1 AJ-517.93 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.517 OF 1993 1. Hanumant Yeshwant Chaudhari, aged about 22 years, residing at Pimpalwadi, Taluka Barsi, District Solapur. 2. Gautam Baliram Chaudhari, aged about 35 years, residing at Pimpalwadi, Taluka Barsi, District Solapur. .... Appellants - Versus - The State of Maharashtra .... Respondent Shri S.V. Kotwal, Senior Advocate, for the Appellants. Shri J.P. Kharge, Addl. Public Prosecutor, for the State. CORAM: R.C. CHAVAN, J. DATED: APRIL 11, 2011 ORAL JUDGMENT: 1. This appeal is directed against the conviction of the two appellants by the learned IInd Additional Sessions Judge, Solapur for the offence punishable under Section 304 (Part-II) of the Indian Penal Code (for short, IPC ) and 2 AJ-517.93 sentence of RI for five years inflicted upon them by the learned Judge on the conclusion of Sessions Case No.274 of 1992 before him. 2. The facts which are material for deciding this appeal are as under: The two appellants are neighbours of the victim. There was some civil litigation between the family of the appellants and the victim s family. On 23-7-1992 cattle of the victim allegedly trespassed into the field of the appellants. When the appellants were in the process of taking the cattle to the cattle pond, the victim obstructed. The appellants along with two other accused, who were tried with them, are alleged to have beaten up the victim in the cattle-shed with sticks and the handle of an axe. The victim was injured and was taken by his relations to a hospital. The victim himself gave a report to the police whereupon an offence was registered. The victim died on the next day while taking treatment. The police sent the body for post-mortem after performing the inquest and in the course of the investigation, recorded statements of the witnesses, seized incriminating articles, sent some of the property seized to the Forensic 3 AJ-517.93 Science Laboratory and on completion of the investigation, charge-sheeted the appellants and the two other co-accused in the Court of Judicial Magistrate, First Class, Barsi. 3. Upon commitment of the case by the learned Magistrate to the Court of Sessions at Solapur, the learned Additional Sessions Judge to whom the case was made over charged the appellants and the two other accused persons for the offence punishable under Section 302 of the IPC. All the accused pleaded not guilty and hence were put on trial at which the prosecution examined in all eight witnesses in its attempt to bring home the guilt of the accused persons. In defence, the accused persons had also examined one Dr. Pandurang Barute to prove the injury certificate of one of the assailants Gautam. After considering the prosecution evidence in the light of the defence raised, the learned Additional Sessions Judge held the two other accused persons, that is original accused Nos.1 and 2 who were tried at the trial, to be not guilty and proceeded to acquit them. He held the present appellants guilty of the offence punishable under Section 304 (Part-II) of the IPC holding that the appellants did not harbour any intention to 4 AJ-517.93 cause death of the victim but could be attributed the necessary knowledge that their assault would lead to the death of the victim. He also held that the appellants had exceeded the right of private defence of property. Therefore, the learned Judge convicted the appellants of the offence punishable under Section 304 (Part-II) of the IPC and sentenced them, as indicated earlier. Aggrieved thereby, the appellants are before this Court. 4. I have heard the learned counsel for the appellants and the learned APP for the State. With the help of both the learned counsel, I have gone through the evidence on the record. PW-1 Javaharlal is the Circle Officer who had drawn the sketch of the spot, PW-2 Vanmala is an eye-witness to the incident, PW-3 Sitaram is panch at the seizures effected at the instance of the accused persons, PW-5 Dr. Kulkarni examined the victim when the victim was alive and issued the injury certificate at Exhibit-31, whereas PW-4 Dr. Kanki conducted the autopsy and prepared the post-mortem notes which are at Exhibit 15. PW-6 Raghunath reached the spot after the incident and his evidence is relevant only to the extent of oral account of the incident given by the 5 AJ-517.93 victim to him. PW-7 PSI Bandgar recorded the report of the deceased at Exhibit-34 and PW-8 More conducted the investigation. 5. The evidence of PW-2 Vanmala, who is the eye-witness to the incident, shows that appellant Gautam had an axe in his hand and the other accused were armed with sticks. She stated that Gautam was hitting Shridhar with the handle of the axe. Thus, though the appellant Gautam was armed with an axe, it is noteworthy that he had not used the blade of the axe or even the blunt end of the axe for hitting the victim but had hit the victim with the handle of the axe. The learned Judge had, therefore, rightly excluded the intention to cause death. But the learned Judge should have also seen that the type of the assault which had been launched by the two appellants was such as to indicate that the appellants could not have known that the victim would die as a result of the injury so sustained. One of the assailants had used the handle of the axe and the other had used sticks for hitting the victim. The injuries caused, according to the medico legal certificate (Exhibit-31) were mostly contusions or swellings. PW-5 Dr. Kulkarni, who had issued this certificate, had 6 AJ-517.93 not stated that all the injuries taken together, or any one of those injuries, were sufficient in the ordinary course of nature to cause death. He had specifically ruled out in the cross-examination the possibility of the injuries being caused by a sharp weapon. PW-4 Dr. Kanki, who conducted the post-mortem examination, found that there were fractures to 2nd, 3rd and 4th ribs on the left hand side but the dissection did not show any damage to the lungs. The doctor opined that the cause of death was shock due to multiple injuries on the body and the fracture of bones with injuries to visceral organs. But the post-mortem notes do not show that any visceral organ had suffered any injury. Except contusions to stomach and even the lungs, there were no tear or cut to any of the visceral organ. Even Dr. Kanki does not state that any injury or all the injuries together were sufficient in the ordinary course of nature to cause death. Therefore, given the nature of the assault launched, even according to the oral account of the incident recorded at Exhibit-34 by PW-7 PSI Bandgar, the learned Judge should not have held that the appellants could be attributed knowledge that the injuries which they were causing could lead to the death of the victim. The first information report, 7 AJ-517.93 which is at Exhibit-34, shows that the victim claimed to have been told by the appellants not to let loose his cattle. The appellants came to his cattle shed and hit him with sticks on his chest and shoulder. He states that Achyutrao Chaudhari and Raghunath Chaudhari came and rescued him. Both these persons have not been examined by the prosecution. The victim s son PW-6 Raghunath states that his father told him that cattle entered the crop of the accused Gautam and Gautam was taking the cattle to the cattle pond when the victim obstructed Gautam and hence all the accused beat him up. Thus, the account of the incident given by the victim also does not show that the assault launched on the victim by the appellants was such as to justify attribution of knowledge to the appellants that the injuries would lead to the death of the victim. In view of all this, the learned Additional Sessions Jugde was thoroughly unjustified in holding that the appellants committed offence punishable under Section 304 (Part-II) of the IPC. 6. The learned counsel for the appellants submitted that since all that the appellant had done was to cause a grievous hurt to the victim, and since the learned trial Judge had 8 AJ-517.93 accepted the defence of the appellants but held that they exceeded the exercise of their right of private defence, in view of the provisions of Section 104 of the IPC, the appellants ought to be in fact acquitted. He submitted that the right of private defence in such a situation could extend to causing any harm other than causing death and, therefore, the appellants were justified in inflicting grievous injuries on the victim. This contention could have been accepted but for the fact that the incident did not take place on the property of the appellants. The appellants had in fact gone to the cattle shed of the victim and injured him there. Therefore, there was no question of the appellants exercising any right of private defence of their property or their person to claim that they were acting within the limits prescribed under Section 104 of the IPC. The learned trial Judge was wrong in extending to the appellants the benefit of exercise of right of private defence. Therefore, the claim of the appellants that they should be acquitted, has to be rejected. 7. Yet, the appeal would have to be partly allowed since the appellants cannot be held guilty of the offence under Section 304 (Part- 9 AJ-517.93 II) of the IPC. Considering the nature of the assault launched and considering the evidence of the two Medical Officers who had examined the victim, when alive and after death, the offence for which the appellants would be held guilty is one punishable under Section 325 of the IPC, since only the handle of the axe and sticks were used. In view of this, the learned counsel for the appellants submitted that since there is no minimum punishment prescribed for the offence under Section 325, the appellants may be released on the sentence already undergone by increasing the fine. This suggestion has to be rejected considering the fact that the victim has in fact died as a result of the assault launched and even if the suggestion of reducing the sentence was to be considered, none of the appellants had suffered imprisonment of more than two months as under- trial prisoners or post-conviction. Therefore, their going back to the jail is inevitable. Hence, the bench mark sentence in cases of offence punishable under Section 325 of the IPC, which is RI for three years, would have to be inflicted on the appellants. 8. The appeal is, therefore, partly allowed. The conviction of the appellants for 10 AJ-517.93 the offence under Section 304 (Part-II) of the IPC is substituted by conviction for the offence punishable under Section 325 of the IPC and the sentence imposed is reduced from RI for five years to RI for three years. The appellants shall surrender to their bail within a period of four weeks and if they do not do so, the Ld. Sessions Judge would take them in custody. Sd/- (R.C. CHAVAN, J.)