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HIGH COURT OF BOMBAY
Coram : R. M. S. KHANDEPARKAR, R. S. MOHITE
CRIMINAL APPEAL 16 Of 1993
Decided on : AUGUST 3, 2004
RAMESH GAJADHAR TIWARI
Versus
STATE
Evidence Act, 1872 - Section 3 - Appreciation of evidence - Single blow of knife - Death after 3-4 days - Trial Court while partly disbelieving prosecution version and partly believing prosecution witness acquitted accused Nos. 2 and 3 convicted accused No. 1. - Held, in present case evidence of eye-witnesses and of medical evidence, cannot be disbelieved. Version of witnesses partly disbelieved by trial Court while acquitting accused Nos. 2 and 3. On plain reading of story given by eye-witnesses, it is cleat that offence took place on the spur of moment. No premeditation in sense that entire incident was not preplanned. It is nobody’s case that there was any conspiracy between the accused. Case under Section 304, Part II of IPC.
[Indian] Penal Code, 1860 - Sections 99 and 304 Part II - Right of private defence - Co-accused suffered bleeding injury on head - Whether any right of private defence to co-accused and as to whether accused have any right to defend his brother co-accused. - Held, in this case deceased was aggressor who pulled down rafter from roof of house of co-accused, possibility of deceased causing a blow by said rafter on head of co-accused cannot be ruled out and seems to be more probable than co-accused suffering injury while entering door of his own house. It cannot be lost sight of that while proving its defence, burden is lighter and it would be sufficient if defence is proved beyond preponderance of possibility. It is difficult and improper to completely exclude possibility of deceased causing a bleeding injury on head of co-accused. It was contended that once deceased has al ready been overpowered by a blow given by co-accused on his head, no right of self-defence could be said to accrue to accused. Accused has not repeated assault and there is only a single blow. Be that as it may even assuming that there was right accrued in his favour to defend body of his brother, even a single blow given with such force must be said to have been given with object of defending his brother’s body but also with intention to commit injury which was likely to cause death. It appears that he reached place of occurrence and immediately given one deadly blow on chest of deceased on seeing his brother bleeding from head. Case falls within exception of Section 300 (2). Accused clearly exceeded right of self-defence conferred upon him by law and has caused death of a person albeit without premeditation. In facts and circumstances of case, conviction would be for offence punishable under Section 304, Part II.
[Indian] Penal Code, 1860 - Sections 302, 34 and 304, Part II - Single blow of knife - Deceased dying during treatment - Trial Court partly disbelieving prosecution version and partly believing prosecution witness, acquitted co-accused and convicted accused. - Held, evidence of eye-witnesses and of medical evidence, cannot be disbelieved totally. Version of witnesses have partly disbelieved by trial Court while acquitting co-accused reading of story of eye-witnesses, it is clear that offence took place on the spur of moment. There was no premeditation incident was not preplanned. It is nobody’s case that there was any con spiracy between the accused. Case under Section 304, Part II of IPC.
( 1 ) THE appellant/original accused No. 1 (hereinafter referred to as "accused No. 1") has preferred this appeal against his conviction for the offence punishable under section 302 of the Indian Penal Code (hereinafter referred to as "the IPC") and the consequent sentence of imprisonment for life and payment of fine of Rs. 5,000. 00 in default to undergo R. I. for one year, imposed upon him by the 8th Addl. Sessions Judge, Pune vide the impugned judgment and order dated 2-12-1992 passed in sessions Case No. 268 of 1991.
( 2 ) ). The brief facts of the prosecution case are as under:-A. That the deceased Siddappa Koli was the real brother of PW-2 Siddamma Koli. He was residing along with PW-2 siddamma, father Narsappa, his wife Laxmi, younger sister Devamma and the daughter of Siddamma at Pandu laxman Vasti, situated at Yervada, Pune. The original accused No. 2 Jatashankar Tiwari was a person who had a house situated two houses away from the house of the deceased. The deceased Siddappa used to deal in the sale of maize on a handcart by moving through the lanes and roads. The incident in question occurred on 30-7-19s9. While taking his handcart for sale of maize, the deceased had to pass in front of the house of the original accused No. 2 Jatashankar. On earlier occasions whenever the deceased took his handcart from the front of the house of the original accused No. 2, a wooden rafter from the ceiling of the roof of the house of accused No. 2 Used to obstruct the tin roof of the handcart, thereby damaging the said roof of the handcart. The deceased Siddappa used to always tell the accused Jatashankar to remove the said wooden rafter but the accused Jatashankar used to turn a blind eye to his plea. On 30-7-1989, at about 1:30 noon, while the deceased Siddappa was taking his handcart, the same hit the protruding wooden rafter on the house of the accused jatashankar. This resulted in a quarrel between the deceased and Jatashankar. Somebody rushed to the house of the deceased and informed about the quarrel. PW-2 siddamma and Laxmi, the wife of the deceased rushed towards the spot. They found that the deceased was asking Jatashankar to remove the wooden rafter on the roof of his house and Jatashankar was refusing: to do so. During this quarrel, the deceased Siddappa told jatashankar that if he would not remove the rafter from the roof, he would personally remove the said rafter and by saying so, the deceased Siddappa removed the offending rafter on the roof of the house of Jatashankar, by his own hand. This resulted in a scuffle between the deceased and Jatashankar. PW-2 Siddamma and Laxmi who had rushed to the spot tried to separate the quarrel but she was pushed down by her own brother while making an attempt to rescue him. In the meanwhile, the original accused No. 3 Anantram Shukla came there and according to siddamma, assaulted her brother Siddappa on his head with the broken piece of the rafter which had been removed by the deceased Siddappa. Accused No. 1 then arrived at the spot and he gave a single stab blow with a knife on the right side of the chest of deceased siddappa. According to PW-2 Siddamma, after the inflicting of this stab injury all the accused ran away. Siddamma then rushed to the police chowky of Yervada and reported the incident to the police. Some persons removed Siddappa to Sassoon Hospital and where he was admitted. He died after 3-4 days. B. 11 appears that Siddamma was in a hurry to go to the hospital because her brother was injured and therefore her statement was not immediately reduced to writing. The police officer himself rushed to the spot of the incident. He left a police constable on the spot to guard the spot and rushed to the Sassoon Hospital where the deceased was admitted in a injured condition. He found that the deceased was unconscious and therefore he could not record his statement. He then recorded the fir (Exhibit-18) as narrated by Siddamma at the Sassoon hospital. On t
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