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CASE NO.: Appeal (crl.)  615 of 2004

PETITIONER: DATTU SHAMRAO VALAKE & ANR.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 15/04/2005

BENCH: P. VENKATARAMA REDDI & P.P. NAOLEKAR

JUDGMENT: JUDGMENT

P. VENKATARAMA REDDI, J.

Four persons including the two appellants herein faced  the charges under Sections 302/34, 307/34 and Section 326  IPC and also under Section 25(1)(b) and Section 30 of the  Arms Act for the fatal assault with deadly weapons on the  two deceased persons namely Bajirao and Krishna (also  referred to as ’Kishan’ by some witnesses) on the forenoon  of  18.8.1984 in the village of Walkewadi. On trial, the  Additional Sessions Judge, Kolhapur convicted accused Nos.  1 to 4 under Section 302 read with Section 34. Accused Nos.  1 & 2 were alternatively convicted under Section 302 IPC  individually. Accused Nos. 1 & 2 were also convicted for the  offence under Section 25(1)(b) and Section 30 of the Arms  Act respectively. A4 was also convicted under Section 324  IPC. Accused Nos. 1 to 4 were, however, acquitted of the  offence under Section 307 IPC. All the accused were  sentenced to life imprisonment. On appeal, the High Court acquitted the accused Nos. 1  to 4 for the offences under Section 302 read with Section 34  and the High Court convicted the appellant No.2 (A-3)\027 Tanaji Shamrao Valake under Section 302 IPC and the  appellant No.1(A-1)\027Dattu Shamrao Valake under Section  304 Part I IPC and sentenced them to life imprisonment and  rigorous imprisonment for a period of 10 years respectively.  The conviction of accused No.1 (appellant No.1) under  Section 25(1)(a) of the Arms Act was maintained. The fourth  accused’s conviction Under Section 324 was upheld.  Aggrieved by their conviction and sentence, the two  appellants who are accused Nos. 1 & 3 have filed the  present appeal against the judgment of the High Court of  Bombay. The case of the prosecution is as follows:- The deceased and the accused belonged to nearby  villages, namely Varakatwadi and Walkewadi respectively.  There was a quarrel on the intervening night of 18th/19th of  August, 1984 in connection with the grazing of cattle of  accused No.1 on the pasture land situate at the adjacent  village Awali said to be in the possession of the deceased  and his sons. In the course of scuffle, it is alleged that the  accused No.1 was assaulted by Ananda, the brother of PW10  with a stick. PW10 drove away the cattle. On the very next  day at about 10 a.m. the two deceased persons, namely  Krishna and his son Bajirao along with PW10 and his brother  Ananda and the ladies (Suseela-PW7 and Kamal-PW8) went  to the village Walkewadi for the purpose of carrying on

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weeding operations in the land belonging to PW6\027Akkatai  who is the daughter of the deceased Krishna and the sister  of deceased Bajirao. They were armed with axe and      sticks. When they came near the house of one Hindurao  Valake, which is close to the house of the accused, the  accused armed with gun, axes and sticks attacked the  prosecution party. The accused No.1 was having a double- barrel gun which he fired in the air in the first instance.  When he was aiming the gun at Ananda, his brother (PW10)  gave a hit on the gun with a stick under the impact of which  the gun fell down and there was accidental shot which,  however, did not injure anybody. Then, accused No.3  inflicted injuries with axe on the head and neck of Bajirao as  a result of which he fell down and succumbed to the injuries  after a gap of about a month. It is alleged that after Bajirao  fell down, the second appellant i.e. accused No.1 took out  the axe which Bajirao was having and then attacked Krishna  and as a result of the injuries caused to him, Krishna died  the next day in the hospital. Accused No.2 is alleged to have  given a stick blow on the head and the back of PW10. As  regards accused No.4, it is alleged that he was about to  attack PW1 with axe and when PW10 raised his right hand to  ward off the attack, the injury was caused to his index  finger. There were three head injuries on the deceased Bajirao  which are attributed to the attack by accused No.3. These  injuries were inflicted on the left parietal region causing the  fracture of skull bone and the brain matter protruding out.  The deceased Krishna had two injuries\027one incised wound  on the nape of neck 4" x 2" x 1=", spine deep exposing the  bleeding spine and the second incised wound was on the left  parietal region, scalp deep. The first wound, according to the  opinion of the Medical Officer, was the fatal wound. The accused too did suffer injuries as noted by the High  Court in paragraph 9. The details of such injuries are as  follows: (1)     Accused No.2\027Shamrao, had suffered incised wound  obliquely on the right parietal region of his head, 2"  x <", contusion 1" x 1" over left wrist and multiple  abrasion over the right scapula region. (2)     Accused No.1\027Dattu Shamrao, had suffered  contusion over left forearm, 2"x1" reddish in colour. (3)     Accused No.3\027Tanaji had suffered contusion 8"x1"  over chest from mid sternum extending obliquely to  left anterior axillary line (which injury according to  the Doctor could be caused by the motor cycle chain)  and two other contusions over left deltoid region  (2"x1") and left inguinal region (3"x1"). Four others (other than the accused) were also injured. PW12\027Head Constable of Lakshmipuri police station  was on duty in CPR hospital, Kolhapur on the date of the  incident. Having come to know that three injured persons  were admitted in the hospital, at about 3.00 p.m., he went   and saw the patients namely Krishna, Bajirao and Sambaji in  the ward and he recorded the statement of Sambaji\027PW10  who was able to speak. The first information based on the  said statement was recorded and the case was transferred  to Kodoli police station which had jurisdiction over the place  of offence. Initially some investigation was done by the Head  Constable of Kodoli P.S.\027PW14 who went to the village and  drew up the panchnama of the scene of occurrence. PW17\027 the Sub-Inspector incharge of Kodoli police station,  continued the investigation from 20.8.1984 onwards. He  seized the gun and axe from the houses of the accused and  recorded the statements of the witnesses and after

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investigation filed charge-sheet on 31.12.1984. While so, on  the date of the incident itself, the second accused Shamrao  lodged a complaint with Kodoli police station alleging that he  and other accused were assaulted by the two deceased\027 PW10 and his brother with axes, sticks and cycle chain. After  investigation by PW 17, a charge-sheet was filed implicating  PW10 and his brother Ananda for the offence under Section  307 IPC. That case was also tried along with the present  case and by the judgment of the same date, the learned  Sessions Judge acquitted them of the charges. At the time of examination under Section 313 Cr.P.C.,  the appellants filed a written statement in which they took  the plea of private defence. While admitting the incident,  they stated that the deceased Krishna and his three sons  entered the house of the accused armed with axe, cycle  chain and stick and one of them (Ananda) assaulted Tanaji\027 A3 with the cycle chain as a result of which he fell down and  became unconscious. Then the prosecution party started  beating the other accused. Accused No.1 therefore went  inside and brought a gun and fired two shots in the air with  the idea of scaring them away. However, the prosecution  party continued to beat the accused and cause injuries to  them. The names of seven persons including the three  accused were mentioned as the recipients of injuries. They  denied the presence of lady witnesses\027PWs 6, 7 & 8 at the  scene of occurrence. They referred to the complaint filed by  them against the prosecution party.  The High Court was of the view that the evidence on  record probablised the plea of private defence taken by the  accused. The High Court found substance in the contention  of the accused that the deceased and their associates were  the aggressors. At the same time, as far as the third  accused\027second appellant is concerned, the High Court felt  that there was really no justification for causing three  injuries with a deadly weapon because by the time he  mounted the attack, the threat from the side of the  deceased and his companions had abated and moreover, by  the very first injury, the deceased would have been  incapacitated. The High Court was therefore of the view that  A3 intended to cause more harm than was necessary for the  purpose of self defence. The High Court therefore convicted  the second appellant (A3) for the offence under Section 302  IPC for his individual act of fatally attacking Bajirao. As  regards the 1st appellant, the High Court gave the benefit of  Exception 3 to Section 300 and convicted him for the offence  under Section 304 Part I and sentenced him to ten years  rigorous imprisonment. Accused Nos. 2 & 4 were acquitted by the High Court  on the ground that they did not play active part, that the  injury alleged to have been caused by accused No.2 was not  proved by medical evidence and that accused No.4 arrived  at the scene of offence much later as per the version in the  FIR. In spite of the finding that the right of private defence  was available to the accused and that the accused No.4  entered the scene later on, curiously the High Court upheld  his conviction under Section 324 for causing the injury to  PW10. However, that is not the subject matter of the  present appeal. There were five eye-witnesses to the offence. The first  one is PW6\027Akkatai (daughter of the deceased Krishna)  whose name was referred to in the F.I.R. itself. The other  eye-witnesses are PW7\027daughter-in-law of the deceased  Krishna, PW10\027his son, PW8\027the wife of deceased Bajirao  and PW9\027one Shivaram. None of them explained as to how  the accused received injuries. The trial Court expressed

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doubt regarding the presence of PW8. In our view, the view taken by the High Court on the  aspect of self-defence is not a reasonably possible view. We  do not think that the evidence on record justifies the  inference that the appellants acted in self-defence. Three  reasons weighed with the High Court in giving credence to  the plea of private defence. The following passage at para  10 of the judgment summarizes these reasons. "\005In our view, the material mentioned above  thus lends support to the defence contention that  the complainants party had also come armed with  the weapons such as axe, motor cycle chain and  sticks. Material further indicates that the  complainants party were also abusing the  accused persons. The aforesaid facts coupled with  the fact that three of the accused alongwith four  other from their party did in fact suffer injuries,  which are not explained by the prosecution  witnesses in our view, indicates that the  complainants party had come prepared for  aggression and did commit overt acts against the  accused and others. \005"

Then, the High Court examined the overt acts  committed by the appellants and held that the         appellant No.2\027Tanaji intended to cause more harm than  necessary for the purpose of self-defence and therefore the  Exception 3 cannot come into play in his case. However, the  Exception was applied to the case of first appellant and he  was convicted under Section 304 Part I. On a scrutiny of the  evidence on record and the clear finding of the trial court in  regard to the scene of offence, we are of the view that the  High Court was not justified in reaching the conclusion that  the accused had the right of private defence against the  deceased and their companions who, according to the High  Court, were the aggressors. In this context, we remind  ourselves of the case set up by the accused in their police  report and in their written statement in response to Section  313 examination according to which the deceased Krishna  and his three sons entered the house of the accused armed  with axe etc., challenged the accused to come out and  attacked one of them (2nd appellant) with cycle chain and at  that juncture A1 brought gun and fired in the air. Yet,  according to the accused, the attack continued. However,  this version cannot be true as the evidence unmistakably  reveals that the incident did not happen within the premises  of the accused or even in front of it. The incident happened  in the lane in front of the house of one Hindurao Walake. It  may be that the place of occurrence is not too far from the  house of the accused but the fact remains that the incident  took place in a public street outside the houses of the  accused. The houses of the accused are towards the east of  the place of offence separated by two or three houses. The  trial Court discussed this aspect in detail. The learned  Sessions Judge referred to the map (Ext. 53), the scene of  offence (Ext. 21), the evidence of panch witness\027Vasant  Sawant (Ext. 20), the lack of blood-stains at the alleged  place of incident pointed out by Tutala Bai\027the wife of A2 to  the I.O., the presence of blood on the earth recovered from  the actual spot and the evidence of I.O. The trial Court  concluded as follows: "Thus it is clear that as the place of offence is  near the house of Hindurao Walake, it falsifies the  version of the accused that the incident took  place in front of their house as contended by

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them in their written statement under Section  313 Cr.P.C."

It was also observed:

"The version given by the prosecution and the  complainant that on the date of incident at about  10 a.m. they were going to the land of Mali  (owned by Akkatai) appears to be most natural  and probable".

This finding of the trial Court based on thorough  analysis of the evidence has not been upset by the High  Court. Yet, the High Court came to the conclusion that the  members of the prosecution party were aggressors. At least,  two reasons that were taken into account by the High Court  in reaching the conclusion cannot be sustained. There is no  evidence to show that PW10 was carrying the motor cycle  chain. The suggestion put to him was denied. PW9 denied  having made the statement before the police that PW10 was  carrying cycle chain and the axe. So also he denied having  made the statement that the deceased Krishna and his three  sons were hurling abuses in loud tone against the accused  for the previous night’s assault on A1. The High Court made  use of the statements under Section 161 Cr.P.C. to record  its findings on these two aspects. It may be that PW9 is an  untruthful witness but the omissions and contradictions  cannot be treated as evidence of the alleged facts. There is  every possibility that the offensive article like cycle chain  could have been picked upon the spot by a member of the  prosecution party. As regards the injuries on the accused, we shall advert  to that aspect a little later. The learned counsel for the appellant tried to  supplement the reasons given by the High Court by  contending that in the background of the previous night’s  incident, the prosecution party would have thought of  retaliation, as otherwise there was no acceptable reason for  the deceased and their family members coming to the  village of the accused on the very next day. It is commented  that the explanation of PW6\027Akkatai that they came to the  village in order to attend to weeding operations in her lands  is highly improbable. Attention is drawn to her statement  that there was no ’special reason’ for requesting her parents  to attend to the work on her fields. We find it difficult to  accept this contention. We have already extracted the  finding of the trial Court and we agree with the trial Court  that there is nothing unnatural or improbable in the version  given by PW6. Too much cannot be read into the statement  of PW6 that there was no ’special reason’. The omission to  spell out ’special reason’ for requesting her parents and  brothers to help her in agricultural operations is no ground  to disbelieve her evidence, especially in view of the evidence  on record that her kith and kin from the parents’ side were  looking after some of her lands in view of the mental  incapacity of her husband. Moreover, the fact that the lady  members of the family were accompanying them coupled  with the fact that there were only three able-bodied males  in the prosecution party (Krishna being a very old man) and  the further fact that the weapons they were carrying (axe  and sticks) were such as are ordinarily carried in villages  while going to fields, would probablize the fact that that  their arrival in the village of Walkewadi was for some reason  other than initiating a fight against the accused. The learned  counsel for the appellant repeatedly stressed that the

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incident was only of a short duration\0272 or 3 minutes  according to PW8. But it has no bearing on the question  whether the members of the prosecution party were the  aggressors. For the aforesaid reasons, we discard the plea of self- defence advanced by the accused which has been accepted  by the High Court without evidentiary basis and without  considering the clear finding of the trial Court in regard to  the scene of offence. The High Court’s finding on the aspect  of private defence almost borders on perversity and cannot  be sustained. What remains is the fact that the injuries were caused  to some of the accused which remained unexplained.  Whereas the accused No.1 received a minor injury viz.,  contusion over left fore arm 2"x1", the injuries received by  accused Nos. 2 & 3, though simple, are fairly severe.  Accused No.2 had received an axe injury and accused No.3  had received an injury with some other dangerous object  such as cycle chain. One person by name Sadashiv suffered  a lacerated wound over occipital region, scalp deep with a  fracture of skull. According to the appellants, he was their  associate. He was examined by the Medical Officer\027PW5.   There was no explanation for these injuries received by the  accused and some others in the course of the same incident.  In fact, the incident as such has not been denied by either  of the parties. It is not possible to say with reasonable  certainty as to which party provoked the other and how the  fight was initiated. In the circumstances, a reasonable  inference based on a high degree of probability could be  drawn that there was a sudden quarrel and free fight  between the parties. The attack by the appellants on the  prosecution party in the course of this fight cannot be said  to be a premeditated affair. It is not the prosecution case  that the accused anticipated the arrival of the prosecution  party and they were lying in wait to cause harm to the  deceased. Though A1 had a fire arm, he did not use it  against the deceased. He fired a shot or two in the air. After  that there is nothing to show that he tried to reload and use  it against the deceased. In fact initially only one accused  was having an axe. It is only later on that the accused No.4  is alleged to have joined the fight armed with an axe which  is also indicative of the fact that there was no pre-concert  amongst the accused to attack the members of the  prosecution party. Though he is alleged to have attacked  PW10 with an axe, no severe injury was inflicted on PW10.  Above all, the incident was of a short duration and the  accused fled from the scene immediately after the fight.  These events could probablize the fact that there was no  premeditation and the attack was in the course of free   fight. There is therefore a case to apply Exception 4 to  Section 300 provided the ingredients of the last clause, that  is to say, "without the offender having taken undue  advantage or acted in a cruel or unusual manner" are  satisfied. There is no difficulty in holding that the offenders  have not taken undue advantage of the situation. Both  parties, who were armed, engaged themselves in a fight and  both inflicted injuries against the other. The only doubt that arises is whether A3, in causing  three axe injuries to the deceased Bajirao, acted in a cruel  manner? In examining this point, we have to take note of  the fact that A3 (2nd appellant), in spite of having an axe  with him, had suffered quite a severe injury viz., contusion  of 8"x1" over chest which could have been caused,  according to the Doctor, by an object like cycle chain. It is  not possible to say at what stage A3 had received such

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injury. At any rate, there was no clarification bearing on this  aspect from the prosecution side. The deceased Bajirao was  wielding an axe. The 2nd appellant, probably already injured,  might have become apprehensive that he would be attacked  by Bajirao with the axe. Though three injuries were noted,  they are all on the left parietal region causing the fracture of  skull bone. Looking at the nature of injuries, it is quite  possible to say that all the injuries would have been caused  by one or two axe blows, but not necessarily three. In fact,  PW6 states in cross examination that she had seen one axe  blow being given by accused No.3 on the neck of Bajirao. No  doubt he had used excessive force against Bajirao by  causing injury with the axe on a vital part, may be more  than once. However, taking an overall picture, we cannot  say beyond doubt that the 2nd appellant acted in a cruel or  atrocious manner by attacking the deceased with the axe  once or twice. We are therefore not inclined to deprive the  2nd appellant of the benefit of Exception No.4. At the same  time, we are of the view that it would be appropriate to  convict him under Part I of Section 304 IPC because having  regard to the gravity of the injuries caused with a dangerous  weapon, each one of which was fatal, the 2nd appellant must  be imputed with the intention to cause such bodily injury as  was likely to cause death, if not the intention of causing  death. Accordingly we convict the 3rd accused\027appellant  No.2 under Section 304 Part I and we are of the view that in  the circumstances, a sentence of eight years R.I. and fine of  Rs.1,000/- would be sufficient. In default of payment of fine,  appellant No.2 will suffer imprisonment for four months. The case of the accused No.1\0271st appellant,  undoubtedly falls under Section 304 Part II. As noticed  supra, A1, although having fire arm, did not shoot the  deceased or any other member of the prosecution party.  Other than the gun, he was not having any weapon in his  hand. Instantaneously he picked up the axe that was in the  hands of the injured\027Bajirao and dealt a blow with that axe  on the neck of the deceased Krishna. Though another injury  was found on the left parietal region, according to the  Doctor\027PW5, it was injury No.1 that was serious. Krishna  who, according to postmortem report, was aged about 75  years, succumbed to the injury the following day. It is  reasonable to infer, from the conduct of the 1st appellant  and the manner of attack on an old person, that the  appellant No.1, by causing the injury with axe on the neck  of the deceased Krishna, was having knowledge that the  said act was likely to cause death; but, he had no intention  to cause death or such bodily injury as was likely to cause  death. We therefore find the 1st appellant\027A1 guilty under  Section 304 Part II. As regards sentence, we feel that  having regard to the facts and circumstances of the case,  five years of imprisonment and fine of Rs.1,000/- will be  adequate and proper. Accordingly, he is convicted and  sentenced. In default of payment of fine, he will suffer  further imprisonment of four months. The appellants will of  course be given the benefit of set off of the period of  detention already undergone. Accordingly, the judgment of the High Court is  modified and the appeal is partly allowed.