Shivaji Laxman Shinde vs State Of Maharashtra And Anr.
2002 Latest Caselaw 116 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard Mr. Mane for the appellant accused and Mr. Pravin Singhal, learned APP for the State.

2. The appellant before this Court is accused No. 1. He is convicted under Section 304 (Part II) of IPC and is sentenced to suffer R.I. for 5 years and fine of Rs. 2,000/- in default R.I. for six months.

3. Mr. Mane contended that he would be restricting his submissions only to the extent of reducing the sentence because according to him there is evidence on record to hold that the accused acted in self defence. He relied upon the deposition of D.W. 3 Ranjit Shinde who was admittedly an eyewitness to the incident even according to the prosecution because his statement was recorded by the police during investigation. This witness Ranjit Shinde D.W. No. 3 has stated in his evidence that he was there when the quarrel took place between deceased, accused and others and he has stated that:

...During exchange or words, deceased Kashinath caught hold the neck of accused Shivaji. I intervened in the scuffle. Then there was again quarrel between deceased Kashinath and accused Shivaji. Deceased Kashinath took one stone and tried to assault accused Shivaji by catching hold his neck. At that time, accused Shivaji raised a cry... and then took out a knife from his pocket and gave a blow on the stomach of Kashinath....

Mr. Mane also pointed out that it was this witness Ranjit who went to the Police Out Post at Peth and gave information to the police which was subsequently transmitted on wireless to the police station i.e. Islampur Police Station. According to him, testimony of this witness is required to be accepted in support of the defence that the accused acted in self defence. Firstly, there is no effective cross-examination, secondly, the witness is not discredited by bringing contradictions or omissions on record with reference to his statement recorded by the police during investigation and therefore actually evidence of this witness has gone unchallenged.

4. He also pointed out that admittedly accused before this Court had no concern with the original quarrel; he happened to go there casually without any preparation, motive or intention and it was in the circumstances pointed out by D.W. No. 3 Ranjit that a fatal blow on the stomach of Kashinath came to be given. My attention was also drawn by Mr. Mane to the evidence of I.O. P.W. No. 8 Jayawantrao Kamchandra Watre PSI. He has admitted that he recorded the statement of the injured Ranjit. He further stated that it transpired during investigation that Ranjit had gone to Peth Out Post after the incident in injured condition. He also admitted that wireless message was received from Peth outpost to islampur Police Station. From the aforesaid admission of the I.O., Mr. Mane contended that the story narrated by D.W. No. 3 Ranjit gets corroboration about his presence at the spot, his receiving injuries, his going Lo Police Out Post at Peth and giving report and then that report being transmitted to the Islampur Police Station. In these circumstances, Mr. Mane submitted that theory of the accused acting in defence gets strengthened from the evidence of D.W. 3 Ranjit and therefore either accused is entitled for acquittal or for reduction of sentence.

5. It is true that even though Ranjit, originally the witness cited by the prosecution was examined by the accused in defence he is not successfully cross-examined. No attempt is made to bring out any contradictions or omissions in his evidence as his attention was never drawn to his statement recorded by the police during investigation. Admission by the I.O. that Ranjit had gone to the Out Post to lodge report or give information lends corroboration to his testimony not only about his presence but about the manner in which the incident might have occurred. It is a credential principle of criminal law that the accused does not have to prove defence beyond reasonable doubt he can succeed if he creates doubt about the prosecution case.

6. However, submission of Mr. Mane cannot be accepted that the accused is entitled for acquittal because he acted in the right of self defence as contemplated by Section 100 of the IPC. Section 100 in that regard lays down that right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the description given below:

First: Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly: Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

7. In the instant case if the accused is trying to contend that he acted in defence under Section 100 then admittedly the burden of proof shifts upon the accused to bring circumstances on record to show that when he inflicted the blow, he was under apprehension or he had reasons to believe or he was caught in situation where in the absence of any counter attack by him, he would have died or would have received grevious hurt.

8. The entire defence story is based on the evidence of D.W. No. 3 Ranjit who has stated that the deceased lifted a stone and was about to hit when accused used the knife and gave a blow on the stomach. Nothing is tried to brought on record as to what was the size of the stone, what was his weight, how and at what height the stone was lifted or whether it was merely in the hands of the deceased, what was the distance between the parties and whether from the gesture of lifting of the stone, anybody could apprehend that attack by stone would result in death or grevious hurt. All these aspects are lacking and therefore even if the theory of self defence can be accepted as might be probably true the accused cannot be acquitted because admittedly he has exceeded the right of self defence.

9. Since no attack was made on the merits of the case I consider the aforesaid submissions only. The question now is of sentence. The trial Court holding him guilty had awarded sentence of five years under (Part II) of Section 304 of IPC. Section 304 (Part II) is attracted when the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. Admittedly, no intention can be attributed. Accused acted in self defence but he has exceeded the right of self defence, this requires reduction of sentence.

10. Mr. Mane stated that the accused was in custody for trial for one year and seven months and the same should be considered as sufficient sentence but the Court may enhance the fine. I am not agreeable with this submission, therefore, I pass the following order:

ORDER

Appeal is partly allowed. Conviction of the accused under Section 304 (Part II) is maintained. His sentence is reduced to two years and fine is enhanced to Rs. 10,000/-, in default R.I. for six months. Accused to pay fine within four weeks from today. If fine is paid the same shall be given to the parents or dependents of the deceased. Accused to surrender within four weeks from today to undergo remaining sentence. Office to send writ immediately.