1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTON CRIMINAL APPEAL NO.95 OF 1991 The State of Maharashtra .. Appellant V/s Mahadeo Bhagwan Mahamuni Age 52 years, Resident of Kondhej, Tal.Karmala, District Solapur. .. Respondent Mr.H.J.Dedhia, APP for the Appellant-State. Mr.S.S.Salunkhe, Advocate for Respondent. CORAM: D.B.BHOSALE & R.G.KETKAR, JJ. DATE: 31st August, 2010. JUDGMENT: (Per R.G.Ketkar, J.) 1. This appeal is preferred by State of Maharashtra challenging the judgment and order dated 9th November, 1990 passed by learned II Additional Sessions Judge, Solapur in Sessions Case No.149 of 1989. By that judgment, learned Sessions Judge acquitted the Respondent of the offence of murder punishable u/s.302 Indian Penal Code, 1860 (for short IPC). 2. It is the case of the prosecution that there was a dispute over the neem trees standing in the agriculture land between deceased Ramdas and his brothers and the father. Deceased Ramdas objected for sale of these trees. Respondent hereinafter referred as accused had intervened and settled the dispute by assuring deceased Ramdas that he would ensure 2 that deceased Ramdas gets Rs.1500/- as his share from the sale proceeds of the neem trees. On 19th July, 1986 deceased Ramdas came to Sarafdoh for carrying out agriculture operations in his field. At that time he met accused at 5.30 p.m when accused was proceeding towards his home after closure of the School. Accused was working as a primary School teacher. At that time, Accused Ramdas asked the accused to arrange payment of Rs.1500/- as assured by him. Accused refused to pay the amount and further told deceased Ramdas that he should see him after he returns home. Deceased Ramdas threatened accused that he would not leave him unless he pays the amount. It is the case of the prosecution that accused went back to the School and returned with a plastic bottle containing acid. He came and threw acid on the face, chest and body of deceased Ramdas. In view of this, deceased Ramdas sustained burn and was taken to Cottage Hospital for treatment. Police Patil of village sarafdoh reported the matter to the Karmala Police Station. PW9-ASI Panditrao Arjun, took necessary entry in the station diary vide Exh.24 and directed PW8-ASI Paradhi to record the statement of deceased Ramdas. Accordingly, PW8-ASI Paradhi recorded statement of Ramdas on 19th July, 1986 vide Exh.25 which was treated as the First Investigation Report (FIR) and the offence u/s.324 IPC was registered under C.R.No.60 of 1986. 3. Investigation of the offence was taken over by PW7-PSI Shinde. On 3 10th July, 1986, accused was arrested and PW7-PSI Shinde seized clothes on his person under the panchanama at Exh.7. He recovered empty plastic bottle, article No.3 at the instance of the accused under the panchanama at Exh.20. Again PW10-constable Shaikh recorded statement of deceased Ramdas vide Exh.32 in the Cottage Hospital. On 11th and 12th July, 1986 PW7-PSI Shinde recorded statement of witnesses. On 30th July, 1986 complainant Ramdas expired and the offence was converted u/s.302 IPC and further investigation was handed over to PSI Pawar. After completing the investigation, PSI Pawar submitted chargesheet at Exh.27 in the Court of Judicial Magistrate, First Class, Karmala, who in turn, committed the case to the Court of Sessions for trial as the offence was exclusively triable by the Court of Sessions. 4. Accused pleaded not guilty to the charge framed u/s.302 IPC and claimed to be tried. He also claimed that the incident took place while exercising his right of self defence. It is the case of the defence that at the time of incident deceased Ramdas abused him as also assaulted him. Deceased Ramdas pelted stones on his head and hand, on account of which, he sustained head injury. Accused apprehended danger to his life and in order to save himself, he took out acid bottle lying in his bag attached to his cycle and threw acid on the body of deceased Ramdas. In support of his defence accused examined Dattatraya Vitthal Kale at 4 Exh.33. 5. In order to substantiate the charge, prosecution mainly relied upon two dying declarations at Exh.25 and 32 of deceased Ramdas, as also the evidence of eye witnesses PW4-Surekha and PW5-Anjana who were students of the School, in front of whom the incident took place. Prosecution also relied upon the recovery of a plastic bottle at the instance of the accused, as also seizure of blood stained clothes of the accused, as also the complaint given by accused at Exh.37. It has come on record that deceased Ramdas sustained 50% burns and he died 20 days after recording of his statement. PW8-ASI Paradhi attached to Karmala Police Station recorded his statement at Exh.25. PW10- constable Shaikh recorded subsequent statement on 10th July, 1986 at Exh.32. Both these witnesses deposed that deceased Ramdas was conscious and was in a position to give statement. PW10-constable Shaikh deposed that he recorded statement at Exh.32 in the presence of the medical officer, who made an endorsement below the statement certifying the condition of deceased Ramdas. 6. Perusal of the dying declarations at Exh.25 and 32 shows that both are consistent with each other except reference of assault with a chain by accused in a subsequent statement at Exh.32. Perusal of the material on record indicates that there was no reason for deceased Ramdas to implicate the accused falsely. Even the presence of the accused at the 5 time of incident is not disputed, having regard to the complaint lodged by the accused at Exh.37, as also his claim that since he apprehended danger to his life, he threw acid on the body of deceased Ramdas in his self defence. 7. The prosecution also relies upon the evidence of two child witnesses PW4-Surekha and PW5-Anjana who are eye witnesses to the incident. PW4-Surekha deposed that she was present at the time of incident. Accused had thrown medicine (acid) on the face and chest of deceased Ramdas. Accused had brought the said medicine in the bottle from the School. PW5-Anjana deposed that at the time of incident at about 5 p.m she was standing at the varandha of the School. At that time quarrel took place between the accused and deceased Ramdas. Accused then rushed back to the School and brought bottle of acid and had thrown acid on his body. Considering the totality of circumstances on record, the learned Sessions Judge came to the conclusion that the evidence of the prosecution consisting of two dying declarations and ocular account of child witnesses was consistent and cogent. 8. On the basis of material on record, learned Sessions Judge ultimately came to the conclusion that accused exercised right of private defence as he apprehended danger to his life. Learned Sessions Judge accordingly acquitted the accused of the offence of murder punishable u/s.302 IPC. We have heard Mr.Dedhia, learned APP on behalf of the appellant-State 6 and Mr.Salunkhe, learned counsel for Respondents at length. Mr.Dedhia submitted that the learned Sessions Judge after appreciating the evidence on record came to the conclusion that the evidence of the prosecution consisting of two dying declarations and ocular account of child witnesses was consistent and cogent. However the learned Sessions Judge committed grave error in accepting the defence of the accused that in order to save his life he had poured acid on the deceased Ramdas. On the other hand Mr.Salunkhe appearing on behalf of Respondents-Accused supported the impugned judgment. 9. It has come on record that the Accused sustained head injury and even the arrest panchanama at Exh.7 mentions about the bandage on his head. Both the dying declarations made by deceased Ramdas at Exh.25 and 32 as also the child witnesses PW4-Surekha and PW5-Anjana are silent on the aspect of accused sustaining injury. It was submitted by Mr.Salunkhe, learned counsel appearing on behalf of the Respondent that the prosecution has not explained the injuries sustained by the accused at the time of occurrence of the incident. He therefore submitted that the prosecution has suppressed the genesis and the origin of occurrence and thus, has not presented true version. The witnesses who denied the presence of the injuries on the person of the accused are lying on the most material point and their evidence is unreliable. In case there is a defence version which explains the injuries on the person of 7 the accused, it is rendered probable so as to throw doubt on the prosecution’s case. Considering the evidence on record, in our opinion, the prosecution has established beyond reasonable doubt that deceased Ramdas died because of scepticamia due to burns which were caused because of acid. It is also established beyond reasonable doubt that the accused had thrown acid on the body of deceased Ramdas. Accused had claimed that after closure of the School, while he was returning home, deceased Ramdas intercepted him and insisted for payment of Rs.1500/- towards his share of sale proceeds of neem trees. He further threatened accused that he will not leave him unless he pays the said amount. Accused claimed that it was deceased Ramdas who started assaulting him and pelted stones. He sustained head injury which was bleeding. He apprehended danger to his life and in order to save himself, he had taken out plastic bottle containing acid from the bag attached to his cycle and had thrown acid on the body of deceased Ramdas. 10.In support of his defence accused examined Dattatraya Kale at Exh.33. Defence witness Dattatraya deposed that deceased Ramdas was strong and well built. He was dangerous by nature and used to beat even his parents and the people were scared of him. When deceased Ramdas met the Accused, he abused the Accused, assaulted him and pelted stones on his head and hands. Even in the dying declarations at Exh.25 and 32 deceased Ramdas stated the presence of DW-Dattaratraya. In the 8 complaint made by accused at Exh.37 also he had mentioned the presence of Dattatraya. In fact, Dattatraya was cited as a prosecution witness. However, he was not examined on behalf of the prosecution. Thus the presence of DW Dattatraya at the time of incident in question cannot be doubted. Even the case of the accused that he sustained injuries during the incident, cannot be ruled out. According to the defence, accused was doing the job of goldsmith in his spare time and the acid bottle was in his bag attached to his cycle. Against the claim that he apprehended danger to his life, it has come on record that the deceased Ramdas in fact had pelted stones on the accused on account of which accused had sustained bleeding injuries. Thus the danger was imminent to the life of the accused. Considering the imminent danger the accused tried to ward of danger by throwing acid on the body of deceased Ramdas and saved himself. 11. Considering the situation in which accused was placed, it cannot be expected of him to think calmly and rationally and control his reaction by weighing pros and cons. In the circumstances and on the basis of material on record, the learned Sessions Judge came to the conclusion that the accused acted in a reasonable manner and did not exceed the right of self defence. Learned Sessions Judge accordingly held that accused is entitled to protection and benefit awarded u/s.102 IPC and consequently accused cannot be held guilty of murder. Resultantly 9 learned Sessions Judge held that accused is entitled to acquittal. 12.After hearing learned APP for the State and learned counsel for the Respondent, and after going through the material on record, we are satisfied that the view expressed by learned Sessions Judge is a reasonable and possible view. We do not find any material on record to take a different view. 13. In the result, appeal fails and the same is dismissed. (R.G.KETKAR, J.) (D.B.BHOSALE, J.)