Bombay High Court
Rajkumar Gyandev Pujari @ Rajkumar ... vs The State Of Maharashtra on 30 August, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:20239-DB
Cri.Appeal No.672/2021 with
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.672 OF 2021
1) Arun s/o Gyandev Pujari @
Arun s/o Gyandev Birajdar
Age 54 years, Occupation :
Agriculture & Labour,
Resident of : Tadola, Ambajoga,
Tal.Ambajogai, Dist. Beed (Maharashtra)
Permanent Resident of
Opp. Manjara Sakhar Karkhana Get,
Railway Gate, Shamnagar, Latur,
Dist. Latur, PIN - 413 531 (Maharashtra)
Aadhar No. 3187 2556 8918
Mobile No. 9175133419
2) Baliram s/o Gyandev Pujari @
Baliram s/o Dnyandeo Birajdar,
Age 39 years, Occupation :
Agriculture & Labour,
Resident of Tadola, Ambajoga,
Tal. Ambajogai, Dist. Beed (Maharashtra)
Permanent Resident of
Modi Nagar, Murud, Murud Bu., Latur
Dist. Latur, PIN - 413 510, Maharashtra
Aadhar No. 6656 8426 8536
Mobile No. 9175133419 ... APPELLANTS
(Orig. Accused No.5 & 6)
VERSUS
The State of Maharashtra
At the instance of Police Station Officer,
Police Station, Bardapur
Tal. Ambajogai, Dist. Beed, Maharashtra
(Copy to be served on the office of the
Public Prosecutor, Criminal Appellate
Side, High Court, Aurangabad Bench,
Aurangabad) ... RESPONDENT
.......
Mr. A.D. Ostwal, Advocate for appellant
Mrs. S.N. Deshmukh, A.P.P. for respondent
.......
Cri.Appeal No.672/2021 with
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WITH
CRIMINAL APPEAL NO.80 OF 2022
1) Rajkumar s/o Gyandev Pujari @
Rajkumar s/o Gyandev Birajdar
Age 52 years, Occupation :
Agriculture & Labour,
Resident of : Tadola, Ambajoga,
Tal.Ambajogai, Dist. Beed (Maharashtra)
(address as mentioned in impugned judgment)
2) Ankush s/o Gyandev Pujari @
Ankush Dnyandeo Birajdar,
Age 60 years, Occupation :
Agriculture & Labour,
Resident of Tadola, Ambajoga,
Tal. Ambajogai, Dist. Beed (Maharashtra)
(address as mentioned in impugned judgment)
... APPELLANTS
(Orig. Accused No.3 & 4)
VERSUS
The State of Maharashtra
At the instance of Police Station Officer,
Police Station, Bardapur
Tal. Ambajogai, Dist. Beed, Maharashtra
(Copy to be served on the office of the
Public Prosecutor, Criminal Appellate
Side, High Court, Aurangabad Bench,
Aurangabad) ... RESPONDENT
.......
Mr. A.D. Ostwal, Advocate for appellant
Mrs. S.N. Deshmukh, A.P.P. for respondent
.......
WITH
CRIMINAL APPEAL NO.81 OF 2022
1) Madan s/o Gyandev Pujari @
Madan s/o Dyandev Pujari
Age 44 years, Occupation :
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Agriculture & Labour,
Resident of : Tadola, Ambajoga,
Tal.Ambajogai, Dist. Beed (Maharashtra)
(address as mentioned in impugned judgment)
2) Mahadev Alias Pappu s/o Gyandev Pujari
Age 51 years, Occupation :
Agriculture & Labour,
Resident of Tadola, Ambajoga,
Tal. Ambajogai, Dist. Beed (Maharashtra)
(address as mentioned in impugned judgment)
... APPELLANTS
(Orig. Accused No.1 & 2)
VERSUS
The State of Maharashtra
At the instance of Police Station Officer,
Police Station, Bardapur
Tal. Ambajogai, Dist. Beed, Maharashtra
(Copy to be served on the office of the
Public Prosecutor, Criminal Appellate
Side, High Court, Aurangabad Bench,
Aurangabad) ... RESPONDENT
.......
Mr. A.D. Ostwal, Advocate for appellant
Mrs. S.N. Deshmukh, A.P.P. for respondent
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 30th July, 2024
Date of pronouncing judgment : 30th August, 2024
JUDGMENT (PER R.G. AVACHAT, J.) :
This group of three appeals is decided by this
common judgment and order since the challenge therein is to
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one and the same judgment passed by the Court of Additional
Sessions, Ambajogai (Trial Court) on 23/11/2021 in Sessions
Case, No.87/2012.
2. Eleven persons including the appellants herein
were charged and prosecuted for various offences under the
Indian Penal Code. The Trial Court acquitted the original
accused Nos.7 to 11 (all women) of all the offences they were
charged with. Neither the State nor the victim/s preferred
appeal against their acquittal.
3. Although the main offences under the Indian Penal
Code were particularly punishable under Sections 302, 326,
324 and 323, alleged to have been committed in prosecution of
a common object of an unlawful assembly formed by the
original accused Nos.1 to 11, the Trial Court was pleased to
observe it to have not been a case of formation of an unlawful
assembly and commission of the offences in prosecution of
common object thereof. Original accused Nos.1 to 6 have
preferred these three appeals (one appeal by two each). The
order of conviction and consequential sentence imposed
against them is given in a tabular form below :-
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Appeal Name of appellant Convicted Sentence
No. (Accused No.) under Section
81/2022 1) Madan s/o Gyandeo 302 r/w 34 IPC Imprisonment for
Pujari @ Madan s/o for committing life and fine of
Dnyandeo Pujari murder of Rs.10,000/-, each
AND Vasantrao in default R.I. for
2) Mahadev Alias Pappu s/o Mukund Karad 2 months each
Gyandev Pujari
80/2022 3) Rajkumar s/o Gyandev 302 r/w 34 IPC Imprisonment for
Pujari @ Rajkumar s/o for committing life and fine of
Gyandeo Birajdar murder of Rs.10,000/- each,
AND Laxman s/o in default R.I. for
4) Ankush s/o Gyandev Narhari 2 months each
Pujari @ Ankush Dnyandev Gambhire
Birajdar
672/2021 5) Arun s/o Gyandev Pujari 324 r/w 34 IPC R.I. for 1 year
@ Arun s/o Gyandev each and fine of
Birajdar Rs.1000/- each, in
AND default, R.I. for 1
6) Baliram s/o Gyandev month each
Pujari @ Baliram s/o
326 r/w 34 IPC R.I. for 2 years
Dnyandev Birajdar
each and fine of
Rs.1000/- each, in
default, R.I. for 1
month each.
The substantive sentences have been directed to run concurrently.
4. The gist of the prosecution case, as is appearing
from the evidence adduced before the Trial Court, is as
under :-
There are agricultural lands bearing Gut Nos.137
and 146 within the limits of village Tadola, Taluka Ambajogai,
District Beed. Ganesh (P.W.1) lodged the First Information
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Report (F.I.R. - Exh.72), while he was in hospital on 16/4/2012.
Sangita was one of his sisters. She was a wife of one of the
sons of Vasantrao Karad (deceased). Sangita was blessed
with a child. Vasantrao had two grand-children including son
of Sangita. He (Vasantrao) purchased two and half acres of
land forming part of both the aforesaid Gut Numbers from
Haralkar brothers way back in 2009. Since the day of
purchase, Vasantrao was cultivating the land purchased in the
names of the grand-children.
5. It is also the case of the prosecution that,
Vasantrao had raised sugarcane in his land in the year 2012.
Since the day of purchase, there have been disputes between
Vasantrao on one hand and the appellants on the other, over
boundary/ possession of those lands. Vasantrao learnt the
appellants to have been engaged in harvesting sugarcane on
15/4/2012. He (Vasantrao), therefore, along with Ganesh,
Laxman (deceased), Balasaheb, Babasaheb and Sheshrao
Karad (relatives of each other) went to the agricultural field by
4.30 p.m. on 16/4/2012. The appellants, their wives and some
unknown persons were engaged in harvesting the sugarcane
and loading the same in a truck. The appellants were armed
with sickles and axes while the women were armed with sticks.
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Vasantrao (deceased) asked the appellants as to why did they
cut the sugarcane from his field and transport the same. The
appellants and others thereupon started abusing Vasantrao
and his companions. They threatened them of dire
consequences. Appellants Madan and Mahadev assaulted
Vasantrao with sickle and axe. Appellants Rajkumar and
Ankush assaulted Laxman with the similar weapons while
appellants Arun, Baliram and women assaulted Ganesh
(informant) and Babasaheb with sticks. The informant was
lame in one of his legs. He was lying on the field. Babasaheb
(P.W.2) brought all the injured and the informant in his vehicle
to Government Hospital, Ambajogai. On examination, the
Medical Officer declared Vasantrao dead. Laxman breathed
his last during treatment.
6. Since the police had learnt about the incident,
might be from the hospital authorities, they rushed to the
hospital. P.W.1 Ganesh lodged the F.I.R. (Exh.72).
7. A crime vide C.R. No.78/2012 was registered for
various offences under the Indian Penal Code against 11
persons. The appellants were arrested. Inquests were drawn.
Autopsy (Exhs.115 and 116) were conducted on the mortal
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remains of both, Vasantrao and Laxman. A crime scene
panchanama (Exh.95) was drawn. Sticks were seized from
the crime scene. Appellants Rajkumar, Ankush Madan and
Mahadev Alias Pappu made disclosure statements, pursuant
to which axes and sickles came to be seized under the
panchanamas. Injury certificates of the injured were obtained.
Clothes on the person of the deceased were seized. All the
seized articles were sent to Forensic Science Laboratory
(FSL), Aurangabad for analysis and report. Statements of
persons acquainted with the facts and circumstances of the
case were recorded.
8. Upon completion of the investigation, a charge
sheet was filed. The Trial Court framed the Charge (Exh.34).
The prosecution examined 7 witnesses and adduced in
evidence certain documents to establish the charge.
9. On appreciation of the evidence in the case, the
Trial Court convicted the appellants and consequently
sentenced them as stated above in paragraph No.3.
10. Heard. Learned Advocate for the appellants,
although initially reiterated the defences raised before the Trial
Court, ultimately came around to submit it to be a case of
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exercise of private defence of person and property. According
to him, the appellants belonged to Gurav community while the
deceased, injured, their witnesses and even investigating
officer belonged to one caste. All of them teamed up together
to ensure the appellants were dispossessed of their
agricultural land, Gut No.137. According to him, the said land
was ancestral property of the appellants. Vasantrao
(deceased) or his so called predecessors-in-title of land Gut
N.137 did not have right, title and interest in the said land. The
crime scene panchanama (Exh.95) would indicate that, the
witness thereto admitted in cross-examination the boundaries
described therein were not correct. On the eastern side of the
land, there was sugarcane raised by the appellants. It was
ripe for harvesting. The 7/12 extract of the said land would
indicate existence of only one well therein, belonging to the
appellants. An electric motor was installed by the appellants
on the well to fetch water to irrigate sugarcane crop. Our
attention was adverted to, to suggest that there was only one
well in land Gut No.137. With the very well water the
sugarcane was raised by the appellants. Neither the deceased
nor the prosecution did prove existence of any other well/
borewell or irrigation facility for raising sugarcane crop by
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Vasantrao. According to him, during the lifetime of Gyandeo,
Vasantrao did not dare to enter his field Gut No.137.
11. Our attention was adverted to Exh.84, an
application moved by Vasantrao to the concerned Police
Station. It was a got up document. Not less than 20 persons
had accompanied Vasantrao to the land. On their arrival, a
tense situation arose. Some of them assaulted sugarcane
harvesters, sent by the concerned sugar factory for cutting of
cane and transporting it to the factory. Vasantrao and those
persons were armed with weapons. There was no evidence to
indicate one of the vehicles wherein the village Sarpanch and
others had arrived, was damaged by any of the appellants. A
host of documents were placed on record on behalf of the
appellants indicating existence of well, electric motor thereon
and payment of electricity bill.
12. Certain omissions amounting to contradictions in
the evidence of the informant and the other injured witness
were sought to be brought on record. We do not propose to
refer thereto since it has little relevance to decide the appeal in
view of right of private defence of person and property to have
been raised. It was also brought to the notice that, lands Gut
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No.137 and 146 were at a distance of 1500 ft. from each other.
Certain evidence elicited during the cross-examination of
P.W.1 Ganesh (informant) was also adverted to. The said
witness admitted that, before leaving for the land Gut No.137,
they had no apprehension that there would be dispute there.
They had not even accompanied Vasantrao for his protection.
In our view, this evidence has been invited by the appellants
against themselves. P.W.1 Ganesh denied to have assaulted
the persons present there. An admission given by other eye
witness Babasaheb (P.W.2) that no women were involved in
the incident, was specifically adverted to. Based on the same,
it was suggested that, the witnesses did not speak truth.
13. The learned Advocate then referred to the evidence
of P.W.2 Babasaheb, who admitted that it was Sheshrao who
stopped him and asked to accompany them to go to the place
with regard to the dispute filed by Vasantrao. The persons
who had come to the land were not less than 15 in number. A
first group of persons namely Vasantrao, Ulhas, Pandit
Karhad, Ramesh, Sheshrao, Amol had come in one vehicle.
Before they reached, Ganesh (P.W.1) and Babasaheb (P.W.2),
Laxman and Vasantrao and some others were already present.
He claimed ignorance of the conversation took place between
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Vasantrao and the appellants before they reached there. A
specific attention was adverted to evidence of this witness,
who testified that, there was fearful atmosphere and
apprehension of assault. There was no fight before he went.
It is true to say that, if Vasantrao and they had not gone there,
no incident would have occurred. Contents of crime scene
panchanama (Exh.95) were read out. Our attention was
adverted to the sketch of the crime scene drawn in the
panchanama itself.
14. Learned Advocate then adverted our attention to
the evidence of investigating officer, P.W.7 Sopan. He would
submit that, he was such a police officer who asked Vasantrao
and others to proceed towards the field and they would follow
them. When the police officer had received an application
expression apprehension of assault, what a negligent police
officer he was, is the submission of the learned Advocate for
the appellant. It was submitted to the investigating officer that
they had asked the appellants not to go to the field as there
was danger to their lives. This suggestion appears to be a
trouble inviting suggestion. P.W.7 Sopan admitted that the
place shown in Exhs.146 and 147 was in the field of appellants
Madan and Ankush and his Gut Number was 137. According
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to him, there was field of father of the appellants on three
directions of the place mentioned in both Exhs.146 and 147.
He would further submit that Scorpio was seized at the police
station and not on the spot. The description indicates that,
only there was a dash to the vehicle. A map of the spot
(Exh.163) drawn by Circle Officer was confronted to this
witness, wherein, towards eastern side of Gut No.137,
existence of sugarcane crop has been shown.
15. Learned Advocate then adverted our attention to
the written submissions put up before the Trial Court by the
appellants during their examination under Section 313 of the
Cr.P.C. We have also perused the same.
16. In short, according to learned Advocate, the land
Gut No.137 belonged to the appellants. It was their ancestral
property. There was only one well therein. The appellants had
raised sugarcane crop in the said land (specifically onto
eastern portion). The crop was raised on the water of the very
well on which there is electric motor installed. Pipeline was
laid. 7/12 extract of Gut No.137 was relied on to indicate
existence of well. According to him, the prosecution could not
place on record anything to indicate Vasantrao had ever been
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in possession of the land Gut No.137 and he raised sugarcane
crop therein. He would further submit that, the crop is
registered with a nearby sugar factory. The factory deputes
labourers for cutting/ harvesting sugarcane and transporting it
from the field to the factory. There were sugarcane cutters
sent by the sugar factory. Deceased Vasantrao and his
companions had assaulted some of the sugarcane cutters.
Vasantrao and others were not less than 15 in number. A
tense situation was arose. Vasantrao had arrived at the land,
creating a false evidence in the nature of submitting application
(Exh.84) to the police station. The object of his arrival was to
dispossess the appellants from the land Gut No.137. He then
adverted our attention to the provisions relating to right of
private defence. He then relied on the following judgments :
(1) Ajmer Singh & ors. Vs. State of Haryana
2023 SCC OnLine SC 395
(2) Ex-Ct. Mahadev Vs. Director General, Border Security
Force & ors. [ (2022) 8 SCC 502 ]
(3) Sukumaran Vs. State Represented by the Inspector of
Police [ (2019) 15 SCC 117 ]
(4) Pathubha Govindji Rathod & anr. Vs. State of Gujarat
(2015) 4 SCC 363
(5) State of Rajasthan Vs. Manoj Kumar etc.
(2014) 5 SCC 744
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(6) Arjun vs. State of Maharashtra [ (2012) 5 SCC 530 ]
(7) Darshan Singh Vs. State of Punjab & anr.
(2010) 2 SCC 333
(8) Mohd. Ramzani Vs. State of Delhi [1980 Supp SCC 215]
(9) Salim Zia Vs. State of Uttar Pradesh (1979) 2 SCC 648
(10) Deo Narain Vs. The State of U.P. [ (1973) 1 SCC 347 ]
17. The learned Advocate ultimately urged for allowing
of the appeals since according to him, the exercise of right of
private defence cannot be weighed in a golden scale. He
would ultimately submit, if the Court finds the appellants to
have exceeded their right of private defence, the case would
come within Exception (2) to Section 300 of the Indian Penal
Code. Four of the appellants are behind the bars for little over
12 years. He, therefore, alternatively urged for scaling down
the conviction from offence punishable Section 302 to Section
300 Part I of the Indian Penal Code.
18. The learned A.P.P. would, on the other hand,
submit, the deceased and the injured had been to their field.
None of them was armed with any kind of weapon. None of
the appellants even suffered a scratch. There was no scuffle
at all or even oral wrangle. The deceased had only enquired
with the appellants as to why did they cut the sugarcane from
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their field. Although the appellants denied the deceased to
have any share in the land Gut No.137, she adverted our
attention to certain suggestions given in the cross-examination
indicating the deceased Vasantrao had purchased some
portion in land Gut Nos.137 and 146 in the name of his grand-
children. There was a dispute over a Bandh. There was no
question at all to dispossess the appellants of the lands they
owned and possessed in Gut No.137. Application (Exh.84)
reinforces the case of the prosecution that the appellants were
cutting the sugarcane from the portion of the lands held by the
deceased Vasantrao and his family members. Learned A.P.P.
took us through the evidence on record to submit that no case
of exercise of right of private defence or exceeding the same
has even been made out on the basis of preponderance of
probabilities. She, therefore, urged for dismissal of the
appeals.
19. Considered the submissions advanced. Perused
the impugned judgment and the authorities relied on by both
the sides.
20. Before adverting to appreciation of the evidence to
find whether the appellants have made out a case of exercise
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of right of private defence of body and/or property, and if yes,
have they exceeded the said exercise of their right, relevant
provisions of the Indian Penal Code need to be adverted to.
21. Chapter IV of the Indian Penal Code speaks of
general exceptions. Sections 96 to 106 speak of right of
private defence. We propose to reproduce provisions of
certain Sections thereof as below :
96. Things done in private defence.--Nothing is an
offence which is done in the exercise of the right of
private defence.
97. Right of private defence of the body and of
property.--Every person has a right, subject to the
restrictions contained in section 99, to defend--
First.-- His own body, and the body of any other
person, against any offence affecting the human
body;
Secondly.-- The property, whether movable or
immovable, of himself or of any other person, against
any act which is an offence falling under the
definition of theft, robbery, mischief or criminal
trespass, or which is an attempt to commit theft,
robbery, mischief or criminal trespass.
Extent to which the right may be exercised.-- The
right of private defence in no case extends to the
inflicting of more harm than it is necessary to inflict
for the purpose of defence.
Explanation :- ......
100. When the right of private defence of the body
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extends to causing death-- The right of private
defence of the body extends, under the restrictions
mentioned in the last preceding section, to the
voluntary causing of death or of any other harm to the
assailant, if the offence which occasions the exercise
of the right be of any of the descriptions hereinafter
enumerated, namely:--
First.-- Such an assault as may reasonably cause the
apprehension that death will otherwise be the
consequence of such assault;
Secondly.-- Such an assault as may reasonably cause
the apprehension that grievous hurt will otherwise be
the consequence of such assault;
Thirdly.-- . . . . .
Fourthly.-- . . . . . .
Fifthly.-- . . . . . . .
101. When such right extends to causing any harm
other than death.-- If the offence be not of any of the
descriptions enumerated in the last preceding section,
the right of private defence of the body does not
extend to the voluntary causing of death to the
assailant, but does extend, under the restrictions
mentioned in section 99, to the voluntary causing to
the assailant of any harm other than death.
103. When the right of private defence of property
extends to causing death.-- The right of private
defence of property extends, under the restrictions
mentioned in section 99, to the voluntary causing of
death or of any other harm to the wrong-doer, if the
offence, the committing of which, or the attempting
to commit which, occasions the exercise of the right,
be an offence of any of the descriptions hereinafter
enumerated, namely:--
First.-- . . . . . .
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Secondly.-- . . . . . .
Thirdly.-- . . . . . . .
Fourthly.-- Theft, mischief, or house-trespass, under
such circumstances as may reasonably cause
apprehension that death or grievous hurt will be the
consequence, if such right of private defence is not
exercised.
104. When such right extends to causing any harm
other than death.-- If the offence, the committing of
which, or the attempting to commit which occasions
the exercise of the right of private defence, be theft,
mischief, or criminal trespass, not of any of the
descriptions enumerated in the last preceding section,
that right does not extend to the voluntary causing of
death, but does extend, subject to the restrictions
mentioned in section 99, to the voluntary causing to
the wrong-doer of any harm other than death.
105. Commencement and continuance of the right of
private defence of property.-- The right of private
defence of property commences when a reasonable
apprehension of danger to the property commences.
.....
.....
The right of private defence of property against
criminal trespass or mischief continues as long as the
offender continues in the commission of criminal
trespass or mischief.
22. The right of private defence of body commences as
soon as a reasonable apprehension of danger to the body
arises from an attempt or threat to commit the offence though
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the offence may not have been committed and it continues as
long as such apprehension of danger to the body continues.
23. Section 105 of the Indian Evidence Act, 1872 reads
thus :
"105. Burden of proving that case of accused
comes within exceptions.--When a person is
accused of any offence, the burden of proving the
existence of circumstances bringing the case
within any of the General Exceptions in the
Indian Penal Code (45 of 1860), or within any
special exception or proviso contained in any
other part of the same Code, or in any law
defining the offence, is upon him, and the Court
shall presume the absence of such circumstances."
24. In Vijayee Singh & ors. Vs. State of U.P. [AIR 1990
SC 1459], it has been observed :
"The general burden of establishing the guilt of
accused is always on the prosecution and it never
shifts. Even in respect of the cases covered by
S.105 the prosecution is not absolved of its duty of
discharging the burden. The accused may raise a
plea of exception either by pleading the same
specifically or by relying on the probabilities and
circumstances obtaining in the case. He may
adduce the evidence in support of his plea directly
or rely on the prosecution case itself or, he can
indirectly introduce such circumstances by way of
cross-examination and also rely on the probabilities
and the other circumstances. Then the initial
presumption against the accused regarding the non-
existence of the circumstances in favour of his plea
gets displaced and on an examination of the
material if a reasonable doubt arises the benefit of it
should go to the accused. The accused can also
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discharge the burden under S.105 by preponderance
of probabilities in favour of his plea. In case of
general exceptions, special exceptions, provisos
contained in the Penal Code or in any law defining
the offence, the Court, after due consideration of
the evidence in the light of the above principles, if
satisfied, would state, in the first instance, as to
which exception the accused is entitled to, then see
whether he would be entitled for a complete
acquittal of the offence charged or would be liable
for a lesser offence and convict him accordingly.
The phrase "burden of proof" is not defined
in the Act. in respect of criminal cases, it is an
accepted principle of criminal jurisprudence that
the burden is always on the prosecution and never
shifts. This flows from the cardinal principle that
the accused is presumed to be innocent unless
proved guilty by the prosecution and the accused is
entitled to the benefit of every reasonable doubt.
The maxim that the prosecution must prove
its case beyond reasonable doubt is a rule of
caution laid down by the Courts of Law in respect
of assessing the evidence in criminal cases. S. 105
places 'burden of proof' on the accused in the first
part and in the second part we find a presumption
which the Court can draw regarding the absence of
the circumstances which presumption is always
rebuttable. Therefore, taking the Section as a
whole the 'burden of proof' and the presumption
have to be considered together. It is axiomatic
when the evidence is sufficient as to prove the
existence of a fact conclusively then no difficulty
arises. But where the accused introduces material
to displace the presumption which may affect the
prosecution case or create a reasonable doubt about
the existence of one or other ingredients of the
offence and then it would amount to a case where
prosecution failed to prove its own case beyond
reasonable doubt. The initial obligatory
presumption that the Court shall presume the
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absence of such circumstances gets lifted when a
plea of exception is raised. More so when there are
circumstances on the record (gathered from the
prosecution evidence, chief and cross-
examinations, probabilities and circumstances, if
any, introduced by the accused, either by adducing
evidence or otherwise), creating a reasonable doubt
about the existence of the ingredients of the
offence. In case of such a reasonable doubt, the
Court has to give the benefit of the same to the
accused. The accused may also show on the basis
of the material a preponderance of probability in
favour of his plea. If there are absolutely no
circumstances at all in favour of the existence of
such an exception then the rest of the enquiry does
not arise in spite of a mere plea being raised. But if
the accused succeeds in creating a reasonable doubt
or shows preponderance of probability in favour of
his plea, the obligation on his part under S.105 gets
discharged and he would be entitled to an
acquittal."
25. Admittedly, the incident took place by little past
4.30 p.m. on 16/4/2012 at land Gut No.137, situated within the
limits of village Tadola, Taluka Ambajogai, District Beed. Two
persons namely Vasantrao and Laxman lost their lives while
the informant (P.W.1) Ganesh and P.W.2 Babasaheb suffered
injuries.
26. P.W.5 Dr. Vishwajeet conducted autopsy on the
mortal remains of both Vasantrao and Laxman. He noticed
following injuries on the person of Vasantrao :-
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1) Avulsion of skin over scalp at parietal region present
exposing the underline skull bone (coping), varying in direction,
16x 11 cm. in size, reddish black in colour, edges inverted,
margins clean cut and regular.
2) Contusion present over the frontal region 17 x 3.4 cm. in
size, horizontal in direction, 1 cm. above to glabella, bluish in
colour.
3) Contusion present over the left forearm, lateral size 7 x
1.3 cm., 6 cm. below to the elbow joint, vertical in direction,
bluish in colour
All the above injuries were ante-mortem in nature.
On internal examination, he found sub-scapular
haematoma with haemorrhage present all over scalp. Linear
fracture as well as signature ala fracture present all over the
vault at parietal, temporal and occipital region, sub-dural, sub-
arachnoid, intra-cerebral haemorrhage present all over the
brain.
P.W.5 Dr. Vishwajeet noticed following injuries on
their person of Laxman :-
1) Stitch would present over right parietal bone, 4 x 1 cm. in
size, vertical in direction, 11 cm. from glabella, on opening
margins regular, edges inverted, clean cut, four stitches were
present.
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2) Stitch wound present over left temporal region, 5 x 1.3
cm. in size, vertical in direction, 12 cm. from left mastoid
process, on opening margins regular, edges inverted, clean
cut, six stitches were present.
3) Stitch wound present over right parietal region, 2 x 1.2
cm. in size, vertical in direction, 1.4 cm. from injury No.1, 13
cm. from glabella, on opening margins regular, edges inverted,
clean cut, two stitches were present.
4) Contusion present over right arm, 3 x 1.4 cm., vertical in
direction, bluish in colour, 6 cm. below the tip of shoulder joint
laterally.
5) Blackening of right eye present.
All the above injuries were ante-mortem in nature.
On internal examination, he found sub-scapular
haematoma with haemorrhage present all over scalp. No
fracture at vault or base of skull seen, sub-dural, sub-
arachnoid, intra-cerebral haemorrhage present all over the
brain.
In thoratic cavity and abdominal cavity on cut
section organs were pale.
27. The post mortem reports (Exhs.115 and 116)
indicate both of them died of haemorrhagic shock due to injury
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to vital organ - brain due to chop wound, unnatural. His
evidence in the cross-examination that, "It is possible that a
person may go into shock because of fear of sudden imminent
self death, is a general proposition.
28. P.W.6 Dr. Pradeep had examined Ganesh (P.W.1)
and noticed following injuries on his person.
1) Contused lacerated wound over right elbow joint
admeasuring 2 x 1 cm.
2) Contused lacerated wound over left upper back,
3) Blunt trauma over chest and upper back
4) Blunt trauma swelling in occpital and left parietal
29. The injury certificate of Ganesh (P.W.1) is at
Exh.26. The injuries suffered by Ganesh (P.W.1) were simple
in nature.
P.W.6 Dr. Pradeep also examined Babasaheb
(P.W.2). The injuries suffered by Babasaheb indicate him to
have suffered two simple and two grievous injuries. The
grievous injuries were in the nature of fracture or dislocation of
ulna lower one third.
30. Admittedly, there was a dispute between the family
of the appellants on one hand and that of deceased Vasantrao
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on the other since 2009. The dispute pertained to Bandh/ weir
of their respective land in Gut No.137. Although the appellants
claimed to have exclusively owned the land Gut No.137, it was
suggested to the investigating officer Sopan (P.W.7) that there
was field of father of the appellants on three directions of the
place mentioned in Exhs.146 and 147. It was a specific case
of the appellants that, eastern portion of the land Gut No.137
belonged to them. They had raised sugarcane crop therein. A
number of documents have been placed on record
including7/12 extract thereof to indicate that only one well was
there in the land Gut No.137. Electricity bills have also been
tendered in evidence to indicate the appellants to have paid
the bills towards electric motor installed on the well. The
appellants meant to say that the sugarcane that was harvested
at the material time was raised by them in their field. The 7/12
extract of the lands Gut No.137 and 146 indicate deceased
Vasantrao had purchased 64 and 32 R land respectively in the
said Gut Numbers. He thereby became co-owner of those
lands along with others including Gyandev (father of the
appellants). It appears that, no partition had been effected
among the co-owners of these two lands. It was therefore,
difficult from the evidence on record to hold that the specific
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eastern portion of the land Gut No.137 was exclusively owned
and possessed by the appellants. This Court is not deciding a
civil dispute. It is true that, generally sugarcane is sent to
sugar factory. The factory deputes sugarcane harvesters to a
particular field registered with them. Cut sugarcane is
transported to the sugar factory in vehicles or even in bullock
carts. The crime scene panchanama (Exh.95) indicates that a
truck was stationary at the crime scene. It was short of filled
up with sugarcane.
31. Exh.84 was an application moved by Vasantrao to
the Police Station, Badrapur in the morning of the very day on
which the incident took place. This application was brought on
record by the appellants. The entries thereon indicate that it
was received by the Police Station by little past 10.00 in the
morning. A station diary entry, No.108/2012 was effected
pursuant thereto. It was been averred in the application that,
way back in 2009, Vasantrao purchased 64 and 32 R land in
Gut Nos.137 and 146 in the name of his grand-children. It has
also been specifically noted therein that, crops like Sugarcane,
Soyabean, Jawar, Wheat were being raised therein. In the
year 2012, sugarcane was raised in his field. It was a specific
complaint of Vasantrao that the adjoining land owners
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(necessarily the appellants) were cutting the sugarcane raised
by him (Vasantrao) and while an attempt was made to prevent
them from cutting sugarcane, they threatened them of dire
consequences. The names of the appellants have been stated
in the said application as the adjoining land owners. We do
not find any evidence on record to indicate the said application
to have been moved after the incident to make out a case
helpful for the prosecution. When the investigating officer was
confronted with this application, it was his response that he
had asked the concerned (Vasantrao) to proceed to the field
and they (police) would follow them. Learned Advocate for the
appellants has much harped upon the conduct of the
investigating officer. According to him, when Vasantrao
allegedly perceived threat to his life and makes an application,
how the police official with whom not less than 27 police staff
was working, could say, "You go ahead, we will follow you."
According to the investigating officer, on the very day he had to
move to Talegaon-Tanda as there was information of a fight in
a marriage at Talegaon-Tanda.
32. True, as per the admitted evidence on record
Vasantrao along with 4-5 persons had already reached the
land, Gut No.137. He was joined by P.W.2 Babasaheb along
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with 3-4 others later on. Close reading of the evidence on
record would indicate that there is no shred of material to
suggest the deceased, informant Ganesh (P.W.1), Babasaheb
(P.W.2) and others, who were in their company, were armed
with any kind of weapon. Although it was suggested that they
assaulted sugarcane harvesters (labourers), none has been
examined. Admittedly, none of the appellants suffered even a
scratch nor was there even a scuffle between the appellants
on one hand and Vasantrao and others on the other. True,
P.W.2 Babasaheb admitted in his cross-examination that there
was fearful atmosphere and apprehension of assault.
However, even no manhandling did take place. Not a single
prosecution witness was suggested on behalf of the appellants
that either Vasantrao or his companions had made any attempt
to remove them from the field. As such, it was not a case of
Vasantrao to have attempted to commit encroachment/
trespass on the land. It is reiterated that, Vasantrao was one
of the co-owners of land Gut Nos.137 and 146 as well. The
distance between the two lands was stated to be 1500 ft. It is
a common knowledge that, no land could be identified on the
spot with its particular number given in the revenue record.
The evidence of P.W.1 Ganesh and P.W.2 Babasaheb, the
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injured witnesses great weight. At the cost of repetition, it is
observed that, no scuffle or even hurling of abusive word or
exchange of heated arguments did take place between the two
groups preceding the incident, since there is no evidence to
even infer the same. as per the evidence on record, Vasantrao
simply asked the appellants to not cut sugarcane from his field.
The appellants thereupon started assaulting him, Laxman and
others. When the appellants were in the field and work of
cutting sugarcane was in progress, the weapon of assault were
very much with them only. The injury certificates of the
deceased indicate the injuries to have been caused with sharp
weapons.
33. True, the right of private defence of body
commences as soon as a reasonable apprehension of
danger to the body arises from an attempt or threat to
commit the offence, though the offence may not have
been committed and it even continues as long as such
apprehension of danger to the body continues.
34. Since neither the deceased Vasantrao, Laxman,
Ganesh (P.W.1), Babasaheb (P.W.2) or 6 others who were
along with them were armed with any weapon nor is there
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even any evidence to indicate, they or anyone of them even
abused or used force against the appellants or the sugarcane
cutting labourers, we have no reason to observe the appellants
had any reasonable apprehension of danger to their body
when Vasantrao along with his companions went to the land
Gut No.137, of which he was one of the co-owners. It was
also not the case of the appellants that Vasantrao and others
had made any attempt to remove them from the field so as to
give them a cause to exercise right of private defence of
property. There is, therefore, no question of the appellants
exercising their right of private defence or exceeding the same
so as to bring the case within exception (2) to Section 300 of
the Indian Penal Code, which reads thus :-
"Exception 2:- 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."
35. The nature of weapon used by the appellants
Rajkumar, Ankush, Madan and Mahadev Alias Pappu, the
body part of deceased Vasantrao and Laxman on which the
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assault was made, undoubtedly make out a case that the
assault was made with an intention to kill them.
36. We have carefully perused the authorities relied on
by the learned Advocate for the appellants. Needless to
mention, each case has to be decided on the facts and
circumstances appearing therein. The facts of Ajmer Singh's
case (supra) indicate that it was a fight between two groups.
The members of both the groups had suffered injuries. So is
not the case herein. While the facts in the case of Ex-Captain
Mahadeo (supra) would indicate that the appellant therein was
confronted by group of intruders who had come menacingly
close to him, were armed with weapons and ready to launch
an assault on him. In this factual backdrop, it was held that
right of private defence was available for him. He was,
therefore justified in opening fire to save his life. The facts in
case of Sukumaran (supra) were such that the deceased party
tried to flee from the place after seeing appellant/ accused
chasing their lorry and they stopped after some time and
started pelting stones on jeep of appellants, causing it
damage. The deceased party were intruders in the forest
area. The forest in question was known for producing
sandalwood and people were indulged in smuggling at large
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scale in forest area. The deceased party were found to be
aggressor as they started pelting stones. Besides stone-
pelting, they were shouting, "Fire them." The appellant/
accused then rightly sensed apprehension that either death or
grievous hurt may be caused to him or his driver.
37. So far as regards judgment in case of Pathubha
Govindji Rathod (supra) is concerned, it was a clash between
two groups of persons. Several of them had suffered injuries
in the incident. There was rampant use of sword like weapons.
38. The facts in case of Manoj (supra) indicate that
there was an attempt to dispossess. Construction material had
been brought at the site. For taking over possession of the
plot, the concerned had sent his brother Anirudh and other
brothers. The incident was preceded by verbal altercation.
39. Such kind of material is lacking in the case in
hand. The judgment in case of Arjun (supra) speaks of
exception (4) to Section 300 of the Indian Penal Code. We
find that the facts and circumstances of the case do not even
remotely get covered even by any of the ingredients of
Exception (4).
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40. For the aforesaid reasons, we are not inclined to
interfere with the order of conviction and consequential
sentences imposed against appellants Rajkumar, Ankush,
Madan and Mahadev Alias Pappu.
41. So far as regards appellants Arun and Baliram are
concerned, the case dates back to 2012. About 12 years have
passed post incident. There is nothing to indicate the sticks
with which the informant Ganesh (P.W.1) and Babasaheb
(P.W.2) were assaulted where shown to the Medical Officer.
42. Both the appellants Arun s/o Gyandev Pujari @
Arun s/o Gyandev Birajdar and Baliram s/o Gyandev Pujari @
Baliram s/o Dnyandeo Birajdar in Criminal Appeal No.672/2021
were behind the bars for 203 days and199 days respectively.
They faced the prosecution for the offence of Section 302 of
the Indian Penal Code for little over 12 years. These facts are
themselves sufficient not to send them back to prison. We are,
therefore, inclined to partly allow the Criminal Appeal
No.672/2021, maintaining the conviction, but reducing the
sentence to the period they have already undergone by
maintaining the amount of fine imposed with default stipulation.
Hence the order :-
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ORDER
(i) Criminal Appeal No.672/2021 is partly allowed.
Conviction of the appellants Arun s/o Gyandev Pujari @ Arun
s/o Gyandev Birajdar and Baliram s/o Gyandev Pujari @
Baliram s/o Dnyandeo Birajdar for the offences punishable
under Sections 324 and 326 read with Section 34 of the Indian
Penal Code are maintained. However, the sentences of
imprisonment are reduced to the period they have already
undergone. The imposition of amount of fine with default
stipulation is also maintained.
(ii) Criminal Appeal Nos.80/2022 and 81/2022 are
dismissed.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
