Bombay High Court
The State Of Maharashtra vs Manik S/O. Hanmant Mote And Others on 11 October, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:21823-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.27 OF 2017
1 Manik Hanmant Mote,
Age 68 yrs., Occ. Agri.,
R/o Shivankhed, Tq. Chakur,
Dist. Latur.
(Abated as per order dated 28.08.2023)
2 Mahesh Manik Mote,
Age 29 yrs., Occ. Agri.,
R/o as above.
3 Siddheshwar Manik Mote,
Age 39 yrs., Occ. Agri.,
R/o as above.
... Appellants
... Versus ...
The State of Maharashtra
Through the Police Station Officer,
Police Station, Chakur,
Tq. Chakur, Dist. Latur.
... Respondent
...
Mr. R.S. Deshmukh, Senior Counsel a/w Mr. G.A. Kulkarni, Advocate i/b Mr.
D.R. Deshmukh, Advocate for appellant Nos.1 to 3
Mr. A.M. Phule, APP for the respondent
Mr. P.P. More, Advocate for assist to PP
...
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2 Cri.Appeal_27_2017+1_Jd
WITH
CRIMINAL APPEAL NO.883 OF 2018
The State of Maharashtra
Through the Police Station Officer,
Police Station, Chakur,
Tq. Chakur, Dist. Latur.
... Appellant
... Versus ...
1 Manik Hanmant Mote,
Age 68 yrs., Occ. Agri.,
R/o Shivankhed, Tq. Chakur,
Dist. Latur.
(Abated as per order dated 28.08.2023)
2 Mahesh Manik Mote,
Age 29 yrs., Occ. Agri.,
R/o as above.
3 Siddheshwar Manik Mote,
Age 39 yrs., Occ. Agri.,
R/o as above.
... Respondents
...
Mr. A.M. Phule, APP for the appellant
Mr. P.P. More, Advocate for assist to PP
Mr. R.S. Deshmukh, Senior Counsel a/w Mr. G.A. Kulkarni, Advocate i/b Mr.
D.R. Deshmukh, Advocate for respondent Nos.1 to 3
...
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CORAM : SMT. VIBHA KANKANWADI
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 14th SEPTEMBER, 2023
PRONOUNCED ON : 11th OCTOBER, 2023
JUDGMENT : (PER : SMT. VIBHA KANKANWADI, J.)
1 Both the criminal appeals are arising out of the same judgment
and, therefore, those are proposed to be disposed of by this common
judgment. Criminal Appeal No.27 of 2017 is filed by the original accused
convicted by learned Additional Sessions Judge, Latur in Sessions Case
No.3/2013 on 02.12.2016, thereby convicting them for the offence
punishable under Section 302, 324 read with Section 34 of the Indian Penal
Code, 1860, whereas the prosecution has come in appeal i.e. Criminal Appeal
No.883 of 2018 to challenge the acquittal of the original accused persons in
the same case from the offence punishable under Section 307, 341 read with
Section 34 of the Indian Penal Code, 1860. [Original accused No.1 Manik
Hanmant Mote is reported to be dead and, therefore, by order passed by this
Court on 28.08.2023 both the appeals were disposed of as against him as
abated.]
4 Cri.Appeal_27_2017+1_Jd
2 Accused No.1 (now deceased) is the father of accused Nos.2 and
3. He is the owner of land bearing Gat No.299 in village Shivankhed (Bk).
(The parties are referred to by their nomenclature before the trial Court.) On
09.09.2012 one Vyankatrao Apparao Mote resident of village Shivankhed, Tq.
Chakur, Dist. Latur was admitted in Government Medical College & Hospital,
Latur. His statement was recorded by PSI attached to Chakur Police Station
between 10.30 a.m. on 08.09.2012. He himself, his son Shankar, cousin
brother Bhagwan and cousin brother's son Bhimashankar were proceeding in
bullock cart for sprinkling insecticides in his field. They were proceeding
from an old road i.e. vahiwat road, which was near the field of accused No.1
(now deceased). Around 11.00 a.m. they were at that place and at that time
all the three accused came, obstructed their way and told that the cart should
not be taken from their field. The informant and persons along with him told
the accused that they should allow them to go as the way is old and they
(accused) should not obstruct them and thereby Bhimashankar took the cart
just ahead, at that time, all the three accused persons attacked him with axe.
When Vyankatrao went to rescue him, accused Mahesh i.e. accused No.2
assaulted Vyankatrao with axe on his head and on right side of the chest as
well as on both the hands with handle of the axe. Accused No.1 (now
deceased) assaulted Bhagwan with axe and the injury was caused to his head
5 Cri.Appeal_27_2017+1_Jd
and other parts of the body. When Shankar came to rescue them, he was also
assaulted with axe. Vyankatrao felt giddiness and fell down. All the four of
them had received severe injuries and fell down and thereupon the accused
persons fled away from the spot. After hearing the hue and cry the
neighbouring farmers Narayan Kolgave and Ankush Walakate came running.
All the four injured persons were kept in bullock cart and brought to village
and from village they were shifted to hospital in jeep. In jeep Vyankantrao
regained consciousness and came to know that his cousin brother Bhagwan
has expired while undergoing the treatment.
3 On the basis of said statement recorded the said First
Information Report came to be registered vide Crime No.166/2012 and
investigation was undertaken.
4 The inquest panchnama came to be executed prior to the
registration of the offence that was under Section 174 of the Code of
Criminal Procedure and the dead body was forwarded for postmortem. After
the registration of the offence panchnama of the spot was carried out, clothes
of the deceased were seized, statements of the witnesses were recorded,
accused came to be arrested, accused Nos.1 to 3 discovered separate axes on
different date and time after their arrest, memorandum panchnama to that
6 Cri.Appeal_27_2017+1_Jd
effect has been executed, medical papers were collected and after the
investigation was over charge sheet was filed.
5 After the committal of the case, charge came to be framed
against all the accused and when they pleaded not guilty prosecution has
examined in all 19 witnesses to bring home the guilt of the accused persons.
The defence of the accused persons is that there was no such road available
for Vyankatrao or his brothers to go to their field, but the informant and the
injured persons were interfering with the possession of the accused persons
over land Gat No.299 and they wanted to create a new path way. It was their
deliberate and intentional act to use the portion of the field of accused No.1
(now deceased) to cause damage to the crops. In fact, the informant and the
injured had attacked them with axe and in that event even they have
sustained injuries. They had right to protect the property and whatever they
had done was by way of private defence. Cross complaint was filed and the
copy of the evidence of the Medical Officer in that case has been produced on
record along with the written say filed as part of their statement under
Section 313 of the Code of Criminal Procedure.
6 After the evidence was over, taking into consideration the
evidence as well as the submissions made, the learned trial Judge has held all
7 Cri.Appeal_27_2017+1_Jd
the three accused persons guilty of committing offence under Section 302
read with Section 34 of the Indian Penal Code and have been sentenced to
suffer imprisonment for life and to pay fine of Rs.1,000/- (Rupees One
Thousand only) each, in default to suffer simple imprisonment for one
month. It was held that prosecution has failed to prove that the accused
persons have committed offence under Section 307 of the Indian Penal Code,
but it was held that offence that has been proved as regards the injured
persons are concerned, it is under Section 324 read with Section 34 of the
Indian Penal Code and, therefore, by acquitting them under Section 307 of
the Indian Penal Code conviction has been awarded for the offence
punishable under Section 324 read with Section 34 of the Indian Penal Code
and they have been sentenced to suffer rigorous imprisonment for two years
each and pay fine of Rs.1,000/- (Rupees One Thousand only) each, in default
to suffer simple imprisonment for one month. All of them have also been
acquitted under Section 341 of the Indian Penal Code. All the sentences were
directed to run concurrently. Hence, both these appeals.
7 Heard learned Senior Counsel Mr. R.S. Deshmukh instructed by
learned Advocate Mr. D.R. Deshmukh for appellants in Criminal Appeal
No.27 of 2017 as well as for respondents in Criminal Appeal No.883 of 2018
and learned APP Mr. A.M. Phule for State well assisted by learned Advocate
8 Cri.Appeal_27_2017+1_Jd
Mr. P.P. More.
8 It has been vehemently submitted by learned senior counsel Mr.
R.S. Deshmukh instructed by learned Advocate Mr. D.R. Deshmukh for
appellants that the learned trial Judge has not appreciated the evidence
properly. Here, in this case, after the trial commenced informant Vyankatrao
Apparao Mote expired, but it appears to be a natural death because
prosecution has not tried to establish the nexus between his death and the
incident and under the said circumstance, the First Information Report was
not proved. It was got proved through the API and the endorsement thereof
by the Medical Officer. Such proof cannot be accepted and, therefore, exhibit
number is given to the First Information Report is immaterial. It cannot be
said that by any means the First Information Report has been proved in this
case. The prosecution has relied on the evidence of PW 9 Bhimashankar
Vasantrao Mote, PW 10 Shankar Vyankatrao Mote, who are the injured
witnesses and further reliance is on PW 12 Prashant Kashinath Deokate and
PW 13 Narayan Dhondiram Koulgave, who had allegedly seen the accused
persons taking the weapons i.e. axes with other from their house towards
field and then PW 13 Narayan allegedly witnessing the incident. If we
consider the testimony of PW 13 Narayan, then it can be said that he has
materially improved his statement before the Court. His statement under
9 Cri.Appeal_27_2017+1_Jd
Section 161 of the Code of Criminal Procedure would show that he was not
present and had no idea as to who has done the act. But in the substantial
evidence he has tried to pose himself as an eye witness. His testimony is,
therefore, required to be discarded in toto. According to PW 9 Bhimashankar
and PW 10 Shankar, they all were proceeding in bullock cart and when they
were near the field of accused No.1 (now deceased), they were obstructed by
the accused. They were saying that it is their usual way from the time of
their forefathers. But in the cross-examination both of them have admitted
that there is no documentary evidence to support their contention that such
path way was available to them. It is also seen from the cross-examination of
these two witnesses that the accused persons had raised objection for use of
their land as path way. It appears that intentionally the spot was shown on
the bandh, but in fact, the incident had taken place in land Gat No.299
belonging to accused No.1 (now deceased). Therefore, the accused persons
had every right to protect damage to their property. It was the informant's
side, who had attacked the accused persons with axe and in order to save
themselves the accused persons have reacted. The prosecution has not
explained injuries on the persons of the accused persons, but it has been
brought on record by way of filing the certified copy of the deposition of PW
5 Dr. Shaikh Husain, the Medical Officer, who was examined in Sessions Case
10 Cri.Appeal_27_2017+1_Jd
No.2/2014, in which these injured witnesses and the deceased persons were
accused to prove that accused No.1 (now deceased) had sustained head
injury.
9 It has been further submitted by learned senior counsel
appearing for the appellants that the Investigating Officer has taken the
relatives of the informant as panch witnesses to the discoveries. By no
stretch of imagination it can be said that those memorandum panchnamas
Exhs.68, 69, 71, 72, 77 and 78 are admissible in evidence. Evidence of PW
11 Dr. Dharmaraj Dudde, who conducted the autopsy, would also show that
what he had found on the person of deceased Bhagwanrao was the sutured
wound over left parieto temporo occipital region. PW 14 Dr. Sudhir
Fattepurkar is the Medical Officer from Ashwini Hospital, Latur, who had
examined Bhagwanrao and Bhagwanrao was admitted there for treatment
and expired there in that hospital only. What was found at the time of
admission of Bhagwanrao in the said hospital is that he had sustained incised
wound of size 20 c.ms. x bone deep on left temporo parietal region extending
up to occipital region. He has admitted in his cross-examination that incised
wound can be caused by a light weapon with sharp cutting edge, however, in
the present case it was axe and according to him, axe is categorized in heavy
weapon with sharp cutting edge. A sharp cutting weapon would result into
11 Cri.Appeal_27_2017+1_Jd
chop wound. He had not found any chop wound on the person of
Bhagwanrao. Therefore, the connection between the incident and the
weapon has not been proved at all.
10 It cannot be said that there was any intention to kill on the part
of the accused persons as the informant's side had in fact, entered into the
property belonging to the accused persons and, therefore, they were the
aggressors. This aspect has not been considered by the learned trial Judge
and, therefore, in all the conviction of the accused persons cannot be alleged
to be sustained.
11 Learned APP has supported the reasons given by the learned trial
Judge to the extent of convicting the accused Nos.1 to 3 for the offence under
Section 302 read with Section 34 of the Indian Penal Code. He submitted
that the testimony of PW 9 Bhimshankar and PW 10 Shankar corroborates
each other. They have assigned role to each accused and the sequence in
which the accused persons had assaulted them. The First Information Report
has been proved through Investigating Officer as Vyankatrao has expired.
The said proof through Investigating Officer was sufficient for proof of First
Information Report. The testimony of the injured eye witnesses is also
supported by PW 12 Prashant Deokate, who had seen the accused persons
12 Cri.Appeal_27_2017+1_Jd
proceeding towards field with axe. It is also supported by testimony of PW
13 Narayan Koulgawe, who had also seen the accused persons with axe and
sticks proceeding from their house to field. He had also heard the accused
persons saying that they would eliminate whoever comes between. This
shows that the accused persons had intention to kill. The medical evidence
would clearly show from the testimony of PW 11 Dr. Dharmaraj Dudde and
PW 14 Dr. Sudhir that Bhagwanrao had sustained injury with the axe on his
vital part i.e. head. Rather testimony of PW 14 Dr. Sudhir would show that
since prior to admission Bhagwanrao's condition was critical. The difference
between light and heavy object will not make difference, when no other
weapon is involved in the case. The three axes were discovered by all the
three accused persons one by one and in order to prove those memorandum
and panchnama prosecution has examined PW 2 Chandrakant Jadhav, PW 3
Kashinath Gawre and PW 4 Dipak Kamble. The clothes of the accused
persons have also been seized in presence of PW 8 Sayyad Babu and the spot
panchnama has been shown by the witness and the panchnama is proved by
PW 6 Devanand. PW 15 Bhagwat Aradwad was the then President of the
Tantamukti Yojana, with whom a complaint about the path way was given by
Vyankatrao. It was stated in the said application also that Vyankatrao and his
family members were using the said path way since the time immemorial but
13 Cri.Appeal_27_2017+1_Jd
the accused persons had started obstructing it recently. The injuries on the
person of Vyankatrao, Bhimashankar and Shankar are proved by examining
PW 16 Dr. Sadashiv Dhanve. His testimony would show that injuries were
sustained on the vital part and when three persons were attacking with the
help of axe, then it can be gathered that they had intention to kill
Vyankatrao, Bhimashankar and Shankar. The acquittal of the accused
persons from the offence under Section 307, 341 of the Indian Penal Code is
illegal and, therefore, deserves to be set aside. They are required to be
punished for those sections also.
12 In reply, learned senior counsel replying the appeal filed by the
prosecution challenging the acquittal of the accused submitted that part of
judgment holding that prosecution has failed to prove offence under Section
307 of the Indian Penal Code is correct. The medical evidence does not
support the prosecution evidence and, therefore, there is no need to set aside
the acquittal of the accused persons from the offence punishable under
Section 307, 341 of the Indian Penal Code.
13 Before we proceed to assess the evidence of the eye witnesses to
know as how the incident had taken place, we would like to take account of
the medical evidence in respect of charge under Section 302 of the Indian
14 Cri.Appeal_27_2017+1_Jd
Penal Code. PW 11 Dr. Dharmaraj Dudde has deposed that on 08.09.2012
dead body of Bhagwanrao was referred to him around 8.00 p.m. for
postmortem and he started the postmortem at 9.00 p.m. and concluded it by
10.00 p.m. He found a sutured wound over left parieto temporo occipital
region. In all 16 sutures with fracture to parietal temporal bone was seen
and then there was contusion with right wrist joint of size 4 x 5 c.ms. and
there was fracture over left parietal and temporal bone. On internal
examination he had seen in all six injuries. After considering the injuries, he
has opined that the probable cause of death was due to head injury. He was
not able to tell the nature of weapon and size of the injury as the injury was
sutured. In the cross-examination he opined that looking to the size of the
haematoma it would have developed pressure over the brain. A question
regarding diabetic patient not treated on that count and results
hyperglycemia. What would be the effect of the same on the brain was also
be asked. But we were not concerned with the same. Though he has stated
that the fracture of bone can be possible by forcible fall, it appears that it was
a question regarding fracture to the wrist joint. Certainly, his testimony is
required to be appreciated with the testimony of PW 14 Sudhir Fattepurkar,
who had examined Bhagwanrao around 2.15 p.m. at Ashwini Accident and
Neuro Care Center, Latur on 08.09.2012. He has stated that after he
15 Cri.Appeal_27_2017+1_Jd
examined the patient he found there was head injury due to assault and there
were two injuries - one was incised would of size 20 c.ms. x bone deep in the
left temporal parietal region extending up to occipital region and second was
contusion over right wrist 3 x 4 c.ms. He has stated that injury No.1 was
sutured as the blood was oozing and then the patient was put on ventilator
and all live resuscitative measures were taken. In spite of all those measures
the patient expired around 5.15 p.m. on the same day. According to him, the
case of death was due to head injury due to assault. In examination-in-chief
he has stated that the assault might have been by sharp weapon like axe. In
the cross-examination he has categorized axe into heavy weapon with sharp
cutting edge. He has also stated that a heavy cutting weapon with sharp
edge would cause chop wound and incised wound would possible by light
weapon with sharp cutting edge. No concession can be given to the accused
for the simple reason that it was not ruled out by the medical expert that
heavy cutting weapon with sharp edge cannot cause incised wound or axe
cannot cause incised wound. Questions were also asked, as to why the
haematoma was not removed, but then he had answered to that and says
that there is no necessity to remove haematoma by clinical examination and
clinical condition of the patient is the guideline for associated radiological
investigation. Thus, the cross-examination has not paved way to come to a
16 Cri.Appeal_27_2017+1_Jd
different conclusion that death of Bhagwanrao is not homicidal. In other
words, prosecution has proved that Bhagwanrao's death is homicidal.
14 At this stage itself, we would like to consider the other medical
evidence in respect of injured witnesses. PW 16 Dr. Sadashiv Dhanve had
examined Vyankatrao, Bhimshankar and Shankar.
Following injuries were found on the person of Vyankatrao
Apparao Mote :
i) Laceration over mid fronto parietal region, size 6 x 1 x 1
c.ms.
ii) Incised wound over right middle of chest on anterior
aspect, size 10 x 2 x 2 c.ms.
iii) Abrasion over right shoulder, size 2 x 1 c.ms.
iv) Contusion over right arm of size of 5 x 4 c.ms.
v) Contusion over right calf of size of 8 x 4 c.ms.
vi) Contusion over right forearm of circumference
vii) Swelling over left forearm
viii) Fracture of left radius
ix) Fracture of right side radius
Following injuries were found on the person of Bhimashankar
Vasantrao Mote :
17 Cri.Appeal_27_2017+1_Jd
i) CLW over left forehead, size 7 x 1 x 1 c.ms.
ii) Laceration over middle parietal region, size 10 x 1 x 1
c.ms.
iii) Abrasion over left elbow of 5 x 3 c.ms.
iv) Swelling over left elbow circumference
v) Head injury
Following injury was found on the person of Shankar Vyankatrao
Mote :
i) CLW to his right hand of size of 5 x 1 x 1 c.ms.
In the examination-in-chief the said Doctor has said that the
injuries were simple in nature except one injury of Bhimashankar. At no
point of time he says that the injuries those were caused to these three
witnesses were sufficient to cause death. Merely because a simple injury is to
the vital part of the body it cannot be said that Section 307 of the Indian
Penal Code would then be attracted. It would be the intention to kill that is
important and even when there may not be injury still there can be intention
to kill. But, here, in this case, there were injuries and the prosecution ought
to have then extracted from the medical expert as to whether the said injuries
would have been sufficient to cause death in ordinary course. As per the
prosecution story, those injuries were caused due to axe which can be said to
18 Cri.Appeal_27_2017+1_Jd
be an instrument of cutting and, therefore, the learned trial Judge has rightly
invoked Section 324 of the Indian Penal Code, the acquittal of the accused
persons from the offence punishable under Section 307 of the Indian Penal
Code was justifiable.
15 Now, it is to be noted that PW 9 Bhimashankar and PW 10
Shankar both injured eye witnesses have corroborated each other. They have
specifically stated that Bhimashankar went to Bhagwanrao's house at
Shivankhed and thereafter they proceeded in bullock cart. He has stated that
they wanted to spray fertilizers and, therefore, they were carrying the spray
pump and fertilizers along with them. Bhimashankar was driving the bullock
cart. They both have stated that they proceeded through the old path and
reached near the field of Bhagwanrao. At that time, all the accused persons
came in front of their bullock cart and restrained them from proceeding
further by that way. They claimed that the said path way was old and used
since the time of their forefathers. They were not allowed by the accused and
then when PW 9 took the bullock cart little bit ahead, the accused persons
initially assaulted him by axe on his head, back and hands. The testimony of
PW 16 Dr. Sadashiv Dhanwe corroborates the same. Then accused No.2
assaulted Vyankatrao on his chest and head by axe. Those injuries are also
matching. Accused No.3 is stated to have assaulted Vyankatrao by stick of
19 Cri.Appeal_27_2017+1_Jd
axe on his hand, accused No.2 and accused No.1 (now deceased) assaulted
Bhagwanrao by axe on his head and back. Accused No.2 assaulted Shankar
with axe on right hand and accused No.3 assaulted Shankar on his back with
axe. No doubt, there are one or two contradictions and not supported by PW
16 Dr. Sadashiv Dhanwe, but as regards the injuries are concerned; yet, it is
certain that all the three injured persons have sustained the injuries and
deceased had also sustained injuries as a result of blows given by accused
No.2 and accused No.1 (now deceased). The testimony of both these
witnesses would show that they had common intention and that common
intention can be gathered from the testimony of PW 12 Prashant, who had
seen all of them carrying weapons and going towards their field.
16 A thorough cross-examination has been taken on behalf of
accused to all these witnesses and it was tried to be brought on record that
the situation at the field is different and there is no field of Bhagwanrao near
the field of accused No.1 (now deceased). Important point to be noted is
that even if it would have been shown that his land is not near, but if it is
beyond and still that road was available that was sufficient. There was no
documentary evidence, as admitted by PW 9 Bhimashankar, to prove that
such road existed since time immemorial. This point requires to be discarded
for the simple reason that many times no documentary evidence is available
20 Cri.Appeal_27_2017+1_Jd
for the easements, but the easements are there which are used by the farmers
since time immemorial. Further, from the testimony of PW 15 Bhagwat
Aradwad, who was then Chairman of Tantamukti Yojana, would show that
Vyankatrao had given a complaint against accused No.1 (now deceased)
stating that he is obstructing their way. It was much prior to the incident
and, therefore, there is substance in the say of the witnesses that since they
were using that road on that day also, they attempted to go further by using
that road. The accused have now come with a case that actually PW 9
Bhimashankar had taken the bullock cart from their field and not from the
bandh, but except their written say to the statement under Section 313 of the
Code of Criminal Procedure, there is nothing. Neither any of them has
entered the witness box nor they have examined nearby villager to support
their contention.
17 Another aspect i.e. also required to be considered is that at one
place the accused persons are taking the defence of total denial and at
another breath they want to take the defence of right of private defence. No
doubt, right of private defence extends to right of protecting the property, but
when such defence is taken, the presence of the accused is required to be
presumed. The accused are coming with a case that accused No.1 (now
deceased) lodged First Information Report against the deceased persons as
21 Cri.Appeal_27_2017+1_Jd
well as PW 9 and PW 10, wherein he contended that he was assaulted. The
learned trial Judge has rightly said that the evidence in the cross case cannot
be readily read in an another cross case. There are methods and procedure
laid down under the law as to how and in which circumstances evidence in
the cross case can be read in the another cross case. That procedure has not
been adopted. Mere filing of the copy of the evidence of the Doctor in
another case to bring it on record that accused No.1 (now deceased) had
sustained injury on the same day, it is not sufficient to hold that the said
injury was in respect of the same incident or arising out of the same incident.
No efforts were taken by accused No.1 (now deceased) to enter into the
witness box nor accused Nos.2 and/or 3 led the evidence. As the plea of
right of private defence has been raised, in this connection, we would like to
consider the legal position on this point. In Raj Singh vs. State of Haryana
and others, [(2015) 6 SCC 268], the Hon'ble Apex Court, in paragraph
No.16, has held as under -
"16. The right of private defence is codified in Sections 96 to 106 IPC.
Sections 96 declares that "nothing is an offence which is done in
exercise of the right of the private defence". Section 97 states that every
person has right of defence of person as well as of property. Section 100
describes the situations in which the right of private defence of body
extends to the extent of voluntarily causing of death. To claim right of
22 Cri.Appeal_27_2017+1_Jd
private defence extending to voluntary causing of death, the accused
must show that there were circumstances giving rise to reasonable
grounds for apprehending that either death or grievous hurt would be
caused to him. The law of private defence does not require that the
person assaulted or facing apprehension of an assault must run away for
safety. It entitles him to defend himself and law gives him right of
private defence. There is no right of private defence where there is no
apprehension of danger. Necessity of averting and impending danger
must be present, real or apparent."
17.1 Further, in the said decision note has been taken of the earlier
decisions in paragraph Nos.17 and 18 as follows -
"17. Elaborating the scope of right of private defence, in Dharam v. State
of Haryana, (2007) 15 SCC 241 in paragraphs (18) and (19) it was held
as under:-
"18. Thus, the basic principle underlying the doctrine of the right of
private defence is that when an individual or his property is faced with
a danger and immediate aid from the State machinery is not readily
available, that individual is entitled to protect himself and his property.
That being so, the necessary corollary is that the violence which the
citizen defending himself or his property is entitled to use must not be
unduly disproportionate to the injury which is sought to be averted or
which is reasonably apprehended and should not exceed its legitimate
purpose. We may, however, hasten to add that the means and the force
a threatened person adopts at the spur of the moment to ward off the
danger and to save himself or his property cannot be weighed in golden
scales. It is neither possible nor prudent to lay down abstract
23 Cri.Appeal_27_2017+1_Jd
parameters which can be applied to determine as to whether the means
and force adopted by the threatened person was proper or not. Answer
to such a question depends upon a host of factors like the prevailing
circumstances at the spot, his feelings at the relevant time, the
confusion and the excitement depending on the nature of assault on
him, etc. Nonetheless, the exercise of the right of private defence can
never be vindictive or malicious. It would be repugnant to the very
concept of private defence.
19. It is trite that the burden of establishing the plea of self-defence is
on the accused but it is not as onerous as the one that lies on the
prosecution. While the prosecution is required to prove its case beyond
reasonable doubt, the accused need not establish the plea of self-
defence to the hilt and may discharge the onus by showing
preponderance of probabilities in favour of that plea on the basis of the
material on record (see Munshi Ram v. Delhi Admn.(AIR 1968 SC 702),
State of Gujarat vs. Bai Fatima (1975) 2 SCC 7) and Salim Zia v. State
of U.P. (1979) 2 SCC 648)."
18. In Bhanwar Singh v. State of M.P., (2008) 16 SCC 657, in paragraphs
(50) and (60) it was held as under:-
"50. The plea of private defence has been brought up by the appellants.
For this plea to succeed in totality, it must be proved that there existed a
right to private defence in favour of the accused, and that this right
extended to causing death. Hence, if the court were to reject this plea,
there are two possible ways in which this may be done. On one hand, it
may be held that there existed a right to private defence of the body.
However, more harm than necessary was caused or, alternatively, this
right did not extend to causing death. Such a ruling may result in the
application of Section 300 Exception 2, which states that culpable
homicide is not murder if the offender, in the exercise in good faith of
24 Cri.Appeal_27_2017+1_Jd
the right of private defence of person or property, exceeds the power
given to him by law and causes the death of the person against whom
he is exercising such right of defence without premeditation, and
without any intention of doing more harm than is necessary for the
purpose of such defence. The other situation is where, on appreciation
of facts, the right of private defence is held not to exist at all.
60. To put it pithily, the right of private defence is a defence right. It is
neither a right of aggression nor of reprisal. There is no right of private
defence where there is no apprehension of danger. The right of private
defence is available only to one who is suddenly confronted with the
necessity of averting an impending danger not of self-creation. Necessity
must be present, real or apparent". (emphasis added)
The same view is also expressed in the cases of Biran Singh v. State of
Bihar [AIR 1975 SC 87], Wassan Singh v. State of Punjab [(1996) 1 SCC
458], Sekar v. State [(2002) 8 SCC 354], Buta Singh v. State of Punjab
[AIR 1991 SC 1316] and James Martin v. State of Kerala [(2004) 2 SCC
203]."
18 The right of private defence should always be proportionate. If
the other person is armed, then so much of the assault will be permitted
which will disarm him. Here, it has not been cogently brought on record by
the accused that the informant's side was armed. Even if for the sake of
argument it is accepted that there was one axe with them, which farmer may
usually carry, still all the four persons i.e. one deceased, informant (now
deceased), PW 9 and PW 10 were assaulted with axe or deadly weapon.
25 Cri.Appeal_27_2017+1_Jd
Under such circumstance, the question of right of private defence does not
arise. This fact can also be considered from another angle in the written say
which is part of statement under Section 313 of the Code of Criminal
Procedure. The accused persons have stated that since last 4-5 months the
informant and his relatives were trying to create the path way. Of course, it
is tried to be contended that accused No.1 (now deceased) had filed an
application before Tahsildar, but no documentary evidence to that effect has
been produced. Accused No.1 (now deceased) had every right to file an
application before Tahsildar to restrain Vyankatrao and/or Bhagwanrao and
also he could have approached the Civil Court with a similar prayer in order
to protect damage to his property, but without taking recourse to such
relatives the accused persons cannot be allowed to take law in their hand.
When three of them had gone with the axe and it has come on record that all
the three of them have used those axes, then the case will not come within
the exception to Section 300 of the Indian Penal Code. It cannot be said that
the said dispute or incident was a result of sudden fight. Exception 4 to
Section 300 of the Indian Penal Code can be invoked if death is caused, a)
without premeditation, b) in a sudden fight, c) without the offender having
taken undue advantage or acted in a cruel or unusual manner; and d) the
fight must have been with the person killed. To bring a case within Exception
26 Cri.Appeal_27_2017+1_Jd
4 of the ingredients mentioned in it must be found. This has been so held in
Pappu vs. State of Madhya Pradesh [(2006) 7 SCC 391].
19 Objection has been raised as regards the fact that the First
Information Report is not proved. No doubt, when the evidence began
Vyankatrao was no more, but the prosecution has not come with a case that
he died due to the injuries sustained by him on 08.09.2017. Prosecution has
examined PW 19 Dr. Aditya Deshpande, who had given endorsement
regarding the mental status of Vyankatrao, however, the said First
Information Report cannot be considered under Section 32(1) of the Indian
Evidence Act. Even if the First Information Report is not duly proved in this
case; yet, it has no fatal effect on the prosecution story. The story has been
proved through the other witnesses.
20 Prosecution has examined PW 2 Chandrakant Jadhav, PW 3
Kashinath Gawre, PW 5 Madhukar Aradwad to prove the discovery and
recovery of the axe by each one of the accused. The testimony of these
witnesses cannot be simply discarded on the ground that they are the
relatives of the deceased. The information is stated to have been given
voluntarily by the accused and, therefore, the discovery is under Section 27
of the Indian Evidence Act. They have been cross-examined at length and
27 Cri.Appeal_27_2017+1_Jd
their testimony has not been shattered. The C.A. report says that there was
blood on all the three axes and it was human. That much evidence is
sufficient. PW 1 Shivaji has proved the inquest panchnama Exh.63, PW 4
Dipak Kamble has proved the panchnama of seizure of dhoti of Vyankatrao,
PW 6 Devanand has proved the spot panchnama Exh.84, PW 7 Basavraj has
proved the panchnama of seizure of cloths of deceased, PW 8 Sayyad Babu
has proved the seizure of clothes of all the accused persons and those
panchnamas are separate panchnamas. Even if we raise doubt as regards
testimony of PW 8 Sayyad Babu because arrest of accused Nos.2 and 3 is said
to be on 11.09.2012, then why their clothes would be seized on 20.09.2012,
is a question. Still, by keeping aside the said panchnama prosecution has
proved its story.
21 Now, coming to the defence again it was tried to be submitted
that the injuries to accused No.1 (now deceased) have not been explained by
the prosecution. Questions were asked to PW 9, 10, 12 and 13, but here, in
this case, as aforesaid, only the certified copy of the evidence in the cross case
has been produced. Therefore, we cannot say that under these circumstances
the prosecution was duty bound to explain the injuries on the person of
accused No.1 (now deceased). When we cannot read the evidence of the
Doctor, who was examined in the other case, we are unable to get the nature
28 Cri.Appeal_27_2017+1_Jd
of the injuries those were sustained by accused No.1 (now deceased). When
such incidences take place, there would be certainly injury to the accused
person also and, therefore, each and every injury is not required to be
explained. Much less, as regards the simple injuries are concerned, those are
not required to be per se explained.
22 Prosecution has examined PW 13 Narayan Koulgave. But taking
into consideration his cross-examination and also his statement under Section
161 of the Code of Criminal Procedure, wherein he has specifically stated
that he had not seen the incident, but then at the time of substantial evidence
he was posing himself as an eye witness, his testimony deserves to be
discarded in toto.
23 While going through the impugned judgment we found that four
axes seized in the matter have been directed to be sent to District Magistrate
for its disposal according to law, however, we would say that axe is not an
arm defined under the Indian Arms Act, but it is an agricultural implement,
which can be used by the farmers. Therefore, in view of paragraph No.81 of
Chapter VI of Criminal Manual that is required to be put to auction and the
sale proceeds are required to be credited to Government. Accordingly, we
modify the said order in respect of disposal of muddemal property i.e. four
29 Cri.Appeal_27_2017+1_Jd
axes (Article B-1 to B-3 and Article 6).
24 Therefore, taking into consideration the above said reasons we
hold that the prosecution had proved that the accused persons had
committed offence punishable under Section 302, 324 read with Section 34
of the Indian Penal Code. Learned trial Judge was right in acquitting all the
accused persons from the offence punishable under Section 307, 341 of the
Indian Penal Code and, therefore, there is no reason to interfere with the
decision of the trial Court, except the fact that the original accused No.1 i.e.
appellant No.1 has expired during the pendency of the appeal. Hence,
following order.
ORDER
1 Criminal Appeal No.27 of 2017 stands dismissed as against
appellant No.2) Mahesh Manik Mote and appellant No.3) Siddheshwar
Manik Mote.
2 In view of order passed by this Court on 28.08.2023 the appeal
stands abated as against appellant No.1) Manik Hanmant Mote.
3 Criminal Appeal No.883 of 2018 filed by prosecution stands
dismissed.
30 Cri.Appeal_27_2017+1_Jd
4 It is clarified that there is no change in respect of muddemal
property i.e. disposal of clothes, soil, spectacle, soybean leaves, cap, stick,
pair of chappal, shoe to be destroyed, however, muddemal property i.e. 4
axes (Article B-1 to B-3 and Article 6) be put to auction and the sale proceeds
be credited to Government.
(ABHAY S. WAGHWASE, J.) ( SMT. VIBHA KANKANWADI, J. )
agd
