1 APEAL 555 OF 1993 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.555 OF 1993 1. Kakasaheb Bhausaheb Jadhav, age: 52 years, 2. Mohan Kakasaheb Jadhav, age: 21 years, Both residents of Nimbalak Naka, Tal. Phaltan, District: Satara .. Appellants. -versus The State of Maharashtra .. Respondent. Mr. Rahul Kate, for the Appellant. Mrs. G. P. Mulekar, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 29th March, 2011 Oral Judgment. 1. This appeal is directed against the conviction of the appellants, for the offences punishable under Sections 304, 324 of the Indian Penal Code and sentence of various terms of imprisonment and fine imposed upon two appellants, by the learned Additional Sessions Judge, Satara, on conclusion of Sessions Trial No.20 of 1990. 2. As far as appellant No.2 Mohan Kakasaheb Jadhav is concerned, he claimed to be ‘juvenile offender’ by filing Criminal Application No 294 of 2011, which has been disposed 2 APEAL 555 OF 1993 of by separate order today. Appeal of appellant No.2 Mohan Jadhav is, therefore, disposed of accepting his claim to be juvenile on the date of commission of offence, in terms of orders passed in Criminal Application No.294 of 2011. 3. This takes me to appeal of appellant No.1. Facts which are material for deciding this appeal are as under:- There was a dispute between victim’s family ‘Bobades’ and the appellant’s family ‘Jadhavs’, in respect of a piece of land. Civil suit filed by the family of Bobades, was decreed in favour of Bobades by judgment dated 5th October, 1987. Jadhavs had preferred an appeal before the District Court, in which an injunction was issued in favour of Jadhavs on 12.2.1988. Police aid had also been granted to enable Jadhavs to harvest crop in the field, by order dated 12th February, 1988. In the context of this dispute, incident took place on 15th October, 1989. Appellant entered the field survey No.362 at about 3.00 p.m. on 15.10.1989 in order to carry out agricultural operations therein. Deceased Namdeo and witnesses Shevanta and Vanchala, tried to prevent the appellant from undertaking any agricultural operations in the disputed land. Appellant Kakasaheb who was allegedly armed with an axe, gave blow of axe on the head of Namdeo and Vanchala. Appellant also injured the other members of Bobade family namely, Sitabai, Savita, Janabai and Shevanta who sought to intervene. All of them were taken to the Civil 3 APEAL 555 OF 1993 hospital since they had sustained injuries. On a report offence was registered and investigation commenced. Namdeo died soon after he was taken to Civil Hospital. After performing inquest on the body of Namdeo, it was sent for postmortem examination. Police also caused other injured persons to be medically examined. After performing spot panchnama, police recorded statements of witnesses and on completion of investigation, sent chargesheet to the Court of Judicial Magistrate First Class, Phaltan, who committed the case to the Court of Sessions at Satara. 4. The learned Additional Session Judge, to whom the case was made over, charged the appellants of offences punishable under Sections, 302 and 307 read with 34 of the Indian Penal Code. Since the appellants pleaded not guilty to the said charge, he put them on trial at which prosecution examined in all 16 witnesses in its attempt to bring home the guilt of the appellants. 5. After considering the prosecution evidence, in the light of defence of exercise of right of private defence raised by the appellants, learned Additional Sessions Judge, acquitted the appellants for offences punishable under Sections 302 and 307 read with 34, but held them guilty of offences punishable under Sections 304 and 324 read with 34 of the Indian Penal Code and sentenced them as indicated earlier. Aggrieved thereby the appellants have preferred this appeal. 4 APEAL 555 OF 1993 6. I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of both learned counsel, I have gone through the entire record. P.W.1 Pandurang Suryawanshi is the Circle Officer, who had drawn sketch of spot, which is at exh 18 at the instance of police officer. P.W.2 Ganpat is the panch at the spot panchnama, which is at Exh.20. P.W.5, Dr. Kamble, initially treated Namdeo and other injured persons and P.W.6 Dr. Patil, conducted postmortem examination on the body of Namdeo and also examined Vanchalabai and Shewantabai the injured witnesses. P.W.11, Dr. Jadhav, examined Savita Katkar, an injured witness. P.W.14 Bhimrao Dinkar nephew of the deceased Namdeo states about the disputes between the families, but was not eye witness to the incident. P.W.15, Police Constable Bhimrao Narayan Bagade, recorded report of Shevanta vide Exh.50, on which offence was registered. P.W.7, Akaram Shaikh, is the panch at the seizure of clothes vide exh.10 and 11. P.W.16, Balasaheb More conducted investigation. P.W.3 Kundalik Dhumal, P.W.4, Dhananjay reached soon after the incident. P.W. 7 Shevanta and P.W.8, Padmavati, P.W.9, Sitabai, P.W.10, Savita, P.W.12 Janabai Bobade, are the eye witnesses. 7. Learned counsel for the appellant submits that it was suggested to all these witnesses in their cross examination that it was in fact Namdeo who was armed with 5 APEAL 555 OF 1993 axe and was assaulting appellant Kakasaheb, who had come to field since his entry to the field was pursuant to the orders passed by the District Court, in civil litigation. Learned counsel for the appellants, therefore, submitted that the appellant No.1, was in fact exercising right of private defence to the property as also right of private defence of person since Namdeo had charged at the appellant with axe. As rightly pointed out by the learned Additional Public Prosecutor, all these suggestions about Namdeo armed with axe have been denied by the witnesses. There is nothing to show that Namdeo was armed with axe. On the other hand suggestion to P.W.12 Janabai an injured witness, in her cross examination, shows that appellant Kakasaheb had snatched the axe from Namdeo. Thus, Kakasaheb admits that axe was with him. Therefore, there is no question of the appellant claiming any right of private defence to the person. 8. As far as right of private defence to the property is concerned, there is no doubt that such right has to be recognized. Learned counsel for the appellant placed reliance on the judgment of Supreme Court in Darshan Singh -vs- State of Punjab and another (2010) 2 Supreme Court Cases, 333, where in para 58 Court summarized principle emerging in the following words “58. The following principles emerge on scrutiny of the following judgments: 6 APEAL 555 OF 1993 i) Self preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits. ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. it is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension. v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. 7 APEAL 555 OF 1993 vii)It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the mterial on record. viii)The accused need not prove the existence of the right of private defence beyond reasonable doubt. ix) The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened”. 9. Learned counsel for the appellant also placed reliance on the judgment of Supreme Court in Laxman Singh -vs- Poonam Singh and ors (2004) 10 Supreme Court Cases 94, to support his contention that the appellant’s right of private defence to property was exercised by the appellant within the limits imposed by law. Relying on the judgment of Supreme Court in Bhanwar Singh and ors -vs- State of Madhya Pradesh (2008) 16 Supreme Court Cases 657, learned counsel for the appellant submits that the appellant was apprehensive of such an attack by the victim as well as several injured eye witnesses that he warded off their attack by using only a piece of log of wood used for railing a bullock 8 APEAL 555 OF 1993 cart. He submitted that for exercise of right of private defence what is necessary to be shown is apprehension of danger by the appellant and nothing more. Therefore, according to learned counsel since Namdeo and members of his family had charged at appellant when he had gone to conduct agricultural operations in the field where his entry was in accordance with the decision of District Court. He apprehended an attack and therefore, exercised right of private defence within the limits prescribed under the law. Learned counsel for the appellant submitted, relying on judgment in case of Pratap -vs- The State of Uttar Pradesh (1976) 2 Supreme Court Cases 798, that the burden on the accused to prove that he acted in exercise of right of private defence was not required to be discharged by examining witnesses in defence. It was open to the accused to discharge that burden by referring to the evidence of the prosecution. 10. Learned counsel for the appellant placed reliance on Vajrapu -vs- Sambayya Naidu and ors (2004) 10 Supreme Court Cases 152, where Supreme Court was considering exceeding right of private defence by the accused in a similar case of trespass. Learned counsel submitted that the Supreme Court had held that initially accused may be exercising right of private defence of property, but once the prosecution side starts assault the right would extend to 9 APEAL 555 OF 1993 private defence of person as well. As already discussed, there is no question of appellant exercising right of private defence of person since Namdeo is not shown to have been armed with axe and none of the prosecution witnesses are not shown to have charged at the appellant with any weapon in their hands. Except suggestion that witnesses were carrying stones with them there is nothing in the evidence to justify appellant’s apprehension which would justify appellant’s causing the death of a person. 11. Learned counsel also placed reliance on the judgment of this Court in State of Maharashtra -vs- Vitthal @ Balu Narayan Patale and others (1997) (2) Mh. L. J. 34, to support his contention that version of the prosecution witnesses was not reliable as they had come with discordant story on the question whether all the injured witnesses came to spot at once or one after the other. Therefore, according to learned counsel, learned trial Judge should have recorded the judgment of acquittal. 12. I have examined evidence on record in the light of principles enunciated in the judgments on which learned counsel for the appellant placed reliance. First, as rightly pointed out by the learned APP, there is nothing to show that either deceased Namdeo or any of the prosecution witnesses came to obstruct the appellant armed with any weapon. This story that the prosecution witnesses and deceased Namdeo 10 APEAL 555 OF 1993 charged at the appellant has to be rejected because the appellant is not shown to have suffered any injury. On the other hand there are as many as four injured eye witnesses and a person who has died as a result of injuries sustained. It may be useful to recount as to what type of injuries have been caused to victim as well as witnesses. 13. Namdeo was first examined by P.W.5 Dr. Prakash Kamble. When he examined Namdeo at 4.00 p.m. on 15.10.1989, he found that Namdeo was unconscious and had Incise wound over right frontal region 4” above right upper eyelid of size 2” x 1/2” x bone deep, wound was oblique directing downwards and outwards and was bleeding profusely. He further observed that the margins were clean and the wound was gaping in the mid part and had tapering ends. Second injury was contused lacerated wound over right parietal region 4” above upper pina of right external ear of size 2” x 1/2” x bone deep and the doctor suspected fracture of right parietal bone. The contused lacerated wound was semi lunar in and shape and was bleeding profusely. Dr. Kamble was categorical that injury No.1 was caused by sharp cutting object and injury No.2 was caused by hard and blunt substance, within six hours of his examination. He stated that he treated and referred the patient to Civil Hospital, Satara. 14. P.W.6 Dr. Balwant Patil, conducted postmortem examination and the notes of postmortem are at Exh.26. This 11 APEAL 555 OF 1993 shows two sutured wounds (as the wounds must have been sutured by P.W.5 Dr. Kamble) on dissection the autopsy Surgeon found fracture of right parietal bone. He certified cause of death as head injury and cerebral laceration. In the face of existence of incise wound which Dr. Kamble had certified to have been caused by sharp cutting object, the contention that the appellant only used stick of railing of a bullock cart for hitting victim was rightly rejected by the learned trial Judge. Injury was caused by axe on the right frontal region i.e. head, which would be enough to attribute requisite intention as well as knowledge to the appellant. 15. This is not all, P.W.5, Dr.Kamble also states having examined P.W.-9, Sitabai. Sitabai had contused lacerated wound over the right occipital region of size 4 “ x l’2” x bone deep, running obliquely downwards medially crossing the mid line. It was moderately bleeding. She had two other contusions. P.W. 12 Janabai who is also examined by Dr. Kamble, had contused lacerated wound over the right forehead 2” above the hair line of size 1½” x 1/4” x bone deep, which too was bleeding. There was another contused lacerated wound over right occipital region of size 1/2” x 1/4” scalp deep. 16. P.W.13, Shevantabai had two contused lacerated wounds according to Dr. Kamble, on the frontal region starting from the hair line, running obliquely and posteriorly of size 3” 12 APEAL 555 OF 1993 x 1/2” x bone deep, situated parallel to each other surrounded by haematoma of size 6” x 4” x 3”. She had another contused lacerated wounds over left tempero parietal region, transverse, bleeding and surrounded by haemotoma. Vanchalabai another injured person, examined by Dr. Kamble had 3 contused lacerated wounds over frontal and occipital regions. She also had incised wounds over right occipital region 3” x 1/2” x bone deep, with margins clear cut, having tapering ends, gaping in the mid part which was bleeding profusely. According to Dr. Kamble, even this injury was caused by sharp object. Injury to Vanchala could also be possible by assault by axe. 17. P.W.11 Dr. Shivaji Jadhav, examined P.W.10 Savita, who had Contusion on black lower region on both the sides of size 4 x 4 cm. 18. Injuries on so many persons, which are all of serious nature cannot be justified saying that the attack was launched in exercise of right of private defence to property. 19. Learned counsel for the appellant submitted that right of private defence exists so long as threat remained on the property i.e. so long as the victim and others remained for his property. There can be no doubt that the right continued till the victim and others remained on the property, but since it was exercise of right of private defence in respect of property, it had to be exercised according to provisions of 103 of the 13 APEAL 555 OF 1993 Indian Penal Code, which mandates that right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntarily causing of death or any other harm to the wrong doer in case of trespass only, if the right of private defence is not exercised, death or grievous hurt will be the consequence. There could be no such apprehension from unarmed victims -Namdeo and female members of his family. Therefore, it cannot be said that the learned trial Judge erred in concluding after appreciating the evidence of the prosecution witnesses that the appellant had exceeded in exercising his right of private defence and holding the appellant guilty of the offence under Section 304 of the Indian Penal Code. 20. As already recounted, the evidence of P.W.5 DR. Kamble, and P.W 6 Dr. Patil, who proved injury certificates issued to injured witnesses P.W.9- Sitabai, P.W.10- Savita, P.W. 12- Janabai, P.W.13-Shewanta, and one Vanchala, (who has not been examined), and the appellant’s admission of his presence and participation in the incident and his claim of having only used a stick from the railing of bullock cart, which is belied by the evidence of Medical officer, are enough to conclude that the learned trial Judge did not err in holding the appellant guilty of offence punishable under Section 324 of the Indian Penal Code. 21. This takes me to the question of sentence. Learned 14 APEAL 555 OF 1993 counsel for the appellant submitted that the appellant no.1 was 53 years old when the charge was framed on 12.6.1993 i.e. almost 18 years ago and now he may be of 71 years old. He further submits that the appellant has been living under the shadow of conviction over the last 18 years for an incident which took place about 22 years ago and therefore, he may be let off on the period of detention which he has undergone before conviction or after conviction, which is about 4 months. Learned Additional Public Prosecutor has strong objection to such a course and submitted that the appellant had attacked Namdeo with an axe which led to death of Namdeo and also severely injured several female members of Namdeo’s family. Learned trial Judge has already given the benefit of exercise of right of private defence and shown sufficient linency and held the appellant guilty for the offence punishable under Section 304 of IPC. The learned Judge has imposed sentence of R.I. for five years for the offence punishable under section 304 and sentence of R.I. for one year for the offence punishable under Section 324 of the Indian Penal Code. Considering the nature of assault launched by the appellant Kakasaheb, these sentences do not call for any interference. Therefore, the appeal in so far as it relates to appellant No.1 Kakasaheb Jadhav is concerned, is dismissed. 22. The appeal as regards to appellant No.2 Mohan Jadhav is disposed of in terms of order passed in Criminal 15 APEAL 555 OF 1993 Application No.294 of 2011. 23. Appellant No.1 shall surrender to his bail within a period of four weeks of the judgment being available on the High Court website. If the appellant No.1 does not so surrender within the period of four weeks, the learned Sessions Judge shall have the appellant arrested and committed to serve the sentence. (R. C. CHAVAN, J.)