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Judgment
D.G. Deshpande, J.—Heard Mrs. Indrayani Koparkar for the appellant/accused and Mrs. R.P. Sabarwal for the State/Respondent.
The original accused, who was convicted by the Sessions Judge, Pune for the offence u/s 304, Part 2 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 2.000/- in default to suffer rigorous imprisonment for one and half years, has preferred this appeal challenging his conviction and sentence.
The prosecution case is that the incident in question was occurred on 10.12.1989. The accused caused injuries to deceased Bapu Salekar by a knife which ultimately resulted in the death of Bapu Salekar. Accused was, initially, charged for the offence u/s 302 of the Indian Penal Code. The prosecution examined two eye witnesses viz. Vithal Thakar (P.W. 1) and Anil Rode (P.W. 2). The prosecution also examined wife of the deceased viz. Jayshree Salekar as P.W. 3 to prove so-called dying declaration given by the deceased to her, before his death.
The fact that, the deceased received injuries by knife on vital part of his body, is not much in dispute because post-mortem notes were taken on record and exhibited u/s 294 of the Criminal Procedure Code when the accused admitted the documents. As per the post-mortem notes there were following four injuries on the person of the deceased : -
Incised wound left forehead bone deed 3"x 1/4" transverse.
Abrasions leaner on chest 6" below the sternal notch one on left of midline and two on rt. side about 1" and 2" on left and right side measures-2", 3" and 2" in length.
Stab injury on rt. side of chest 7th space, 8" below the notch and 2" rt. hand 1"x 1/4" apices into the thoracic abdominal cavity.
Stab injury on left chest over 8th space. 9" below and 6" lateral from sternal notch measures 1" x 1/4" apices In thoracic abdominal cavity.
The cause of death was given in the post-mortem notes itself as shock as a result of stab injuries and injuries Nos. 3 arid 4 are stabbed injuries and were on the chest of the deceased. The Trial Court accepted the case of the prosecution that the accused caused death of the deceased. However, the Trial Court also held that the accused acted in self-defence but exceeded rights of private defence, therefore, the accused came to be convicted u/s 304, Part 2 of the Indian Penal Code.
The question is, whether findings of the Trial Court are correct or whether the conviction of the accused u/s 304, Part 2 of the Indian Penal Code is correct?
In this regard, it was contended by the counsel for the accused/ appellant that the evidence of two important eye witnesses i.e. P. Ws. 1 and 2 is suspicious and it does not inspire confidence. According to her, there are serious infirmities in the evidence of these two witnesses, not only regarding the account of the incident given by them, but regarding other material aspects of the case i.e. receipt of injuries by the accused because it is an admitted fact, that the accused also had in all received 8 injuries on his person. (He was examined by Dr. Pandurang Shinde - P.W. 7). Out of which, injury Nos. I to V were caused due to sharp object with edges and injury Nos. VI to VIII were caused due to object with blunt edges. Injury Nos. IV to VII were caused to the left palm and hand and injury No. VIII was caused on the throat or neck of the accused about which the Doctor has given opinion that external injury No. VIII can be caused in case if a person holds in the neck tightly and at the same time that person would be trying to resist.
In order to appreciate this argument about vital infirmities, it is necessary to consider the evidence of P. Ws. 1 and 2.
P.W. 1 Vithal Thakar has stated that on 10.12.1989 his friend Anil Rode came to Panshet for recovering dues from his customers. At about 5.45 p.m. Anil Rode (P.W. 2) came to his vegetable shop and when he was on his way to Pune, he asked this witness to accompany him to S.T. Stand Panshet. Vithal (P.W. 1) accompanied Anil Rode (P.W. 2) to the S.T. Bus Stand, Panshet. When they were proceeding towards the S.T. Bus Stand, they met deceased Bapu Salekar. This was at about 6.45 p.m. to 7 p.m. At that time they saw that the accused was following them. Deceased Bapu told them that the accused was following him since morning. Thereafter P.W. 1 Vithal told accused to go away and any dispute between accused and deceased Bapu would be settled separately. Thereafter, according to Vithal (P.W. 1), accused left the place and P.Ws. 1, 2 and the deceased proceeded towards S.T. Bus stand.
However, within couple of minutes the accused came running towards them and when he approached them he threw chilli powder on the face of deceased Bapu. Some portion of the chilli powder also fell on the face of P.W. 1. He, therefore, went to the house of one Dagadu Biramane and asked water to wash his face where Dagadu''s son Popat gave him water. Thereafter P.W. 1 washed his face and he returned to the place of incident. At this juncture, according to P.W. 1, he noticed that accused took out a knife from the pocket of his pant and assaulted deceased Bapu on his abdomen on two occasions and ran away.
Thereafter Bapu fell on the ground. Popat, who was there and who had given water to this witness to wash his face, was asked by this witness to take Bapu to his residence as witness wanted to make arrangement for vehicle. P.W. 1 thereafter arranged for vehicle and went to the house of Popat and from there Bapu was taken to his residence and from the residence he was taken to Sassoon Hospital, Pune with the help of Dilip Mandhare, and Ramesh Shirke.
As against this, P.W. 2 Anil Rode has given following account of incident.
P.Ws. 1 and 2 are consistent so far as their proceeding towards S.T. Bus Stand with the deceased, accused being seen by them and accused being asked to go by P.W. 1 is also consistent.
In the subsequent part of the prosecution case, P.W. 2 Anil states that within short time thereafter, the accused returned and started coming towards them. The accused was abusing Bapu, the deceased. When the accused was corning near them, he threw chilli powder on the face of Bapu. Thereafter both Bapu and accused started exchanging abuses between them. Some chilli powder fell in the eyes of P.W. 1 who went to nearby house. There was a scuffle between the accused and deceased Bapu. While the scuffle was going on P.W. 1 and Popat arrived there and they started separating the quarrel between the accused and deceased Bapu. But while they were doing so, P.W. 2 noticed that the accused assaulted twice on the chest of Bapu. P.W. 2 states specifically that he did not see the weapon in the hands of the accused at that time. Then P.W. 1 asked this witness (P.W. 2) to come ahead and solve the dispute and separate them. P.W. No. 2 went towards the accused and deceased, he caught hold of Bapu but at that time the accused ran away from that place. Bapu fell down on the ground. P.W. 1 Vithal and Popat took Bapu Salekar towards the residence of Popat. Vithal (P.W. 1) left the place for bringing vehicle and by that time P.W. 2 went to S.T. Stand and went to Pune.
From the aforesaid narration of P.Ws. 1 arid 2 it will be clear that both these witnesses are giving totally contradictory version. P.W. 1 does not speak any thing about his attempt to intervene in the scuffle alongwith Popat. P.W. 1 Vithal also does not speak anything about the presence of P.W. 2 Anil. P.W. 2 Anil holding hands of Bapu and P.W. 2 assisting P.W. 1 and Popat in removing Bapu to the house of Popat.
So far as P.W. 2 is concerned, he admits that he did not see any weapon in the hands of the accused at that time. He does not speak about the presence of Dilip Mandhare and Ramesh Shirke with whose help deceased Bapu was taken to Pune.
Most important aspect of the prosecution case that is not stated by any of these two witnesses is about 8 injuries sustained by the accused during this scuffle. P.W. 7 the doctor had seated about those injuries, as discussed above. Those injuries clearly show that there was scuffle between accused and deceased and they also show that the deceased had weapon in his hands with whom he assaulted the accused. The injuries also show that in the scuffle, the deceased tried to throttle the accused. But surprisingly enough, none of these two important eye witnesses speaks a single word about any injury being caused to the accused by deceased or the accused received any of the injuries. If at all P.Ws. 1 and 2 were actually present on the scene of offence as claimed by them, then they were expected to tell the truth to the Court. But they are totally silent regarding this vital and important aspect of the case i.e. the 8 injuries received by the accused, some of which are on the hands of the accused, and according to doctor (P.W. 7) these injuries could be possible, if the accused tried to snatch away the knife from the hands of his assailant i.e. deceased Bapu Salekar.
Silence of these two witnesses on this important aspect coupled with the contradiction, considered above, creates a doubt about the presence of these witnesses or doubt about their being eye witnesses to the incident. Secondly, none of these two witnesses cared to inform the incident to the police. According to P.W. 2 he did not care to accompany deceased Bapu to the Sassoon Hospital, Pune, even though, he himself had to go to Pune and P.W. 1 arranged his jeep to take the victim Bapu to Pune. P.W. 2 very casually says that after P.W. 1 went to arrange vehicle he came to Pune by S.T. Bus. P.W. 2 has no explanation why he did not report the matter to the police or to the relatives of the deceased. P.W. 1 has also no explanation as to why he did not report the matter to the police.
The F.I.R. in this case is lodged by one Ramchandra Salekar (P.W. 6), the brother of the deceased Bapu. Admittedly, he is not an eye witness and according to him, he was informed by Popat about the incident. Therefore, first informant of Exhibit 21 - F.I.R. not being an eye witness, has no personal knowledge. If at all Popat, according to the prosecution, was an eye witness to the incident, he has not been examined for the reasons best known to the prosecution. The evidence of P.Ws. 1 arid 2 have already been scrutinised by me and in view of the inherent lacuna it is difficult to believe the testimony of these witnesses.
The prosecution examined one Jayshree Salekar, the wife of the victim Bapu. According to her, when she learnt about the assault on her husband she ran to the scene of offence and she found that her husband was having bleeding injuries and her husband told her that it was the accused who caused those injuries. However, this evidence of this witness was rightly disbelieved and rejected by the Trial Court because the witness admitted in the cross-examination that when she reached the place of incident her husband was unconscious. Her evidence is liable to be rejected because neither P.W. 1 nor P.W. 2 speaks about her presence, nor her coming to the place of incident before deceased Bapu was removed to Sassoon Hospital, Pune.
The prosecution has also tendered the evidence of recovery of weapon and recovery of blood stained clothes. But when the main aspect of the prosecution case as deposed to or narrated by P.Ws. 1 and 2 is suspicious and docs not inspire confidence, then mere recovery of the weapon is of no consequence nor is of any help to the prosecution.
The case of the prosecution can also be looked from other angle i.e. right of private defence of the accused in view of the 8 injuries received by him, out of which some are caused by sharp edged instrument like knife which was subsequently recovered at the instance of the accused. The Trial Court had considered this aspect and had come to the conclusion that in view of the condition in which the accused was kept because of the attack by knife by deceased, the injuries caused to the accused, the attempt by the deceased who was strong and well-built person to throttle the neck and throat of the accused, the accused was left with no alternative to retaliate in defence. The Trial Court has, therefore, acquitted the accused from the offence u/s 302 of the Indian Penal Code but convicted him u/s 304, Part 2 of the Indian Penal Code.
The learned Counsel for the appellant relied upon the judgment of the Supreme Court in Jai Dev Vs. The State of Punjab, wherein the Supreme Court has made following observations regarding right of private defence
In judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in hip mind some excitement and confusion. At such a moment the uppermost feeling in his mind would be to ward off the danger and to save himself or his property and so, he would naturally be anxious to strike a decisive blow in exercise of his right. It is no doubt true that striking a decisive blow, he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force is used than is necessary or than was justified by the prevailing circumstances. It would be inappropriate to adopt tests of detached objectivity which would be so natural in a Court room, for instance long after the incident has taken place. The means which a threatened person adopts or the force which he uses should not be weighed in golden scales. To begin with the person exercising a right of private defence must consider whether the threat to his person or his property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require that "lie should modulate his defence step by step, according to the attack before there is reason to believe the attack is over." The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety. As soon as the cause for the reasonable apprehension has disappeared and the treat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence. If the danger is continuing, the right is there; if the danger or the apprehension about it has ceased to exist, there is no longer the right of private defence.
If the aforesaid ratio is applied to the facts of the present case, then it '' has to be held that, even if the alternative argument of Mrs. Kejariwal, the learned A.P.P. for the State, is accepted that inspite of all the aforesaid lacuna, the prosecution has succeeded in proving the case against the accused, then, the accused is required to be acquitted because of the circumstances brought on record, injuries suffered by the accused, attempt to suppress this important aspect made by P.Ws. 1 and 2 which will show that in the situation the accused had no alternative but to act in self defence and in that event if he caused injuries to the victim resulting in his death then it cannot be said that accused exceeded his right of private defence. Therefore, on both these counts i.e. firstly on the count of inherent lacuna, in the prosecution case, suppressing of material facts by P.Ws. 1 and 2 regarding injuries received by the accused, and secondly arid alternatively because of exercise of the right of private defence has to be held that accused is entitled for the acquittal. Hence the order:-
ORDER
Appeal is allowed.
Conviction and sentence of the accused u/s 304 Part 2 of the Indian Penal Code is set aside and he is acquitted of the offences.
Fine, if paid, to be returned to the accused/appellant.
His bail bond stands cancelled.