Dinkar Barsagade vs The State of Maharashtra

A.B. Palkar, J.—The appellant, undergoing life imprisonment for the offence punishable u/s 302 of the Indian Penal Code, has challenged the conviction and sentence in this appeal.

In brief, the prosecution case is as below:--

Appellant is nephew of deceased Yadavrao Mendulkar and is resident of the same village, Rajoli. On 11-1-1993, there was initially some quarrel between appellant and the deceased whereafter the appellant having gone to the house of deceased, abused him from in front of the house. The deceased came out and there was further quarrel between them in front of hotel of one Deorao Bhale (P.W. 8). Both were pacified by Deorao and were sent back from the spot. However, after some short interval of time, they came to the same spot where there was quarrel between them. A scuffle ensued in course of which the appellant dealt 7-8 blows with a knife to the deceased which included blows on vital parts of the body, as a result, the deceased fell down and later on died sometime after he was taken to the local doctor of Primary Health Centre and was examined by him.

According to the prosecution, this second incident took place sometime at about 7.00 p.m. One Yuvraj Wanaskar who had seen the incident, reported to the son of deceased, viz. Dashrath and Dashrath lodged complain to the Police Station which is treated as first information of the offence. The incident was seen not only by the hotel owner and some of the residents of the nearby locality, but even by wife and daughter of deceased who came thereafter hearing the commotion. According to prosecution, there was some dispute going on for long between the deceased and the appellant and as a result of which, the deceased was assaulted and done to death by the appellant.

After report was lodged by Dashrath, son of deceased, offence was registered by Police Station Officer Ingole (P.W. 11). The injured (deceased) was sent to the Rural Hospital and memo was issued to the Tahsildar (Executive Magistrate) for recording dying declaration of the deceased. However, since the deceased met with death in the meantime, the dying declaration could not be recorded. After the deceased was examined by doctor and some primary treatment was given, deceased succumbed to the injuries. Inquest panchanama was drawn and the body was sent for autopsy. P.W. 9 Dr. Ghanshyam Patil of the Primary Health Centre conducted autopsy. After careful examination of external and internal injuries, he opined that the death was caused due to cardio respiratory arrest following haemorrhagic shock due to multiple stab injuries over the body. Further investigation was conducted by P.W. 11 Ingole who drew panchanama of scene of offence and collected blood-stained and plain earth; and blood-stained clothes of the deceased. After arresting the accused, he recorded the statement of accused leading to the discovery of knife which was hidden in a box along with blood-stained clothes. Blood-stained clothes of the accused, knife as well as blood-stained clothes of deceased and blood sample of both of them were sent to the Chemical Analyser. Number of witnesses were examined during course of investigation and after investigation was over, charge-sheet was sent to the Court of Judicial Magistrate, First Class and the case was in due course committed to the Sessions Court.

The accused denied the charge. In his defence, the accused stated that there was dispute between deceased and his mother and on that day he was going to the house of a Brahmin. The deceased came in drunken state armed with stick, dealt him stick blow on the nose as a result of which he sustained bleeding injury and fell down. He then went to the house of Police Patil and narrated the incident to him. However, when he returned to the spot along with Police Patil, deceased was seen lying on the spot. He has, therefore, not caused injuries to the deceased and is not responsible for the same.

The trial proceeded in course of which the learned Additional Sessions Judge recorded evidence of eleven witnesses and after scrutiny of the entire evidence placed before him and considering the arguments advanced, he found the accused guilty of the offence punishable u/s 302 of Indian Penal Code and passed the impugned order.

To be brief, there is overwhelming evidence in support of the prosecution case inasmuch as there are four eye witnesses to the incident including the wife and daughter of the deceased viz. P.W. 5 Anusuya and P.W. 6 Manda respectively. The owner of the hotel, Deorao Bhale as well as one neighbouring resident, P.W. 3 Dashrath have also supported the prosecution case and thus, there is evidence of two witnesses who can be said to be independent and disinterested. Since there is no dispute regarding the fact that incident occurred in front of the hotel of Deorao (P.W. 8), his evidence is material. He has stated that at about 5/5.30 p.m. accused had come on bicycle and kept his bicycle at his house and after 10-15 minutes, he came on the road. He was abusing. He went upto the house of deceased Yadaorao whereupon Yadaorao came out with stick. There was exchange of hot words between them. The witness tried to pacify both of them. The accused was having knife in his hand. However, he sent back accused from the spot towards temple and also sent back deceased Yadaorao to his house. Thereafter Yadaorao came upto his hotel (it appears that there was some time gap to which this witness has not referred) and Yadaorao was shouting for help in order to save him from the accused. Accused was not leaving Yadaorao whereby he means to say that accused had caught hold of Yadaorao and was not ready to leave him. He then tried to see that knife is taken from the accused, but the accused was not ready and did not give up the knife and dealt 2-4 blows to Yadaorao and Yadaorao fell down and accused left the place. Thereafter, Yadaorao demanded water and he served water and milk to Yadaorao. Doctor was called, but the doctor did not come and family members of Yadaorao took him to Primary Health Centre. He also stated that there was quarrel going on between accused and deceased for the last 5-10 years. In cross-examination, he has stated that there was gap of half an hour between the two incidents. This witness was well acquainted with the accused and the deceased and at the time of first incident, he intervened and separated them. There is absolutely nothing in the cross-examination of this witness and as pointed out earlier, the material portion of his evidence is borne out by the evidence of P.W. 7 Vilas who is resident of the same locality and had gone to a pan shop after taking meals. He saw the accused coming from square and followed him and was halting near bank office. He also saw quarrel between accused and deceased Yadaorao and saw knife in the hand of accused with which accused dealt 3-4 blows on the person of Yadaorao on neck, chest both sides and below the shoulders, Police Patil came there and took Yadaorao in tractor to Mul. Even in his cross-examination, nothing is brought out to disbelieve his version and his evidence is further corroborated by the evidence of wife and daughter of Yadaorao. Their evidence cannot be brushed aside merely because of their relationship with the deceased, because obviously they are interested not only in the deceased, but in bringing to book the real culprit who has caused the death of their near and dear one. It is not probable that for involving the accused, they would let the real assailant go scot free. Admission of P.W. 7 Vilas in the cross-examination that wife and daughter of Yadaorao came to the spot of incident after the incident has, therefore, been rightly ignored by the learned Trial Judge and even if presuming for the sake of argument that they did arrive immediately thereafter, the fact that they reached the scene of offence and saw the deceased lying in pool of blood in injured condition, is by itself eloquent. It is also material to point out that the conduct of these witnesses really shows that they were obviously present and have seen the incident.

Evidence of Anusaya (P.W. 5) and Manda (P.W. 6) at the material time is rightly believed by the learned trial Judge. Anusuya (P.W. 5) immediately went to the house of Police Patil, Manikrao Thakare (P.W. 9) and although the accused took precedence to her in reaching there, she asserted that the accused was disclosing a false story when he himself had dealt severe knife blows to her husband who was still lying on the spot. The blood on the clothes of accused was that of her husband which fact is ultimately proved by the C.A. Report. The evidence and further conduct of Police Patil Manikrao Thakare (PW-9) lends complete assurance to the earlier version of Anusaya (P.W. 5). Anusaya has also stated the earlier part which shows that without any provocation or cause and as a result of old enmity, the accused had earlier gone to the house of deceased and had abused from the road in front of the house due to which the deceased came out and there was quarrel between them.

This evidence considered in the light of the medical evidence of seven injuries with profuse bleeding therefrom including four deep penetrating injuries two of which were on the chest on left as well as right side and other were on the arms, it is obvious that the accused had gone with knife in hand with clear intention to finish the deceased and caused such multiple injuries. The postmortem report further corroborates the above discussed evidence.

This is further supported by the circumstantial evidence on finding of bloodstains on the knife and clothes of accused which blood was of the" group to which the deceased belonged and no blood-stains of blood group to which the accused belongs were found on his clothes.

In view of this overwhelming evidence, the learned counsel for the accused concentrated more on making out case for the offence of culpable homicide not amounting to murder. It was contended that in view of the fact stated by P.W. 5 Anusuya in cross-examination coupled with the fact that immediately after the incident the accused had gone to the Police Patil to report that he had been assaulted with stick and on being examined on the next day the accused was found to have two injuries viz. lacerated wound over face on left side of 1/2 inch x 1/2 inch and superficial abrasion over forehead on left side of 1 inch x 1/2 inch, the version of the accused that the deceased assaulted him with stick is fortified and if the deceased was armed with stick and had not only wielded the same but had also given blows to the accused, then the accused can be said to have acted in his own defence and even if it is accepted that the accused is the author of the injuries found on the person of the deceased, he can at the most be said to have exceeded his right of private defence. The offence would, therefore, not amount to murder punishable u/s 302 of the Indian Penal Code, but would be squarely covered by Second Exception to Section 300, punishable u/s 304, Part-I of the Indian Penal Code.

We have given our anxious consideration to this argument of the learned counsel and are convinced that neither on facts this defence is made out from the evidence of prosecution nor the entire evidence and the circumstances brought on record can lead us to the conclusion of there being a probability of the accused having caused the injuries to the deceased in exercise of the right of private defence.

On facts, it is necessary to point out firstly that this defence has not been raised by the accused during the trial and no attempt whatsoever was made in the Trial Court even to indicate remotely that the accused could be said to have caused the injuries in exercise of right of private defence. In his statement u/s 313, Cr. P.C. the accused has cautiously stated his version of the incident to which we have already referred in the earlier part of the judgment. It was not even suggested to any of the prosecution witnesses that at the time of incident the deceased was having stick in his hand muchless that he wielded any threat or dealt any of stick blow to the accused. Another aspect of the matter is that if the deceased had a stick in his hand and was threatening the accused with the same and wielding the same towards the accused with an intention to strike at him, then the accused having only knife in his hand, would not even be in a position to go towards the deceased and in close proximity of the deceased and deal so many blows one after the other causing deep penetrating injuries on vital parts of his body. Even if it had so happened, the stick in the hand of the deceased would have fallen on the spot and could, have been found there and in any case, suggestion to this effect could have been given to the witnesses even without indicating directly that the blows were dealt with knife by the accused.

However, we are fully in agreement with the learned counsel for the appellant, Shri M. R. Daga that the accused need not spell out his defence directly and if the evidence including the circumstantial evidence brought on record by prosecution is such that the defence is probabilised, then even at this stage if the Court is satisfied about the probability of the accused having acted in his defence, the same has to be considered by the Court as the argument is based on the established legal principles. We are, however, unable to accept this submission of the learned counsel for the reason that even if we refer simply to the number of major injuries inflicted to the deceased, it is highly improbable that the deceased had any weapon at the time of the incident. If, as informed by the accused to the Police Patil, he had been assaulted with stick, had bleeding injuries and the blood on his clothes was as a result of said injuries, the blood of the accused would have been found on his clothes, but the undisputed fact that the blood found on the person of the accused was of deceased, clearly rules out the probability that the blood of the accused was split or spread on his clothes. There is no dispute over the admitted animosity between accused and deceased, but such inimical relationship can equally be a cause for the accused to do away with the life of the deceased by causing such severe injuries. The injuries of the accused are in fact so minor and since there is absolutely no material even to indicate that at the relevant time there was stick in the hand of deceased, it is not possible to accept that there was any right of private defence in favour of the accused at any point of time and in fact, it is clear from the entire evidence that it was the accused who was the aggressor and he had taken knife with him with clear intention to finish the deceased. It was the accused who had first gone to the house of deceased and had abused him from in front of the house and even in the second incident, it was the accused who not only caught hold of him, but in spite of hotel owner P.W. 8 Deorao having asked him to leave the deceased, did not leave him and did not even allow him to remove knife from his hand and thus, the accused being aggressor cannot even be heard to say that there was at any point of time any right of self-defence in his favour. In the result, we find that the argument of the learned counsel for appellant in this regard deserves to be rejected in totality and no other point having been urged, we find no substance in this appeal which must fail.

Appeal is dismissed.