.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.598 OF 1991 1. Maruti Gangadhar Mali, Age 60 Occu.Agriculturist, residing at Uplai Budrukk, Tal. Madha, District Solapur. 2. Janardhan Maruti Mali, Age 40 Occu.and residence as above. 3. Manohar Maruti Mali, Age 35, Occu.and residence as above. 4. Tukaram Maruti Mali, Age 30, Occu.and residence as above. 5. Paryagbai Maruti Mali, Age 50 Occu.and residence as above. ..APPELLANTS. -VERSUS- The State of Maharashtra. ..RESPONDENT. .... Mr.Vijay Killedar, Adv. i/b. V.B.Rajure & Nitin Jamdar, Advs. for the appellants. Mr.P.A.Pol, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 28TH JANUARY, 2009. DATED : 28TH JANUARY, 2009. DATED : 28TH JANUARY, 2009. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Through this appeal, the appellants-orig.accused Nos.1 to 5 have challenged the judgment and order dated 9.9.1991 passed by .(2). the learned 5th Additional Sessions Judge, Solapur in Sessions Case No.84 of 1990. By the said judgment and order, the learned Sessions Judge convicted the appellants under Sections 147, 148, 325, 324, 337 r/w. 149 of Indian Penal Code. For the offence under Section 147, 148 & 324 of IPC each of the appellants was sentenced to suffer RI for two years and to pay a fine of Rs.500/- in default RI for six months. For the offence under Section 325 IPC each of the appellants came to be sentenced to suffer RI for seven years and to pay fine of Rs.1000/- in default RI for one year. For the offence under Section 337 each of the appellants came to be sentenced to RI for six months and to pay fine of Rs.500 in default RI for 45 days. The learned Sessions Judge directed that the substantive sentences of imprisonment shall run concurrently. 2. The prosecution case briefly stated is as under : . Accused No.1 is the father of accused Nos.2 to 4 and accused No.5 is the wife of accused No.1. The land of accused No.1 was adjoining to the land .(3). of the complainant. The complainant (PW-3) Sukhdeo is the resident of Uplai (Bk). There was land disputes between the accused persons and the family of the complainant. The accused persons had filed a Civil Suit in which they had obtained temporary injunction in their favour. On the day of the incident, accused No.1 Maruti and accused No.3 Manohar took bullock cart through the land in dispute. At that time the women members of the family of the complainant were present. They informed the male members about this fact at about 3:00 p.m.. That time they saw Maruti was returning in his cart. P.W.1 Changdeo who is the brother of the complainant enquired with Maruti as to why he was taking cart through their land. Thereupon accused No.1 started pelting stones at Changdeo. On hearing shouts of Changdeo, the complainant - Sukhdeo, his brother Namdeo, Dnyandeo (PW-9) and other family members rushed to the spot. Thereafter sons of Maruti and his wife i.e. accused Nos. 2 to 5 rushed to the spot armed with sticks. It is the prosecution case that all the accused persons then assaulted Namdeo, PW-2 Sukhdeo, PW-6 Changdeo, PW-8 Padmini and PW-9 Dnyandeo. On account of the assault, .(4). Namdeo died. Thereafter FIR came to be lodged and investigation commenced. 3. Charge came to be framed against the accused persons under Sections 147, 148, 302 r/w. 149, 337 r/w.149 & 324 r/w. 149 of IPC. All the accused pleaded not guilty to the said charge and claimed to be tried. The defence of the accused persons is that as the civil Court had granted injunction in their favour they had a right to pass through the land. Despite the accused persons having the right, the family of the complainant objected to it and they were infact assaulted by Namdeo, Sukhdeo and other witnesses by sticks and stones. In the incident, all the accused persons received injuries. As they were assaulted first, in order to save themselves they have exercised the right of private defence due to which the witnesses sustained injuries. After going through the evidence adduced by the prosecution, the learned Sessions Judge, convicted and sentenced the appellants as stated in para-1 above. Hence, this Appeal. 4. I have heard Mr.Killedar the learned .(5). Advocate for the appellants and Mr.Pol the learned APP for the State. I have perused the judgment and order passed by the learned Sessions Judge as well as the record pertaining to this case. After anxiously considering the matter, I am of the opinion that this appeal deserves to be allowed. 5. It may be mentioned that as far as the recovery is concerned, the panch witnesses have not supported the prosecution. On going through the material on record, as far as recovery is concerned I find that there is no cogent or reliable material in respect of recovery. Thus, it is seen that the prosecution has to depend only on the evidence of the eye witnesses i.e. PW-3 Sukhdeo, PW-6 Changdeo, PW-7 Somdeo, PW-8 Padmini and PW-9 Dnyandeo. PW-7 Somdeo has not sustained any injuries. As far as PW-7 Somdeo is concerned, he has not attributed any specific role of assault to any of the accused persons. He has only stated that accused Nos.1 to 4 were pelting with stones, yokepin and sticks. He has also not stated as to which person was assaulted by accused Nos.1 to 4 nor which accused was carrying which weapon nor has he stated that on what part of the body the .(6). injured person was assaulted. His evidence is vague and general in nature. Hence, I do not find the evidence of PW-7 Somdeo to be helpful to the prosecution. 6. It is the prosecution case that PW-1 Changdeo, PW-3 Sukhdeo, PW-8 Padmini, and PW-9 Dnyandeo and Namdeo were injured in the incident. PW-8 Padmini, PW-9 Dnyandeo and PW-3 Sukhdeo have sustained simple injuries. PW-1 Changdeo has sustained three injuries, out of which two injuries are grievous in nature. Changdeo has sustained injuries on the forehead, left shoulder and a black eye. According to the prosecution, the injury on the forehead and shoulder of Changdeo were grievous in nature. In this incident, Namdeo lost his life. From the post-mortem notes, it is clear that Namdeo has sustained only one injury in the incident i.e. on the tempero parietal region. The other two injuries on the neck and abdomen are arising out of surgical procedures relating to tracheotomy and for the purpose of putting feeding tube. 7. In the background of the injuries as .(7). mentioned above, I shall now proceed to examine the evidence of the prosecution witnesses. First I shall deal with assault on Namdeo. As far as Namdeo is concerned, PW-3 Sukhedo has stated that accused No.1 Maruti gave stick blow on the neck of Namdeo and accused No.3 Manohar gave a stick blow on back of Namdeo. However, as discussed earlier in the incident Namdeo has sustained only one injury on the tempero parietal region and there are no injuries on the neck of Namdeo or on the back of Namdeo which could have been sustained in the incident. Thus, the medical evidence and the evidence of Sukhdeo in relation to assault on deceased Namdeo is totally discrepant and hence cannot be relied upon. PW-6 Changdeo has stated that accused No.1 Maruti gave stick blow on the neck, head, hand and back of Namdeo. As observed earlier, only one injury relatable to the incident is found on Namdeo. Changdeo has clearly stated that accused Nos.1 to 4 beat Namdeo, however, PW-3 Sukhdeo has not made any mention of accused Nos.2 to 4 assaulting Namdeo. PW-8 Padmini has stated that accused No.1 Maruti gave stick blow on the head of Namdeo and accused No.3 Manohar gave stick blow on the neck of Namdeo. This evidence is in .(8). utter contrast to the evidence of PW-9 Dnyandeo, who stated that accused Maruti gave stick blow on the neck of Namdeo. PW-9 Dnyandeo has not attributed any role of assault on Namdeo by Manohar. Thus, it is seen that as far as assaulted on Namdeo is concerned, the evidence of the witnesses is totally discrepant and hence I find great hesitation in relying on the same. 8. Next I shall deal with assault on PW-6 Changdeo. According to the prosecution, Changdeo has sustained three injuries in the incident, two of which are grievous in nature. Changdeo has sustained injuries on the forehead, left shoulder and a black eye. According to the prosecution, the injury on the forehead and shoulder of Changdeo were grievous in nature. PW-3 Sukhdeo has stated that accused No.1 Maruti assaulted Changdeo by stones and yoke-pin. It is pertinent to note that PW-3 Sukhdeo is the only witness who has stated that accused No.1 Maruti assaulted PW-6 Changdeo with yoke-pin. No other witness has stated so. Moreover, PW-3 Sukhdeo has stated that accused No.1 Maruti is the only person who assaulted Changdeo. On turning to the evidence of .(9). PW-6 Changdeo, he attributes role of assault on himself only to accused No.3 Manohar. Changdeo has stated that accused No.3 Manohar pelted stones on his forehead and back. Thus, Changdeo has attributed role of assault on him only to accused No.3 Manohar; whereas PW-3 Sukhdeo has attributed role of assault on Changdeo only to accused No.1 Maruti. PW-8 Padmini has also attributed role of assault on Changdeo to accused No.1 Maruti by pelting of stones and she makes no mention of yoke-pin. However, PW-9 Dnyandeo has stated that accused No.1 Maruti, accused No.3 Manohar and accused No.4 Tukaram were beating Changdeo. PW-8 Padmini has not attributed any role of assault by hands by any accused to Changdeo. She has not stated that Maruti pelted stones on Changdeo. On the other hand, Dnyandeo has stated that accused Nos.1, 3 & 4 actually beat Changdeo. Thus, as far as assault on Changdeo is concerned, the evidence of all the witnesses is highly discrepant. Hence, I do not find it safe to rely on their testimony in relation to assault on Changdeo. 9. Now I shall deal with the assault on PW-3 Sukhdeo. Sukhdeo has stated that accused Nos.1 to .(10). 4 beat him by stones. PW-6 Changdeo has stated that accused Nos.1 to 4 beat Sukhdeo, but, he makes no mention of stones and from his evidence, it is evident that he has referred to assault by these accused persons on Sukhdeo by hand. PW-8 Padmini has made no reference to any of these accused persons assaulting Sukhdeo. However, Dnyandeo has stated that accused Nos.1, 3 & 4 were beating Changdeo. Sukhdeo himself has stated that accused Nos.1 to 4 beat him by stone i.e. by throwing of stones. However, the evidence of this witness on this aspect is totally inconsistent with the evidence of Dnyandeo and Changdeo who have stated that accused Nos.1 to 4 were beating Sukhdeo which is evidently by hand and not by stones. 10. Now I shall deal with assault on PW-8 Padmini. PW-3 Sukhdeo & PW-9 Dnyandeo have made no reference at all to any of the accused persons assaulting her. However, PW-6 Changdeo stated that accused No.3 beat Padmini. As stated earlier, the injured witness herself does not implicate either accused No.3 Manohar or any other accused persons as having assaulted her. Thus, .(11). the evidence of assault on Padmini is not at all cogent, hence, I do not find it worthy of reliance. 11. As far as assault on Dnyandeo is concerned, Dnyandeo has stated that accused No.1 Maruti gave him stick blow on his hand and accused No.3 Manohar gave stick blow on his head. However, PW-3 Sukhdeo, PW-6 Changdeo and PW-8 Padmini do not make any reference to any assault on Dnyandeo. 12. It may be reiterated here that as far as PW-8 Padmini, PW-9 Dnyandeo and PW-3 Sukhdeo are concerned, the injuries sustained by them are simple in nature. 13. The specific defence of the accused persons is that they were attacked first and they have exercised right of private defence. As stated earlier, as far as the land dispute between the accused and the family of the complainant is concerned, the accused persons had obtained an injunction in their favour from Court. Hence, the complainant and his family could not object to the accused persons passing through the land. It is .(12). pertinent to note that the accused persons have also sustained large number of injuries in the incident. This is clearly seen from the record including the evidence of PW-2 Dr.Powar who has examined the accused persons. 14. PW-2 Dr.Powar has stated that he examined the following persons viz. Maruti Gangadhar Mali (accused No.1), Manohar Maruti Mali (accused No.3), Prayagbai Maruti Mali (accused No.5), Tukaram Maruti Mali (accused No.4) who had been referred to him by Madha Police Station for examination. Injury No.1 of Maruti Gangadhar Mali was on the head on the left temporal region and it was on the vital part of the body. Tukaram had an injury on the occipital region and it was on a vital part of the body. Prayagbai had one injury on the head and it was on the vital part of the body. He further stated that he has referred Manohar and Maruti to the Civil Hospital for further treatment. The medical certificates issued by the Medical Officer, P.H.C. Madha, show that the accused persons had also sustained injuries during the course of the incident. The medical certificate of Prayagbai shows that she .(13). sustained contused lacerated wound on scalp 3 cm X 1/2 cm scalp deep. Manohar had two injuries, one was contused lacerated wound and another was swelling. Injury No.2 was simple. Accused Maruti had sustained eight injuries and injury No.8 was grievous in nature. Tukaram had sustained seven injuries in the incident. Thus it is seen that the accused persons also had sustained many injuries in the incident and these injuries were caused by the prosecution witnesses. 15. The medical certificates of the accused persons have been brought on record and they are at Exhs.67 to 70. It is the defence of the accused that in order to save themselves they assaulted the prosecution witnesses, and therefore, the prosecution witnesses sustained injuries. It has also come on record that accused No.4 Tukaram has lodged an FIR against PW-2, PW-6, PW-7, PW-8 & PW-9. The said case was also committed to the Court of Sessions and it was numbered as Sessions Case No.219 of 1990. On considering that the accused persons had obtained an injunction in their favour, the injuries sustained by the accused, and the case putforth by .(14). them that the prosecution witnesses have sustained injuries at the hands of the accused persons during the course of the incident when they were trying to save their lives, I find much merit in the submission on behalf of the accused that the act took place while they were exercising their right of private defence. Looking to the facts of this case, it cannot be said that the accused have exceeded their right of private defence. 16. From the statement of the accused under Section 313 of Cr.P.C. it reveals that the prosecution witnesses beat them and therefore they were bound to save themselves. In this case, the medical certificates issued by the Medical Officer, P.H.C.Madha, and the other evidence, clearly shows that the accused persons had also sustained injuries during the course of the incident which are directly attributable to the prosecution witnesses. The medical certificates of Prayagbai shows that she sustained contused lacerated wound on scalp 3 cm X 1/2 cm scalp deep. Manohar had two injuries. Accused Maruti had sustained eight injuries and injury No.8 was grievous in nature and Tukaram had sustained seven .(15). injuries in the incident. Some of the injuries sustained by the accused were on vital parts of the body. On looking to the injuries sustained by the accused, I am of the opinion that the accused have exercised their right to private defence and as the accused persons have not exceeded their right of private defence, they are entitled to claim the benefit for it. Thus, the cumulative effect of the above discussion is that the prosecution has not established that the accused exceeded their right of private defence. 17. As far as deceased Namdeo is concerned, it is seen that he has sustained only one injury. Causing one injury to the person in the circumstances that the accused persons themselves have sustained seven or eight injuries each cannot be said to be an act exceeding their right of private defence. The injuries sustained by PW-3 Sukhdeo, PW-8 Padmini & PW-9 Dnyandeo were simple in nature. PW-6 Changdeo has sustained three injuries, out of which two injuries were grievous in nature. Looking to the nature of injuries sustained by accused and the nature of injuries on Changdeo in my opinion it cannot be said that the accused persons have exceeded their right of .(16). private defence. 18. Looking to the evidence on record, it can be said that the accused persons apprehended that if not death then at least grievous hurt would be the consequence of the assault on them by the prosecution witnesses. In fact it is seen that the accused persons had also sustained grievous injury. In the facts of this case, the matter is squarely covered by Section 100 of Indian Penal Code and the accused persons deserve to be given the benefit thereof. 19. In the result, appeal is allowed. Conviction and sentence of the appellants is set-aside. The judgment and order dated 9.9.1991 passed by the learned 5th Additional Sessions Judge, Solapur in Sessions Case No.84 of 1990 is set-aside. The appellants are on bail. Their bail bonds shall stand cancelled. Fine amount, if any, paid be refunded to the appellants. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)