DATTU SHAMRAO VALAKE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an against conviction filed by the appellants (hereinafter referred to as the accused) seeking to quash and set aside the judgment and order passed by the Additional Sessions Judge, Kolhapur on 24-6-1987 in Sessions Case No. 35 of 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 order, accused Nos. 1 and 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 a 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 (l) (a) of the Arms Act and sentences to suffer R. I. 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 R. I. 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 Varatatwadi in District Kolhapur. His sons were Sambhaji (P. W. 10), Ananda and deceased Bajirao. He had a daughter by name Akkatai who had ben 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 were looking after her lands. In return, Akkatai had given them a land at village Avail which is towards the Southern side of village Walkewadi, were 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 pervious night at about 1. 00 a. m, Sambhaji (P. W. 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 (P. W. 10) and Ananda drove out the cattle. Accused No. 1 then went away to his house situated at village Walkewadi and Sambhaji (P. W. 10) and Ananda returned to their own house at village Vartakawadi. (c) On the next day i. e. 18-8-1984 at about 10. 30 a. m. Sambhaji (P. W. 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 and 4 were carrying axes. Accused No. 1 Dattu fired his gun in the air and told 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 (P. W. 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 Sambhji (P. W. 10) attempted to go near Bajirao and Krishna he was attacked by accused Nos. 2 and 4. According to Sambhaji (P. W. 10), accused No. 2 gave a stick blow on his head and also gave him 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 (P. W. 9) and one Jaswant. (e) After the incident was over, Sambhaji (P. W. 10) took the bullock cart of Akkatai, who was residing nearby on the south west side from the scene 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 (P. W. 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 Kodoli Police Station. The Kodoli police Station then registered the offence on 19-8-1984 at 1. 30 p. m. (P. W. 14) Asstt. Sub-Inspector Kherappa Kamble was the officer who registered the offence and he then proceeded to the scene of the offence where he drew the scene of offence panchanama. Akkatai Valake (P. W. 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 one Shamrao Hari Valke i. e. accused No. 2 had also lodged his own complaint against the complainants party including Sambhaji (P. W. 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 P. S. I. Sudhakar Kharbas (P. W. 17 ). He went to the scene of offence and to the house of accused and seized a gun alongwith its licences under a panchanama (Exh. 15 ). He searched the house of the accused and in the said search the found and 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. (P. W. 17) recorded the statement of eye-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 (Exh. 30 ). He also attached under the said 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 clothes 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. (1) On 30-8-1984 the Investigating Officer took a sample of the blood of the accused and sent the same to the Chemical Analyser, Bombay. (m) On 4-9-1984 the Investigating Officer recorded the statements 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 Cri. P. C. was also recorded. Thereafter as the defence wanted to lead its own evidence, they were permitted to do so and Che defence examined one witness i. e. (D. W. 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 occurred 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 judgement 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, (P. W. 8) and (P. W. 9) had been dis-believed by the Sessions Court itself. The evidence of the eyewitnesses 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. (P. W. 5) had stated that he had examined one Sadashiv from the party of the accused who had suffered CLW over occipital region of his head extending to vertex vertically placed 6" x 2" scalp deep, with a big haematomo 100 ml approximately 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 upon 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-war-ranted 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.