SITARAM KONDI TALAP Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In Sessions Case No. 37 of 1979 tried by the learned Additional Sessions Judge of Kolhapur, five persons were prosecuted for offences punishable under sections 307, 326 and 324 read with sections 148 and 34 of the Indian Penal Code. Of the five accused, accused Nos. 1 and 2 are brothers while, accused Nos. 3 and 5 are the wives of accused Nos. 1 and 2 respectively. Accused No. 4 is another lady related to the other accused. The facts leading to the prosecution have been set out in great details in the judgment of the learned Additional Sessions Judge and it is unnecessary to refer to them again. The backdrop of the incident which gave rise to the prosecution is the neighbourhood of the two pieces of and owned by the party of the complainant on the one hand, and by the party of the accused, on the other. In between, but on the land of the accused, is a bund which, it has now been held, is of the ownership of the accused. The prosecution evidence itself shows that there are decisions of the revenue authorities that the bund is not only of the ownership of the accused, but it is in the land of the accused themselves. One should not, therefore, forget this basic fact which forms the bedrock of the defence of the accused, which I will mention shortly.

(2.) On the day in question, namely 14th of April, 1978, at about 10 a.m. the incident, in which several person were injured and which led to the present prosecution, took place. The prosecution case was that, accused No. 1 and the other accused forming an unlawful assembly attacked P.W. 3 Kamal Ganpat Talap and P. W. 4, Mahadeo Natha Talap with lethal weapons causing them several injuries and in particular grievous injury to Mahadeo Natha. That gave scope for framing the charges under sections 307 and 326 of the Indian Penal Code. Investigation was carried out pursuant to the first information report at Exhibit 41 lodged by P. W. 3, Kamal Ganpat. It is unnecessary to refer to the further steps taken in the investigation or to the other, evidence brought on record by the prosecution, because the incident itself has been admitted by the accused themselves. They have however, pleaded the right of private defence by contending that P.W. 4, Mahadeo and others started damaging the bund which was being constructed by them and in order to prevent further mischief to the bund they took steps to prevent Mahadeo and others from damaging the bund any further. The short question, therefore, that fell for determination before the Court below and that falls for determination before me is whether the accused caused injuries to the members of the complainants party in exercise of their right of private defence-both of their property and of their person.

(3.) The learned Additional Sessions Judge has, in paragraphs 31 to 33 of his judgment, dealt with this question. He proceeded to reject the defence case that they had a right of private defence on the ground firstly, that greater number of injuries have been caused to the members the complainants party, while on the side of the accused Sitaram, accused No. 1, alone had received injury. He also held that, even if the accused acted in exercise of their self-defence, they exceeding in inflicting so many injuries on so many victims including the womenfolk. He has discussed this question of exceeding the exercise of private defence in paragraph 33 of his judgment. The reasoning contained in the said paragraph is highly unsatisfactory because, it proceeds on a non-examination of the relevant provision of the Indian Penal Code, namely section 104. Consistent with the view which he thus took, the learned Additional Sessions Judge, by his judgment and order dated 18th October, 1979, convicted the accused No. 1 of the offence punishable under section 326 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000. In default of the payment of fine, rigorous imprisonment for six months was awarded. The learned Sessions Judge also convicted accused No. 2 of the offence punishable under section 324 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three months. Accused Nos. 3, 4 and 5, who are ladies, were convicted of the offence punishable under section 323 of the Indian Penal Code and were admonished under section 3 of the Probation of Offenders Act, instead of being sentenced. All the accused were acquitted of the other offences, charges in respect of which had been framed against them.