Sameer S/O Chandbhai Pathan vs The State Of Maharashtra
2022 Latest Caselaw 1577 Bom

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                                      -1-


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 220 OF 2021



 Sameer s/o Chandbhai Pathan
 Age 29 years, Occ. Labour,
 R/o. Mendhvan, Tq. Sangamner                  ...Appellant
 District Ahmednagar                           (Ori. accused No.1)

          versus


 1.       The State of Maharashtra
          Through Police Inspector
          Sangamner Taluka Police
          Station, Tq. Sangamner
          District Ahmednagar

 2.       Sopan Ramchandra Bade
          Age 66 years, Occ. Agriculture
          R/o. Mendhvan, Tq. Sangamner
          District Ahmednagar                  ...Respondents


                                     .....
 Mr. K. N. Shermale, advocate for the appellant
 Mr. S. J. Salgare, A.P.P. for respondent No.1 State
 Mr. S. K. Shinde, advocate for respondent No.2
                                   .....

                                     CORAM : V. K. JADHAV AND
                                             SANDIPKUMAR C. MORE, JJ.

Date of Reserving the Judgment : 18.01.2022

Date of pronouncing the Judgment : 16.02.2022

JUDGMENT (PER V.K. JADHAV, J.) :-

1. This appeal is directed against the judgment and order of

conviction dated 15.3.2021 passed by the Additional Sessions

Judge, Sangamner in Sessions Case No. 37 of 2015.

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2. Brief facts giving rise to the prosecution case are as follows:-

a) The informant Chandrakant Bade is residing with his wife i.e.

accused No.3 Shubhangi and son Satyajeet in the house situated at

village Mendhvan, Tq. Sangamner, District Ahmednagar. Deceased

Somnath was real brother of the informant Chandrakant and son of

P.W.11 Sopan Bade. At the relevant time, deceased Somnath and

his father Sopan were residing in their farm house. As per the

prosecution story, there was love affair between appellant-accused

Sameer and accused No.3 Shubhangi. P.W. 1 Chandrakant had

seen and heard accused No.3 Shubhangi while talking with

appellant-accused Sameer on phone. Even P.W.1 Chandrakant had

disclosed the said fact to the parents of appellant-accused Sameer

and also warned co-accused No.3 Shubhangi for not making phone

calls to appellant-accused Sameer. Inspite of the same, appellant-

accused Sameer and accused No.3 Shubhangi used to meet and

make phone calls. Thus, four months prior to the incident, P.W.1

informant Chandrakant had lodged complaint Exh.33 to the police

station and even the police had given warning to appellant-accused

Sameer on that count. Since then the appellant-accused Sameer

was also threatening P.W.1 informant Chandrakant that he will finish

him.

b) The incident had taken place on 10.12.2014 at about 5.30 p.m.

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when P.W.1 Chandrakant Bade was proceeding towards Rajwada for

making payment to the labours. The appellant-accused Sameer was

seen standing near Marathi school. On seeing P.W.1 informant

Chandrakant, the appellant-accused Sameer started abusing him.

P.W.1 informant Chandrakant was having cash amount with him at

that time and therefore, he went to pay the money to the labours.

However, while returning after making payment of money, the

appellant-accused Sameer still was standing near the said Marathi

school. P.W.1 informant Chandrakant had questioned appellant-

accused Sameer as to whom he was abusing. The appellant-

accused Sameer replied that he was abusing to him. Even the

scuffle had taken place between them. P.W. 1 informant

Chandrakant thereupon called his brother deceased Somnath by

making mobile call. At about 6.30 p.m. deceased Somnath came

near Marathi school. The appellant-accused Sameer alongwith his

brother Akbar were standing near the hair cutting salon shop of

P.W.8 Dattu Kadam. Deceased Somnath had thus questioned the

appellant-accused Sameer as to why he was making calls to his

sister-in-law i.e. accused No.3 and also abusing P.W.1 informant

Chandrakant. Thereupon, the appellant-accused Sameer took a knife

from his pocket and gave blows of knife on the chest and hands of

deceased Somnath. Deceased Somnath was immediately taken to

Tambe Hospital and thereafter shifted to Government Rural Hospital,

Sangamner. However, he was declared dead on arrival.

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c) On the basis of complaint Exh.34 lodged by P.W.1

Chandrakant, crime No. 156 of 2014 came to be registered for the

offence punishable under Sections 302, 323, 504, 506 r.w. 34 of

I.P.C. P.W.16 P.I. Sanjay Bhamare took over investigation of the

crime. P.W.16 P.I. Sanjay Bhamare has visited the rural hospital,

examined dead body and immediately thereafter went to the spot at

about 10.30 p.m. The spot of incident was in front of one salon shop

of villager P.W.8 Dattu Kadam. In front, inside and at the entrance of

salon shop blood was lying. In front of salon shop one knife was also

lying. On the next day morning at about 7.00 to 8.00 a.m. he drew

inquest panchanama Exh.36 in presence of two panchas. In the

morning at 9.00 a.m. he again went to the spot and in presence of

panchas drew spot panchanama Exh.38. He has seized a knife and

also collected sample of blood from the spot of incident. On

11.12.2014 at about 4.00 p.m. the father of deceased Somnath

produced his clothes which were stained with blood. P.W.16 P.I.

Sanjay Bhamare has seized the said clothes under seizure

panchanama Exh.40. Article 8 and 9 before the court are the clothes

of father of deceased Somnath. Further, at the time of post mortem,

the clothes on the person of deceased Somnath were taken in the

custody and the same were also seized under panchanama Exh.42.

On 11.12.2014 at about 9.50 p.m. P.W.16 P.I. Bhamare has effected

the arrest of appellant-accused Sameer and accused Akbar by

drawing arrest panchanama Exh.50 and 84 respectively. Further, the

clothes wore by the co-accused Akbar at the time of his arrest were

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also seized under panchanama Exh.44. Articles 14 and 15 before

the court were the same. He had recorded the statements of

witnesses. On 15.12.2014 in presence of two panchas, the

appellant-accused Sameer made statement that he will show the

spot where he has concealed the clothes which he had wore at the

time of incident. Accordingly, memorandum panchanama Exh.47

was drawn and at the instance of the appellant-accused Sameer, his

clothes came to be sized as per recovery panchanama Exh.47. A

T-shirt article 16 and a jeans pant article 17 before the court were the

same. He has sent all seized articles to the Chemical Analyzer,

Nashik. It was transpired during investigation that because of illicit

relations between appellant-accused Sameer and co-accused

Shubhangi the incident had taken place. Even the complaint was

filed in that respect on earlier occasion. It also revealed during the

investigation that co-accused Shubhangi has insisted the accused

persons, including appellant-accused Sameer for commission of

murder of deceased Somnath. On completion of investigation he has

submitted charge sheet against the accused persons.

d) The learned Additional Sessions Judge, Sangamner had

framed charge against the accused persons. All accused pleaded not

guilty and claimed to be tried. The prosecution has examined in all

16 witnesses to substantiate the charges levelled against the

accused persons. After completion of prosecution evidence, the

statements of accused persons under Section 313 of Cr.P.C. came

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to be recorded. As per the defence of appellant-accused Sameer, on

the day of incident he was sitting in the salon shop. The deceased

Somnath with an intention to assault appellant-accused Sameer

came in the salon shop and assaulted appellant-accused Sameer

with knife. In the said attack, the appellant-accused Sameer has

sustained injuries on his stomach and on his hand. The other

accused persons have denied their presence and participation in the

alleged commission of crime.

e) The learned Additional Sessions Judge has convicted the

appellant-accused for the offence punishable under Section 302 of

I.P.C. and acquitted other accused persons for the charges levelled

against them. The operative part of the conviction order dated

15.3.2021 in Sessions Case No. 37 of 2015 is reproduced herein

below:-

"1. Accused No.1 Sameer Chandbhai Pathan, resident of Mendhvan, Tal. Sangamner, Dist. Ahmednagar, is hereby convicted for having committed an offence punishable under Section 302 of Indian Penal Code and acquitted from the offence punishable under Sections 323, 504, 506 read with Section 34 and Section 109 of I.P.C.

2. For the commission of an offence punishable under Section 302 of I.P.C. accused No.1 Sameer Chandbhai Pathan is sentenced to suffer rigorous imprisonment for

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life and to pay fine of Rs.50,000/- (Rs. Fifty Thousand only), in default to suffer six months simple imprisonment.

3. Out of the realized fine amount, an amount of Rs.40,000/- be given to P.W.11 Sopan Ramchandra Bade, i.e. father of deceased Somnath, by way of compensation as per Section 357 of Cr.P.C.

4. Accused No.1 Sameer Chandbhai Pathan is continuously in the custody for the purpose of investigation, inquiry and trial from 11.12.2014 and in case the appropriate Government want to utilize its power under Section 433 of Cr.P.C. for remission or commutation of the sentence in that case accused No.1 Sameer is entitled for set off as per Section 428 of Cr.P.C.

5. Accused No.2 Akbar Chandbhai Pathan and accused No.3 Shubhangi Chandrakant Bade are hereby acquitted from the offence punishable under Sections 302, 323, 504, 506 read with Section 34 and Section 109 of I.P.C.

6. Bail bonds of accused No.2 Akbar Chandbhai Pathan and accused No.3 Shubhangi Chandrakant Bade stand cancelled. However, their bail bonds executed under Section 437-A of Cr.P.C. will remain in force.

7. Muddemal property i.e. knife, clothes, blood samples, blood stained sand, sand without blood etc. i.e. Articles 1 to 18 are worthless, be destroyed after the period mentioned in para 73(d) of Chapter VI of the

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Criminal Manual, is over.

8. Copy of the judgment be given to accused No.1 Sameer Chandbhai Pathan free of cost and the concern clerk to take acknowledgment to that effect."

3. Learned counsel for the appellant submits that the prosecution

has examined P.W.1 informant Chandrakant Bade, P.W.11 Sopan

Bade i.e. father of deceased Somnath and P.W.8 Dattu Kadam

(owner of salon shop) as eye witnesses to the incident. P.W.1

Chandrakant and P.W.11 Sopan Bade are the highly interested

witnesses. P.W.11 Sopan is not an eye witness to the incident. He

has deposed in para 4 that when he reached at the door of salon

shop he saw that accused Akbar running away and he was followed

by appellant-accused Sameer. Learned counsel submits that both

the witnesses have contradicted each other on material points. The

evidence of P.W.1 Chandrakant suffers from material ommission and

contradictions. Evidence of P.W.1 Chandrakant and P.W.11 Sopan is

not consistent, reliable and trustworthy.

4. Learned counsel for the appellant-accused submits that so far

as P.W.8 eye witness Dattu Kadam is concerned, he has stated in

his cross examination that P.W.1 informant Chandrakant and

deceased Somnath came in front of his shop and started abusing the

appellant-accused Sameer. The appellant-accused Sameer went out

of his shop. P.W.1 Chandrakant and deceased Somnath started

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beating to appellant-accused Sameer by fist and kick blows. The

appellant-accused Sameer also gave blows to P.W.1 Chandrakant

and deceased Somnath. P.W.8 has further admitted in para 12 of his

cross examination that because of the beating the appellant-accused

Sameer came inside the shop and fell down. The palm of the

appellant-accused was stained with blood. In para 13 of his cross

examination, P.W.8 Dattu Kadam has further deposed that the

appellant-accused Sameer had picked up scissors from his shop

and gave blow to deceased Somnath. He has also stated that

scissors was stained with blood and hence the police seized it from

his shop. Learned counsel submits that P.W.8 Dattu Kadam, who is

independent witness has brought altogether new different story. The

prosecution evidence is not reliable so far as the involvement of the

appellant-accused in the alleged commission of crime. Learned

counsel further submits that so far as the evidence about recovery at

the instance of appellant-accused Sameer is concerned, the same is

not reliable and trustworthy. Learned counsel submits that reports of

the Forensic Laboratory Exh.100 to 102 only indicate that the blood

group of blood stains on all these articles were of blood group "B".

The blood group of appellant-accused Sameer and deceased

Somnath was also "B". The appellant-accused Sameer had also

sustained injuries. Learned counsel submits that the appellant is

entitled for benefit of doubt.

5. Learned counsel for the appellant in the alternate submits that

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as per the prosecution story itself, deceased himself had gone to the

place of incident. As per the evidence of independent witness P.W.8

Dattu Kadam, the appellant-accused Sameer was not armed with

any weapon and he has used the scissors of hair cutting salon to

defend himself. The appellant-accused has acted in exercising his

right of self defence. The appellant-accused Sameer has also

sustained injuries on his person. Learned counsel submits that even

if it is considered for the sake of discussion the appellant-accused

Sameer has exceeded right of self defence by inflicting injuries on

the person of deceased Somnath more than necessary, however,

there was no intention on the part of the appellant-accused Sameer

to commit murder. At the most, the appellant-accused Sameer can

be convicted under Section 304 for culpable homicide and not

murder.

Learned counsel for the appellant in order to substantiate his

submissions, placed reliance on the following cases:-

i) Kala Singh @ Gurnam Singh vs. State of Punjab, reported in (2021) 9 JT 330;

ii) Bhagwan Swaroop vs. State of Madhya Pradesh, reported in (1992) AIR (SC) 675;

iii) Shahajan Ali vs. State of Maharashtra, reported in 2017 (13) SCC 481

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iv) Govindan vs. State represented by the Deputy Superintendent of Police, (Criminal appeal No. 1665 of 2021 (SC).

v) Smt. Sandhya Jadhav vs. State of Maharashtra, reported in 2006 (2) SCC 394.

6. Learned A.P.P. submits that there are three eye witnesses to

the incident and the prosecution has proved beyond doubt the

involvement of the appellant-accused in the commission of crime.

Learned A.P.P. submits that evidence of P.W.1 informant

Chandrakant, P.W.11 Sopan and P.W.8 Dattu Kadam are consistent

on material points. P.W.8 Dattu though has given certain admission

in his cross examination, however he has denied the suggestion

given to him by the defence. Learned A.P.P. submits that denial of

the suggestion given by the defence itself indicates that P.W.8 Dattu

has given those admissions in the utter confused state of mind.

Learned A.P.P. submits that the said scissors was not seized during

the course of investigation and only a knife having blood stains came

to be seized from the spot of incident. P.W.8 Dattu had also

accepted that the appellant-accused Sameer had given blow of knife

on the person of deceased Somnath. Learned A.P.P. submits that

except P.W.8 Dattu Kadam, no other eye witness has deposed about

scissors allegedly used in the commission of crime. Learned A.P.P.

submits that the evidence of eye witness is fully corroborated by

recovery of blood stained clothes of appellant-accused Sameer and

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the C.A. report. Learned Judge of the trial court has thus rightly

convicted the appellant-accused for having committed the offence

punishable under Section 302 of I.P.C. Thee is no substance in the

appeal and the appeal is thus liable to be dismissed.

7. Learned A.P.P. submits that in the event if the alternate

arguments of the appellant is accepted, then the appellant is liable to

be convicted under Section 304 Part-I and not under Section 304

Part-II of I.P.C. There was clear cut intention to commit murder. The

appellant-accused Sameer was armed with dangerous weapon.

Learned A.P.P. for the respondent-State in order to

substantiate his submissions, placed reliance on the judgment of

Supreme Court in the case of Shyamal Ghosh vs. State of West

Bengal reported in 2012 (7) SCC 646.

8. We have perused the material exhibits tendered by the

prosecution, the evidence of the prosecution witnesses; the

statement of the appellant-accused recorded under Section 313 of

the Cr.P.C. and the impugned judgment.

9. So far as the homicidal death is concerned, the same is not

seriously disputed by the defence in this case. The prosecution has

examined P.W.15 Dr. Bhaskar Bhavar who has conducted the post

mortem examination on the dead body of deceased Somnath. On

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external examination, P.W.15 Dr. Bhavar has noted following

injuries:-

(i) Penetrating stab injury noted on left side of chest, just lateral and below the nipple of size 3 cm X 2 cm organ deep.

(ii) Stab injury on left lower chest laterally of size 3 cm X 2 cm organ deep.

(iii) Penetrating stab injury over left lateral aspect of lumber region of abdomen of size 3 cm X 2 cm.

(iv) Two CLWs noted over left forearm on medial and lateral aspects of size 2 cm X 1 cm X 1 cm and 1 cm X 1 cm X 1/2 cm.

(v) Abrasion right para umbilical region of size 3 cm X 1 cm X 1.

According to him, all the above injuries are caused by hard,

sharp and pointed object and all the injuries were antemortem in

nature. He has further explained that the injuries mentioned at (a),

(b) and (c) were on vital part of the body and in ordinary course are

sufficient to cause death. According to him, injuries at (a) and (b)

were serious in nature. P.W.15 Dr. Bhavar has noticed the injuries to

the internal organs, as detailed in para 20 of post mortem, those are

as follows:-

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(a) Punctured wound and haemorrhagic collection noted in left pleural region and left lung.

(b) Punctured wound noted on left side of heart up to inner cavity.

10. According to P.W.15 Dr. Bhavar, the above injuries are

corresponding to the injuries mentioned in para 3 (a) and 3 (b). In his

considered opinion, the cause of death was due to haemorrhagic

shock due to penetrating injuries to heart and left lungs. He has

opined that all injuries mentioned in post mortem are possible by

knife at Article-1. P.M. report is at Exh. 79 which bears his signature.

The defence has merely asked P.W.15 Dr. Bhavar whether the

scissors used by the barber can be defined as hard, sharp and

pointed object to which P.W. 15 Dr. Bhavar has answered in

affirmative. However, the defence has further avoided directly to

cross examine P.W.15 Dr. Bhavar as to whether external injuries as

noted by him are possible by the scissors used by barber. It is to be

noted here that the appellant-accused raised a plea that in exercising

his right of self defence the appellant-accused has used the scissors

from barber's shop and caused injuries on the person of deceased

Somnath. The same will be discussed at length in later stage of the

judgment. However, there is nothing in the cross examination to

draw any other inference about death. The prosecution has proved

beyond doubt that deceased Somnath met with homicidal death.

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11. The prosecution case rests upon direct evidence which is

discussed as follows:-

a) P.W.1 informant Chandrakant, his father P.W.11 Sopan and

P.W.8 Dattu Kadam (barber) are the eye witnesses to the incident.

We have carefully gone through the evidence of these three eye

witnesses. There is no reason to discard the evidence of P.W.1

informant Chandrakant and P.W.11 Sopan merely for the reason that

they are highly interested witnesses. However, we accept that their

evidence require close scrutiny. The evidence of eye witnesses is

consistent on the point that the appellant-accused had used weapon

knife in the assault and caused injuries on the person of deceased

Somnath. Their ocular evidence is duly corroborated by medical

evidence.

b) The incident had taken place on 10.12.2014 at about 5.30

p.m. P.W.1 Chandrakant Bade was proceeding towards Rajwada for

making payment to the labours. The appellant-accused Sameer was

seen standing near Marathi school. On seeing him, the appellant-

accused Sameer started abusing. P.W.1 informant Chandrakant did

not respond to it since he was possessing the money. However,

when he was returning after making payment of money to the

labours, the appellant-accused Sameer was still standing near the

said Marathi school. At that time, P.W.1 Chandrakant had asked

appellant-accused Sameer as to whom he was abusing. Thereupon

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the appellant-accused Sameer replied that he was abusing to him.

Even the scuffle had taken place between them. The main incident

had taken place at about 6.30 p.m. P.W.1 Chandrakant thereafter

called his real brother deceased Somnath by making him a mobile

call. At about 6.30 p.m. deceased Somnath came near said Marathi

school. The appellant-accused Sameer alongwith his brother was

standing near the hair cutting salon shop of P.W.8 Dattu Kadam.

Thus, deceased Somnath and P.W.1 Chandrakant went towards

salon shop. It is to be stated here that as per the prosecution

evidence, there were strained relations between the appellant-

accused Sameer on one side and P.W.1 Chandrakant on the other

side due to reason that appellant-accused has developed illicit sexual

relations with the wife of P.W.1 Chandrakant. Thus, deceased

Somnath asked appellant-accused Sameer as to why he was making

call to his sister-in-law (wife of P.W.1 Chandrakant) and abusing his

brother. Thereupon, the appellant-accused Sameer took a knife from

his pocket and gave blow of knife on the chest and hands of

deceased Somnath. The appellant-accused Somnath ran away from

the spot. Deceased Somnath fell down in the shop of P.W.8 Dattu

Kadam. Blood was oozing from the body of deceased Somnath. He

was immediately taken to Tambe Hospital at Sangamner and

thereafter shifted to Government Rural Hospital, Sangamner.

However, deceased Somnath was declared dead on arrival at

Government Rural Hospital, Sangamner. P.W.1 Chandrakant has

lodged complaint Exh.34 which corroborates his evidence before the

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court.

c) P.W.11 Sopan Bade, the father of P.W.1 Chandrakant and

deceased Somnath, has deposed in the similar manner so far as the

main incident is concerned. He was alongwith deceased Somnath in

their farm house. Deceased Somnath had received a phone call

from P.W.1 Chandrakant and deceased Somnath immediately

rushed to the spot of incident. However, deceased Somnath told

P.W.11 Sopan that there was quarrel between P.W.1 Chandrakant

and appellant-accused Sameer. Thus, P.W.11 Sopan also followed

deceased Somnath. P.W.11 Sopan has witnessed that the

appellant-accused Sameer was giving blow to his son Somnath.

d) P.W.8 Dattu Kadam (barber), in front of whose salon shop the

incident has taken place, has also deposed that on 10.12.2014 at

about 6.30 p.m. the quarrel was started between deceased Somnath,

P.W.1 informant Chandrakant on one side and appellant-accused

Sameer on other side. Deceased Somnath was asking the

appellant-accused Sameer as to why he is having illicit relations with

his sister- in-law and further threatening his brother. Deceased

Somnath has questioned the appellant-accused Sameer as to

whether he has become gunda. P.W.8 Dattu Kadam has further

deposed that the appellant-accused took a knife from his own pocket

and gave blow of knife on the chest and stomach of deceased

Somnath and blood was oozing. P.W.8 Dattu Kadam deposed that

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deceased Somnath came in his shop and fell down. Deceased

Somnath was lying in his shop in unconscious condition and

thereafter deceased Somnath was taken to the hospital by all

persons. Though P.W.8 Dattu Kadam has given certain admissions

in his cross examination, however, he has fully supported the

prosecution story. In Para 12 and 13 of his evidence, P.W. 8 Dattu

Kadam has stated that the appellant-accused Sameer because of the

beating came inside the shop and fell down. The palm of the

appellant-accused was stained with blood when he fell down in the

shop. He has further stated in the cross examination particularly in

para 13 that deceased picked up a scissors from his shop and gave

blow to deceased Somnath. According to him, scissors was stained

with blood and hence, police seized it from his shop. However, no

scissors has been seized from his shop nor P.W.8 Dattu Kadam has

further accepted the suggestion given by the defence that he is

deposing falsely that appellant-accused gave blow of knife on the

chest and stomach of deceased Somnath. It appears that in utter

confused state of mind P.W.8 Dattu Kadam has given those

admissions, however, he has stick up to the story that the appellant-

accused Sameer took out a knife from his pocket and inflicted blow

on the chest and stomach of deceased Somnath by using the said

knife. It is to be repeated here that defence has not put specifically

to P.W.15 Dr. Bhavar that the injuries on the person of deceased

Somnath are possible by scissors . On the other hand, P.W.15 Dr.

Bhavar has positively stated that said injuries on the person of

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deceased Somnath are possible by weapon knife (article 1). We find

no substance in the submissions made on behalf of the appellant-

accused that no such incident had taken place and that the

prosecution has failed to prove its case beyond reasonable doubt.

e) All three eye witnesses have consistently deposed that after

assault, deceased Somnath went inside the salon shop and fell down

on the floor of salon shop. The blood started oozing from the injuries.

The contents of spot panchnama Exh.38 corroborate the prosecution

story. It corroborates the prosecution story to the extent that in front

of salon shop there were blood stains appearing on the sand. One

knife was also found on the said sand in front of door of salon shop

and further it is also specifically noted in the spot panchnama that

there were blood stains on the floor of salon shop. Though learned

defence counsel has vehemently submitted that the appellant-

accused has sustained injuries on his palm, there were bleeding

injuries and P.W.8 Dattu Kadam has also accepted the same, and as

such, the possibility of the said blood spots in the salon shop of blood

group of the appellant-accused Sameer cannot be ruled out,

however, we find no substance in the said submission.

f) There were blood stains on the knife, on the sand and blood

spots on the floor of salon shop. In addition to it, blood stains were

on the clothes of the appellant-accused Sameer, which came to be

seized at his instance. Memorandum panchnama Exh.46 and

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recovery panchnama Exh.47 indicate that the appellant-accused

Sameer has made disclosure statement showing his willingness to

produce his blood stained clothes concealed by him at a particular

place and accordingly at his instance his one T-shirt and one jeans

pant, having blood stains came to be seized from the hidden place.

The prosecution has examined P.W.7 Sunil Gunjal to prove the

contents of spot panchnama Exh.46 and 47 respectively. There is

nothing in the cross examination to disbelieve the version of P.W.7

Sunil Gunjal. The incident had taken place on 10.12.2014 and after

arrest of the appellant-accused, the said recovery was made at his

instance on 15.12.2014.

g) The arrest panchnama of the appellant-accused is dated

11.12.2014 marked at Exh.50. It is noted in the contents of said

arrest panchnama Exh.50 that there was injury on right hand thumb

and index finger of the appellant-accused Sameer.

i. Even if the bleeding injuries on the person of the appellant-

accused Sameer i.e. on his thumb and index finger of right

hand are concerned, it is not possible that oozing of blood

was so extensive from the said injuries, that it has stained

the sand in front of door of salon shop, the knife, clothes of

the appellant-accused Sameer and the floor in the salon

shop.

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ii. Though C.A. reports Exh.101 and 102 respectively speak

about same blood group of "B" of deceased Somnath and

appellant-accused Sameer, however, as per the C.A. report

Exh.100 the blood found on the sand, knife, full shirt,

baniyan, full jeans pant, underwear, pyjama, full shirt, full

pant etc. almost 12 articles, including clothes of deceased

found stained with blood having blood group "B".

Furthermore, full pant, T-shirt Exh.F-1 and full jeans pant

Exh.F-2 of the appellant-accused also found blood having

blood group "B". It is observed in the C.A. report Exh.100

that the clothes of the appellant-accused stained with blood

at places. It thus clearly appears that the said blood found

on various articles is of deceased Somnath having blood

group "B".

h) In addition to this evidence, there is evidence of P.W.10

Gorakh Bade, who went on the spot after the incident was over.

He noticed the appellant-accused Sameer fleeing away from the

spot and knife in the hand of appellant-accused Sameer fell on

the sand. Even P.W.10 Gorakh alongwith other villagers had tried

to catch the appellant-accused Sameer but taking advantage of

darkness, he ran away. P.W.10 Gorakh has also noticed that

deceased Somnath was lying in pool of blood inside of salon shop

and P.W.1 Chandrakant and P.W. 11 Sopan (father of deceased

Somnath) were also present there. P.W. 10 Gorakh thereafter

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called his son Mangesh to come with jeep and accordingly

deceased Somnath was taken to Tambe Hospital Sangamner in

the said jeep and thereafter he was shifted to Rural Hospital,

Sangamner.

i) P.W.9 Yogesh Kale has deposed that some ten days prior to

the incident, the appellant-accused Sameer has made statement

before him that deceased Somnath is threatening to kill him because

of the love affair and appellant-accused Sameer told him that he and

co-accused Shubhangi have decided to finish Somnath.

12. Thus, it appears that ocular evidence is consistent on material

parts, duly corroborated by the medical evidence and other evidence

as discussed in detail in the foregoing paras. The prosecution has

proved beyond doubt the incident and the manner in which it has

taken place. There is no evidence to draw any other inference that

the appellant-accused Sameer has been falsely implicated in

connection with the crime.

13. Learned counsel for the appellant has however, in the

alternate, submitted that deceased Somnath had himself gone to the

place of incident. The appellant-accused Sameer was not armed with

any weapon and as admitted by independent witness P.W.8 Dattu

Kadam the appellant-accused has used scissors from the salon

shop to defend himself. Learned counsel for the appellant submitted

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that the appellant-accused has acted in exercise of his right of self

defence. The appellant-accused Sameer has also sustained injuries

on his person for which no explanation has been tendered by the

prosecution. Learned counsel submitted that even if it is considered

that the appellant-accused Sameer has exceeded his right of self

defence by inflicting injuries on the vital parts of deceased Somnath,

however, there was no intention on the part of the appellant-accused

Sameer to commit murder.

a) We have given our thoughtful consideration to this

submission. It appears from the evidence of eye witnesses,

particularly P.W.1 Chandrakant that on the day of incident i.e. on

10.12.2014 at about 5.30 p.m. the appellant-accused Sameer has

provoked P.W.1 Chandrakant. The appellant-accused twice abused

P.W.1 Chandrakant prior to the incident. In the backdrop to these

facts can it be said that the appellant-accused Sameer could make

excuse for killing or doing harm to deceased Somnath under the

pretext of self defence? P.W.8 Dattu Kadam has also not stated that

deceased Somnath, armed with weapon alongwith P.W.1

Chandrakant, had come to the spot of incident. We find it difficult to

believe that there was reasonable apprehension of death or grievous

hurt at the hands of deceased Somnath, in the mind of appellant-

accused Sameer and thus, he had right to exercise self defence at a

particular time.

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b) It has come in the prosecution evidence that P.W.1

Chandrakant, deceased Somnath and appellant-accused Sameer

were born and brought up in the same village and even they were

school friends. It was thus obvious on the part of deceased Somnath

to go on the spot without any arm to question the appellant-accused

Sameer. However, all the eye witnesses have consistently deposed

that the appellant-accused Sameer took out a knife from his pocket.

c) In order to consider the case of exercising right of private

defence two aspects are necessary to be considered viz.

(i) that the accused had right of defence of person or property, and

(ii) whether he has exercised the right in good faith and without premeditation and without any intention of doing more harm that was necessary for the purpose of defence.

d) Merely because there was quarrel and scuffle between

deceased Somnath and P.W.1 Chandrakant on one side and the

appellant-accused Sameer on other side and the appellant-accused

Sameer had sustained injuries, that does not confer right on the

appellant-accused Sameer of private defence extending to the extent

of causing death. We find no evidence to draw inference that the

appellant-accused Sameer was under such grave apprehension

about his safety and thus to assault to the extent done from his side

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was absolutely necessary. So far as the injuries caused on the

thumb and index finger of right hand of the appellant-accused

Sameer are concerned, that might have been the result of resistance

by deceased Somnath.

14. We may repeat here that deceased Somnath had sustained

several injuries on his person i.e.

(i) Penetrating stab injury noted on left side of chest, just lateral and below the nipple of size 3 cm X 2 cm organ deep.

(ii) Stab injury on left lower chest laterally of size 3 cm X 2 cm organ deep.

(iii) Penetrating stab injury over left lateral aspect of lumber region of abdomen of size 3 cm X 2 cm..

(iv) Two CLWs noted over left forearm on medial and lateral aspects of size 2 cm X 1 cm X 1 cm and 1 cm X 1 cm X 1/2 cm. .

(v) Abrasion on right para umbilical region of size 3 cm X 1 cm X 1.

In the internal examination, P.W.15 Dr. Bhavar, who has

conducted the post mortem examination, has noted punctured wound

and haemorrhagic collection noted in left pleural region and left lung

and punctured wound noted on left side of heart up to inner cavity.

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Those injuries are corresponding to external injuries as mentioned in

para 3 (a) and 3 (b).

15. We are unable to persuade ourselves that those injuries have

been caused on the person of deceased Somnath by exceeding right

of self defence. We are of the considered opinion that the manner in

which the incident has taken place, motive behind the crime and

further external and internal injuries as noted above unmistakenly

point out that the appellant-accused had assaulted deceased

Somnath with murderous intention.

16. Learned counsel for the appellant has placed his reliance on

the judgment of the Supreme Court in the case of Kala Singh @

Gurnam Singh vs. State of Punjab (supra) wherein the Supreme

Court has converted the sentence from one under Section 304 Part I

r.w. 34 of I.P.C. to under Section 304 Part-II r.w. 34 of I.P.C. In the

facts of the cited case the appellant and deceased had sudden fight

as deceased had stolen pigeon of the appellant and in the heat of

passion, upon a sudden quarrel, the co-accused (Kehar Singh) who

had a rod with him, gave a blow with the rod on the right side of the

head of the deceased resulting in his death. It is observed that in the

facts of the case, scuffle had taken place on the spur of moment and

that sudden fight had taken place in the heat of passion upon a

sudden quarrel. It was not a premeditated one and as there was no

intention on the part of the appellant and co-accused either to cause

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death or cause such bodily injury as is likely to cause death.

In the instant case, however, the appellant-accused Sameer

has developed illicit sexual relation with the wife of P.W.1

Chandrakant and the wife of P.W.1 Chandrakant viz. Shubhangi was

also co-accused and was tried with the appellant. However, she was

given benefit of doubt. It has come in the prosecution evidence that

prior to the incident, the appellant-accused Sameer has disclosed his

intention to prosecution witnesses to finish deceased Somnath.

Furthermore, some one hour prior to the main incident, the appellant-

accused Sameer had deliberately provoked P.W.1 Chandrakant

twice and in consequence thereof, as expected by him, deceased

Somnath had come in search of him alongwith P.W.1 Chandrakant.

17. In the case of Bhagwan Swaroop vs. State of Madhya

Pradesh (supra) relied upon by learned counsel for the appellant,

the father of the accused was given lathi blows by complainant party.

It is observed by the Supreme Court that the injuries caused were

simple or grievous is of no consequence and its fire of gun-shot to

defend the person of his father. The facts of this case are altogether

different and cannot be made applicable to the facts and

circumstances of the present case.

18. In the case of Shahajan Ali vs. State of Maharashtra

(supra) relied upon by learned counsel for the appellant, the facts

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are totally different. In the facts of the said case, there was neither

prior concert of mind nor common intention to commit murder.

During the course of their business activities the accused reached

Dhaba where the deceased was present. An altercation took place

which led to sudden fight and accordingly the incident had taken

place. Thus, the Supreme court has observed that exception 4 to

Section 300 of I.P.C. is applicable to the facts of the said case.

Accordingly, the conviction of the appellants therein was converted

from Section 302 of I.P.C. to Section 304 Part II of I.P.C. The ratio

laid down in the said case cannot be made applicable to the facts of

the present case.

19. In the case of Govindan vs. State represented by the

Deputy Superintendent of Police (supra) relied upon by learned

counsel for the appellant-accused, it is again a case of sudden

quarrel. No premeditation or pre-planned incident. In the instant

case, the facts are altogether different and clearly indicate that the

incident is not a result of sudden quarrel.

20. In the case of Sandhya Jadhav vs. State of Maharashtra

(supra) relied upon by learned counsel for the appellant, the

Supreme Court had an occasion to consider the word 'fight' occurring

in exception 4 to Section 300 of I.P.C.

21. In view of discussion above, we find no substance in this

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appeal. The appeal is thus liable to be dismissed. Hence, we

proceed to pass the following order:-

ORDER

I. Criminal appeal is hereby dismissed.

II. The judgment and order of conviction dated 15.3.2021

passed by the Additional Sessions Judge, Sangamner in

Sessions Case No. 37 of 2015 is hereby confirmed.

III. Criminal appeal is accordingly disposed of.

   (SANDIPKUMAR C. MORE, J.)                          (V. K. JADHAV, J.)

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