JUDGMENT
R.S. Mohite, J.
1. This is an Appeal against conviction filed by the appellants (here-in-after referred to as the accused) seeking to quash and set aside the Judgment and order passed by the Additional Sessions Judge, Kolhapur on 24.06.1987 in Sessions case No. 35 1985, by which accused Nos. 1 to 4 have been convicted for an offence under Section 302 read with Section 34 of Indian Penal Code and each of them is sentenced to suffer imprisonment of life. By the said Judgment and other, accused Nos. 1 & 3 have alternatively being convicted for an offence under Section 302 of Indian Penal Code, individually and each of them is sentenced to suffer life imprisonment. Accused No. 4 has been alternatively convicted for an offence under Section 324 of Indian Penal Code and has been sentenced to suffer RI for one year and to pay & fine of Rs. 100/-, in default to suffer further RI for 15 days. Accused No. 1 had also been convicted for an offence under Section 25(1)(a) of the Arms Act and sentenced to suffer RI for one month. accused No. 2 has further been convicted for an offence under Section 30 of the Arms Act and has been sentenced to suffer RI for one month. It has been directed that the substantive sentences imposed on the accused should run concurrently.
2. The prosecution case which emerges from the record is as follows :-
(a) That the family of one Krishna, who is one of the deceased, was residing at village Varakatwadi in District Kolhapur. His sons were Sambhaji (PW 10), Ananda and deceased Bajirao. He had a daughter by name Akkatai who had been given in marriage at a nearby village by name Walakewadi. The husband of Akkatai was mentally de-ranged and hence the father and brothers of Akkatai had given them a land at village Avali which is towards the Southern side of village Walkewadi, where the accused were also residing.
(b) The incident involved in the offence occurred on 18.8.1984 at about 10.30 A.M. On the previous night at about 1.00 A.M, Sambhaji (PW 10) and his brother Ananda had been to the grass land situated at village Avali. In the torch-light they saw that cattle owned by accused No. 1 Dattu were grazing on the said land. Accused No. 1 was also present there and he was asked as to why he was grazing his cattle on the said land. Ananda is said to have given a stick blow to accused No. 1 Dattu and thereafter Sambhaji (PW 10) and Ananda drove out the cattle. Accused No. 1 then went away to his house situated at village Walkewadi and Sambhaji (PW 10) and Ananda returned to their own house at village Vartakawadi.
(c) On the next date i.e. 18.8.1984 at about 10.30 A.M. Sambhaji (PW 10) alongwith Ananda, deceased Bajirao, deceased Krishna and the ladies of their house by name Kamal, Sushila and Indubai went to Walkewadi on the way to their land for weeding operation. When they came in front of the house of one Hindurao Rama Walke, accused Nos. 1 to 4 came from the eastern side. Accused No. 1 had a gun, accused No. 2 had a stick, accused Nos. 3 & 4 were carrying axes. Accused No. 1 Dattu fired his gun in the air and hold the party of the complainant that as Ananda had given him a stick blow on the previous night, he would not spare Ananda and saying so he attacked the party of the complainant. When accused No. 1 was about to fire his gun at Ananda, Sambhaji (PW 10) went ahead and gave a stick blow on the side of the gun which was being carried by accused No. 1. Due to this stick blow the gun fell on the ground and fired itself. Accused No. 3 then gave axe blows on the head and neck of Bajirao and as a result of this blow, Bajirao fell on the ground. Accused No. 1 then took an axe which was lying on the ground by the side of Bajirao and gave an axe blow on the neck of Krishna. When Sambhaji (PW 10) attempted to go near Bajirao and Krishna he was attacked by accused Nos. 2 & 4. According to Sambhaji (PW 10), accused No. 2 gave a stick blows on his back and neck. Further accused No. 4 was about to give him an axe blow and hence he raised his right hand and caught the blow on his index finger. Thereafter, accused Nos. 1 to 4 ran away.
(d) According to prosecution apart from the injured witnesses the incident was also witnessed by the women members of the family i.e. Akkatai, Kamal, Indu and Sushila. So also it was witnessed by other villagers by name Shivram Hari Varkat (PW 9) and one Jaswant.
(e) After the incident was over, Sambhaji (PW 10) took the bullock cart of Akkatai, who was residing nearby on the south west side from the scent of offence, and brought the injured to the CPR Hospital, Kolhapur. Deceased Krishna died on the next day i.e. 19.8.1984 and deceased Bajirao expired after a period of one month as a consequence of the wounds suffered by him in the incident.
(f) Sambhaji (PW 10) then lodged a complaint at the Laxmi puri police station. The said complaint was lodged by him at about 10.45 P.M. on the date of the incident itself i.e. on 18.8.1984.
(g) On 19.8.1984 the Laxmipuri police station forwarded the complaint registered with them under a zero number to th4e Kodoli police station. The Kodoli police station then registered the offence on 19.8.1984 at 1.30 P.M. (PW 14) Asstt. Sub Inspector Kherappa Kamble was the officer who registered the offence and he then proceeded to the scene offence where he drew the scene of offence panchanama. Akkatai Valake (PW 6) was present with him and she showed him the scene of the offence. Articles 1 to 3 which were blood stained stones and sample of earth were seized from the scene of the offence.
(h) On 18.8.1984 on Shamrao Hari Valke i.e. accused No. 2 had also lodged his own complaint against the complainants party including Sambhaji (PW 10), deceased Krishna, deceased Bajirao and Ananda. That complaint had also been registered under Section 307 of the Indian Penal Code. On 20.8.1984, the investigation was taken over by PSI Sudhakar Kharbas (PW 17). He went to the scene of offence and to the house of accused and seized a gun alongwith its licencee under a Panchanama (Exh. 15). He searched the house of the accused and in the said search he found an axe stained with blood on the loft of the said house. The said axe which is article 10, was attached under a Panchanama. One Surjerao who was from the party of the accused and who was injured in this incident, produced the blood stained cloths of the deceased Krishna and they were attached under a Panchanama (Exh. 16) on that day. (PW 17) recorded the statement of witnesses Akkatai, Sushila and about 10 others. He arrested accused Nos. 1 to 3 at the police station. He attached the blood stained clothes on the person of accused No. 1 Dattu under Panchanama the clothes of accused No. 3 and the articles attached under this panchanama are article Nos. 11 to 13 before the court.
(i) On 28.8.1984 the Investigating officer recorded the statements of Kamal Vartak and 4 others. On the said day, he attached the blood stained cloths on the person of deceased Bajirao under Panchanama at Exh. 17.
(j) On 22.8.1984 at about 9.45 A.M. accused No. 1 made a statement before the Panchas that he would produce the used cartridges and hence accordingly, Memorandum was drawn. In pursuance of this Memorandum on the same day, at the behest of accused No. 1 Dattu, the said cartridges were recovered from the house of accused No. 1 These cartridges and 2 empties so recovered are articles 25 to 28 before the court.
(k) On 27.8.1984 accused No. 2 came to be arrested. He attached the clothes of accused No. 2 which were stained with blood, under a panchanama at Exhibit-61. On 28.8.1984 accused No. 4 showed his willingness to produce an axe and sticks, hence Memorandum Panchanama (Exh. 32) was recorded and in pursuance of this Memorandum, at the behest of accused No. 4, an axe and stick were seized from a heap of cow dung cakes in the court yard in the house of accused No. 4.
(l) On 30.8.1984 the Investigating officer took a sample of the blood to the Chemical Analyser, Bombay.
(m) On 4.9.1984 the Investigating officer recorded the statement of Shivram Vartak and others.
(n) On 16.9.1984 the blood stained articles were sent to the Chemical Analyser’s office and after completion of investigation, on 31.12.1984 the Investigating officer filed a charge-sheet.
(o) After committal of the case the learned Sessions Judge, Kolhapur framed the charges. In the meanwhile, a cross case against the party of the present complainants had also been committed to the same court, that was numbered as Sessions Case No. 36/85. In the present case the prosecution examined 17 witnesses. The statement of accused under Section 313 of Cr. P.C. was also recorded. Thereafter as the defence wanted to lead its own evidence, they were permitted to do so and the defence examined one witness i.e. (DW 1) Dr. Basavraj who was a Medical officer and who had treated some of the injured from the accused side.
(p) The defence of the accused, as can be seen from the suggestions made to the prosecution witnesses, their 313 statements and a joint written statement filed by them in the Sessions court, was one of private defence. They admitted the incident which had occured on the night before the incident. According to them on 18.8.1984 at about 10 to 10.30 A.M. deceased Krishna, his 3 sons i.e. Sambhaji, Ananda and Bajirao had come to the house where the accused were residing, armed with an axe, stick and motor cycle chain. There they asked Tanaji to ask accused No. 1 Dattu to come out. At that stage, Tanaji was given a blow of the chain by Ananda, as a result of which he became un-conscious. The complainants party which had come there then started beating the accused and hence accused No. 1 went into the house and brought a gun and thereafter fired 2 shots in the air with the intention of avoiding a quarrel, for safeguarding the life of the accused and in the hope that the complainant would run away without causing any injury to the accused. That however, the complainants party continued to beat the accused and caused injuries on the accused with an axe, stick and cycle chain. The persons who were injured from the side of the accused were accused No. 1 Dattu, accused No. 2 Shamrao, accused No. 3 Tanaji, Sadashiv Subrao Valake, Prakash Subrao Valake, Raghunath Dhondi Valake and Dattu Rama Valake. They contended that the lady witnesses from the complainant’s family i.e. Akkatai, Sushila and Kamal were not present at the scene of the incident and contended that they were deposing falsely to save the complainant and other accused in the cross case which was filed against them.
(q) The learned Sessions Judge tried both the Sessions cases simultaneously and by the impugned Judgment and order dated 24.6.1987, he convicted the accused as aforesaid. On the same day, he delivered a Judgment in Sessions Case No. 36/85 acquitting the complainant in the present case and other accused of all charges against them. The learned Additional Public Prosecutor appearing in the present case states that State has not filed any Appeal against acquittal against the Judgment and order delivered by the Additional Sessions Judge in Sessions case No. 36/85.
3. The contentions raised on behalf of the accused can be summarised as follows :-
(a) That the evidence given by the 5 eye witnesses examined by the prosecution was inconsistent and un-believeable. Of these, (PW 8) and (PW 9) had been dis-believed by the Sessions court itself. The evidence of the eye witnesses were fraught with material contradiction. That 3 of the present accused and 4 other persons from the party of the present accused had been injured. Some of the injuries suffered by these persons were in the nature of incised wounds. The Doctor who had examined accused No. 3 Tanaji had opined that one of the injury suffered by him could have been caused by an article 13 i.e. motor cycle chain attached in the cross case. That the Doctor examined by the defence i.e. (PW 5) had stated that he had examined one Sadashiv from the party of the accused who had suffered CLW over occiputal region of his head extending to vertex vertically placed 6″ x 2″ scalp deep, with a big haematomo 100 ML approximatally and had found that there was a fracture of the skull. He had admitted that the said injury was dangerous to life. It was contended that the eye witnesses were not deposing to the whole truth and in so far as they had completely concealed the manner in which several persons belonging to the accused party were injured, they should be dis-believed.
(b) It was further contend that the burden of proof on the defence to prove that they had a right of private defence was not as onerous as the burden on the prosecution to prove their case. It was contended that the defence was only required to prove their version within the ambit of a preponderance of possibility. It was contended that this could be done by the defence by relying jupon the admissions made by the prosecution witnesses, presumptions in law, through their 313 statements or through the defence evidence. It was submitted that there was sufficient material on record on the basis of which it could be held that the defence had proved its case of a right of private defence and had discharged the burden of proof cast upon them.
(c) It was submitted that there was no common intention on the part of the present accused, and that the conviction of the accused Nos. 2 to 4 who had admittedly not given any blows to the deceased with the aid of Section 34 of the Penal Code was erroneous.
(d) It was contended that in any case even assuming that the right of private defence did not extend to the causing of the death of any person, yet in the facts of the case conviction under Section 302 was un-warranted and that at the highest the case would be one of “culpable homicide not amounting to murder” punishable under Section 304 Part-I of the Indian Penal Code.
4. On behalf of the prosecution it was contended that the omission in the evidence of the eye witnesses were minor. That omission on the part of the witnesses to explain the injuries on the accused and other persons was not of any significance as the injuries suffered were simple in nature. It was contended that the conviction of all the accused under Section 302 read with Section 34 was proper because all the accused had accosted the complainants in a premeditated manner. There was a common intention of taking revenge against the injured and to avenge the humiliation suffered by Dattu in the incident which was occured on the previous night. It was contended that in any case even assuming without admitting that any right of private defence did accrue, yet the benefit of exception II to Section 300 of Indian Penal Code could not be granted to the accused persons as the injuries suffered indicated that they had been inflicted with the intention of doing more harm than was necessary for the purpose of such defence.
5. We have heard both the sides and considered the entire evidence on record.
6. In so far as accused Nos. 2 & 4 are concerned, it is the prosecution case that accused No. 2 gave a stick blow to Sambhaji (PW 10). (PW 4) is said to have been given an axe blow which hurt the index finger of the right hand of Samghaji. Accused No. 2 had not been convicted for causing any injury and no Appeal against his acquittal has been filed. Apart form this, (PW 6) Akkatai’s version about accused No. 2 giving a stick blow to Samghaji is a proved omission in both her statements recorded by the Police. (PW 7) Sushila talked about accused No. 2 giving 2 to 4 blows on the shoulder of Samghaji. There are no such injuries found on the shoulder. (PEW 10) talked about accused No. 2 giving a stick blow on his head, back and neck. No injuries found on his back or neck. The version given by (PW 10) is also not corroborated by the FIR. In the circumstances, the acquittal of accused No. 2 for an offence under Section 326 cannot be faulted. We will deal with the offences under the Arms Act a little later. In so far as accused No. 4 is concerned, the contention of the prosecution that he assaulted (PW 10) with an axe is deposed by (PW 6), (PW 7), (PW 8), (PW 9) and (PW 10). It is also corroborated by the Medical evidence and in the circumstances, we do not find that the conviction of accused No. 4 for an offence under Section 324 of the Penal Code can be faulted.
7. In our view, the conviction of accused Nos. 2 & 4 for an offence under Section 302 read with Section 34 of Indian Penal Code, however, will have to be set aside in the facts of this case and for the reasons which are mentioned here-in-below. Firstly, the complainant (PW 10) is shown to have materially contradicted himself with his FIR. In his FIR the version given is that the accused No. 4 arrived at the scene of offence after the two deceased had been assaulted by accused Nos. 1 & 3. It is stated in the complaint that a crowd assembled after the incident and out of crowd, came accused No. 4 armed with an axe and gave a blow on Sambhaji. It appears from the FIR that accused No. 4 arrived at the scene of the offence much later. In his evidence before the court (PW 10) however, deposed to a different version in which accused Nos. 1 to 4 arrived at the same time. This contradiction has been duly brought on record and got proved to the concerned Investigation officer.
8. Apart from this, there is material on record to indicate that the party of the complainants had also come armed with weapons such as an axe, stick and motor cycle chain. The material omission brought on record in the evidence of an independent witness (PW 9) would indicate that the complainants party were infact abusing the accused over the incident which had occured on the previous night. This evidence will be discussed later when discussing the question as to whether accused can be said to have any right of private defence. Suffice it to say at this stage that there is material to indicate that the party of the complainants had come to the village of the accused, armed with weapons such as an axe, stick and motor cycle chain and were well prepared for aggression. If this be the case, it would be difficult to hold that accused Nos. 2 to 4 who admittedly did not commit any over acts against any of the 2 deceased, can be roped in with the aid of Section 34 of the Indian Penal Code. We would therefore, find that the conviction of accused Nos. 2 to 4 for an offence under Section 304 read with 34 will have to be set aside.
9. The contention on behalf of the accused that they have proved their case of right of private defence beyond preponderance of possibility and hence discharged the lighter burden cast upon them has substance. We find that as many as 7 persons from the side of the accused were injured in this incident. These 7 persons and the injuries suffered by them were as under :-
(I) Sadashiv, who had suffered a CLW over occiputal region extending to vertex vertically placed 6″ x 2″ scalp deep Big Haematoma 100 ML approximately, with a fracture of skull.
(II) Raghunath Dhondi Walake, who sufferred a CLW 4″ x 2″ x muscle deep on left arm and an incised wound 1&1/2″ skin deep on his right cubital fossa.
(III) Shyamrao (accused No. 2) who had suffered incised wound obliquely on the right parietal region of his head, 2″ x 1/4″ deep, contusion 1″ x 1″ over left wrist and multiple abrasion over his back right scapula region.
(IV) Dattu Rama Walake who had suffered incised wound over 2nd metacartal bone, 1″ x 1/2″ skin deep bleeding, abrasion over skin of tibia and contusion around middle 1″ x 1/2″.
(V) Dattatraya Walake (accused No. 1) who had suffered contusion over left forearm, 2″ x 1″ reddish in colour.
(VI) Tanaji (accused No. 3) who had suffered contusion 8″ x 1″ over chest from mid sternum extending obliquely to left anterior axilary line (which injury according to the Doctor could be caused by the motor cycle chain), contusion over left detoid region 2″ x 1″ and contusion over left in guinem vertical 3″ x 1″.
(VII) Prakash who had suffered contusion over left supresengular region 2″ x 1″ reddish and contusion over right suprescawular region 3″ x 1″ reddish.
10. Of these injuries, at least one was a life threatening injury of a serious nature but they were neither explained or dealt with by the prosecution witnesses. In the evidence of (PW 9) Shivram, a material omission amounting to contradiction was brought on record. In his evidence this witness denied that he had not stated to the police that deceased Bajirao, deceased Krishna, Ananda and Sambhaji were asking the accused as the why accused had grazed their cattle in their grass land and were threatening the accused that they will see to accused Nos. 1 to 4 and saying so they were abusing accused Nos. 1 to 4. Though such denial is made, the contradiction has been brought on record and proved through the evidence of (PW 17) PSI Sudhakar Kharbas who has deposed that witness Shivram had stated before him that there was an axe in the hand of (PW 10) and the chain around his neck. He had stated that deceased Bajirao, deceased Kisan, Ananda and Sambha were asking accused as to why the accused had grazed their cattle in their grass land and that accused No. 1 to 4 and were also abusing accused Nos. 1 to 4 in a loud tone. It was pointed out to us that (PW 10) had concealed that fact that he was carrying a motor cycle chain. It was contended that such a chain was not an article normally carried by villagers and that it was not an article required for weeding operation. It was contended that the object of carrying a motor cycle chain could only have been to commit an agressive act against the accused. It was pointed out that the Doctor who had examined accused No. 3 had opined that the injury caused on Tanaji was one possible with the said motor cycle chain. In 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 acusing the accused persons. The aforesaid facts coupled with the fact that 3 of the accused alongwith 4 other from their party did infact suffer injuries, which are not explained by the prosecution witness in our view, indicates that the complainants party had come prepared for agression and did commit overt acts against the accused and others. It can thus be held that the burden cast on the defence to prove their case of the right of private defence has been sufficiently discharged.
11. The question that remains however, is as to whether the benefit of exception -II to Section 300 can be given to the accused persons. Once it is held that a right of private defence can be said to exist in the present case, firstly, the conviction of all the accused including accused nos. 1 & 3 with the aid of Section 34 will have to be set aside. As the common intention of the group of the accused would be to defend themselves. However, in the course of defending themselves if it can be shown by the prosecution that the acts of any of the accused were with the intention of doing more harm than is necessary for the purpose of such defence then such an accused would not get the benefit of exception-II of Section 300 of Indian Penal Code.
12. With this in mind, we have examined the overt acts which are alleged by the prosecution to have been committed by accused No. 1 Dattu and accused No. 3 Tanaji on the 2 deceased.
13. According to all the 5 eye witnesses, accused No. 3 Tanaji gave axe blows on the head and neck of deceased Bajirao. (PW 7) Sushila Vartak had talked about axe blows also being given on his shoulder and back as well. The medical evidence indicates 3 very serious head injuries on the head of Bajirao. These injuries have been described by Doctor (PW 5) as under :-
1. I. W. over left frauto parietal region 2″x1/2″ long flap formation, skull bone, rag No. 12314-5. Brain matter coming out extending from (L) frantal amminance 2″ in fraut of (L) paretal emminance “Bleeding.
2. I. W. over left parietal region 2″ x 1/2″ long parietal bone fracture, brain matter coming out extending from end of No. 1 injury to left parietal emminance bleeding.
3. Incised wound over left parietal emminance posteriorly skull bone brain matter coming out bleeding toto size 1/1″.
14. In our view, not much weightage can be given to the fact that no injuries were found on the back or shoulder of deceased Bajirao. It appears that (PW 6) (PW 7), (PW 8), and (PW 9) had witnessed the incident from the west when the injured were coming towards them. Therefore, they may not be able to properly see where the injuries to Bajirao was exactly inflicted. We find no reason to discard the evidence of the eye witnesses totally, in the face of the corroboration of the evidence of the eye witnesses by the medical evidence. In so far as the axe blows given by No. 3 on the head of Bajirao are concerned, even assuming the party of the accused had right of private defence accruing to them, yet this right would come to an end the moment the threat on the accused persons had abated. The doctor’s evidence indicates that each of the axe blows inflicted by Tanaji on the head of Bajirao was sufficient to cause his death. Bajirao must have been incapacitated by the very first axe blow on his head. It has been noticed that from all the three injuries his brain matter has been found to be seeping out. It appears that even thereafter Tanaji has given 2 more axe blows on the head of Bajirao. In our view, this act was not only in excess on his right of self defence but the giving of such additional blows could only be with the intention of giving more harm that was necessary for the purpose of such defence. In our view, accused No. 3 Tanaji therefore, cannot be given the benefit of the said exception and his conviction under section 302 of Indian Penal Code must be confirmed.
15. In so far as the acts attributed to accused No. 1 Dattu are concerned, he is said to have given axe blows on deceased Krishna by taking an axe from the fallen Bajirao, on his head and neck. The two wounds suffered by the deceased Krishna were deposed to by (PW 5) Dr. Vishnu Rajdeep as under :-
1. I. W. over Nape of neck more on rt. side, oblique in direction 4″ x 2 & 1/2″ spine deep, bony crepistion, spine exposed bleeding. 2. I..W. 3″ x 1/2″ on left parietal region, scalp deep.
16. It appears that of these 2 wounds, the first wound was the fatal wound. The prosecution has not elicited from the Doctor that the 2nd wound was individually sufficient to cause the death of Dattu. In this view of the matter, we give the benefit of exception -II of Section 300 of Indian Penal Code to accused No. 1, and hold that he can be said to have committed an offence under Section 304 part-I of the Indian Penal Code. We hold this on the basis that a right of private defence accrued in favour of the accused yet the same did not extend the causing of death and was infact, exceeded.
17. That brings us to the next question on the conviction of accused No. 1 under Section 25(1)(a) of the Arms Act 1959 and of accused No. 2 under Section 30 of the said Act. It appears that the said conviction is well founded because the arm was admittedly possessed and used by accused No. 1 without a proper license. This would also be in contravention of the provisions of the License. In the result, we pass the following order:-
ORDER
1. The Appeal is partly allowed.
2. The conviction of accused Nos. 1, 2, 3 & 4 for offences under Section 302 read with 34 of Indian Penal Code is quashed and set aside and they are acquitted of the said charge. The conviction of accused No. 1 under Section 302 of Indian Penal Code is quashed and set aside and he is acquitted of the said charge.
3. Accused No. 1 Dattu Shamrao Valake is convicted of an offence under Section 304 part-I of the Indian Penal Code and he is sentenced to under-go imprisonment for a period of 10 years.
4. The conviction and sentence imposed upon accused No. 3 Tanaji Shamrao Valake for the offence under Section 302 of Indian Penal Code is maintained. Similarly, the conviction of accused No. 4 under Section 324 of the Indian Penal Code is maintained but the sentence is reduced to a period already under gone and to the payment of fine of Rs. 100/-, in default to suffer further RI for 15 days. The conviction of accused No. 1 under Section 25(1)(a) of the Arms Act and the conviction of accused No. 2 Shamrao Hari Valake under Section. The bonds of accused Nos. 1 & 2 are forfeitted and they are to surrender forthwith.