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2013 DIGILAW 1034 (BOM)

Aba Rama Handal v. State of Maharashtra

2013-06-10

R.C.CHAVAN

body2013
JUDGMENT This appeal is directed against Judgment of conviction of the appellants/original accused Nos. 2 and 3 by the learned Additional Sessions Judge, Solapur for the offence punishable under Section 304(II) read with Section 34 of the Indian Penal Code and sentence of rigorous imprisonment for a period of five years with a fine of Rs. 500/- each or in default of payment of fine further rigorous imprisonment for a period of three months each imposed upon them for the said offence on the conclusion of trial of Sessions Case No.173 of 1990 before the learned Judge. 2. Facts which are material for deciding this appeal are as under :- Victims Bangalya Pardhi and Baby Pardhi were husband and wife. Bangalya was stated to be known as dacoit carrying a reward of Rs. 1,00,000/- on his head. On 21st January, 1990 at about 5:00 p.m., Bangalya, his wife Baby and the other wife PW-10 Aruni Pawar allegedly went to the appellants and their father demanding some money from them. Bangalya allegedly assaulted accused No. 1 Rama, father of the appellants, with a knife causing bleeding injuries to him. The appellants and Rama are alleged to have stoned Bangalya and Baby which led to their death. Aruni fled from the spot. The police patil of the village PW-1 Adinath Martand Patil eventually examined as PW-5 gave a report to the police whereupon an offence was registered and an investigation was commenced. 3. In course of investigation, police performed panchanama of the spot, seized incriminating articles from the spot, caused the dead bodies to be sent for postmortem examination after performing inquest panchanamas, arrested accused persons, recorded statements of witnesses, sent the incriminating articles to the Forensic Science Laboratory and on completion of investigation, sent charge sheet to the Court of Judicial Magistrate F.C., Karmala, District - Solapur, who committed the case to the Court of Sessions at Solapur. 4. The learned Additional Sessions Judge to whom the case was made over, charged the appellants and accused No. 1 Rama for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all 20 witnesses in its attempt to bring home guilt of the appellants and the co-accused. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all 20 witnesses in its attempt to bring home guilt of the appellants and the co-accused. After considering the prosecution evidence, in the light of defence of denial set up by the appellants and the co-accused Rama, the learned Additional Sessions Judge convicted and sentenced the appellants as aforementioned and acquitted the co-accused Rama, Aggrieved thereby, the appellants have preferred this appeal. 5. I have heard the learned counsel for the appellants and the learned Additional Public Prosecutor for the respondent - State. With the help of both the learned counsel I have gone through the entire evidence on record. The learned counsel for the appellants submitted that there was not enough evidence to show that the appellants were authors of the injuries which led to death of Bangalya and Baby. The learned counsel submitted that the evidence of PW-5 police patil Adinath Patil is hearsay and based upon what he claimed to have learnt from the appellants themselves. He submitted that an FIR at Exhibit 49 where the appellants are alleged to have admitted their complicity in the death of Bangalya and Baby would have to be excluded from the consideration, since the police patil is a police officer and confession made to him may not be admissible. On the other hand, the learned APP submitted that the accused persons had voluntarily stated to the police patil as to how the incident took place and therefore, the report of the police patil should be read as a whole. It is not necessary to go into the question as to whether disclosure made to the police patil is admissible or not for more than one reason. First, there is a Judgment of a Full Bench of Nagpur High Court in Rajeshwar S/o. Hiraman Mohurle Vs. The State of Maharashtra, reported in 2009 Cri. L.J. 3816 = 2009(4) Mh. L.J. 483 : [2009 ALL MR (Cri) 1926] finally deciding this issue holding that such a statement is admissible. Secondly, the prosecution had examined Manohar Rama Handal as PW-16, who is brother of the appellants. The State of Maharashtra, reported in 2009 Cri. L.J. 3816 = 2009(4) Mh. L.J. 483 : [2009 ALL MR (Cri) 1926] finally deciding this issue holding that such a statement is admissible. Secondly, the prosecution had examined Manohar Rama Handal as PW-16, who is brother of the appellants. Manohar had categorically stated that on the incidental day, he had gone to Solapur, and after returning to Karmala, he met villagers, who told him that there was a quarrel between his father and brother on one side and deceased Bangalya and Baby on the other side. They told him that Bangalya had assaulted his father with a knife and Baby had assaulted by stone. They further told him that in their self defence, his father and brother assaulted Bangalya and Baby and in the course of that assault, Bangalya and Baby died. There is absolutely no cross-examination to this witness. The appellants, therefore, cannot dispute this statement of their own brother that Bangalya and Baby died as a result of injuries suffered by them at the hands of appellants. 6. The learned APP also submitted that there is evidence of PW-10 Aruni, another wife of Bangalya, who claimed to have been eye witness to the incident and who too stated that the appellants assaulted Bangalya and Baby with stones and sticks. The learned counsel for the appellants submitted that the evidence of Aruni is doubtful because Aruni claimed the deceased Baby was carrying six months pregnancy but notes of Post Mortem examination proved by PW-18 Dr. Saroj Dattatraya Khot do not show any pregnancy being carried by the victim Baby. The learned counsel for the appellants also submitted that while Aruni stated that the assault was going for two hours and that the appellants were hitting the victims continuously for two hours, the medical evidence belies this and it shows only three injuries on the person of each of the two victims. Therefore, according to him, Aruni is in all probability a got up witness. This too in my opinion, is thoroughly irrelevant in the face of the fact that the evidence of PW-16 has gone unchallenged. The appellants, therefore, cannot deny their complicity in causing of injuries which led to death of Bangalya and Baby. 7. Therefore, according to him, Aruni is in all probability a got up witness. This too in my opinion, is thoroughly irrelevant in the face of the fact that the evidence of PW-16 has gone unchallenged. The appellants, therefore, cannot deny their complicity in causing of injuries which led to death of Bangalya and Baby. 7. The learned trial Judge had so held and had also observed that the appellants could not be held guilty of murder because he accepted their defence of having acted in exercise of the right of private defence. He held that the accused had exceeded their right of private defence and therefore, held them guilty of the offence punishable under Section 304(II) of the Indian Penal Code, since they could not be held guilty of intentionally or knowingly causing death of Bangalya and Baby. The learned APP submitted that this conclusion is assail and this Court may, therefore, uphold the conviction and sentence imposed upon by the learned trial Judge. The learned APP submitted that the evidence of PW-18 Dr. Saroj Khot and notes of Post Mortem examination at Exhibits 78 and 79 proved by her would clearly show that the appellants had exceeded the right of private defence. He pointed out that there were three fractures suffered by Bangalya and one fracture suffered by Baby. In order to appreciate submission of the learned APP, it may be useful to record the injuries observed by the witness in the notes of Post Mortem examination of Bangalya as under :- (I) C.L.W. size 2" x 1" x 2" over forehead (II) C.L.W. size 1" x ¼" x ¼" on the left parietal region (III) Lacerations of muscles on a face The internal injuries observed by the witness in the notes of Post Mortem examination of Bangalya are as under :- (I) Fissure fracture on center of forehead to the right orbital region (II) Muscle fracture communicated. Fissure fracture of right maxilla and mandible over the right side. Fissure fracture of right maxilla and mandible over the right side. The external injuries observed by the witness in the notes of Post Mortem examination of Baby are as under :- (I) C.L.W. size 3" x 2" x ½" on occipital region (II) Contusion Blue Black colours size 2" x 1½" on right cheek (III) Lower limb Blue and Black in colour and swelling The internal injuries observed by the witness in the notes of Post Mortem examination of Baby are as under :- Fissure fracture 5" in length. Obliquely over occipital bone. Subdural haematoma over occipital bone. Brain was congested. 8. The learned APP submitted that these injuries clearly make out a case of victims having been stoned to death in a deliberate act which was rightly found by the learned trial Judge to be exceeding the right of private defence. The learned counsel for the appellants, on the other hand, relying on provisions of Section 100 of the Indian Penal Code, submitted that the right of private defence of the body exercised by the appellants, squarely fell under Section 100 of the Indian Penal Code and therefore, their act did not amount to any offence. Section 100 of the Indian Penal Code provides that the right of private defence of the body extends, under the restrictions mentioned in the preceding sections, 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 enumerated, namely when, such an assault may reasonably cause the apprehension that death will otherwise be the consequence of such assault. The learned counsel for the appellants drew my attention to the evidence of police patil PW-5 Adinath Patil, who stated in his cross-examination that there was a reward of Rs. 1,00,000/- for the arrest of Bangalya. He stated that Bangalya was indulging in dacoity. Even PW-10 Aruni, wife of Bangalya, who claimed to have been present with him, stated that her husband was dacoit. The learned counsel for the appellants pointed out from the panchanama of spot at Exhibit 39 that a knife with blade which was seven inches in length, having blood stains was found at the spot. Even PW-10 Aruni, wife of Bangalya, who claimed to have been present with him, stated that her husband was dacoit. The learned counsel for the appellants pointed out from the panchanama of spot at Exhibit 39 that a knife with blade which was seven inches in length, having blood stains was found at the spot. The panchanama of arrest of the accused persons is at Exhibit 43 and it shows that the shirt which accused Rama was wearing had been torn with stains of blood. The panchanama also records that the right hand of Rama had a fresh bleeding injury. The other two appellants Aba and Ramchandra were, however, not shown to have been suffered any injury. The learned counsel for the appellants submitted that when a person known as dacoit carrying a reward of Rs. 1,00,000/- on his head, with his two wives came to extort money armed with a knife and inflicted injuries with the knife, it would be reasonable for the victims to apprehend that death could be consequence. He submitted that in these circumstances, if the appellants felt that the assault by Bangalya could result in death of their father, it could not be said that their apprehension was unfounded and therefore, the case squarely fell under Section 100 of the Indian Penal Code. 9. The learned APP submitted that Bangalya had gone there to merely extort some money and therefore, the appellants should not have had such apprehension. Now, what would be the re-action of a person, who is accosted by a dacoit accompanied by two wives armed with a weapon and who actually inflicted the bleeding injuries would depend upon the previous experience of the person concerned and therefore, it would be wrong to hold that the appellants could not have apprehended their father could be murdered by Bangalya with the knife in his hands. In any case, reaction of the appellants as can be seen from the evidence of PW-18 Dr. Saroj Khot, appears to be merely pelting stones to ward of the attack. There is no evidence to show that the victims had been stoned to death, though the learned APP submitted to the contrary, the injuries that have already been re-counted would show that they were mere contused lacerated wounds with some fissure fractures which could as well have been the result of pelting stones, PW-18 Dr. There is no evidence to show that the victims had been stoned to death, though the learned APP submitted to the contrary, the injuries that have already been re-counted would show that they were mere contused lacerated wounds with some fissure fractures which could as well have been the result of pelting stones, PW-18 Dr. Saroj Khot stated in her cross-examination that stones could cause contused lacerated wounds and attack by stick could cause contusion. The learned APP too submitted that there was at least one contusion observed on the person of the victim Baby. However, that contusion is on the right cheek and could not have been attributed to an assault by stick. In any case, even if for the sake of argument, it is presumed that the appellants did hit Baby with stick on her cheek, it would be difficult to hold that they exceeded the right of private defence, in the context of attack by Bangalya (a known dacoit, who carried a reward of Rs. 1,00,000/- on his head) with a knife. 10. In view of this, though the learned APP wants that the conviction of the appellants be upheld, it has to be held that the appellants acted in exercise of their right of private defence, covered by Section 100 of the Indian Penal Code, and therefore, are entitled to be acquitted. 11. The appeal is, therefore, allowed. Conviction of the appellants for the offence punishable under Sections 304(11) of the Indian Penal Code and sentence of rigorous imprisonment for five years with a fine of Rs. 500/- each or in default of payment of fine further rigorous imprisonment for a period of three months each is set aside. The appellants are acquitted of the said offence. Appeal allowed.