Pralhad vs The State of Maharashtra

A.B. Chaudhari, J—Being aggrieved by the judgment and order dated 25.1.2007 passed by the Ad hoc Additional Sessions Judge - 3, Chandrapur in Sessions Case No. 149/2005 by which the appellant Pralhad was convicted along with accused No. 2 - Narendra and accused No. 3 - Nagendra both his sons for the offence punishable under Section 302 r/w 34 of Indian Penal Code and sentenced them to undergo life imprisonment and to pay a fine of Rs. 1,000/- each, in default, to further undergo rigorous imprisonment for three months each, the present appeal has been filed by the appellant.

FACTS:

On 16.08.2005 the complainant Namdeo Dau Raipure r/o Borgaon was doing agricultural work with his son-in-law deceased Vinay Satyawan Nimsarkar of village Dewada Tq. Pombhurna, District Chandrapur. On the next date i.e. 17.8.2005 he accompanied his son-in-law to the field for sowing operation along with labourers taken on hire. They were working in the field and both the complainant Namdeo and his son-in-law were standing on the ''Bund'' of the field. At about 10:00 a.m. the appellant Pralhad his sons Nagendra and Narendra arrived there with axe and sticks, Pralhad having axe and his sons having sticks and they asked deceased Vinay as to why he was ploughing their land and they started beating him by stick while Pralhad started assaulting him with axe and delivered several blows of axe on his person. Complainant Namdeo tried to intervene but he was also assaulted and suffered injuries to right and left hand and left leg. The farm-labourers Kisan and Moreshwar working left the place after the incident was over. Vinay fell down and received injuries and became unconscious. All the accused persons including the appellant ran away with their weapons. Thereafter, complainant Namdeo went to the house of deceased Vinay and reported the incident and lodged report to Police Station Pombhurna, where offence under Section 302 r/w 34 of Indian Penal Code was registered vide Crime No. 28/2005. Complainant being injured was referred to the hospital. Thereafter, the investigation commenced. The Investigating Officer completed usual formalities, recorded statements of the eyewitnesses and others and they filed the charge-sheet. The trial was held. The trial Court relied on the three eyewitnesses to the incident and thereafter recorded the order of conviction and sentence.

SUBMISSIONS:

In support of the appeal, the learned Counsel (appointed) for the appellant submitted that the sons of the appellant Pralhad i.e. accused No. 2 - Narendra and accused No. 3 - Nagendra had filed their appeal in this Court which was registered as Criminal Appeal No. 146/2007 and their appeal was partly allowed by modifying the conviction under Section 302 to Section 324 of Indian Penal Code and thus they were released. He submitted that on the same set of evidence the appellant Pralhad is also entitled to the same benefit and accordingly, the judgment in question should be modified. The learned Counsel for the appellant then argued on merits of the appeal and submitted that the case was one of right to private defence in respect of the property in possession of the appellant, namely, the suit field property. According to him, even if it was true that nine days before the incident the Tahsildar had passed an order in favour of the deceased Vinay in relation to the possession of property, the possession could have been obtained by deceased by following the due process of law. The appellant being in possession of the suit property was entitled to protect his possession and as a right to private defence was entitled to protect property in his possession. Admittedly, the deceased Vinay had without following the due process of law started making plantation of paddy in the field by hiring labourers at high rate of wages, knowing fully well that the dispute was bound to arise by his acts, but then he did not mend his ways and on the contrary was aggressor by entering the field of the appellant and therefore, the appellant should be given benefit to exception relating to right to private defence provided by Section 96 of the Indian Penal Code. He relied on the following decisions.

"(i) Amjad Khan Vs. The State, AIR 1952 SC 165 : (1952) CriLJ 648 : (1952) 1 SCR 567 .

(ii) Jai Dev Vs. The State of Punjab, AIR 1963 SC 612 : (1963) 3 SCR 489 and Hari Singh (in Cr.A. No. 57 of 62)...Versus...State of Punjab].

(iii) Dominic Varkey Vs. The State of Kerala, AIR 1971 SC 1208 : (1971) CriLJ 1057 : (1971) 3 SCC 275 : (1971) SCC(Cri) 532 .

(iv) Puran Singh and Others Vs. The State of Punjab, AIR 1975 SC 1674 : (1975) 4 SCC 518 : (1975) SCR 299 Supp .

(v) Biran Singh and Others Vs. The State of Bihar, AIR 1975 SC 87 : (1975) CriLJ 44 : (1975) 4 SCC 161 ."

The next submission made by the learned Counsel for the appellant is that all the witnesses examined and relied upon by the trial Court as eyewitnesses are interested witnesses. P.W.1 - Namdeo Raipure is the father-in-law who is highly interested witness and other two prosecution witnesses who had relied by the trial Judge were admittedly engaged on a very high rate of wages and therefore, they were interested in repaying their Master by deposing in the Court as eyewitnesses when they were not eyewitnesses and actually had run away from the spot before the incident took place. He, therefore, submitted that the prosecution case has not been proved and the appellant was required to be acquitted. In the alternative, the learned Counsel for the appellant submitted that sons of the appellant accused Nos. 2 and 3 have been convicted by this Court by holding them not guilty of offence under Section 302 of Indian Penal Code by modifying the conviction under Section 324 of Indian Penal Code. Therefore, the appellant Pralhad is also required to be given same treatment he having spent several years in jail and is aged about 65 years.

Per contra, the learned Additional Public Prosecutor for the respondent supported the impugned judgment and order and submitted that the evidence of the eyewitnesses is fully trustworthy and has been rightly believed by the learned trial Judge. There are two independent witnesses who are labourers who were actually working in the field. Payment of higher wages would be no ground to discard the testimony since there is no reason for them to depose against the appellant for any personal reasons. On the contrary, they are the most natural witnesses who were working in the field along with appellant as engaged by him. He, therefore, submitted that the appeal deserves to be dismissed.

CONSIDERATION:

We have seen the impugned judgment and the reasons recorded by the learned trial Judge for convicting the appellant. We have also seen the evidence of all the eyewitnesses before the trial Judge. We have carefully seen the cross-examination of all the eyewitnesses and we find nothing to disbelieve them. On the contrary, the evidence of all these three eyewitnesses is consistent and without any infirmity.

P.W.1 - Namdeo father-in-law lodged the report at Exh. 26 to the police station after the incident. The report Exh. 26 fully corroborates the testimony of P.W.1 - Namdeo. It is true that Namdeo is the father-in-law of the deceased and was accompanying him for making plantation, but then his testimony inspires confidence and there is no reason to disbelieve his evidence. It is true that he being the interested witness his testimony should be carefully seen. We have seen his evidence carefully. However, we find that his evidence is consistent and not at all demolished his cross-examination. We quote the relevant part of the evidence of P.W.1 - Namdeo as under:

"My son-in-law Vinay was standing on the bank of field & I was standing at "Par" a distance of about 30 feet away where the uprooting of paddy work was going on. At the same time Pralhad Nagendra, Narendra Nimsarkar came in the field of my son-in-law. All the three accused present before the court are the same. All the three accused then asked to the labour why ploughing their field & asked them to leave the plough. Then all the three accused started beating to my son-in-law. Accused Nos. 2 and 3 were having lathi and the accused Pralhad was having axe in his hand. They assaulted to my son-in-law on his head and leg. Thereby my son-in-law sustained bleeding injury and fell down in the mud & shouted to save him. I then went to rescue him much but I also sustained injury by lathi on my both palm and right below knee. All the accused beaten to my son-in-law till he died on the spot. They also put mud into the mouth of my son-in-law. The labourers looking to this, they went away. All the accused then run away."

The evidence of P.W.2 - Moreshwar who was a farm-labour recorded before the Court is as under.

"At that time Pralhad & his sons all the accused came in the field. The accused Pralhad asked me to leave the plough, therefore I left the plough and remained standing. Vinay alias Vinayak deceased was standing at some distance, all the three accused went near to him & started beating to Vinay. The accused Pralhad was having axe and both the accused Nos. 2 and 3, the sons of accused No. 1 was having sticks (Badga). The accused Nos. 2 and 3 assaulted by stick and accused No. 1 assaulted by axe to Vinay. After beating, Vinay fell down in the mud. The accused No. 1 Pralhad assaulted on the head of deceased Vinay. I and Kisan Satre along with plough went away due to fear."

Similar is the case of P.W.3 - Kisan another labourer who was working with appellant. We quote the relevant portion from his evidence as under:

"While accused No. 1 & Vinay were talking to each other, at the same time the elder son of accused No. 1 came and gave a blow of stick on Vinay on head. Therefore, Vinay fell down. Then the accused No. 3 also assaulted to Vinay by stick. Thereafter Pralhad accused No. 1 gave a blow of axe on the head of Vinay. Looking to blood we afraid off. Therefore, I along with Moreshwar and plough and bull went away. The spot where the incident occurred was adjoining bandi (block) and it was not the place where I was ploughing, of incident. The father-in-law of the Vinay was also present in the field near the place of uprooting the seedlings. When the beating started the father-in-law went to rescue and we went away."

Upon perusal of the cross-examination of these witnesses we find that there is nothing to disbelieve their evidence nor we find any discrepancy in their evidence. We, therefore, agree with the learned trial Judge that the evidence of all these three eyewitnesses is consistent and must be believed. The trial Judge made no mistake in believing their evidence. Thus, the offence committed by the appellant is clearly proved.

Insofar as sons of the appellant, namely, Narendra and Nagendra are concerned, we have perused the judgment of this Court passed in Criminal Appeal No. 146/2007 dated 3.7.2012. We find from the judgment that this Court had found that they had given blows by means of sticks to the deceased and nothing more and therefore, this Court found that stick blows did not cause death of Vinay but the blow with the axe caused his death. This Court, therefore, found that the sons had no intention to commit the murder and at any rate, there was dispute between the appellant and the deceased who was his nephew. This Court, therefore, found that the sons of the appellant Pralhad committed offence under Section 324 of Indian Penal Code. Therefore, this Court modified the order of conviction and sentence. We, however, find in the case of the present appellant that by means of axe Pralhad caused six serious injuries on the person of the deceased, in addition to four additional injuries; i.e. on palpation in the nature of fracture to vital organ, namely, head. We quote the following injuries from the evidence of P.W.6 - Dr. Avinash Nanhe.

"i) Incised wound of size 5 cm. x half cm. x half cm. over left posterior one/third part of parietal region.

iii) Incised wound of size 4 cm. x half cm. x half cm. over upper middle part of occipital region.

v) Incised wound of size 5 cm. x half cm. x half cm. over interior one-third of right parietal region.

vi) Incised wound of size 5 cm. x half cm. x half cm. over right one-third of frontal region;

ix) CLW of size 1 x half cm. over middle part of right pinna.

xx) Incisor, canine, premolar teeth of upper and lower jaw fell down.

On Palpation:

i) upper part of nasal bone is fractured by palpation.

ii) Right mandible is fracture at angle and ramus.

iii) teeth of upper jaw and lower jaw are fallen down.

iv) Right Zagmatic arch is fractured."

Reading of the above injuries to our mind clearly shows that the appellant Pralhad actually indulged in cutting the body of Vinay by means of axe from right as well as left region of the head. It clearly appears from the injuries and the evidence that he did not stop inflicting the blows with full force by means of axe resulting into above injuries. He also fractured the nasal bone, right mandible, upper jaw, lower jaw and right zagmatic arch which clearly shows the determination of his use of axe for murdering deceased Vinay.

In the light of the above and the evidence on record, we find that the defence about the right to private defence must be rejected. The story of the defence as well as prosecution is that the deceased was ploughing in the field along with the labourers and father-in-law and the labourers were engaged on higher rates. Even assuming that the deceased was making plantation in the field along with his father-in-law and the labourers by making encroachment without obtaining possession as per due process of law, the fact remains that there was an order in his favour made by the Tahsildar in respect of the field where he was making plantation. He, therefore, had a reasonable belief that he was entitled to make plantation in the suit field he having been armed with the order of Tahsildar in his favour. Even assuming that he had not lawfully entered into the field in question, looking to the evidence and the nature of injuries caused by the appellant by axe we think that the appellant could not have made such forcible assault and the theory of reasonableness or reasonable apprehension which is a heart and sole of the right to private defence, if considered, we are quite sure that he exceeded his right of defence and with full determination committed the murder of Vinay. We are, therefore, not prepared to hold that the appellant had any right to private defence as contended before us or that he exercised that right to protect his property. We, therefore, reject the said contention raised by the learned Counsel for the appellant.

To sum up, we do not find any merit in the instant appeal. Hence, we make the following order.

ORDER

Criminal Appeal No. 407/2014 is dismissed.

Fees payable to the learned Counsel appointed for the appellant are quantified at Rs. 5,000/- (Rupees Five Thousand Only).