1 APEAL 169 OF 1997 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.169 OF 1997. Santosh @ Girish Yeshwant Mhatre, age: 30 years, Occn. Agriculture. Residing at : village KoprolI, Tal. Uran, District:Raigad .. Appellant. Original Accused No.1 -versus The State of Maharashtra .. Respondent. Mr. Prashant Badole, for the Appellant. Mrs. P. P. Bhosale, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 11th January, 2011 Oral Judgment 1. This appeal is directed against the conviction of the appellant, by the learned Additional Sessions Judge, Raigad, at Alibag for the offence punishable under Section 304 part I and sentence to suffer R.I. for 10 years and to pay a fine of Rs.500/- in default to suffer R.I. for 3 months, imposed by him on conclusion of Sessions Case No.76 of 1994. 2. The facts which are material for deciding this appeal are as under:- 2 APEAL 169 OF 1997 On 18th October, 1991 a procession of immersion of Goddess ‘Durga’ was to be taken out at village Koproli. within the jurisdiction of Police Station Uran. Two police constables namely Pramod Krishna Langi and Dada Panchgane have been deputed for the bandobast. The villagers were to take out procession in which 2 to 3 idols of Goddess Durga were to be carried out for immersion. One of the idols was at the house of Rajaram Mhatre. Appellant and others were dancing in the procession. When the procession had come near the temple, some exchange of words took place, P.W.1 police constable Pramod went there and pacified the participants. At that time Rajaram Mhatre allegedly came running holding a sword in his hand and inflicted blow by means of sword on the person of Nandkumar, who had also been tried alongwith present appellant. Rajaram also gave a blow of the sword on the person of present appellant Santosh. One Dhruva, who was standing by the side of Rajaram hit a bottle on the head of Santosh. Police Constable Pramod rushed towards Rajaram Mhatre and tried to snatch the sword from Rajaram’s hand. Though Pramod was injured in the attempt, he managed to snatch the sword. 3. Somebody threw chilly powder in the eyes of Constable Pramod. At that time, other constable on duty Panchgane saw that the appellant stabbed Rajaram with Gupti and ran away. Chilly powder was also thrown at police constable Panchgane. Police Constable Pramod carried Nandkumar and 3 APEAL 169 OF 1997 the appellant Santosh to the police station. Injured Rajaram died on the spot. 4. On a report by constable Pramod, an offence was registered and investigation commenced. Pramod had carried sword with him which was seized by the Investigating Officer in the course of investigation. Police performed panchnama of spot and recorded statement of witnesses, seized the incriminating articles and sent them to the Forensic Science Laboratory and on completion of investigation, chargesheeted the appellant Santosh, Nandkumar and Mahendra Thakur for the murder of Rajaram 5. Upon commitment of the case by the learned Judicial Magistrate First Class, Uran to the Court of Sessions at Alibag, learned Additional Sessions Judge, charged the appellant, Nandkumar and Mahendra the co-accused, for the offence punishable under Section 302 read with 34 of the Indian Penal Code. Since the accused pleaded not guilty and claimed to be tried, they were put on trial,, at which the prosecution examined as many as 7 witnesses to prove the charge. After considering the evidence in the light of defence taken by the appellant, learned Additional Sessions Judge acquitted Nandkumar and Mahendra of the offence under Section 302 of the Indian Penal Code, but held the appellant guilty of offence under Section 304 Part-I and sentenced him to suffer R.I. for 10 years and to pay fine of rs.500/- or in default to suffer R.I. for three months. 4 APEAL 169 OF 1997 6. Aggrieved thereby the appellant is before this Court. 7. I have heard learned counsel for the appellant and learned Additional Public Prosecutor. With the help of both the learned counsel for the appellant and learned APP, I have gone through the record of the case. 8. Learned counsel for appellant submitted that the appellant should not have been convicted because in fact he was victim of assault of Rajaram and therefore, he exercised his right of private defence. He submitted that the P.W.1 Pramod who had lodged report had in fact not seen the appellant inflicting any stab on Rajaram. He submitted that P.W.1 Pramod categorically stated that it was P.W.3 constable Panchgane, who told him that Rajaram was hit by Gupti by the present appellant. He also pointed out that the evidence of P.W.2 Prabhavati wife of Rajaram and P.W.4 Chandrakant was not relied on by the learned trial Judge. Therefore, according to him the only witness who claimed to have seen the assault, was P.W.3 police constable Panchgane. Learned counsel pointed out that police constable Panchane stated that chilly powder was thrown at his eyes and therefore, according to learned counsel, the word of P.W.3, Police constable Panchgane that he had actually seen the appellant hitting victim also becomes doubtful. 9. Learned Additional Public Prosecutor rightly pointed out that it is only after police constable Panchgane saw the appellant hitting victim with Gupti, that the chilly power was 5 APEAL 169 OF 1997 thrown on the person of Panchgane as may be seen from the chronology of events deposed by P.W.3. Therefore, it cannot be said that police constable Panchgane had no occasion to see the manner in which the appellant had assaulted the victim. 10. There would be absolutely no reason for P.W.3, police constable Panchgane to falsely name the appellant as assailant since there is nothing to indicate that constable Panchgane had any grievance against the appellant. In any case, lengthy cross examination of Panchgane does not disclose anything to disbelieve his word that he saw the appellant stabbing the victim Rajaram on his chest. Therefore, as far as authorship of injury which led to death of Rajaram is concerned, learned Sessions Judge rightly held that it was the appellant who inflicted fatal blow. 11. The learned Additional Public Prosecutor also pointed to the evidence of P.W.6 Dr. Ganesh Narayankar, who had stated that the victim had stab wound on the left side of 1.5 cm x 0.5 cm x 8 cm deep oblique in direction. This had led to incise wound on the left lung. It was 2 cm long. Therefore, the leaned Judge rightly concluded that the appellant had to be attributed with the requisite intention as well as knowledge that the blow which was inflicted was to cause death. 12. Learned counsel for the appellant submitted that the appellant himself had suffered seven injuries on his person. These injuries have been described in the cross examination by 6 APEAL 169 OF 1997 Dr. Narayankar. They are incise wounds on the left palm, incise wound on left middle finger, incise wound on the left little finger, Contused Lacerated Wound on back, right side, two abrasions on the left side of of back. Contused Lacerated wound on the left side of parietal region which was superficial in nature. Learned counsel for the appellant submits that these injuries would show that the appellant was under a reasonable apprehension of suffering a grievous hurt and so the appellant’s case falls under clause ‘Secondly’ of section 100 of the Indian Penal Code. Therefore, the appellant was entitled to exercise his right of private defence and extend it to causing death of Rajaram. 13. Learned APP rightly pointed out that first three injuries namely incise wounds on palm, middle and little finger are the result of one blow. The Contused Lacerated Wound, abrasion on the back cannot at all be held of such gravity as would lead the appellant to believe that he would die or suffer grievous hurt if he did not inflict the stab injury on the person of Rajaram. As far as injury on the head of appellant is concerned, it is described as superficial. Contused Lacerated Wound on parietal region. This was caused not by Rajaram’s hitting appellant with sword, but by Dhruv, who hit the appellant on his head with bottle. Therefore, the appellant had absolutely no justification or apprehension of any assault from Rajaram, making him apprehend that he would suffer grievous hurt which 7 APEAL 169 OF 1997 would enabled the appellant to exercise and extend his right of private defence to killing Rajaram. Learned Trial Judge was, therefore, right in concluding that the appellant was guilty of offence punishable under Section 304 part I of the Indian Penal Code. 14. Learned counsel for the appellant next submitted that even so learned trial Judge was thoroughly unjustified in imposing punishment of imprisonment for 10 years on the appellant, since the appellant was a young man of 23 years at the time of incident which took place in the year l991. He submitted that maximum sentence prescribed for offence punishable under Section 304 part I was imprisonment for life or imprisonment which may extend to 10 years with fine. The learned Trial Judge should have seen mitigating circumstances requiring the appellant to be treated with leniency. First, according to learned counsel, the appellant was just 23 years at the time of incident. Secondly even if the appellant is held to exceeded in exercising his right of private defence, considering the fact that appellant was not aggressor and had reacted to the assault by hitting Rajaram, this fact should have been considered by the learned trial Judge. Lastly learned counsel submits that now almost 20 years after the incident and 14 years after the appellant was convicted, sending the appellant to prison would be extremely harsh. Learned APP, on the other hand submits that considering the nature of assault and the 8 APEAL 169 OF 1997 recklessness of the appellant, sentence inflicted by the learned Additional Session Judge was justified. She submitted that the learned Additional Sessions Judge could have inflicted sentence of imprisonment of life on the appellant and thus, has shown leniency in sentencing the appellant to R.I. for 10 years only. 15. I have carefully considered these contentions. Learned Sessions Judge should have seen that the appellant was a young man without any previous criminal history. He could have also seen that he had acted on provocation and had only over reacted by inflicting a stab wound on the chest of the victim. However, the incident itself is almost 20 years old and the appellant has lived in the shadow of conviction for almost 14 years now. Considering this sentence of R.I. for 10 years imposed upon the appellant could be reduced to that of R.I. for 7 years. In view of this, the appeal is partly allowed. With this, following order is passed. ORDER. I) The conviction of the appellant for the offence punishable under Section 304 part I is maintained. However, sentence of R.I. 10 years imposed upon the appellant is reduced to that of R.I. for 7 years with fine of Rs.500/- in default to suffer R.I. for 3 months. 9 APEAL 169 OF 1997 II) The appellant shall surrender to his bail within four weeks and if he does not surrender to his bail, the learned Sessions Judge shall take necessary steps to arrest the appellant and commit him to serve the sentence. (R. C. CHAVAN, J.)