Partly allowed

Baban Vithoba Londhe v. the State of Maharasthra

Bombay HC3 May 2011APEAL/564/1993

Case brief

AI extract

What is this about?

High Court held that appellant's action in striking victim with an axe when victims approached his house exceeded private defence limits. Conviction changed from attempt to murder under Section 307 IPC to Section 308 IPC; sentence reduced.

What did the court decide?

Conviction under Section 307 IPC altered to Section 308 IPC; sentence reduced to thirty-six days; fine increased to Rs. 25,000/-.

Baban Vithoba Londhe Vs the State of Maharasthra — Murder and Culpable Homicide | Bombay HC (2011)

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Cri.Appeal 564-1993

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Anand

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.564 OF 1993

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Baban Vithoba Londhe..Appellant
Age : 27 years,
Resident of Nagroli,
Taluka Madha,
District Solapur.

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 V/s.

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The State of Maharashtra..Respondent

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Mr.Madhav Thorat i/b. Mr.V.M.Thorat, Advocate,
for the Appellant

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Ms Alpa T. Javeri, APP, for the Respondent -
State

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CORAM:R.C.CHAVAN, J.
DATE:3RD MAY, 2011

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ORAL JUDGMENT

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.This Appeal is directed against

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appellant's conviction by the learned
Additional Sessions Judge, Solapur for the

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offence punishable under Section 307 of the

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Indian Penal Code and sentence of rigorous
imprisonment for five years with a fine of Rs.

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200/- or in default further rigorous
imprisonment for one month imposed upon the

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Cri.Appeal 564-1993

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appellant on conclusion of Sessions Case No.
220 of 1992 before him.

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2.Facts which are material for deciding
this Appeal are as under :-

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On 12th June, 1992, one Dattatraya

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along with brother Ankush had gone for a
weekly bazar at Tembhurni. Ankush returned

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home followed by Dattatraya. Dattatraya
informed his brother Ramesh that the appellant
had abused and beaten him. Then Dattatraya
accompanied by his brothers including Ramesh

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went to the house of appellant to question the
appellant about abusing. The appellant gave a
blow by Axe on the chest of Dattatraya which
resulted in grievous injury being caused to
Dattatraya. Dattatraya was taken to hospital.

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On a report by Ramesh an offence had been
registered and investigation commenced.
Dattatraya was treated and then discharged.

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In course of investigation, police recorded
panchanama of the spot, seized incriminating

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Cri.Appeal 564-1993

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articles, recorded statements of witnesses and
on completion of investigation, sent charge

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sheet to the Court of JMFC, Madha, who

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committed the case to the Court of Sessions,
Solapur.

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3.The learned Additional Sessions Judge
to whom the case was made over charged the
appellant for the offence punishable under
Section 307 of the Indian Penal Code. The
appellant pleaded not guilty, he was put on
trial at which the prosecution examined in all
eight witnesses in its attempt to bring home
guilt of the appellant. After considering the
prosecution evidence in the light of defence
of exercise of right of private defence, the
learned Additional Sessions Judge convicted
and sentenced the appellant for the offence
punishable under Section 307 of the Indian
Penal Code as indicated earlier. Aggrieved
thereby, the appellant is before this Court.

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Cri.Appeal 564-1993

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4.I have heard the learned Counsel for

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the appellant and the learned APP for the

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respondent � State. With the help of both the
learned Counsel I have gone through the
record. P.W.1 Mahaling Rambhau Vibhute is

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panch of seizures effected vide Exhibits 8 and

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13. The appellant is allged to have agreed to
produce Axe which was seized vide Exhibit 13

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pursuant to disclosure made. P.W.2 Ramesh

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Shivaji Bhosale is the victim's brother, who
had given the report. P.W.3 Vishnu Sopan
Bhosale is another brother of the victim. He

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along with P.W.6 Uttareshwar Ganpat Navale are
eye witnesses to the incident. P.W.4 Dr.

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Pandurang Babasaheb Burute examined the victim
and treated him. P.W.5 Dattatraya Shivaji
Bhosale is the injured person, who states

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about the assault by the appellant. P.W.7
Police Head Constable Narayan Agatrao Bhosale

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had carried the seized articles to the

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Forensic Science Laboratory and P.W.8 P.S.I.
Rajan Narayan Jagtap is the investigating

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Cri.Appeal 564-1993

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officer, who states that the appellant had
also reached police station to give a report
about the incident. Apart from answering the
question put to the appellant by the learned
Judge, the appellant also filed a Written
Statement of defence raising right of private
defence.

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5.The learned Counsel for the appellant
submitted that in fact, the Complainant's
party had tried to assault the appellant and
the appellant acted in exercise of right of
private defence. It is not the appellant who
had gone to the house of the Complainants but
the Complainants had marched to the house of
the appellant. When they asked the appellant
about abusing, the appellant lifted an Axe
which was lying and gave just one blow on the
chest of Dattatraya. He submitted that had
the appellant any intention to commit murder
of Dattatraya, appellant could have inflicted
multiple blows or could have imposed blows

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6 Cri.Appeal 564-1993

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with greater force to cause greater damage.
Therefore, according to the learned Counsel
for the appellant, the appellant had exercised
his right of private defence within the limit

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permissible under law and had not exceeded his
rights. He, therefore, submitted that in
fact, the appellant is entitled to clean
acquittal. He also pointed to some

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discrepancies in the evidence and also drew my

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attention to the evidence of P.W.4
Dr.Pandurang Burute, who stated that the

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injury sustained by the victim was simple in

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nature and there was no fracture. The doctor

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also admitted in his cross examination that
injury mentioned in the Certificate was not
fatal.

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6.The evidence tendered and suggestions

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made by the defence to the prosecution witness

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shows that the appellant admits that he was

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author of the injury which was inflicted on
the person of P.W.5 Dattatraya. The injury

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7 Cri.Appeal 564-1993

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has been described by P.W.4 Dr.Burute as

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under:-

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�Incised wound at anterior chest wall,
bone deep right side in size 9 cm x 4 cm x
2 cm. The bone was exposed.�

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Now, the question is whether this injury could

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be justified by the appellant to have been

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caused in exercise of his right of private
defence.

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7.The learned Counsel for the appellant

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is right in submitting that it was not the

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appellant, who had gone to the house of the

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victim but it was the victim and his brothers,

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who had marched to the house of the appellant.

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It does not however follow that the appellant

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had the right to inflict such an injury on the
victim, when the victim and his brothers had

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merely come there to question the appellant

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about the incident of abusing which had taken

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place earlier. For justifying exercise of his
right of private defence, it was necessary for

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the appellant to show that there he

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8 Cri.Appeal 564-1993

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apprehended suffering an injury. Here neither
P.W.2 Ramesh Bhosale nor his brother P.W.3

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Vishnu Bhosale and P.W.5 Dattatraya Bhosale
are shown to have been armed with any weapon

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or shown to have attacked the appellant.

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There is nothing to show that the appellant
was injured in the incident, though P.W.8 PSI
Rajan Jagtap states that the appellant had

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also come to the police station to give a

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report. Therefore, the blow by the appellant
on the chest of P.W.5 Dattatraya Bhosale with

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Axe cannot at all be said to be one in

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exercise of right of private defence within

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the limits of threat perceived. Even, if it

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is taken for a while the appellant had a
justification to assault because the three
brothers had marched to his house, his

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response in administering a blow on the chest
of Dattatraya was obviously in excess of
exercise of right of private defence which the
appellant could have claimed.

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Cri.Appeal 564-1993

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8.The learned Counsel for the appellant
is right in submitting that if the appellant
is held to have acted in exercise of right of
private defence, exceeding that right would
bring his case in one of the exceptions to
Section 300 of the Indian Penal Code. If a
person exceeds his right of private defence,
he could not be said to have committed murder

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but only culpable homicide not amounting to
murder. As a corollary, in the case of
attempt to commit murder, such a person could
be held guilty of the offence of attempt to
commit culpable homicide which is punishable
under Section 308 of the Indian Penal Code
which is distinctly an offence of lesser
gravity.

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9.Considering the fact that the victim

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and his brother had marched to the appellant's
house, it cannot be said that the appellant's

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apprehension was unfounded but the response
was excessive and his assaulting the victim

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10 Cri.Appeal 564-1993

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with Axe on chest could be said to be
exceeding his right of private defence and
would, therefore, amount to attempt to commit
culpable homicide not amounting to murder and

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not attempt to commit murder itself.
Therefore, the learned Judge should not have
held the appellant guilty for the offence
punishable under Section 307 of the Indian
Penal Code, but should have held him guilty

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for the offence punishable under Section 308
of the Indian Penal Code.

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10.While for an attempt to commit murder,
if an injury is caused the punishment can

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extend to imprisonment for life, for the

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offence of attempt to commit homicide, if an
injury is caused the punishment can extend to
seven years. Considering this ratio, rigorous
imprisonment for five years with a fine of Rs.

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200/- or in default further rigorous
imprisonment for one month imposed upon the
appellant is obviously excessive. The learned

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11 Cri.Appeal 564-1993

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Counsel for the appellant submitted that the
appellant has been convicted for an incident
which took place 19 years ago and has been
living in shadow of conviction which he has
already suffered. He has been an under trial
prisoner from 12th June, 1992 to 23rd June, 1992

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and from 5th October, 1993 to 1st November,
1993. He submitted that the offence

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punishable under Section 308 of the Indian
Penal Code is punishable with imprisonment or

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fineandnotnecessarilyrigorous
imprisonment. In view of this, he submitted

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that after 18 years, it may be unnecessary to
send the appellant to prison, particularly,
since the appellant is not shown to have
committed any offence in all these 18 years.
The learned APP submitted that in case, the

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appellant has to be let off on the sentence
which he has already suffered, fine may be
increased to a suitable amount.

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12 Cri.Appeal 564-1993

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11.Considering this, the Appeal is partly

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allowed. Conviction of the appellant for the
offence punishable under Section 307 of the
Indian Penal Code is altered to one Section
308 of the Indian Penal Code and sentence of
rigorous imprisonment for five years is
substituted by rigorous imprisonment for
thirty six days which the appellant has

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already undergone, increasing the fine to Rs.
25,000/- or in default to suffer rigorous
imprisonment for further period of nine
months. If the fine is not paid within 6

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weeks, the learned Additional Sessions Judge
would have the appellant arrested and to serve
his sentence in default of fine.

Baban Vithoba Londhe v. the State of Maharasthra

Case brief

What is this about?

What did the court decide?

Baban Vithoba Londhe v. the State of Maharasthra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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