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2007 DIGILAW 936 (BOM)

Vishnu s/o. Bhau Ghule v. State of Maharashtra

2007-07-11

P.V.HARDAS, S.P.KUKDAY

body2007
Judgment S. P. KUKDA Y, J.:- Vishnu Bhau Ghule (accused No.1), his son Mahesh (accused No.2), wife Mandabai (accused No.3) and brother Dinkar (accused No.4) were prosecuted for the murder of Sambhaji Pandharinath Ghule. By his order dated 3rd May 2005, in Sessions Case No.23 of 2004, Ad-hoc Additional Sessions Judge, Sangamner; convicted accused No.1 for the offence punishable under sections 302 and. 506(2) of the Penal Code. Accused Nos.2, 3 and 4 are convicted for commission of the offence punishable under section 324 r/w.. 34 of the Penal Code. Accused No.1 is sentenced to suffer imprisonment for life and fine of Rs.1,000/- for the first offence and R.I. for two years and fine of Rs.500/- for second offence.. Accused Nos.2 to 4 are sentenced to suffer R.I. for one year each and fine of Rs.500/-. Both sentences carry default stipulation for non payment of fine. Challenging this order of conviction and sentence Accused No, 1 has filed Criminal Appeal No.379 of 2005, accused Nos.2 to 4 have filed Criminal Appeal No.371/2005. The State has filed Criminal Appeal No.503/2005 challenging acquittal of accused Nos.2 to 4 of the difference punishable under section 302 r/w. 34 off Indian Penal Code. The complainant with his wife case filed Writ Petition No.425/2005 for Compensation under Section 357 of the Code of Criminal Procedure. As the same order is impugned in all the appeals and the Writ Petition, the appeals and Writ Petition are disposed off by common order. To ensure harmony, the parties are referred to as the accused and the complainant. 2. We may notice relevant facts before entering into the merits. Dyandeo, Tanaji (P.W.17), Sambhaji (deceased) and Shivram are sons of Pandharinath Dada Ghule (P.W.1) of Sawargao-Ghule. Dyandeo is serving at Surat. Tanaji and Shivram are serving at Ambernath and the deceased was serving at Nashik. On 28th April, 2004, at about 1045 p.m. Pandharinath and Tanaji were going to their field by tractor of Arun Pandharinath Bhor(P.W.2), for bringing onion crop to their house. Approach road to their field is from the fields of Murlidhar, Dhondiba and Vishnu Ghule (A/1). While they were crossing field of accused, Vishnu and his son Mahesh (A/2) told complainant Pandharinath that they would not allow the tractor to pass through their field till Rs.6,000/- towards Batai are paid. In the evening Mahesh (A/2) assaulted Tanaji causing injury to his forehead. While they were crossing field of accused, Vishnu and his son Mahesh (A/2) told complainant Pandharinath that they would not allow the tractor to pass through their field till Rs.6,000/- towards Batai are paid. In the evening Mahesh (A/2) assaulted Tanaji causing injury to his forehead. Tanaji thus, contacted his brothers Sambhaji (deceased) and Shivram (not examined) on telephone at about 9.00 p.m. In response the deceased came to his house at about 1.00 p.m. on. 29th April, 2004, with his friend Balasaheb Shivaji Giri, (P.W3)., On, his way to the house the deceased had taken a detour to Dolsane for taking Balasaheb, who is a Security Guard at Idea Mobile Tower at Dolsane. By that time, Sandeep Sonavane (P.W.9) nephew of Pandharinath had come to the house of complainant. On his arrival at about 2.30 a.m. the deceased, Balasaheb and Sandeep went to Wadge (fenced open space in front of the house used for agricultural operations). The deceased accosted accused No.1 to tell hi m that he should not bother his father and other members of the family. The deceased alone entered the courtyard of the house of accused. Balasaheb and San deep stood outside the compound. There was exchange of words between the deceased and accused No. 1. Other accused joined accused No.1. All of them assaulted the deceased. Balasaheb refused to intervene as he was outsider and returned to the house to inform Pandharinath about the assault on the deceased. As Sandeep was afraid of the accused, he also returned to the house about ten minutes after Balasaheb and narrated the developments to his maternal uncle and others. Pandharinath and Tanaji thus, went to the house of the accused. Both of them saw the deceased was tied to Subabhul tree and was being assaulted by the accused. As they were afraid. both of them returned to the house. At about 4.00 a.m. Shivram also reached the house. On getting information of the occurrence, he went to the house of the accused and saw them assaulting the deceased. He, therefore, went to Sangamner Taluka Station and reported to the police officers that his brother is tied to a tree by the accused and is being assaulted. After this information was received. ASI Jagdale, constable Shivnath Ambekar (P.W.16) and other policemen went to the village with Shivram. He, therefore, went to Sangamner Taluka Station and reported to the police officers that his brother is tied to a tree by the accused and is being assaulted. After this information was received. ASI Jagdale, constable Shivnath Ambekar (P.W.16) and other policemen went to the village with Shivram. On reaching the village, the policemen, complainant and others went to the scene of the occurrence at about 9.00 a.m. They found dead body of the deceased tied to the tree in the court yard of the house of the accused. The deceased had sustained injuries and had expired. The incident was reported to Dy. S. P. Sanjay Patil (P.W.19) and P. 1. Vadile (P.W.18). On receipt of the information regarding commission of the offence of murder, Dy. S. P. Sanjay Patil (P.W.19) and P.I. Vadile visited the spot. While the inquiries were in progress, Pandharinath went to the Police Station and filed complaint (Ex.21) at about 11.05 a.m. On the basis of this complaint Head Constable Gangaram Fatangare (P.W.15) registered offence against the accused at about 11.05 a.m. After registration of the offence investigation was conducted by Dy. S. P. Sanjay Patil (P.W.19) with the assistance of P. 1. Vadile (P.W.18). After holding Inquest (Ex.45) and preparing Panchanama of the scene of occurrence (Ex.46) the dead body was sent by the investigating officer for post-mortem. All the accused were arrested on the same day at 5.00 p.m. by P. 1. Vadile under Panchanama of arrest (Ex.36, 41, 42 & 50). Blood stained baniyan of accused No.1 and saree of accused No.3 were attached at the time of their arrest. The accused were then sent for medical examination. Accused No.1 had sustained five injuries and accused No.2 had sustained one injury to the middle finger of his right hand. During investigation accused No.1 made a confessional statement (Ex.52) on 6th May, 2004. Mobile phone, stick and piece of cable wire produced by accused No.1 from the cattle shed adjoining his house were attached under seizure memo (Ex.53). On 8th May, 2004 Sub-Engineer of M.S.E.B. Dinkar Ambedkar (P.W.14), submitted a report (Ex.74) that the accused were drawing unauthorized supply of electricity from the line at a distance of 70 feet from his house. After completion of the investigation the accused were charge-sheeted for having committed offences punishable under sections 302 and 506 r/w 34 of the Indian Penal Code. 3. After completion of the investigation the accused were charge-sheeted for having committed offences punishable under sections 302 and 506 r/w 34 of the Indian Penal Code. 3. The prosecution examined 20 witnesses in support of its case. Pandharinath (P.W.1) and Tanaji (P.W.17) have narrated the entire prosecution story. Both of them stated that after the earlier quarrel in the morning on 28th April, 2004, accused No.2 assaulted Tanaji in the evening near the shop of Jijaba Ukirde (P.W.12). After this assault, Tanaji telephoned his brothers. After they took dinner, Sandeep Sonawane (P.W.9) came to their house. At about 1.00 a.m. deceased came to the house with his friend Babasaheb (P.W.3) and told them that he has to join duty on the next day, therefore, he would go to the house of accused and speak to them. Deceased then went to the house of accused with Babasaheb and Sandeep. While complainant, his son Tanaji and others were asleep Babasaheb came to the house at about 2.30 a.m. and told them that accused were kicking, fisting and beating the deceased with sticks. While Babasaheb was telling them about the assault, Sandeep also came there and told them that the accused have tied the deceased to a tree and are beating him. Thus, complainant and Tanaji went to the house of the accused to rescue besieged Sambhaji. In the light of the electric bulb which was burning outside the house of accused, they saw that Sambhaji was tied to a tree. The accused were kicking, fisting and beating him with sticks. Accused No.1 threatened them with dire consequences, if they intervened. Accused No.1 Vishnu is a bully. They were afraid of him, therefore, complainant and Tanaji returned to the house. At about 4.00 p.m. Shivram came to the house. They narrated the incident to him. Shivram, then went to the house of accused to make an effort to rescue Sambhaji. As he was also threatened by accused No.1, Shivram returned to the house. After his return, Shivram and Pandharinath went to the police station on the motor cycle of Babasaheb. After arrival of the police officers all of them went to the police station (sic) and found that Sambhaji had succumbed to the injuries. Pandharinath then went to the police station and lodged report. After his return, Shivram and Pandharinath went to the police station on the motor cycle of Babasaheb. After arrival of the police officers all of them went to the police station (sic) and found that Sambhaji had succumbed to the injuries. Pandharinath then went to the police station and lodged report. During the cross-examination Pandharinath explained that the policemen took their time in stalling from Sangamner, therefore, they could not reach house of the accused earlier. 4. P.W.3 Babasaheb and P.W.9 Sandeep recounted the events witnessed by them. Both of them stated that on reaching house of the accused they stood outside the fencing. Sambhaji went inside the courtyard and accosted accused No.1 Vishnu. After Vishnu came out there was exchange of words between the two. Accused Nos.2, 3 and 4 joined accused No.1. All of them started kicking, fisting and beating Sambhaji with sticks and cable wire. Babasaheb refused to intervene as he was outsider and went back. Accused then tied Sambhaji to the tree and continued the assault. Sandeep was afraid of the accused, thus he also returned to the house of Sambhaji. Both of them narrated the incident witnessed by them to Pandharinath and Tanaji. They also referred to the arrival of Shivram and their visit to police station. 5. Arun Bhor (P.W.2) has stated that on the earlier day his tractor was hired by Pandharinath. While they were going to the field of Pandharinath, Mahesh (accused No.2) obstructed the vehicle. Mahesh quarrelled with Pandharinath and Tanaji. He intervened and stopped the quarrel. Jijaba Ukirde has stated that on the earlier day Mahesh assaulted Tanaji near his house. 6. Evidence of two other witnesses which has bearing on the decision of the prosecution case is that of Bhimaji Ghule (P.W.4) and Babaji Ghule (P.W.20). Babaji (P.W.20) has his house at a distance of 100 feet from the house of accused. He was sleeping in the cattle shed of his house. In the morning at about 4.00 to 4.30 o'clock he heard noise coming from the house of the accused and went towards the house of accused. When he was at a distance of 50 feet from the house of accused, in the light of the electric bulb outside the house of accused, he saw that Sambhaji was tied to a tree. All the accused were kicking, fisting and beating him with sticks. Sambhaji was shouting from pain. When he was at a distance of 50 feet from the house of accused, in the light of the electric bulb outside the house of accused, he saw that Sambhaji was tied to a tree. All the accused were kicking, fisting and beating him with sticks. Sambhaji was shouting from pain. He asked accused No.1 to release Sambhaji. Accused No.1 threatened him thus, he went back and slept. Bhimaji's cattle shed is in the plot of land adjoining plot of the accused. On that day he heard loud noise coming from the house of accused, while he was going to his cattle shed at about 5 o'clock in the morning. When he went towards the gate of the house of the accused, Bhimaji saw that the deceased was tied to a tree in the court yard of the house of the accused and went to his rescue. Accused No.1, however, caught Bhimaji by the neck and drove him outside. As accused No.1 is known for his foul temper, Bhimaji went away. He was reluctant to give statement to the police, however, when inquiries were made by the investigating officer with all neighbours on the next day, he disclosed these facts in his statement. Evidence of these independent witnesses could not be dislodged on any material point during the cross-examination. 7. Medical Officer Balasaheb Mhetre (P.W.13) performed autopsy and examined the injureds. Nine external injuries were found• on the body of the deceased. These were : "(1) Multiple abrasion over forehead having size 2 x 1 cm red in colour. (2) Contusions behind both the ears having size 1 x 1 cm. (3) Both black eyes. (4) Contusion later into left eye 4 x 3 cm. (5) In print ligature mark over right side of neck, thrust, red to dark red in colour. 2 cm width. (6) In print linear abrasion over both arms, just above elbow joint posteriorly. (7) In print, linear abrasion just above both knee joint posteriorly. (8) Abrasion over right arm lateral aspect, 3 x 1 cm. (9) Abrasion over both testies anterior aspect 2 x 2 cm. red conclude." The internal examination disclosed haematoma over occipito-parietal region. Trachea was broken into fragments. Both chambers of the heart were empty. Large intestines, liver, pancreas, spleen and kidneys were congested. (8) Abrasion over right arm lateral aspect, 3 x 1 cm. (9) Abrasion over both testies anterior aspect 2 x 2 cm. red conclude." The internal examination disclosed haematoma over occipito-parietal region. Trachea was broken into fragments. Both chambers of the heart were empty. Large intestines, liver, pancreas, spleen and kidneys were congested. The autopsy surgeon prepared P.M. Notes (Ex.56) and opined that the death is caused on account of asphyxia due to strangulation. The medical officer examined all the accused on the same day at about 6.30 p.m. Vishnu (Accused No.1) had sustained following injuries described in certificate (Ex.60): H( 1) Abrasion over right parietal region, 2 x 1 cm. (2) Multiple printed contusion over back, 5 x 1 cm., 4 x 1 cm. and 3 x 1 cm. (3) Abrasion over left side of back below ribs 3 x 1 cm. (4) Abrasion over right index and middle finger posterior aspect, 2 x 1 cm and 2 x 1 cm. (5) Contusion over right thigh anterior aspect 4 x 2 cm." Mahesh (Accused No.2) had sustained CLW over right middle finger having dimensions of 2 x 1.5 cms., shown in certificate (Ex.61). Mandabai (Accused No.3) and Dinkar (Accused No.4) had not sustained injuries. The medical officer opined that injury Nos.1 to 3 of Vishnu and injury suffered by Mahesh can be self inflicted but injury Nos. 4 and 5 suffered by Vishnu cannot be self inflicted. On 2nd May, 2004 Tanaji (P.W.17) was examined. Medical certificate (Ex.57) disclosed four injuries suffered by him. The medical officer opined that these injuries were more than 24 hours old and could be caused by kicking, fisting and fall on hard surface. Injuries found on the person of Tanaji were: "(1) Abrasion over forehead oblique size of 5 x 0.5 cm. red brown scalp. (2) Abrasion over right elbow joint medical aspect size 2 x 1 cm. red scalp. (3) Abrasion over right knee joint medical aspect, size of 2 x 2 cm. brown scalp. (4) Blunt trauma over back on both thigh. No other external injury is seen." 8. Dy. S. P. Sanjay Patil (P.W.19) conducted investigation with the assistance of P.I. Suresh Wadile (P.W.18). red scalp. (3) Abrasion over right knee joint medical aspect, size of 2 x 2 cm. brown scalp. (4) Blunt trauma over back on both thigh. No other external injury is seen." 8. Dy. S. P. Sanjay Patil (P.W.19) conducted investigation with the assistance of P.I. Suresh Wadile (P.W.18). Apart from the steps taken during the course of the investigation, the investigating officer has referred to the discovery of cable wire, stick and mobile phone of the deceased on the strength of confessional statement of accused No.! recorded in presence of Rajendra Ghule (P.W.11) and seizure of blood stained clothes of accused Nos.1 and 3. 9. At the trial, accused Nos.1, 2 and 3 pleaded right of private defence. According to them the deceased had come to their house with 7 to 8 persons and assaulted them. ,During the assault, accused No.1 snatched cable wire and defended himself, his son and wife. On the next morning he found dead body of the deceased in his court yard and reported the matter to police. His report was not accepted by PSO Fatangare. He was detained till the evening and was then arrested. Accused No.4 adopted defence of false implication due to political rivalry. 10. At the conclusion of the trial learned Sessions Judge relied on the medical evidence to hold that the deceased died a homicidal death. He further found that accused No.1 had sustained injuries during the course of the incident but the injury to the right middle finger of accused No.2, might have been a self inflicted injury. The Sessions Judge accepted contention of the defence counsel that the prosecution has failed to explain injuries suffered by accused No.1. The Sessions Judge further found that the quarrel which had taken place on the earlier day provided motive for the assault by the accused on the deceased. The Sessions Judge found that evidence of eye witnesses Pandharinath, Babasaheb, Deepak and Tanaji could not be dislodged by the defence on any material point. Their evidence regarding the incident is cogent, consistent and has a ring of truth. In addition, evidence of these witnesses receives corroboration from the ocular testimony of the eye witnesses Bhimaji (P.W.4) and Babaji (P.W.20). The Sessions Judge found that evidence of eye witnesses Pandharinath, Babasaheb, Deepak and Tanaji could not be dislodged by the defence on any material point. Their evidence regarding the incident is cogent, consistent and has a ring of truth. In addition, evidence of these witnesses receives corroboration from the ocular testimony of the eye witnesses Bhimaji (P.W.4) and Babaji (P.W.20). In view of the fact that direct evidence of the eye witnesses is creditworthy, the Sessions Judge rejected theory of private defence propounded by the accused and held that in the circumstances of the case failure of the prosecution to explain injuries suffered by accused No.1 is not fatal to the prosecution. The trial judge further found that evidence of the prosecution witnesses is not sufficient to establish that accused Nos.2 to 4 shared common intention with accused No.1 to cause death of the deceased. Common intention of the accused was restricted only to the causing of injury to the deceased. In conformity with these findings, the Sessions Judge convicted accused No.1 for committing murder of deceased Sambhaji. He convicted accused Nos.2 to 4 for the offence punishable under Section 324 r/w 34 of the Penal Code and sentenced the accused for different forms of imprisonment as stated earlier. 11. In support of the appeal, learned Counsel for the appellant Shri. Hange argued that Pandharinath (P.W.1), Sandeep (P.W.9) and Tanaji (P.W.17) are close relatives of the deceased. Babasaheb (P.W.3) is his friend. These witnesses have suppressed genesis of the occurrence by not explaining injuries suffered by the accused. Evidence of close relatives of the deceased that they did not make any effort to rescue the deceased is preposterous and not worthy of belief. The fact that deceased had been to the house of accused in the dead of night with avowed intention of reprimanding the accused and settling the issue once for all, would clearly show that the prosecution party was the aggressor. As the prosecution has suppressed genesis of the occurrence, no reliance can be placed on the version of the incident narrated by the partisan witnesses. Learned Counsel criticised evidence of Bhimaji (P.W.4) and Babaji (P.W.20) by pointing out that they did not disclose their knowledge of the incident to anybody till the next day. Learned Counsel would argue that evidence of these got up witnesses deserves to be discarded. Learned Counsel criticised evidence of Bhimaji (P.W.4) and Babaji (P.W.20) by pointing out that they did not disclose their knowledge of the incident to anybody till the next day. Learned Counsel would argue that evidence of these got up witnesses deserves to be discarded. According to learned Counsel burden to establish guilt of the accused is on the prosecution. The accused is not obliged to adduce evidence to substantiate their plea of self defence. It is open to the accused to rely on the evidence adduced by the prosecution to establish that they acted in the exercise of the right of private defence. In the present case, evidence on record does establish that the accused acted in self defence by repelling the aggression launched by the deceased and his associates. The accused neither had motive nor the intention to commit murder of the deceased. The trial Judge failed to appreciate the evidence in proper perspective and has committed grave error by placing implicit reliance on the tainted evidence of the partisan witnesses. Thus the order of conviction and sentence recorded by the trial Judge deserves to be set aside. Learned Counsel would argue that the prosecution has failed to establish guilt of the accused beyond reasonable doubt. Therefore, the question of payment of compensation to the complainant does not arise. In any event as the prosecution party is the aggressor, prayer for payment of compensation to the complainant cannot be justified. There is no merit in the petition filed by the complainant. Thus, the petition deserves to be dismissed. 12. Per contra, learned A.P.P. Shri. Shinde submits that the evidence of the eyewitnesses is free from major contradiction or omissions. The evidence of prosecution witnesses is cogent, consistent and reliable. There is no rule of evidence that reliance cannot be placed on the testimony of the partisan witnesses. There is no impediment in accepting their evidence if it is otherwise reliable. Once the prosecution discharges burden of proving guilt of the accused by reliable evidence, no adverse inference can be drawn for non explanation of the injuries suffered by the accused. In the present case all relevant factors are considered by the trial Judge. Thus, there is no justification to interfere with order of conviction and sentence recorded by the trial Judge. In the present case all relevant factors are considered by the trial Judge. Thus, there is no justification to interfere with order of conviction and sentence recorded by the trial Judge. According to learned A.P.P. Shri. Shinde, there is no merit in the appeal and the same deserves to be dismissed. Adverting to the fact that the petitioner has lost his son, learned A.P.P. contends that the petition for compensation filed by the original complainant deserves to be allowed. 13. Learned Counsel for the petitioner would argue that once the accused are held liable for the commission of the murder of complainant's son, there can be no impediment in granting compensation to the petitioner in view of section 357 of Cr.P.C. Learned Counsel for the petitioner thus, contends that the petition be allowed by awarding reasonable compensation for the loss of life of the petitioner's son. 14. Main plank of the arguments of learned Counsel for the appellants is that no reliance can be placed on the evidence of partisan witnesses in view of the fact that in addition to their relationship with the deceased these witnesses have suppressed genesis of the occurrence. Principles governing appreciation of evidence of related witnesses are by now well settled. The norms of appreciation of evidence of other witnesses equally apply to the appreciation of the evidence of partisan witnesses. Evidence of these witnesses cannot be discarded or viewed with suspicion merely because of their relationship with the deceased. In a criminal case, the court cannot proceed to consider evidence of witnesses mechanically. Essential features of the prosecution case, the proved circumstances, natural course of human conduct and the manner in which evidence is given are some of the guiding factors to evaluate probative value of the evidence of partisan witnesses. In cases where the bias of these witnesses is apparent, duty is cast upon the court to exercise due care and caution in determining probative value of the evidence of partisan witnesses. Few contradictions or omissions here and there are not always fatal to the prosecution case. These discrepancies must be viewed in the context of the probabilities of the prosecution case and veracity of the prosecution witnesses. If evidence of these witnesses is coherent and inspires confidence, minor discrepancies would not affect credibility of such witnesses and there can be no impediment in accepting their evidence. These discrepancies must be viewed in the context of the probabilities of the prosecution case and veracity of the prosecution witnesses. If evidence of these witnesses is coherent and inspires confidence, minor discrepancies would not affect credibility of such witnesses and there can be no impediment in accepting their evidence. However, it must also be kept in mind that absence of material contradictions or omissions is not a sure guarantee of the truthfulness of the evidence .of partisan witnesses, because in cases where the witnesses narrate concocted version of the incident, we seldom encounter discrepancies in the evidence of such witnesses as these witnesses normally stick to their version of the incident. 15. In the present case evidence of prosecution witnesses Pandharinath, Tanajiand Arun (P.W.2) regarding the obstructiqn to carry onion crop from the field to their residence by accused Nos.1 and 2, so also the evidence .of Tanaji and Jijaba (P.W.12) concerning the assault on Tanaji by accused No.2 near the shop of Jijaba, has not been impeached by the defence. The assault on him was the reason why help of the deceased was solicited by Tanaji. The incident leading to the death of Sambhaji, which took place in the night, will have to be considered in the background of these occurrences of the earlier day. It is the prosecution case that on his arrival at about 1.30 a.m. on that night the deceased declared that he will immediately go to the house of the accused to settle the dispute as he was to join to his duty at Nashik on that day in the morning. Undisputedly, the deceased had taken a detour for bringing security guard Balasaheb with him t for the settlement of dispute. In this background, recitals of the FIR that the deceased had also brought Sandeep with him must prevail over the subsequent improvement made by Pandharinath and Tanaji while giving evidence in the court that Sandeep had come in the evening before arrival of the deceased. After his arrival, the deceased went to the house of the accused at about 2.00 a.m. with San deep and Babasaheb. On reaching the house, he accosted accused No.1. Undisputedly, this was the starting of the first phase of the incident which eventually led to the death of the Sambhaji. Appreciation of the evidence must always be pragmatic. After his arrival, the deceased went to the house of the accused at about 2.00 a.m. with San deep and Babasaheb. On reaching the house, he accosted accused No.1. Undisputedly, this was the starting of the first phase of the incident which eventually led to the death of the Sambhaji. Appreciation of the evidence must always be pragmatic. The court must not allow the factum of death to cloud its judgment. Prosecution version that the deceased intended to settle the dispute amicably and that Sandeep and Babasaheb were merely onlookers, to say the least, is too illogical. Dispassionate assessment of the material on record leads to the irresistible conclusion that the deceased and his friends were the aggressors. The discussion of evidence relating to the first phase of the occurrence in paragraph 38 of the judgment would show that without analyzing the evidence, the trial Court has placed implicit reliance on the evidence of the partisan witnesses on the spacious reasoning that minor discrepancies in their evidence does not affect their credibility. There can be no dispute that if the ocular evidence is cogent and credible, the prosecution is not obliged to explain injuries suffered by the accused in all cases. However, where the plea of self defence is well founded the court has to exercise due care and cannot reject plea of the accused without giving cogent reasons. The mode of assessment of the evidence of the partisan witnesses adopted by the trial Court in the present case is alien to the well recognized principles applicable to the appreciation of the evidence of partisan witnesses. Highlighting the fact that it was the deceased who went to the house of the accused in the dead of night with the security guard Babasaheb and Sandeep, who were specially brought for the purpose and that accused No.1 had suffered five injuries, learned counsel for the appellants Shri. Hange has rightly argued that rejection of the theory of self defence propounded by the accused is not justified. The trial Court has committed an error in rejecting the plea of self defence adopted by the accused in relation to the first phase of the incident without giving cogent reasons. The trial Court has committed an error in rejecting the plea of self defence adopted by the accused in relation to the first phase of the incident without giving cogent reasons. In the light of the fact that accused No.1 had sustained as many as five injuries and other circumstances brought on record, contention of learned counsel for the accused No.1 Shri. Hange that in the beginning the accused acted in self defence deserves to be sustained despite of the possibility that injury to the middle finger of accused No.2 could have been self inflicted. 16. The fact that the accused acted in self defence in the beginning, however, cannot absolve the accused from the charge of committing murder unless it is shown that the right of self defence continued throughout the incident and extended to the causing of death. The right of self defence is a defensive right to be exercised for self preservation and not for retaliation. Every person has a right to repel the aggression by use of adequate force. Adequacy of the force necessary for repelling the aggression is not to be evaluated by application of golden scale; measure of force to be used essentially depends on the facts and circumstances of each case. The principles governing the law of private defence are dealt with by the Apex Court in Babulal Bhagwan Khandare Vs. State of Maharashtra (2005)10 SCC 404 ). In paras 27 and 28 of the report Their Lordships observed: "...... In order to find whether the right of . private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property., Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a 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 burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 of IPC define the limit and extent of right of private defence. 28. Sections 102 and 105 of IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev Vs. State of Punjab ( AIR 1963 SC 612 ), it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence." 17. The right of self defence continues so long as the apprehension or threat of sustaining bodily injury continues and comes to an end with the termination of the threat. In the present case, the first phase of the incident culminated in capture of the deceased by the accused, after repelling the aggression. Even if we discount evidence of the partisan witnesses, evidence of the neighbour Babaji (P.W.20) would show that the accused tied the deceased to the tree in their court yard and continued the assault. His version of the continuance of the assault on the deceased is substantiated by another independent witness Bhimaji (P.W.4) who tried to rescue the deceased at about 5.00 a.m. but was caught by the neck by accused No.1 and was driven out. Both these witnesses have given satisfactory explanation for the delay in recording their statements. His version of the continuance of the assault on the deceased is substantiated by another independent witness Bhimaji (P.W.4) who tried to rescue the deceased at about 5.00 a.m. but was caught by the neck by accused No.1 and was driven out. Both these witnesses have given satisfactory explanation for the delay in recording their statements. They were not inclined to give evidence against the accused but had to disclose their knowledge of the second phase of the incident when they were called for enquiry on the next day by the investigating officer. House of Babaji is at a distance of 100 feet from the house of the accused, his sleep was disturbed by the cries of the deceased and he came out to ascertain the cause. Bhimaji has his cattle shed adjacent to the house of the accused and had come there for feeding the cattle. The presence of both these witnesses at that hour and place is natural. They do not harbour any grudge against the accused. Nothing has been brought on record during the cross-examination of these witnesses to disbelieve their evidence. Thus, evidence of these independent witnesses deserves credence. Their evidence shows that the assault on the deceased was continued even after the termination of the threat. Thus, for the second phase of the incident the accused are not entitled to invoke right of self defence. 18. Undisputedly, the death of Sambhaji is a homicidal death. Medical Officer Babasaheb Mhatre (P.W.13) has stated that the deceased had sustained nine external injuries and that the death of the deceased is 'caused due to strangulation. Referring to the absence of the ligature mark on the right side of the neck; learned Counsel Shri. Hange, tried to canvass that the opinion of the medical officer as to the cause of death is not correct. This contention is devoid of substance. The fact that the deceased was strangulated while he was tied to the tree, explains absence of the ligature mark on one side of the neck. All the prosecution witnesses have stated that accused No.1 is a bully and everyone in the village is afraid of him. The fact that near relatives of the deceased did not dare to rescue the deceased after return of Babasaheb and Sandeep substantiates this fact. All the prosecution witnesses have stated that accused No.1 is a bully and everyone in the village is afraid of him. The fact that near relatives of the deceased did not dare to rescue the deceased after return of Babasaheb and Sandeep substantiates this fact. Considering the totality of the material on record no fault can be found with the finding of the trial Judge that accused No.1 threatened the deceased and the witnesses and caused the death of the deceased. The evidence of the prosecution witnesses justifies the finding of the trial Judge that accused Nos.2 and 4 did not share common intention to cause death of the deceased with accused No.1 and were responsible for inflicting injuries to the deceased by sticks. Undisputely, accused No.3 was not wielding any lethal weapon. Learned trial Judge has recorded a finding that accused Nos.2 to 4 shared common intention to cause injury to the deceased by use of sticks. This finding of the trial Judge is not based on evidence. Once it is found that the accused did not share common intention to cause death of the deceased, in the absence of cogent evidence, it is not permissible to hold that the remaining accused shared common intention to cause injuries to the deceased by using lethal weapons. In the light of this, finding of the Sessions Judge that accused Nos.2 to 4 shared common intention to inflict injuries to the deceased by leathal weapon cannot be sustained. The only logical conclusion can be that accused Nos.2 to 4 are liable for their individual acts. Evidence of prosecution witnesses shows that accused Nos.2 and 4 were assaulting the deceased with sticks and accused No.3 had only slapped the deceased. Thus, accused Nos.2 and 4 can be convicted for inflicting injuries to the deceased by lethal weapon and accused No.3 can only be convicted for her individual act of causing simple hurt. Thus, accused Nos.2 and 4 can be convicted for the offence punishable under section 324 and accused No.3 can only be convicted for offence punishable under section 323 and not for offence punishable under section 324 r/w 34 of the Penal Code. In the light of this appeal preferred by accused No.3 deserves to be partly allowed, whereas appeals preferred by accused Nos.1, 2 and 4 deserve to be dismissed. In the light of this appeal preferred by accused No.3 deserves to be partly allowed, whereas appeals preferred by accused Nos.1, 2 and 4 deserve to be dismissed. Accused No.3 is aged lady and has undergone sentence for about a month. Considering the acts attributed to her, and the fact that she is convicted for the offence punishable under section 323 of the Penal Code, the ends of justice would be met if her sentence is reduced to imprisonment already undergone by her. 19. The State has filed appeal against acquittal of accused Nos.2, 3 and 4 for the offence punishable under section 302 of the Penal Code. The evidence adduced by the prosecution does not disclose that the accused shared common intention to cause death of the victim.. Considering totality of the evidence, we do not find any fault with this finding of the trial Court. Therefore, appeal against acquittal preferred by the State, deserves to be dismissed. 20. The complainant and his wife have filed writ petition for awarding compensation under section 357 of the Code of Criminal Procedure, 1973, to them for the loss of life of their son. In the present case the trial Court has imposed fine in addition to the sentence of imprisonment. The purpose of awarding compensation to the heirs of the victim under Section 357 of Cr.P.C. is to reassure them that they are not forgotten by the justice delivery system. This power is liberally exercised by the court in appropriate cases where the accused have sufficient resources to pay the compensation. However, in the present case it is found that the victim was the aggressor. Thus, this is not a fit case where compensation for the loss of life of the son of the petitioner can be awarded to them. The petition, therefore, deserves to be dismissed. 21. In the light of the above discussion, in our considered opinion no fault can be found with ultimate findings recorded by the trial Judge in respect of accused Nos.1, 2 and 4. However, so far as accused No.3 is concerned, her appeal deserves to be partly allowed. For the reasons mentioned by us, the petition filed by the parents of the deceased also deserves to be dismissed. Criminal Appeal No.379/2005 and Criminal Appeal No.503/2005 are, therefore, dismissed. Criminal Writ Petition No.425/2005 is also dismissed with no orders as to costs. However, so far as accused No.3 is concerned, her appeal deserves to be partly allowed. For the reasons mentioned by us, the petition filed by the parents of the deceased also deserves to be dismissed. Criminal Appeal No.379/2005 and Criminal Appeal No.503/2005 are, therefore, dismissed. Criminal Writ Petition No.425/2005 is also dismissed with no orders as to costs. Criminal Appeal No.371/2005 is partly allowed. Conviction and sentence of accused Nos.2 and 4 for their individual acts is maintained. Order of conviction and sentence so far as it concerns accused No.3 is modified. Her conviction for the offence punishable under section 324 is quashed and set aside. She is convicted for the offence punishable under section 323 of the Penal Code. Sentence of imprisonment imposed on her is reduced to sentence already undergone, maintaining the sentence of fine and default stipulation for its non payment imposed by the trial Court. Bail bond of accused No.3 shall stand cancelled. Order accordingly. Ordered accordingly.