2015 ALL MR (Cri) 3201
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A. H. JOSHI, J.

Ajay Vishnupant Udgiri Vs. The State of Maharashtra

Criminal Appeal No.467 of 1994

20th September, 2013.


Respondent Counsel: Ms. A.A. MANE

(A) Penal Code (1860), S.304 Part II - Culpable homicide - Conviction - Sustainability - Assault with knife on chest - Evidence reveals that act of accused was not product of provocation - But by way of act of defence of other victim - Once, right of accused to defend himself or any other victim is recognized - And if it is proved that accused had charged for protecting some other person - The excess ought not to be construed totally adverse to accused - Further, prosecution has withheld genesis of incident from court - Hence, benefit of doubt should be given to accused - Conviction can not be sustained. (Paras 9, 11, 12)

(B) Penal Code (1860), S.100 - Private defence - Implication of - When defender charges by way of defence, it will be extreme to expect high degree of diligence as regards to proportion and impact of assault by him - Excess ought not be construed totally adverse to accused. (Paras 10, 11)

JUDGMENT

JUDGMENT :- None appears for the appellant. Perused the impugned judgment and order.

2. The accused were charged for the offences punishable under section 302 read with section 34 of the Indian Penal Code and section 135 of the Bombay Police Act.

3. At the end of the trial the appellant accused is convicted for the offence punishable under Section 304 of the Indian Penal Code. It is seen from the record that Accused no.2 is acquitted.

4. This Appeal is directed against the judgment and order dated 8th August passed by the learned Sessions Judge, Solapur in Sessions Case No. 208 of 1993 convicting the accused No.1 for the offences punishable under Section 304 Part II of the Indian Penal Code read with Section 135 (i) of the Bombay Police Act.

5. The deceased Krishna had suffered following injuries :

"(1) Stab injury on the chest 4 inch below the left nipple at 6th coastal cartilage 1 " x 1/2" cavity deep, transverse and clean margins, elliptical in shape and scratch on medial aspect, 3 " in length transverse reddish.

(2) Linear abrasion on medial aspect of right arm 3" x 1/4" brown, longitudinal.

(3) Abrasion on post, aspect of right forearm near elbow, 4" x 2 1/2" brown.

(4) Superficial incised wound on medical aspect of the right palm 1" length and clean margins."

(The text is quoted from page nos. 87 and 88 of the paper book)

6. The accused No.2 Vishnu also suffered injuries, which read as follows:

"(1) Abrasion on right wrist posterior aspect 2 c.m. x 2 c.m.

(2) Abrasion on right thumb 1 c.m. x 1 c.m.

(3) Abrasion on right right hand on exterior aspect 2c.m. x 1 c.m.

(4) Abrasion on left knee 2 c.m. 2 c.m."

(The text is quoted from page no. 83 of the paper book)

7. All the four injuries suffered by accused Vishnu are simple.

8. In the present case, the assault done by appellant was by use of knife was on the chest and puncture occurred to the heart of the deceased namely Krishna was of 1/2 " x 1/4" and death was due to shock and haemorrhage.

9. The evidence reveals that the act of the accused was not a product of provocation, as well as by way of act of defence of other victim. Once the accused had to act in defence, in the extreme hurry which occurs due to assault, the defence does not and cannot be expected to possess the sense to the fine accuracy as well as the site where the assault which is the defence, to be made.

10. In the peculiar situation, when the defender charges by way of defence, it will be too extreme to expect from him high degree of diligence as regards proportion and impact of assault, when he makes an assault by way of defence.

11. Once the right of the accused to defend himself or any other victim is recognized , and it is proved that he had charged for protecting some other person, the excess ought not be construed totally adverse to the accused.

12. Moreover on the facts of the case, it is seen that the prosecution has withheld from the Court the genesis of the case the incident. Thus when truth is withheld from the court, benefit of doubt needs to be given to the accused.

13. In the result, the conviction of the accused which is based on suspicion, requires interference.

14. In the circumstances, the judgment and order is set aside. Accused No.1- the appellant is acquitted of the charge. Find amount be refunded.

15. The appeal is hereby allowed.

Appeal allowed.