The burden of proving the case within the exceptions of the Indian Penal Code lies on the accused, and the defense must establish its case by a preponderance of probabilities.

JUDGMENT - VISHNU SAHAI, J.:---Four persons namely Laxmibai Dnyanoba Salvi, Shobha Subhash Salvi, Balu Trimbak Uchale @ Jadhav and Subhash Dnyanoba Salvi were charged for the offences punishable under section 302 I.P.C., in the alternative under section 302 read with section 34 I.P.C., 323 I.P.C. in the alternative 323 read with section 34 I.P.C. and 504 read with section 34 I.P.C. by the Additional Sessions Judge. Pune in Sessions Case No. 8/1994. Through his judgment dated 27-8-1996, the learned Judge acquitted Balu Trimbak Uchale @ Jadhav for all the offences : acquitted Laxmibai Dnyanoba Salvi and Shobha Subhash Salvi for the offences punishable under sections 323 and 302 I.P.C. ; and acquitted Subhash Dnyanoba Salvi for the offence punishable under sections 323 and 504 read with section 34 I.P.C. He however, convicted Laxmibai Dnyanoba Salvi and Shobha Subhash Salvi for the offence under section 504 I.P.C. and sentenced them to S.I., till rising of the Court and to pay a fine of Rs. 100/each in default to suffer 5 days R.I. and Subhash Dnyanoba Salvi for the offence under section 302 I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 10,000/- in default to suffer R.I. for two years.

The appellant-Subhash Salvi has impugned the said conviction and sentence by preferring the present appeal.

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

The appellant- Subhash Dnyanoba Salvi is the son of Laxmibai Salvi and the husband of Shobha Salvi. It appears from the evidence that Balu Trimbak Uchale is his associate. Subhash Salvi and the said three persons were neighbours of the informant- Sukhdeo Chavan P.W. 1, his wife Rangubai Chavan P.W. 2 and their neighbours Ahilyabai Salvi P.W. 3 and Dhondiba Salvi P.W. 2. At the time of the incident all of them resided in village Kanhur- Mesai within the limits of police station Talegaon Dhamdere in District Pune.

On 1-6-1991 at about 7.30 p.m. someone threw broken glass bottles near the house of Ahilyabai P.W. 3 who lived at a distance of about 50 feet from the house of Sukhdeo Chavan P.W. 1. Irked by this, Ahilyabai started hurling abuses, whereupon the appellant-Subhash Salvi and his mother Laxmibai Salvi came and returned the abuses. Sukhdeo Chavan too came and told the appellant that since Ahilyabai was a woman, he should not abuse her, whereupon the appellant told him that he should not interfere. Balu Uchale came there and pacified the appellant. Thereafter, the three of them left.

Same day, at about 10.45 p.m. when the informant-Sukhdeo Chavan and his son Balu Chavan were on the ota (raised platform) of their house and Sukhdeo Chavan's wife Rangubai Chavan was cleaning the utensils, Laxmibai Salvi and Shobha Salvi came in the Court- yard of Sukhdeo Chavan and started abusing Rangubai. Thereafter, the appellant- Subhash Salvi and the acquitted accused Balu Uchale also came there. Balu caught hold of Sukhdeo Chavan and asked the appellant to assault his son Balu Chavan whereupon the appellant assaulted Balu Chavan with a sword on his neck resulting in his falling down. In the meantime, Rangubai came and caught hold of the sword which appellant Subhash was holding. The appellant kicked Rangubai on her knee as a result of which she left the sword which she was holding. Thereafter, the appellant and others ran away. Ahilyabai Salvi P.W. 3, Dhondiba Salvi P.W. 5, Hira Salvi, Maruti Salvi and Talvale Sir also reached the place of the incident.

Talvale Sir arranged for a truck and carried Balu Chavan, who was in a precariously injured condition and Sukhdeo Chavan on the same to the dispensary of Dr. J.A. Borade P.W. 7 in Pabal Taluka Shirur which they reached on 2-6-1991 at 12.30 a.m. Dr. Borade examined Balu Chavan in the truck itself and found that he had received a bleeding injury on his neck and finding his condition to be precarious, advised that Balu Chavan be taken to Primary Health Centre, Talegaon Dhamdhere.

On the advice of Dr. Borade, Sukhdeo Chavan

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