Bombay High Court
Hanif Banomiya Shikalkar vs The State Of Maharashtra on 24 January, 1980
JUDGMENT Kambli, J.
1. Appellant Hanif Banomiya Shikalkar, a resident of Talegaon Dabhade, District Pune, has been convicted of an offence under Section 302 of the Indian Penal Code and has been sentenced to suffer imprisonment for life. It is alleged that the committed the murder of one Kisan Jadhav, a resident of the same village, by intentionally causing his death by stabbing him with a knife on 12-4-1975.
2. 12th April, 1975 was a Saturday, It was a 'Gudi Padva' day. On that day that was Jatra (fair) in the village. There was bullock carts' race in the village, in the racing ground which is to the West of Maruti Temple shown in the sketch of scene of offence (Ex. 7). The racing ground was at a distance of about a furlong away from the Maruti temple to the West. According to the prosecution at about 4 p.m. on that day, deceased Kisan was going from his house situated in Shanwar Peth, towards the racing ground by the road shown in the sketch. He was accompanied by his brother Chandrakant (P.W. 7), Sadashiv Mane (P.W. 8) and Malhari Jadhav (P.W. 9). At about the same time, the bullocks and bullock carts were being taken to the racing ground with the accompaniment of music and trumpets. According to the prosecution, when the deceased Kisan Jadhav and his four companions were on their way to the racing ground and when they were near the Octroi Naka, which is shown by figure '2' in the sketch, a bullock began to jump. Kisan remarked that the bullock had become fat and was Jumping.
(* Text matter in Marathi not reproduced) About this time, the accused was coming from the opposite direction i.e. from the side of the racing ground. He asked Kisan as to about whom he was making the remark. Kisan replied that the accused had no concern with the matter and that he (Kisan) was just having fun with his companions. When Kisan said so, according to the prosecution, that accused caught hold of Kisan by the collar of his shirt and he pushed Kisan back towards the East. He pushed Kisan to a distance of about 10 to 12 feet. While so doing, he took out a knife from the pocket of the trousers which he was wearing with which he stabbed Kisan on the left side of the chest twice. At the time of the assault by the accused on Kisan, his said companions were at a distance of about 8 to 10 feet towards the West. The place of assault was on the northern edge of the road near the electric pole shown in the sketch by figure ('1'). On stabbing Kisan, the accused began to run with the knife towards east. Kisan collapsed at the place of assault. He had sustained bleeding injuries on the left side of his chest. After Kisan had fallen down his companions including his brother Chandrakant went near Kisan. He was crying for water. Neither Chandrakant nor any of his companions chased the accused, but according to the prosecution, many persons who were on the road chased the accused. Water was given to Kisan. He was in a dazed condition. He could not sip water. Kisan's brother Chandrakant and his three companions viz. Sadashiv Mane, Suresh Mane and Malahari Jadhav lifted Kisan and started carrying him towards the Police Station. When they came near the Teliali Chowk (shown in the sketch) on their way to the Police Station, they found that Head Constable Jagtap (P.W. 17) and Bhagu Kalokhe (P.W. 14) had caught hold of the accused and detained the accused at that chowk. Head Constable Jagtap had with him the knife. Then Kisan was taken to the Police Station. The Police Station is about 3/4 furling to the North from Teliali Chowk. Head Constable Jagtap and Bhagu Kalokhe brought the accused to the Police Station. When Kisan was brought to the Police Station, he lost consciousness. Then Head Constable Jagtap directed that Kisan should be taken to the dispensary of Dr. Mrs. Suman Kher (P.W. 10). Dr. Kher advised that Kisan should be shifted immediately to Talegaon General Hospital. BY that time Sub-Inspector Jadhav (P.W. 18) came there with a Jeep and took Kisan to Talegaon General Hospital. Kisan's brother Chandrakant (P. W. 7) accompanied them. On the way to the hospital, Kisan died. The Medical Officer of the Talegaon General Hospital, examined him and pronounced him to be dead. Sub-Inspector Yadav held an inquest panchanama (as per Ex. 9) in respect of the dead body of Kisan at Talegaon General Hospital. He recorded the complaint of Chandrakant Jadhav (Ex. 23) in the hospital itself. He sent the complaint to the Police Station for registration of the crime. He entrusted the dead body to Police Inspector Janrao (P.W. 16) for being taken to the Sasoon Hospital, Pune for post-mortem examination.
3. In the meanwhile, after Head Constable Jagtap (P.W. 17) had removed Kisan to the dispensary of Dr. Mrs. Kher he secured two panchas and seized the clothes viz. trousers and the shirt which accused was then wearing as there were stains of blood on them, under panchnama Ex. 13. Under another panchnama, Ex. 14, he seized the knife, article No. 3, which he had snatched earlier from the hands of the accused. The knife had stains of blood. The accused was arrested under panchnama Ex. 15. It was found that there were contusions and abrasions on his body. Thereafter, in the same evening, Head Constable Jagtap recorded the statements of Bhagu Kalokhe.
4. After entrusting the dead body to constable Janrao, for being taken to the Sasoon Hospital, Sub-Inspector Yadav proceeded to the scene of offence accompanied by Chandrakant Jadhav. He got prepared the Panchanama of the scene of offence as per Ex. 11. He collected the bloodstained earth and the stones found at the scene of offence. Thereafter, at about 7 p.m. he went to the Police Station when Head Constable Jagtap handed over to him the statements of Bhagu Kalokhe and two panchas Exs. 13, 14 and 15 respectively.
5. In the course of the night, he recorded the statement of chandrakant, Sadashiv Mane and Malhari Jadhav and some others. On the next day the accused who was sent to the lock-up of Vadgaon Police Station was referred to the Medical Officer Dr. Ratiram (P.W. 15) of Primary Health Centre, Khadkala, Dr. Ratiram examined the accused at about 10.30 a.m. He found as many as 14 injuries on the person of the accused. Those injuries were either contusions or abrasions.
6. Dr. Somani (P.W. 12) performed autopsy on the dead body of Kisan in the same night. He found two stab injuries of the size of 2 1/2 Cms. x 1 Cm. x 5 Cms. on the left side of the chest. On opening he body pleura was found to have been torn below the sites of the two external wounds. There was also a wound of the size 2 1/2 Cms. in length on the lower lobe of the left lung and that wound had reached the opposite surface. There was another injury of similar nature on the upper lobe of the lung. That wound also had gone deep and had reached the opposite surface. In the opinion of Dr. Somani, all those injuries were ante-mortem. They could be caused with a sharp pointed and cutting instrument like a knife i.e. article No. 3 Dr. Somani opined that the stab injuries which had resulted in damage to the left lung and pleura were necessarily fatal and that the deceased died due to traumatic and haemorrhagic shock on account of the stab injuries. The post-mortem notes of Dr. Somani are at Ex. 31.
7. The clothes found on the deceased i.e. articles 15 to 19 and the clothes of the accused, article 4 and 5 and other articles wee sent to the Chemical Analyser, Bombay. His report, Ex. 44, disclosed that human blood of group 'A' was found on the clothes of the deceased and those of the accused. Human blood was also detected on the knife, but the blood group could not be ascertained.
8. During the course of the investigation. Police Sub-Inspector Yadav recorded statements of several persons. On conclusion of the investigation, he submitted the Charge-sheet in the Court of Judicial Magistrate, First Class, Vadgaon. The accused was ultimately committed to the Court of Session.
9. The accused pleaded not guilty. The prosecution examined as many as 18 witnesses. Out of them Chandrakant Jadhav (P.W. 7), Sadashiv Mane (P.W. 8), Malhari Jadhav (P.W. 9) Sudhakaran Anekar (P.W. 13) were examined as eye-witnesses to the occurrence. Bhagu Kalokhe is alleged to have caught hold of the accused near Teliali Chowk while he was running with the knife in his hands and Head Constable Jagtap (P.W. 17) who is said to have reached Teliali Chowk just by that time is examined to show that Bhagu Kalokhe handed over the knife which he had snatched from the hands of the accused and also the accused to him. The accused in his statement recorded under Section 313 of the Criminal Procedure Code admitted that there was a bullock carts' race in the village. He also admitted that at about 4 p.m. he met deceased Kisan and his companions on the way while he was returning from the racing ground. He, however, denied that Sadashiv Mane and Malhari Jadhav were in the company of Kisan at that time. According to him. Chandrakant Jadhav and Suresh Mane were the only persons in the company of Kisan at that time. He denied that at that time bullocks were being taken to the racing ground. According to him, no bullock was being taken at hat time. He denied that Kisan had said at that time that a bullock had become very fat and that it was jumping.
10. According to the statement of the accused, about a month before the occurrence, Muktabai - wife of one Ramesh Mane happened to meet him near the Municipality latrine behind the liquor shop. Muktabai then talked to him and asked him whether there was any way there to go to her house. At that time Kisan Jadhav, Gulab Jadhav, Chandrakant and Baban Jadhav came there. They asked him what he was talking about with Muktabai. He replied that Muktabai had just asked him whether there was any way to go home. Those people suspected his intimacy with Mukta. The accused asserted that Kisan had illicit relations with Mukta, Kisan and the other persons who accompanied him assaulted him there and then. While he was being so assaulted, Mukta came there. She intervened. Kisan and his companions took him to the house of Mukta and narrated the incident to Mukta's mother-in-law. He was also beaten at the house of Mukta. He ran away. Thereafter, those persons were not allowing him to go to the Ordnance Deport where he was serving. So he made an application to the Police Sub-Inspector Yadav against Kisan and his companions. After he gave this application, Kisan and his companions began to give him more trouble. His version as regards the incident that occurred, in his own words, is an follows :-
"When I was on the road in front of the Maruti temple Kisan began to give me abuse and asked me why I had given complaint to the police. I replied that I was being suspected by them as having intimacy with Muktabai that on that account I was being obstructed by them from going to work and that therefore I had lodged the complaint. At this Kisan caught hold of me by the collar of my shirt and Gulab Jadhav gave me blow with fist feasibly on my stomach. He also kicked me on the stomach, Chandrakant and other companions began to assault me with sticks. I managed to extricate myself from the grip of those persons, and began to run towards Teliali Chowk. But Kisan Jadhav picked up a piece of brick and hurled at me. It hit me at my forehead. I continued to run. But Kisan Jadhav overtake me near the electric pole opposite to Alhad bungalow. He took out a knife from the pocket of his pyjama and whipped it and rushed towards me. I caught hold of the hand in which Kisan was holding the knife and there started a struggle between him and myself. In that scuffle both of us fell down on the heap of metal which was lying near the electric pole. After our fall the knife dropped down at that spot. I managed to pick it up and ran away with the knife towards the Teliali Chowk. Head Constable Jagtap was standing at that chowk. I handed over the knife to him. He took me to the police station. Within about 2 or 3 minutes police carried me in a jeep and took me to the Vadgaon Police Station. I could not notice whether Kisan Jadhav had sustained any injury."
11. The defence of the accused thus was that Kisan Jadhav and his companions were the aggressors and that the injuries which Kisan had sustained had been caused accidentally during the scuffle which ensued between him and Kisan when Kisan attacked him. The accused did not examine any witness in defence.
12. The learned Sessions Judge on consideration of the evidence adduced before him came to the conclusion that Kisan had died a homicidal death. He further found that Kisan had died due to the stab blows inflicted by the accused on him. He also found that the accused had assaulted the deceased with the intention of causing his death. Those injuries were sufficient to cause death in the ordinary curse of nature. He rejected the defence version that the deceased Kisan had sustained injuries accidentally in the scuffle. The learned Sessions Judge was of the view that the accused was the aggressor and that he had intentionally inflicted fatal blows on Kisan. As regards the injuries sustained by the accused, the learned Sessions Judge rejected the defence version that injuries were caused by Kisan and his companions. The learned Judge was of the opinion that the prosecution had adduced convincing evidence to show as to how the accused had come to sustain those injuries. Those injuries, according to the learned Sessions Judge, were caused as a result of the accused being man-handled by the crowd which had chased him after the incident. In view of this conclusion, the learned Sessions Judge convicted and sentence the accused as stated above.
13. Mr. Panna, the learned counsel for the appellant did not dispute that the deceased Kisan died a violent and unnatural death. Before making his submissions as regards the merits of the case, Mr. Panna submitted that the conviction of the appellant was vitiated as the learned Sessions Judge did not, in the course of the trial, make any order or did not give any indication that the court had come to the conclusion that there was evidence against the accused and that the trial should go ahead. When the trial reached the stage of Section 232 of the Code of Criminal Procedure, according to the learned counsel, in the absence of any order by the learned Sessions Judge that the accused was called upon to enter on his defence, the trial remained at the stage of Section 232 of the Code of Criminal Procedure itself; that the order of conviction in such a situation under Section 235 of the Code was clearly unsustainable. Coming to the merits of the case, the learned counsel submitted that the learned Sessions Judge was in error in holding that the appellant was the aggressor. He contended that the prosecution had set up false witnesses; that Chandrakant Jadhav and Suresh Mane were not present on the scene of occurrence at the time of the incident. According to the learned counsel, the evidence of the eye witnesses examined by the prosecution was unreliable and highly discrepant. It was contended that the document which has been exhibited as F.I.R. at Ex. 23 is inadmissible in evidence, the same having been recorded after the investigation had already started. In support of his submission that the prosecution witnesses were the got up witnesses, the learned counsel pointed out that the statements of Sadashiv and Malhari Jadhav were recorded by the police late in the night i.e. at about 11 p.m. or 11.30 p.m. He pointed out that the statement of Sudhakaran Arnekar was recorded next morning. The learned counsel submitted that on the evidence on record and on the probabilities of the case it should have been held that the appellant was first assaulted by Kisan and his associates; that after the accused was assaulted by them, Kisan attacked the accused who was running away; that Kisan took out the knife and wanted to assault the appellant; that in the scuffle that followed, deceased Kisan might have sustained injuries accidentally. In the alternative, the learned counsel submitted that the appellant must have assaulted Kisan in the right of private defence and that therefore he deserved to be acquitted.
14. Mr. Chopra, the learned counsel for the State supported the order of conviction and sentence.
15. We shall fist deal with the contention of Mr. Panna regarding illegality of the conviction for failure of the learned trial Judge to follow the proper procedure as laid down by the Code of Criminal Procedure.
16. We have set out in brief the argument of Mr. Panna in this behalf. It may be pointed out that the procedure to be followed in a Sessions trial for recording of evidence has been laid down in Sections 231 to 235 of the Criminal Procedure Code, 1973.
17. Section 231 of the Criminal Procedure Code provides that on the date fixed for the examination of the witnesses, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. Section 232 lays down that if, after taking evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record on order of acquittal.
18. Section 233 provides that where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and to adduce any evidence he may have in support thereof. If the accused puts in any written statement, the Judge shall file it with the record. The section also provides that if the accused applied for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
19. Section 234 lays down that after the examination of the witnesses (if any) is completed, the prosecutor shall sum up his case and the accused or his pleader shall be entitled to reply.
19-A. Section 235(1) lays down that :
(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case;
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
20. Before we proceed to deal with the submissions made, we think it proper to advert to some of the decisions relied upon for the appellant and the State.
21. In Arun v. State of Maharashtra, (1978 Cri LJ 1168), a single Judge of this Court Dighe, J. had an occasion to consider the nature and contents of the order to be passed when there is no acquittal under Section 232. It appears that in that case when the case had reached the stage under Section 232 of the Criminal Procedure Code, the learned Addl. Sessions Judge heard the prosecution and the defence on the point of acquittal and passed the impugned order styled as judgment. It ran into 12 paragraphs covering 6 typed pages. It appears from the report that the trial Judge came to the conclusion that there was evidence against the accused to show that they had committed the offence and therefore the learned Judge asked the accused to enter upon their defence, if they so desired. It was contended in the Criminal Revision Application filed before this court that by writing such a long order, the learned Judge had already made up her mind and had come to the conclusion that the accused had committed the offence which prejudiced the position of the accused so that even if they gave defence evidence, it would be difficult to make the Judge change her mind. It was alleged on behalf of the accused that this had created an apprehension in the mind of the applicant-accused. It was contended that the decision had already been arrived at and according to them, in the interest of justice and fair play, it was necessary that the case be transferred from the court of the Additional Session Judge, Nagpur to some other court. On consideration of the argument advanced before him in the said Criminal Revision Application, the learned Judge observed :
"One cannot reach a consequence of there being "no evidence" unless the evidence is looked at the considered." The learned Judge proceeded to observe that (at p. 1170 of Cri LJ) :
"the Judge has to make up his mind whether the evidence produced is of such a nature as not at all linking the accused with the offence and not to find out whether it is untrustworthy, or unconceivable on the ultimate analysis. The moment, there is some evidence, no order of acquittal can be passed. In such a case an elaborate order showing how the evidence clinched the accused is not necessary."
The learned Judge was of the view that the finding that the case is out of the purview of Section 232 of the Code should not be given by writing an elaborate order. He was further of the view that he did not think any order, other than appeared, noting of the indication to continue is necessary. He, therefore, concluded by observing (at p. 1171 of Cri LJ) :
"Consequently under Section 232 when there is no acquittal almost a small order on the order sheet or an order merely indicating that a trial has to proceed even in consequence of an offence in every clear cases, would be sufficient."
The learned Judge dismissed the transfer application observing that because the learned Judge was tempted to write a long order, occasion had been given a to the applicant to entertain apprehension that the learned Judge had made up her mind. According to the learned single Judge, there is no single apprehension that the learned trial Judge who did not indicate what inferences there may arise after the defence evidence had been led. Therefore, he dismissed the application for transfer. It is important to note that even though the learned Judge indicated in this decision that under Section 232 when there is no acquittal, almost a small order on the order sheet or an order merely indicating that the trial has to proceed would be sufficient, he did not proceed to consider the question as to the effect of the absence of such order. Indeed, the decision on the question was not necessary to be given in the case before him.
22. In Kumar Naik v. State of Karnataka, (1976 Cri LJ 925), the single Judge of the Karnataka High Court observed (see HN pt. A) :
"Under Section 232 a Sessions Judge has to decide whether there is evidence to show commission of offence, but at that stage he should not consider what value should be attached to such evidence. If he finds that there is no evidence then he has power to acquit the accused. It is necessary for the Sessions Judge to look into the prosecution evidence adduced before him and the material brought out in the examination of the accused and then decide whether there is any evidence or not." It appears that in that case, after the evidence of the prosecution was led, the defence contended after the examination of the accused that the accused were entitled to be acquitted under Section 232 of the new Code. The learned Additional Sessions Judge rejected the contention of the defence and called upon the accused to enter on their evidence. That order was challenged in the Criminal Petition before the High Court. The petition was allowed and the order of the learned Additional Sessions Judge calling upon the petitioners to enter on their defence was set aside and the learned trial Judge was directed to consider the contention of the defence that the accused were entitled to be acquittal under Section 232 of the Code. It would appear from the report that in spite of the contention of the defence that the accused were entitled to acquittal under Section 232 of the Code of Criminal Procedure, the learned Additional Sessions Judge, without considering that contention called upon the accused to enter on their defence.
23. In Queen Empress v. Vajiram, ((1892) ILR 16 Bom 414) it was held that the words "no evidence" in the 2nd and 3rd clauses of Section 289 of the Code of Criminal Procedure (Act X of 1882) must not be read as meaning "no satisfactory, trustworthy or conclusive evidence". If there is evidence, the trial must go on to its close, when in trials by jury, the jury, and in other trials, the judge after considering the opinion of the assessors have to find on the facts. It is only in the absence of any evidence as to the commission of the offence by the accused that the Court can record an acquittal without allowing the trial to go on, or obtaining the opinion of the assessors, or that the Court can direct the jury, without going into the defence, to return a verdict of not guilty.
It was thus in substance held that if there is evidence, the trial must go on to its close; the words "no evidence" must not be read as meaning "no satisfactory, trustworthy or conclusive evidence."
24. In Shiddappa Shidalingappa v. State of Karnataka, (ILR (1975) Kant 1622), it was observed that :
"If the court after further consideration of the evidence on record was of the view that it was not a case for acquittal as laid down in Section 232, Cr.P.C. (new) it was the duty of the Court to call upon the accused to enter on his defence as required under Section 233, Cr.P.C. (new)."
It appears that on 27th January, 1975, a note was made in the order sheet by the learned Sessions Judge in the following words :
"For statement of accused. Accused statement recorded, arguments heard. Judgment on 28th January, 1975.
This note, according to the learned single Judge, indicated that the court followed the procedure laid down in Section 232 Cr.P.C. The learned single Judge pointed out that neither on 28th January, 1975 nor on 29th January, 1975 there was any note which indicated that the Sessions Court had followed the procedure laid down in Section 233, calling upon accused to enter on his defence and adduce any evidence. In the statement of the accused recorded on 27th January, 1975, under Section 323 Cr.P.C. the accused had been asked whether he had any witnesses on his behalf. He had replied that he had none. The case was then posted for judgment. It appears from the report that the case was posted for judgment and before the judgment in the case was delivered, an application for transfer of the case was made before the High Court. The application was allowed and the Sessions case was transferred to the file of another Sessions Judge with a direction to try the case afresh and dispose of the case in accordance with law.
25. It would appear from the above report that the accused had approached the High Court before the judgment in the case wad delivered.
26. In re Thoppa, ((1936) 37 Cri LJ 45) it was contended before the Division Besch of the Madras High Court that the trial was vitiated by non-compliance with clause (4) of Section 289, Cr.P.C., 1898. It was held inter alia that omission to call upon the accused to enter on his defence is a mere irregularity covered by Section 537, Criminal P.C. and the trial, therefore, was not bad.
27. In Queen Empress v. Imam Ali Khan, (1896) ILR 23 Cal 252), it was ruled that the formality of calling upon an accused person to enter on his defence under the provisions of Section 289 of the Criminal Procedure Code 1898 is not a mere formality, but is an essential part of a criminal trial. Omission to do so occasions a failure of justice, and is not cured by Section 537 of the Code.
28. It appears that in that case the Jury was allowed to pronounce their verdict before the accused was called upon the enter on his defence. The accused in the case was undefended.
29. There are some of the decisions which were cited at the Bar.
30. Now the object of Section 232 of the Criminal Procedure Code (new) is to expedite the conclusion of the Sessions trial and, at the same time, to avoid unnecessary harassment to the accused by calling upon him to adduce evidence or to avoid the waste of public time when there is no evidence at all. The accused will have to be acquitted under Section 232 of the Code if there is no evidence at all. If there is some evidence, no order of acquittal can be recorded. The court is not to embark upon the question at that stage whether the evidence is sufficient or is reliable. If, however, the Court finds that there is no evidence at all, the order of acquittal had to follow. Such an order would be subject to appeal. The learned Judge passing such an order may have to give some reasons as to why he came to the conclusion that there was no evidence at all as his order of acquittal would be ordinarily subject to appeal. However, if there is no acquittal, ordinarily a small order on the order sheet or somewhere in the proceedings indicating that that was not a case of 'no evidence at all' and that the accused has not been acquitted and that he is called upon to enter on his defence would be sufficient. An unnecessarily long order, as happened to be made in Arun's case (1978 Cri LJ 1168) (Bom) (supra) would cause an apprehension in the mind of the accused that the learned Judge has already made up his mind as to the guilt of the accused. It is clear from the wording of Section 232 that the question whether the accused wants to lead evidence in defence would not arise when the trial is at the stage of Section 232 of the Criminal Procedure Code. It would be necessary to put that question to the accused when the trial enters the stage of Section 233.
31. The question, however, is whether the absence of any order or absence of any indication in the order sheet or anywhere in the proceedings that the accused is called upon to enter on his defence would vitiate the trial and the subsequent conviction. The question, in our view, would have to be decided with reference to provision of Section 465 of the Criminal P.C. That section, as is well settled has not the effect of curing material irregularities and absolute illegalities. But the mere fact that a certain provision in the Code is couched in imperative language does not a itself indicate that a breach of the provision would vitiate the whole proceedings. The test to be applied in considering whether a particular infringement of the provision of the Code does or does not fall within the purview of Section 465 would be whether the error goes to the root of the trial or whether the Court has broken vital rule of procedure. The mere fact that an imperative statutory rule of procedure has been broken is not enough to vitiate the trial or proceeding. The court has to consider the gravity of the irregularity and omission and whether it caused or would have the effect of causing injustice to the accused. A distinction has to be made between a positive enactment in the Code that a certain trial shall not take place without certain pre-requisites and a positive enactment that in the course of such a trial, the prescribed procedure should be followed. Though both are imperative provisions, in the former case an infringement of the negative injunction amounts to an assumption of the jurisdiction and vitiates the trial from the very beginning. In the latter case, an infringement merely amounts to error, omission or irregularity in the procedure adopted in the course of the trial.
32. It is also necessary to bear in mind the provisions in sub-section (2) of Section 465, which provide that in determining whether any error, omission or irregularity in any proceeding under the Code has occasioned a failure of justice, the Court has to consider that fact whether the objection could and should have been raised at an earlier stage in the proceedings.
33. We may make it clear that it would not be proper for the courts not to follow the procedure laid down by the Code, due to negligence or in order to have a short cut merely because Section 465 could be invoked and the irregularity could be cured. When a Code lays down certain procedure, it has to be followed, whether failure of justice has been occasioned as a result of non-compliance with certain provisions as laid down by the Code would depend upon the facts of each case. For example, if an accused in a particular case is undefended or is not defended by a sufficiently experienced lawyer, it would be open for the accused to make a grievance that because of the non-compliance of a particular provision, he was misled and that has resulted in the prejudice to him and that provision in Section 465 of the Code could not be invoked.
34. Now coming to the facts of this case, it appears from the Roznama that the evidence of the prosecution was over on 7th January, 1976. The case was adjourned for recording the statement of the accused to 8th January, 1976. On the day the statement of the accused was recorded, and the case was adjourned for arguments to 9th January, 1976. As the prosecutor in charge of the case was sick, the case was adjourned to 19th January, 1976 for arguments. On that day, the arguments were heard. The judgment was delivered on 28th January, 1976.
35. As is pointed out above, the statement of the accused was recorded on 8th January, 1976. There is no endorsement or indication in the order sheet, nor there is any separate order showing that after the arguments were heard on 16-1-1976, the accused was called upon to enter on his defence. The case was posted for judgment to 21st January, 1976. It would, however, appear from the statement of the accused recorded on 8th January, 1976 that a question was asked at the end of the statement whether the accused had any witness to produce in his defence. The reply was in the negative. It is true that this question should not have been put before the trial entered the stage of Section 233. It may be mentioned that the judgment in the case was delivered about a fortnight thereafter i.e. On 28th January, 1976. Before delivering the judgment the arguments were heard on 16th January, 1976. No any grievance seems to have been made either at the time of the arguments or at any time before the delivery of the judgment that the accused was, in fact, prejudiced or was likely to be prejudiced by his not having been called upon to enter on his defence in terms laid down in Section 233 of the Code. No ground suggesting that any such prejudice has been caused to the accused has been taken in the Appeal Memo. It has not been shown that any prejudice has been caused to the accused because the accused was not formally called upon to enter on his defence. If has not been shown to us that the accused would have led some evidence in the Court which he did not do, because he was not formally called upon to enter upon his defence. The prosecution had examined as many as four witnesses, who claimed to be the eye witnesses, and that therefore, the learned trial judge must have been clear in his mind that this could not be a case of "no evidence at all." It does not appear from the record that any argument was advanced on behalf of the accused when the trial was in the stage of Section 232 of the Code that this was the case of no evidence at all. In view of all this material, we are inclined to hold that in spite of the failure on the part of the learned Sessions Judge to strictly comply with the provisions of Sections 232 and 233 of the Code, no failure of justice has been occasioned to the accused. We, therefore, reject the contention sought to be urged on behalf of the appellant that the conviction of the appellant has been vitiated.
36. That takes us to the merits of the case. That the deceased Kisan met with violent unnatural death has not been disputed before us. The questions that arise for our decision are :
(1) Who appears from the evidence on record to be the aggressor - Whether the appellant or the deceased and his associates ?
(2) Whether the injuries admittedly found on the person of the appellant at the time of his arrest were all inflicted by the persons who allegedly chased the appellant after the deceased and his associates ?
(3) Whether the deceased sustained the two injuries accidentally or whether the blows of the knife were inflicted on him intentionally by the accused ?
(4) Whether the right of self defence had accrued to the appellant ? and (5) If yes, whether he exceeded the same ?
These are some of the important questions that we have to decide in this case.
37. Now coming to the evidence of the eye witnesses viz. Chandrakant Jadhav, Sadashiv Mane and Malhari Jadhav, they have deposed to the occurrence in terms of the prosecution stated in the earlier part of this judgment. We shall briefly refer to the important material elicited in their cross-examination. Chandrakant Jadhav (P.W. 7) was the younger brother of the deceased Kisan. It would appear from the story given by all these witnesses in their examination-in-chief that the appellant felt that the remark of Kisan that the bullock had gone very fat and that it was jumping was directed against him. He, therefore, asked Kisan as to about whom he was making that remark when Kisan said that the accused had no concern with the matter and that he was just having fun with his companions. Then the appellant caught hold of Kisan by the collar of his shirt and he pushed him back towards east to a distance of about 10 to 12 feet. After the appellant had pushed Kisan back, the appellant took out a knife from the back of his trousers and with it he stabbed Kisan on the left side of his chest. At that time, all of them were at a distance of about 8 to 10 feet towards the West. It would appear from the cross examination of these witnesses that when Kisan was pushed to a distance of about 10 to 12 feet and was stabbed there, these persons did not intervene or move forward. Chandrakant admitted in his cross-examination that P.W. Malhari is his friend. A suggestion was made to him that Kisan was on terms of illicit intimacy with Mukta, Chandrakant admitted that Kisan's wife was staying with her parents at Pune since about 10 months prior to the death of Kisan. It was suggested to Chandrakant that Mukta's husband and her in-laws used to go out of the house for work during the day time and Mukta used to stay alone in the house. It was further suggested that when Kisan returned from his factory after 4 p.m. he used to visit the house of Mukta. Of course, both the suggestions were denied by Chandrakant. Chandrakant further denied that about a month before the incident the appellant was assaulted by Kisan and his companions because he was found talking wit Mukta during one night. Chandrakant admitted that on their way to the racing ground they had found many other bullocks jumping. However, in case of any other bullock none of them had made any remark about jumping. He further admitted that he and his companions were making fun and certain jokes on their way from the beginning. It was further suggested to Chandrakant that after they made the remark which was resented by the appellant, all of them began laughing loudly. That suggestion was denied. Further suggestion that after the appellant had told Kisan that they were making false allegation against him in relation to Mukta, Kisan and his associates attacked the accused and assaulted him severely was denied. It was also denied that Kisan had hit a brick on the forehead of the appellant. Chandrakant admitted in his cross-examination that he had not seen any person assaulting the appellant while he was running with the knife. He further admitted that the appellant had not whipped out the knife in his presence. It was suggested to Chandrakant that the complaint, Ex. 23, was filed by him very late in the night. He denied that suggestion. He further denied the suggestion that they concocted a false story and that after deliberations, they lodged the complaint.
38. Sadashiv Mane (P.W. 8) admitted in his cross-examination that Kisan was his friend since his boy-hood. He further admitted that he had not accompanied Kisan to the Central hospital at Talegaon. His cross-examination shows that the police had gone to his house sometime after 11 p.m. and that he went to the Police Station at about 11.30 p.m. and was there for about 45 minutes. It appears that the statement of this witness was recorded at that time. It was suggested to him that he was not accompanying Kisan to the racing ground at the time of occurrence. He stated that he did not know who were the persons chasing the appellant while he was running away with the knife. Earlier, in his examination-in-chief he had stated that they were about 7 to 8 paces away from Kisan when he collapsed and that they went near him after he fell down. He had also stated that they had told Inspector Jagtap who met them on the road while they were taking Kisan to the Police Station that the appellant had stabbed Kisan with the knife.
39. Malhari Jadhav (P.W. 9) stated in his examination-in-chief that they were 8 to 10 feet away from Kisan when he fell down and that after Kisan's fall, they went near him. They did not chase the accused as they had to help Kisan. Some 10 to 15 persons were chasing the accused when he was running, but he could not notice who those persons were.
40. He also stated in his examination-in-chief that he had accompanied Kisan to the General Hospital and that at about 8 p.m. on the same day, he came to know of the death of Kisan. In his cross-examination he stated that he could not started abruptly and ended soon. He admitted that Kisan was living in the same lane. He also stated in the cross-examination that the Police had gone to his house at about 11.30 p.m. in the night of the incident and called him to the Police Station. He denied the suggestion that he was not present at the scene of offence at the time of the incident.
41. The above material elicited in the cross-examination of the three witnesses viz. Chandrakant (P.W. 7), Sadashiv Mane (P.W. 8) and Malhari Jadhav (P.W. 9) would show that they did not intervene or go to the rescue of Kisan when the appellant caught Kisan by the collar of his shirt and pushed him back towards east far 10 to 12 feet; that they went near Kisan after he fell down. According to the defence version Sadashiv Mane and Malhari Jadhav were not then accompanying Kisan. However, according to defence version Kisan was accompanied by three other persons Gulab Jadhav, Suresh Mane and Chandrakant Jadhav.
42. Assuming the prosecution case that Kisan was accompanied by three other persons were to be true, it is difficult to believe that none of them went to the rescue of Kisan when the appellant caught him by his collar and pushed him back about 10 to 12 feet away. It does not appear probable that the appellant who was admittedly alone would adopt an aggressive posture against Kisan who was accompanied by the three other persons. The circumstance that none of them moved ahead to intervene or to rescue Kisan from the clutches of the appellant supports the defence version that the appellant was first assaulted by Kisan and his associates and that while he was trying to run away, Kisan came running after him. If the appellant were to be the aggressor, it does not stand to reason that none of his three associates of Kisan would come to the help of Kisan. On the contrary, the conduct of the three associates of Kisan in not intervening supports the defence case that the appellant must have been running away from the spot and Kisan was following him.
43. It is the version of the defence that all the injuries that were found on his person were inflicted on him by Kisan and his associates. The evidence of Dr. Ratiram (P.W. 15) shows that there were as many as 14 injuries on the person of the appellant, out of them 9 were contusions and 5 were abrasions. None of the prosecution witnesses except Bhagu Kalokhe (P.W. 14) says that he saw the appellant being belaboured or man-handled by other persons. All that they say is that some persons chased the appellant. They cannot give the name of any of them. It is only Bhagu Kalokhe (P.W. 14) who says that the people who chased the appellant belaboured the appellant. The sketch of the scence of offence. Ex. 7, would show that Teliali Chowk may be at a distance of about 100 feet away from the scene of offence. The evidence on record i.e. the evidence of all the prosecution witnesses shows that the appellant was apprehended by Bhagu Kalokhe somewhere in this Teliali Chowk. The evidence of Head Constable Jagtap shows that he was at the material time, going from police station to the racing ground and on his way he found that the appellant was caught by Bhagu Kalokhe. This evidence and the other evidence in the case shows that the appellant must have been caught by Bhagu Kalokhe at a distance of about 100 feet away from the scence of offence. The circumstance that the prosecution witnesses, except Bhagu Kalokhe, do not say that the appellant was belaboured by some other persons renders the prosecution case that the appellant was belaboured by others incredible.
44. Sudhakaram Anekar (P.W. 13) who claims to have seen the appellant running away after the occurrence and who says that 10 to 12 persons were running after him, does not say that the appellant was belaboured by some other persons. In view of this position, we are unable to agree with the learned Sessions Judge that the injuries on the persons of the appellant could be explained on the hypothesis that he was belaboured by others. The learned Judge, in our view, was not right in holding that the prosecution has adduced "convincing evidence to show as to how the accused came to sustain these injuries." In coming to the conclusion that the accused was belaboured by others, the learned Sessions Judge was inclined to rely upon the evidence of Bhagu Kalokhe. According to the evidence of Bhagu kalokhe, while the appellant was running away, there was a knife in his hands. He snatched that knife from him. If the appellant was carrying a knife in his hands while he was running away, it is not likely that the others would dare go near him and assault him. If at all, any of such persons had assaulted him, it is likely that such persons might have taken the knife from the hands of the appellant. We feel that it is extremely unsafe to rely upon the evidence of solitary witness Bhagu Kalokhe when he says that the appellant was belaboured by others. As we have pointed out, there were as many as 14 injuries on the person of the appellant and 9 of them were contusions. Some of the contusions were of the size of more than 3" in length. Dr. Ratiram opined that these injuries were all capable of being caused by a hard blunt and rough object like a brick-bat. If the story that these injuries were caused by others - other than the associates of Kisan - is disbelieved, the inference that will have to be drawn is that Kisan and his associates must have assaulted the appellant. The version of the appellant is that after such an assault, he was running away. While he was running away, Kisan overtook him near the electric poll. We have already pointed out that conduct of the associates of Kisan in not going towards the place of assault supports the inference that it was Kisan who must have been chasing the appellant.
45. The next question that arises is that if after the appellant who was alone assaulted severely by Kisan and his three associates, right of private defence of body accrued to the appellant. It is clear that while the appellant was being severely assaulted, the right of private defence accrued to him. Section 97 of the Indian Penal Code provides that every person has a right subject to the restrictions contained in Section 99 to defend his own body and the body of any other person, against any offence affecting the human body. Section 101 of the Indian Penal Code. provides that if the offence be not of any of the descriptions enumerated in the last preceding section, i.e. Section 100 the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in Section 99, to the voluntary causing to the assailant of any harm other than death.
46. The learned Sessions Judge has observed that the appellant had a right of private defence of body, if his version that he was assaulted by Kisan and his associates could be accepted The learned Judge observed in paragraph 20 of his judgment that :
"If, on the other hand, the defence version is found probable, though not proved to the hilt, it follows that the deceased and his companions had mounted an attack on the accused, that they were the aggressors on the accused, that even if the accused had inflicted the fatal injuries on Kisan Jadhav, he had done so in exercise of his right of private defence."
It would appear from the above observation that the learned Sessions Judge would have been inclined to uphold the appellant's right of private defence if he would have found the defence version that Kisan and his companions had mounted an attack on him and that they were the aggressors. Disagreeing with the learned Sessions Judge, we find on the material on record and on the probabilities of the case that Kisan and his associates who were more in number were rather in an aggressive mood and that when the appellant questioned them as to against whom the remark of Kisan was aimed, they must have assaulted the appellant. If that case of the defence is accepted as probable, it would follow that the right of private defence accrued to the appellant.
47. The case of the appellant, however, is that he did not inflict the blows in the chest of Kisan and that Kisan came to sustain the injuries accidentally. If that case is accepted, the question of appellant exercising the right of private defence would not arise. In that case, the appellant would clearly be entitled to acquittal. The question, therefore, is whether the appellant's case that the deceased Kisan sustained the injuries accidentally deserves to be accepted. The learned Sessions Judge has considered the version given by the appellant in his statement under Section 313 of the Criminal Procedure Code and also the version sought to be given by the appellant in the suggestion to the prosecution witnesses and in paragraph 32 of his judgment, rejected the defence version that the deceased sustained injuries in the scuffle accidentally. We are inclined to agree with the learned Sessions Judge.
48. The prosecution relies upon the evidence of Chandrakant (P.W. 7), Sadashiv Mane (P.W. 8) and Sudhakaran Anekar (P.W. 13) to show that the appellant inflicted the stab blows in the chest of the deceased intentionally. The evidence of all these witnesses has been dealt with by the learned Sessions Judge. He has also found that their evidence has been corroborated by the first information report Ex. 23. So far as the first information report is concerned, Mr. Panna, the learned counsel for the appellant, submitted that the F.I.R. Ex. 23 is not admissible in evidence. According to him, the investigation into the alleged offence was already started before the complaint Ex. 23 came to be recorded by P.S.I. Yadav in the General Hospital, Talegaon Dadhade. According to the evidence of Chandrakant Jadhav, the complaint was recorded at about 4.45 p.m. However, it appears from the evidence of Head Constable Jagtap that immediately after the occurrence which must have taken place at about 4.15 p.m. he was told by Bhagu Kalokhe (P.W. 14) that the appellant had stabbed Kisan Jadhav; that he was running away and that he (Bhagoji) had caught hold of the appellant. The evidence of Head Constable Jagatap and Bhagu Kalokhe further shows that Kalokhe handed over the appellant and the knife recovered by him from the appellant to Head Constable Jagtap. Head Constable Jagtap, after he went to the police station, secured two panchas and in their presence took the bloodstained clothes which the accused was then wearing under Panchanama Ex. 13. This panchanama was made between 4.25 p.m. to 4.35 p.m. The panchanama regarding the seizure of knife, Ex. 14, was made between 4.36 p.m. to 4.48 p.m. The panchanama regarding the injuries on the person of the accused, Ex. 15, was made between 4.50 to 5 p.m. Immediately thereafter he recorded the statement of Bhagu Kalokhe. He handed over the three panchanamas and the statement of Bhagu Kalokhe to P.S.I. Jadhav at about 7 p.m. It would, thus, be seen that Head Constable Jagtap was told that the deceased Kisan was stabbed by the appellant and the appellant was apprehended by Jagtap some time before 4.25 p.m. Mr. Panna invited our attention to a statement made by Chandrakant to the effect that inquest panchanama, Ex. 9, was made by P.S.I. Yadav before recording his Complaint Ex. 23. Mr. Panna wants to submit that before the complaint, Ex. 23, was recorded, inquest panchanama having been prepared the investigation had already started. However, P.S.I. Yadav stated in his deposition that the complaint was recorded first and the inquest panchanama was drawn thereafter. We would, therefore, not hold that the complaint was recorded after the inquest panchanama was drawn. However, it is clear from the record that the information as regards the cognizable offence said to have been committed by the appellant had reached Head Constable Jagtap before the complaint Ex. 23 was recorded and that he had started taking steps for the collection of the evidence. There is, therefore, much substance in the submission advanced by Mr. Panna that F.I.R. Ex. 23 would not be admissible in evidence. We would therefore, hold that the prosecution would not be in a position to seek corroboration to the testimony of the eye-witnesses from the contents of the F.I.R. Ex. 23. Even so, we are inclined to hold that the evidence of three eye-witnesses viz. Chandrakant, Sadashiv Mane and Malhari Jadhav when they state that the appellant inflicted the stab blows in the chest of the deceased deserves to be accepted.
49. It is true that in the earlier part of the judgment we have observed that these witnesses are not giving the truthful version as to how the appellant came to sustain the injuries; that they are suppressing that they had assaulted the appellant. However, on account of this infirmity, it would not be proper to discard the whole of their evidence. It is well settled that evidence of the prosecution witnesses should not be discarded altogether merely because the witnesses have not told the whole truth; or that there are discrepancies or embellishments. It is the duty of the court to sift the chaff from the grain and try to arrive at the truth. It is important to note that the clothes of Sadashiv Mane (P.W. 8), Malhari Jadhav (P.W. 9) which were stained with blood were recovered in the same night under panchanama Exs. 19 and 17 respectively. The clothes articles 12, 13 and 14 were recovered from the person of Sadashiv and clothes article Nos. 7 and 8 were recovered from the person of Malhari Jadhav. The report of Chemical Analyser, Ex. 44, will show that the clothes of Sadashiv were stained with human blood of 'A' group. Out of the clothes of Malhari, the garment Ex. 7 was found to have been stained with human blood of 'A' group. The garment at Ex. 8 was found to have been stained with human blood, but its group could not be detected. This circumstance would support the prosecution case that these persons had been at the place of occurrence.
50. Mr. Panna invited our attention to the evidence on record from which it can be seen that these two witnesses did not accompany Kisan to the General Hospital; that they were called at the Police Station some time after 11.00 p.m. that night; that their statements were recorded that day. It appears that their statements were recorded by P.S.I. Yadav sometime after 11 p.m. However, merely because their statements were recorded late or because they had not gone to the Hospital when Kisan was taken there, no inference can be drawn that they must not have been present at the place of occurrence P.S.I. Yadav has not been asked in the cross-examination as to why he could not contact these witnesses viz. Sadashiv Mane and Malhari Jadhav before 11 p.m. In the absence of cross-examination on that point, we do not think it safe to hold that these witnesses are got up witnesses. In so far as the conduct of these witnesses in not accompanying Kisan to the Hospital is concerned, it is probable that the witnesses might not have been much enthusiastic either to accompany Kisan to the hospital or to go to the police station of their own accord and give their statements because what we find from the evidence is that the incident which ultimately resulted in the death of Kisan was started in an altercation to which these two witnesses must be the parties. It is not unlikely therefore they were not much enthusiastic in going to the police station or even accompanying Kisan to the hospital, after the occurrence. The presence of Chandrakant Jadhav on the spot has not been disputed. The evidence of Chandrakant, Sadashiv and Malhari when they state that the accused inflicted the blows on the chest of Kisan intentionally has been corroborated by the circumstances.
51. The evidence of Dr. Somani and the post-mortem notes Ex. 31 drawn by him would show that the two stab injuries must have been intentionally inflicted. The size of one of the injuries was 2 1/2 c.m. x 1 c.m. and the size of the other injury was 2 1/2" c.m. x 1 c.m. It was about 5 c.ms. in depth. The size of injuries to certain extent negatives the defence case that the injuries must have been caused accidentally. The case of the defence is that it was Kisan who took out the knife and tried to assault the appellant; that there was scuffle thereafter. If there was such a scuffle, the cut injuries on the hands either of the appellant or Kisan would, in all probabilities, have been there. No such cut injures were noticed. One important circumstance which requires to be noted is that according to the accused, after the knife fell down, he picked it up and ran away. If the knife was to be of Kisan and not of the appellant, it is difficult to understand why the appellant shout pick it up and try to run away with the knife in his hands. This circumstance shows that the knife must be of the appellant. It is true that Dr. Somani in his cross-examination has stated that if the deceased and the assailant had a struggle over the knife and if in such a scuffle, the knife forcibly came in contact with the deceased, then such impact may cause wounds like the two external injuries found on the deceased. This opinion given by the Doctor, however, should not be considered in isolation. If the evidence is considered in the light of surrounding circumstances and probabilities, it appears to us that the deceased Kisan must not have suffered the injuries accidentally in the scuffle. The appellant must have inflicted these injuries intentionally. We believe the evidence of the witnesses Chandrakant, Sadashiv and Malhari when they stated that the appellant inflicted the injuries on the chest of the deceased.
52. Coming to the evidence of Sudhakaran Arnekar (P.W. 13), we must say that his evidence does not inspire confidence. It is true that his house is at a distance of about only 70 ft. from the place of occurrence. He says that at or about the time of occurrence, he was sitting on the Ota of his house. He then heard a quarrel going on near about Maruti Temple. So he looked in that direction, when he found the accused stabbing a person twice with the knife near electric poll. He says that thereafter the accused ran away and about 10 to 12 persons were running after him. It may be noted that he does not say that the appellant was assaulted by any of those persons. However, in his cross-examination, he stated that he does not know whether the accused had been caught and detained by the police at Taliali Chowk. He did not know what clothes the accused or the victim were wearing. It is possible that he may not remember about the clothes, but the evidence of Bhagu Kalokhe and P.S.I. Yadav shows that Bhagu Kalokhe apprehended the appellant while he was running away with the knife and handed him over to Head Constable Jagtap in Teliali Chowk. Head Constable Jagtap at that time was going from the police station to racing ground. He must have, therefore, come across Bhagu Kalokhe at some spot near Teliali chowk which must be quite close to the house of this witness. Even so the witness says that he did not know whether the accused had been caught and detained by the police at Teliali Chowk. The statement of this witness was recorded by the police on the next day morning.
53. In view of these circumstances, we do not think it safe to place reliance upon the testimony of this witness. Even so the evidence of three witnesses viz. Chandrakant, Sadashiv and Malhari which is supported by the circumstances shows that the appellant must have inflicted the blows in the chest of Kisan intentionally, and that the deceased must not have sustained those injuries accidentally in the scuffle. This however, does not put an end to the matter.
54. We have already found that the appellant must have been assaulted by Kisan and his associates; that the right of private defence of body, therefore, accrued to the appellant. The case of the appellant is that after he was so assaulted he was trying to run away from the spot, Kisan chased him. He overtook him near the electric poll. We are not inclined to believe his further story that Kisan then took out the knife from his pocket, but the defence version that Kisan must have chased and that he overtook the appellant is supported by the circumstances that Kisan's associates did not come to the spot to intervene before Kisan fell down. We have already pointed out the conduct of the appellant in picking up the knife and running away with it. That shows that the knife must be of the appellant. We have, therefore, no hesitation in accepting the prosecution case that the appellant took out the knife from his pocket and must have inflicted the blows on the chest of Kisan. However, as we have pointed out before this part of the occurrence, the appellant must have been belaboured and manhandled which resulted in nine contusions and five abrasions being caused on appellant's person. Some of the contusions were of substantial size. When the deceased Kisan chased him and overtook him, the appellant must have apprehended that he would be subjected to further beating by Kisan and his associates. The question, however, is whether the appellant was justified in causing such injuries on the person of Kisan which resulted in his death. None of the injuries on the person of the appellant can be described as a grievous hurt, Dr. Ratiram (P.W. 15) stated that the injuries would have taken 10 to 12 days for healing. We do not feel that any of the contingencies contempleted by Section 100 of the Indian Penal Code existed which justified the causing the death of Kisan. We, therefore, feel that the appellant exceeded the right of private defence of person in inflicting the two blows in the chest of Kisan.
55. Mr. Panna, the learned counsel for the appellant, relies upon the decision of the Supreme Court in Mannaykhan v. State of M.P. in support of his submission that the offence committed by the appellant in the circumstances of the case would be not under Section 302 of the Indian Penal Code, but one under Section 304 of the Indian Penal Code. That was a case where the deceased having picked the quarrel with the brother of the accused, sat on his chest and gave fist blows. This accused on finding that he could not prevent deceased from doing so by merely giving him fist blows, gave a knife blow at the back of the deceased so as to cause his death. The Supreme Court held that the right of private defence did accrue to the accused; that right, however, could not justify the act of the appellant in stabbing the deceased in his back so as to cause his death; that right extended only to causing hurt of any kind to the deceased, but it did not provide any justification for giving a fatal blow. The Supreme Court, therefore, set aside the conviction of the appellant under Section 302 of the Indian Penal Code and convicted the accused for an offence under Section 304(1) of the I.P.C. We are inclined to hold that after the appellant was chased and after Kisan overtook the appellant, the appellant must have apprehended that he would again be manhandled by Kisan and his associates. He must have inflicted the knife blows in order to get himself released from the clutches of Kisan and his associates. His object must be obviously to defend himself. However, in doing so, in our view, he exceeded his right in inflicting the two blows on the deceased. Still it may be noted that after Kisan fell down, no further blow was inflicted. It cannot be, therefore, said that the appellant had any intention of doing more harm than was necessary. His intention was to release himself from the clutches of Kisan and his associates. We, therefore, hold that exception 2 to section 300 of the Indian Penal Code has been applicable to the facts of the case. Even though the appellant may have no intention of causing death, it is clear, it is clear that he intended to cause such injuries as were likely to cause death. The case would, therefore, in our view, fall within part (1) of Section 304.
56. In the result, this appeal will have to be partly allowed by setting aside the conviction of the appellant under Section 302 of the I.P.C. So far as the sentence is concerned, the ends of justice would meet if the appellant is sentenced to R.I. for 6 years.
57. The appeal is partly allowed. The conviction under Section 302 of the I.P.C. recorded by the trial court is set aside and instead the appellant is convicted for an offence under Section 304(1) of I.P. Code and is sentenced to R.I. for 6 years. The appellant shall be entitled to set off for his pre-conviction detention under S. 428 of the Criminal Procedure Code.
58. Appeal partly allowed.