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2003 (1) Crimes 617
Bombay High Court
P.V. Kakade, J.
Sayyad Magdum Janny & Two Ors.—Appellants
versus
State —Respondent
Criminal Appeal No. 13 of 2000
Decided on 20-12-2002
For the Appellants :Mr. S.G. Dessai, Sr. Advocate and Mr. Arun B. de Sa & Mr. Shivam S. Dessai, Advocates.
For the Respondent: Ms. Winnie Coutinho, Addl. PP.
Important Point
Defence is entitled to propagate theory of right of private defence though it is not taken at the stage of trial but to raise this theory there must be cogent circumstantial evidence apparent from record to prima facie hold so.
Headnote:(i) Indian Penal Code, 1860 — Section 304 Part I and Sections 34 and 323/34 — Appellants assaulted deceased and prosecution witnesses PW 1 and PW 2 with iron rode and iron rake—Appeal against conviction — Presence of PW 1 and PW 2 on spot found acceptable as both were injured in same incident—Their evidence corroborated by testimony of PW 7 — Though doctor did not specifically say that injury suffered by deceased was likely to cause death or injury inflicted was sufficient in ordinary course of nature to cause death but evidence was sufficient to show that cumulative effect of injuries was sufficient in ordinary course of nature to cause death — Nothing on record to support defence plea of right of private defence — Conviction called for no interference. (Paras 7 to 9 & 11)
(ii) Indian Penal Code, 1860 — Section 96—Appellants convicted under Section 304 Part I IPC — Appeal — Plea of private defence though not taken during trial — Defence would be entitled to pro-pagate theory of right of private defence but there must be cogent circumstantial evidence apparent from record. (Para 10)
Result: Appeal dismissed.
Judgment
P.V. Kakade, J.— The Appellants/Accused have preferred this Appeal against the Judgment and the Order passed by the Additional Sessions Judge, Margao, in Sessions Case No.
19 of 1997 holding them guilty of commission of the offences punishable under Section 304 (Clause I) read with Section 34 of the Indian Penal Code and Section 323 read with Section 34 of the Indian Penal Code and sentencing them to Rigorous Imprisonment for five years and to pay fine of Rs. 2,000/-, in default, to undergo Simple Imprison-ment for a period of three months, for the earlier offence; and to Rigorous Imprisonment for six months for the latter count of the offence. Both the substantive sentences were directed to run concurrently.
2. The facts giving rise to the case, in a nutshell, are thus :
One Sayyad Raja (P.W. 2) had advanced a sum of Rs. 8,000/- to accu-sed No. 1 in November 1996. On 31-3-1997, at about 9.30 p.m. the said Sayyad Raja and his wife gone on their two-wheeler to STD booth to phone some relatives and, at that time, accu-sed No. 1 was sitting in that booth. Sayyad Raja (P.W. 2) demanded his money of Rs. 8,000/- from the accused No. 1, but the accused No. 1 refused to pay and there was some hot exchange of words and during that time the accused No. 1 also gave threats to P.W. 2 Sayyad Raja and there was also a scuffle between them. Thereafter, at about 9.45 p.m. P.W. 2 Sayyad Raja and his wife returned to their home and wife got down and P.W. 2 came back to Arlem, Raia, near the saw mill at the house of his brother Sayyad Kassim, the decea-sed, at about 10.00 p.m. P.W. 2 collected his brother Sayyad Kassim and Kassim’s brother-in-law Rajab Ali Shaikh (P.W. 1) and all of them procee-ded towards Kavate, Raia Manora at the house of Sayyad Raja (P.W. 2) for dinner. The scooter was being driven by P.W. 1 Rajab Ali Shaikh. At about 10.10 p.m. they reached the house of accused No. 1 which was on their way and P.W 2 told Rajab Ali Shaikh to stop the two-wheeler so that he wanted to demand his money from the accused No. 1. P.W 1 stopped the scooty by the side of the road and P.W. 2 along with his brother Sayyad Kassim got down. At that time, all the accused persons with common intention assaulted Shaikh Kassim (the deceased), P.W. 2 Sayyad Raja and Rajab Ali Shaikh (P.W. 1). P.W. 1 ran away from the scene and came to Arlem, collected his scooter from one Saife Sayyad and went to Police Station and then came back to the scene. In the meantime, Sayyad Kassim was thrown in a gutter and the accused persons had left the scene. The son of the owner of the house in which the accused No. 1 was siting lifted Sayyad Kassim from the gutter and put him on the road. Sayyad Kassim had died.
3. Thereupon, P.W. 1 Rajab Ali Shaikh lodged complaint on 1-4-1997 at about midnight which was recorded by P.I. Rohidas Patre (P.W. 11). The offence was registered under Section 302 read with Section 34 of the Indian Penal Code at 0.10 hours. It was followed by panchanama of the scene of the inci-dent. One metal pipe and one iron rake with blood stains were also found at the scene of offence and were also seized by the police under panchanama. Photo-graphs were taken of the scene of the offence. P.W. 11 arrested accused No. 1 on 1-4-1997. Inquest panchanama was drawn by P.W. 11 on that very day in the presence of the panch witness. The injured P.W. 1 Rajab Ali Shaikh was examined by P.W. 3 Dr. Martina Fernandes at 11.55 p.m. on 31-3-1997 and P.W. 2 was examined at about 1.25 a.m. on 1-4-1997. The Medical Officer issued certificates accordingly. The dead body of Sayyad Kassim was sent for post-mortem examination which was performed by Dr. Avinash Pujari on 1-4-1997 in the afternoon. The accused No. 2 came to be arrested on 3-4-1997 and the accused No. 3 was arrested on the next day. Statements of witnesses came to be recorded between 1-4-1997 and 14-4-1997. The seized articles as well as samples of blood etc. were sent for chemical analysis and the report o
