Cri. Appeal No. 648/09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 648 OF 2009 Shrawan s/o. Dagdu Pawar, Age 26 yrs., Occu. Agri., R/o. Devgaon, Tq. Newasa, Dist. Ahmednagar. ....Appellant. Versus The State of Maharashtra ....Respondent. Mrs. Sadhana S. Jadhav, Advocate for appellant. Mr. K.G. Patil, A.P.P. for respondents. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. DATED : 25th March, 2011. JUDGMENT : [ PER T. V. NALAWADE, J.] 1. This appeal is filed against the judgment and order of Sessions Case No. 83/2006 decided by District Judge-1 & Additional Sessions Judge, Shrirampur. By the decision dated 30.10.2009 the Trial Court has convicted and sentenced the appellant for the offence punishable under section 302 and also for the offence punishable under section 324 read with 34 of the Indian Penal Code (IPC). Cri. Appeal No. 648/09 2 2. In short, the facts leading to the institution of this appeal can be stated as follows :- (a) Shridhar Dhumal lives with his family in a house constructed in his field from Devgaon Shivar, Tahsil Newasa, District Ahmednagar. At the relevant time, his wife Sumanbai, his mother Housabai and his deceased son Ravindra alias Bhausaheb were also living in this house. The agricultural land of Dagdu Pawar, father of appellant Shrawan, is situated adjacent to the land of Shridhar. At the relevant time, Dagdu Pawar was living in his house with appellant, other son Ganesh and wife Mainabai. On north side of these two houses, there is Devgaon - Saoundala cart road. One foot-path starts from the house of Shridhar and it meets Devgaon - Soundala road after passing by the side house of Dagdu Pawar. Deceased Bhausaheb was using this foot-path for going to his college on bicycle. Other members of the family of Shridhar were also using this road for approaching Devgaon - Soundala road. (b) On the previous day of incident i.e. on 10.9.2006 Bhausaheb was intercepted on this road by appellant and his father and they said that Bhausaheb should not use this road. They gave threat to teach lesson to Bhausaheb on the next morning. This incident of evening was narrated by Bhausaheb to his parents after reaching home. (c) The incident took place on 11.9.2006 at about 8 to 8.15 a.m. As the Cri. Appeal No. 648/09 3 tire of bicycle of Bhausaheb was in punctured condition, he started on foot for college at about 8 a.m. When Bhausaheb was proceeding towards Devgaon-Soundala road by using the disputed road, Sumanbai, mother of deceased was present on the terrace of the house. Sumanbai noticed that the appellant, his father and brother Ganesh had intercepted the deceased. Sumanbai rushed to her husband and she told about this incident to Shridhar. Shridhar and Sumanbai started on motorcycle for the spot and they reached spot within no time. Housabai, mother of Shridhar, started for the spot on foot. (d) After reaching of Shridhar and Sumanbai to the spot, Dagdu Pawar, his wife, appellant and other son of Dagdu Pawar namely Ganesh started quarreling with Shridhar and his family members. Accused and the other persons of his house started rushing at Bhausaheb and they were holding weapons like sword, iron bar and stick. Appellant/accused was holding a sword which was small and it was looking like Gupti. Ganesh was holding iron bar and Dagdu was holding stick. Kiran Shinde and Kabir Sayyed were studying in the college of deceased and while proceeding towards college, they noticed that quarrel was going on by the side of Devgaon - Soundala road. They learnt about the reason behind the quarrel. Dagdu Pawar and his two sons then attacked Shridhar, deceased and wife of Shridhar by using aforesaid weapons. When they were attacking, they were saying that they would not allow Cri. Appeal No. 648/09 4 the family of Shridhar to use the disputed approach road. Shrawan used the sword against Bhausaheb, Shridhar and Sumanbai. Blows of sword were mainly given to Bhausaheb. One blow of sword was given on the head of Shridhar and one blow of the sword hit on right hand of Sumanbai. When Kiran Shinde and Kabir Sayyed tried to intervene in the incident, the appellant gave blow of sword on the right hand of Kiran Shinde. Dagdu Pawar gave blow of stick on the head of Kabir. Accused Ganesh gave blow of iron bar on the hands of Sumanbai and her bangles were broken in the incident. Dagdu Pawar gave blows of stick to Shridhar and his wife. Bhausaheb sustained bleeding injury below shoulder bone, in the chest due to use of sword. Bhausaheb sustained one more injury on his hand. Sumanbai and Shridhar also sustained bleeding injuries. (e) Bhausaheb, Shridhar and Sumanbai were first taken to a dispensary from Kukana and from there they were taken to Surya Hospital at Ahmednagar. On the way to Ahmednagar, Bhausaheb disclosed the incident of assault and previous incident to the persons who were present in the jeep and he gave the names of Dagdu Pawar and his two sons as assailants. Bhausaheb succumbed to injuries on the way to Ahmednagar. (f) After the death of Bhausaheb, Kiran Shinde gave report to A.S.I. Cri. Appeal No. 648/09 5 Devdhe who was attached to Newasa Police Station. Crime No. 160/2006 came to be registered for the offences punishable under sections 302, 307, 504, 506 and 34 of IPC. Police Inspector Khandagale took over the investigation on the same day. Khandagale visited spot of offence and he prepared spot panchanama in presence of two panch witnesses. One motorcycle bearing No. MH-17/Q-8468 was present on the spot and it was told that the motorcycle belonged to deceased. There was blood on the ground and there was blood on the motorcycle. One stick and iron bar having blood stains were lying on the spot. There were green pieces of bangles lying on the spot. There were two white buttons and there was piece of collar of white shirt. All these articles came to be seized under panchanama. The spot is situated right at the point where the approach road meets Davgaon - Soundala road. The distance between the house of accused and the spot of offence was noted as one furlong and the distance between the house of deceased and spot of incident was noted as two furlongs. (g) Post mortem examination of the dead body came to be done on the same day. Doctor gave opinion that the death took place due to injuries sustained on the chest and it had cut left lung. Injury certificates in respect of other injured persons like Shridhar, his wife and Kiran Shinde came to be collected during the course of investigation. The clothes of deceased, clothes of injured persons and the clothes of Cri. Appeal No. 648/09 6 appellant/accused and his brother came to be seized. Khandagale recorded statements of eye witnesses. While in police custody appellant Shravan gave the statement that he had concealed the weapon, sword in the heap of fodder which was lying in his field. Appellant took police and panchas to the spot, but the heap of fodder was found to be burnt by somebody. From the heap of ash which was lying on the spot, a sword came to be recovered and it came to be seized under panchanama. Khandagale arranged for preparing the map of scene of offence by writing a letter to revenue authority. Khandagale arranged to send all the articles seized during investigation and blood samples of deceased and accused to C. A. Office. After completion of the investigation Khandagale filed chargesheet against Dagdu Pawar, his two sons and his wife in the Court of Judicial Magistrate, First Class, Newasa. (h) The J.M.F.C. committed the case to the Sessions Court, Ahmednagar. The District Judge -2, Shrirampur framed charge against the accused. Plea of the accused came to be recorded. All the accused persons pleaded not guilty. The prosecution examined in all 17 witnesses. The statements of all the accused came to be recorded under section 313 of Criminal Procedure Code (Cr.P.C.). The accused took the defence that the family of Shridhar Dhumal was committing theft of electricity from connection taken by Dagdu Pawar on his well and when it was expressed that report will be given to police, the family of Shridhar Cri. Appeal No. 648/09 7 became angry. The accused took the defence that at the time of incident Shridhar and his family members and four friends of deceased like Kiran Shinde, Kabir Sayyed, Ankush Wagh and Santosh came to the house of Dagdu and they started quarrel. It is the case of the defence that initially Shrawan was not at home as he had already left the home for shoe-shop situated at the distance of 3 k.m. It is contended that due to fear of the aforesaid persons Dagdu Pawar and others started proceedings towards Devgaon - Soundala road. It is contended that on the way they came across Shrawan who was called by Ganesh and who had started for home. It is contended that the deceased was holding a Gupti and he attacked Shrawan. It is contended that to save himself, Shrawan held the sword with his two hands and the scuffle started. It is contended that there was pushing and pulling between Shrawan and deceased and in that incident, the weapon caused injury to Bhausaheb. The accused contended that after this incident they directly went to Kukana outpost. For defence, Dr. Sanap came to be examined for giving evidence on the nature of injuries sustained by the appellant and for giving evidence in respect of injuries sustained by deceased which are mentioned above. (i) The Trial Court has held that the offence committed by the appellant Shrawan falls under section 300 (3) of IPC and so he is convicted and sentenced for the offence punishable under section 302 of IPC. The appellant is also convicted and sentenced for the offence Cri. Appeal No. 648/09 8 punishable under section 324 read with 34 of IPC as other persons were also injured. 3. The advocate of the appellant did not dispute that the conviction given for the offence punishable under section 324 read with 34 of IPC is sustainable. Dagdu and Ganesh are also convicted for the offence punishable under section 324 read with 34 of IPC by the Trial Court and they are released on executing bond of good behaviour. In the appeal it was submitted for appellant that the prosecution evidence is not sufficient to infer that there was intention to commit murder of Bhausaheb. It was submitted that the evidence given by witnesses show that there was scuffle and there are also the circumstances to create the probability that appellant was exercising his right of private defence. It was submitted that there was no intention to murder Bhausaheb and the injury in question was also not intentionally caused. It was submitted that if the Court comes to the conclusion that there was no exercise of right of private defence, on the basis of evidence, scuffle can be inferred and the appellant can be convicted and sentenced for an offence punishable under section 304-II of IPC. The attention of this Court was drawn to the written say given by the accused along with the statements under section 313 of Cr.P.C. in the Trial Court. The attention of this Court was also drawn to the suggestions given to the eye witnesses in this regard for the defence. Cri. Appeal No. 648/09 9 4. From the suggestions given by witnesses, the say given in writing by the accused persons in Trial Court and the submissions made in this Court for appellant, it appears that the appellant is not disputing that the vital injury that caused the death of Bhaurao was caused due to weapon like sword. Doctor Ingale, PW 9, conducted the post mortem (PM) examination of the dead body of Bhaurao and he has given evidence to prove the PM report. There is also the evidence given through the panch witness, PW 1, to prove the inquest panchanama. The evidence of two witnesses is at Exhs. 39 and 74 respectively. The inquest panchanama is at Exh. 40 and the PM report is at Exh. 75. This evidence shows that there was injury near left shoulder and also over right palm. Injury No. 1 found near left shoulder which was on the chest, had cut left lung as it's depth was 5 inches. Portion of lung up to length of 4 inches was cut and lung had collapsed. Doctor has given evidence that such injury can be caused by weapon like sword, Article No. 15. Doctor has given evidence that injury found on right hand can be caused by hard and blunt object. Doctor has given evidence that external injury No. 1 coupled with vital injury caused to the lung caused the death. There is extensive cross examination of the Doctor and suggestions are given to almost all the witnesses to suggest that Bhaurao could have been saved, if proper treatment was given. Doctor has denied the suggestion. Though Dr. Kolte, who is relative of deceased, has not given Cri. Appeal No. 648/09 10 his clear opinion on this point, in view of the provisions of law, such defence is not available to the appellant/accused. Dr. Kolte had no opportunity to see the internal injury. 5. Attention of this Court was drawn by the State to the explanation (2) of section 299, IPC. Explanation (2) reads as under :- "Explanation 2.-Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented" In the present case injury No. 1 mentioned in the PM report caused the death and the doctor has given evidence that there was no possibility of saving of deceased. Bhaurao died due to this injury on the same day and so this injury was proximate cause of death. In view of aforesaid explanation, the probabilities that better medical treatment was not available or such medical treatment was not given, do not affect the nature of offence. Thus, when a person causes injury which results in death without intervention of other cause, such person is deemed to have caused the death. The defence of the appellant/accused that there was scuffle, can be considered after ascertaining nature of death. The degree of criminal responsibility would depend upon the knowledge or intention which can be gathered from the proved facts. In view of the aforesaid evidence and position of law, this Court has no hesitation to Cri. Appeal No. 648/09 11 hold that Bhaurao died homicidal death. Thus the Trial Court has not committed any error in holding that the death of Bhaurao is homicidal. Only the proof of homicidal death is not sufficient for prosecution for getting punishment under section 302 of IPC and the prosecution is further required to prove that it is the appellant/accused who caused injury and the case falls under section 300 of IPC. 6. Advocate of the appellant argued in respect of other surrounding circumstances. It was submitted that prosecution has suppressed genesis and origin of occurrence and true version is not presented before the Court. It was submitted that eye witnesses have admitted that there was dispute/quarrel and there was virtually scuffle. It was also submitted that the incident took place near the house of accused and the accused also sustained injuries on both his hands and so inference of exercise of right of private defence can be drawn in favour of the appellant/accused. It was submitted that injuries found on the hands of appellant are not explained by prosecution. It was submitted that in view of the circumstances, probability is created in favour of appellant and the case at the most may fall under either exception (2) or exception (4) of section 300 of IPC. On this point, case reported in AIR 1976 Supreme Court 2263 in the case of Lakshmi Singh and others Vs. State of Bihar was cited for the appellant. In view of the facts of this reported case which show that the prosecution case was doubted and there was a Cri. Appeal No. 648/09 12 probability that genesis and origin of occurrence was suppressed, the accused were acquitted. On the other hand, the prosecution has relied on two cases reported in (2002) 7 SCC 488 in the case of Dharminder Vs. State of H.P. and (2006) 3 Mah.L.R. 862 (SC) in the case of Arun Nivalaji More Vs. State of Maharashtra. In the first case, the Apex Court has observed that only because injuries found on the person of accused are not explained, the prosecution case cannot fail. The Apex Court has observed that in criminal case all the relevant circumstances need to be considered by the Court. In the second case, the Apex Court has observed that only due to circumstance that a single injury was inflicted by a dangerous weapon the case against the accused cannot be brought under section 304-I or 304-II of IPC and in such cases other relevant circumstances need to be kept in mind. These observations were made in view of the facts of the reported cases and there cannot be dispute about the proposition made by the Hon'ble Apex Court. 7. Before appreciating the prosecution evidence and considering the probability suggested for defence, it is necessary to consider the general position of law in this regard. It is already observed that after proving the fact of homicide, the prosecution is required to prove other ingredients of the offence of murder. In Indian Penal Code the homicides in the cases like present one are classified in two categories. The definition of 'culpable homicide' is given in section 299 of IPC and murder it is Cri. Appeal No. 648/09 13 defined in section 300 of IPC. The two sections run as under :- 299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Explanation 1.-A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.-Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.-The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. 300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by Cri. Appeal No. 648/09 14 which the death is caused is done with the intention of causing death, or- 2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or- 3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.- ............... Exception 2.-Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Cri. Appeal No. 648/09 15 Exception 3.- ............... Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault. " The offence of murder is made punishable under section 302 of IPC and the offence of culpable homicide is made punishable under section 304 of IPC. These two provisions run as under :- 302. Punishment for murder.--Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. 304. Punishment for culpable homicide not amounting to murder.-- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death or of Cri. Appeal No. 648/09 16 causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. Section 304 of IPC shows that it has two parts. If the prosecution is able to prove the 'intention', the offence will fall under part I and if 'knowledge' can be gathered from material on the record the offence will fall under part II of section 304 of IPC. The categorization of the homicides this way is made by Hon'ble Apex Court in the case reported as State of Andhra Pradesh Vs. Rayavarapu Punnayya and another, AIR 1977 Supreme Court 47. The Apex Court has compared aforesaid two definitions and also sections 302 and 304 of IPC. The Apex Court has observed that due to aforesaid definitions all murders are culpable homicides, but all culpable homicides are not murders. It is observed that culpable homicide is genus and the murder is species and unless special characteristic of murder mentioned in section 300 are established, culpable homicide cannot amount to murder. It is further observed that proportionate to the gravity of culpable homicide in sections 302 and 304 of IPC, three degrees of culpable homicide can be found viz. Cri. Appeal No. 648/09 17 (a) culpable homicide of the first degree :- the gravest form of culpable homicide which is defined in section 300 as murder, (b) second degree of culpable homicide punishable under section 304 -I, and (c) third degree of culpable homicide which is lowest type of culpable homicide and which is punishable with lowest sentence as given in section 304-II of IPC. The aforesaid provisions of IPC and the observations made by the Apex Court show that it is the duty of the Court to see whether special characteristic or elements mentioned in section 300 to constitute the offence of murder exists. For this purpose, burden is not on defence to show that it's case comes under the exceptions mentioned in section 300 of IPC. 8. For giving benefit of exception No. 2 of section 300, the ingredients of section 96 and 97 of IPC need to first exist. Further, this right of private defence is subject