Vishvas Aba Kurane: Akaram Bhairu Kotwal vs State Of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1978 Supreme(SC) 21

SUPREME COURT OF INDIA
JASWANT SINGH AND V.D. TULZAPURKAR, JJ.
Vishvas Aba Kurane, Appellant
Versus
State of Maharashtra, Respondent.
Criminal Appeals Nos. 166 of 1971 and 201 of 1973
Decided on 19-1-1978.
and
Criminal Appeal No. 166 of 1971:-
Criminal Appeal No. 201 of 1973:-
Akaram Bhairu Kotwal, Appellant
Versus
State of Maharashtra, Respondent.
Advocates appeared
Mr. S. B. Wad and Mrs. Jayashree Wad, Advocates (in Cri. App. No. 166 of 1971) and Mr. O. P. Rana,, A. C. (in Cri. App.No. 201 of 1973), for Appellants; Mr. M. C. Bhandare, Sr. Advocate (Mr. M. N. Shroff, Advocate with him) (in Cri. App. No. 166 of 1971) and Mr. M. N. Shroff, Advocate (in Cri. App. No. 201 of 1973), for Respondents.

Headnote:
Indian Penal Code – Section 302/ 34 149 - Jurisdiction Act, 1970 – Section 2 – Offence of murder – Injuries - Circumstantial evidence - While he was being examined and treated by the Medical Officer. Stricken by grief Shankar immediately went to the local police station with a view to make a report about the occurrence. On arriving at the Police Station, he found that Shiva had already reached there along with his mother with a view to forestall him and had lodged information (Ex. 57) alleging that while he was near the Pan shop of on that very evening at he was assaulted with sticks by and his two brothers - As the information given by Shiva, accused did not disclose the commission of any offence he was directed by the P.S.I. to approach a criminal court of competent jurisdiction for redress – Held, Defense plea that in any event in causing death of appellants acted in exercise of their right of private defense cannot also be accepted . It is well settled that t claim a right of private defense extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The appellants have manifestly failed to discharge this burden. They have not at all been able to establish that and Shankar came to from their house armed to wreak vengeance on them or that they made any assault on them or on their confederate. The evidence on the record does not show the existence of any circumstance on the basis of which the appellants and could have any reasonable apprehension in their mind that any bodily harm extending to either death or grievous hurt would be caused to them if they did not act in time and cause the death of Raghunath. On the other hand, the unrequited testimony of Shankar (P. W. 2) which does not suffer from any infirmity and has been rightly relied upon by the courts below clearly establishes that the appellants and their confederate were themselves the aggressors and they mercilessly dealt with Raghunath and the witness both of whom had hastened to the Bazar Peth not with any sinister motive but in their natural solicitude for Jaywant who according to the information in their possession had been assaulted by the party of the appellants. If Shankar and Raghunath had any intention of assaulting and causing any bodily harm to the appellants, they would have surely come armed with some weapon. The fact that they came unarmed and took to their heels on seeing the appellants and their confederate pursuing them in an excited mood knocks the bottom out of the plea of right of private defence vainly tried to be advanced on behalf of the appellants. In the circumstances, the accused cannot be said to have even a semblance of the right of private defense - Theory of free fight sought to be adumbrated on behalf of the appellant is also deviod of merit, for it is well settled that in a free fight, no right of private defense is available to either party and each individual is responsible for his own acts - Appeal dismissed

JUDGMENT

JASWANT SINGH, J.:—Vishvas Aba Kurane, appellant in Criminal Appeal No. 166 of 1971 and Akaram Bhairu Kotwal, appellant in Criminal Appeal No. 201 of 1973 (hereinafter referred to for the sake of brevity as Vishvas and Akaram respectively) who were charged and tried along with three brothers of the latter viz. Mahadev Bhairu Kotwal, Shiva Bhairu Kotwal and Maruti Bhairu Kotwal, and another person named Ibrahim Sayyad Nalband, (here inafter referred to as Madhadev, Shiva, Maruti and Ibrahim respectively) for various offences have on an appeal filed by the State of Maharashtra been convicted by the High Court of Bombay for an offence falling under S. 302 read with S. 34 of the Indian Penal Code and sentenced to imprisonment for life instead of the offence under S. 304 Part I read with Ss. 34 and 149 of the Indian Penal Code for which they were convicted and sentenced by the Sessions Judge, Sangli, The High court has found that the appellants intentionally caused the death of Raghunath Sidu Nikam (hereinafter referred to as Raghunath), aged 23, brother of Shankar (P. W. 2) and Jaywant (P. W. 6) in furtherance of the common intention shared by them with Mahadev who has not appealed against his conviction and sentence. Vishvas, appellant and his brother Mahadev have also been individually convicted by the High Court under S. 302 of the Indian Penal Code for the murder of Raghunath and sentenced to imprisonment for life, The sentences imposed on Vishvas, appellant and Mahadve under the aforesaid two counts have been ordered to run concurrently. The High Court having on appeal reversed the order of acquittal of the appellants as indicated earlier and sentenced them to imprisonment for life, they have come up in appeal to this Court under S. 2 (a) of the SC Enlargement of Criminal Appellate Jurisdiction Act, 1970.

2. The facts and circumstances leading to these appeals are: On May 17, 1968 i.e. two days prior to the incident which has given rise to these appeals, Jaywant (P. W. 6) had gone to see a movie which was to be screened in a local cinema at Shirala in Sangli District. before the commencement of the show, one Abdul Ghani (P. W. 15) pelted a stone at a represetnative of the film distributors which hit Akaram who was standing close to the representative of the film distributors. A scuffle thereupon ensued between Akaram and Abdul Ghani in which Jaywant intervened on the side of Abdul Ghani. In the course of that scuffle, Jaywant and Akaram set upon each other with chappals. The combatants, however, took their seats as the show started. The tussle which had ceased with the commencement of the show was renewed during the interval when Raghunath deceased, Dinkar, Maruti and Ramchandra Gayakwad (P. W. 3) who were also present in the Cinema Hall intervened and separated Akaram and Jaywant. On May. 18, 1968, another fracas between Maruti and Dinkar, the brother of Shankar (P. W. 2) took place which did not, however, assume a grave turn because of the mediation of a few persons including the brothers of Dinkar. On the fateful evening of May 19, 1968, Jaywant left his house for his field to keep a vigil. On the way, he went to the shop of Babu Ranadive (P. W. 5) to have a panpatti. While he was proceeding ahead after making the said purchase, Mahadev and Ibrahim made their appearance armed with sticks and mauled Jaywant who somehow managed to extricate himself and run towards the well which was at a distance of few paces to the North of the shop of Babu Ranadive. On reaching near the well, Jaywant cried out that beating had been administered to him. After thus raising an alarm, Jaywant turned back and asked Mahadev and Ibrahim who had by the got near Shivaji Store as to why they manhandled him. Thereupon, Ibrahim tried to assault him with a stick but before he could do so, Jaywant lifted him bodily and threw him on the ground. In the meantime, Ramchandra Gayakwad (p. W. 3) who was closeby rushed to the scene and wrested the stic

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