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TMI Blog2005 (4) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 was also convicted under Section 324 IPC. Accused Nos. 1 to 4 were, however, acquitted of the offence under Section 307 IPC. All the accused were sentenced to life imprisonment. 2. On appeal, the High Court acquitted the accused Nos. 1 to 4 for the offences under Section 302 read with Section 34 and the High Court convicted the appellant No. 2 (A-3)-Tanaji Shamrao Valake under Section 302 IPC and the appellant No. 1(A-1) - Dattu Shamrao Valake under Section 304 Part I IPC and sentenced them to life imprisonment and rigorous imprisonment for a period of 10 years respectively. The conviction of accused No. 1 (appellant No. 1) under Section 25(1)(a) of the Arms Act was maintained. The fourth accused's conviction Under Section 324 was upheld. Aggrieved by their conviction and sentence, the two appellants who are accused Nos. 1 & 3 have filed the present appeal against the judgment of the High Court of Bombay. 3. The case of the prosecution is as follows:- The deceased and the accused belonged to nearby villages, namely Varakatwadi and Walkewadi respectively. There was a quarrel on the intervening night of 18th/19th of August, 1984 in connection with the grazing of cattle of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fatal wound. 5. The accused too did suffer injuries as noted by the High Court in paragraph 9. The details of such injuries are as follows: (1) Accused No. 2 - Shamrao, had suffered incised wound obliquely on the right parietal region of his head, 2" x 1/4", contusion 1" x 1" over left wrist and multiple abrasion over the right scapula region. (2) Accused No. 1 - Dattu Shamrao, had suffered contusion over left forearm, 2"x1" reddish in colour. (3) Accused No. 3 - Tanaji had suffered contusion 8"x1" over chest from mid sternum extending obliquely to left anterior axillary line (which injury according to the Doctor could be caused by the motor cycle chain) and two other contusions over left deltoid region (2"x1") and left inguinal region (3"x1"). 6. Four others (other than the accused) were also injured. 7. PW12 - Head Constable of Lakshmipuri police station was on duty in CPR hospital, Kolhapur on the date of the incident. Having come to know that three injured persons were admitted in the hospital, at about 3.00 p.m., he went and saw the patients namely Krishna, Bajirao and Sambaji in the ward and he recorded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same time, as far as the third accused-second appellant is concerned, the High Court felt that there was really no justification for causing three injuries with a deadly weapon because by the time he mounted the attack, the threat from the side of the deceased and his companions had abated and moreover, by the very first injury, the deceased would have been incapacitated. The High Court was therefore of the view that A3 intended to cause more harm than was necessary for the purpose of self defence. The High Court therefore convicted the second appellant (A3) for the offence under Section 302 IPC for his individual act of fatally attacking Bajirao. As regards the 1st appellant, the High Court gave the benefit of Exception 3 to Section 300 and convicted him for the offence under Section 304 Part I and sentenced him to ten years rigorous imprisonment. 10. Accused Nos. 2 & 4 were acquitted by the High Court on the ground that they did not play active part, that the injury alleged to have been caused by accused No. 2 was not proved by medical evidence and that accused No. 4 arrived at the scene of offence much later as per the version in the FIR. In spite of the finding that the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns who, according to the High Court, were the aggressors. In this context, we remind ourselves of the case set up by the accused in their police report and in their written statement in response to Section 313 examination according to which the deceased Krishna and his three sons entered the house of the accused armed with axe etc., challenged the accused to come out and attacked one of them (2nd appellant) with cycle chain and at that juncture A1 brought gun and fired in the air. Yet, according to the accused, the attack continued. However, this version cannot be true as the evidence unmistakably reveals that the incident did not happen within the premises of the accused or even in front of it. The incident happened in the lane in front of the house of one Honduran Walake. It may be that the place of occurrence is not too far from the house of the accused but the fact remains that the incident took place in a public street outside the houses of the accused. The houses of the accused are towards the east of the place of offence separated by two or three houses. The trial Court discussed this aspect in detail. The learned Sessions Judge referred to the map (Ext. 53), the scene of of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e very next day. It is commented that the explanation of PW6 - Akkatai that they came to the village in order to attend to weeding operations in her lands is highly improbable. Attention is drawn to her statement that there was no 'special reason' for requesting her parents to attend to the work on her fields. We find it difficult to accept this contention. We have already extracted the finding of the trial Court and we agree with the trial Court that there is nothing unnatural or improbable in the version given by PW6. Too much cannot be read into the statement of PW6 that there was no 'special reason'. The omission to spell out 'special reason' for requesting her parents and brothers to help her in agricultural operations is no ground to disbelieve her evidence, especially in view of the evidence on record that her kith and kin from the parents' side were looking after some of her lands in view of the mental incapacity of her husband. Moreover, the fact that the lady members of the family were accompanying them coupled with the fact that there were only three able-bodied males in the prosecution party (Krishna being a very old man) and the further fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter that there is nothing to show that he tried to reload and use it against the deceased. In fact initially only one accused was having an axe. It is only later on that the accused No. 4 is alleged to have joined the fight armed with an axe which is also indicative of the fact that there was no pre-concert amongst the accused to attack the members of the prosecution party. Though he is alleged to have attacked PW10 with an axe, no severe injury was inflicted on PW10. Above all, the incident was of a short duration and the accused fled from the scene immediately after the fight. These events could probably the fact that there was no premeditation and the attack was in the course of free fight. There is therefore a case to apply Exception 4 to Section 300 provided the ingredients of the last clause, that is to say, "without the offender having taken undue advantage or acted in a cruel or unusual manner" are satisfied. There is no difficulty in holding that the offenders have not taken undue advantage of the situation. Both parties, who were armed, engaged themselves in a fight and both inflicted injuries against the other. 20. The only doubt that arises is whether A3, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not having any weapon in his hand. Instantaneously he picked up the axe that was in the hands of the injured - Bajirao and dealt a blow with that axe on the neck of the deceased Krishna. Though another injury was found on the left parietal region, according to the Doctor - PW5, it was injury No. 1 that was serious. Krishna who, according to postmortem report, was aged about 75 years, succumbed to the injury the following day. It is reasonable to infer, from the conduct of the 1st appellant and the manner of attack on an old person, that the appellant No. 1, by causing the injury with axe on the neck of the deceased Krishna, was having knowledge that the said act was likely to cause death; but, he had no intention to cause death or such bodily injury as was likely to cause death. We therefore find the 1st appellant - A1 guilty under Section 304 Part II. As regards sentence, we feel that having regard to the facts and circumstances of the case, five years of imprisonment and fine of ₹ 1,000/- will be adequate and proper. Accordingly, he is convicted and sentenced. In default of payment of fine, he will suffer further imprisonment of four months. The appellants will of cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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