Bombay High Court
The State Of Maharashtra vs Shankar Dyandeo Patil & Ors on 17 September, 2020
Equivalent citations: AIRONLINE 2020 BOM 1433
Author: N. J. Jamadar
Bench: A. S. Gadkari, N. J. Jamadar
SANTOSH 1 6-CRIAPPEAL487-2003.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 487 OF 2003
The State of Maharashtra ...Appellant
Versus
Shankar Dyandeo Patil & ors. ...Respondents
Ms. P. P. Shinde, APP for the State/Appellant.
None for the Respondents.
CORAM: A. S. GADKARI &
N. J. JAMADAR, JJ.
DATED : 17th SEPTEMBER, 2020
P. C.:
1. By this appeal the State takes exception to the judgment and order dated 16th December, 2002, in Sessions Case No.183 of 2000, passed by the learned Ad-hoc Additional Sessions Judge, Karad, whereby the accused - respondents herein came to be acquitted of the offences punishable under Sections 302, 324, 323 and 506 read with 34 of the Indian Penal Code, 1860 ("IPC").
2. The background facts leading to this appeal can be stated, in brief, as under:
(a) Mahadeo Patil (the frst informant) is a resident of village Ambavade, Taluka Karad. Hariba Ganpati Patil (the deceased) was the frst informant's father. Two of the brothers Digitally signed by Shraddha Shraddha K. Talekar of the frst informant, namely, Sadashiv and Balkrishna also K. Date:
Talekar 2020.09.18 17:10:30 +0530 1/10 SANTOSH 2 6-CRIAPPEAL487-2003.DOC reside at Ambavade. All the accused are also residents of Ambavade.
(b) Few years prior to the occurrence the frst informant had ploughed the feld of accused no.3 - Dattatraya by employing a tractor. The hire charges of Rs.950/- remained unpaid despite repeated demands.
(c) On 26th November, 1998, at about 9.30 am. the deceased was on his way to fetch four from the four mill. The frst informant heard Shankar (A1) hurling abuses at the deceased. Shankar (A1) also threatened to kill the deceased.
The frst informant rushed to the said spot. Thereupon Hindurao (A2) assaulted the frst informant by a stone which was wrapped in a towel to make it a sling shot ( gofan). Shankar (A1) assaulted the deceased in a similar fashion. Dattatraya (A3) and Balkrishna (A4) came thereat and assaulted the deceased by means of fst and kick blows. The deceased sustained a bleeding injury on his head. The deceased lost consciousness. Persons, who gathered at the spot, including Tukaram Patil (PW-8), rescued the frst informant and the deceased.
(d) As the deceased had lost consciousness he was initially shifted to the Primary Health Centre (PHC), Kole, and, after primary treatment, the deceased was taken to Cottage 2/10 SANTOSH 3 6-CRIAPPEAL487-2003.DOC Hospital, Karad and then to Krishna Hospital, Karad as his condition was serious. The frst informant approached Kole Police Outpost and lodged a report.
(e) Crime was registered at CR No.191 of 1998. Investigation commenced. The deceased succumbed to the injuries on the very day at about 6.00 pm. Inquest was held. The body was sent for postmortem examination. The Investigating Offcer interrogated the witnesses and recorded their statements. The Investigating Offcer visited the scene of occurrence and drew scene of occurrence panchnama whereunder samples of plain and blood mixed earth were collected. Accused were arrested. Pursuant to the discovery made by Shankar (A1) and Hindurao (A2) the weapon of offence i.e. stones and towel in which those stones were wrapped were recovered. After fnding the complicity of the accused the charge-sheet was lodged against the accused in the Court of jurisdictional Magistrate.
(f) On committal, the learned Sessions Judge framed charge against the accused for the offences punishable under Sections 302, 324, 323 and 506 of the IPC. The accused abjured their guilt and claimed for trial.
(g) At the trial, the prosecution examined in all nine witnesses including Mahadeo Patil (PW-1), the frst informant, 3/10 SANTOSH 4 6-CRIAPPEAL487-2003.DOC and Tukaram Patil (PW-8), as eye witnesses to the occurrence and Dr. Jayant Govind Dabhole (PW-4) the Medical Offcer, who had initially examined the deceased and the frst informant at PHC, Kole. The accused did not lead any evidence in their defence which consisted of false implication at the instance of the informant party, who had initially assaulted the accused.
(h) After appraisal of the evidence, the learned Sessions Judge was persuaded to return a fnding that the deceased Hariba met a homicidal death. However, the learned Sessions Judge was of the view that the prosecution witnesses especially Mahadeo Patil (PW-1) and Tukaram Patil (PW-8) suppressed the genesis of the occurrence. In the opinion of the learned Sessions Judge the informant party was the aggressor and, in the totality of the circumstances, the accused had not exceeded the right of private defence. Thus, the accused came to be acquitted.
3. Being aggrieved the State is in appeal.
4. We have heard Ms. Shinde, the learned APP for the State/ Appellant, at length. It was urged by the learned APP that the learned Sessions Judge committed grave error in arriving at the conclusion that the informant party was the aggressor and the deceased and the frst informant suffered injuries whilst the accused exercised a right of private defence. In the face of direct 4/10 SANTOSH 5 6-CRIAPPEAL487-2003.DOC evidence of the Mahadeo (PW-1), the frst informant, and Tukaram Patil (PW-8), which fnds requisite corroboration in the medical evidence formed by the testimony of Dr. Jayant Dabhole (PW-4) and Dr. Dhondiram Jadhav (PW-5), the autopsy surgeon, the accused could not have been acquitted, submitted Ms. Shinde.
5. We have minutely perused the evidence and material on record. Evidently, the fate of the prosecution case, to a greater extent, rested on the testimony of Mahadeo (PW-1), the frst informant, and Tukaram (PW-8) who professed to have witnessed the assault upon the deceased. Additionaly, Mahadeo (PW-1) claimed to be an injured person in the very same occurrence. On careful evaluation of the trustworthiness of their testimony, we fnd that the learned Sessions Judge was justifed in recording a fnding that both Mahadeo (PW-1) and Tukaram (PW-8) endeavoured to suppress the material facts. In the course of the cross-examination of Mahadeo (PW-1) and Tukaram (PW-8) a concerted effort was made on behalf of the accused to draw home the point that in the very same occurrence the informant party initially assaulted Dattatraya (A3) and thereafter Hindurao (A2) and Balkrishna (A4). The witnesses endeavoured to deny the counter version. However, Mahadeo (PW-1) conceded in the cross-examination that in the 5/10 SANTOSH 6 6-CRIAPPEAL487-2003.DOC said occurrence the informant party also made attempt to assault the accused. He went on to admit that Balkrishna (A4) and Hindurao (A2) were assaulted by the informant party.
6. It would be contextually relevant to note that Dr. Jayant Dabhole (PW-4), the Medical Offcer, then attached to the PHC, Kole, informed the Court that on the very day on which he had examined the deceased and frst informant at PHC, Kole, he had also examined Balkrishna (A4) at about 1.00 pm. and found follwing injuries :
(i) Abrassion over left middle fnger at the base of proxible halen size 1 x 1 x half cm.m. Irregular in shape with bleeding.
(ii) Right leg over middle one third size 1x1/2x ¼ c.m.
Irregular with bleeding.
(iii) Tenderness over left shoulder: 10 x 10 c.m.
Dr. Dabhole (PW-4) claimed to have examined Hindurao (A4) as well and found the following injuries:
(i) Posterior aspect of right elbow.
Tenderness 5 x 6 c.m.
Vental aspect of left wrist
Tenderness 4 x 4 c.m.
Tenderness over left side of chest, below
axilla 20 x 15 c.m.
painful movements.
Cause of injury is hard and blunt object.
Age of injury is within six hours.
7. To add to this, Mr. Bajirao Bhosale (PW-9) the Investigating Offcer conceded in the cross-examination that on 26th November, 1998, post arrest, the accused were sent for 6/10 SANTOSH 7 6-CRIAPPEAL487-2003.DOC medical examination as there were injuries on the person of some of the accused. Balkrishna (A4) had lodged report against the informant party including the frst informant and deceased. However, the offence was not registered against the informant party.
8. The situation which thus obtains is that Mahadeo (PW-1) the frst informant candidly conceded that the informant party assaulted Balkrushna (A4) and Hindural (A2). The testimony of Dr. Jayant Dabhole (PW-4) further establishes that injuries were found on the person of Balkrishna (A4) and Hindurao (A2). The endeavour of the prosecution witnesses to deny the factum of assault upon the accused party, thus, dents their credibility.
9. The scene of occurrence is of critical signifcance. There is evidence to indicate that the house of the frst informant is at a considerable distance from that of the accused. Mahadeo (PW-1) the frst informant admitted that there were 30 to 40 houses in between the frst informant's house and that of the accused. Bajirao Bhosale (PW-9) the Investigating Offcer conceded in no uncertain terms that the place of incident was near the house of the accused. The houses of the frst informant and the witnesses might be 400 to 500 ft. away from the scene of occurrence. An omission was brought out in the cross- examination of Mahadeo (PW-1) that he had not stated before 7/10 SANTOSH 8 6-CRIAPPEAL487-2003.DOC the police while lodging report that he rushed to the spot after hearing the abuses hurled at the deceased. In this backdrop, the claim of the frst informant Mahadeo (PW-1) that he rushed to the scene of occurrence, which was located near the house of accused, after hearing the abuses being hurled at the deceased does not appear nearer to the truth. It is the claim of Mahadeo (PW-1) that initially he was assaulted and thereafter the deceased was assaulted. In the backdrop of the place of occurrence and the topography of the spot, the aforesaid sequence of events leads to a legitimate inference that the informant party had came in front of the house of the accused.
10. The prosecution wants the Court to believe that the genesis of the dispute was the unpaid hire charges of the tractor used for ploughing the feld. Mahadeo (PW-1) conceded in the cross-examination that a couple of days prior to the occurrence dispute over the non-payment of the hire charges came to an end after he and Dattatraya (A3) took oath in the temple. Mahadeo (PW-1) went on to further concede that the said incident of oath was not disclosed by him to his family member. This circumstance indicates that there was an effort to put an end to the dispute over the non-payment of hire charges.
11. In the aforesaid backdrop, the learned Sessions Judge was justifed in arriving at the conclusion that the prosecution 8/10 SANTOSH 9 6-CRIAPPEAL487-2003.DOC suppressed the genesis of the occurrence. The injuries on the person of Hindurao (A2) and Balkrishna (A4) justify an inference that the accused have successfully offered an explanation which competes in probability with prosecution version. In the totality of the circumstance, the view recorded by the learned Sessions Judge that the informant party was the aggressor cannot be said to be unreasonable or based on no evidence or arrived at after excluding the relevant evidence.
12. Undoubtedly, the deceased died on account of the injuries sustained in the occurrence. However, it is pertinent to note that except injury no.3, CLW on left parital area, rest of the injuries sustained by the deceased were minor. Mahadeo (PW-1) had also sustained two simple injuries. Likewise, the injuries sustained by Hindurao (A2) and Balkrishna (A4) were also minor yet they indicate that the said assault by the informant party gave a reasonable apprehension to the accused that grievous hurt to any of the accused would be the consequence of such assault.
13. Indisputably, the force used or violence unleashed by the accused must be proportionate to and commensurate with what is required to thwart the attack and protect the person. At the same time, it is unrealistic to expect a person under attack to modulate his defence step by step with precision. The right 9/10 SANTOSH 10 6-CRIAPPEAL487-2003.DOC cannot be weighed in golden scales. On the aforesaid touchstone, in the facts of the case, we are satisfed that the accused party was put in such a situation that they could reasonably have apprehended grievous heart to them. Thus, the learned Sessions Judge was within his rights in arriving at the conclusion that the accused did not exceed the right of private defence.
14. On an independent analysis of the evidence, we do not fnd any substantial or compelling reason to interfere with the fnding of acquittal recorded by the learned Sessions Judge. In any event, the view taken by the learned Sessions Judge cannot be said to be one which is not borne out by the evidence and material on record. Resultantly, no interference is warranted in the impugned judgment and order.
15. The appeal stands dismissed.
16. This order is digitally signed by the Private Secretary of this Court. All concerned will act on production by fax or e-mail of a digitally signed copy of this order.
[N. J. JAMADAR, J.] [A. S. GADKARI, J.]
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