Abhang Ramu Holkar vs The State Of Maharashtra
2017 Latest Caselaw 2572 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE SIDE JURISDICTION

                                 CRIMINAL APPEAL NO. 640 OF 1998

Abhang Ramu Holkar                                                                                        ... Appellant
R/o : Mukkam : Kidebisri
Post: Nagaj, Taluka : Sangola,
District : Solapur.

           Vs.

The State of Maharashtra                                                                                  ... Respondent


Mr. M. G. Shukla, Advocate for the Appellant.
Mr. S. R. Agarkar APP for the State.

                                CORAM: SMT.SADHANA S.JADHAV, J.
                                DATED : MAY 18, 2017.

JUDGMENT:

1) Appellant herein is convicted for offence punishable under

section 304 Part-II of the Indian Penal Code and is sentenced to suffer

rigorous imprisonment for 5 years vide Judgment and Order dated 25/06/1998

by Additional Sessions Judge, Greater Bombay in Sessions Case No. 280 of

1994.

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2)                     Such of the facts necessary for the decision of this appeal are as

follows:



(i)                    Appellant herein was working as Police Constable and was

attached to MIDC Police Station. On 29/10/1993 Appellant was assigned

patrolling duty.

(ii) One Manoj Shivsagar Dubey plied an autorickshaw bearing No.

MH-039178 to earn his living. On 29/10/1993 he had dropped a passenger at

Ghatkoper Railway Station. At about 11.45 pm, when he was waiting in the

queue near Andheri Railway Station, one passenger had boarded his rickshaw

who was to be taken to Taksheela Apartment Mahakali Gumpha Road,

Andheri East. At about 12.00 midnight, he reached Taksheela Apartment and

awaited prospective passenger. He was proceeding towards Holy Spirit

Hospital. At 12.00 mid night, two persons had boarded his rickshaw and they

wanted to go to Holy Spirit Hospital. When the rickshaw reached Holy Spirit

Hospital, the said passengers had asked him to take back the rickshaw near

Shashikant Hotel. When they reached Shashikant Hotel, he was again asked

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to drive back to Holy Spirit Hospital. In this way, he was made to ply the

rickshaw between Shashikant Hotel and Holy Spirit for quite sometime.

Finally, he stopped his rickshaw near Archana Smriti Building i.e. gate of

Holy Spirit Hospital. Since he halted, the passengers were annoyed and they

started abusing the rickshaw driver. One of the passenger namely Shivaji

Kurade (deceased) had entered into an altercation with him. The helpless

auto-rickshaw driver cried for help.

(iii) The Police Constable on duty, upon hearing the cries rushed to

the spot to rescue the helpless auto-rickshaw driver. The auto-rickshaw driver

was requesting the police to save him. Thereupon, the Police Constable

requested the passengers not to quarrel with the driver, however, the said

passengers including Shivaji Kurade were in no mood to listen to police

officer on duty and continued to quarrel. That Shivaji Kurade caught hold of

the police. The Police Constable then had asked Shivaji Kurade to release his

hand and not make any further advances, however, Shivaji continued to

proceed towards the accused and mounted pressure upon him. The Police

Constable kept on warning Shivaji. Shivaji had released the hand of Manoj

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Dubey, but continued to march towards the police forcing him to walk in a

reverse position. That the police who was on duty was constrained to open

fire. Shivaji Kurade sustained bullet injury and fell on the ground. The traffic

was halted and thereafter, another jeep on patrolling duty had reached the

spot.

(iv) They had taken the injured in the same auto-rickshaw to Cooper

Hospital. The injured was declared dead. Thereafter, auto-rickshaw driver

namely Manoj Shivsagar Dubey lodged a report at the police station. F.I.R.

was filed at about 1.50 am, on the basis of which, Crime No. 331 of 1993 was

registered against the present Appellant under section 302 of the Indian Penal

Code.

(v) Investigation was completed and charge-sheet was filed against

the Accused/Appellant on 18/02/1994. Prosecution has examined 7 witnesses

to bring home the guilt of the accused.

3)                     P.W. 1 Manoj Shivsagar Dubey is the Complainant. He has



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deposed before the Court that he plies auto-rickshaw to earn his living. The

registration number of the auto-rickshaw is MH 03 - 9178. That on

29/10/1993, he had plied his rickshaw to Ghatkopar Railway Station from his

house. Auto-rickshaw was engaged by a person who wanted to go to Andheri

East Railway Station. He dropped the said passenger at Andheri Railway

Station at about 11.45 pm. Soon thereafter, one person boarded the rickshaw

and informed that he wanted to go to Taksheela Apartment, Andheri East. He

reached there about 12.00 midnight. After he dropped the said passenger, he

had parked his rickshaw opposite Takshashila Apartment waiting for

prospective customer. After 10 minutes, he did not get any customer and

therefore, he started proceeding towards his house. When he reached near

Shashikant hotel, two persons had signalled him. Both the persons boarded

his rickshaw. Upon making a query about the destination, they asked him to

take straight in the direction of Mahakali Road. When the rickshaw reached

near Holy Spirit Hospital, he was asked to take the rickshaw up to Shashikant

Hotel again. The customers had asked him to take 'U' turn. In this way he was

made to ply his rickshaw from Shashikant Hotel to Holy Spirit Hospital more

than 4 times. Finally, P.W. 1 inquired both of them as to where exactly they

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wished to go. He further told them that he was out of his house since 4 pm

and was hungry. One of the two passengers caught hold of the collar of P.W. 1

and pulled him behind. Consequently, he had to stop his auto-rickshaw. One

of them alighted from the rickshaw and dragged him by holding his shirt. The

said passenger had also assaulted rickshaw driver. P.W. 1 has further stated

that a constable, who was standing approximately at a distance of 50 ft, was

called by him. The said constable asked the passengers as to why the driver is

being assaulted and also asked him to release the rickshaw driver. That the

said passengers were adamant and instead of obeying the police personnel,

they asked him to go and take his position and not interfere with them. That

the said person also started abusing the Police Constable. At that stage, Police

Constable had put in best of efforts to rescue the rickshaw driver, however,

when the Police Constable came near the rickshaw driver to rescue him, the

said passengers had released P.W. 1 and had caught hold of Police Constable.

The Police Constable by giving a jerk had stepped back. At that stage, the

person abusing the Police Constable started marching towards him. The

Constable warned the said person that in the eventuality, he tried to

manhandle him, he would open fire. The Police Constable had reiterated the

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warnings, however, it did not deter the passenger from proceeding towards the

Police Constable.

4) P.W. 1 has further deposed that the injured was taken by the

police to Cooper Hospital in his rickshaw. Upon examination, doctors had

declared him dead. The police from MIDC Police Station had reached Cooper

Hospital and inquired with P.W. 1 and thereafter, recorded his statement on

the basis of which crime no. 339 of 1993 was registered against the accused

for offence punishable under section 302 of the Indian Penal Code. The

Complainant i.e. P.W. 1 has proved the contents of the F.I.R. which is marked

at Exhibit 10. Witness has proved the articles which were seized in the course

of investigation.

5) In the cross-examination, eye witness has deposed that the

incident had lasted for about 20 minutes. That the deceased was abusing the

accused. It is also admitted that the accused had warned the deceased that he

was on duty. He further deposed in the cross-examination that he was

harassed by the said two passengers and after one of the passenger caught

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hold of his collar he had stopped the rickshaw. That both the passengers were

behaving arrogantly with him. The witness was not very sure as to whether

the said passengers were under the influence of alcohol. It is reiterated that

the passengers were making a fool out of P.W. 1 as they did not wish to go

anywhere but kept on asking the auto-rickshaw driver to take 'U' turn from

Shashikant Hotel to Holy Spirit Hospital and vice-versa. P.W. 1 has admitted

in the cross-examination that when the alleged incident took place, people had

gathered but nobody intervened. P.W. 1 has further stated that physical

constitution of both passengers was huge and that they could over power him.

One of the passenger who had fled from the spot appeared to be Goonda. That

both passengers were so strong that the rickshaw driver did not attempt to

pacify or intervene between the deceased and police constable as he was

scared because of the strong and stout personality of the deceased and

moreover the behaviour of the deceased with the said Police Constable had

created fear in his mind. According to P.W. 1, deceased appeared to be

dangerous person, especially when he was proceeding towards the accused,

even after the accused was warning him that he should not charge towards

him or else he would be constrained to open fire. The deceased was adamant

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with the Police Constable and so was the person who had fled from the spot.

P.W. 1 had gathered from the behaviour of both passengers that they had no

regard for law nor fear and respect for the police personnels. P.W. 1 has

accordingly admitted that his life was saved only because of the intervention

of the accused or else the deceased and his associate would have eliminated

him. P.W. 1 apprehended danger to his life at the hands of the deceased and

the person who had fled from the spot.

6) While narrating the incident before the Court, P.W. 1 has further

stated that the deceased was aggressive while he was talking with the accused

and that the accused was being harassed, aided by his associate. He has also

specifically stated that the incident of firing would not have taken place, if

both the passengers had not behaved with the police in an adamant way.

According to P.W. 1 it was apparent that both passengers bent upon assaulting

the accused and that the deceased had given 3-4 fist blows to the accused.

According to P.W. 1, after deceased has given 2 fist blows to the accused and

had behaved arrogantly, after warning, accused had opened fire from his

service rifle. P.W. 1 has reiterated, voluntarily, more than twice that had it not

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been for the accused's intervention, his life was endangered at the hands of the

deceased and his associate.

7) Upon perusal of the sterling testimony of the Complainant P.W.1,

it is clear that -

(i) the accused had intervened in order to save the life of the witness

at the hands of the deceased and his associate.

(ii) The accused was discharging his official duty.

(iii) That the deceased was unknown to him. The accused had warned

the deceased of dire consequences, in the eventuality that he continue to

assault him.

(iv) It was further apparent that the deceased was restraining the

accused from discharging his official duty and therefore, the deceased was

liable for an offence punishable under section 353 and 332 of the Indian Penal

Code.

(v) The deceased had given 2-3 fist blows to the accused with an

intention to prevent and deter him from discharging his official duty which

was specifically to safeguard the interest of the general public and safeguard

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their life and liberty.

8) P.W. 2 Sayyed Yasin is the Panch for seizure of auto-rickshaw.

He was in Cooper Hospital as he was attending his brother. He has

specifically stated that some blood stains were noticed on rear seat of that

auto-rickshaw. The blood samples were collected. The seizure Panchanama is

at Exhibit 12. Needless to reiterate that the injured was carried to the hospital

in the said auto-rickshaw. P.W. 2 is also a Panch for the seizure of the clothes

of the deceased and the inquest Panchanama which is at Exhibit 13. Clothes

of the deceased is at Exhibit 14.

9) P.W. 3 Baliram Kamble is the Panch for the seizure of the rifle

and the magazine which is at Exhibit 17.

10) Since the incident is admitted, it would not be necessary to

discuss the evidence as far as the seizure Panchanama of the articles are

concerned.

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11)                    P.W. 4 Vilas Deshmukh is the Police Constable attached to MIDC

Police Station, Andheri. He has deposed before the Court that on 29/10/1993,

he was on duty since 5.00 p.m. to 09.00 a.m. on 30/10/1993. That on

29/10/1993 at about 11.30 p.m., he received a telephonic message that there is

altercation (ekjkekjh) in Kamalistan Studio. He was asked by Police Officer

Londhe to go along with Police Constable Sonhavare and Nalawade to

Kamalistan Studio and bring the miscreants to the police station. He along

with other two constables had proceeded towards the place of incident in the

police jeep. They reached Kamalistan Studio at about 11.45 p.m. The

miscreants had fled from the spot, however, the injured was present at the

spot of incident. Upon inquiry, the injured had disclosed that he was assaulted

by two persons. The injured had disclosed his name as Sudhir Bhaskar Dethe.

P.W. 4 and other constables then proceeded towards Mahakali road. When

they were passing through Shashikant Hotel on Mahakali Road, they noticed

that there was traffic jam and therefore, suspected that some untoward

incident must have happened and therefore, the driver had taken the jeep in

the said direction. When they reached Holy Spirit Hospital, they saw the

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accused standing with his rifle in the centre of the road. Constable Holkar was

on night duty at Mahakali road on that day. Constable Holkar had voluntarily

disclosed that he had injured the person lying on the road with his service

rifle. Upon further inquiry, accused had disclosed that the injured had caught

hold of his hand and pulled him and therefore, he was constrained to open

fire. Jeep driver Narute had requested the accused to hand over the rifle,

however, he refused to hand it over. Thereafter, P.W. 4 and the rickshaw driver

i.e. P.W. 1 had taken the injured to the Cooper Hospital in the same auto-

rickshaw. That the injured was declared dead at admission. P.W. 4 passed on

the message to MIDC Police Station. Upon taking search of the deceased in

order to ascertain his identity, they found driving licence and payment slip in

the right pocket of the pant of the deceased. The deceased was identified as

Shivaji Kurade. Thereafter, they had followed the procedure for the purpose

of investigation.

12) It is admitted in the cross-examination that the incident had taken

place 5-10 minutes before the police jeep reached there. P.W. 4 has

accordingly admitted that on 20/10/1993, there was bomb blast in the

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jurisdiction of MIDC Police Station, Andheri and therefore, accused was

given patrolling duty at Mahakali Road during the night of 29/10/1993. The

place of incident was at a distance of 200 feet from Shashikant Hotel. It is

further elicited in the cross-examination that when P.W. 4 had taken the

injured to Cooper Hospital, he had realized that the injured was under the

influence of alcohol because the smell of alcohol was emitting from his

mouth.

13) P.W. 5 Dilip Narute was working as Police Naik and was

attached to MIDC Police Station, Andheri as Police Driver. He has deposed

before the Court that when he stopped the jeep, the said constable (Accused)

told him that two passengers who had come from auto-rickshaw caught hold

of his hand and were manhandling him and in the said scuffle, one of the

passenger got injured. P.W. 5 along with another person had taken the injured

in auto-rickshaw. He had taken the rifle from the hand of constable and asked

him to board the jeep and then had proceeded to MIDC Police Station.

14)                    P.W. 5 has further stated that at the police station, they had



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recovered one empty bullet and 4 live cartridges from the said rifle. It is

further admitted in the cross-examination that due to tense atmosphere created

due to bomb blast, within the jurisdiction of MIDC Police Station, Andheri,

accused was given a point duty at Mahakali Road on the relevant day.

15) P.W. 6 Dr. Avinash Pujari was attached to JJ Coroner's Court on

30/10/1993. He had performed autopsy on the dead body of Shivaji Kurade

on 30/10/1993. The deceased had sustained three injuries:

"1. Lacerated wound on face - left side forehead 1.0 cm away from

midline - on left eyebrow 2.0 cm X 1.0 cm. bone deep.

2. Firearm wound of entry on chest front right 14.0 cm below

medial end of right clavicle 3.0 cm. from midline 10.0 cm medial to

right nipple 0.7 cm. circular with abraded collar of 0.2 cm. encircling

with dried blood cloth within no tattooing or blackening around.

3. Firearm wound of exit on back of chest right side 19.0 cm

below shoulder line 5.0 from midline 4.0 cm X 2.5 cm oblique with a

everted margines.

4. Abrasion on left knee - centre of patella 1 cm X 1.0 cm.

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Cause of death was haemorrhage due to firearm injury involving

vital organs".

16) All injuries are corresponding to the external injury no. 2. That

injury no. 2 corresponding to internal injuries is sufficient to cause death in

the ordinary course of nature. Post-mortem report is at Exhibit 22.

17) In the cross-examination, doctor has stated that injury no. 1 could

be caused by hard and blunt object. Injury no. 4 is possible in a scuffle. Injury

no. 1 could also be caused by butt of the rifle.

18) The substantive evidence of the doctor makes it clear that there

was rather a scuffle/altercation before the fire was opened. It is further clear

that that accused had tried to restrain the deceased from causing any harm to

him by assaulting with the butt end of the rifle and also by attempting to over

power him, however, the deceased had overpowered him when the accused

was armed with the rifle and the trigger was pulled. It therefore, cannot be

said that the accused had pulled the trigger at the first given instance, but had

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made every attempt to restrain the deceased. This has to be read inconsonance

with the evidence of P.W. 1 who has specifically stated that but for the

intervention of the accused, he would not have been saved.

19) P.W. 7 Mangesh Masurkar was attached to MIDC Police Station

on 29/10/1993. He was officiating as Station House Officer. Police Constable

Deshmukh had informed P.W. 7 that the accused who was Police Constable

on duty had opened fire thereby injuring Shivaji Kurade. The injured was

taken to the hospital and on admission, doctor had declared him dead. P.W. 7

had accordingly taken an entry in the station diary and had reached Cooper

Hospital with his staff. He had recorded the statement of P.W. 1 i.e. Manoj

Dubey and on the basis of his statement, crime was registered against the

accused. The said report which is at Exhibit 10 is in the handwriting of P.W. 7.

He had taken further steps in the course of investigation i.e. he had recorded

the inquest panchanama, seized the clothes of the deceased, driving licence

which was found on the person of deceased, had collected the blood found in

the auto-rickshaw. He had conducted the scene of offence Panchanama. Spot

Panchanama is at Exhibit 24. API Londhe who had accompanied P.W. 7 had

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seized the rifle from the accused as per Exhibit 17. On 30/10/1993, he had

recorded statement of the wife of the deceased and his brother Khandu

Kurade. Crime no. 339 of 1993 was registered against the accused. He had

sent the seized articles to the Forensic Science Laboratory and had received

the report. P.W. 7, after conclusion of investigation, had filed charge-sheet on

18/01/1994.

20) In the cross-examination, witness has categorically stated that

rifle was provided to the Police Constable on duty because of prelude to the

incident in the sense that there was bomb blast in Mumbai. The accused was

deputed on a bit duty with rifle to maintain law and order and to take extra

precaution. There is an entry in the register regarding issuance of rifle to the

accused. P.W. 7 was at Cooper Hospital till at about 5 p.m. C.A. report at

Exh. 28 would show that article 5 is the blood sample of the deceased Shivaji

Kurade. FSL report shows that Exh. 5 contains 101 miligrams Ethyl Alcohol

per 100 millilitres. This would establish that the deceased was under the

influence of alcohol.

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21)                     Upon perusal of the evidence, the facts established by the

prosecution can be summarised as follows :

(i)                     In October 1993 there were security issues due to bomb blasts

more particularly in the month of October i.e. at the time when the incident

had occurred.

(ii) That the accused herein was posted at MIDC Police Station,

Andheri. He was issued a rifle as there was threat perception to the peace

and liberty and security of the citizens.

(iii) Two passengers including the deceased had boarded the auto-

rickshaw of P.W.1 at about 11 p.m.

(iv) That P.W. 1 was made to ply the rickshaw between Shashikant

Hotel and Cooper Hospital without any purpose.

(v) That the passengers including the deceased were under the

influence of alcohol.

(vi) That both the passengers were abusing and assaulting P.W.1.

(vii) There was an altercation between P.W.1 and the said passengers.

(viii) P.W.1 had spotted the police on duty, he had apprehended threat

perception and therefore, gave call to the police to rescue him from the

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clutches of the passengers.

(ix) The accused was performing his duty and had intervened.

(x) He had initially requested the passengers not to harass P.W.1.

The passengers were adamant. They not only abused and assaulted P.W.1 but

had charged towards the accused who was on duty, they had abused him and

had entered into an altercation with the accused.

(xi) That the accused had warned the miscreants that they shall not

march further or manhandle him or else they would be subjected to dire

consequences.

(xii) That there was a scuffle between the deceased and the accused

and at that stage the rifle was fired.

22) All this would lead to inevitable conclusion that the deceased

was unknown to the accused as well as P.W. 1 whom the accused had

attempted to save. There was no malice nor any intention to cause death of

the deceased. The only inference that can be drawn on the basis of the

evidence adduced by the prosecution is that the deceased had caused grave

and sudden provocation to the accused who was discharging his duty of

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maintaining law and order in the said area. It is also apparent on the face of

the record that the accused had not sought provocation or had not voluntarily

provoked the deceased. It is therefore, apparent that the act of the accused

would fall under the exception 3 to Section 300 of the Indian Penal Code

which reads as follows :

"Exception 3.--Culpable homicide is not murder if the offender, being

a public servant or aiding a public servant acting for the advancement

of public justice, exceeds the powers given to him by law, and causes

death by doing an act which he, in good faith, believes to be lawful and

necessary for the due discharge of his duty as such public servant and

without ill-will towards the person whose death is caused."

23) It is also admitted position that the accused had not taken undue

advantage of the situation. Moreover, the evidence on record which indicates

that P.W. 1 had categorically stated that the deceased appeared to be a

dangerous person when he was proceeding towards the accused even if the

accused was asking him not to come towards him, otherwise he would open

fire. He has further stated that he was saved only because the accused had

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come there, otherwise, there was danger to his life at the hands of the

deceased and the running passenger. This part of the evidence would further

establish that the act of the accused is covered under the first clause of

Section 97 of the Indian Penal Code which reads as follows :

"97. Right of private defence of the body and of property.--Every person has a right, subject to the restrictions contained in section 99, to defend--

(First) -- His own body, and the body of any other person, against any offence affecting the human body;

(Second)- Not applicable.

24) In the present case, there was imminent danger to P.W. 1 and

also to the Accused and therefore, it was incumbent upon the police/accused

to protect the rickshaw driver as well as himself. In the case of Ranjitham

v/s. Basavaraj reported in (2011) 13 SCALE 221, the Hon'ble Apex Court

has observed that -

"Right of private defence cannot be weighed in a golden scale and even in absence of physical injury, in a given case, such a right may be upheld by the court provided there is reasonable apprehension of life or reasonable apprehension of a grievous hurt to a person."

25) The evidence on record clearly indicates that the accused himself

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despite being a police officer on duty had reasonable apprehension of

grievous hurt at the hands of the deceased.

26) It is also not incumbent upon the accused to raise a specific plea

of private defence. It is sufficient if on the basis of the evidence on record

the accused is able to demonstrate that there was an imminent danger to his

body and that the defence version is probable. The Court can on the basis of

the evidence on record read section 97 of the Indian Penal Code and give the

benefit thereof to the accused. In the present case, it also cannot be said that

there was time to take recourse to the protection of public authorities as the

act of the deceased was beyond the control. Upon seeing the police officer in

uniform armed with a rifle, the deceased had mounted assault upon him,

which clearly indicates that the deceased had no fear or respect for law or the

public servants. Moreover, the deceased had provoked the accused to take

preventive action. The accused had to take control of the situation, and in the

scuffle, at that moment, the incident of firing had taken place.

27)                    The Learned APP would submit that although the charge was



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under Section 302 of the Indian Penal Code, the learned Sessions Judge has

convicted the Appellant for the offence punishable under Section 304(II) of

the Indian Penal Code as he had no intention to kill but has full knowledge

that the consequence of the act of firing would be causing death and therefore,

it would be culpable homicidal not amounting to murder and that the

Appellant does not deserve any further leniency.

28) The learned Counsel for the Appellant has submitted that in the

present case, it would be necessary to consider the circumstances in which

the incident had occurred. It is also submitted that the Appellant had warned

the deceased of dire consequences. That it was the bounden duty of the

Appellant to save the life of rickshaw driver i.e. P.W. 1 as well as himself and

therefore, the case of the Appellant deserves to be considered under Section

102 of the Indian Penal Code and the Appellant would be entitled to an

acquittal.

29) As against this, the learned APP submits that there was no

specific plea of private defence before the trial Court and therefore, it would

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not be open for the accused to take the said plea.

30) At this stage, it would be appropriate to rely upon the Judgement

of the Hon'ble Apex Court in the Case of Moti Singh v/s. State of

Maharashtra reported in (2002) 9 SCC 494. The Hon'ble Apex Court has

observed as follows :

"Section 102 of the Indian Penal Code says that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or even a threat to commit any offence though the offence may not have been committed and the right continues as long as such apprehension of danger to the body continues. Section 100 of the Indian Penal Code confers the right of private defence of the body upto 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 acts as may reasonably cause the apprehension that grievous hurt be the consequence of such assault."

31) As far as the submission of the learned APP that no such plea

was taken before the trial Court, the Hon'ble Apex Court in the case of Moti

Singh(cited supra) has held that -

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"It would be quite unjust to deny such a right to the accused merely on the ground that he adopted a different line of defence.

If the evidence adduced by the prosecution would indicate that the accused were put under a situation where they could reasonably have apprehended grievous hurt even to one of them, it would be inequitable to deny the right of private defence to the accused merely on the ground that he has adopted a different plea during the trial. The crucial factor is not what the accused pleaded, but whether the accused had the cause to reasonably apprehend such danger. A different plea adopted by the accused would not foreclose the judicial consideration on the existence of such a situation."

32) In the facts of the case and on the basis of the evidence adduced by

the prosecution and discussed hereinabove, the appellant deserves to be

acquitted of the charge under section 304 II of the Indian Penal Code. The

accused cannot be held liable for culpable homicide as in the given situation

the act of the accused would be squarely covered under Section 102 of the

Indian Penal Code and therefore, the Appellant deserves to be acquitted.

33)                     Hence following order is passed :




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                                                              ORDER

(I)                     The Appeal is allowed.

(ii)                   The judgment and order dated 25th June, 1998, passed by the

Addl. Sessions Judge, Greater Mumbai, in Sessions Case No. 280 of 1994 is

hereby quashed and set aside.

(iii) The conviction of the Appellant and the sentence for the offence

punishable under Section 304 Part-II of the Indian Penal Code are hereby

quashed and set aside.

(iv) The Appellant stands acquitted of all the charges levelled against

him.

(v)                    Bail bonds stand cancelled.

(vi)                   In the eventuality that the fine amount is paid, the same shall be

refunded to the Appellant.

(vii)                  The Appeal stands disposed of.



                                                                      (SMT. SADHANA S. JADHAV, J.)




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