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2005 DIGILAW 226 (BOM)

Laxman s/o Vithal Gawande v. State of Maharashtra

2005-02-22

S.T.KHARCHE

body2005
Judgment ( 1 ) 1. This appeal takes an exception to the judgment and order of conviction dated 25-04-1996 passed by the learned Sessions Judge, whereby the appellant/ accused has been convicted of the offence punishable under Section 304, Part I of Indian penal Code and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of rs. 100/-, in default to suffer rigorous imprisonment for one month. ( 2 ) BRIEF facts are required to be stated as under : (A) The houses of deceased Wasudeo and the accused are adjoining each other and there is a common court yard in front of those houses. Prashant (P. W. I) is the son and kokilabai (P. W. 6) is the wife of the deceased. The incident occurred on 28-04-1995 at about 19 or 19-30 hours. (b) On the relevant date and time, prashant was working on the flour mill and on hearing the noise of quarrel he had rushed to the spot of incident. The flour mill was at a distance of about 100 ft. from his house. On arrival in the court yard, he saw that the accused, who is his uncle, was thrusting a weapon in the abdomen of his father and blood was profusely coming out from the injury. He saw that his father became unconscious and was lying on the ground. The injured was immediately taken to the hospital at Akot after hiring a jeep. On reaching the hospital the medical officer declared Wasudeo dead. (c) Prashant then went to police station Akot on the same day and lodged the first information report at 21. 45 hours. On the basis of the said report, Crime No. 101 of 1995 for the offence punishable under Section 302 of Indian Penal Code was registered against the accused. The Police Inspector Laxman (P. W. 8) after registering the offence visited the hospital at 3-00 a. m. on 29-04-1995 and drew inquest panchanama. He also visited the spot of incident and drew spot panchanama. The accused was arrested on 29-04-1995 and he was interrogated in presence of panch witnesses, namely Ramesh (P. W. 2) and pralhad (P. W. 3 ). While in police custody, the accused had furnished information that he had concealed the weapon of offence in the recess of his house and would produce the same. The accused was arrested on 29-04-1995 and he was interrogated in presence of panch witnesses, namely Ramesh (P. W. 2) and pralhad (P. W. 3 ). While in police custody, the accused had furnished information that he had concealed the weapon of offence in the recess of his house and would produce the same. Accordingly this information was reduced into writing in the form of memorandum panchanama. Thereafter the accused led the police party and panch witnesses to the spot where the weapon was concealed. Thereafter the accused pointed out the said weapon which was seized under discovery panchanama. The accused and the injured witness Vasant (P. W. 4) were referred to the medical officer for the purpose of examination. ( 3 ) DR. Mohite (P. W. 7) had effected autopsy on the dead body of Wasudeo on 29- 04-1995 in between 1-30 p. m. to 2-30 p. m. and found as many as three incised wounds which are described in col. no. 17 of the post mortem report. Dr. Mohite opined that the probable cause of death was acute haemorrhagic shock due to injury to heart. Dr. Mohite had also examined Kisnabai, who is the mother of the deceased, and found some injuries on her person as mentioned in the injury certificate (Ex. 42 ). Dr. Mohite also found some injuries present on the person of the accused as mentioned in the medical certificate (Ex. 41 ). The Investigating officer recorded the statements of the witnesses including that of Vasant (P. W. 4), arvind Thakre (P. W. 5) and Kokilabai (P. W. 6 ). On completion of investigation, charge-sheet against the accused was filed in the Court of j. M. F. C. ( 4 ) AFTER committal of the case, the learned Sessions Judge framed and explained the charge for the offence punishable under section 302 of Indian Penal Code, to which he pleaded not guilty and thus the trial proceeded with. The prosecution in order to bring home guilt at the doors of the accused has relied on direct as well as circumstantial evidence. The defence that has been put forth by the accused is that of total denial in the sense that he claims to be innocent and prayed for acquittal. The prosecution in order to bring home guilt at the doors of the accused has relied on direct as well as circumstantial evidence. The defence that has been put forth by the accused is that of total denial in the sense that he claims to be innocent and prayed for acquittal. However, in the cross-examination the defence that has been disclosed is that the accused has acted in a right of self-defence and as such the injuries appeared on the person of the deceased as well as the accused. The learned Sessions judge on appreciation of the evidence recorded the finding that Wasudeo died as a result of homicidal death and that the prosecution has proved that the accused in assaulting the deceased with the dagger was solely responsible for his death and that the accused in good faith of right of private defence of his mother was exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence but has exceeded the right of private defence given to him by law and caused the death of the deceased. Consistent with these findings, the learned Sessions Judge convicted the accused for the offence punishable under Section 304, Part I of Indian penal Code and sentenced him as mentioned above. This judgment and order of conviction is under challenge in this appeal. ( 5 ) THE learned counsel for the accused contended that there is no evidence on record to show that the accused was armed with any kind of weapon muchless dagger at the time of the incident. The accused as well as his mother Kisnabai had also sustained the injuries as mentioned in the injury certificates issued by Dr. Mohite. The prosecution did not explain those injuries and suppressed the genesis of the incident. In support of these submissions he relied on the decision of supreme Court in Lakshmi Vs. State of bihar - AIR 1976 SC 2263 . Mohite. The prosecution did not explain those injuries and suppressed the genesis of the incident. In support of these submissions he relied on the decision of supreme Court in Lakshmi Vs. State of bihar - AIR 1976 SC 2263 . ( 6 ) HE contended that the quarrel was going on between the mother of the accused and the deceased and in fact it was the deceased who was armed with dagger and he had also delivered stick blow on the person of Kisnabai, and the accused had rushed for the rescue of his mother and consequently the deceased had sustained the injuries and unfortunately died in the said incident. He contended that the evidence of Kokilabai, who is the wife of the deceased, is not corroborated in material particulars by any direct or circumstantial evidence. He contended that Dr. Arvind Thakre did not state anything as to whether the accused had delivered blow of dagger on the person of the deceased and the other eye-witness Vasant did not support the case of the prosecution and he was declared hostile. He contended that the witness Vasant also sustained some injuries on his person, but he resiled from his statement made to police that the accused had delivered blows by the dagger on the person of the deceased. He contended that the flour mill of the deceased is situated at a distance of about 100 ft. from their house and Prashant was busy in operation of the flour mill and it was practically impossible for him to hear the noise of the quarrel and even if it is presumed that prashant rushed towards the court yard of his house on hearing the noise of the quarrel, it did not follow that he saw the accused thrusting some weapon into the abdomen of his father. He contended that the evidence of Prashant is not corroborated in material particulars by any other evidence. The evidence would clearly reveal that the accused was acting in exercise of right of private defence and, as such, is entitled to acquittal. In support of these submissions, he relied on the decision of supreme Court in Nabia Bai Vs. State of madhya Pradesh - AIR 1992 SC 602 . The evidence would clearly reveal that the accused was acting in exercise of right of private defence and, as such, is entitled to acquittal. In support of these submissions, he relied on the decision of supreme Court in Nabia Bai Vs. State of madhya Pradesh - AIR 1992 SC 602 . ( 7 ) THE learned A. P. P. supports the impugned judgment and order of conviction and contended that the prosecution has proved beyond doubt that there was a scuffle in between the accused and the deceased and the cause for the scuffle was that Kisnabai was abusing the deceased in a filthy language because he had removed some kardali plants which were grown on the common boundary of the houses. The evidence of Kokilabai (P. W. 6) would clearly show that the accused subsequently arrived when the abuses were going on in between the deceased and Kisnabai, who is the mother of the accused. He contended that the accused had arrived with a weapon and by that time Prashant (P. W. 1) had also arrived on the spot and saw that the accused suddenly thrusted the dagger below the stomach of the deceased. He contended that prashant had lodged the first information report. promptly at the police station without loss of time and, therefore, the possibility of concoction, embellishment or embroideries in the contents of the first information report is ruled out. ( 8 ) THE evidence of Dr. Mohite would clearly reveal that Wasudeo died as a result of homicidal death and corroborates the direct evidence in material particulars. He, therefore, contended that the learned Sessions judge was perfectly justified in reaching the conclusion that the prosecution has succeeded in proving that the accused had acted in good faith of right ofprivate defence for the rescue of his mother but he has exceeded the right of self defence and caused more harm than is necessary for the purpose of such defence. He contended that the prosecution has explained the injuries appearing on the person of Kisnabai as well as on the accused. He contended that the deceased had given stick blow to Kisnabai due to which she sustained injury. There was a scuffle between Kisnabai and deceased on one hand and the deceased and the accused on the other hand and in such scuffle it is possible that kisnabai sustained such injury. He contended that the deceased had given stick blow to Kisnabai due to which she sustained injury. There was a scuffle between Kisnabai and deceased on one hand and the deceased and the accused on the other hand and in such scuffle it is possible that kisnabai sustained such injury. He contended that the injuries which were received by the accused on his fingers were of a minor nature and are likely to be caused while withdrawing the weapon after the assault. He, therefore, contended that this is not a case wherein the prosecution has not furnished any explanation for the injuries sustained by the accused and his mother and that it suppressed the genesis or the origin of the occurrence and thus has not presented the true version. According to the learned A. P. P. the impugned judgment and order of conviction is well reasoned and no case has been made out for interference into the same, and as such the appeal may kindly be dismissed. ( 9 ) THIS Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not disputed by the defence and besides the prosecution has also led cogent and convincing evidence to prove that Wasudeo died as a result of homicidal death. The testimony of Dr. Mohite would reveal that he had effected autopsy on the dead body of Wasudeo on 29- 04-1995 in between 1-30 p. m. and 2-30 p. m. and found the following external injuries mentioned in col. no. 17 of the post mortem report - 1. Stab wound in epigastic region just below xiphoid process, size 11/2" x 1/2", Edges of the wound are clean cut and eliptical in shape and is transverse. Wound is communicating with peritoneal cavity. 2. Stab wound in left mid clavicular line 3 1/2" below and lateral to the top of xiphoid process. Size 2" x 1". Wound is transverse, edges are cleant cut. Loop of small intestine is protruding out. 3. Incised wound on anterior abdominal wall 4" away from umbilicus to the left side. Wound is longitudinal and size is 2" x 1" x 1". Wound is superficial and not communicating with peritoneal cavity. 4. Incised wound 3" below and lateral to left anterior superior iliac spine, size 1" x 1/2" x 1/2". Dr. Mohite testified that the aforesaid injuries were ante mortem. Wound is longitudinal and size is 2" x 1" x 1". Wound is superficial and not communicating with peritoneal cavity. 4. Incised wound 3" below and lateral to left anterior superior iliac spine, size 1" x 1/2" x 1/2". Dr. Mohite testified that the aforesaid injuries were ante mortem. He also found internal damage as mentioned in col. Nos. 20 and 21 of the post mortem report and particularly the following - thorax - (d) Right lung : Injury to right lower lobe of lung, size 3" x 2" x 1". On section, not emitting any smell. (h) Large vessels : Injury to right atrium and venticle present, size 3" x 2" x 1". Abdomen : liver : Injury to left lobe of liver anteriorly size 2" x 1"x 2". Dr. Mohite opined that the probable cause of death was acute haemorrhagic shock due to injury to heart. He also opined that the internal injury to the heart was sufficient to cause death in the ordinary course of nature. He was cross- examined at length but nothing favourable to the accused was brought on record. Having regard to the medical evidence, it is obvious that there cannot be any dispute that Wasudeo died as a result of homicidal death. ( 10 ) THE evidence of Kokilabai (P. W. 6), wife of the deceased, wpuld reveal that some kardali plants were grown on the boundary of her court yard and those plants were causing much embarrassment and, therefore, on the date of the incident at about 10-00 a. m. her husband had uprooted 2-3 kardali plants and there were some altercations and exchange of words between her husband and Kisnabai. The latter was abusing in filthy language. Therefore Wasudeo was called inside the house and thereafter he had gone to his field. Wasudeo returned in the evening and after washing the hands and legs he sat on the cot. The accused had also returned from his office. Her evidence would show that Kisnabai and the accused started abusing and they called wasudeo out of the house after calling him a dog. Her husband had come out of the house and she also followed him. There was exchange of words between her husband and kisnabai. Dr. The accused had also returned from his office. Her evidence would show that Kisnabai and the accused started abusing and they called wasudeo out of the house after calling him a dog. Her husband had come out of the house and she also followed him. There was exchange of words between her husband and kisnabai. Dr. Arvind had also come there and asked the accused and his mother as to why they were quarrelling and thereafter he took the accused towards the house of Vasant Demare. Kisnabai was giving abuses to her husband in filthy language and was telling that if he was the son of one father, he would beat her. Therefore, her husband delivered a stick blow on the leg of Kisnabai. Kisnabai shouted in a loud tone and called her son Laxman, who is the accused. She was also crying that Wasudeo had dealt a stick blow on her leg. The accused ran up to his house and brought a thick weapon and inflicted blows of the same in the left abdomen of Wasudeo. When this witness intervened, Kisnabai prevented her and at that time Kokilabai was pregnant. As soon as her husband received injury in the abdomen, he fell down. She reiterated that the accused had delivered two blows on the person of her husband and her husband demanded drinking water and became unconscious and thereafter he was taken to the Govt. Hospital at Akot in a private jeep. ( 11 ) KOKILA was cross-examined at length and some omissions amounting to contradictions are brought on record. She testified to the effect that the incident took place in the middle portion of her court yard and that of the accused and her husband fell down where he was assaulted. She has not stated before police that her husband had uprooted 2 or 3 kardali plants on 28-04-1995 in the morning and thereafter she took her husband into the house, and that the accused and his mother shouted her husband to come out of the house, and that Kisnabai referred the deceased as a dog and called him to beat her and also said that if the deceased was the son of one father, he would beat her. So far as these omissions are concerned, it is quite obvious that they are minor in character and cannot be taken to discredit the version of Kokilabai especially when the presence of the accused on the spot of incident has not been disputed and when the defence has been set up that the accused was acting in exercise of his right of self defence for the rescue of his mother. The omissions and contradictions which do not go to the root of the matter cannot be annexed with undue importance. ( 12 ) IT is true that Kokilabai has stated in the cross-examination that Kisnabai and the accused had not received any injury and this version appears to be a foolish version and that by itself is not sufficient to discard her testimony. The maxim falsus in uno falsus in omnibus is not applicable in our country and therefore the version of Kisnabai cannot be thrown away for this reason only. She categorically stated in para 5 of cross- examination that "it is a fact that accused laxman had run up towards his mother kisnabai on hearing her shouts that she was assaulted. I again say that accused Laxman went inside the house and then he came out. It is a fact that my husband was having stick in his hand. " ( 13 ) IF the aforesaid material brought on record in the evidence of Kokila is appreciated as a whole then it would reveal that the prosecution did not suppress the genesis and origin of the occurrence. In fact, Kokila did say that her husband was armed with stick and since Kisnabai was abusing in filthy language he had delivered stick blow on her legs and this was the reason why Kisnabai had sustained the following injuries which have been mentioned in the injury certificate (Ex. 42) issued by Dr. Mohite - 1. Incised wound over right forearm 2" above right wrist joint dorsally (a) lateral wound size 3" x 1/2" x 1/2". (b) medial wound size 2" x 1/2" x 1/2", wounds were eleptical in shapre and edges were clear cut. 2. Abrasion with contusion on right lower lobe ribs posteriorly 1" away from post axillary line on right side size 3" x 1". No clinical evidence of fracture ribs seen. No sign of internal haemorrhage seen at present. ( 14 ) SIMILARLY, Dr. 2. Abrasion with contusion on right lower lobe ribs posteriorly 1" away from post axillary line on right side size 3" x 1". No clinical evidence of fracture ribs seen. No sign of internal haemorrhage seen at present. ( 14 ) SIMILARLY, Dr. Mohite had also examined the accused on the same day and found the following injuries - (1) contused lacerated wound on lower lip on right side of size 2" x 1" x 1/2". (2) incised wound over M P joint of left index finger dorsally, size 1" x 1/2" x I/ 4", edges are clear cut and wound is eleptical in shape, movement at M P joint are free. ( 15 ) THE medical evidence would further reveal that injury no. 1 appearing on the person of the accused and Kisnabai could be caused by sharp cutting object and injury no. 2 could be caused by hard and blunt object like stick. Having regard to the nature of the injuries sustained by the accused and his mother kisnabai, it is apparent that in a scuffle they are bound to receive those injuries. Had the deceased been armed with a dagger then some grievous injuries and incised wounds would have been caused on some vital part of the accused and Kisnabai, but that is not the position which is revealed from the medical evidence. The evidence of Dr. Mohite would clearly reveal that as many as four injuries appearing on the person of the deceased were on vital parts and having regard to the nature of the injuries, those were sufficient in the ordinary course of nature to cause death. In such a situation, it is quite apparent that it is the accused who was armed with a dagger and it is he who must have delivered at least three or four blows by the same on the vital part of the body of Wasudeo. ( 16 ) IN such a situation, it would clearly reveal that the accused must have rushed at the spot of incident initially and on seeing that his mother was being assaulted by the deceased with the stick, he went inside his house, brought the dagger and thereafter delivered blow by the said weapon on the person of the deceased in a fit of anger and for the rescue of his mother. Therefore, the learned Sessions Judge rightly reached the conclusion that the accused was acting in the exercise of his right of self defence. ( 17 ) THE crucial question is, whether the accused while acting in self defence has exceeded his right and caused more harm than was necessary to defend himself and his mother. In this context, the learned Sessions Judge has considered the nature of the injuries appearing on the person of the deceased so also on the person of the accused and his mother, the weapon used by the accused for delivering the blows, the manner in which the assault was made, number of blows delivered at the time of the incident in anxiety to save his mother, the opinion of medical officer that the injuries could be caused by the weapon, i. e. Dagger, blade of which was soiled with human blood and that the deceased died as a result of homicidal death, has reached the finding that the accused has exceeded the right of private defence. Therefore, in such circumstances, there is no reason for this Court to take different view of the matter than the one taken by the trial Court. The decision of the Supreme Court in the case of Nabia Bai - AIR 1992 SC 602 , cited supra, on which reliance is placed by the learned counsel for the accused, is not applicable to the facts and circumstances of the present case because in the instant case the accused has exceeded his right of self defence and has gone to the extent of delivering four consecutive blows by the dagger in the stomach of the deceased due to which he died in a short span. ( 18 ) IN Laxmi Singh - AIR 1976 SC 2263 , cited supra, ratio has been laid down that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstances from which the Court can draw the following inferences: (i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (iii) that in a case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. ( 19 ) IN the present case, the prosecution has not suppressed the genesis and the origin of the occurrence and therefore it is not possible to accept that the prosecution did not present the true version. This is a case wherein the witnesses have clearly stated about the assault by stick by the deceased on the person of Kisnabai and the injuries appearing on the person of the accused which are possible while withdrawing the weapon after the assault, and in such circumstances the ratio laid down by the apex court cannot be pressed into service in this case. ( 20 ) IN the result, this Court is of the considered opinion that no fault could be found with the impugned judgment and order of conviction passed by the learned Sessions judge and the same deserves to be confirmed. ( 21 ) THE learned counsel for the accused submitted that the accused is a married person and has small children to maintain, about ten years have elapsed from the date of the offence, and in such a situation the sentence may be reduced to already undergone as there is no dispute that the accused has undergone the sentence for the period of about one year. On consideration of the relevant material brought on record, this Court is inclined to take some what lenient view of the matter. On consideration of the relevant material brought on record, this Court is inclined to take some what lenient view of the matter. The prosecution has proved and brought home the guilt under Section 304, Part I of Indian Penal code against the accused, which is punishable with imprisonment of either description for a term which may extend to ten years, or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. ( 22 ) WHILE imposing the sentence on the accused, the learned Sessions Judge has imposed the maximum sentence of imprisonment of ten years. Having regard to the fact that the accused has already undergone the sentence of one year, that he is a married person having small children and his age was about 32 years at the time of the incident and ten years have elapsed from the date of offence, this Court is of the considered opinion that the sentence of seven years imprisonment would meet the ends of justice. ( 23 ) IN the result, the impugned judgment and order of conviction under Section 304, Part I of Indian Penal Code is maintained and the order of sentence is modified, and the appellant/accused is directed to undergone rigorous imprisonment for seven years, instead of ten years as awarded by the learned Sessions judge. He shall be entitled to set-off under section 428 of the Code of Criminal Procedure. The appellant/accused is directed to surrender before the learned Sessions Judge on 7th march, 2005, who shall commit the accused to prison to undergo the sentence. If the accused fails to surrender on the due date, the sessions Judge is directed to secure the presence of the accused through Superintendent of Police and then commit him to the prison for undergoing the sentence. The appeal is partly allowed accordingly. Appeal partly allowed.