Back
2000 Supreme(Bom) 788
IN THE HIGH COURT OF BOMBAY
Vishnu Sahai D.S. Zoting, JJ.
Kashinath Ramchandra Patil another.... Appellants.
Versus
State of Maharashtra another.... Respondent.
Criminal Appeal Nos. 108 and 353 of 1996, decided on 6-10-2000.
Advocates appeared :
R.V. More, in Cri.A. No. 108/1996, for appellant No. 2 and in Cri.A. No. 353/96, for respondent.
A.M. Shringarpure, A.P.P., in Cri.A. No. 353/1996, for appellant and .in Cri.A. No. 108/1996, for respondent.
Headnote:(i) Indian Penal Code, 1860 Sections 302, 307 read with 34 Murder and attempt to murder case Evidence Act, 1872 - Section 105 Burden cast on defence - Scuffle between deceased and accused Accused sustaining fatal injuries Not explained by prosecution – Eye witnesses, neither independent but inimical - Injuries narrated by eye witnesses on deceased not totally corroborated by medical evidence Appeal against conviction and life sentence under Section 302 read with 34 IPC by original accused 1 and 3 Whether be allowed? (Yes) - States appeal against acquittal of original accused 2 in same incident - Whether be dismissed? (Yes) – Order accordingly - 1976 SCC (Cri.) 671 Relied on.
Held: We have heard learned Counsel for the parties and perused the entire material on record. In our view Criminal Appeal No. 1 08 of96 deserves to be allowed and Criminal Appeal No. 353/96 warrants to be dismissed. (Para 12) The only question which requires to be decided is whether the prosecution version of the incident is correct or the defence suggestion, referred to earlier may be correct in terms of the burden cast on the defence by Section 105 of the Evidence Act. In our view the prosecution version as furnished by Naresh Naik P.W. 3 and Pradnya Naik P.WA does not inspire confidence and the defence version may be correct. (Para 14)
When these four infirmities in the evidence of the two eye-witnesses are borne in mind in the light, of the fact that although the incident took place in broad day light in a crowded locality and yet no independent witness is forthcoming to depose about it, it becomes extremely unsafe to accept the ocular account furnished by them. (Para 15)
As is well known the burden on the defence is not so onerous as on the prosecution. Whereas the former has to only show by a preponderance of probability that its case may be true, the latter has to prove its case beyond reasonable doubt. We feel that the defence has discharged the burden cast on it not only because the defence version has been suggested to the eye-witnesses in their cross-examination but also as there is no explanation for the injuries of Kashinath Patil which were examined on the date of the incident itself by Dr. Ajit Gawali P.W. 8 which injuries, in his opinion, could have caused Kashinath Patils death. (Para 16)
(ii) Indian Penal Code, 1860 Sections 302 and 307 read with. 34 Evidence Act, 1872 - Sections 103 and 106 - Murder trial - Both prosecution side and defence side sustaining injuries - Defence version of the incident does not explaining the injuries of the injured prosecution victim - Whether for this reason defences right of private defence got exhausted? (No) - AIR 1974 SC 778 Relied on.
Held: Even in a case in which the right of private defence is pleaded the burden on the accused only shifts after the prosecution has discharged its initial burden of proving its case beyond reasonable doubt. Consequently, this weakness in the defence case would not enure to the advantage of the prosecution. It is well settled that the prosecution swims or sinks on the strength or weakness of its case and its case is not proved by weaknesses of the defence. We have earlier given the reasons as to why the evidence of the two eye-witnesses Naresh Naik P.W. 3 and Pradnya Naik P.W. 4 does not inspire confidence and why the prosecution case has not been established beyond the pale of doubt. (Para 18)
There is another reason as to why the aforesaid infirmity does not enure to the benefit of the prosecution. Since the defence version of the incident does not explain the injuries sustained by Naresh Naik P.W.3 and the prosecution version does not explain the injuries sustained on appellant Kashinath Patil at the worst what can be said is that both prosecution and the defence are coming with untrue facts. In such a situation, it is not the prosecution which is the gainer but the regrettable result is both - the versions have to be rejected and the accused given the benefit of doubt. We say this on the basis of two decisions viz. those reported in 1959 Allahabad Law Journal 423 Subrati and Ors. v. State and AIR 1974 SC 1822 Jamuna Chaudhary and Ors. v. State of Bihar. (Para 19)
Bearing in mind the ratio laid down in the said cases we regret that in the instant case it would not be possible to decide whether the prosecution version of the incident is correct or the defence version. In such a situation, as held in the said cases, the appellants would have to be given benefit of doubt. (Para 20)
(iii) Indian Penal Code, 1860 Sections 302, 307 read with 34 Murder and attempt to murder - Trial - Indian Penal Code, 1860 – Section 101 - Right of private defence Disparity between number of injuries sustained on the side of prosecution (15 by the deceased and 2 by the injured) and those on the side of defence (applicant Kashinath Patil having 4 injuries only) - Can it be held that because of this disparity appellants exceeded in their right of private defence? (No).
Held: We also find no merit in Mr. Shringarpures submission that the right of private defence has been exceeded. The medical evidence furnished by Dr. Ajit Gawali P.W.8 shows that the injuries of Kashinath Patil were serious and could cause death. In such a situation the appellants had the apprehension that appellant Kashinath Patil could be done to death. in terms of clause firstly of Section 100, I.P.C. and hence they had the right to kill the deceased Arun. In this view of the matter, when appellants Kashinath Patil and Sudhakar @ Manya assaulted the deceased with knives they had the right to kill him. It is true that the post mortem report which has been proved by Dr. Ajit Gawali PW8 shows that four of the injuries suffered by the deceased viz. injuries Nos. 7,8. Wand 15 were individually sufficient in the ordinary course of nature to cause death but that would make no difference because the right of private defence cannot be weighed in golden scales. Neither the person who is receiving fatal injuries nor his companion can be expected to weigh in golden scales the amount of force which they should use to quell the attack on them. In our view; on the facts of this case the right of private defence has not been exceeded. (Para 21)
At any rate persons who act in the exercise of right of private defence do not commit a criminal act and therefore Section 34, I.P.C, which stipulates of a criminal act being committed by several person in furtherance of their common intention would have no application when it comes, to decide the question where more than one person is acting in the discharge of right of private defence, as is the case here, as to who amongst them exceeded the right of private defence of person or property. In such a contingency prosecution has to specifically establish as to who amongst them exceeded the right of private defence of person or property as the case may be. (Para 22)
In the instant case there is no evidence as to who amongst Kashinath Patil and Sudhakar @ Manya were responsible for the four fatal injuries suffered by the deceased. The view which we have taken is fortified by the observations contained in para 4 of (the decision of the Supreme Court reported in AIR 1971 SC 1834 (Joginder Ahirv. The State of Bihar and Ors.) (Para 23)
In the result:
(A) Criminal Appeal No. 108/96 is allowed. Both the appellants viz. Kashinath Ramchandra Patil and Sudhakar @ Manya Dattatraya Patil are acquitted for the offence under Section 302 read with 34, I.P.C. and their convictions and sentences there under are set-aside. Appellant Kashinath Patil is also acquitted for the offence under Section 324, I.P.C. and his conviction and sentence there under is set-aside. The said appellants are in jail and shall be released forthwith unless wanted in some other case.
In case fine has been deposited by the said appellants the same shall be refunded.
(B) Criminal Appeal No. 353/96 preferred by the State of Maharashtra against the acquittal of Respondent Madhukar Ramchandra Patil is dismissed and his acquittal for offences punishable under Sections 302 134, I.P.C. and 307/34, I.P.C, is confirmed. The Respondent is on bail. He need not surrender. (Para 24)
2.Through Criminal Appeal No. 108 of 1996 the appellants Kashinath Ramchandra Patil and Sudhakar @ Manya Dattatraya Patil have impugned the judgment and order dated 30th January 1996, passed by the Additional Sessions Judge, Raigad Alibaug convicting and sentencing them in the manner stated hereinafter.
Both under section 302 r.w. 34 I.P.C. to imprisonment for life and to pay a fine of Rs. 5000/-, each, in default to undergo one year's R.I. each. In addition Kashinath Ramchandra Patil under section 324 I.P.C. to one year's R.I. and to pay a fine of Rs. 500/- and in default to undergo 6 months R.I.
The substantive sentences of appellant Kashinath Ramchandra Patil were directed to run concurrently.
It is pertinent to mention that along with the said appellants was tried accused Madhukar Ramchandra Patil for the offence under section 302 r.w. 34 I.P.C. but since he has been acquitted through the impugned judgment, the State of Maharashtra has impugned his acquittal through Criminal Appeal No. 353/96.
3.Shortly stated the prosecution case runs as under :
Appellant Kashinath Ramchandra Patil and acquitted accused Madhukar Ramchandra Patil are real brothers and appellant Sudhakar @ Manya Dattaraya Patil is a friend of Kashinath. All of them are residents of village Kurul, Taluka Alibaug. The deceased Arun @ Bandhu Raghunath Patil, was the husband of the sister of Naresh Naik P.W. 3. Pradnya Naik P.W. 4 is the daughter of Naresh Naik. The informant Prasad Patil P.W. 1 is the cousin brother of the deceased Arun.
In village Kurul, next to the tailoring shop of Naresh Naik P.W. 3, there was a hotel of appellant Kashinath Patil and acquitted accused Madhukar. Naresh Naik P.W. 3 had fixed a weather shed in front of his tailoring shop which irked Kashinath Patil. On 12-5-1994 at about 9.30 a.m. Kashinath Patil went to the tailoring shop of Naresh Naik P.W. 3 and asked him to remove the weather shed and threatened to kill him if he did not remove it. Naresh Naik asked Kashinath Patil to ask his landlord.
On 15-5-94 at about 8 a.m. Naresh Naik went to his tailoring shop along with his daughter Pradnya Naik P.W. 4. From the road side Kashinath Patil threatened him to remove the weather shed. Thereupon Naresh asked Pradyana to sit in the shop and proceeded to Alibaug with the intention to lodge F.I.R. He went to the house of Prasad Patil P.W. 1, who was an advocate, but the latter advised him not to lodge the F.I.R. as it would strain relations between him and Kashinath. Consequently at about 8.30 a.m. Naresh Naik returned to his shop.
The same day at about 11.30 a.m., Kashinath Patil along with Shrikant Patil who was the landlord of Naresh Naik, went to the tailoring shop of the latter and asked him to remove the weather shed. Naresh Naik replied that he would remove it later on and went away. After some time Kashinath Patil entered into the tailoring shop of Naresh Naik P.W. 3; caught hold to his banian and abused and threatened him. Hearing the abuses of Kashinath Patil his brother Madhukar Patil (acquitted accused) came to Naresh Naik's shop armed with a soda water bottle and gave blows with the same on the eye of Naresh Naik P.W. 3. Thereafter Kashinath Patil took out a knife and inflicted blows with it on the stomach of Naresh. But as chance would have it, the blow struck the right arm of Naresh Naik P.W. Thereafter Kashinath Patil and Madhukar Patil brought Naresh Naik out of his tailoring shop. At that juncture the deceased Arun arrived and intervened. A scuffle took place between him and Kashinath Patil. During the course of that scuffle Madhukar Patil assaulted Arun with the soda water bottle on his head. In the meantime appellant Sudhakar @ Manya who was in the adjoining hotel, seeing the quarrel came and alongwith Kashinath Patil started infliting knife blows on the person of A
