invoked  if death is caused  (a)  without
\n          premeditation, (b) in a sudden fight; (c)  without
\n          the  offender’s  having taken undue  advantage  or
\n          acted  in a cruel or unusual manner; and  (d)  the
\n          fight  must  have been with the person killed.  To
\n          bring   a   case  within  Exception  4   all   the
\n          ingredients mentioned in it must be found.  It  is
\n          to   be  noted  that  the  “fight”  occurring   in
\n          Exception  4 to Section 300 IPC is not defined  in
\n          the  IPC.  It takes two to make a fight.  Heat  of
\n          passion  requires that there must be no  time  for
\n          the  passions to cool down and in this  case,  the
\n          parties  have  worked themselves into  a  fury  on
\n          account   of   the  verbal  altercation   in   the
\n          beginning.  A  fight is a combat between  two  and
\n          more  persons whether with or without weapons.  It
\n          is  not possible to enunciate any general rule  as
\n          to what shall be deemed to be a sudden quarrel. It
\n          is  a  question of fact and whether a  quarrel  is
\n          sudden  or  not must necessarily depend  upon  the
\n          proved facts of each case. For the application  of
\n          Exception  4,  it is not sufficient to  show  that
\n          there  was a sudden quarrel and that there was  no
\n          premeditation. It must further be shown  that  the
\n          offender has not taken undue advantage or acted in
\n          cruel  or  unusual  manner. The expression  “undue
\n          advantage” as used in the provision means  “unfair
\n          advantage”.\n<\/p><\/blockquote>\n
23.   In  case of exceeding the right of private defence  and
\n  causing death of the deceased, the Apex Court in the matter
\n  of  Madan (supra) has held that the act of the accused does
\n  not travel beyond Section 304 Part I of the Indian Penal Code
\n  and custodial sentence of 10 years was just and proper. Para
\n  10 of the said judgment reads as under:-\n<\/p>\n
          “10. On a combined reading of the judgments of the
\n          trial  Court and the High Court it is  clear  that
\n          the  evidence  is to the effect that  the  accused
\n          appellants  were  upto some stage  exercising  the
\n          right to protect and defend their properties.  But
\n          thereafter  they  exceeded the  right.  Therefore,
\n          this  appears  to  be  a  case  where  instead  of
\n          convicting the appellants under Section 302 IPC it
\n          would  be  proper  to convict the  appellants  for
\n          offence punishable under Section 304 Part I,  IPC.
\n          Custodial sentence of 10 years would meet the ends
\n          of justice.”\n<\/p><\/blockquote>\n
24.   While dealing with the availability of right of private
\n  defence, the Apex Court in the matter of Bihari Rai (supra)
\n  has held that the accused is required to show that there was
\n  circumstances  giving  rise  to  reasonable   grounds   for
\n  apprehending  that either death or grievous hurt  would  be
\n  caused to him. The burden is on the accused to show that he
\n  had a right of private defence which extended to causing of
\n  death. Para 13 of the said judgment reads as under:-\n<\/p>\n
          “13.  The number of injuries is not always a  safe
\n          criterion  for determining who the aggressor  was.
\n          It  cannot  be  stated  as a universal  rule  that
\n          whenever  the  injuries are on  the  body  of  the
\n          accused persons, a presumption must necessarily be
\n          raised   that  the  accused  persons  had   caused
\n          injuries  in  exercise  of the  right  of  private
\n          defence. The defence has to further establish that
\n          the injuries so caused on the accused probabilises
\n          the  version of the right of private defence. Non-
\n          explanation  of  the  injuries  sustained  by  the
\n          accused at about the time of occurrence or in  the
\n          course   of   altercation  is  a  very   important
\n          circumstance.  But  mere  non-explanation  of  the
\n          injuries  by  the prosecution may not  affect  the
\n          prosecution  case  in  all cases.  This  principle
\n          applies  to cases where the injuries sustained  by
\n          the accused are minor and superficial or where the
\n          evidence  is  so clear and cogent, so  independent
\n          and  disinterested,  so probable,  consistent  and
\n          creditworthy, that it far outweighs the effect  of
\n          the  omission  on the part of the  prosecution  to
\n          explain the injuries. [See: Lakshmi Singh v. State
\n          of  Bihar  (AIR 1976 SC 2263). A plea of right  of
\n          private  defence cannot be based on  surmises  and
\n          speculation. While considering whether  the  right
\n          of  private defence is available to an accused, it
\n          is  not  relevant whether he may have a chance  to
\n          inflict severe and mortal injury on the aggressor.
\n          In  order  to  find whether the right  of  private
\n          defence  is  available to an accused,  the  entire
\n          incident must be examined with care and viewed  in
\n          its  proper  setting. Section 97  deals  with  the
\n          subject-matter  of right of private  defence.  The
\n          plea  of right comprises the body or property  (i)
\n          of the person exercising the right; or (ii) of any
\n          other  person; and the right may be  exercised  in
\n          the  case of any offence against the body, and  in
\n          the  case  of offences of theft, robbery, mischief
\n          or   criminal  trespass,  and  attempts  at   such
\n          offences in relation to property. Section 99  lays
\n          down  the  limits of the right of private defence.
\n          Sections 96 and 98 give a right of private defence
\n          against certain offences and acts. The right given
\n          under  Sections  96  to  98  and  100  to  106  is
\n          controlled  by  Section 99. To claim  a  right  of
\n          private defence extending to voluntary causing  of
\n          death,  the  accused  must show  that  there  were
\n          circumstances  giving rise to  reasonable  grounds
\n          for  apprehending  that either death  or  grievous
\n          hurt would be caused to him. The burden is on  the
\n          accused  to  show that he had a right  of  private
\n          defence  which  extended  to  causing  of   death.
\n          Sections  100  and 101, IPC define the  limit  and
\n          extent of right of private defence.\n<\/p><\/blockquote>\n
25.   In  the  present  case, right of  private  defence  was
\n  available to the appellant in the first part of the incident,
\n  but in second part of the incident right of private defence
\n  was not available to him. But second part of the incident was
\n  continuance of the first part of the incident and quarrel was
\n  sudden without premeditation and the appellant has lost his
\n  patience  in  the  heat  of passion and  he  assaulted  the
\n  deceased.\n<\/p>\n
26.  For the foregoing reasons, we are of the considered view
\n  that the appellant has caused homicidal death of the deceased
\n  V.S.Vijay Kumar which is punishable under Section 304 Part I
\n  of the Indian Penal Code, not punishable under Section 302 of
\n  the Indian Penal Code. The Court below has not considered the
\n  most   material  fact  that  offence  took  place   without
\n  premeditation and as a result of sudden quarrel and in  the
\n  heat  of  passion after total deprivation of  self-control,
\n  therefore, the act of the appellant squarely falls within the
\n  admit of Section 304 Part I of the Indian Penal Code.\n<\/p>\n
27.  In the result, the appeal is partly allowed. Conviction
\nof the appellant is modified and instead of Section 302 of
\nthe Indian Penal Code, the appellant is convicted under
\nSection 304 Part I of the Indian Penal Code and sentenced him
\nto undergo rigorous imprisonment for 10 years instead of life
\nimprisonment. The appellant is on bail. He is directed to
\nsurrender himself immediately before the Chief Judicial
\nMagistrate, Ambikapur for serving the remaining sentence
\nimposed upon him.\n<\/p>\n
                  JUDGE                      JUDGE\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Chattisgarh High Court Vikram Nair vs State Of Madhya Pradesh Now … on 25 November, 2009 HIGH COURT OF CHATTISGARH AT BILASPUR Criminal Appeal No 547 of 1989 Vikram Nair …Petitioners Versus State of Madhya Pradesh now Chhattisgarh …Respondents (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) ! Mr.Surendra Singh, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-71193","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"\nVikram Nair vs State Of Madhya Pradesh Now ... on 25 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vikram-nair-vs-state-of-madhya-pradesh-now-on-25-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vikram Nair vs State Of Madhya Pradesh Now ... on 25 November, 2009 - 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