ORDER
Vishnu Sahai, J.
1. By this appeal, the appellants have assailed the judgment and order dated 27-9-1990, passed by the II Additional Sessions Judge, Nasik, in Sessions trial No. 2/90, convicting and sentencing each of them to undergo 3 years R.I. and pay a fine of Rs. 1,000/- in default to suffer R.I. for 6 months, for an offence under section 304 Part II r/w 34 I.PC.
2. In short, the prosecution case is that the two appellants, the deceased Bhagwat and Vasant were real brothers. The evidence is that the appellants and Bhagwat, used’ to live in contiguous huts in village Panchale, Taluka Sinnar, District Nasik. The three of them used to take water from a common well, by turns. On the date of the incident, i.e. 8-9-1989, it was the turn of Bhagwat to take water.
Same morning at about 7 a.m. Bhagwat and his bataidar Jairam P.W. 4 went to the common well to take water. At that time, appellant Ramnath and his wife, Vimal were removing the leather of foot-valve, from the electric motor, which was installed at the well. Bhagwat asked them not to do so and said that he would pay whatever amount is due. On that the appellant Ramnath and Vimal said that they would not allow him to start the electric motor. Bhagwat asked Jairam to report the matter to Rangnath, his father. Thereafter, the two appellants are alleged to have launched an assault upon Bhagwat with iron bars. At that time, Vimal and Kantabai (wife of appellant-Laxman) were catching hold of Bhagwat. On seeing this, Bhagwat’s wife Shantabai, P.W. 1, who was in the hut situated nearby, reached to the spot. She was caught by Vimal and assaulted by the two appellants with iron bars. In the meantime, Rangnath had come on the spot. He sent for a jeep and on the same, Bhagwat was taken to Police Station Wavi.
3. The evidence of Head Constable Vishnu Ahirrao, P.W. 5, is that same day at 11.25 a.m. Rangnath along with some others, came in a jeep at Police Station, Wavi. Valu Thorat, P.W. 2 who was accompanying Rangnath gave information that Bhagwat’s brothers alongwith their wives had assaulted him. Consequently, Head Constable Ahirrao, made an entry in the station diary and since the condition of Bhagwat was precarious, sent him for medical examination.
4. The evidence is that the same day at 11.30 a.m. Bhagwat was brought with police yadi for medical examination to Municipal Hospital Sinnar. At the said hospital, Dr. Sonavane, P.W. 6 on examining found him to be dead.
The same day between 2.00 to 3.30 p.m. Dr. Sonavane performed the autopsy on the corpse of Bhagwat, and found in all 16 injuries thereon. Out of them, 7 were lacerated wounds, one was a multiple contusion, two were contusions, four were described as fracture wounds, one was a punctured wound and one a abrasion. In the opinion of Dr. Sonavane, these injuries were caused within six hours and excepting the punctured wound, were attributable to a hard and blunt object. Dr. Sonavane, also found fracture of 4th and 5th ribs on the left side and laceration of upper lobe of left
lung. In the opinion of Dr. Sonavane, the deceased died on account of multiple fractures and laceration of left lung.
The injuries of Shantabai were examined by Dr. Sonavane, the same day at 12.25 p.m. He found on her person, one lacerated wound on left wrist 2 cm x 2 cm and one contusion on right middle forearm. They were caused within 12 hours, and were attributable to a hard blunt object.
5. Going backwards, the evidence of P.H.C. Ramesh Jadhav, P.W. 7 and Shantabai, P.W. 1 shows that as soon as Bhagwat was pronounced dead, at the Hospital, Shantabai came to Police Station, Sinnar and lodged her F.I.R. Exhibit 17. Thereafter, she went to Municipal Dispensary. Sinnar, where as mentioned above, she was medically examined at 12.25 p.m. This means that she lodged the F.I.R. sometimes between 11.30 a.m. and 12.25 p.m. on 8-9-1989.
6. The case was investigated in the usual manner. During the course of investigation, iron bars were recovered on the pointing out of the appellants. After completing the investigation, the appellants were charge-sheeted.
The case was committed to the Court of Sessions in due course. In the trial Court, the appellants were charged for an offence punishable under section 302 read with 34 I.P.C. to which, they pleaded not guilty and claimed to be tried. During the trial, in all the prosecution examined as many as nine witnesses. Two of them namely Shantabai P.W. 1 and Jairam, P.W. 4, were examined as eye-witnesses. Whereas Shantabai gave a full fledged account of the incident, Jairam described it to the stage where an altercation between the deceased Bhagwat and the appellants took place because thereafter, he went away to inform Rangnath, the father of Bhagwat and the appellants.
In defence, co-accused Vimal wife of appellant, Ramnath was examined.
The trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellants, in the manner stated above.
Hence, this appeal.
7. I have heard learned Counsel for the parties. I have also perused the evidence on record and the impugned judgment. I am satisfied that the appellants have been rightly convicted for an offence under section 304(2) r/w 34 I.P.C. However, in my view, their sentence deserves to be reduced.
8. I find that the involvement of the appellants, in the incident is established by the evidence of the injured eye-witness Shantabai, P.W. 1 the wife of the deceased Bhagwat. I find that her evidence inspires confidence and by itself is sufficient for sustaining the conviction of the appellants.
It is on the basis of the recitals contained in the examination-in-chief of Shantabai, that I have set out the prosecution case in para 2. I feel that no purpose would be served by repeating what I have mentioned in para 2. The manner of the incident, as described by her, is corroborated by the medical evidence both in respect of the injuries sustained by her and those found on the person of her husband Bhagwat, by the Autopsy Surgeon. The injuries of Shantabai and Bhagwat have been detailed by me in para 4. Shantabai has also given a very plausible reason as to why the incident took place, and the same has been referred by me in para 2. In my view, since Shantabai was the real sister-in-law of the appellants, she would not have deposed against them, had they not really assaulted her and her husband Bhagwat. It is significant to point out that although Shantabai was subjected to a searching cross-examination but, nothing could be elicited therefrom which would impair her credibility.
Assurance is also lent to her testimony by the circumstance that the F.I.R. of the incident, was lodged by her very promptly. At about 11.30 a.m. on the date of the incident, her husband Bhagwat was pronounced dead at Municipal Dispensary, Sinnar and as mentioned in paragraph 5, the same day between 11.30 a.m. and 12.25 p.m. she lodged her F.I.R. at Police Station, Sinnar. In her F.I.R. she has mentioned the cause for the incident and the manner of assault made by the appellants.
9. Mr. R.S. Mohite, learned Counsel for the appellants urged that a counter report in respect of the same incident, which was earlier in point of time, was lodged by the appellant Laxman Thorat, the same day at 9.30 a.m. and in defence, Vimal Thorat, D.W. 1, wife of the appellant Ramnath Thorat, has been examined. He further urged that on the side of appellants, two persons namely Vimal Thorat, D.W. 1, wife of the appellant-Ramnath Thorat and appellant-Laxman Thorat sustained injuries which have not been explained by the prosecution. He urged that the circumstances show that Vimal Thorat and Laxman Thorat were first attacked and in self-defence, the appellants assaulted Bhagwat Thorat and his wife Shantabai.
9A. I regret that I do not find any merit in Mr. Mohite’s contention. It is true that a counter-report in respect of the same incident, earlier in point of time, was lodged by Laxman Thorat but a perusal of the same, shows that in it, there is an omnious silence about the injuries received by Bhagwat Thorat and his wife Shantabai. Again, the same is the position as regards the statement of Vimal Thorat, D.W. 1.
I may also mention that in their statements under section 313 Cr.P.C. both the appellants have pleaded denial. They have not stated that in self-defence, they assaulted Bhagwat and Shantabai.
For the aforesaid reasons, I am not inclined to accept the submission of Mr. Mohite that the appellants may have assaulted Bhagwat and Shantabai in exercise of right of private defence of person.
9B. It is true that Vimal Thorat and appellant Laxman Thorat sustained some injuries which were examined on the date of the incident itself by Dr. Sonavane, P.W. 6.
Dr. Sonavane found one contused abrasion on left wrist of Vimal which was 1 cm x 1 cm. He also found that, she was complaining of pain in left iliac and left parietal region.
On the person of Laxman Thorat, Dr. Sonavane found one contused abrasion, two contusions and haemorrhage, in both the eyes. He stated that the contused abrasion, was possible due to fall on ground and haemorrhage in both the eyes, on account of dust.
A perusal of the injuries of Vimal and Laxman, would show that they were minor and superficial. It is well-settled that where the injuries sustained on the side of defence are minor or superficial in nature, as is the case here, the prosecution is under no obligation to explain them.
9C. For the said reasons, I reject the contention of Mr. Mohite canvassed in respect of non-explanation of injuries of Vimal and Laxman.
10. Even assuming for argument’s sake that Vimal and Laxman, were first assaulted by the deceased Bhagwat and thereafter, in self-defence, they assaulted Bhagwat, they would still be liable for the offence punishable under section 304(2) r/w 34 I.P.C. because, the injuries sustained by them would not give them the right to cause Bhagwat’s death under section 100 I.P.C. but, only entitle them to cause him harm short of death as provided by section 101 I.P.C. The enormous disparity between the injuries suffered by
them and the injuries inflicted on Bhagwat, shows that the right of private defence of person, has been blatantly exceeded. A perusal of the post-mortem report of the deceased Bhagwat shows that in all he sustained sixteen injuries. Out of them, injuries Nos. 3 and 4 comprised of multiple contusions. Six of them were grievous in nature, resulting in :—
(1) Fracture of left middle 1/3 tibia and fibula
(2) Fracture of left torsal bone.
(3) Fracture of right wrist.
(4) Fracture of right thumb.
(5) Fracture of 4th and 5th ribs on left side.
(6) Laceration of upper lobe of the left lung.
Section 99 I.P.C., clearly provides that the right of private defence of person, does not extend to causing more harm that what is necessary to defend one’s person. It should be borne in mind that the right of private defence is a preventive and not a punitive right. No one can kill a person tinder its cover.
11. Mr. Mohite, next urged that the ends of justice would be amply satisfied if the jail sentence of the appellants, is reduced to the period already undergone by them and a substantial fine which should be directed to be paid as compensation to Shantabai, the widow of the deceased, Bhagwat, be imposed on them. To fortify his submission, he brought to my notice the following circumstances :—
a) that the appellants on one side and the deceased and Shantabai on the other, are very closely related;
b) that the parties reside in the immediate neighbourhood of one another;
c) that there was no background of any illwill between the parties and on the spur of moment, the incident took place;
d) Excepting injuries inflicted on left side of chest, all other injuries found on the person of the deceased, were distributed between hands and legs; and
e) the appellants have been in jail for over five months.
12. Ordinarily, in a case wherein the appellants have been convicted for an offence under section 304(2) I.P.C., there was no question of reducing their sentence to the period already undergone by them, which works out in this case to barely five months but, in view of the extraordinary circumstances pointed out by Mr. Mohite, I am acceeding to his contention.
13. The question is what should be the quantum of fine which should be imposed on the appellants. In my view, it should be such that with its interest Shantabai, the widow of the deceased, is at least able to modestly sustain herself. Bearing this in mind, I feel that the ends of justice would be squarely satisfied if each of the appellants is directed to pay a fine of Rs. 40,000/-.
14. In the result, this appeal stands partly allowed and partly dismissed. Although, I confirm the conviction of the appellants for the offence under section 304(2) r/w 34 I.P.C., as also the sentence of fine imposed on them on the said count, but I reduce their jail sentence to the period already undergone by them provided each of them deposits a fine of Rs. 40,000/- within 9 months (nine months) from today, in the trial Court, failing which, the defaulting appellant/appellants, as the case may be, would undergo a sentence of 2 1/2 years R.I. As soon as the fine is deposited, the trial Court shall inform Shantabai Bhagwat Thorat, P.W. 1 and shall pay the whole amount to her
as compensation. In case she is not alive, the said compensation shall be paid to her legal heir/heirs, as the case may be, who shall be informed by the trial Court.
In case the appellant/appellants, as the case may be, fail to deposit the fine within the stipulated time, the defaulting appellant/appellants, as the case may be, would undergo a sentence of 2 1/2 years R.I.
The trial Court shall accept the fine on production of a certified copy of my judgment, which in case an application is made, shall be issued within 3 months.
15. Appeal partly allowed.