Full Judgment Text
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CASE NO.:
Appeal (crl.) 615 of 2004
PETITIONER:
DATTU SHAMRAO VALAKE & ANR.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 15/04/2005
BENCH:
P. VENKATARAMA REDDI & P.P. NAOLEKAR
JUDGMENT:
JUDGMENT
P. VENKATARAMA REDDI, J.
Four persons including the two appellants herein faced
the charges under Sections 302/34, 307/34 and Section 326
IPC and also under Section 25(1)(b) and Section 30 of the
Arms Act for the fatal assault with deadly weapons on the
two deceased persons namely Bajirao and Krishna (also
referred to as ’Kishan’ by some witnesses) on the forenoon
of 18.8.1984 in the village of Walkewadi. On trial, the
Additional Sessions Judge, Kolhapur convicted accused Nos.
1 to 4 under Section 302 read with Section 34. Accused Nos.
1 & 2 were alternatively convicted under Section 302 IPC
individually. Accused Nos. 1 & 2 were also convicted for the
offence under Section 25(1)(b) and Section 30 of the Arms
Act respectively. A4 was also convicted under Section 324
IPC. Accused Nos. 1 to 4 were, however, acquitted of the
offence under Section 307 IPC. All the accused were
sentenced to life imprisonment.
On appeal, the High Court acquitted the accused Nos. 1
to 4 for the offences under Section 302 read with Section 34
and the High Court convicted the appellant No.2 (A-3)\027
Tanaji Shamrao Valake under Section 302 IPC and the
appellant No.1(A-1)\027Dattu Shamrao Valake under Section
304 Part I IPC and sentenced them to life imprisonment and
rigorous imprisonment for a period of 10 years respectively.
The conviction of accused No.1 (appellant No.1) under
Section 25(1)(a) of the Arms Act was maintained. The fourth
accused’s conviction Under Section 324 was upheld.
Aggrieved by their conviction and sentence, the two
appellants who are accused Nos. 1 & 3 have filed the
present appeal against the judgment of the High Court of
Bombay.
The case of the prosecution is as follows:-
The deceased and the accused belonged to nearby
villages, namely Varakatwadi and Walkewadi respectively.
There was a quarrel on the intervening night of 18th/19th of
August, 1984 in connection with the grazing of cattle of
accused No.1 on the pasture land situate at the adjacent
village Awali said to be in the possession of the deceased
and his sons. In the course of scuffle, it is alleged that the
accused No.1 was assaulted by Ananda, the brother of PW10
with a stick. PW10 drove away the cattle. On the very next
day at about 10 a.m. the two deceased persons, namely
Krishna and his son Bajirao along with PW10 and his brother
Ananda and the ladies (Suseela-PW7 and Kamal-PW8) went
to the village Walkewadi for the purpose of carrying on
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weeding operations in the land belonging to PW6\027Akkatai
who is the daughter of the deceased Krishna and the sister
of deceased Bajirao. They were armed with axe and
sticks. When they came near the house of one Hindurao
Valake, which is close to the house of the accused, the
accused armed with gun, axes and sticks attacked the
prosecution party. The accused No.1 was having a double-
barrel gun which he fired in the air in the first instance.
When he was aiming the gun at Ananda, his brother (PW10)
gave a hit on the gun with a stick under the impact of which
the gun fell down and there was accidental shot which,
however, did not injure anybody. Then, accused No.3
inflicted injuries with axe on the head and neck of Bajirao as
a result of which he fell down and succumbed to the injuries
after a gap of about a month. It is alleged that after Bajirao
fell down, the second appellant i.e. accused No.1 took out
the axe which Bajirao was having and then attacked Krishna
and as a result of the injuries caused to him, Krishna died
the next day in the hospital. Accused No.2 is alleged to have
given a stick blow on the head and the back of PW10. As
regards accused No.4, it is alleged that he was about to
attack PW1 with axe and when PW10 raised his right hand to
ward off the attack, the injury was caused to his index
finger.
There were three head injuries on the deceased Bajirao
which are attributed to the attack by accused No.3. These
injuries were inflicted on the left parietal region causing the
fracture of skull bone and the brain matter protruding out.
The deceased Krishna had two injuries\027one incised wound
on the nape of neck 4" x 2" x 1=", spine deep exposing the
bleeding spine and the second incised wound was on the left
parietal region, scalp deep. The first wound, according to the
opinion of the Medical Officer, was the fatal wound.
The accused too did suffer injuries as noted by the High
Court in paragraph 9. The details of such injuries are as
follows:
(1) Accused No.2\027Shamrao, had suffered incised wound
obliquely on the right parietal region of his head, 2"
x <", contusion 1" x 1" over left wrist and multiple
abrasion over the right scapula region.
(2) Accused No.1\027Dattu Shamrao, had suffered
contusion over left forearm, 2"x1" reddish in colour.
(3) Accused No.3\027Tanaji had suffered contusion 8"x1"
over chest from mid sternum extending obliquely to
left anterior axillary line (which injury according to
the Doctor could be caused by the motor cycle chain)
and two other contusions over left deltoid region
(2"x1") and left inguinal region (3"x1").
Four others (other than the accused) were also injured.
PW12\027Head Constable of Lakshmipuri police station
was on duty in CPR hospital, Kolhapur on the date of the
incident. Having come to know that three injured persons
were admitted in the hospital, at about 3.00 p.m., he went
and saw the patients namely Krishna, Bajirao and Sambaji in
the ward and he recorded the statement of Sambaji\027PW10
who was able to speak. The first information based on the
said statement was recorded and the case was transferred
to Kodoli police station which had jurisdiction over the place
of offence. Initially some investigation was done by the Head
Constable of Kodoli P.S.\027PW14 who went to the village and
drew up the panchnama of the scene of occurrence. PW17\027
the Sub-Inspector incharge of Kodoli police station,
continued the investigation from 20.8.1984 onwards. He
seized the gun and axe from the houses of the accused and
recorded the statements of the witnesses and after
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investigation filed charge-sheet on 31.12.1984. While so, on
the date of the incident itself, the second accused Shamrao
lodged a complaint with Kodoli police station alleging that he
and other accused were assaulted by the two deceased\027
PW10 and his brother with axes, sticks and cycle chain. After
investigation by PW 17, a charge-sheet was filed implicating
PW10 and his brother Ananda for the offence under Section
307 IPC. That case was also tried along with the present
case and by the judgment of the same date, the learned
Sessions Judge acquitted them of the charges.
At the time of examination under Section 313 Cr.P.C.,
the appellants filed a written statement in which they took
the plea of private defence. While admitting the incident,
they stated that the deceased Krishna and his three sons
entered the house of the accused armed with axe, cycle
chain and stick and one of them (Ananda) assaulted Tanaji\027
A3 with the cycle chain as a result of which he fell down and
became unconscious. Then the prosecution party started
beating the other accused. Accused No.1 therefore went
inside and brought a gun and fired two shots in the air with
the idea of scaring them away. However, the prosecution
party continued to beat the accused and cause injuries to
them. The names of seven persons including the three
accused were mentioned as the recipients of injuries. They
denied the presence of lady witnesses\027PWs 6, 7 & 8 at the
scene of occurrence. They referred to the complaint filed by
them against the prosecution party.
The High Court was of the view that the evidence on
record probablised the plea of private defence taken by the
accused. The High Court found substance in the contention
of the accused that the deceased and their associates were
the aggressors. At the same time, as far as the third
accused\027second appellant is concerned, the High Court felt
that there was really no justification for causing three
injuries with a deadly weapon because by the time he
mounted the attack, the threat from the side of the
deceased and his companions had abated and moreover, by
the very first injury, the deceased would have been
incapacitated. The High Court was therefore of the view that
A3 intended to cause more harm than was necessary for the
purpose of self defence. The High Court therefore convicted
the second appellant (A3) for the offence under Section 302
IPC for his individual act of fatally attacking Bajirao. As
regards the 1st appellant, the High Court gave the benefit of
Exception 3 to Section 300 and convicted him for the offence
under Section 304 Part I and sentenced him to ten years
rigorous imprisonment.
Accused Nos. 2 & 4 were acquitted by the High Court
on the ground that they did not play active part, that the
injury alleged to have been caused by accused No.2 was not
proved by medical evidence and that accused No.4 arrived
at the scene of offence much later as per the version in the
FIR. In spite of the finding that the right of private defence
was available to the accused and that the accused No.4
entered the scene later on, curiously the High Court upheld
his conviction under Section 324 for causing the injury to
PW10. However, that is not the subject matter of the
present appeal.
There were five eye-witnesses to the offence. The first
one is PW6\027Akkatai (daughter of the deceased Krishna)
whose name was referred to in the F.I.R. itself. The other
eye-witnesses are PW7\027daughter-in-law of the deceased
Krishna, PW10\027his son, PW8\027the wife of deceased Bajirao
and PW9\027one Shivaram. None of them explained as to how
the accused received injuries. The trial Court expressed
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doubt regarding the presence of PW8.
In our view, the view taken by the High Court on the
aspect of self-defence is not a reasonably possible view. We
do not think that the evidence on record justifies the
inference that the appellants acted in self-defence. Three
reasons weighed with the High Court in giving credence to
the plea of private defence. The following passage at para
10 of the judgment summarizes these reasons.
"\005In our view, the material mentioned above
thus lends support to the defence contention that
the complainants party had also come armed with
the weapons such as axe, motor cycle chain and
sticks. Material further indicates that the
complainants party were also abusing the
accused persons. The aforesaid facts coupled with
the fact that three of the accused alongwith four
other from their party did in fact suffer injuries,
which are not explained by the prosecution
witnesses in our view, indicates that the
complainants party had come prepared for
aggression and did commit overt acts against the
accused and others. \005"
Then, the High Court examined the overt acts
committed by the appellants and held that the
appellant No.2\027Tanaji intended to cause more harm than
necessary for the purpose of self-defence and therefore the
Exception 3 cannot come into play in his case. However, the
Exception was applied to the case of first appellant and he
was convicted under Section 304 Part I. On a scrutiny of the
evidence on record and the clear finding of the trial court in
regard to the scene of offence, we are of the view that the
High Court was not justified in reaching the conclusion that
the accused had the right of private defence against the
deceased and their companions who, according to the High
Court, were the aggressors. In this context, we remind
ourselves of the case set up by the accused in their police
report and in their written statement in response to Section
313 examination according to which the deceased Krishna
and his three sons entered the house of the accused armed
with axe etc., challenged the accused to come out and
attacked one of them (2nd appellant) with cycle chain and at
that juncture A1 brought gun and fired in the air. Yet,
according to the accused, the attack continued. However,
this version cannot be true as the evidence unmistakably
reveals that the incident did not happen within the premises
of the accused or even in front of it. The incident happened
in the lane in front of the house of one Hindurao Walake. It
may be that the place of occurrence is not too far from the
house of the accused but the fact remains that the incident
took place in a public street outside the houses of the
accused. The houses of the accused are towards the east of
the place of offence separated by two or three houses. The
trial Court discussed this aspect in detail. The learned
Sessions Judge referred to the map (Ext. 53), the scene of
offence (Ext. 21), the evidence of panch witness\027Vasant
Sawant (Ext. 20), the lack of blood-stains at the alleged
place of incident pointed out by Tutala Bai\027the wife of A2 to
the I.O., the presence of blood on the earth recovered from
the actual spot and the evidence of I.O. The trial Court
concluded as follows:
"Thus it is clear that as the place of offence is
near the house of Hindurao Walake, it falsifies the
version of the accused that the incident took
place in front of their house as contended by
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them in their written statement under Section
313 Cr.P.C."
It was also observed:
"The version given by the prosecution and the
complainant that on the date of incident at about
10 a.m. they were going to the land of Mali
(owned by Akkatai) appears to be most natural
and probable".
This finding of the trial Court based on thorough
analysis of the evidence has not been upset by the High
Court. Yet, the High Court came to the conclusion that the
members of the prosecution party were aggressors. At least,
two reasons that were taken into account by the High Court
in reaching the conclusion cannot be sustained. There is no
evidence to show that PW10 was carrying the motor cycle
chain. The suggestion put to him was denied. PW9 denied
having made the statement before the police that PW10 was
carrying cycle chain and the axe. So also he denied having
made the statement that the deceased Krishna and his three
sons were hurling abuses in loud tone against the accused
for the previous night’s assault on A1. The High Court made
use of the statements under Section 161 Cr.P.C. to record
its findings on these two aspects. It may be that PW9 is an
untruthful witness but the omissions and contradictions
cannot be treated as evidence of the alleged facts. There is
every possibility that the offensive article like cycle chain
could have been picked upon the spot by a member of the
prosecution party.
As regards the injuries on the accused, we shall advert
to that aspect a little later.
The learned counsel for the appellant tried to
supplement the reasons given by the High Court by
contending that in the background of the previous night’s
incident, the prosecution party would have thought of
retaliation, as otherwise there was no acceptable reason for
the deceased and their family members coming to the
village of the accused on the very next day. It is commented
that the explanation of PW6\027Akkatai that they came to the
village in order to attend to weeding operations in her lands
is highly improbable. Attention is drawn to her statement
that there was no ’special reason’ for requesting her parents
to attend to the work on her fields. We find it difficult to
accept this contention. We have already extracted the
finding of the trial Court and we agree with the trial Court
that there is nothing unnatural or improbable in the version
given by PW6. Too much cannot be read into the statement
of PW6 that there was no ’special reason’. The omission to
spell out ’special reason’ for requesting her parents and
brothers to help her in agricultural operations is no ground
to disbelieve her evidence, especially in view of the evidence
on record that her kith and kin from the parents’ side were
looking after some of her lands in view of the mental
incapacity of her husband. Moreover, the fact that the lady
members of the family were accompanying them coupled
with the fact that there were only three able-bodied males
in the prosecution party (Krishna being a very old man) and
the further fact that the weapons they were carrying (axe
and sticks) were such as are ordinarily carried in villages
while going to fields, would probablize the fact that that
their arrival in the village of Walkewadi was for some reason
other than initiating a fight against the accused. The learned
counsel for the appellant repeatedly stressed that the
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incident was only of a short duration\0272 or 3 minutes
according to PW8. But it has no bearing on the question
whether the members of the prosecution party were the
aggressors.
For the aforesaid reasons, we discard the plea of self-
defence advanced by the accused which has been accepted
by the High Court without evidentiary basis and without
considering the clear finding of the trial Court in regard to
the scene of offence. The High Court’s finding on the aspect
of private defence almost borders on perversity and cannot
be sustained.
What remains is the fact that the injuries were caused
to some of the accused which remained unexplained.
Whereas the accused No.1 received a minor injury viz.,
contusion over left fore arm 2"x1", the injuries received by
accused Nos. 2 & 3, though simple, are fairly severe.
Accused No.2 had received an axe injury and accused No.3
had received an injury with some other dangerous object
such as cycle chain. One person by name Sadashiv suffered
a lacerated wound over occipital region, scalp deep with a
fracture of skull. According to the appellants, he was their
associate. He was examined by the Medical Officer\027PW5.
There was no explanation for these injuries received by the
accused and some others in the course of the same incident.
In fact, the incident as such has not been denied by either
of the parties. It is not possible to say with reasonable
certainty as to which party provoked the other and how the
fight was initiated. In the circumstances, a reasonable
inference based on a high degree of probability could be
drawn that there was a sudden quarrel and free fight
between the parties. The attack by the appellants on the
prosecution party in the course of this fight cannot be said
to be a premeditated affair. It is not the prosecution case
that the accused anticipated the arrival of the prosecution
party and they were lying in wait to cause harm to the
deceased. Though A1 had a fire arm, he did not use it
against the deceased. He fired a shot or two in the air. After
that there is nothing to show that he tried to reload and use
it against the deceased. In fact initially only one accused
was having an axe. It is only later on that the accused No.4
is alleged to have joined the fight armed with an axe which
is also indicative of the fact that there was no pre-concert
amongst the accused to attack the members of the
prosecution party. Though he is alleged to have attacked
PW10 with an axe, no severe injury was inflicted on PW10.
Above all, the incident was of a short duration and the
accused fled from the scene immediately after the fight.
These events could probablize the fact that there was no
premeditation and the attack was in the course of free
fight. There is therefore a case to apply Exception 4 to
Section 300 provided the ingredients of the last clause, that
is to say, "without the offender having taken undue
advantage or acted in a cruel or unusual manner" are
satisfied. There is no difficulty in holding that the offenders
have not taken undue advantage of the situation. Both
parties, who were armed, engaged themselves in a fight and
both inflicted injuries against the other.
The only doubt that arises is whether A3, in causing
three axe injuries to the deceased Bajirao, acted in a cruel
manner? In examining this point, we have to take note of
the fact that A3 (2nd appellant), in spite of having an axe
with him, had suffered quite a severe injury viz., contusion
of 8"x1" over chest which could have been caused,
according to the Doctor, by an object like cycle chain. It is
not possible to say at what stage A3 had received such
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injury. At any rate, there was no clarification bearing on this
aspect from the prosecution side. The deceased Bajirao was
wielding an axe. The 2nd appellant, probably already injured,
might have become apprehensive that he would be attacked
by Bajirao with the axe. Though three injuries were noted,
they are all on the left parietal region causing the fracture of
skull bone. Looking at the nature of injuries, it is quite
possible to say that all the injuries would have been caused
by one or two axe blows, but not necessarily three. In fact,
PW6 states in cross examination that she had seen one axe
blow being given by accused No.3 on the neck of Bajirao. No
doubt he had used excessive force against Bajirao by
causing injury with the axe on a vital part, may be more
than once. However, taking an overall picture, we cannot
say beyond doubt that the 2nd appellant acted in a cruel or
atrocious manner by attacking the deceased with the axe
once or twice. We are therefore not inclined to deprive the
2nd appellant of the benefit of Exception No.4. At the same
time, we are of the view that it would be appropriate to
convict him under Part I of Section 304 IPC because having
regard to the gravity of the injuries caused with a dangerous
weapon, each one of which was fatal, the 2nd appellant must
be imputed with the intention to cause such bodily injury as
was likely to cause death, if not the intention of causing
death. Accordingly we convict the 3rd accused\027appellant
No.2 under Section 304 Part I and we are of the view that in
the circumstances, a sentence of eight years R.I. and fine of
Rs.1,000/- would be sufficient. In default of payment of fine,
appellant No.2 will suffer imprisonment for four months.
The case of the accused No.1\0271st appellant,
undoubtedly falls under Section 304 Part II. As noticed
supra, A1, although having fire arm, did not shoot the
deceased or any other member of the prosecution party.
Other than the gun, he was not having any weapon in his
hand. Instantaneously he picked up the axe that was in the
hands of the injured\027Bajirao and dealt a blow with that axe
on the neck of the deceased Krishna. Though another injury
was found on the left parietal region, according to the
Doctor\027PW5, it was injury No.1 that was serious. Krishna
who, according to postmortem report, was aged about 75
years, succumbed to the injury the following day. It is
reasonable to infer, from the conduct of the 1st appellant
and the manner of attack on an old person, that the
appellant No.1, by causing the injury with axe on the neck
of the deceased Krishna, was having knowledge that the
said act was likely to cause death; but, he had no intention
to cause death or such bodily injury as was likely to cause
death. We therefore find the 1st appellant\027A1 guilty under
Section 304 Part II. As regards sentence, we feel that
having regard to the facts and circumstances of the case,
five years of imprisonment and fine of Rs.1,000/- will be
adequate and proper. Accordingly, he is convicted and
sentenced. In default of payment of fine, he will suffer
further imprisonment of four months. The appellants will of
course be given the benefit of set off of the period of
detention already undergone.
Accordingly, the judgment of the High Court is
modified and the appeal is partly allowed.