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1996 DIGILAW 236 (BOM)

Dinkar @ Vishram v. State of Maharashtra

1996-06-04

L.MANOHARAN, S.B.MHASE

body1996
JUDGMENT L. Manoharan, J. - Shaligram Namdeo Dhangar of village Pahurjira, the deceased, according to the prosecution sustained injuries at about 1830 hours on 11th February, 1973 in the courtyard of the accused. On receiving the information. PW- 1 Ukarda Bondre the police patil, tendered Ex. 6, upon which PW-11 Mohd. Ismail P.S.I. registered the crime against the accused for the offence punishable under section 326 of the Indian Penal Code. The injured was removed to the hospital and he succumbed to the injuries on 13-2-1973. On receiving intimation as to the death of the injured, PW-11 P.S.I. Mohd. Ismail sent the report for converting the offence under section 326 of the Indian Penal Code into section 302 of the Indian Penal Code. The investigation proceeded and ultimately after questioning the witnesses and also completing other formalities, PW- 11 P.S.I. Mohd. Ismail laid the charge-sheet against the accused for the offence punishable under section 302 of the Indian Penal Code. The trial court on committing the case before it framed charge against the accused for the of fence punishable under section 302 of the Indian Penal Code. The accused pleaded not guilty to the charge, whereupon the prosecution examined 11 witnesses and produced documents. The trial Court after considering the evidence tendered by the prosecution and after considering the answers given by the accused when he was questioned under section 313 of the Code of Criminal Procedure, found the accused guilty of the offence punishable under section 302 of the Indian Penal Code, convicted him thereunder and sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 200/-, in default to suffer further imprisonment for one month. 2. In this appeal, Shri Daga, the learned counsel for the appellant/ accused, attacked the finding of the trial Court that the accused is guilty of the offence under section 302 of the Indian Penal Code, as according to the learned counsel, there is hardly any 'acceptable evidence to prove the prosecution case beyond the shadow of reasonable doubt and hence the accused was entitled to acquittal. It is pointed out by Shri Daga that the only piece of evidence is that of PW- 3 Deorao, who claims himself to be the occurrence witness. It is pointed out by Shri Daga that the only piece of evidence is that of PW- 3 Deorao, who claims himself to be the occurrence witness. According to the learned counsel Shri Daga, there are infirmities in the evidence of PW- 3 Deorao, so that the same is unworthy of acceptance. Once the evidence of PW- 3 Deorao is found to be not acceptable, it automatically would follow that the accused is entitled to acquittal. But, Shri Wahane, the learned Additional Public Prosecutor, maintained that the evidence of PW- 3 Deorao does not stand in isolation. Even assuming that PW- 3 Deorao is only a chance witness, according to the learned Additional Public Prosecutor, it may, in the given circumstances, only require that the Court should look for corroboration. 3. It is not the quantum of evidence that matters, but it is the quality of evidence that would count. Therefore, simply because there is only one witness, that by itself is no ground to hold that the prosecution is not successful in proving the prosecution case. Therefore, it becomes necessary to appreciate the evidence of PW- 3 Deorao in the background of attending circumstances. The thrust of the argument of Shri Daga is that with due regard to the evidence of PW- 3 Deorao, it will be spontaneous that he is a chance witness. PW- 3 Deorao said that when he was answering the call of nature, he heard exchange of words towards the direction of the house of the accused. When he reached the scene, he saw the accused executing a blow on the head of the deceased with the pick-axe (Art. 1). Shri Dage pointed out, since it was dark as the occurrence was between 7-00 to 7-30 p.m., there is enough chance of mistaken identity. 4. PW-3 Deorao is the neighbour of the deceased as well as the accused. The occurrence was in a village. With due regard to the habit of villagers there, would normally be intimacy among them and one cannot deny, they will be able to identify the villager even by voice depending on their intimacy. Here, the identification is by sight as well as by voice. Therefore, one cannot now challenge the evidence of PW-3 Deorao on the ground that there is chance of mistaken identity., This is more so when the evidence of PW- 3 Deorao gets corroboration from other sources. Here, the identification is by sight as well as by voice. Therefore, one cannot now challenge the evidence of PW-3 Deorao on the ground that there is chance of mistaken identity., This is more so when the evidence of PW- 3 Deorao gets corroboration from other sources. 5. PW-11 P.S.I. Mohd. Ismail says that the accused was absconding. PW- 1 Ukarda also says that the accused was not available after the occurrence. PW-11 P.S.I. Mohd. Ismail sealed the house of the accused. There is no effective cross-examination on the point that the accused was absconding. It is contended by Shri Daga, since the evidence of PW-11 P.S.I. Mohd. Ismail does not reveal as to whether he made attempts to arrest the accused, his version that the accused was absconding cannot be accepted. But it has to be noted, what PW-11 Mohd. Ismail has sworn in the chief examination was not challenged in the cross-examination. In this connection, it is necessary to note, PW-1 Ukarda also has stated that the accused was not available in the locality after the occurrence. He could be arrested only on 9-3-1973. Though absconding by itself need not be incriminatory, it will become incriminatory in the context of other circumstances. The injured was found lying in the courtyard of the accused himself. The spot panchanama (Ex.32) mentions blood stains to a considerable extent in the courtyard. PW- 1 Ukarda swears that on receiving information that the deceased was attacked, he went over to the house of the accused and he saw the injured lying in the courtyard PW- 11 P.S.I. Mohd. Ismail would say that the injured was lying about 20 feet away from the door of the accused. When the said aspects are taken into account along with the evidence of PW- 3 Deorao, certainly the fact that the accused absconded becomes highly incriminatory. It must be noted that without any delay the F.I. Statement (Ex. 6) was tendered, and the same names the accused. That again is a circumstance which goes in support of the prosecution case. 6. Added to this, PW-11 P.S.I. Mohd. Ismail swears that after three days of the occurrence, the pick-axe was seized. He opened the seal of the house of the accused and conducted search where by material object No.1 - the pickaxe was seized. That again is a circumstance which goes in support of the prosecution case. 6. Added to this, PW-11 P.S.I. Mohd. Ismail swears that after three days of the occurrence, the pick-axe was seized. He opened the seal of the house of the accused and conducted search where by material object No.1 - the pickaxe was seized. Though it had no blood stain, in the context of the evidence of PW- 3 Deorao that the blow was inflicted with the pick-axe, the seizure of the same from the house of the accused is again a circumstance which would render corroboration to the evidence of PW- 3 Deorao. Yet another circumstance is - PW- 10 Dr. Anant, who conducted the post mortem, has given evidence that the injury to the skull could be inflicted with material object No.1. This again furnishes enough support to the conclusion that the weapon that was used by the accused was the material object No.1, which was seized from his own house. These circumstances render corroboration to the evidence of PW3 Deorao, and therefore, the conclusion reached by the learned Sessions Judge that the prosecution is successful in proving the transaction has to be accepted. 7. The learned counsel for the appellant Shri Daga alternatively contended that at any rate the conviction could not have been under section 302 of the Indian Penal Code; according to him, conviction, if at all, could only be under section 304, part I, of the Indian Penal Code. The argument of the learned counsel is two-fold on this aspect. According to the learned counsel, the accused is entitled to the benefit of Exception 1 as well as Exception II. In either case, the offence is only culpable homicide not amounting to murder. 8. The evidence of PW- 10 Dr. Anant unambiguously would show that the death was homicide and the deceased died of the injury to the skull which had affected his brain. Now if with due regard to the nature of the injury sustained by the deceased, which, according to PW-10 Dr. Anant, is sufficient in the ordinary course of nature to cause death, unless the accused, is eligible for the benefit of any of the Exceptions under section 300 of the Indian Penal Code, it will be murder punishable under section 302 of the Indian Penal Code. Anant, is sufficient in the ordinary course of nature to cause death, unless the accused, is eligible for the benefit of any of the Exceptions under section 300 of the Indian Penal Code, it will be murder punishable under section 302 of the Indian Penal Code. Therefore it becomes necessary to see whether the plea that the accused is entitled to the benefit of Exception I or II is acceptable. 9. Exception I states culpable homicide is not murder if the offender, whilst deprived of power of self-control by grave and sudden provocation caused death, and Exception II contemplates a case where the accused exceeded the right of private defence. As per section 105 of the Evidence Act, burden of proving the plea of Exception is on the accused. It must be mentioned that the accused is not obliged invariably to plead private defence in his statement under section 313 of the Code of Criminal Procedure. In other words, even if the accused does not plead private defence in his statement under section 313 of the Code of Criminal Procedure, it is open to the Court to consider such plea if the same arises from the materials on record (See Munshi Ram and others v. Delhi Administration1). The accused can also lead evidence in support of his plea of private defence. It is true whereas the prosecution should discharge its burden by proving the prosecution case beyond reasonable doubt, the accused need discharge his burden by preponderance of probability. (See Yogendra Morarji v. The State of Gujarat2). With this background, now it is necessary to appreciate the circumstances claimed to be in favour of the accused. l. A.I.R. 1968 S.C. 702. 2. A.I.R. 1980 S.C. 660. 10. As regards Exception I, it is necessary that the accused should prove by preponderance of probability that he was deprived of power of self-control by grave and sudden provocation. Except that the occurrence took place in the courtyard of the house of the accused and that the deceased had illicit relations with the wife of the accused, there is no evidence or circumstance which would lead to the inference that the accused was the victim of grave and sudden provocation on account of which he was deprived of his power of self-control. It must at once be noted that there is nothing in evidence to show that the accused saw his wife and the deceased even together much less in a compromising position. Therefore, we are not inclined to accept the argument of Shri Daga so far as the plea of Exception I is concerned. 11. But we see enough force in the submission of Shri Daga that the accused in the given circumstances is entitled to the benefit of Exception II to section 300 of the Indian Penal Code. Again we must remind ourselves that the injured was found in the courtyard of the house of the accused and that too about 20 feet away from the door of the house of the accused. The scene plan (Ex. 23) also shows the place where the injured was found lying and also the place where the blood stains were found. Therefore, there can be no doubt that the occurrence was at the threshold of the house of the accused. PW- 6 Ananda has sworn that the deceased had illicit relationship with the wife of the accused. In fact, the prosecution led the evidence of PW- 6 Ananda to prove its case of motive. This particular motive itself is double edged as it has got relevance in appreciating whether the accused had the right of private defence. When the presence of the deceased in the courtyard of the accused is considered in the context of the evidence of PW- 6-Ananda, it can be seen that the accused has right of private defence, as entry of the deceased in the circumstances, was unlawful. The evidence of PW- 3 Deorao shows that the strike with the axe by the accused was preceeded by wordy altercation - means that the entry was against the protest by the accused. Consequently, he was entitled to exercise so much force to repel the aggression of the deceased. With due regard to the nature of the injuries found on the body of the deceased as well as the nature of the weapon used, by no stretch of imagination, Can it be said that the accused exercised only the required force. In other words, the accused has exceeded the right of private defence. With due regard to the nature of the injuries found on the body of the deceased as well as the nature of the weapon used, by no stretch of imagination, Can it be said that the accused exercised only the required force. In other words, the accused has exceeded the right of private defence. Therefore, falls under Exception II to section 300 of the Indian Penal Code and consequently he is liable to be convicted under section 304, Part I of the Indian Penal Code. 12. In the result, we find the accused guilty of the offence punishable under section 304. Part I of the Indian Penal Code, and convict him thereunder. We set aside the finding of the Additional Sessions Judge, Khamgaon, that the accused is guilty of the offence punishable under section 302 of the Indian Penal Code and also the conviction under section 302 of the Indian Penal Code. The appeal is allowed in part and the accused is sentenced to undergo rigorous imprisonment for seven years for the offence under section 304. Part I of the Indian Penal Code. Appeal allowed partly.