{"id":205646,"date":"2010-10-01T00:00:00","date_gmt":"2010-09-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/all-vs-the-state-of-maharashtra-on-1-october-2010"},"modified":"2017-02-23T20:46:01","modified_gmt":"2017-02-23T15:16:01","slug":"all-vs-the-state-of-maharashtra-on-1-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/all-vs-the-state-of-maharashtra-on-1-october-2010","title":{"rendered":"All vs The State Of Maharashtra on 1 October, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
All vs The State Of Maharashtra on 1 October, 2010<\/div>\n
Bench: P. B. Majmudar, Anoop V.Mohta<\/div>\n
                                                      1                    apeal.659.90.sxw\n    ssm\n\n\n\n\n                                                                                     \n                IN THE  HIGH COURT OF JUDICATURE AT BOMBAY\n\n                        CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                                             \n                         CRIMINAL APPEAL NO. 659 OF 1990\n\n\n\n\n                                                            \n    1     Kashinath Punjaji Shardol, 40 yrs.\n    2     Shivaji Yashwant Shardol, 25 yrs.,\n    3     Yamaji Punjaji Shardol, 38 yrs.,\n    4     Vijay Kashinath Shardol, 20 yrs.\n\n\n\n\n                                               \n          All R\/o. Umrale Khoord, Taluka:Dindori,\n          District-Nashik      ig                                       ....   Appellants\n                                                                            (Orig. Accused)\n\n                        Vs.\n                             \n    The State of Maharashtra                                          ....    Respondent\n\n\n    Mr. B. G. Vaidya for the Appellants\/Accused.\n          \n\n\n    Mrs. A. A. Mane, APP for the Respondent\/State. \n       \n\n\n\n                                CORAM:     P. B. MAJMUDAR  & \n                                            ANOOP V. MOHTA, JJ.\n<\/pre>\n
                  JUDGMENT RESERVED ON :            02\/09\/2010\n\n                  JUDGMENT PRONOUNCED ON  :     01\/10\/ 2010\n\n    ORAL JUDGMENT (Per Anoop V. Mohta, J.):-\n\n\n\n\n\n<\/pre>\n
          This   is   an   Appeal   filed   by   all   four   Appellants\/   Accused   against <\/p>\n
    Conviction   Order   dated   28.09.1990   passed   by   the   learned   Additional <\/p>\n
    Sessions Judge, Nashik, in Sessions Case No. 71 of 1990, for the offences <\/p>\n
    punishable under Sections 302\/324 read   with   34 of Indian Penal Code <\/p>\n
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    (IPC), by holding that the prosecution has proved that all the accused in <\/p>\n
    furtherance   of   their   common   intention   committed   the   murder   of <\/p>\n
    “Kacharu” (the deceased) and accused No.4, under Section 324, voluntarily <\/p>\n
    caused grievous hurt to Ashok-Complainant.\n<\/p>\n
    2      The  prosecution  case  as  recorded  in  the  impugned  judgment  is as <\/p>\n
    under:\n<\/p>\n
           “Complainant   Ashok   lives   with   his   brothers   Kacharu,   Jaywant, <\/p>\n
    Ramchandra, mother Sonubai and father Dhulaji.  His wife is Kalpana and <\/p>\n
    sister-in-law is Shantabai wife of Kacharu.   Both of them live with them.\n<\/p>\n
    Complainant and his family owns some cattle heads.   On the day of the <\/p>\n
    incident, Santosh son of Kacharu had taken the cattle for grazing.   While <\/p>\n
    Santosh   was   grazing   cattle,   accused   No.4   Vijay   abused   him.     Santosh <\/p>\n
    narrated this fact to his uncle Ashok, the complainant.   The complainant <\/p>\n
    therefore, went to question Vijay as to why he had abused Santosh.  When <\/p>\n
    he questioned Vijay about it, Vijay again started abusing Ashok and Ashok <\/p>\n
    asked Vijay’s father to chastise Vijay.   At that time, Vijay aimed a stone at <\/p>\n
    Ashok which hit him on the head.   Kacharu Dhulaji, the brother of Ashok <\/p>\n
    also came there and tried to pacify them but accused No.2 Shivaji caught <\/p>\n
    hold of complainant Ashok.   Then accused No.1 Kashinath, accused No.3 <\/p>\n
    Yamaji and accused No.4 Vijay started assaulting Kacharu with the sticks in <\/p>\n
    their   hands.     In   order   to   save   himself,   Kacharu   started   running   away.\n<\/p>\n
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                                                          3                    apeal.659.90.sxw\n    ssm\n\n\n<\/pre>\n
    Accused Nos.1, 3 and 4 therefore pelted stones at Kacharu.  The stones hit <\/p>\n
    him on the head, hand and at different places.  As a result of this, Kacharu <\/p>\n
    fell down on a way which leads to the well.  The incident was seen by Rupa <\/p>\n
    Gangaram, Suka Pandu, Dagu Gangaram and others.   Since Kacharu had <\/p>\n
    sustained   serious   injiries,   complainant   brought   him   in   a   Tempo   to   the <\/p>\n
    hospital.  A report of the incident was lodged the policy.  Since the medical <\/p>\n
    officer   at   Dindori   found   that   the   injuries   sustained   by   Kacharu   were   of <\/p>\n
    serious nature, he directed Kacharu to be removed at Civil Hospital, Nashik.\n<\/p>\n
    Kacharu   later   died   in   the   Civil   hospital   at   Nashik.     A   post-mortem   was <\/p>\n
    carried on the dead body.  In the meanwhile, the police went to the spot of <\/p>\n
    the incident and had drawn the panchanama of the spot.  They also seized <\/p>\n
    the clothes of Ashok and the deceased.   After the accused were arrested, <\/p>\n
    accused   No.4   Vijay   made   a   statement   that   he   would   discover   the   sticks <\/p>\n
    which he had kept on the loft of his uncle’s Yamaji’s house.   He actually <\/p>\n
    discovered those sticks and they were seized by the police.   The clothes <\/p>\n
    seized by the police, the sticks and earth from the spot of incident were sent <\/p>\n
    to the Chemical Analyser for analysis.  A charge-sheet thereafter, came to be <\/p>\n
    filed against the accused.”\n<\/p>\n
    3      The   prosecution   has   examined   in   all   7   witnesses.     The   witnesses <\/p>\n
    include; PW 1 Ashok, the Complainant and one of the injured; PW 2 Dr. <\/p>\n
    Jadhav, who gave first aid to the deceased and also noted the injuries on his <\/p>\n
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    person; PW 3 Rupa and PW 4 Santosh, who is son of the deceased, are eye <\/p>\n
    witnesses.  PW 5 Rambhau is the panch of the discovery panchanama, PW 6 <\/p>\n
    is the PSI Gajbhiv, the Investigating Officer, PW 7 is Dr. Nehete who carried <\/p>\n
    out   the   postmortem.   The   spot   panchanama   is   at   Exh.   27.   The   inquest <\/p>\n
    panchanama is at Exh. 28 and the seizure panchanamas are at Exh. 29 and <\/p>\n
    30. No witness was examined in defence.\n<\/p>\n
    4      The death of Kacharu was homicidal, PW 2 Dr. Jadhav and PW 7 Dr. <\/p>\n
    Nehete, who carried out the postmortem on 04\/02\/1990 between 8.00 to <\/p>\n
    9.00 a.m. confirmed the same, based upon the following injuries:-\n<\/p>\n
           “1)    Sutured   wound   over   fronto-temporal   region   extending
\n                  upto parietal region left side.  3” in length.  Swelling was
\n                  positive.  The would was obliquely placed.\n<\/p><\/blockquote>\n
           2)     Sutured wound over left face near lateral canthus.  It was  <\/p>\n
                  1″ length.  Red in colour and there was swelling.\n<\/p><\/blockquote>\n
           3)     Abrasion on left side forehead.  2″ x \u00bd” Red in colour and  <\/p>\n
                  it was irregular.\n<\/p><\/blockquote>\n
           4)     Sutured wound on posterior side of left forearm.  It was
\n                  2″ in length.   It was obliquely placed and swelling was
\n                  positive.  There was a simple fracture of left ulna bone.\n<\/p><\/blockquote>\n
           5)     Abrasion over anterior side  of upper arm (left) \u00bd” x \u00bd”.\n<\/p><\/blockquote>\n
           He further deposed that all these injuries were ante-mortem and
\n           might have been caused by hard and blunt object such as stick
\n           and stone.  He further has stated that on internal examination,
\n           he found following injuries:\n<\/p><\/blockquote>\n
          1)      Echymosis   on   left   fronto-temporal   &   parietal   region.\n<\/p><\/blockquote>\n
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                                                        5                     apeal.659.90.sxw\n    ssm\n\n\n                   Blackish in colour.\n\n\n\n\n                                                                                       \n          2)     Dipressed  fracture of skull of left frontal temporal and  \n           parietal bone.\"\n\n\n\n\n                                                               \n<\/pre>\n
           He further stated and given opinion that cause of death was shock <\/p>\n
    due to intra-cranial haemorrhage with a fracture of skull bone of left side <\/p>\n
    with injury to brain matter and fracture of left ulna.  All these injuries were <\/p>\n
    collectively   and   singularly   enough   to   cause   death   in   ordinary   course   of <\/p>\n
    nature.   P.W. 7 stated that injury No.1 itself was sufficient in the ordinary <\/p>\n
    course of nature to cause death.   In the cross-examination he agreed that <\/p>\n
    injury nos. 2 to 5 collectively will not in the ordinary course of nature cause <\/p>\n
    death.\n<\/p><\/blockquote>\n
    5      As alleged, A-4 Vijay stated to PW 4 Santosh that his uncle’s wife <\/p>\n
    Kalpana was his wife. The prosecution case was of abuse.   PW 4 Santosh <\/p>\n
    narrated the  same to PW-1, Ashok-the  Complainant.   PW 4 went to A-4 <\/p>\n
    Vijay and A-1 Kashinath’s place and objected to the said statement made by <\/p>\n
    Vijay.   The quarrel started suddenly.   PW 1 Ashok, (husband of Kalpana) <\/p>\n
    who was also injured, stated that A-4 Vijay pelted stone which hit on his <\/p>\n
    head.  Kacharu (the deceased) came there.  A-1 Kashinath and A-3 Yamaji <\/p>\n
    went inside  and brought sticks  and  assaulted Kacharu also.   A-2 Shivaji <\/p>\n
    caught hold  PW 1 Ashok at that time. A-4 Vijay pelted stone on the head of <\/p>\n
    Kacharu   and   ran   away   towards   the   eastern   side   towards   the   well.     A-1 <\/p>\n
    Kashinath   and  A-3  Yamaji  followed  Kacharu.    It  is   stated  that  A-4  Vijay <\/p>\n
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    while running towards the well turned back and seen Kacharu following <\/p>\n
    him, again  pelted stone   which  hit Kacharu  on  head.    Kachru  fell  down.\n<\/p>\n
    Ashok, after releasing himself from the clutches of A-2 Shivaji went to save <\/p>\n
    Kacharu.   As per PW 1 Ashok, all the accused again started assaulting to <\/p>\n
    Kacharu while he fell down.  When PW 1 Ashok reached to Kacharu, all the <\/p>\n
    accused ran away. Kacharu died when undergoing treatment at hospital.\n<\/p>\n
           PW 1 Ashok in cross-examination stated that he was at the distance <\/p>\n
    of 50 to 60 fts. from the other accused when A-2 Shivaji caught hold to <\/p>\n
    him.  The incident over within five minutes.  People had gathered when the <\/p>\n
    incident was going on.  Police Patil was present at the time of incident.  No <\/p>\n
    person from the gathered people was examined including the police Patil.\n<\/p>\n
    6      PW 3, Rupa saw A-4 Vijay pelted stone at different time at Ashok and <\/p>\n
    at   the   deceased.   She   could   not   notice   that   Vijay   was   running   ahead   of <\/p>\n
    Kacharu.  The deceased fell down after sustaining injury on the head.   She <\/p>\n
    stated that when she went to the spot more than 50 people had gathered.\n<\/p>\n
    She stated that A-1 Kashinath and A-3 Yamaji assaulted Kacharu with sticks.\n<\/p>\n
    She stated that A-2 Shivaji caught hold Ashok initially but later on went <\/p>\n
    near to Kacharu to assault.  She stated that A-1 Kashinath, A-2 Shivaji and <\/p>\n
    A-3 Yamaji assaulted Kacharu with sticks and even after he fell down, A-1 <\/p>\n
    Kashinath and A-3 Yamaji pelted stones also.  As per this witness, A-4 Vijay <\/p>\n
    pelted  stones   by  which  the   deceased  had  sustained  head  injury  and  fell <\/p>\n
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    down.  PW 3 Rupa further stated that Kachru stood up and ran towards the <\/p>\n
    well and A-1 Kashinath and A-3 Yamaji followed him.   As these A-1, A-2 <\/p>\n
    and A-3 assaulted with sticks, thereafter Kacharu fell unconscious.\n<\/p>\n
    7        PW 3 Rupa had stated in her cross-examination that 50 people were <\/p>\n
    gathered in between the way of the  house.   She had to go through the <\/p>\n
    crowd of the people who were standing there. When she went to the spot, <\/p>\n
    she   saw   Kacharu   was   being   assaulted   by   sticks.     From   the   above,   it   is <\/p>\n
    difficult   to   accept   the   evidence   of   Rupa   to   the   extent   that   she   saw   the <\/p>\n
    incident in full.  The fact that she need to go through the people near the <\/p>\n
    spot itself means she was not in position to see the incident or condition of <\/p>\n
    “Kacharu” clearly and the  individual roles of these accused.\n<\/p>\n
    8      PW 4 Santosh, a minor son of the deceased at the time, stated that <\/p>\n
    A-4   Vijay   started   abusing   Ashok-Complainant   and   then   pelted   stones   at <\/p>\n
    Ashok.  He also stated that Kacharu came there and intervened.  A-2 Shivaji <\/p>\n
    caught   hold   of   Ashok   and   then   A-1   Kashinath   and   A-3   Yamaji   started <\/p>\n
    assaulting Kacharu with sticks.   The deceased (his father) started running <\/p>\n
    from the spot behind A-4 Vijay.  He also stated that A-4 Vijay turned back <\/p>\n
    and pelted stones at Kacharu who after sustaining injury on head fell down.\n<\/p>\n
    He unable to explain why A-4 Vijay started running towards the well.  He <\/p>\n
    stated   that   his   father   was   assaulted   by   stick   by   A-1   Kashinath   and   A-3 <\/p>\n
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    Yamaji.   A-2 Shivaji left Ashok and also assaulted Kacharu with sticks, at <\/p>\n
    that time Kacharu was not unconscious though injured.  He also stated that <\/p>\n
    the deceased and A-4 Vijay both running away towards the well which was <\/p>\n
    about 40 fts. from the spot.\n<\/p>\n
           In the cross-examination he stated that he did not tell his father that <\/p>\n
    A-4 Vijay had said about the Kalpana being his wife.  He narrated the same <\/p>\n
    to Ashok, who was shouting and therefore, Kacharu and he came out of the <\/p>\n
    house. He saw Kacharu (the deceased) following A-4 Vijay.  It means, it is <\/p>\n
    doubtful whether he had seen assaults by A-1 and A-3 by sticks on Kacharu <\/p>\n
    at first instance.  Nobody intervened.  He saw the crowd of people when he <\/p>\n
    came out of the house.  The deceased and A-4 Vijay were at the distance of <\/p>\n
    200   to   250   fts   from   the   house   when   he   saw   them   running.     He   also <\/p>\n
    admitted   that   his   view   was   obstructed   on   account   of   people   who   were <\/p>\n
    standing there. The presence of Santosh was not noticed by the Rupa or <\/p>\n
    vice   versa.   This   witness   also   cannot   be   relied   upon   to   convict   all   the <\/p>\n
    accused under Section 302 read with Section 34 of IPC.  The statement of <\/p>\n
    this   witness   cannot   be   accepted   and   relied   upon   with   regard   to   the <\/p>\n
    individual roles played by all these accused;   except he saw his father fell <\/p>\n
    down after sustaining injury as A-4 Vijay turned back and pelted stone.  The <\/p>\n
    injuries,   even   if   any,   on   the   body   of   the   deceased   as   recorded   in   the <\/p>\n
    evidence   of   the   Doctor,   except   injury   No.1   were   not   sufficient   to   cause <\/p>\n
    death.   Therefore, even if there are subsequent assaults by A-1 Kashinath <\/p>\n
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    and   A-3   Yamaji   and   later   on   A-2   Shivaji,   in   the   present   facts   and <\/p>\n
    circumstances, it cannot be stated to be vital to cause death.  PW 4 Santosh <\/p>\n
    also   admitted   that   his   view   was   obstructed   by   the   people   who   were <\/p>\n
    standing there.   There is no justification whatsoever given on record why <\/p>\n
    the witnesses from the crowd were not examined by the prosecution though <\/p>\n
    they were witnessing the incident throughout which went on for about 4 to <\/p>\n
    5   minutes.     Therefore,   nothing   is   clear   from   the   evidence   of   these   two <\/p>\n
    witnesses PW 1 Ashok and PW 3 Rupa, when Kacharu fell unconscious, the <\/p>\n
    vital   head   injury   was   caused   because   of   stone   pelted   by   A-4   Vijay   or <\/p>\n
    because of lathi assault by A-1, A-2 and A-3.\n<\/p>\n
    9      There was no reason for A-4 Vijay to run away from the spot if all <\/p>\n
    had intention or planned to kill “Kacharu”. It appears that A-4 Vijay was <\/p>\n
    running ahead to save himself from the assault of Kacharu or Ashok.  The <\/p>\n
    deceased was following A-4 Vijay towards the same directions as he was <\/p>\n
    also   running   to   save   himself   from   Ashok   and\/or   Kacharu.     There   is   a <\/p>\n
    possibility   that  A-4  Vijay  might  be  apprehending   that  Kacharu   following <\/p>\n
    him to assault and therefore, to save himself, he turned around and pelted <\/p>\n
    stone   which   hit   at   Kacharu’s   head   and   he   fell   down   and   became <\/p>\n
    unconscious.  Therefore, but for sudden provocation, it was never intended <\/p>\n
    even by A-4 Vijay to kill the deceased.  A-1 Kashinath, A-2 Shivaji and A-3 <\/p>\n
    Yamaji   also   followed   Kacharu   as   he   was   running   after   A-4   Vijay,     after <\/p>\n
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    sudden   incident\/provocation   as   they   might   have   thought   Kacharu   was <\/p>\n
    running after A-4 Vijay to assault him.  It appears that, they also ran after <\/p>\n
    Kacharu to save A-4 Vijay from the apprehended attack of Kacharu.   It is, <\/p>\n
    therefore, clear that Ashok went to inquire about the Vijay’s statement and <\/p>\n
    because of provocation, the incident happened.  Accused never planned to <\/p>\n
    kill Kacharu with a common intention.   There is no explanation on record <\/p>\n
    about the injury on person of A-1 Kashinath and A-2 Shivaji.\n<\/p>\n
    10<\/span><\/p>\n
           From the evidence of PW 1, 3 and 4, it is clear that about more than <\/p>\n
    50 people gathered when the incident was going on, including beating as <\/p>\n
    well   as   pelting   stones   at   Kacharu.     No   other,   except   related\/   interested <\/p>\n
    witnesses have been examined by the prosecution.  PW 4 Santosh stated in <\/p>\n
    the   cross-examination   that   his   father   Kacharu   and   Vijay   ran   distance   of <\/p>\n
    about   200   to   250   fts.     He   also   stated   that   his   view   was   obstructed   on <\/p>\n
    account of people who were standing there. Therefore, his evidence cannot <\/p>\n
    be   relied.     There   is   no   evidence   on   record   to   show   that   at   what   stage <\/p>\n
    Kacharu died, whether immediately after the stone hit on his head thrown <\/p>\n
    by A-4 Vijay and\/or after the alleged assault by A-1,A-2 and A-3, as the <\/p>\n
    incident was over within 5 minutes, in front of a number of people.  Even as <\/p>\n
    per PW 1 Ashok, A-1 and A-3 assaulted Kacharu with sticks. At that time he <\/p>\n
    was alive and ran towards the well.  In view of this, we are of the view that <\/p>\n
    it is difficult to accept the reasoning given by the learned Sessions Judge <\/p>\n
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    that all the accused have committed murder with common intention or it is <\/p>\n
    a pre-planned murder.  Looking into the injury report on record, it appears <\/p>\n
    that the deceased sustained fatal injury on head when A-4 Vijay turned back <\/p>\n
    and pelted stones and the deceased Kacharu fell down on the spot, beating <\/p>\n
    even if any, considering injury No.1 on his head, were not fatal.   In the <\/p>\n
    present   facts   and   circumstances   of   the   case,   we   are   of   the   view   that <\/p>\n
    deceased died because of injury No.1 on the head of Kacharu which was <\/p>\n
    resulted as A-4 Vijay pelted stone and the deceased had sustained injury on <\/p>\n
    head.\n<\/p>\n
    11     The Apex Court in Gurmukh Singh Vs. State of Haryana 2009 AIR  <\/p>\n
    SCW   6710,  has   reiterated   and   considered   to   invoke   the   doctrine   of <\/p>\n
    provocation   and   self   defence.   If   an   incident   took   place   at   the   spur   of <\/p>\n
    moment, and there is no intention or pre-meditation in the  mind of the <\/p>\n
    accused to inflict such injuries to the deceased which is likely to cause death <\/p>\n
    in   ordinary   course   of   nature.   The   incident   happened   because   of   the <\/p>\n
    provocation so recorded above and as in defence and under apprehension <\/p>\n
    A-4 Vijay pelted stone which hit on the head of the deceased, and as other <\/p>\n
    accused ran after Kacharu to save Vijay and even if assaulted and by that <\/p>\n
    time the deceased was already fell down and became unconscious as hit by <\/p>\n
    the stone on the head. Merely because the accused were there together but <\/p>\n
    there is no sufficient material to connect which injury specifically caused by <\/p>\n
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    which accused, by which weapon and at what time. There is no connecting <\/p>\n
    material to show that injury No.1 caused by other accused, by lathi, except <\/p>\n
    A-4 Vijay by stone.   Therefore, we are of the view that the conviction so <\/p>\n
    ordered under Section 302 read with Section 34 of IPC to all the accused is <\/p>\n
    unsustainable.  Section 304, Part-II of IPC in the present case applies as A-4 <\/p>\n
    Vijay had inflicted though in the hit of moment to save himself and inflicted <\/p>\n
    blow on the head of Kacharu because of which he fell down immediately <\/p>\n
    and became unconscious on the spot.  Even as per the doctor, this injury No.<\/p>\n
    1 is  sufficient to ordinary course of nature to cause death.   There is no <\/p>\n
    material to show that it was pre-meditated or planned to attack or assault.\n<\/p>\n
    In  Jagrup Singh Vs. State of Haryana (1981) SCC 616   the Court has <\/p>\n
    altered the conviction of the accused from Section 302 IPC to Section 304 <\/p>\n
    Part II of IPC and the same was done in Gurmail Singh and Ors. Vs. State  <\/p>\n
    of Punjab (1982) 3 SCC, 185  and  Gurmukh Singh (Supra).\n<\/p>\n
    12     It   is   necessary   to   consider   the   basic   and   original   reason   of   the <\/p>\n
    occurrence in such cases.  The learned Judge has not considered the same.\n<\/p>\n
    The first and second assault cannot be read in isolation by overlooking the <\/p>\n
    background   and   the   genesis   of   the   events.   Though   referred   but   without <\/p>\n
    dealing in detail, the learned Judge has rejected the pleas of self defence <\/p>\n
    and of sudden provocation, which are relevant to decide the murder case <\/p>\n
    based   upon   the   material   and   evidence   on   record.     Even   as   per   the <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 16:30:02 :::<\/span>
\n                                                           13                    apeal.659.90.sxw
\n    ssm<\/p>\n
    prosecution, Ashok went to the place of accused first, where Kacharu also <\/p>\n
    came,   the   accused   never   went   to   their   place   to   attack   them.   The <\/p>\n
    background and the sudden events resulted into the death of Kacharu.\n<\/p>\n
    13     It is settled that though accused does not plead self-defence and or a <\/p>\n
    case of sudden provocation, the Court can consider such facts and pleas <\/p>\n
    based   upon   the   material   on   record   even   in   Appeal   against   the   order   of <\/p>\n
    conviction   before   passing   the   final   judgment.   The   supreme   Court   has <\/p>\n
    maintained the order of acquittal, on the following principles, in [(2010) 2 <\/p>\n
    SCC 333, Darshan Singh Vs. State of Punjab and Anr.]<\/p>\n
           i)      ….\n<\/p>\n
           ii)     ....\n     \n\n\n\n           iii)    A mere reasonable apprehension is enough to put the \n<\/pre>\n
                   right of self-defence into operation.   In other words, it
\n                   is   not   necessary   that   there   should   be   an   actual <\/p>\n
                   commission of the offence in order to give rise to the
\n                   right of  private  defence.    It is  enough  if the  accused
\n                   apprehended that such an offence is contemplated and
\n                   it   is   likely   to   be   committed   if   the   right   of   private
\n                   defence is not exercised.\n<\/p>\n
           iv)     The right of private defence commences as soon as a
\n                   reasonable   apprehension   arises  and   it   is   coterminous
\n                   with the duration of such apprehension.\n<\/p>\n
           v)      It   is   unrealistic   to   expect   a   person   under   assault   to
\n                   modulate his defence step by step with any arithmetical
\n                   exactitude.\n<\/p>\n
           vi)     .....\n\n\n\n\n                                                                  ::: Downloaded on - 09\/06\/2013 16:30:02 :::<\/span>\n                                                          14                     apeal.659.90.sxw\n    ssm\n\n\n           vii)    It is well settled that even if the accused does not plead \n<\/pre>\n
                   self-defence, it is open to consider such a plea if the <\/p>\n
                   same arises from the material on record.\n<\/p>\n
           viii) The accused need not prove the existence of the right <\/p>\n
                 of private defence beyond reasonable doubt.\n<\/p>\n
           ix)     ...... \n\n\n\n\n                                                                \n           x)      A person who is in imminent and reasonable danger of \n<\/pre>\n
                   losing his life or limb may in exercise of self-defence
\n                   inflict   any   harm   even   extending   to   death   on   his
\n                   assailant   either   when   the   assault   is   attempted   or <\/p>\n
                   directly threatened.”\n<\/p>\n
    14<\/span><\/p>\n
           There is nothing to show that there was any previous enmity between <\/p>\n
    the parties.   The incident took place suddenly and there was no common <\/p>\n
    intention of the accused persons and there was no conspiracy to kill the <\/p>\n
    Kachru.   There is a material to show that even the accused were injured.\n<\/p>\n
    The   death   as   recorded   above,   was   caused   because   of   injury   No.1   only.\n<\/p>\n
    There is nothing to point out who had caused injury No.1 out of these 4 <\/p>\n
    accused.   The trial court has convicted all the accused under Section 302 <\/p>\n
    read with Section 34 of IPC.  There is no clear recording of the reasons with <\/p>\n
    regard   to   the   individual   role   played   by   these   4   accused.     In   above <\/p>\n
    background  and  in  the  peculiar   facts  and circumstances  of  the  case,  we <\/p>\n
    have to consider Section 304, Part II of IPC.\n<\/p>\n
    15     In   view   of   above,   therefore,   so   far   as   A-4   Vijay   is   concerned,   we <\/p>\n
    convert the sentence from 302 of IPC to 304 Part II of IPC and sentence him <\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 16:30:02 :::<\/span>
\n                                                        15                    apeal.659.90.sxw
\n    ssm<\/p>\n
    to   suffer   rigorous   imprisonment   for   four   years   and   impose   fine   of <\/p>\n
    Rs.1,000\/- (Rupees one thousand only) instead of Rs.100\/- in default to <\/p>\n
    suffer rigorous imprisonment of 3 months, more.   A-4 is also convicted of <\/p>\n
    the offence punishable under Section 324 of the IPC.  However, no separate <\/p>\n
    sentence   is   imposed   since   he   is   convicted   and   sentenced   of   the   offence <\/p>\n
    punishable under Section 304 Part II of IPC instead of Section 302 of IPC.\n<\/p>\n
    16     So far as A-2 Shivaji is concerned, in view of above reasoning itself, <\/p>\n
    as we found that there is no direct evidence to connect that the alleged <\/p>\n
    subsequent assault by Lathi caused the death of Kacharu as he fell down <\/p>\n
    immediately because of stone pelted by A-4 Vijay.  As recorded, he caught <\/p>\n
    hold Ashok and he was standing quite away when A-4 Vijay pelted stone at <\/p>\n
    Kacharu at second time.\n<\/p>\n
    17     So far as A-1 Kashinath and A-3 Yamaji are concerned, it is clear from <\/p>\n
    the evidence that after fatal injury on the head of the deceased and after he <\/p>\n
    fell down, A-2 Shivaji  and A-3 Yamaji ran and assaulted  the deceased with <\/p>\n
    sticks but by that time the deceased was already fell down and unconscious.\n<\/p>\n
    In spite of earlier attack of Lathi or stone, Kacharu was alive and running <\/p>\n
    after A-4 Vijay and\/or towards the well.   A-1, A-2 and A-3 therefore, ran <\/p>\n
    after   the   Kacharu   as   he   was   running   after   A-4   Vijay   probably   with <\/p>\n
    apprehension that Kacharu might to assault A-4 Vijay.  A-4 Vijay also turned <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 16:30:02 :::<\/span>
\n                                                   16                   apeal.659.90.sxw
\n    ssm<\/p>\n
    around   and   pelted   stone   on   that   apprehension   and   therefore,   this <\/p>\n
    provocation and self defence \/ attack in our view, cannot be stated to be <\/p>\n
    planned or intentional attack to kill the deceased.   However, considering <\/p>\n
    the above facts and circumstances itself, we set aside the order of conviction <\/p>\n
    under Section 302 of the IPC and convict them under Section 322, 325  of <\/p>\n
    IPC and direct them to suffer rigorous imprisonment of one year and a fine <\/p>\n
    of  Rs.500\/- to each of them (A-1, A-2 and A-3) and in default to suffer 3 <\/p>\n
    months rigorous imprisonment, subject to set off, if any.\n<\/p>\n
    18    As all the accused are on bail, in view of above conviction, the bail <\/p>\n
    bonds are cancelled.   They should surrender to the bail to complete the <\/p>\n
    sentence.\n<\/p>\n
    19    The Appeal is accordingly partly allowed. \n\n\n\n\n\n          (ANOOP V. MOHTA, J.)                           (P.B. MAJMUDAR, J.)\n\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 16:30:02 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court All vs The State Of Maharashtra on 1 October, 2010 Bench: P. B. Majmudar, Anoop V.Mohta 1 apeal.659.90.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 659 OF 1990 1 Kashinath Punjaji Shardol, 40 yrs. 2 Shivaji Yashwant Shardol, 25 yrs., 3 Yamaji Punjaji Shardol, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-205646","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAll vs The State Of Maharashtra on 1 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/all-vs-the-state-of-maharashtra-on-1-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"All vs The State Of Maharashtra on 1 October, 2010 - 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