IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 630 OF 2005 CRIMINAL APPEAL NO. 630 OF 2005 CRIMINAL APPEAL NO. 630 OF 2005 Kundalik Ganpat Waghmare ...Appellant (Orig.Accused No.2) vs. State of Maharashtra ...Respondent ALONGWITH CRIMINAL APPEAL NO. 806 OF 2006 CRIMINAL APPEAL NO. 806 OF 2006 CRIMINAL APPEAL NO. 806 OF 2006 Balu Ganpat Waghmare & Anr. ...Appellants (Orig.Accused Nos.1 and 3) vs. The State of Maharashtra ...Respondent Mr.Abhaykumar Apte for the Appellant. Mr.P.A. Pol, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : OCTOBER 14, 2008 DATED : OCTOBER 14, 2008 DATED : OCTOBER 14, 2008 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the appellants and APP for the State. 2. The appellants are challenging judgment and order passed by the II Ad-hoc Additional Sessions Judge, Pandharpur, in Sessions Case No.7 of 1997. By the said judgment and order dated 26th April, 2005, the learned - 2 - Sessions Court was pleased to convict the appellant Kundalik Ganpat Waghmare who was the original accused no.2 for an offence punishable under Section 326 of the IPC and sentenced to suffer RI for 7 years and to pay a fine of Rs.1000/- and in default of payment of fine, to suffer further RI for three months and appellants - Balu Ganpat Waghmare and Madhu Kadappa Sonawane were also convicted. They were, however, sentenced to suffer RI for three years. All the accused were acquitted of the offence under Sections 147, 148, 307 read with 149 of the IPC. 3. The prosecution case in brief is that one Audumbar Zambre had purchased land from one Kasabai. It is the prosecution case that the field of the accused was adjacent to the field purchased by the said Audumbar. There was a dispute between the accused and the erstwhile owner of the field which was purchased by Audumber and the civil suit was filed by the accused against the erstwhile owner of the adjacent land and the suit was pending in the court. It is the case of the prosecution that said Audumbar asked his servants and - 3 - his brother to start sowing operation in the field purchased by him from Kasabai. There was an altercation between the two groups and the prosecution case is that Balu Ganpat Waghmare gave a blow of iron-strip on the head of Suryakant. Kundalik Ganpat Waghmare gave a blow of iron pick-axe on his back. A complaint was filed by PW 11 Dashrath Dede and a case was registered against the accused. A cross complaint was filed by the accused against the respondent. Investigation was carried out in the said two complaints and the two complaints were tried separately. 4. It is submitted by the Counsel appearing on behalf of the appellants that the complaint filed by the appellants herein is still pending and in the complaint filed by the complainant in this case, the trial court has convicted the appellants. The prosecution examined 18 witnesses. The prosecution has relied on the testimony of 3 eye witnesses and other circumstantial evidence. It is the case of the accused that the complainant tried to obstruct them while they were carrying on sowing operations in their field and - 4 - therefore, they acted in exercise of right of private defence. 5. Counsel for the appellants invited my attention to the injury certificate which was issued by the Medical Officer in which it has been mentioned that the accused were also injured in the said incident. It is submitted that the prosecution has not established the genesis of the said offence and has not explained the injuries which are found on the person of the accused and therefore, he submitted that the accused were entitled to be acquitted of the offence of which they were charged. 6. Perusal of the evidence on record indicates that the 3 eye witnesses have stated that the accused Kundalik and other 2 accused Balu and Madhu did assault the prosecution witnesses. However, it is worthwhile to note that the complainant in this case had ordered his men to go to the field which he had purchased from Kasabai and start sowing operation. It is the matter of record and admitted position that the appellants had - 5 - filed a civil suit against Kasabai and the said suit was pending in the civil court. Complainant Audumber had purchased this field during the pendency of the dispute and had tried to encroach upon the said land. It has also come on record that the accused had suffered injuries. The evidence of the witnesses, therefore, if it is considered in a just, proper and prospective manner, clearly establishes that the complainant and his workers and others belong to his party were really aggressive and the accused appellants had no option but to retaliate in the self defence. 7. The prosecution has not explained injuries which have been found on the person of the accused and therefore, have not established the genesis of the offence which has taken place. Therefore, even if the evidence of the complainant’s witness is accepted, the defence raised by the appellants accused appears to be probable. The trial court has discarded the defence of the accused and has not given cogent reasons while discarding the said evidence. The trial court has recorded a finding that from the evidence on record, it - 6 - was clear that the accused did not intend to cause death of the witnesses and that the injuries sustained to PW 3 Audumbar, PW 2 Suryakant, PW 4 Baban, and PW 5 Ramchandra were simple in nature and caused by hard and blunt object. It has further observed that though there was injury to the head, it was only contusion and there was no fracture to the skull or bone deep injury on the person of the witnesses. So far as Laxman is concerned, PW 18 Dr.Chitare has stated that there was fracture of the skull and it was probably caused by pick-axe. The Doctor has given his opinion that the injury was not sufficient to cause his death in the ordinary course. The trial court has discarded the version of the appellant only on the ground that the prosecution had not suppressed the fact that the accused persons had also received injuries. The trial court, therefore, merely erred in not accepting the lacunae in the prosecution case. The apex Court in the case of Lakshimi Singh and others vs. State of Bihar (1976 Lakshimi Singh and others vs. State of Bihar (1976 Lakshimi Singh and others vs. State of Bihar (1976 Criminal Law Journal 1736 Criminal Law Journal 1736 Criminal Law Journal 1736) has clearly held that if the prosecution is unable to give any explanation about the injuries which are found on the person of the accused, - 7 - the benefit should go to the accused and on that ground, the accused were entitled to be acquitted. The trial court further erred in discarding the defence raised by the appellants. The trial court has observed that the appellants had exceeded the right of private defence particularly taking into consideration injured Laxman had died after the incident and 3 to 4 persons were injured and had sustained injuries on their head. The trial court, therefore, on that ground, came to the conclusion that the appellants had exceeded the right of private defence. The said finding is obviously incorrect because PW 18 - Neuro Surgeon who was attached to Jahangir Hospital one Mahendra Chitare has stated in his evidence that though Laxman had suffered injury on his head which was operated and thereafter he was discharged from the hospital on 9th June, 1997. He has further stated that for a period of 7 years, he was undergoing treatment. From the evidence of this witness, it can be seen that the said Laxman had not died immediately after the alleged assault but he had recovered and was discharged from the hospital on 9th June, 1997. The trial court has not into consideration - 8 - the evidence of this witness PW 18. Taking into consideration the facts and circumstances of the case, in my view, the appellants are entitled to be acquitted by giving them the benefit of doubt. The trial court has already accepted the defence of the appellants that they had acted in self defence. In my view, the trial court clearly erred in coming to the conclusion that the appellants had exceeded the right of private defence. The said finding, therefore, is liable to be set aside. 8. The conviction awarded by the trial court is set aside. The appellants are acquitted of the offence of which they are charged. The bail bonds of the appellants be cancelled. Both the appeals are allowed in the aforesaid terms and are disposed of. 9. In view of the disposal of the both the appeals, connected Criminal Applications No.1071/2008 and 919/2006 do not survive and are disposed of. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)