Subhash Mallikarjun Menase vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(Bom) 325

IN THE HIGH COURT OF BOMBAY
Sahai Vishnu Das T.K. Chandrashekhar, JJ.
Subhash Mallikarjun Menase.... Appellant.
Versus
State of Maharashtra.... Respondent.
Criminal Appeals Nos. 62, 184 185 with Criminal Revision Application No. 77 of 1985, decided on 23-6-1998.
Advocates appeared :
T.E. Mane, in Cri. Appeal No. 62 of 1985 for Appellant.
R.Y. Mirza, Addl. P.P., in Cri. Appeal Nos. 62, 184, 185 in Cri. Rev. Appln. No. 77 of 1985 for State.
T.E. Mane, for respondent in Cri.Appeal Nos. 184, 185 Cri. Revision Appln. No. 77/85.

Headnote:Section 96-Criminal Procedure Code, 1974, Section 313-Plea of right of private defence-Accused to only prove his plea of right of private defence by preponderance of probabilities and once it is discharged it hardly matters if - Similar admission is not made by the accused in his statement under Section 313.-lf the benefit of plea of right of private defence is available on the basis of the prosecution evidence, the said benefit cannot be merely denied because, the statement of the accused is not in tune and harmony from what has emerged in favour of the accused from the evidence of prosecution evidence. This is because the burden on accused, is only to prove his plea of right of private defence by preponderance of probabilities and once that burden is discharged, in view of the adn1issions emerging from the prosecution evidence, it hardly matters if a similar admission is not made by the accused in his statement under Section 313, Criminal Procedure Code. The right of private defence of person cannot be weighed in golden scales and the person who is victim of aggression cannot be expected to weigh each blow which he gives. Where the appellant himself had received three incised wounds, out of which two were on vital parts of body, he was entitled to inflict the injuries. In such matters, a liberal view as against a narrow one, should be taken.
Section 300, Clause thirdly - Only when there is an intention to inflict both external and internal injuries clause thirdly applicable - Clause thirdly in Section 300, Indian Penal Code would only have application where there is an intention to inflict both external and internal injuries. There was no intention to inflict the external injury which resulted in the internal injury.
Section 302-If the accused being victim of aggression losing all sense of proportion inflicts a solitary knife blow and death is caused accused cannot be said to have intended to inflict the blow. AIR 1983 SC 284, Relied on.

JUDGMENT - SAHAI VISHNU, J.:---Since these four connected matters arise out of the same set of facts and a common impugned Judgment, we are disposing them off by one Judgment.

Subhash Mallikarjun Menase the original accused was tried by the IInd Additional Sessions Judge, Solapur, in Sessions Case No. 127 of 1984 for offences punishable under sections 302/324/326 of Indian Penal Code and was convicted and sentenced vide Judgment dated 22-1-1985 in the manner stated hereinafter:

(i) Under section 304 Part II, Indian Penal Code to 5 years R.I.

(ii) Under section 324, Indian Penal Code to 1 year R.I. and to pay a fine of R. 200/- in default to undergo R.I. for 2 months.

(iii) Under section 326, Indian Penal Code to 3 years R.I. and to pay a fine of R. 300/- in default to undergo R.I. for 3 months.

Criminal Appeal No. 62 of 1985 has been preferred by Subhash Minase, assailing his said conviction and sentence.

Criminal Appeal No. 184 of 1985 has been preferred by the State of Maharashtra against his acquittal for offence under section 302, Indian Penal Code.

Criminal Appeal No. 185 of 1985 has been preferred by the State of Maharashtra with a prayer that the sentence awarded to him for offences under section 304, Part 2, Indian Penal Code 324 and 326, Indian Penal Code be enhanced.

Criminal Revision Application No. 77 of 1985 arises out of suo motu notice issued by a learned Single Judge of this Court (Kotwal, J.) in terms that the appellant should show cause as to why his sentence be not enhanced.

2. In short, the prosecution case runs as under:

The informant Sharanappa Revansidhappa Hulle P.W. 5, was the husband of the deceased Annapurna. The couple had no issues and therefore adopted Revansidha alias Vilas P.W. 11 as their son. Muktabai P.W. 8 was the real sister of Annapurna. She had two daughters namely Papi alias Snehlata P.W. 10 and Surekha. The latter was married to Revansidha alias Vilas. The said persons lived together in a house called 'Hulle Nivas' at Shelgi within the limits of Taluka Police Station in the District of Solapur.

Sharanappa Hulle P.W. 5 had five tenants. One of them was the accused Subhash Menase. He wanted his tenants to vacate their respective premises as he was short of accommodation. On this score, relations between him and the accused got strained.

On 20-4-1984, at about 8 a.m. Papi P.W. 10 had gone to the back side of the house and a quarrel between her and the accused took place. When Annapurna intervened in the same, the appellant inflicted stick blows on her person. Annanpurna lodged complaint (Exhibit 26) in respect of that incident. The same day the accused after locking his room went away.

On 23-4-1984, at about 7 a.m. Papi went to bring a packet of biscuits. She came back and informed the deceased and others that accused was in Mallikarjun temple. Consequently, Sharanappa along with Revansidha, Annapurna, Muktabai and Papi went to Mallikarjun temple to tell him to remove his luggage. On reaching the temple, Sharanappa and others found that the accused armed with a knife (at some places, it has been described as a gupti) was standing near the platform of the temple. On seeing Sharanappa and others, he pushed Papi, sat on her back and started inflicting knife blows thereon. Revansidha rushed to her rescue and thereupon he set her free and started inflicting knife blows on his ribs. In the meantime, he gave a knife blow on the stomach of Annapurna who succumbed to her injuries instantaneously. When Muktabai rushed to the rescue, he inflicted a knife blow on her stomach. Muktabai caught hold of the knife and Sharanappa also tried to catch hold of it and in that process, both Sharanappa and the accused sustained injuries, on their hands.

Apart from the victims, this incident was also seen by Mallikarjun Patil, Chanappa Bableshwar and Basawaraj Kumbhar. Immediately after the incident, a rickshaw was arranged for and in the same, Sharanappa, Revansidha, Muktabai and Papi came to the Civil Hospital, S

Click Here to Read the rest of this document