Bombay High Court
Gatya @ Laxmikant Kotalwar vs The State Of Maharasthra on 7 April, 2016
Bench: A.V. Nirgude
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 69 OF 2000
CRIMINAL APPEAL NO. 185 OF 2000
CRIMINAL REVISION APPLICATION NO. 86 OF 2000
CRIMINAL APPLICATION NO. 990 OF 2016
ig ****
CRIMINAL APPEAL NO.69 OF 2000
Gatya @ Laxmikant Kotalwar .. Appellant
Age-21 years, Occu-Education, Ori.Accused No.1
R/o. Bhajimandai, Udgir,
Tq. Udgir, Dist. Latur
VERSUS
The State of Maharashtra .. Respondent
Mr. Ashok Mundargi, Sr. Counsel with Mr. A.D.Ostwal,
Advocate for the appellant
Mr.M.M.Nerlikar, APP for the respondent/State
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WITH
CRIMINAL APPEAL NO.185 OF 2000
The State of Maharashtra ...Appellant
VERSUS
1. Gattya @ Laxmikant S/o. ...Respondents
Chandrakant Kotalwar
Age-22 years, Occu-Education,
R/o.Bhajimandi, Udgir
2. Tinku @ Saiprakash S/o. Bhagwat Parsewar,
Age-21 years, Occu-As above
R/o.Swarodaya Society, Udgir
3. Yunus Sayed S/o. Mohammadsab Sayed,
Age-21 years, Occu-as above
R/o.Paiganpura, Udgir
4. Sunil S/o. Sureshchandra Kautikwar,
Age-21 years, Occu-Labour (Munim)
R/o.Khatib Galli, Udgir
5. Vikas S/o. Machindra Chidrewar,
Age-21 years, Occu-Business,
R/o.Valugalli, Nideban Bes, Udgir
All R/o. Udgir, Dist. Latur
Mr.M.M.Nerlikar, APP for the appellant/State
Mr.Ashok Mundargi, Sr. Advocate i/b Mr.A.D.Ostwal,
Advocate with Mr.S.G.Rudrawar, Advocate for respondent
Nos. 1 & 2
Mr.R.N.Dhorde, Sr. Counsel i/b Mr.V.R.Dhorde, Advocate
for respondent Nos.3 to 5
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WITH
CRIMINAL REVISION APPLICATION NO.86 OF 2000
Smt.Sunita Anteshwar Hude ...Applicant
Age-22 years, Occu-Household,
R/o.Udgir, Tq. Udgir,
Dist. Latur.
VERSUS
1. The State of Maharashtra
ig ...Respondents
2. Tinku @ Saiprakash S/o. Bhagwat Parsewar,
Age-21 years, Occu- Education
3. Yunus Sayed S/o. Mohammadsab Sayed,
Age-21 years, Occu-Education
4. Sunil S/o. Sureshchandra Kautikwar,
Age-21 years, Occu-Labour (Munim)
5. Vikas S/o. Machindra Chidrewar,
Age-21 years, Occu-Business,
Respondent Nos. 2 to 5
R/o. Udgir, Dist. Latur
Mr.M.S.Deshmukh, Advocate h/f Mr.U.L.Momale, Advocate for
the applicant
Mr.M.M.Nerlikar, APP for the respondent No.1/State
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WITH
CRIMINAL APPLICATION NO.990 OF 2016
IN
CRIMINAL APPEAL NO.185 OF 2000
Tinku @ Saiprakash S/o. Bhagwat Parsewar ...Applicant
Age-37 years, Occu-Education,
R/o.Udgir, Tq. Udgir,
Dist. Latur.
VERSUS
1. The State of Maharashtra ...Respondents
2. Gattya @ Laxmikant S/o.
Chandrakant Kotalwar,
Age-38 years, Occu-Education
3. Yunus Sayed S/o. Mohammadsab Sayed,
Age-37 years, Occu-Education
4. Sunil S/o. Sureshchandra Kautikwar,
Age-37 years, Occu-Labour (Munim)
5. Vikas S/o. Machindra Chidrewar,
Age-37 years, Occu-Business,
Respondent Nos. 2 to 5
R/o. Udgir, Dist. Latur
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Mr.R.N.Dhorde, Sr. Counsel with Mr.V.R.Dhorde, Advocate
for the applicant
Mr.M.M.Nerlikar, APP for the respondent/State
CORAM : A.V.NIRGUDE &
INDIRA K. JAIN, JJ.
RESERVED ON : 15.03.2016
PRONOUNCED ON : 07.04.2016
JUDGMENT [PER: A.V.NIRGUDE, J.]:-
1.
All these proceedings arise from judgment dated
21.01.2000 delivered by the learned Additional Sessions
Judge, Latur in Sessions Case No.98 of 1998. This case
was tried against four accused for offences punishable
under Sections 147,148,323,324 and 302 read with Section
149 of the Indian Penal Code. The learned Sessions Judge
by the impugned judgment acquitted accused Nos.2 to 5 on
one hand and convicted accused No.1 for offence
punishable under Section 302 and was sentenced to suffer
life imprisonment and to pay fine of Rs.5000/- with a
default clause. He was also convicted for offence
punishable under Section 324 of the Indian Penal Code and
was sentenced to suffer rigorous imprisonment for six
months and to pay fine of Rs.1000/- with a default
clause.
2. Criminal Appeal No.69 of 2000 is filed by the
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accused No.1 challenging his conviction under Sections
302 and 324 of the Indian Penal Code. Criminal Appeal
No.185 of 2000 is filed by the State of Maharashtra for
challenging acquittal of accused Nos.2 to 5.
3. Criminal Revision Application No.86 of 2000 is
filed by the victim's wife challenging the impugned
judgment to the extend of acquittal of accused Nos.2to5.
4.
The prosecution case, in short, can be stated as
under:-
5. The accused Nos. 2 to 5 formed unlawful assembly
on 05.05.1998 at about 8:30 p.m. near the shop of accused
No.1 at Udgir town and using deadly weapon like iron rod,
scissors, etc. they attacked complainant and his
companions and caused death of one Anteshwar delivering
stab on his chest and causing simple injuries to other
accused either utilizing iron rod or seizures like
weapon. This incident occurred because on the same day
during afternoon there occurred quarrel between accused
Nos. 1 and 2 on one side and P.W. No.9- Rafiq Khan and
his companion Sachin who happened to be nephew of
deceased Anteshwar. It was alleged that accused Nos. 1
and 2 slapped P.W.No.8 and his companion Sachin, abused
and slapped due to an eve-teasing incident. The
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complainant and his three companions learnt that accused
were making preparation for launching further assault on
Sachin. They rushed to the scene of occurrence and as
said above the accused attacked them.
6. The prosecution depended on 16 witnesses out of
which prosecution witnesses No.9,10 and 12 are most
important for their presence at the scene of occurrence
cannot be doubted. They sustained injuries during
incident. We would therefore enumerate their evidence one
by one.
7. P.W.No.12 Amrut Patil is the first informant. He
lodged the complaint of the incident. The gist of his
deposition along with admissions he had given during
cross-examination can be narrated as under:-
8. On 05.05.1998 at about 6:30 p.m. he went to shop
of Anteshwar (who died during the incident). At about
7:00 p.m. Anteshwar, Ashok P.W.No.10 and one Ramrao came
there in a maruti van. Ramrao was in need of a
motorcycle. He told that Sachin-Anteshwar's nephew and
Rafiq Khan P.W.No.9 were seen using the motorcycle at a
particular spot in the town. So, Anteshwar said to them
that they should go to Rafiq Khan's room for getting the
motorcycle. They all came to Rafik Khan's room using the
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car. They found motorcycle there. They also met Sachin.
9. Sachin told Anteshwar that Gatya Kotalwar-accused
No.1 and Saiprakash accused No.2 had assaulted him on a
false ground over a girl. Anteshwar asked Sachin not to
pickup quarrel as there was wedding proposed in the
family. Anteshwar asked Sachin that he should go to home
assuring him that he would convince accused Nos.1 and 2
that they should not continue quarrel. Ramrao and Sachin
then left Rafiq's room using motorcycle. Remaining
persons i.e. he, Anteshwar, Ashok and Rafiq Khan went to
shop of accused No.2 in the maruti van. They found
accused No.2 in his shop. Anteshwar called him and told
him and that they should not quarrel. Accused No.2 agreed
that there would be no quarrel. Thereafter they all went
to a restaurant to have a meals. Pintu another relative
of Anteshwar came there and told them that some boys had
assembled for launching attach on Sachin. Hearing this,
Anteshwar told him to go home. Anteshwar said to others
that they should go and try to convince the boys. They
all went to accused No.2's shop, but the shop was found
closed. They then went to shop of accused No.1 by maruti
van. They reached the shop at about 8:30 p.m., Anteshwar
was driving the van. Rafiq Khan P.W.No.9 was sitting next
to him. On reaching the shop of accused No.1, Anteshwar
asked Rafiq to see if accused No.1 was in the shop.
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Anteshwar also told Rafiq that they would convince him.
There were two shutters to the shop of accused No.1.
Bigger one was closed and smaller one was still open.
Rafiq went towards smaller shutter and stood there.
Accused No.1 came out of the shop. He had some talk with
Rafiq. Accused No.1 went back in the shop and came back
holding a knife in his hand. Rafiq started retracting.
Accused No.1 was brandishing kife. Rafiq sustained a
knife blow. Accused No.1 came towards the maruti van.
Anteshwar was stepping out of the maruti van. At that
time, accused No.1 gave a forcible blow of knife to
Anteshwar on his chest. Anteshwar sustained injury on his
chest. Ashok P.W.No.10 stepped down from the maruti car
from back side and tried to hold Anteshwar. Accused No.1
assaulted him too. He sustained injury on his hand due to
knife blow. He also got down from the maruti van. He told
accused No.1 by holding his hand that they had came there
to pacify them. But accused No.1 assaulted him also with
knife. He sustained injury on his waist on left side.
This was a bleeding injury. Thereafter, Ashok shifted
Anteshwar on the other seat of the maruti van. Ashok took
over driving.
10. At that time he saw accused No.2 and two unknown
persons were assaulting Rafiq. Accused No.2 was holding a
steel rod. He was beating Rafiq using the same. Ashok
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started the maruti van. Rafiq came to the maruti van and
got in it. He was holding his head in his hand. One
Suresh came there and told Ashok that he should take the
maruti van to Baheti Hospital. Thereafter Ashok took the
maruti van to Government hospital. Ashok took Anteshwar
in the hospital. Rafiq took him in the hospital. Doctor
treated them. Anteshwar expired in the hospital within
twenty minutes. Police came there. The Police Officer
Shri Gutte enquired with him. The time was about 9:30 to
9:45 p.m. He narrated the incident to Police Officer Shri
Gutte, who recorded it. After recording the complaint it
was read over to him and he put his signature on it. The
Doctor of Udgir referred him to Latur Civil Hospital. He
was admitted there for 10 to 12 days. On 11.05.1998 the
Police recorded his supplementary statement at Latur.
11. During the investigation he also attended the
test identification parade. He identified two assailants
of Rafiq Khan viz. accused Nos.3 & 4 in the test
identification parade. He identified accused No.1 and
accused No.2 in the Court. He also identified the weapon
used at the time of assault (witnesses was then showed a
bent knife-Article No.10 and iron rod-Article No.16 and
he identified them as the weapons which were used at the
time of incident). In the cross-examination, the witness
gave following admissions which are relevant for
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appreciating his testimony.
He admitted that his place of residence village
Mogha is about 9 to 10 km. away from Udgir and he came to
Udgir for work in a S.T.bus.
At the time of incident he was sitting on the rear
side in the maruti van. He had no occasion to see
accused Nos. 1 and 2 prior to the incident. He did not
know name of accused No.1 prior to the incident. He
mentioned name of accused No.1 in his complaint because
witness Rafiq Khan told him name of accused No.1 as Gatya
Kotalwar. After the incident he did not come to know the
name of accused No.2 and that he could see accused No.2
for the first time in the Court.
At the time of incident some people gathered but
they were standing at a distance at about 10 feet.
In his complaint there is no mention of a "knife"
being used by accused No.1 at the time of attack.
Our observations on this deposition
12. This witness though is the complainant is
practically useless for the prosecution because prior to
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the incident he did not know accused Nos.1 and 2. He did
not identify them even in the test identification parade
mostly because he was not given an opportunity to
identify them in such parade. At the time of recording
his statement as complainant the Police Officer probably
did not know that this witness had no acquaintance with
accused Nos.1 and 2 and yet he was mentioning the name of
accused No.1 in his complaint. No explanation was sought
at that time from this witness. In normal course this
witness ought to have mentioned in his complaint that 'an
unknown person came out from the shop having knife in his
hand etc'. This witness identified accused No.1 for the
first time in the Court. Such identification has
practically no probative value. This deposition can be
utilized only for corroborating the other depositions of
injured witnesses.
13. Witness No.9 is the next important prosecution
witness. He stated in his deposition that on 05.05.1998
at about 5:30 p.m. when he was leaving his shop, his
friend Sachin called and invited to have fruit juice at
Shivaji Chowk. Both of them then went to Shivaji Chowk
and had fruit juice. At that time Sachin told him that he
was required to go to Dal-Mill (Anteshwar managed this
Mill). Sachin had a motorcycle and both of them used his
motorcycle to go towards Dal-Mill. On the way they
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noticed that accused Nos.1 and 2 were talking to a girl
standing by side of the road. Thereafter, accused Nos. 1
and 2 riding on motorcycle came after his motorcycle and
asked Sachin to stop the motorcycle. Accused No.2 then
caught collar of his shirt and abused him. He also asked
as to why he was behind that girl. Sachin asked him which
girl he was talking about. Accused Nos.1 and 2 then told
him that he was talking about a girl by name Dongare.
He(this witness) intervened and said they should not
fight. Accused No.1 delivered a slap to him. On the other
hand accused No.2 started beating Sachin. A girl by name
Dongare then came there and asked accused Nos.1 and 2
that their action was unnecessary. She even told them
that the boy who had teased her had already gone away.
Accused Nos.1 and 2 then stopped their assault.
14. Thereafter this witness and Sachin continued
their journey towards Dal-Mill. From the Dal-Mill they
came to market yard and noticed that 2-3 boys were
sitting in front of accused No.2's shop. He told Sachin
to stop the motorcycle so that he would convince accused
No.2 (not to fight). Sachin stopped the motorcycle. This
witness asked accused No.2 as to why he had unnecessarily
assaulted them. Accused No.2 aggressively told him that
he should come inside the shop and that he would beat
him. He also threatened them that unless they go away
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quietly he would break their limbs. Accused No.2's friend
pacified but accused No.2 was still threatening him that
he should do whatever he wanted. Thereafter witness
Sachin came to this witness's room using Sachin's
motorcycle at about 7:30 p.m. At that time Anteshwar,
Ashok, Amrut and Ramrao came there in maruti van. This
maruti van was quietly commonly used and has peculiar
sitting arrangement. It has four doors. Rear doors slide
back when they are open.
15. Anteshwar then asked Sachin to hand over
motorcycle key. Sachin told Anteshwar that accused Nos.1
and 2 had unnecessarily assaulted on the false ground
over a girl. Anteshwar told Sachin that he would pacify
accused Nos.1 and 2 as they two were businessmen.
Thereafter Sachin and Ramrao left using Sachin's
motorcycle. Thereafter this witnesses Anteshwar, Ashok
and Amrut using a maruti van went to the shop of accused
No.2 which is situated in market yard. They intended to
pacify him. Accused Nos.2 and 3 were present in the shop.
Anteshwar and Amrut got down from the maruti van and
asked as to who was accused No.2(it appears that they did
not know accused No.2's identity). The accused No.2 came
forwarded. Anteshwar asked him why he was unnecessarily
picked up a quarrel and told him that as a businessman
and residing in neighbourhood they should not quarrel.
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Accused No.2 assured Anteshwar that there would be no
quarrel.
16. Thereafter, this witness, Anteshwar and his
other two companions went to the restaurant. After
reaching there, within 2-3 minutes Pintu @ Yashwant came
there and informed them that accused Nos.1 and 2 were
planing to assault Sachin. Anteshwar told Pintu @
Yashwant that he should go to home and he would pacify
accused Nos.1 and 2. Pintu @ Yashwant left. Thereafter
Anteshwar asked his companions that they should first go
and pacify accused Nos.1 and 2 and thereafter they would
have meals. So all of them boarded maruti van and went
towards accused Nos.2's shop. The shop was closed so they
went to accused No.1's shop. The shop was open with small
shutter. Anteshwar told him that there could be
businessmen sitting inside the shop and this witness
should go and call accused No.1 outside so that he would
pacify him. He got down from the maruti van and went to
the small shutter of the shop. Accused No.1 was sitting
inside the shop with his clerk. He asked him to come out
to have a talk with Anteshwar. Accused No.1 said to him
that he would come. Accused No.1 then made a phone call.
Thereafter he came outside the shop. He saw the situation
outside his shop and then went back inside his shop. He
came out again with a knife in his hand. This witness
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told him that he had not come for quarrel. He also said
to him that he would settle the dispute. Accused No.1 was
moving knife in his hand in air. He was brandishing it.
Accused No.1 came near him he sustained a blow of knife
on his chest on left side. He moved away to avoid further
assault. At that time Anteshwar was stepping down from
the driver seat of the maruti van. Suddenly accused No.1
delivered forcible blow on Anteshwar's chest. He was
about five feet away from the maruti van. At that time
three more persons came there and started beating him
using kicks and fists. Accused No.2 also came there with
a steel rod in his hand and delivered a blow on his right
shoulder, he fell down. Accused No.2 dealt one more blow
of steel rod on his head. He sustained bleeding injury.
He kept sitting down. He saw accused No.2 was throwing
the steel rod in his hand inside the maruti van in which
he had come there. Ashok started maruti van. He boarded
the same. He noticed injuries to Amrut, Anteshwar and
Ashok and drove the maruti van ultimately to the
Government hospital. All of them were admitted in the
hospital. The Doctors treated them. Thereafter, after
some time Sachin and Pintu @ Yashwant came to hospital.
They had talk with him. They asked him as to what
happened. I told them that accused No.1 assaulted
Anteshwar. Anteshwar expired within short time. He and
other injured witnesses were then referred to Latur Civil
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Hospital. He was hospitalized for three days.
17. This witness also stated that at the time of
incident he had occasion to see one Suresh. This witness
also identified Article No.16-steel rod and knife-article
No.10 being weapons utilized by accused Nos.1 and 2. This
witness further stated that he had occasion to attend the
identification parade but does not add as to what
happened in such parade. He identified the accused Nos.1
and 2 in the Court. In the cross-examination he admitted
following facts.
18. He was close friend of Sachin who called him
Bhaiya. Prior to the date of incident he had no occasion
to have talk with accused Nos.1 and 2 but he knew that
they were resident of Udgir town.
19. At the time of incident of beating on the road
due to the cause of an eveteasing. He admitted that he
did not retaliate because accused Nos.1 and 2 belong to
rich families. But he felt insulted due to assault. He
and Sachin thereafter had talk about quarrel and were
wondering and were saying as to why they were
unnecessarily beaten up. During the incident that took
place in the shop of accused No.2, he admitted that he
too express his displeasure over the incident to accused
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No.2.
20. At the time of assault, accused No.1 was holding
a knife which had straight blade. The incident of assault
lasted for about five minutes. Because of blow on his
head he felt giddiness. In his police statement there is
no mention about accused No.2 throwing the steel rod in
maruti van. Some people from nearby chowk came running to
the spot at the time of incident. While he was in Udgir
Hospital after the incident the Police did not make
inquiry with him. The Police recorded his statement.
After 2-3 days he was discharged from Latur Hospital.
COMMENTS ON THIS DEPOSITION OF WITNESS NO.9
21. Presence of these witness on the scene of
occurrence was quite natural, who was assaulted and
humiliated earlier by accused Nos. 1 and 2. He told
Anteshwar about earlier incident. He accompanied
Anteshwar and others to go to shops of accused No.2 first
and then to accused No.1. He took lead to go and call
accused No.1 prior to the incident. He stood outside the
shop. He saw accused No.1 coming out from his shop
holding a knife in his hand. But he exaggerated and lied
about knife blow and injury caused by it. The medical
evidence did not support his case that accused No.1
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delivered a knife blow on his chest. Specifically he did
not state how accused No.1 assaulted witnesses Amrut and
Ashok. He said that he sustained a blow of rod on head
and he sat down and thereafter got into the maruti van.
After he entered the maruti van he learnt that other two
witnesses also sustained injuries. Witness No.10 is
Ashok. He stated that he knew accused Nos.1 and 2. He
told, on that day he and his companions had gone to
restaurant by name "Simran Dhaba" where they had dinner.
Pintu @ Yashwant came there and told that some boys had
assembled for assaulting Sachin. Therefore, Anteshwar
told that they should go and persuade the boys not to
quarrel. Accordingly, they all boarded the maruti van and
went in front of shop of accused No.1. Anteshwar was
driving the maruti van. It was about 8:30 p.m. Anteshwar
asked Rafiq Khan to call accused No.1 so that he would
talk to him and convince him that they should not pickup
quarrel. Accused No.1 came outside his shop, went back
and came with a knife in his hand. He assaulted Anteshwar
with knife on his chest. He was sitting on the rear seat
of the maruti van. At that time, Anteshwar asked him to
drive the maruti van. Therefore he stepped down. While he
was helping Anteshwar accused No.1 assaulted him on his
left hand. He sustained bleeding injury. Amrut Also
stepped down from the maruti van. Accused No.1 assaulted
him with knife on his waist. He saw Rafiq Khan was being
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beaten up by 3-4 persons, amongst them was accused No.2.
He was holding a steel rod. He started the maruti van and
carried others to hospital and ultimately reached the
Government hospital. At the hospital he lifted Anteshwar
and took him inside the hospital. The Police came there.
Anteshwar expired after some time. The Doctors treated
him and then sent him to Latur Civil Hospital, where he
was admitted for 2 days. This witness also could identify
in the Court that knife-Article No.10 which is bent blade
of 90 degree and he identified them as the weapon which
was used at the time of incident. He said that the knife
which was used by Accused No.1 at that time knife's
blade was straight. In the cross-examination following
observations could be brought on record. This witness
admitted that there was crowed at the time of incident.
But he could not know as to from where people gathered
there. When they arrived in front of accused No.1's shop
there was no one present in front of the shop. The
medical evidence in respect of injuries indicated that
this witness had sustained two injuries i)incised would
on left elbow joint. Size 2x1x1 cm. & ii) Contusion on
left forearm lower end. Size 3 x 2 cm. Both the injuries
were simple. First one was caused by sharp object.
22. P.W.11 and P.W.13 are also examined eye
witnesses. But it is apparent that they are not only
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chance witness but they are patently got up witnesses
too. Their depositions did not inspire confidence and we
are inclined to reject their depositions altogether.
23. The next part of the prosecution case is nature
of injuries and cause of death of Anteshwar. The
prosecution witness No.3 Dr. Pawar stated that on
05.05.1998 at about 9:30 p.m. four injured persons were
brought to his hospital. He examined Anteshwar and found
his condition very serious. There was incise wound on
middle part of chest, i.e. on sternum. The wound was
measuring 5 x 3 cm into deep to thoracic cavity. The
injury was grievous in nature, caused by sharp and
cutting object like knife. The age of injury was within
12 hours. The patient was unconscious. Though treatment
was given for half-an-hour Anteshwar died at about 10:00
p.m. There was another injury on the person of Anteshwar.
It was abrasion on left elbow joint.
24. The prosecution witness No.1 Dr. Onkar Swami
deposed that he conducted Postmortem examination of
Anteshwar's body. He told that Anteshwar was about 28
years old, he was well nourished. External injury found
on Anteshwar's body of 2 1/2" x 1 1/4", X organ deep on
the body of sternum in between 4th and fifth ribs. The
direction of the wound was transverse-oblique in
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directions. On internal examination he noticed that
there was incise lacerated wound on pleura of lung size
3" x 1" over right middle lobe. Injury to right lung was
3" x 1" X 1/2" over the right middle lobe with tear of
bloods of vessels viz. pulmonary artery and vein.
25. In cross-examination he admitted that the injury
described above was not possible by the knife which was
produced before the Court as article No.10. He also
opined that the cause of death was due to hemorrhagic
shock due to injury to right lung. This deposition
clearly indicated that Anteshwar died due to one solitary
stab wound caused to his chest. Stab went up to his lung.
Due to this stab the lung pulmonary artery and vein were
cut.
26. The learned Judge of the lower Court disbelieved
the prosecution case partly. The learned Judge held that
Anteshwar was stabbed to death by accused No.1. But he
also held that accused No.2 and other accused were not
proved to be present at the time of incident.
27. We heard submissions. On one side the learned
Sr. counsel for the accused No.1 argued that the entire
prosecution evidence is not trustworthy and same should
be disbelieved. Secondly, he, in the alternative
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submitted that accused No.1 apparently used weapon in
self-defence and therefore he deserves acquittal. In
alternative he also argued that, if the the Court comes
to conclusion that accused No.1 committed culpable
homicide, it would fall within exception 4 of Section 300
of the Indian Penal code. He also asserted that the
accused No.1 could not be held to have intention to cause
injury which was sufficient to cause death.
28.
On the other hand learned A.P.P. and Shri
Deshmukh who was allowed to argue in support of
prosecution case tried to point out that there was ample
evidence against at least accused No.2 and he should be
convicted. In addition to this submission they submitted
that this was not a case of self-defence or a case
falling under four corners of Exception 4 of Section 300
of Indian Penal code.
29. Following questions arose for our
consideration :-
i] Whether the evidence on record could probablise that
accused No.1 had right of private-defence at the time of
incident and could justifiably caused injury to his
victims and death of one of the victim.
( 24 ) criapl69.00
ii] If we hold that accused No.1 had right of
private defence at the time of incident whether he
exceeded such right?
iii] Whether the evidence on record would indicate
probablise that it was a case falling within four corners
of exception 4 of Section 300 of the Indian Penal Code?
Point No.I:
30. In order to examine this point we must first
read provisions of Indian Penal Code in respect of right
of private defence Sections 96 to 106. We must also keep
in mind principles regarding right of private defence
laid down by Supreme Court in case of Darshan Sing Vs
State of Punjab and another (2010 Volume-II SC Page
No.333).
Following are principles regarding right of private defence :
"(i) Self-preservation is the basic human
instinct and is duly recognised by the criminal
jurisprudence of all civilised countries. All free,
democratic and civilised countries recognise the
right of private defence within certain reasonable
limits.
(ii) The right of private defence is
available only to one who is suddenly confronted
with the necessity of averting an impending danger
and not of self-creation.
(iii) A mere reasonable apprehension is enough to
( 25 ) criapl69.00
put the right of self-defence into operation. In
other words, it is not necessary that there should
be an actual omission of the offence in order to
give rise to the right of private defence. It is
enough if the accused apprehended that such an
offence is contemplated and it is likely to be
committed if the right of private defence is not
exercised.
(iv) The right of private defence commences
as soon as a reasonable apprehension arises and it
is coterminous with the duration of such
apprehension.
(v) It is unrealistic to expect a person
under assault to modulate his defence step by step
with any arithmetical exactitude.
(vi) In private defence the force used by the
accused ought not be wholly disproportionate or
much greater than necessary for protection of the
person or property.
(vii) It is well settled that even if the accused
does not plead self-defence, it is open to consider
such a plea if the same arises from the material on
record.
(viii) The accused need not prove the existence
of the right of private defence beyond reasonable
doubt.
(ix) The Penal Code confers the right of
private defence only when that unlawful or wrongful
act is an offence.
(x) A person who is in imminent and reasonable
danger of losing his life or limb may in exercise
of self-defence inflict any harm even extending to
death on his assailant either when the assault is
attempted or directly threatened."
31. On careful perusal all the provisions and above
quoted principles we have to examine evidence and find
out as to whether accused No.1 could show on probability
( 26 ) criapl69.00
that right of private defence commenced in his favour at
the time of incident, if the answer is in affirmative
whether his case would fall within parameter of Section
100.
We would now turn to facts.
32. It is an admitted fact that accused Nos. 1 and 2
showed their aggression in the afternoon of that day
against Sachin and Witness No.9. It is an admitted fact
that accused Nos.1 and 2 slapped, assaulted and abused
Sachin and witness No.9. There is an indication that this
incident of beating took place in presence of a girl.
Witness No.9 and Sachin did not retaliate because they
felt that they were not sufficiently strong in front of
accused Nos.1 and 2. Witness No.9 admitted that he felt
insulted because of this incident. Young men are quite
sensitive to such incidents which occur over alleged eve-
teasing. If they are beaten up in presence of the girl
involved they would feel extremely humiliated. We have no
doubt in our mind that witness No.9 and Sachin must have
felt insulted. Their ego was got hurt. And they said
that accused Nos. 1 and 2's attack was unjust as they
were not guilty of eve-teasing. It was therefore probable
that they felt resentment and anger.
33. They narrated this incident to their elder i.e.
( 27 ) criapl69.00
Anteshwar, who is little older than them. He is uncle of
Sachin and naturally Sachin could make grievance of
incident to his uncle. It has came in evidence that uncle
Anteshwar tried to pacify his nephew. This also indicates
that Sachin-nephew was furious and probably urged his
uncle that he should help him avenge the insult and
humiliation. The incident narrated by witness No.9
however on the other hand does not create an impression
that accused Nos.1 and 2 were angry and had reason to
initiate further confrontation with Sachin. They already
had upper hand in the conflict. Therefore when the
witnesses stated that Anteshwar repeatedly announced that
he would go and pacify accused Nos.1 and 2. We have our
own doubt about truthfulness of this statement. Probably
Anteshwar had no need to pacify accused Nos.1 and 2. He
had ample reason to ask them as to why they had slapped
his nephew and humiliated him in presence of a young
girl. At least they owed him an explanation. Anteshwar
therefore was most probably angry with accused Nos. 1 and
2. Sooner he learnt about this humiliating incident he
thought of going and meeting accused Nos.1 and 2. After
he sent his nephew Sachin home, he and his companions
proceeded in a Maruti van towards shop of accused No.2.
They found few boys sitting in front of the shop.
Anteshwar did not know as who amongst the boys was
accused No.2. The evidence simply indicated that
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Anteshwar asked accused No.2 that no further quarrel
should take place. But before such warning could be
given, it was but natural that Anteshwar would ask as to
why accused No.2 insulted and humiliated his nephew.
Accused No.2 having regard to his age at the time of
incident had no alternative but to admit that he would
take the quarrel further. This indicates that accused
No.2 was unable to have confrontation with Anteshwar.
The prosecution case that Anteshwar was elderly man
and that he went to accused No.2 to pacify him is not at
all acceptable to us. Anteshwar was not elderly, he was
young man of 28 years having well build-body. He was also
a businessman having a car etc. So, it was more likely
that he would start asking explanation to the tormentors
of his young nephew. The prosecution case that Anteshwar
only pacified accused No.2 is therefore not believable.
It is more believable that Anteshwar had asked
explanation to accused No.2 and warned him. It is only
after such warning accused No.2 agreed not to continue
the dispute. It was more probable that after having this
conversation with accused No.2 Anteshwar himself felt
pacified and then he decided to have dinner. He
accordingly took his companions to a restaurant (Dhaba).
But no sooner there they learnt that there was further
provocation and that some boys had assembled near shop of
accused No.2. Without waiting for food, Anteshwar
( 29 ) criapl69.00
commanded his companions to go and again "pacify"
accused Nos.1 and 2. We are not at all inclined to
believe this part of the prosecution case that Anteshwar
left the restaurant for bringing about re-conciliation
etc. He was most probably angry and wanted to teach a
lesson to accused Nos.1 and 2. He further most probably
left the restaurant in anger and drove his Maruti van
himself. When he did not find any one near accused No.2's
shop he ought to have returned to the restaurant. The
information he had received earlier that the some boys
were assembled near accused No.2's shop was found to be
incorrect. He should have gone back but this admittedly
did not happened. He continued his procession towards
shop of accused No.1. Even here admittedly he did not see
anyone outside accused No.1's shop. It was about 8:30
p.m. In the night the business was already closed. The
shop was half closed. Apparently there was no preparation
from side of the accused to launch an attack and cause
injury to his nephew. In these circumstances Anteshwar
ought to have felt satisfied that there was no
possibility of further quarrel and fights between boys of
the age of his nephew. He ought to have returned at least
from there, but he did not. He asked one of his
companions to go and call accused No.1 from the shop. He
also said that there could be some businessmen in sitting
inside the shop and probably wanted to avoid incident
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inside the shop in front of businessmen. He wanted to
talk with accused No.1 outside his shop. Accused No.1 in
such situation came outside. He was not aware as to how
many people had came to visit him. He could only see
witness No.9 Rafiq Khan outside his shop telling him that
Anteshwar wanted to talk with him. At this time accused
No.1 was almost alone. Accused No.2 and others were not
with him, their support was not with him. He knew that
Anteshwar would ask him explanation as to why he had
humiliated his nephew. He must have sensed danger. This
was probable. He came outside unarmed. He noticed
witness No.9 was standing in front of his shop and others
were sitting (according to the prosecution version) in
the Maruti van were probably ready to get down. Anteshwar
admittedly wanted to talk with him. This probably gave
him anxiety. He must probably have frightened and in
such fright he got panicked. He probably thought that he
would face dire consequences if all occupants of the car
would come seeking his explanation. He thus had an
apprehension that he would be at least beaten up. He
tried to make a phone call but apparently did not get
positive response. He must have felt that he was
cornered. So in such situation and due to panic he
picked up a knife like weapon lying in his shop.
34. Even the weapon he used at the time of incident
( 31 ) criapl69.00
is a doubtful subject of prosecution case. Before the
trial could begin, the prosecution alleged even in the
charge framed against accused that a pair of scissors was
used for assaulting the deceased and others. The
prosecution witness No.12 Amrut- first informant while
narrating the incident he did not make mention of knife
as weapon seen in the hand of accused No.1. We have
therefore strong doubt as to whether accused No.1 had
knife in his hand. Again the knife that was produced
before the Court as murder weapon is doubtful article. It
is a knife with blade bent in 90 degrees. We found such
weapon useless for launching an assault. If such weapon
is used for attack, the assailant himself would get
seriously injured. The bent blade would first cause
injury to his own hand. Eye witnesses on the other hand
confidently deposed that the weapon that they saw in the
hand of the accused No.1 had straight blade. And yet they
deposed that weapon produced before the Court was the
same weapon. No one explained as to how this weapon
produced before the Court was blunt and damaged.
Nonetheless we are not holding that accused No.1 had no
weapon in his hand at the time of incident he did have
some weapon which he had used.
35. We hold that the accused No.1 looking to his age
and the gravity of situation probably developed
( 32 ) criapl69.00
apprehension in the mind of the accused No.1 that he
would be beaten up and that he had no escape route. He
also realized that no-one would come to support or
protect him in such situation.
36. We hold that the accused No.1 had sufficient
apprehension which would give rise to a right of private
defence. This right commenced, the moment he saw witness
No.1 and others sitting in the van in front of his shop.
We may not however say this apprehension was of death. He
had apprehension of getting cornered, detained, wrongly
restrained and getting beaten up. Such situation as said
above amounted to commencement of right of private
defence of accused No.1's body. Picking up a weapon in
his hand thus was quite justifiable. What happened
thereafter is another story.
37. Thereafter he started brandishing the weapon in
his hand. He most probably wanted to show the visitors
that he was armed and they should not come near him.
Brandishing weapon was an attacking posture of his self-
defence. He most probably challenged witness No.9 and
others who were sitting in the van. Seeing him in such
mood probably disheartened witness No.9. He started going
back. At this point of time Anteshwar instead of calling
witness No.9 back to the van thought that he could get
( 33 ) criapl69.00
down from the van. He probably got down to protect
witness no.9. The situation was serious. Anteshwar was
elder to accused No.1. When he saw accused No.1
brandishing, he ought to have called witness No.9 back to
the van and he ought to have left the place. He ought to
have realized that accused No.1 was not in proper frame
of mind to listen his conciliatory words. But on his own
he thought it fit that he should get down from the van.
The moment he got down from the van, accused No.1
probably took that action as an attacking posture. He
probably felt further panicked. It is in this situation
we have appreciate as what happened thereafter. Accused
No.1 then rushed to the Anteshwar and before anything
could happen between them, he stabbed him. After this
stab other two witnesses namely Amrut and Ashok probably
thought that they should get down from the van and
intervene. They probably thought they should stop
accused No.1 from continuing his attack or/and to help
Anteshwar who had already sustained injury. In such
situation, it was more likely that they would try to stop
accused No.1's attack. In order to stop accused No.1,
they would go near him and catch his weapon wielding
hand. Had they attempted to do so there would have been
a scuffle. In such scuffle they could have sustained
injuries. They did sustain such injuries but were
superficial ones. This indicates that accused No.1 most
( 34 ) criapl69.00
probably caused them such injuries in the scuffle. The
accused No.1 did not cause further injuries.
38. What happened thereafter according to the
witnesses is further noteworthy. Witness Ashok took
charge of drivers seat and could also push Anteshwar on
the seat next to him. In the mean time even witness No.9
boarded the van. The prosecution witnesses are not
stating as to what at that time accused No.1 was doing.
It was more probable that after an assault and seeing
Anteshwar's in injured condition and the others witnesses
trying to escape, the accused No.1 stopped his attack. It
is at this time the right of private defence stopped
continuing.
Point No. 2:-
39. Use of excessive force is not permissible, as
per the provision of Section 99. We held above that
picking up a knife like weapon at the time of incident
after apprehension leading to panic was justifiable. The
question is whether accused No.1 was justified in using
such weapon for causing stab injury to the person whom he
thought to be his assailant. It can be said that
Anteshwar had no reason to get down from the maruti van.
The moment he got down from the maruti van, he created
( 35 ) criapl69.00
impression in the mind of accused No.1 that he had got
down from the maruti van in order to launch to counter
attack. There is nothing on record to indicate that
Anteshwar had any weapon. Yet considering the age
difference between accused No.1 and Anteshwar and a
physique of Anteshwar, it can be said that accused No.1
felt apprehended and to stop him from launching his
assault, he preempted stab which unfortunately caused
victim's death.
40. The question would still arise as to whether
despite of apprehension of attack and possibility of
getting hurt due to beating by Anteshwar and his
companions, the accused No.1 used excessive force than
was necessary? Accused No.1 had many other ways to
protect himself. He would have simply closed the door of
his shop or he could have talked to Anteshwar and could
have convinced him that whatever he had done earlier in
the day was not culpable etc. On the other hand he could
have adopted defensive approach by begging pardon of
Anteshwar and his companions. But we must also keep in
mind principles regarding right of private defence laid
down by Supreme Court in case of Darshan Sing Vs State
of Punjab and another (supra).
41. In this case accused No.1 had not taken specific
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defence that he acted in private defence. He took a
defence that when he came out of the shop he saw Rafiq
Khan, Anteshwar and other occupants standing in front of
his shop. He suggested that all of them launched assault
on him due to which he sat down protecting his head and
therefore could not see what happened thereafter. He
suggested that thereafter some unknown persons came and
assaulted Anteshwar and others. We do not find this
defence truthful. We have already recorded our findings
that accused No.1 apprehended that he would be assaulted
by Anteshwar and others, and that he had no time to call
for help and that he therefore was entitled to use force
to protect his person. We have also given a finding that
accused No.1 due to his inexperience, age of 19 years got
panicked, picked up a sharp edge weapon and came out from
the shop. He probably thought that aggression could be a
better defence. He might not have acted even without
thinking as to what would be the consequences of his
action. We are not inclined to discuss as to whether his
conduct was good or bad. But in a situation we hold that
his conduct was permissible in law. He was justified in
picking up a weapon and pointing it out to his possible
assailant. His case thus fell in Clause-II Secondly of
Section 100 of Indian Penal Code. He apprehended that
grievous hurt would be caused him if Anteshwar and others
had launched attack on him.
( 37 ) criapl69.00
42. As quoted above now law is settled that if the
accused does not plead self defence it is still open to
the Court to examine evidence and consider even rather
belatedly a plea of self defence on the basis of
evidence. The learned Senior counsel for the appellants
placed reliance on point No.10 quoted above from the
Supreme Court judgment. He argued that his client was in
eminent and reasonable danger of losing at least his limb
was entitled to use force in self defence. While doing so
his client was even entitled to cause death of his
assailant. In our view, this argument is available to the
accused No.1 only if he could show that the force he used
was not disproportionate to the eminent danger. The
burden to show this was on accused No.1. He made no
positive attempt to indicate this.
43. As said above he took, if not false but
incomplete and weak defence. Had he taken a bold defence
by entering into witness box and stating as to why he
panicked, frightened and picked up a deadly weapon, he
could have explained it. This was in his special
knowledge alone. He could have also deposed as to why he
targeted Anteshwar in particular and at what point of
time. Whether he attacked him while he (Anteshwar) was
getting down from the van. Or whether Anteshwar had got
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down from the van and had started walking towards him?
44. In view of a particular defence already taken
even the cross-examiner was unable to bring on record
this aspects.
45. We are therefore inclined to hold that accused
No.1 had no justification for using such force with which
he used while stabbing Anteshwar. In other words he
could have caused lessor injury to deter Anteshwar from
coming towards him. We hold that accused No.1 had
intention on his part which was likely to cause
Anteshwar's death. But he had no such intention to cause
his death.
46. The question now arises as to - what is the
culpability of accused No.1? A similar situation arose
before the Supreme Court of India in the case of
Yogendra Morarji Vs State of Gujrat (1980)2 Supreme
Court Cases 218
.
This judgment delivered by three Judges
Bench of the Supreme Court of India examined similar case
of right of private defence of body. The question before
the Supreme Court of India was when the right of private
defence of body accrues, when it extends to voluntarily
causing death and when such causing of death is an excess
of right.
( 39 ) criapl69.00
47. The facts of the case were quite peculiar and
somewhat similar to the facts of the present case. The
accused was a businessman who had purchased a piece of
land and had employed deceased and few others for digging
well. A dispute regarding payments due culminated in the
workers collectively approaching the accused when he
visited the village and was staying in his Manager's
house. In the course of their discussion a hot
altercation ensued. The accused refused to pay and asked
the workers to leave his house. This enraged the deceased
and his companion workers. They left the house of the
accused but lingered on out side near the field. When the
accused started his journey at about 9.00 p.m. the
deceased and his companions raised their hands signaling
him to stop the vehicle. The accused either stopped or
slowed down the vehicle and put out his hand which held a
revolver. He fired three rounds in quick succession
without aiming at any particular person. The last fire
hit the deceased causing his death. Subsequently the
accused surrendered and thereafter he was tried. The
Supreme Court observed in that the principle question
was whether death was caused in exercise of right of
private defence. The Supreme Court observed thus:
"The Code excepts from the operation of its
penal clauses" large classes of acts done in
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good faith for the purpose of repelling
unlawful aggression but this right has been
regulated and circumscribed by several
principles and limitations". The most salient
of them concerning the defence of body are as
under:-
i] Firstly, there is no right of private
defence against an act which is not in itself
an offence under the Code;
ii] Secondly, the right commences as soon
as and not before a reasonable apprehension of
danger to the body arises from an attempt or
threat to commit some offence although the
offence may not have been committed and it is
coterminous with the duration of such
apprehension (Section 102). That is to say, the
right avails only against a danger imminent,
present and real;
iii] Thirdly, it is a defensive and not a
punitive or retributive right. Consequently, in
no case the right extends to the inflicting of
more harm than it is necessary to inflict for
the purpose of the defence (Section 99). In
other words, the injury which is inflicted by
the person exercising the right should be
commensurate with the injury with which he is
threatened. At the same time, it is difficult
to except from a person exercising this right
in good faith, to weigh "with golden scales"
what maximum amount of force is necessary to
keep within the right. Every reasonable
allowance should be made for the bonafide
defender "if he with the instinct of self-
preservation strong upon him, pursues his
defence a little further than may be strictly
necessary in the circumstances to avert the
( 41 ) criapl69.00
attack". It would be wholly unrealistic to
except of a person under assault, to modulate
his defence step by step according to the
attack;
iv] Fourthly, the right extends to the
killing of the actual or potential assailant
when there is a reasonable and imminent
apprehension of the atrocious crimes enumerated
in the six clauses of Section 100. For our
purpose, only the first two clauses of Section
100 are relevant. The combined effect of these
two clauses is that taking the life of the
assailant would be justified on the plea of
private defence; if the assault causes
reasonable apprehension of death or grievous
hurt to the person exercising the right. In
other words, a person who is an imminent and
reasonable danger of losing his life or limb
may in the exercise of right of self defence
inflict any harm, even extending to death on
his assailant either when the assault is
attempted or directly threatened. This
principle is also subject to the preceding rule
that the harm or death inflicted to avert the
danger is not substantially disproportionate to
and incommensurate with the quality and
character of the perilous act or threat
intended to be repelled;
v] Fifthly, there must be no safe or
reasonable mode of escape by retreat, for the
person confronted with an impending peril to
life or of grave bodily harm, except by
inflicting death on the assailant;
vi] Sixthly, the right being, in essence,
a defensive right, does not accrue and avail
where there is "time to have recourse to the
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protection of the public authorities"
(Section99)."
48. The Supreme Court then discussed the facts and
came to the following conclusion :
49. It was not improbable that after deceased and
his companions were turned out house of the accused,
these aggrieved persons stood and lingered on for
sometime outside his house and could have vented their
indignation by abusing and threatening to teach a lesson.
The deceased and his companions attempted to intervene
and stop the vehicle of the accused and that they were
not peaceful. They had a common object of recovery of
money from the accused, they were likely to put him in
fear of physical harm. As soon as the deceased and his
companions raised their hands to stop the vehicle of the
accused, it was not unreasonable for the accused to
apprehend mere physical harm at their hands. So, right of
private defence of the body accrued to the accused as
provided under Section 102 of the Indian Penal Code. The
deceased and his companions were not carrying any arms.
Even though they had pelted stones on the vehicle of the
accused the inmates of the car could not reasonably
apprehend death or grievous hurt as a result of stone
throwing. When the deceased and his companions encircled
the vehicle, the accused could have accelerated his
( 43 ) criapl69.00
vehicle and escaped. The accused should not have fired
all three rounds in quick succession, he should have
waited for some time after one round fire to see the
effect on the persons attempting to encircle him. But
mere fact that he did not assess the necessity of fire
each successive shot does not negate good faith on his
part in exercise of right because a persons placed in
peril is not expected to weigh in golden scales what
amount of force is necessary to keep within right. Thus
this is a case in which the accused had exceeded his
limit of right of private defence available to him under
Section 101 of the Indian Penal Code. The Supreme Court
of India upheld the judgment of High Court that the
offence committed by the accused was under Section 304
Part-II of Indian Penal Code and did not amount to murder
under any of the four clauses of the definition given in
Section 300 of the Indian Penal Code. The Supreme Court
also reduced the length of sentence to six months
rigorous imprisonment and imposed fine of Rs.10,000/-,
with default clause. Fine, if paid, was made payable to
the widow of the deceased.
50. Following the judgment of the Supreme Court we hold
that in this case also the accused exceeded his right of
private defence when he stabbed the victim. We also hold
that this case would not fall within four clauses of the
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definition given in Section 300 of the Indian Penal Code
and therefore we hold that accused No.1 should be
convicted for the offence punishable under Section 304
Part-II of the Indian Penal Code. We are applying Part-II
of Section 304 of the Indian Penal Code mainly because
the accused had no intention to cause death but had
knowledge that his act might cause death of the victim.
We set aside his conviction for the offence punishable
under Section 302 of the Indian Penal Code.
51. We now decide as to what sentence should be
imposed upon accused No.1. There are some mitigating
circumstance in favour of the accused. He was about 20
years old at the time of incident. He had no criminal
antecedents. The appeal remained pending for more than 15
years. Now in the mean time we are told the accused has
completed his education and has started legal practice.
He is also married and having kids. In these
circumstances the following order is would suffice the
ends of justice.
ORDER
i] Criminal Appeal No.69 of 2000
and Criminal Appeal No.185 of 2000 are
partly allowed.
( 45 ) criapl69.00
ii] Conviction of accused No.1-
Gattya @ Laxmikant S/o. Chandrakant
Kotalwar u/s 324 and 302 of the Indian
Penal Code is set aside. He is
convicted under Section 304, Part-II
of the Indian Penal Code and sentenced
to suffer rigorous imprisonment for
three years with a fine of Rs.50,000/-
(Rupees Fifty Thousand), in default,
he shall suffer rigorous imprisonment
for one year. The fine amount shall be
deposited within one month from today.
iii] The fine amount, if
deposited, shall be paid as
compensation to the widow of the
deceased by name Sunita Anteshwar Hude
or to the immediate legal heirs of
deceased Anteshwar.
iv] Accused No.1-Gattya @
Laxmikant S/o. Chandrakant Kotalwar
shall surrender to serve out the
remaining sentence within two weeks
from today.
( 46 ) criapl69.00
v] The bail bonds of the
remaining accused shall stand
canceled.
vi] Criminal Revision Application
No.86 of 2000 stands dismissed.
vii] Criminal Application No.990
of 2016 in Criminal Appeal No.185 of
2000 does not survive and disposed of
accordingly.
Sd/- Sd/-
[INDIRA K. JAIN, J.] [A.V. NIRGUDE, J.]
VishalK/criapl69.00
//AUTHENTICATED COPY//
Vishal R. Kamble
Clerk
