Bombay High Court
Surichand S/O Sitaram Pardhi vs The State Of Maharashtra on 17 December, 2008
Author: D.D.Sinha
Bench: D.D.Sinha, A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.377 OF 2003
1) Surichand s/o Sitaram Pardhi,
37 years,
2) Umakant s/o Laxmichand Katare,
aged about 22 years,
r/o Gopal Nagar, Nagpur. ... Appellants
- Versus -
The State of Maharashtra, through
Police Station Officer, MIDC, Nagpur. ... Respondent
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Ms. U.K. Kalsi, Advocate for the appellant no.1.
Shri R.M. Daga, Advocate for the appellant no.2.
Shri Y.S. Mandpe, Additional Public Prosecutor for the
respondent.
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Date of reserving the judgment : 11/12/2008
Date of pronouncing the judgment : 17/12/2008
CORAM : D.D.SINHA AND A.P. BHANGALE, JJ.
DATED : DECEMBER 17, 2008
JUDGMENT (PER D.D.SINHA, J.) :
Heard Ms. Kalsi, learned Counsel for the appellant no.1, Shri Daga, learned Counsel for the appellant no.2, and Shri Mandpe, learned Additional Public Prosecutor for the respondent.
2) The criminal appeal is directed against the judgment and order dated 29.4.2003 passed by the 5th Additional Sessions Judge, Nagpur in Sessions Trial No. 131/1992 whereby the appellants were convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of rupees five hundred each, in default to suffer rigorous ::: Downloaded on - 09/06/2013 14:09:23 ::: 3 imprisonment for six months. Both the appellants were acquitted for the offence punishable under Section 324 read with Section 34 of Indian Penal Code for causing hurt to Bhaskar Annaji Naik.
3) The circumstances which have given rise to the prosecution of the appellants, in nutshell, are as follows :
There were two separate incidents, which had taken place in the intervening night of 31/10/1991 and 1/11/1991. In the first incident, which had taken place at about 11.30 p.m., appellants assaulted Bhaskar Annaji Naik, The second incident of assault had taken place at about 1.30 A.M. on 1.11.1991 in which Prabhakar Annaji Naik was assaulted by the appellants and one other co-accused (absconding). Since State has not preferred any appeal against the order of acquittal passed for the offence punishable under Section 324 read with Section 34 of Indian Penal Code for causing hurt to Bhaskar Annaji Naik, we are required to consider whether the evidence adduced by the prosecution has proved the charge under Section 302 of Indian ::: Downloaded on - 09/06/2013 14:09:23 ::: 4 Penal Code against the appellants.
4) It is the case of the prosecution that there was a dispute between deceased Prabhakar and appellant no.1 Surichand on account of a plot located in Ekta Mata Nagar. The said plot was allotted to deceased Prabhakar by Mr. Gurde Patil (M.L.A.). The appellant no.1 was interested in getting the said plot allotted to him and since it was allotted to deceased Prabhakar, appellant no.1 was annoyed. Prior to the incident, there used to be frequent quarrels between deceased Prabhakar and appellant no.1. It is the case of the prosecution that on the day of incident, all the accused came to the house of deceased Prabhakar. However, deceased Prabhakar was not in the house.
The appellants thereafter went to the hut of PW 2 Tulsidas and assaulted Bhaskar (brother of deceased Prabhakar). The information about the said incident was given by PW 2 Tulsidas to PW 3 Lata (wife of deceased Prabhakar) as well as PW 4 Babita (sister-in-law of deceased Prabhakar). It is the case of the prosecution that PW 3 Lata and PW 4 Babita informed deceased ::: Downloaded on - 09/06/2013 14:09:23 ::: 5 Prabhakar that his brother Bhaskar was assaulted by the appellants. On receipt of the information, deceased Prabhakar, his brother Leeladhar, his wife Lata and PW 4 Babita went towards the house of appellant no.1. Deceased Prabhakar called appellant no.1 and asked him why did he assault his brother Bhaskar. The appellant no.1 got enraged and caught hold of deceased Prabhakar. Appellant no.2 Umakant, who was present on the spot holding knife in his hand, started inflicting blows with the knife on the chest, back and abdomen of deceased Prabhakar. The other co-accused Dinesh held the hair of deceased Prabhakar. Due to assault, Prabhakar received multiple injuries and was seriously injured and at later point of time, succumbed to the injuries. PW 3 Lata immediately lodged the report of the incident in the Police Station, MIDC, Nagpur. On the basis of first information report lodged by PW 3 Lata, offence came to be registered against all the accused persons. The Investigating Officer after completing formal investigation, filed the charge-sheet in the Court. Since the matter was exclusively triable by the Sessions Court, the Chief Judicial Magistrate ::: Downloaded on - 09/06/2013 14:09:23 ::: 6 committed the case to the Sessions Court. Charge was framed against the appellants and other co-accused Dinesh for the offences punishable under Sections 302 and 324 read with Section 34 of Indian Penal Code. Since co-accused Dinesh was absconding, his trial was separated. The defence of the appellants was of total denial and they claimed to be tried.
5) The learned Counsel for the appellants contended that the incident of alleged assault had taken place at night time and since there was no street light nearby, eye witnesses could not witness any incident and the entire prosecution case is concocted, false and unreliable.
6) Learned Counsel Shri Daga submitted that though injuries sustained by deceased Prabhakar were 15 in number, however, only injuries nos. 5 and 15 were on the vital parts of the body. It was submitted that the Medical Officer has not opined that injuries individually or collectively were sufficient in the ordinary course of nature to cause death. Hence, prosecution ::: Downloaded on - 09/06/2013 14:09:23 ::: 7 has failed to establish that the appellants caused injuries with the intention to kill Prabhakar and, therefore, offence alleged to have been committed by the appellants is not murder and at the most, it would fall within the ambit of provisions of Section 304 Part I of Indian Penal Code.
7) Learned Counsel Shri Daga vehemently argued that appellant no.2 had received serious injuries on his person, which is evident from the medical certificate issued by PW 6 Dr. A.S. Deuskar. The said certificate shows that appellant no.2 Umakant had received following three injuries :
"1) I.W.'s on palmar expect Lt. Hand 2, 3 : 4th finger middle pholem ½'' x ½'', 1½'' x ½'', ½'' x ½'', dried .. blood
2) Abrasion on knee both sides and aspect ½'' x ½' dued scab reddish colour.
3) L.W. scalp frontal region midline 1½'' x ½'' obliquely placed bleeding + dried clots."
Similarly, the Doctor has opined that injury no.1 was possible by ::: Downloaded on - 09/06/2013 14:09:23 ::: 8 sharp object whereas injury nos. 2 and 3 were possible by hard and blunt object. The age of the injuries was 24 hours. It was contended that prosecution completely failed to explain the injuries suffered by appellant no.2 and, therefore, suppressed the genesis of the crime. It was contended that deceased Prabhakar and his brother on the day of incident came to the house of appellant no.1 and assaulted appellant no.2 Umakant and in the assault, he suffered injuries mentioned in the above referred medical certificate (Exh. 70). It was submitted that the appellants in self defence assaulted deceased Prabhakar and, therefore, are entitled to get the benefit of provisions of Section 96 of the Indian Penal Code, which contemplates that nothing is an offence, which is done in exercise of right of private defence.
It was contended that the said Section does not define expression "right of private defence", however, facts and circumstances in a given case would determine whether the accused exercised right of private defence.
8) Learned Counsel Shri Daga argued that it is not ::: Downloaded on - 09/06/2013 14:09:23 ::: 9 necessary for the accused to specifically take a plea of right of private defence and it is enough for the accused to show that preponderance of probabilities was in favour of the said plea in view of the surrounding circumstances. It was contended that in the instant case, medical certificate (Exh. 70) clearly shows that appellant no.2 received three injuries. The prosecution totally failed to explain the same and, therefore, the appellants, in such situation, are entitled to raise the plea of right of private defence and are entitled to take the benefit of Section 96 of the Indian Penal Code.
9) It was alternatively contended by learned Counsel Shri Daga that nature of injuries received by deceased Prabhakar might show that the appellants have exceeded their right of private defence, however, in any case, conviction under Section 302 of Indian Penal Code cannot be sustained in law. In order to substantiate his contentions, reliance is placed on the judgment of the Apex Court in Naveen Chandra vs. State of Uttranchal (2007 ALL MR (Cri) 513 (S.C.).
::: Downloaded on - 09/06/2013 14:09:23 ::: 1010) Shri Mandpe, learned Additional Public Prosecutor for the respondent, contended that the prosecution has examined in all seven witnesses, out of which PW 3 Lata, PW 4 Babita and PW 5 Leeladhar are the eye witnesses to the incident. It was submitted that the first information report was lodged by PW 3 Lata almost immediately after the incident in which names of the appellants and role played by them are clearly mentioned. It was contended that evidence of these three witnesses do not suffer from any contradiction or omission of material nature and establishes that appellant no.1 caught hold of deceased Prabhakar and appellant no.2 assaulted deceased Prabhakar with knife and caused as many as 15 injuries (incised and stab wounds) on the chest, back and abdomen. It was further contended that evidence of these eye witnesses is completely corroborated by the medical evidence and other circumstances, such as Chemical Analyser's report, spot panchanama and evidence of PW 1 Dilip, who is panch on seizure of knife. The learned Additional Public Prosecutor, therefore, submitted that conviction of the appellants for the offence punishable under ::: Downloaded on - 09/06/2013 14:09:23 ::: 11 Section 302 read with Section 34 of Indian Penal Code is sustainable in law.
11) Shri Mandpe, learned Additional Public Prosecutor further submitted that the appellants had neither taken plea of right of private defence in their statements under Section 313 of the Code of Criminal Procedure nor given any suggestion in this regard to the prosecution witnesses in cross-examination and in absence thereof, they are not entitled to get the benefit of provisions of Section 96 of Indian Penal Code in view of facts and circumstances of the present case.
12) We have considered the contentions canvassed by the learned Counsel for the appellants and learned Additional Public Prosecutor for the respondent and re-appreciated the prosecution evidence. In the instant case, PW 3 Lata lodged the first information report almost immediately after the incident of assault had taken place and, therefore, possibility of any kind of concoction or fabrication, in our view, is completely ruled out.
::: Downloaded on - 09/06/2013 14:09:23 ::: 12In the first information report, she has specifically stated that on the day of incident, at the relevant time, she along with her husband deceased Prabhakar and his brother Leeladhar went to the house of appellant no.1 Surichand. Prabhakar asked appellant no.1 Surichand why did he assault his brother.
Appellant no.1 Surichand caught hold of hands of her husband (deceased Prabhakar) and appellant no.2 Umakant, who was present on the spot, inflicted blows on the neck, chest and abdomen of deceased Prabhakar. It is pertinent to note that PW 3 Lata in her examination-in-chief reiterated the prosecution case and also mentioned names of other two eye witnesses, who were present and witnessed the incident. We have carefully gone through the evidence of this witness and found that there is no omission or contradiction, which is of material nature. On the other hand, tenor of the cross-examination shows that the defence has not seriously disputed the incident in question and tried to establish that there was no electricity in the area where incident had taken place and, therefore, PW 3 Lata did not identify the assailants, who had assaulted deceased Prabhakar.
::: Downloaded on - 09/06/2013 14:09:23 ::: 13The evidence of PW 4 Babita and PW 5 Leeladhar is also free from omissions and contradictions of material nature and completely corroborates the prosecution case disclosed by the complainant. The tenor of the cross-examination of these witnesses also shows that defence has not seriously disputed the incident except that these witnesses could not see the assailants because of darkness.
13) The evidence of above referred eye witnesses, in our view, is cogent, trustworthy and free from suspicion and inspires confidence in the Court. It is well settled that the evidence of witnesses, who are related to the deceased, cannot be brushed aside by branding them as interested witnesses particularly when their testimonies are otherwise reliable, trustworthy and cogent. On the other hand, their presence on the scene of occurrence is most natural. It is no doubt true that the evidence of such witnesses is required to be considered with due care and caution.
::: Downloaded on - 09/06/2013 14:09:23 ::: 1414) In the case in hand, the evidence of eye witnesses is completely corroborated by the evidence of PW 6 Dr. Aniruddha Deuskar. PW 6 Dr. Aniruddha Deuskar conducted post mortem on the dead body of deceased Prabhakar and found the following injuries :
1) Incise wound of size 4 cms. X 1.5 cm muscle deep vertibcal direction. One horizontal limb of injury behind the ear of size of 8 cms. X 2 cms. in deep.
2) Perforating wound on right arm mid 1/3rd verticle entric wound of right lateral aspect of size 5 cms. x 2 cms.
and exit wound of inner aspect 4 cms. x 2 cms.
3) Incise wound on base of right mid finger 2 cms. x 5 cms. x 1 cm.
4) Incise wound on right ring finger lower 1/3rd of size 2 cms. x 1.5 cms.
5) Stab wound on right side of the abdomen 4 cms. above anterior superior illiac spine 2.5 cms. x 2.5 cms. cavity deep.
6) Incise wound right side of the back 7 cms. x 3 cms. muscle deep.
7) Stab wound right side of the back just above the highest point of illiac crest 9 cms. from midline 4 cms. x 2 ::: Downloaded on - 09/06/2013 14:09:23 ::: 15 cms. cavity deep.
8) Incise wound on right side of the back scapular region 6 cms. x 2.5 cms.
9) Stab wound on right side of the back just below the scaput 5.5 cms. x 3 cms. 11 cms. from midline, cavity deep both margins and one angle cleanly cut.
10) Stab wound on midline back and thoracic vertebra ninth seventh of size 4 cms. x 2 cms. cavity deep both margines and one angle cleanly cut.
11) Stab wound right side of the back inter capular region of the level of thrasic vertebra 3 cms. away from mid line of size 2 cms. x 1.5 cms. cavity deep.
12) Incise wound left shoulder upper aspect of size 5 cms. x 2 cms.
13) Purporting wound on left arm upper 1/3rd entric would present laterally of size 4 cm. X 2 cms. exit wound of size 3 cms. x 1.5 cms.
14) Incise wound left side mid axillary region of chest of size 3.5 cms. x 1.5 cms.
15) Stab wound of left side of the chest 7th inter costal space in anterior axilar line of size 4 cms. x 2 cms. cavity deep both margins and angle cleanly cut costal cartilage cut.
As per the opinion of the Doctor, death of Prabhakar was caused ::: Downloaded on - 09/06/2013 14:09:23 ::: 16 due to shock and haemorrhage due to injuries to vital organs.
Taking into consideration the other attaining circumstances, we are of the view that prosecution has succeeded in proving that the injuries sustained by deceased Prabhakar were caused by the appellants in the incident in question. However, whether the offence committed by the appellants was murder punishable under Section 302 of Indian Penal Code or under any other Section and whether the appellants had exercised the right of private defence and exceeded the same ?
15) Insofar as contention of learned Counsel Shri Daga that appellants are entitled to get benefit of provisions of Section 96 of Indian Penal Code since offence, if any committed by them, is in exercise of right of private defence is concerned, it is necessary to take into consideration certain factors in order to appreciate the said contention. It is well settled that in order to find out whether right of private defence is available or not to the accused, the entire incident must be examined with care and caution as well as in its right perspective. Right of private ::: Downloaded on - 09/06/2013 14:09:23 ::: 17 defence is essentially a defensive right circumscribed by the statute available only when the circumstances clearly justify it.
The said right is not to be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose. It is no doubt true that failure of prosecution to explain serious injuries on the person of accused in a given case and for sufficient reasons, may attract the provisions of Section 96 of the Indian Penal Code. However, entire prosecution case cannot be thrown over board simply because prosecution failed to explain injuries on the person of accused in every case. The question to be considered is what is the effect of non-explanation of those injuries, which is a question of fact and not of law and depends upon circumstances of each case. Similarly, duty of the Court is to evaluate the entire prosecution evidence carefully and to find out whether same is inconsistent with the medical evidence and the prosecution deliberately concealed the manner in which accused received injuries.
16) It is also well settled that when the accused takes a ::: Downloaded on - 09/06/2013 14:09:23 ::: 18 plea of right of private defence, the burden is on him to establish existence of right of private defence. However, he need not prove existence of right of private defence beyond reasonable doubt. Similarly, as to the standard of proof of private defence, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-
examination of prosecution witnesses or by adducing defence evidence. The prosecution is bound to discharge its initial burden to establish the complicity of the accused and till then, question does not arise to consider whether the accused has acted in self defence. On prosecution establishing its case, it is for the accused to take a plea of right of private defence and he is entitled to get benefit of Section 96 of the Indian Penal Code by showing preponderance of probabilities in his favour on the basis of material on record.
17) It is no doubt true that plea of right of private defence can be taken by the accused for the first time in appeal.
::: Downloaded on - 09/06/2013 14:09:23 ::: 19However, it is the duty of the appellate Court to consider and examine such plea in the light of evidence available on record.
Mere making allegations is not enough. The plea of right of private defence must be available in view of evidence on record and Court should be able to come to the conclusion after taking into consideration the pros and cons of the prosecution evidence that the accused had exercised the right of private defence.
18) In the instant case, the appellants for the first time have taken the plea of right of private defence in the appeal before this Court and same is based only on document (Exh. 70), i.e. injury certificate of appellant no.2 Umakant issued by the Medical Officer. It is an admitted fact that the appellants did not even remotely whisper about the same when their statements were recorded by the trial Court under Section 313 of the Code of Criminal Procedure. Similarly, there is not even a suggestion given in the cross-examination to any of the prosecution witnesses in this regard. On the other hand, the defence of the appellants was that the prosecution case is completely false. It is ::: Downloaded on - 09/06/2013 14:09:23 ::: 20 also not in dispute that there were two incidents, which had taken place in the intervening night of 31.10.1991 and 1.11.1991. In the first incident, Bhaskar (brother of deceased Prabhakar) was assaulted and in the second incident, deceased Prabhakar was assaulted by the appellants. There is nothing on record to show that scuffle had taken place between the appellants and Bhaskar on one side so far as first incident is concerned and deceased Prabhakar and appellants so far as second incident is concerned. On the other hand, the first information report as well as evidence of eye witnesses clearly go to show that appellant no.1 Surichand caught hold of deceased Prabhakar and appellant no.2 Umakant assaulted deceased Prabhakar with the knife and caused as many as 15 injuries on the chest, back and abdomen of deceased Prabhakar, which is completely corroborated by the medical evidence. The medical certificate (Exh. 70) though describes injuries sustained by appellant no.2 Umakant, however, there is no material on record to connect them with the incident in question in view of the facts and circumstances of the present case particularly in ::: Downloaded on - 09/06/2013 14:09:23 ::: 21 absence of any plea directly or indirectly taken by the appellants either in their statements under Section 313 of the Code of Criminal Procedure or in the cross-examination of the prosecution witnesses. Similarly, as per the observations of the Apex Court in para 14 (relevant portion), 15 and 16 in the case of Naveen Chandra (cited supra), burden of establishing the said plea was on the appellants. Those observations are as follows :
"14) The burden of establishing the plea of self defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
15) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.
16) The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the ::: Downloaded on - 09/06/2013 14:09:23 ::: 22 injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-
explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases."
In the backdrop of the above referred observations of the Apex Court as well as reasons given by us, the contention of learned Counsel Shri Daga that the appellants are entitled to get benefit of Section 96 of Indian Penal Code, in our view, is misconceived and cannot be accepted.
19) In the instant case, deceased Prabhakar suffered as many as 15 injuries, most were on the vital parts of the body, i.e. chest, back and abdomen and Prabhakar succumbed to those ::: Downloaded on - 09/06/2013 14:09:23 ::: 23 injuries almost immediately after the incident. In these peculiar circumstances, failure to opine by the Medical Officer that those injuries were sufficient in the ordinary course of nature to cause death by itself does not reduce gravity or intensity of the crime committed nor reduces the evidenciary value of the prosecution witnesses. This is not the case where the Medical Officer has opined that the injuries suffered by deceased Prabhakar were not sufficient in the ordinary course of nature to cause death and, therefore, failure to opine the same in the facts and circumstances of the present case does not mean that those injuries were not sufficient in the ordinary course of nature to cause death and the Court is always entitled to draw its opinion on the basis of nature of injuries suffered by the deceased.
20) It is well settled that in order to find out whether the accused intended to kill the victim, the factors to be considered by the Court are :
(i) nature of weapon used by the accused,
(ii) placement of injuries on the body of the
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deceased,
(iii) number of injuries inflicted and
(iv) force used.
In the instant case, weapon of offence was knife (deadly weapon) and there were 15 injuries inflicted by the appellants on the various parts of the body of deceased Prabhakar including vital parts and, therefore, in the facts and circumstances of the present case, we do not agree with the contention canvassed by learned Counsel Shri Daga in this regard and the offence committed by the appellants is murder and, therefore, conviction awarded by the trial Court for the offence punishable under Section 302 of Indian Penal Code is just and proper.
21) Similarly, in view of evidence on record, it is not possible to hold that prosecution witnesses could not identify the assailants because of darkness since the eye witnesses had seen the incident from the close quarter and the appellants were known to them. Hence, the contention canvassed by learned ::: Downloaded on - 09/06/2013 14:09:23 ::: 25 Counsel Shri Daga in this regard is also rejected.
22) For the reasons stated hereinabove, the appeal suffers from lack of merit and hence, same is dismissed.
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