Allowed

Rajesh Maruti Mohite v. the State of Maharashtra

Bombay HC27 Nov 2014APEAL/675/1995

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court in Criminal Appeal No. 675 of 1995 set aside the life imprisonment sentence imposed on the appellant for murder, holding that the deceased had rushed towards the appellant with a knife, creating a reasonable apprehension of death, and the appellant was justified in using force in private defence.

What did the court decide?

Appeal allowed; conviction and sentence quashed and set aside; appellant acquitted; fine refunded; bail bonds cancelled.

Rajesh Maruti Mohite Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.675 OF 1995

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Rajesh Maruti Mohite ) Age 20 years, Occupation – Business, ) a resident of Lalnagar, Ichalkaranji, ) Dist: Kolhapur. )...Appellant.

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vs.

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State of Maharashtra ) (At the instance of the Inspector of Police ) Shivajinagar Police Station, Ichalkaranji) )...Respondent

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Mr.S.V.Marwadi with Mr.Kartik Garg, for the Appellant.

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Mrs.U.V.Kejriwal, APP for State.

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CORAM: P. V. HARDAS & G. S. KULKARNI, JJ.

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DATED: 27^th NOVEMBER,2014

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ORAL JUDGMENT (Per P. V. HARDAS, J.) :-

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The appellant - original accused no.2 who stands convicted for an offence punishable under Section 302 of Indian Penal Code and sentenced imprisonment for life by the Additional Sessions Judge, Kolhapur, by judgment dated 15.11.1995, in Sessions Case No.217 of 1994, by this appeal challenges his conviction and sentence.

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The facts as are necessary for the decision of this appeal may briefly be stated thus:-

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P.W.10 PI Rajaram Dattatraya Jagtap who was attached to Shivaji Nagar Police Station and was on duty on 3.7.1994, learnt that one Ashok had been killed in the mutton market. P.W.10 PI Jagtap was returning from bandobast and, therefore, on receipt of the said information, immediately proceeded to the scene of the incident. The dead body of Ashok was found near shop no.2. Adjoining to shop no.2, shop of one Prakash Shetke was located. Report of P.W.4 Prakash Shetke was recorded at Exhibit 22 and the said report was forwarded to the police station for registration of the offence. In the presence of panch witnesses, a inquest panchanama of the dead body of deceased Ashok was drawn which is at Exhibit 11. In the presence of panchas, the spot panchanama was also drawn which is at Exhibit 12. From the scene of incident, a pair of slipper, pieces of broken glass bottle, a stone which was used for sharpening butcher's knife and a blood stained sattur (butcher's knife) were seized. From the scene of incident, sample of blood stains were collected and seized. On the same day statement of P.W.5 and others were recorded.

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On 4.7.1994 statement of P.W.6 Pundlik and others were recorded.

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Accused No.1 - Babalu was arrested under the arrest panchanama at Exhibit 16 and his blood stained clothes were seized. On 5.7.1994, the appellant was arrested and his blood stained clothes were seized under panchanama at Exhibit 17. Since the appellant had sustained injury to his left hand, the appellant was

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referred for medical examination and was examined by P.W.8 Dr.Ashok Ghatge. P.W.8 Dr.Ashok Ghatge noticed that the appellant had sustained abrasion on his left palm of size 6 cm. According to him, it could be caused by sharp pointed object. The injury certificate of the appellant is at Exhibit 31.

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The seized articles then were referred to Chemical Analyzer through P.W.9 Police Constable Mr.Powar. C.A.Reports are at Exhibits 38 and 39. Further to the completion of investigation, a chargesheet against the accused was filed.

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Postmortem on the dead body of the deceased Ashok was performed by P.W.7 Dr.Dilip Balwant Kininge. P.W.7 Dr.Dilip Kininge noticed the following external injuries:-

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“1. Incised would over right side of the neck extending from right mandible to the left of pape 5” X 2 ½” by 4”, cutting underneath muscle artery vein nerve and trachea.

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Incised would over frontal bone on right side 2 X ½ “ bone deep causing fracture of frontal bone.

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Incised would over right wrist joint on the lateral aspect 2 X 1 ½” bone deep cutting lower end of radius in 2 pieces.

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Incised would over posterior aspect of right hand 4X1” bone deep causing fracture of 1^st , 2^nd , 3^rd metacapel bone.

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Incised would over left thigh lower 1/3^rd 5X2”

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xmuscle deep.”

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On internal examination, he noticed incised wound over frontal bone on right side 2 X 1” bone deep had caused fracture of frontal bone. The treachea ring was also partially cut. According to him, the deceased had died due to haemorrhagic shock due to injury to neck artery, vein. The postmortem report is at Exhibit 27. He has further opined that the injury nos.1 to 5 could be caused by butcher's knife – Article 7.

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On committal of the case to the Court of Sessions, Trial Court vide Exhibit 3 framed charge against the accused for the offence punishable under Section 302 read with 34 of IPC. The accused denied their guilt and claimed to be tried. The prosecution in support of its case examined 10 witnesses. The defence of the accused was of denial. The Trial Court convicted and sentenced the appellant as aforestated while acquitting original accused no.1 - Bablu.

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We have heard Mr.Marwadi, learned Counsel for the appellant and learned APP for State. It appears that the entire prosecution case rests on the evidence of eye witnesses of P.W.4 - Prakash Shankar Shetke and P.W.5-Vithu Shankar Gholape. The prosecution has also examined P.W.6-Munni Kumar Tadake who is an eye witness to the part of the incident. In order to effectively deal with the submissions advanced before us by the learned Counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses.

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P.W.4 Prakash deposes that he had been employed in the mutton shop of one Mithalkar in the mutton market at Ichalkaranji for last 5 – 7 years. He admitted that he was knowing deceased Ashok Tadake as well as the appellant. According to him, the accused were employed in the mutton shop of one Patel. According to him, on 3.7.1994 he was present in the mutton market and on that day at about 2 to 2.30 p.m. deceased Ashok went to the shop of Sadiq and demanded mutton from the accused who were present in the shop of Patel. There was dispute between the accused and the deceased. Accused No.1 - Babalu hit soda water bottle on the head of Ashok. Ashok then took butcher's knife from the shop of Patel. The appellant snatched the butcher's knife and with that knife gave blows to deceased Ashok on his neck and arm. On sustaining injury, the deceased fell down in a pool of blood. According to Prakash, deceased Ashok used to extort money and was a bully. He also used to forcibly take mutton from the shop.

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In the cross examination, he has admitted that deceased Ashok used to abuse others and used to forcibly take money from them. Deceased Ashok also used to forcibly remove things from the shop without paying price. He has also admitted that in the event shopkeepers resisted deceased Ashok, deceased Ashok would assault them. According to him, at the time of the incident, he was present in Shop No.4 and at that time the deceased Ashok came to the shop shouting that he wanted mutton. Deceased Ashok forcibly took mutton from the shop of Patel. The accused, who are employed by Patel, requested deceased Ashok that he should not remove the mutton without paying for it, otherwise their employer would alleged that the accused

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had committed theft. Deceased Ashok did not relent and was insisting that mutton should be given to him. Deceased Ashok lifted the butcher's knife which was in the shop of Patel and rushed towards the accused saying that he would kill them and then take away the mutton. He has admitted that there was a scuffle and the accused and the deceased came out of the shop. He has admitted that after the accused / appellant had come out of the shop, deceased Ashok rushed towards the accused. There was a quarrel and the deceased had said that he would kill them.

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The prosecution has examined P.W.5 – Vithu Shankar Gholape who deposes that on the day of incident, deceased Ashok had come to the mutton market and had demanded mutton. He had attempted to remove mutton from the shop where the accused were employed. Since the appellant resisted deceased Ashok in removing the mutton from the shop, deceased Ashok took butcher's knife from the shop of Vithu and rushed towards the appellant in order to assault him. Accused No.1 Babalu pushed deceased Ashok and hit him with soda water bottle. The appellant snatched the knife from deceased Ashok and then assaulted the deceased with knife.

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In cross-examination, he too has admitted that deceased Ashok used to forcibly remove mutton and cash from the shop. He has admitted that deceased Ashok has taken knife from shop and had rushed towards the appellant. The said knife was generally used for chopping mutton. A scuffle ensued between the appellant and deceased Ashok and while scuffling they went out of shop pushing each other. When outside the shop, deceased Ashok rushed at the appellant in order to assault him and was saying that he would not spare the appellant. In the incident, deceased Ashok was assaulted.

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Prosecution has also examined P.W.6 – Munni Kumar Tadake, niece of deceased Ashok. She had arrived at the scene of incident, according to her, when the appellant had assaulted deceased Ashok. The cross-examination of this witness reveals that her statement was recorded nearly after one month of the incident. It was also elicited that she had not voluntarily gone to the police for reporting the incident. She has admitted that she did not know as to what had happened prior to soda water bottle being hit on the head of Ashok. She has admitted that she had gone near the scene of incident on hearing noise of quarrel.

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A perusal of the evidence of these three witnesses particularly P.W.4 – Prakash Shetke and P.W.5 – Vithu Shankar Gholape indicate that the deceased who used to demand and forcibly take mutton, cash and other valuable things from the shops had gone to the shop where accused were employed. Deceased Ashok had demanded mutton and when his demand was not fulfilled, he took a butcher's knife and rushed towards the appellant. A part of the evidence of the prosecution about accused no.1 hitting water bottle on the head, appears to be false as the Medical Officer has opined that all the injuries sustained by Ashok were possible due to knife and that the Medical Officer does not attribute any injury on the head of the deceased Ashok due to hit by soda water bottle. However, it is clear that deceased Ashok with the intention of committing murder of the appellant had rushed towards him brandishing butcher's knife. P.W.4 – Prakash as well as P.W.5 Vithu have admitted in the cross-examination that there was a scuffle and in that scuffle the injuries were caused. If that is the case, in our opinion, the appellant cannot be convicted for offence punishable under Section 302

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of IPC. Deceased Ashok was armed with knife and had rushed at the appellant brandishing knife in order to cause serious and grievous injury to the appellant. The appellant in exercise of right of private defence had inflicted the injuries which were sustained by deceased Ashok. Thus, the injuries had been caused to deceased Ashok during the scuffle and possibly in the attempt of disarming the deceased Ashok. This is evident from perusal of cross-examination of the witnesses and in our opinion, the appellant had exercised his right of private defence of his body in inflicting injuries as there was ground for a reasonable apprehension in the mind of the appellant that deceased Ashok was likely to commit his murder. The weapon with which the deceased was armed was butcher's knife which is normally used for chopping mutton. In that light of the nature of weapon with which the deceased was armed, it cannot be said that the apprehension entertained by the appellant was unreasonable. In the circumstances, therefore, and in exercise of right of private defence, the appellant had inflicted the injuries. While exercising the right of private defence, it is not expected that accused would weigh the circumstance in golden scales. The Supreme Court in the case of

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“Vidhya Singh v. State of Madhya Pradesh, ((1971)3 SCC 244)” has observed thus:-

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“the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a court room, or that

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which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.”

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The Supreme Court in the case “ Darshan Singh Vs. State of Punjab and another, ((2010)2 SCC 333)” after considering the judgments of the Supreme Court in the cases of “Munshi Ramd & Ors. V. Delhi Administration, ((1968)2 SCR 455), “State of Madhya Pradesh Vs. Ramesh, ((2005)9 SCC 705)”, “Triloki Nath and Ors. Vs. State of U.P., ((2005)13 SCC 323)”, “Vidhya Singh v. State of Madhya Pradesh, ((1971)3 SCC 244)”, “Jai Dev V. State of Punjab, (AIR 1963 SC 612)” and “Buta Singh Vs. The State of Punjab, ((1991)2 SCC 612)”, at paragraph 58 of the judgment has held thus:-

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“58. The following principles emerge on scrutiny of the following judgments:

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(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

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(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self – creation.

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(iii) A mere reasonable apprehension is enough to

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put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

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(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminus with the duration of such apprehension.

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(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

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(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

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(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

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(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

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(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

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(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.”

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The imminent threat of danger to the life of the appellant existed moment deceased Ashok rushed towards the appellant with a butcher's knife. Even during this scuffle, deceased Ashok was armed with knife and he was rushed towards the appellant. The cross examination of the witnesses certainly spells out that the appellant had exercised his right of private defence of his body in causing the injuries to deceased Ashok which were sustained by deceased Ashok in this scuffle. In our opinion, therefore, in the light of the reasons referred to above, the conviction and sentence of the appellant is unsustainable. No reliance whatsoever can be placed on the testimony of P.W.6 Munni, niece of the deceased.

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In the result, therefore, we allow the present appeal and quash and set aside the conviction and sentence of the appellant and acquit him of the offence with which he was charged and convicted.

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Fine, if any, paid by him be refunded to him.

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His bail bonds stand cancelled.

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(G. S. KULKARNI, J.)

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(P.V.HARDAS, J.)

Rajesh Maruti Mohite v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Rajesh Maruti Mohite v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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