T.K. Chandrashekhara Das, J.
1. By the impugned judgment in Sessions Case No. 147/96 on the file of 3rd Additional District and Sessions Judge, Nashik, the accused was convicted for the offence punishable under section 304(ii) of the I.P.C. and sentenced to suffer R. I, for seven years and to pay a fine of Rs. 25,000/ – in default to suffer R. I, for one year.
2. When the appeal was taken up for hearing nobody has appeared for the appellant who is in jail. However the appeal cannot be dismissed for default in view of the decision of the Supreme Court in Bani Singh and Ors. v. State of Uttar Pradesh. Hence we are disposing the appeal on merits.
3. The prosecution case is that the accused Ramdas is the resident of Navtbez where he is running a grocery shop. He has three brothers namely Tulshiram. Mahadu and deceased Shamrao. Deceased Shamrao is the youngest brother of accused. All the brothers had partitioned their properties and each of them was staying separately. It is the case of the prosecution that the deceased Shamrao had given to the accused a hand loan amounting to Rs.50,000/- for the transport business of the accused. But the transport business was failed and then he switched over to a grocery shop. Even though the hand loan was given in the year 1991 the amount was not paid back to Shamrao by the accused inspite of repeated demands. Because of this there used to be small quarrels between Shamrao and the accused.
4. On 9.4.1996 at about 8.00 p.m. while Shamrao was sitting in his house, which is at a walking distance from the house of accused. Shamrao’s wife was cooking the food. Shamrao told his wife that he would go to the house of accused and would demand the money back. Accordingly he went to the grocery shop of the accused. After sometime Kalpanabai seeing that her, husband has not returned, she came out of her house in search of Shamrao. She then found that Shamrao and her brother-in-law Tulshiram standing in front of the house of the accused and asking the accused to pay back the amount. All of a sudden accused went inside his house and came out with a stick. There followed a quarrel between Tulshiram and Shamrao on one side and the accused on the other as the accused straight way refused to make payment. Kalpanabai was insisting her husband to come back home. However again all of a sudden the accused went into his house and came out with a knife like instrument in his hand and suddenly gave one forceful stab blow on the backside of the neck of Shamrao. Tulshiram intervened and with the same knife accused attacked him also on the left hand elbow of Tulshiram. Both Shamrao and Tulshiram started bleeding. Shamrao however recompensed himself and ran towards the house of his brother Narayan who was not at home but his wife Nirmalabai was present. The wife of Tulshiram was also present when the incident took place. Deceased Shamrao fell down on the floor of the house of Narayan. Sunandabai, Kalpanabai and Nirmalabai tried to stop the bleeding from the neck injury with the help of pieces of saree and towels. Blood fell on the floor and also
on the road. Subsequently they arranged for a jeep by which Shamrao was taken to the rural hospital at Kalwan. But he died when they arrived at the gate of the hospital. Therefore he brought back to Navibez. By the time the police came there and F.I.R. was lodged by Kalpanabai and crime was registered as Crime No. 30/96 under section 302 and 324 of the I.P.C. and the investigation was started.
5. The accused was then arrested by the Investigating Officer P.S.I. Sonawane and inquest panchanama Exh. 14 was prepared on the dead body of Shamrao in presence of panchas. Dead body was dispatched for postmortem and Dr. Dilip Pagare conducted postmortem on the dead body of Shamrao. After the investigation charge-sheet has been filed. Since the accused denied the charge he was tried by the Trial Court.
6. The prosecution has examined in all 10 witnesses out of which P.W. 1 Kalpanabai, P.W. 6 Sunandabai, P.W. 7 Nirmalabai and P.W. 8 Tulshiram are the eye-witnesses. Some of the evidence adduced before the Court, which are necessary for the purpose of judgment has been discussed here in below.
7. P.W. 9 Dr. Dilip Pagare conducted the postmortem on the dead body of Shamrao and he had noticed Incised wound at the survical region posteriorly located 1″ x 1″ x 3″ bone deep and blood was oozing from the wound. There was blood clot at the floot of the wound. He also noticed that the injury on the neck on the posterior side was 5″ deep, 1″ long and l” wide. The internal carodid on the right side was injured and the spinal cord was also injured at the level of C-4 and C-5 level and it was located antero posteriorly on the right side. He opined that the death was caused due to shock because of injury to the spinal cord.
8. Tulshiram was also stabbed on his left elbow by the accused. He was also examined by the same doctor who found one sutured wound on the left elbow joint of the size of 3 c.m. x 2 c.m. and the second injury was an abrasion on the left arm of the size of 3 c.m. x 2 c.m. x 1 c.m. The accused was also got medically examined by the same doctor who issued certificate Exh.32 which shows that as many as five Injuries were found on the person of the accused. All those five injuries were simple in nature and they were caused within three hours at the time of examination of them and three injuries were caused by a hard and blunt object. in all these five injuries, there were one incised wound on the left middle finger of the size of 2 x 1/2 x 1/2c.m. and it was caused by sharp instrument. The other injuries were CLW on the right ear, contusion with haematoma on the right forearm and bruise on the right fossa and one more abrasion on the right arm. The accused was arrested immediately and blood stained clothes was seized from the accused.
9. It may be pointed out here that none of the witnesses examined on the side of the prosecution has not explained the injury on the person of the accused. P.W. 1 Kalpanabai stated in her evidence that deceased Shamrao was her husband who had three brothers by name Narayan, Ramdas and Tulshiram. For more than 10 years the property was partitioned among four brothers. Her husband was having a truck bearing Registration No. MH 15/G/2475. Her husband was a driver by profession. Accused Ramdas was also a driver in the S. T. department. Later on he left the job and purchased his own truck. In the year 1990-91 her husband on
different times had given a loan of Rs.50,000/- to the accused for the purchase of truck. Later on accused sold the truck for purchasing new truck. This truck was also sold by him and then he purchased a matador. All the while her husband was demanding the loan back from the accused and he was only filling with promises. On this count there were minor quarrels on 2/3 occasions. Her husband Shamrao was the younger brother of the accused. Her brother-in-law Tulshiram used to advise the accused to pay back the loan. According to her the incident happened on 9.4.1996 at 8.00 p.m. Her husband told her that he is going to the accused to demand money. Accused was staying at a distance of 4/5 houses from her house. Accused has got his grocery shop in his house. About ten minutes thereafter she went out of her house to call her husband. She found her husband along with Tulshiram in front of the house of the accused. Accused was also present there. Tulshiram and her husband demanded money from the accused. Accused asked her husband to wait for sometime. Her husband was asking to give a particular day for repayment. To this accused replied that he would give debt to her husband and then he came out of his shop with a stick. There was a scuffle between accused on one side and Tulshiram and her husband on the other. Accused gave some suck blows to Tulshiram and her husband and then threw away the stick. She says that Sunanda, wife of Tulshiram was also present there. Accused suddenly came out of his house with a knife in his hand and stabbed her husband on the back of his neck. He inflicted only one blow. The accused also gave one blow on the left hand of Tulshiram. Her husband fell down due to the blow but he again recompensed himself and ran himself to the house of Narayan Deore. She also followed him. His injury was bleeding. His mouth was also bleeding. Nirmala wife of Narayan was also there. Her husband hugged Nirmala and fell down. In order to stop the bleeding they used saree of Nirmala and also a towel. They then brought one Jeep of Nimba Khairnar and took her husband to the hospital in that jeep. On the way deceased breathed his last in the Jeep. This witness also says that when they brought the deceased back to Navibez, she found the police present. Police Patil had made telephonic call to the police and she then lodged her F.I.R. with the police.
10. It may be noted that in her evidence no explanation has been given for the injury found on the person of the accused. Moreover, according to her the accused had given some stick blow to Tulshiram and her husband, but it may be noted that on the person of the accused there is no injury of stick. So also P.W. 6 Sunanda, P.W. 7 Nirmalabai who claims to have seen the incident also only deposed about the injuries inflicted on the deceased and Tulshiram whereas no explanation was offered for the injuries found on the body of the accused. P.W. 6 Sunanda also stated in her evidence that the accused assaulted Shamrao with stick which broke into two pieces. whereas no stick injury was noticed by the doctor on the person of the accused. Same thing is repeated parrot like by P.W. 7 Nirmalabai, P.W. 8 Tulshiram narrated the incident as narrated by P.W. 1. He also did not offer any explanation for the injuries found on the person of the accused.
11. It may be noted that as we pointed out earlier that the doctor who examined the deceased and the accused has stated the injuries on the accused. He also stated that he was unable to say by what weapon the
injuries of Tulshiram can be caused. He has spoken about five injuries on the person of the accused, which are on vital part of the body, Injury No. 1 on the right ear which was likely to be caused by hard and rough object. Injury No. 2 if Incised wound on left middle finger by a sharp instrument. All these injuries were three hours old.
12. It is pertinent to note that these injuries were caused on the person of the accused which was not explained by the prosecution which could be caused in an attempt of self defence. We have noticed that the deceased and Tulshiram went to the shop of the accused and in an attempt of Tulshiram, the injuries on the accused could be caused either by deceased or by Tulshiram. But in all probability therefore, we find that there is an attempt on the part of the accused for self defence.
13. In a decision of the Supreme Court in Jat Dev and Hari Singh v. State of Punjab, It is observed in paras 12 and 13 thus :
“12….. In other words, where an Individual citizen or his property
is faced with a danger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself and his property. That being so it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious.
13. There can be no doubt that in Judging the conduct of a person who proves that he had a right of private defence allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in his mind would be to ward off the danger and to save himself or his property and so he would naturally be anxious to strike a decision blow in exercise of his right. It is no doubt true that in striking a decisive blow he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force is used, than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a Court room, for Instance long after the Incident has taken place ……”
14. In view of the above proposition of law laid down by the Supreme Court, we feel that the injuries inflicted by the accused on the deceased can be said to be inflicted by means of private defence and he is entitled for benefit of section 100 of the I.P.C.
15. Apart from that so long as the injuries of the accused has not been explained, certain inference is bound to be drawn. In Lakshmi Singh and Ors. v. State of Bihar, it has been stated that in a murder case the non-explanation of the injuries sustained by the accused at about the time of occurrence or in-the course of altercation is a very important circumstance from which the Court can draw the following inferences :
(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.
(2) That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable.
(3) That in case there la a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
16. On an examination of the facts of this case, we have justified in drawing the inferences, of Nos. 1 and 2. We see that no explanation is forthcoming. Therefore we are justified in inferring that the prosecution has suppressed the genesis of the origin of occurrence and thus not presented the true version. So long as there is no explanation forthcoming it has to be inferred that on material point the witnesses are unreliable. We find therefore that if such inferences are drawn in the circumstances of the case. Inference has to be drawn in favour of the accused to give benefit of doubt.
17. In all circumstances we find that the prosecution has not come out with full facts of the case and the Court can try to guess or conjuncture to trace out the truth if possible. But in doing so the benefit of doubt has to be given to the accused. It is relevant to note an observation of the Supreme Court in Jamuna Chaudhary and Ors. v. State of Bihar, and para 12 reads thus :
” 12. As neither the prosecution nor the defence have in the case before us. come out with the whole and unvarnished truth, so as to enable the Court to judge where the rights and wrongs of the whole incident or set of incidents lay or how one or more incidents took place in which so many persons, including Laldhari and Ramanandan, were injured, Courts can only try to guess or conjecture or decipher the truth if possible. This may be done, within limits, to determine whether any reasonable doubt emerges on any point under conservation from proved facts and circumstances of the case.”
18. The Trial Court has already given benefit to the accused that he had no intention to commit murder of his brother Ramdas and the Lower Court was fit in the offence under section 304(II) of the I.P.C. But in the light of the above discussion with reference to the Supreme Court decisions, we find that the prosecution has not come out with true genesis of the offences and the witnesses, particularly the eye-witnesses, are not reliable. In view of the Supreme Court decision, we have to give benefit of doubt to the accused. In the circumstances, we have no hesitation to hold that the prosecution has not proved the guilt of the accused beyond all reasonable doubt and the accused is entitled to be acquitted giving the benefit of doubt in favour of the accused.
19. In the result, the appeal is allowed. The conviction and sentence rendered by the Court below against the appellant by the impugned judgment is set aside. He is directed to be released forthwith if he is not required in any other case. The fine if any paid by the accused has to be refunded to him.