Bombay High Court
Manohar S/O Uttamrao Sadavarte ... vs The State Of Maharashtra on 13 September, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:19826-DB
appeal-30.16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.30 OF 2016
1) Manohar S/o Uttamrao Sadavarte,
Age-20 years, Occu:Labour,
R/o-Warudi, Tq-Paithan,
Dist-Aurangabad,
2) Uttam S/o Maroti Sadavarte,
Age-50 years, Occu:Labour,
R/o-Warudi, Tq-Paithan,
District-Aurangabad.
...APPELLANTS
(Orig. Accused Nos.1 and 2)
VERSUS
The State of Maharashtra
...RESPONDENT
(Orig. Respondent)
...
Ms. Poonam V. Bodke Patil Advocate for Appellants.
Mr. R.D. Sanap, A.P.P. for Respondent-State.
...
CORAM: SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE OF RESERVING JUDGMENT : 13th JULY 2023
DATE OF PRONOUNCING JUDGMENT : 13th SEPTEMBER 2023
appeal-30.16
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Present Appeal has been filed by original accused Nos.1
and 2 challenging their conviction by the learned Additional
Sessions Judge-4, Aurangabad on 26th November 2015 in
Sessions Case No.380 of 2012 after holding them guilty of
committing offence under Section 302, 326 read with Section 34
of the Indian Penal Code.
2. The prosecution story, in short, is that the informant
Subhash is resident of Warudi, Taluka-Paithan, District-
Aurangabad. His family consists of his wife and children. His
brother Ashok resides adjacent to him with his wife, children and
their parents. The accused persons are distantly related to them
and reside in the same lane at some distance. His brother Ashok
has two daughters. Around 2.00 a.m. on 4 th June 2012 when
Ashok's wife and daughter were sleeping on Ota (raised
platform) situated in front of their house, accused No.1 Manohar
with one child in conflict with law and their friend had pulled
hand of daughter of Ashok with ill-intention. Ashok had lodged
report regarding the said incident with MIDC Paithan Police
Station. Accused No.1 had, therefore, grudge against Ashok and
family.
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3. It is the further prosecution story that around 8.30 p.m.,
on 2nd July 2012, Ashok, his wife Meerabai and mother Kantabai,
PW-1 Subhash were sitting on Ota in front of their house and
were taking dinner. Accused No.1 Manohar came there under
drunken condition and started hurling abuses. Ashok and
Subhash had tried to convince him, but he caught hold of the
collars of their shirts near throat. When Subhash and Ashok were
trying to rescue themselves, accused No.2 Uttam i.e. father of
accused No.1 came there armed with two sword sticks (gupti).
Accused No.2 Uttam gave one of the sword stick to accused No.1
Manohar and thereupon accused No.1 Manohar pierced the
sword stick on the left side of the chest of Ashok. Thereafter, he
pierced the sword stick in the back of Ashok. When Subhash
went to rescue Ashok, accused No.2 Uttam pierced the sword
stick twice in the left thigh of Subhash. Ashok as well as
Subhash sustained bleeding injuries and they fell on the ground.
Thereupon Meerabai came to rescue them but at that time
accused No.2 Uttam inflicted blow of sword stick on the right
side of abdomen of Meerabai. She had also sustained bleeding
injuries and fell down. Thereafter Kantabai raised shouts and at
that time another accused Babasaheb, who is cousin of accused
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No.1 Manohar, caught hold the hands of Kantabai and accused
No.1 Manohar gave blow of sword stick on her abdomen. Original
accused No.3 Jijabai gave beating to Kantabai by fists and slaps.
Kantabai also sustained bleeding injuries and fell down. Villagers
took the injured to the Rural Hospital, Paithan. Somebody had
informed the incident of assault to the Police Station and
therefore, Police came to village Warudi and then they came to
know that injured persons have been taken to Rural Hospital,
Paithan, therefore, PW-12 PI Rajendra Kadam went to Hospital
by deputing staff members in the village. It was noticed by PI
Kadam that all the four injured persons had sustained serious
injuries, even then he gave letter to the medical officer seeking
permission to record their statements but it was certified by the
medical officer that injured are not in a position to give
statements. The medical officer at Rural Hospital, Paithan then
referred all the injured to Ghati Hospital, Aurangabad. Along with
the injured, PI Kadam had sent Police Naik Shri Lone to Ghati
Hospital to record statements of the injured persons. However,
upon reaching at Aurangabad the medical officer declared Ashok
dead and the other injured persons were admitted for treatment.
Thereafter Police Naik Shri Lone recorded the statement of
Subhash and on the basis of the same the First Information
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Report (for short "the FIR") was registered vide Crime No.87 of
2012 under Sections 302, 307, 326, 325, 323, 504 read with
Section 34 of the Indian Penal Code. PI Kadam has then
investigated the matter.
4. The Investigating Officer has thereafter executed the spot
panchnama and recorded the statements, whereas the inquest
panchnama was also got executed and the dead body of Ashok
was sent for postmortem. The accused persons came to be
arrested. During the custody, accused Nos.1 and 2, by separate
memorandums, discovered two sword sticks, which came to be
seized under panchnamas. The clothes of the deceased and
injured as well as that of accused came to be seized under
panchnamas. The injury certificates of the injured persons came
to be collected and after the investigation was over, charge-sheet
was filed against three persons.
5. After committal of the case when accused persons pleaded
not guilty, trial has been conducted. The prosecution has
examined in all 13 witnesses to bring home the guilt of the
accused. Accused have given written say which was part of
statement under Section 313 of the Code of Criminal Procedure.
The accused persons have examined accused No.1 as defence
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witness, as well as accused No.2 has also been examined as
DW-2. After considering the evidence on record and hearing both
sides, the learned trial Judge has held accused No.1 Manohar
and accused No.2 Uttam guilty of committing offence under
Section 302, 326 read with Section 34 of the Indian Penal Code.
For the offence under Section 302 read with Section 34 of the
Indian Penal Code, accused Nos.1 and 2 have been sentenced to
undergo rigorous imprisonment for life and to pay fine of
Rs.5000/- each, in default of payment of fine, to undergo
rigorous imprisonment for three months. For the offence under
Section 326 read with Section 34 of the Indian Penal Code,
accused Nos.1 and 2 have been sentenced to undergo rigorous
imprisonment for ten years and to pay fine of Rs.2000/- each
and in default of payment of fine, to undergo rigorous
imprisonment for three months. Accused Nos.1 and 2 have been
acquitted of the offence punishable under Sections 307, 323,
504 read with Section 34 of the Indian Penal Code. So also
original accused No.3 Jijabai was acquitted of all the offences.
The set off has been granted to both the accused under Section
428 of the Code of Criminal Procedure.
6. Heard the learned Advocate Ms. Poonam V. Bodke Patil
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appearing for the appellants and learned APP Mr. R.D. Sanap
appearing for the State.
7. It has been vehemently on behalf of the appellants that
the learned trial Judge has not appreciated the evidence
properly. The points which have been raised to challenge the
conviction are as under:-
(1) Prosecution has failed to prove its case beyond reasonable
doubt,
(2) The place of occurrence has not been proved including that
of proof of spot panchnama,
(3) The contradictions and omissions in the testimony of the
prosecution witnesses have not been considered,
(4) Injury to the back of Ashok as stated by PW-1 Subhash is
not corroborated by inquest panchnama. In the FIR also it is not
mentioned that Ashok had sustained injury to his back.
(5) For the first time PW-1 Subhash deposed about piercing of
sword stick from the back of Ashok.
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8. Learned counsel for the appellants further submitted that it
was not considered by the learned trial Court that the case of the
accused would fall under Exception 4 of Section 300 of the
Indian Penal Code and therefore, the case would be under
Section 304 Part II of the Indian Penal Code. The testimony of
both the defence witnesses has not been considered which
shows that it was the right of private defence that was exercised
by them. DW-2 Uttam has specifically stated that when he learnt
that the informant and his family were assaulting Manohar, he
took sword stick and went to the spot to save his son. It was
natural on the part of the father to carry any weapon to deter
the mob and save his son. It cannot be said that the accused
have exceeded their right of private defence.
9. It has been further submitted on behalf of the appellants
that accused had sustained injuries and it has been admitted by
PW-9 Dr. Manish Dabhade. He has admitted that he had received
letter from the Investigating Officer for examining accused No.1
Manohar which is at Exhibit-117. The injury certificate of accused
No.1 Manohar has not been placed along with the charge-sheet.
Thus, the suppression of the same by the prosecution is violating
the rights of the accused. The panchas engaged throughout were
interested persons. Some of them were related to the informant
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and therefore, it can be certainly said that the prosecution has
not examined any independent witness to bring the true story on
record.
10. Alternatively, it has been prayed on behalf of the
appellants that accused No.1 Manohar and accused No.2 Uttam
are behind bars from 3 rd July 2012 and 13th September 2012,
respectively. They were aged 20 and 50 years respectively at the
time of their arrest and therefore, considering the provisions of
the Probation of Offenders Act, benefit be given to them by
holding that the case would fall under Part-II of Section 304 of
the Indian Penal Code. Reliance has been placed on the decision
in Nand Lal and others vs. the State of Chhattisgarh
(Criminal Appeal No.1421 of 2015, decided by the Hon'ble
Supreme Court on 14th March 2023), wherein it was held that the
non-explanation of the injuries on the person of accused is fatal
and the benefit of the same should go to the accused.
11. Per contra, the learned APP strongly opposed the Appeal
and supported the reasons given by the learned trial Judge in
convicting the appellants. It is submitted that the trial Court has
rightly appreciated the evidence and has dealt with each and
every point raised by the appellants. The accused persons
appeal-30.16
appeared to be taking two contrary stands, at one place they are
saying that they were not at all involved in the incident and at
another breath they want to say that they have exercised their
right of private defence. For exercising right of private defence
the accused should admit their presence at the spot. Prosecution
case rests on the testimony of three eye witnesses. PW-1
Subhash, PW-2 Meerabai and PW-3 Laxman. They stood
corroborated as regards the fact that sword sticks were used.
Accused No.1 Manohar had pierced the sword stick, after it was
handed over to him by accused No.2 Uttam, on the left side of
the chest of Ashok. Thereafter piercing was from the back of
Ashok by him with the said sword stick. Meerabai was assaulted
by accused No.2 and PW-1 Subhash was also assaulted by
accused No.2 Uttam. Injured Kantabai was not examined, but
evidence has come on record that she was assaulted by accused
No.1 Manohar with the sword stick. The testimony of
PW-1 Subhash, PW-2 Meerabai and PW-3 Laxman stands
corroborated by medical evidence in the form of examining PW-9
Dr. Manish Dabhade, PW-10 Dr. Anil Patil, PW-11 Dr. Raghuveer
Chandel. The postmortem report Exhibit-77 has been got proved
through PW-10 Dr. Anil Patil. Taking into consideration the
injuries noted in column No.17 of the postmortem report and
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also the injuries which were got proved through PW-11 Dr.
Raghuveer Chandel, when weapon like gupti / sword sticks were
used, it cannot be said that the accused persons had no
intention to kill. The incident had taken place in front of the
house of the informant and not as stated in the submissions on
behalf of the accused that it was in front of the house of the
accused. Every non-explanation of injury to the accused is not
fatal. Here, it has come on record that the injured persons were
trying to rescue each other and therefore, possibility of causing
injuries to the accused persons in the scuffle cannot be ruled
out, for which the prosecution need not explain. Further those
sword sticks have been recovered under Section 27 of the Indian
Evidence Act in front of PW-6 Bhimrao and PW-7 Bappasaheb at
the behest of accused Nos.1 and 2, respectively. Therefore, the
evidence that was adduced to prove the guilt of the accused was
beyond reasonable doubt and therefore, the conviction against
the accused need not be interfered with.
12. The prosecution case is depending on the direct evidence.
Though injured Kantabai has not been examined, it is required to
be seen as to whether evidence in respect of injuries to her has
been brought on record by the prosecution or not. The testimony
of PW-1 Subhash - brother of deceased, PW-2 Meerabai - widow
appeal-30.16
of the deceased Ashok and PW-3 Laxman, who is the father of
deceased and PW-1 Subhash, would show that there is
consistency in saying that about a month prior to the incident
accused No.1 Manohar had misbehaved with the daughter of
deceased Ashok and PW-2 Meerabai, which incident was reported
to MIDC Police Station, Paithan. In the cross-examination we
have not found any serious challenge to the said fact about
registration of the FIR against accused No.1 for earlier incident.
According to these three witnesses, accused No.1 was having
grudge against them as the said FIR was lodged against him. All
of them then deposed about the incident dated 2nd July 2012.
Deceased Ashok, PW-2 Meerabai, PW-1 Subhash and mother
Kantabai were sitting in the veranda / Ota in front of their house
for dinner around 8.00 to 8.30 p.m. Accused No.1 Manohar alone
had came there under drunken condition and started hurling
abuses to the children of Subhash and Ashok. They say that
thereupon Ashok and Subhash had tried to convince him not to
hurl abuses. At that time accused No.1 Manohar caught hold of
collars of shirts of these two brothers. Thereafter accused No.2
Uttam came with two sword sticks. He gave one of the sword
stick to accused No.1 Manohar and then Manohar had pierced
the sword stick in the chest of Ashok. It appears that second
appeal-30.16
blow was given in back. According to PW-1 Subhash, he had
tried to snatch sword stick from accused No.1 but at that time
accused No.2 Uttam had pierced the sword stick, twice, on his
left thigh. Ashok as well as Subhash sustained bleeding injuries
and they fell down on the ground.
13. Here, now the objection has been raised on behalf of the
accused that in the FIR it is not stated that the second blow was
to the back of the deceased Ashok and also there is no mention
about the same in the inquest panchnama. Important point to be
noted is that inquest panchnama Exhibit-36 came to be exhibited
as it was admitted by the defence, because of the same it
appears that the prosecution had not examined the panchas to
the inquest panchnama as well as PSI Shelke who was present
at the time of execution of Exhibit-36. Now accused are
estopped from giving any different interpretation to the said
document. Further, from postmortem report Exhibit-77 which
has been proved by PW-10 Dr. Anil Patil, it can be seen that the
third injury in Column No.17 is :
" stab injury present over right side of back at middle part,
situated 27 cm. from external acceptal potrubance and 15
cm. medial end of scapula and 6 cm. right lateral to
vertebral column, obliquely placed, margins clean cut,
appeal-30.16
infiltrated with of size 1 cm. x 0.3 cm. x cavity deep.
Direction of wound is medially forward and downward. Both
angles acute. "
. There is no specific cross-examination to PW-10 Dr. Anil
Patil on the line now the point is agitated. Rather in the cross-
examination it has been asked whether the third injury caused to
the middle portion of the back of the deceased and he has
answered in the affirmative and then he says that due to that
injury there is possibility of oozing of blood and due to that
possibility of smearing of undergarments of injured with blood,
but there were no blood stains to the back side of the underwear
of the deceased. These questions will not rule out the injury
concerned. Further, the injury that was fatal is required to be
considered and out of the three injuries noted in Column No.17
of the postmortem report, the first injury appears to be fatal
which was to the left side of the chest over 8th rib, vertically
oblique edges clean cut. The internal injuries show that the right
pleura was punctured and there was penetrating wound over
posterior aspect of middle lobe of right lung, running forward,
medially and inferiority. The probable cause of death has been
given as "Shock and haemorrhage due to stab injury to right
lung." Therefore, we do not find any substance in the point
appeal-30.16
raised on behalf of the defence that the injury to the back was
not mentioned in the FIR as well as in the inquest panchnama.
14. All the above three witnesses i.e. PW-1 Subhash, PW-2
Meerabai and PW-3 Laxman would further say that after both the
brothers fell down, PW-2 Meerbai came to rescue them but
accused No.2 Uttam had inflicted blow of sword stick on her right
side of the abdomen. She also sustained bleeding injury and
Kantabai was assaulted by accused No.1 Manohar on her
abdomen by sword stick, who had also then sustained bleeding
injury. A lengthy cross-examination of these witnesses has been
taken, but as regards the sequence of incident is concerned
these witnesses have not given a different version. As regards
cross-examination of PW-3 Laxman is concerned, he has stated
that he was inside the house and when he came out after
hearing the noise, he found that Subhash and Ashok had fallen
on the ground. Therefore, if we consider that he had come to the
spot little late, yet he is the eye witness to the injuries to PW-2
Meerabai and also to his wife Kantabai. The fact which has been
elicited in the cross-examination of these witnesses by asking
question would rather strengthen the prosecution story as PW-1
Subhash in his cross-examination has said that when the first
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attack was made on Ashok, they were nearby to him. He had
seen accused No.2 when accused No.2 was at a distance of
about 5 ft. from him. Subhash has said that he had not tried to
resist accused No.2, but this might be due to sudden happenings
of the events which they had not contemplated as they were
sitting for taking dinner at the relevant time. He has further
stated that Meerabai, Kantabai and he himself were admitted to
Ghati Hospital for about seven days. Merely because they were
annoyed with accused No.1 for his misbehaviour with daughter
of Ashok, it cannot be said that accused No.1 would have been
falsely implicated. They had already taken legal recourse against
accused No.1 Manohar and therefore, possibility of false
implication is ruled out.
15. It has been submitted on behalf of the accused that the
spot of occurrence is different and the photograph shows
different situation. We do not agree with the same. The
testimony of these three witnesses would clearly show that the
incident had taken place in front of their house. At the time of
spot panchnama, some blood drops were found on the cement
concrete road which was 50 to 60 ft. away from Ota. Here, we
can contemplate that when such incident takes place, it need not
appeal-30.16
be confined to one place. A person may run to avoid the blow or
even after the incident takes place he may go at a distance in
injured condition. That does not change the spot of occurrence.
The reliance has been placed by the accused on blood stains
which were found near the house of one Shamrao Aher in the
spot panchnama Exhibit-20, which is 10 to 20 ft. away from the
house of the deceased, but the same will not show that the
informant's side was in any way aggressive. The distance
between the house of the accused and the informant is much
more than that though it is in the same lane. In the cross-
examination of PW-1 Subhash, he has stated that house of the
accused is situated to the west at a distance of about 200 ft.
from their house. Therefore, the question of right of private
defence has to be considered from a different angle and not from
the point that the informant's side was aggressor. It is absolutely
not suggested to these three witnesses that anyone of them was
armed with weapon. The other suggestion that accused No.1 had
come in auto rickshaw and then he had abused to certain
children who tried to climb the auto rickshaw from behind and
the lady members from the family of the informant mistakenly
taking that accused No.1 was abusing them and then attacking
on DW-1, has been denied by PW-1, PW-2 and PW-3 specifically.
appeal-30.16
Here it is to be noted that time which accused have stated
regarding the arrival of accused No.1 in auto rickshaw is
between 6.30 p.m. to 7.30 p.m., whereas the incident in
question is alleged to have taken place between 8.00
to 8.30 p.m.
16. The testimony of PW-1, PW-2 and PW-3 stood corroborated
by the medical evidence. PW-9 Dr. Manish has stated that he had
examined Subhash, Kantabai and Meerabai at a quick succession
between 9.40 p.m., 9.45 p.m. and 9.48 p.m. on the same day.
PW-9 Dr. Manish has noticed following injuries on the person of
PW-1 Subhash:-
"(1) Stab injury left side of thigh admeasuring 2 x 0.5
x 4 cm. Pointed and sharp object and sharp and deep
margin.
(2) Stab injury on medial aspects of thigh, admeasuring
2 x 0.5 x 6 cm. Sharp and deep margin "
. PW-9 Dr. Manish has deposed that age of both the injuries
was within 2 to 3 hours and nature of both the injuries was
simple. Both the injuries were caused by sharp and pointed
object.
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17. PW-9 Dr. Manish has noticed following injuries on the
person of Kantabai:-
"(1) Stab injury left side above the areola of breast
admeasuring 2 x 0.5 x 2 cm. Pointed and sharp object
and sharp and deep margin.
(2) Stab would on right side just below the rib at right
hypochondrium, admeasuring 1 x 0.2 x 3 cm. Sharp and
deep margin."
. PW-9 Dr. Manish has then deposed that age of both the
injuries was within 1 to 2 hours and nature of both the injuries
was simple. Both the injuries were caused by sharp and pointed
object.
18. PW-9 Dr. Manish has noticed following injuries on the
person of PW-2 Meerabai:-
"(1) Stab injury lateral to chest below rib admeasuring 2 x
1 x 4 cm. Pointed and sharp object and sharp and deep
margin.
(2) Stab injury on left side of leg, admeasuring 1 x 0.5
x 4 cm. Sharp and deep margin".
appeal-30.16
. PW-9 Dr. Manish has then deposed that age of both the
injuries was within 2 to 3 hours and nature of both the injuries
was simple. Both the injuries were caused by sharp and pointed
object.
19. Thus, the situs stated by the witnesses and the medical
officer matches. All of them had sustained stab injuries, which
are definitely possible by sword stick. Of course the medical
officer has admitted that in stab injury the depth is always
greater than the length of the injury. He has stated that after 1½
hours from his treatment, injured Meerabai, Subhash and
Kantabai were conscious and oriented. It was tried to be then
contended that the FIR is belated and the statements of the
witnesses have also been taken belatedly. However, there is no
such pin pointing question to PW-12 PI Kadam. Rather, he has
stated that he had gone to Primary Health Center to record the
statement of the injured but it was certified by the medical
officer that the injured are not in a position to give statement.
There is no reason to disbelieve him. We can also understand
that immediately after the incident there would be some kind of
mental shock so also the injured would be more concerned with
the injuries sustained and treatment thereto and therefore it was
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not expected that within fraction of minutes there should be FIR.
Reasonable time would always be considered in favour of the
prosecution. Rather in his cross-examination PW-9 Dr. Manish
has admitted that along with the injured, family members had
accompanied. There were about 100 people accompanying the
injured persons and the condition of Ashok was critical than
other injured persons. He had made inquiry about the history of
the assault and made entry about the same in the MLC Register.
Though he has brought the MLC Register, there was no entry in
the same, that has been so extracted in the cross-examination.
But when the Police had also arrived, he might not have paid
attention to writing the history of assault.
20. Prosecution story is further supported by PW-10 Dr. Anil
Patil who conducted autopsy. Reference about his testimony has
already been made and therefore need not be reproduced.
Further support is in the testimony of PW-11 Dr. Raghuveer
Chandel who was attached to Ghati Hospital as Chief Medical
Officer. He has given the injuries noted by him on the person of
Subhash, Kantabai and Meerabai and as regards Ashok, he
states that Ashok was brought dead. He had noted injuries on
the person of Ashok. Further, PW-13 Dr. Abhijit Chincholi had
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deposed that he examined PW-1 Subhash, PW-2 Meerabai and
injured Kantabai. He was the treating doctor. There is nothing in
the cross-examination which will give a contrary version
regarding the injuries on the persons of those injured.
21. Thus, taking into consideration the parts of the body of
these injured persons which received the injuries, the learned
Sessions Judge has come to the conclusion that offence under
Section 326 of the Indian Penal Code has been proved against
both the accused as there was common intention which occurred
at the spur of moment when PW-2 Uttam handed over one of the
sword stick out of the two which he had brought from the house
and then attack was made. Therefore, as regards offence under
Section 302 of the Indian Penal Code is concerned, though the
blows were given by accused No.1 Manohar, yet when the
weapon was provided to him by his father, accused No.2 Uttam,
it has been held to be a murder i.e. culpable homicide amounting
to murder.
22. Now, it has been tried to be submitted that the case would
fall under the exceptions and thereby the offence that would be
at the most made out, would be under Section 304 Part II of the
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Indian Penal Code. We do not agree with the said submission.
The weapon that is used is sword stick (gupti). It is not the
weapon which is ordinarily kept in anybody's house. Further,
there was a very short period between accused No.1 hurling
abuses, trying to be convinced by PW-1 Subhash and deceased
Ashok and then he catching hold collars of shirt of both of them
and the arrival of accused No.2 Uttam with two sword sticks. It
indicates that the intention was to kill. Accused No.2 Uttam could
have arrived without weapon also to save his son but he arrived
with two sword sticks, supplied one to the son and thereafter
both the accused used it independently on the deceased and
injured persons. Therefore, the intention is very clear. The case
will not fall under any of the exceptions to Section 300 of the
Indian Penal Code.
23. Here itself we would like to consider the testimony of PW-6
Bhimrao and PW-7 Bappasaheb, who are the panchas to the
panchnamas under Section 27 of the Indian Evidence Act
regarding discovery of sword sticks by accused Nos.1 and 2,
respectively. Accused No.1 has discovered the said weapon
which was kept behind the T.V. in his house and accused No.2
has discovered the weapon from below heap of wooden sticks of
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Neem tree in his field. Here the further aspect that is required to
be noted is that accused No.1 Manohar came to be arrested on
3rd July 2012 i.e. on the next day of the incident itself but
accused No.2 appears to be absconding and ultimately came to
be arrested on 13th September 2012 and therefore the
discoveries are on different occasions. The cross-examination of
these two witnesses has not shattered their examination-in-
chief. Therefore, it has been proved through them as well as
from the testimony of PW-12 Investigating Officer Kadam that
accused Nos.1 and 2 had made voluntary statement and
discovered the sword sticks. Of course C.A. reports are not
supporting the prosecution completely as regards the sword stick
is concerned, as the blood stains were not detected. But the
basic nature of the evidence which C.A. reports afford is
corroborative in nature.
24. Learned Advocate for the appellants is relying on the
decision in in Nand Lal and others vs. the State of
Chhattisgarh (supra). The ratio laid down cannot be disputed,
however, it can be said firstly, that in order to explain the
injuries, those injuries might have been substantial. Simple
injuries need not be explained at all. Admittedly there would
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have been some scuffle when the witnesses are saying that one
by one they were trying to rescue each other. The accused have
not tried to bring evidence on record as to what nature of injury
accused No.1 had sustained. There was an attempt to put
questions in cross-examination of PW-9 Dr. Manish, but he
deposed that he had not brought the details. When both the
accused had examined themselves in defence, they could have
certainly asked for witness summons to be issued to bring the
nature of the injury allegedly sustained by accused No.1
Manohar, on record. Here, the arrest panchnama of accused No.1
makes a mention that there was an injury to the left elbow. This
might be a very simple injury which need not be explained at all
and therefore, the ratio laid down in Nand Lal and others vs.
the State of Chhattisgarh (supra) cannot be made applicable
to the facts of this case.
25. Now turning towards evidence in defence, DW-1 Manohar
has given in detail, according to him why the incident took place.
It is to be noted that in his examination-in-chief he has stated
that Ashok was in drunken condition and Ashok was beating him
by means of stump on his hands, legs, thighs etc. But there is no
documentary evidence to support the same. He then says that
appeal-30.16
somebody had informed the fact to his father and within two
minutes his father came. Manoarh then says that his father was
making request to Ashok, Subhash and Laxman and three ladies
that not to assault his son otherwise he would die. They did not
pay attention and started beating. In the meantime Ashok picked
up a big stone lying at the side of road and when he was about
to throw it on the head of Manohar and Manohar was unable to
move due to assault, his father took out sword stick from inside
his shirt and gave blow of the same to Ashok. As a result of said
blow, Ashok fell down along with stone. Manohar again says that
after Ashok fell down the other three ladies and Subhash were
still beating him. His father had given blow to them also by
sword stick. He says that as those persons were about to kill
him, his father made attack to save him. This entire story was
never put to these prosecution witnesses together. That means it
was put in piecemeal and they have denied the same. Accused
No.1 / DW-1 Manohar has solely blamed his father for the attack
with sword stick and according to him only one sword stick was
used. In his examination-in-chief he has clearly stated that he
has not used any gupti (sword stick). But then he has not stated
that the discovery of the sword stick is not by him at all. When
he enters the witness box then he should put forth his entire
appeal-30.16
story and it should not be left at any point of time. In his cross-
examination he has admitted that he had sustained abrasion to
his left hand, leg and it was bleeding injury. As regards abrasion
is concerned, certainly attack by the sword stick is not justifiable
at all. His version that Ashok fell down with the stone does not
get supported by PW-10 Dr. Anil Patil who conducted the
autopsy. In the cross-examination Dr. Anil Patil has further
admitted that Ashok died due to injuries suffered by him by
means of sword stick in that incident.
26. DW-2 Uttam is accused No.2. He has stated that one boy
had come to his house while saying that the relatives of Ashok
are beating Manohar. He realized that due to previous dispute
those persons might be beating his son and when he was in his
house he thought that those persons would beat him also and
therefore he took the gupti (sword stick) from his house,
concealed it under his shirt and went to the spot. It is to be
noted that the discovery panchnama Exhibit-54 and 55 by him
gives the length of the sword stick as 25 cm. having 16 cm.
blade and 9 cm. handle, width of the blade was 1 cm. How this
could have been concealed in his shirt, is a question. Now DW-2
Uttam improves the story by saying that even after his request
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all these persons were not leaving Manohar but PW-3 Laxman
was present armed with sickle and he was threatening the
people who were gathered, not to intervene and when Uttam as
well as Manohar were requesting not to beat Manohar, his son
was not spared. Ashok threw the stick from his hand and then
picked up a stone, then PW-2 Uttam took out sword stick and
showed it to Ashok, still Ashok was not moved and started to go
ahead towards Ashok, then Uttam gave blow of sword stick to
Ashok from back side. PW-2 Uttam then corrected himself by
saying that he gave the blow to Ashok from front side. It was
asked to him what Meerabai, Kantabai and Nandabai were doing,
he says that they were engaged in beating his son. Uttam had
beaten them and Subhash also. He has not given any reason as
to why he had still given the blow of sword stick to the injured
persons. He admits that after the incident he fled away. He has
stated that he had tried to save life of his son. The cross-
examination would show that he has conveniently changed his
version and he as well as DW-1 Manohar tried to say that many
people had gathered at the spot when the incident was going on.
There is no reason given by the accused persons as to why they
have not examined any of those eye witnesses to support their
version.
appeal-30.16
27. The accused persons have then tried to put forth the plea
of right of private defence. 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 S.C.C. 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 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. "
. Further, in the said decision note has been taken of the
earlier decisions in Paragraph Nos. 17 and 18 as follows:-
appeal-30.16
"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 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
appeal-30.16
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 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
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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."
28. Further, in Pappu vs. State of M.P., (2006) 7 SCC 391,
the applicability of Exception 4 of Section 300 of the Indian Penal
Code has been considered as follows in Paragraph Nos.12
and 13:-
"12. For bringing in its operation it has to be established that the
act was committed without premeditation, in a sudden fight in the
heat of passion upon a sudden quarrel without the offender having
taken undue advantage and not having acted in a cruel or unusual
manner.
13. The Fourth Exception of Section 300 IPC covers acts done
in a sudden fight. The said exception deals with a case of
prosecution not covered by the first exception, after which its
place would have been more appropriate. The exception is founded
upon the same principle, for in both there is absence of
premeditation. But, while in the case of Exception 1 there is total
deprivation of self-control, in case of Exception 4, there is only
that heat of passion which clouds men's sober reason and urges
them to deeds which they would not otherwise do. There is
provocation in Exception 4 as in Exception 1; but the injury done is
appeal-30.16
not the direct consequence of that provocation. In fact Exception 4
deals with cases in which notwithstanding that a blow may have
been struck, or some provocation given in the origin of the dispute
or in whatever way the quarrel may have originated, yet the
subsequent conduct of both parties puts them in respect of guilt
upon equal footing. A 'sudden fight' implies mutual provocation
and blows on each side. The homicide committed is then clearly
not traceable to unilateral provocation, nor in such cases could the
whole blame be placed on one side. For if it were so, the Exception
more appropriately applicable would be Exception 1. There is no
previous deliberation or determination to fight. A fight suddenly
takes place, for which both parties are more or less to be blamed.
It may be that one of them starts it, but if the other had not
aggravated it by his own conduct it would not have taken the
serious turn it did. There is then mutual provocation and
aggravation, and it is difficult to apportion the share of blame
which attaches to each fighter. The help of Exception 4 can be
invoked if death is caused (a) without premeditation, (b) in a
sudden fight; (c) without the offender's 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 4 all the ingredients mentioned in it must be found. It is
to be noted that the 'fight' occurring in Exception 4 to Section 300
IPC is not defined in the IPC. It takes two to make a fight. Heat of
passion requires that there must be no time for the passions to
cool down and in this case, the parties have worked themselves
into a fury on account of the verbal altercation in the beginning. A
fight is a combat between two and more persons whether with or
without weapons. It is not possible to enunciate any general rule
as to what shall be deemed to be a sudden quarrel. It is a question
of fact and whether a quarrel is sudden or not must necessarily
depend upon the proved facts of each case. For the application of
Exception 4, it is not sufficient to show that there was a sudden
quarrel and there was no premeditation. It must further be shown
that the offender has not taken undue advantage or acted in cruel
appeal-30.16
or unusual manner. The expression 'undue advantage' as used in
the provision means 'unfair advantage'. "
29. Further, in Jassa Singh and others vs. State of
Haryana (2002) 2 SCC 481, Exception 2 of Section 300 of the
Indian Penal Code was considered and it has been observed that
if only it comes within Exception 2 to Section 300 of the Indian
Penal Code, the gravity of the offence be reduced and the acts
committed by the assailants would come within the purview of
culpable homicide not amounting to murder. Of course this was
the case wherein right of private defence to protect the property
was mainly agitated and in the present case the appellants want
to state that the right of private defence was used to protect the
life of accused No.1 Manohar. Therefore, taking into
consideration the above said legal point, the facts are required to
be re-assessed once again.
30. The right of private defence should always be
proportionate. If the other person is armed then so much of the
assault is permitted which will disarm him. Here, first of all even
if we consider the alternative theory that was put forward
regarding the defence of right of private defence, yet no such
circumstance has been proved which would show that whatever
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act has been done by either P.W.1 or by deceased
was with the specific intention. There was no question of danger
to the life of accused No.1 Manohar. Accused have not attempted
to lodge a report in respect of the alleged incident, therefore the
said defence raised cannot be considered. Rather the prosecution
was successful in proving the offence beyond reasonable doubt.
Hence the conviction awarded to accused Nos.1 and 2 is
perfectly legal, based on sound principles of law and correct
appreciation of evidence. It does not require any kind of
interference. There is no merit in the present Appeal and it
deserves to be dismissed.
31. The Appeal is dismissed.
[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/SEP23
