2005 Supreme(SC) 645

2005(3) Supreme 388
Supreme Court of India
(From Bombay High Court)
P. Venkatarama Reddi and P.P. Naolekar, JJ.
Dattu Shamrao Valke and Anr. —Appellants
versus
State of Maharashtra —Respondent
Criminal Appeal No. 615 of 2004
Decided on 15-4-2005
Counsel for the Parties :
For the Appellants : Shekhar Nafde, Sr. Advocate, Himanshu Gupta, Brijkishore Sah and Shivaji M. Jadhav, Advocates.
For the Respondent : Ravindra Keshavrao Adsure, Advocates.

Headnote:Indian Penal Code, 1860—Sections 302 and 302/34, 324/34—Four accused including two appellants were convicted under by trial Court—Two deceased, father and son along with PW10 and ladies PW7 and PW8 were going to village of PW6, daughter of deceased to attend work in her field and were carrying axe and sticks—When they were near house of accused, accused armed with gun, axe and lathis attacked prosecution party—Both ­deceased were assaulted with axe—­Defence plea of right to private defence—High Court found evidence probabilised plea of private defence but convicted second appellant u/s 302 IPC for his individual act of fatally attacking deceased son and convicted other appellant u/s 304 Part I IPC—Appeal—High Court’s finding on aspect of self-defence was not a reasonably possible view—As against plea of accused that prosecution party entered into their house as aggressor place of occurrence was the public street—Injuries on person of accused were simple though ­severe on person of A2 and A3 indicated that there was a sudden quarrel and free fight—Offenders found not to have taken undue advantage of situation—A3, second appellant though caused three axe injuries to deceased but possibility of all injuries caused by one or two axe blows was also there—Though he could not be deprived of benefit of Exception 4 to Section 300 IPC but his conviction was liable to be recorded u/s 304 Part I IPC and sentenced 8 years imprisonment with fine—Other appellant convicted u/s 304 Part II IPC and sentenced 5 years imprisonment with fine.

       Held : 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.

       “....In 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. ...”

       Then, the High Court examined the overt acts committed by the appellants and held that the appellant No. 2—Tanaji 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. (Paras 11 and 12)

       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. (Para 13)

       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—PW5. 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. (Para 17)