Vishnu Sahai, J.
1. Seven persons namely Deoppa Ishwar Shinde, Ganpat Maruti Shinde, Rajaram Ganpat Shinde, Uttam Rajaram Shinde, Sukhdeo Rajaram Shinde, Ishwar Maruti Shinde and Murlidhar Appa Shinde were tried by the Additional Sessions Judge, Solapur in Sessions case No. 30 of 1986 for offences punishable under Sections 147, 148, 302 r/w. 149 and 324 r/w. 149, IPC. Vide judgment and order dated 22-7-1986, the learned trial Judge acquitted accused other than Deoppa Ishwar Shinde on all the counts but, convicted and sentenced Deoppa Ishwar Shinde in the manner stated hereinafter :--
(i) Under Section 302, IPC to suffer imprisonment for life and to pay a fine of Rs. 5000/- in default to suffer four years R.I.;
(ii) Under Section 324, IPC (No separate sentence was awarded).
2. Aggrieved by the aforesaid convictions and sentence, Deoppa Ishwar Shinde has preferred the present appeal.
The State of Maharashtra has however, not challenged the acquittal of the six acquitted accused.
3. Shortly stated, the prosecution case runs as under :--
There were inimical relations between the appellant and the acquitted accused on one hand and the informant Nana Kute P.W. 6, his wife Akkatai P.W. 7, his father Dada Kute P.W. 8 and his brother, the deceased Ausinath Kute, on the other.
The details of the said enmity have been furnished by the informant, Akkatai and Dada In their evidence but, we do not want to burden our judgment by setting them out.
Suffice it is to mention that the enormity of the enmity was such that at the time of the incident, the informant and others on one hand and the appellant and the acquitted accused on other hand were not on speaking terms.
On 25-7-1985, the informant-Nana Kute and Dilip son of Prayagabai, were working in the field of the latter. After the work was over, the informant asked Dilip to take away the bullock cart and told him that he would collect the labour charges from Prayagabai. Thereafter, the informant (sic) towards his house by footpath. On the way near the field of Rama Chaugule, he met Kisan Ghatole, the appellant and the acquitted accused Rajaram. While he was talking with Kisan Ghatole, the appellant came between him and Kisan and inflicted a fist blow on his stomach and pushed Kisan. When he asked him why had given a fist blow, he replied that he would show the force of the blow. Thereafter, the appellant went to his house and the informant returned to his house.
On reaching his house, the informant narrated the incident to his father Dada, his brother Ausinath and his mother. Ausinath told him that he would go and pacify the appellant's party and he should wait. The time was about 6.30 p.m. As Ausinath started alone, the informant's mother who understandably was nervous followed him along with the informant's wife Akkatai. The informant's mother and Akkatai met the appellant in the field of Dhurpabai. The informant saw this from his house and proceeded in the direction. On hearing the cries of his wife Akkatai, he started running with a stick in his hand towards the field of Dhurpabai. No sooner had he reached the aforesaid field, he saw the appellant inflicting two knife blows, one each on the chest of Ausinath, who fell down as a result thereof. Thereafter, the appellant came and inflicted two knife blows on the person of the informant. The acquitted accused Sukhdeo who had also reached there, along with the other acquitted accused persons, inflicted axe blow on the back of the informant. Thereafter, the informant started moving his stick. The informant's father also reached in the meantime. He and the informant's mother fell down on the body of Ausinath in a bid to save him. Thereupon, the acquitted accused Ishwar Shinde inflicted a stick blow on the forehead of the informant's father. The acquitted accused Uttam and Sukhdeo with axes in their hands and the acquitted accused Rajaram, Ganpat and Ishwar with sticks in their hands also tried to assault the informant and others and they scuffled with them. In the meantime, Hariba Kute, Pralhad Kute and Rama Kute came there. The appellant and the accused ran away towards Shindewadi, Pralhad Kute brought a bullock cart. Ausinath was put in the same and brought to Sangola. Hariba Kute, the informant and his parents also accompanied Ausinath in the bullock cart.
Ausinath was taken to Government dispensary at Sangola where the doctor pronounced him dead.
3-A. The evidence of the informant-Nana shows that after his brother Ausinath had been pronounced dead by the doctor at Government dispensary, Sangola, he proceeded to Sangola police station where he lodged his FIR Exhibit 32.
4. Evidence of Assistant Sub-Inspector Uttam Tatya P.W. 10 shows that on 25-7-1985 at 10.45 p.m. the informant Nana Kute came at Sangola police station and he recorded his FIR and registered an offence on its basis.
His evidence also shows that at 1.45 a.m. on 26-7-1985, the acquitted accused Ishwar, Rajaram, Ganpat, Uttam and the appellant came in the police station. They had injuries on their person. The appellant lodged an FIR on the basis of which he registered the offence.
The evidence of ASI Uttam Tatya shows that he sent the informant-Nana, the appellant and the acquitted accused for medical examination.
5. Evidence of Dr. Ramesh Ukarande P.W. 3 shows that on 26-7-1985, he was working as Medical Officer at Sangola dispensary and at 11 a.m. same day, he medically examined the informant-Nana Kute and found on his person the following injuries:--
(i) incised wound 1' x ' x ' on left infra-scapular region;
(ii) incised wound 14' x ' x 1/8' on lateral aspect of left elbow joint;
(iii) incised wound of ' x ' x 1/8' on lateral aspect of left elbow joint parallel and below to injury No. 2.
In his opinion, the said injuries were simple in nature; were attributable to a sharp and hard object, and were approximately 24 hours old. He also opined that injury No. 1 could be caused by a weapon like axe and injury Nos. 2 and 3 by a knife.
The evidence of Dr. Ukarande also shows that on 27-7-1985, he medically examined the informant's father Dada and found on his person a contusion, 1' in diameter on left supra orbital region which was simple in nature; attributable to hard and blunt object; and aged about 48 hours old.
The evidence of Dr. Ukarande also shows that on 28-7-1985, he examined Ratnu Vithoba Yelpale and found on his person a contusion which was 1' in diameter on anterior aspect of right knee joint, attributable to a hard and blunt object, and caused within 24 hours.
6. Going backwards, the autopsy on the corpse of the deceased Ausinath was performed by Mr. Ramesh Ukarande, who found on it the following external injuries:--
1. incised wound ' x ' x 3' just below the left nipple;
2. incised wound ' x ' x 2 ' between 7th and 8th ribs right axillary line;
3. contusion ' in diameter on left wrist joint dorsal aspect;
4. contusion 1' in diameter on right hypochondria region. Fracture of 7th, 8th and 9th ribs on right side.
On internal examination, he found a incised wound on left side of heart; left lung highly conjested; and haematoma 1' in diameter on lower lobe.
In his opinion, injury Nos. 1 and 2 could be caused by a hard and sharp object and injury Nos. 3 and 4 by a hard and blunt object.
He also opined that injury Nos. 1 and 2, coupled with injury to heart, were sufficient in the ordinary course of nature to cause death.
7. The injuries of the appellant and the acquitted accused Ganpat Maruti Shinde, Murlidhar Appa Shinde, Ishwar Maruti Shinde and Rajaram Ganpat Shinde were medically examined a little before midnight, by Dr. Ramesh Ukarande, the Medical Officer of Sangola dispensary, on the night of 25-7-1985.
8. Dr. Ukarande found the following injuries on the body of the said persons:--
Appellant-Deoppa Ishwar Shinde:
1. Contusion 2' x ' (LP) intra scapular region.
2. Contusion 2' x ' (RP) scapular region.
3. C.L.W. x ' x ' near left ear.
Acquitted accused-Ganpat Maruti Shinde:
,1. Incised wound 2' x ' x ' dorsal aspect, left hand.
2. C.L.W. 1' x ' x ' right parietal region.
3. Contusion 1' diameter Rt. middle forearm fracture.
Acquitted accused-Rajaram Ganpat Shinde:
1. C.L.W. ' x ' x 1/8' midforearm' (LT).
2. C.L.W. 1' x ' x ' Lt. parietal region.
Acquitted accused Ishwar Maruti Shinde:
1. Contusion 1' on dorsal aspect Lt. hand.
Acquitted accused Murlidhar Appa Shinde:
1. C.L.W. 2' x ' x ' central part of skull.
9. The case was investigated in the usual manner. During the course of investigation, a knife was recovered on the pointing out of the appellant-Deoppa Ishwar Shinde in the presence of public panchas but, we are not adverting to the details about the recovery because, the same in our judgment is not necessary for the decision of this appeal.
On completion of investigation, the appellant and the acquitted accused were charge-sheeted.
10. The case was committed to the Court of Session in the usual manner where the appellant and the acquitted accused were charged on the counts mentioned in para 1. They pleaded not guilty to the charges and claimed to be tried.
During trial, in all the prosecution examined 12 witnesses. Three of them namely the informant-Nana Kute, Akkatai and Dada Shankar P.Ws. 6, 7 and 8 respectively were examined as eye-witnesses. They deposed in respect of the incident in the manner set out by us in para 2 of this judgment.
The defence suggestion given to them in their cross-examination was that while the appellant and the acquitted accused Ganpat were going to their house by footpath, Sopan, Ausinath (deceased) and the informant came across the footpath and started beating them with sticks and axes. The appellant and Ganpat raised cries, hearing which the acquitted accused Rajaram, Murlidhar and Ishwar came and they were also assaulted by them.
The eye-witnesses of course denied the said suggestion.
The learned trial Judge partly believed the prosecution version as unfolded by the aforesaid eye-witnesses: acquitted accused other than the appellant; and convicted and sentenced the appellant in the manner stated in para 1, above.
Hence, this appeal.
11. We have heard learned counsel for the parties; and gone through the entire material on record. We make no bones in observing that this appeal deserve to succeed.
12. The basis of conviction of the appellant is the ocular account furnished by the informant-Nana, Akkatai and Dada, P.Ws. 6, 7 and 8 respectively, it is pertinent to mention that they being brother, sister-in-law and father respectively of the deceased Ausinath, are highly interested witnesses (even the learned trial Judge in para 34 of the impugned judgment has conceded this) and hence, their evidence will have to be examined with caution and we dare say that when we do this, we find it extremely unsafe to accept it because, they have failed to explain the injuries sustained by the appellant and the acquitted accused and the learned trial Judge has also held to this effect in para 23 of the impugned judgment.
Earlier, we have extensively set out the injuries suffered by the appellant and the acquitted accused. As we have mentioned earlier, their injuries were medically examined a little before midnight on 25-7-1985 i.e. the date of incident. In other words, their injuries were examined within five to six hours of the incident taking place. We have also seen that four of the injured persons namely the appellant, Ganpat, Rajaram and Murlidhar had blunt weapon injuries on their head.
12-A. In our judgment, since the three eye-witnesses of the incident are interested witnesses and have failed to explain the injuries suffered by the appellant and the acquitted accused, which injuries were substantial in nature and were medically examined within five to six hours of the incident taking place their evidence cannot be accepted.
13. Our view is fortified by the decision of the Supreme Court rendered in the case of Lakshmi Singh v. State of Bihar, reported in : 1976CriLJ1736 wherein in para 11, the Supreme Court has observed thus at Page 1742; of Cri LJ :
It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution, to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
14. In our view, the first two inferences set forth in the said decision can be safely drawn in the instant case.
We are not oblivious to the fact that the defence suggestion given to the eye-witnesses and the defence version set forth in the written statement filed by the appellant in the trial Court also does not explain the injuries suffered by the victims of the prosecution but, in our view, the falsity of the defence would not mean that the prosecution has proved its case beyond reasonable doubt. The prosecution has to swim or sink on the strength or weaknesses of its case and cannot prove its case by default (on the basis of falsity of defence.)
In our judgment, the probability that the appellant and others were first assaulted and thereafter they assaulted in exercise of the right of private defence of their person, cannot be altogether ruled out.
15. At any rate, what at the highest which emerges is that both the prosecution and the defence are coming out with untruthful versions; each side suppressing its aggression. In such a situation, it is open to us only within permissible limits to visualise as to how the incident took place. We cannot make out a third case. In our judgment, since in the instant case both the prosecution and the defence are coming out with untruthful versions and it is not possible to visualise the genesis of the incident (as to which party was the aggressor) the proper and safer course would be to give benefit of doubt to the appellant.
Our view is fortified by the observations contained in para 12 of the decision of the Supreme Court rendered in the case of Jamuna Chaudhary v. State of Bihar, reported in : 1974CriLJ890 and those contained in the Division Bench decision of the Allahabad High Court rendered in the case of Shubrati v. State of U. P., reported in 1959 All LJ 423
Para 12 of Jamuna Chaudhary's case (supra) reads thus at Page 893; of Cri LJ :--
12. As neither the prosecution nor the defence have in the case before us, come out with the whole and unvarnished truth, so as to enable the Court to judge where the rights and wrongs of the whole incident or set of incidents lay or how one of more incidents took place In which so many persons, including Laldhari and Ramanandan were injured, Courts can only try to guess or conjecture to decipher the truth if possible. This may be done, within limits, to determine whether any reasonable doubt emerges on any point under consideration from proved facts and circumstances of the case.
The relevant part of the judgment in Shubrati case reads thus at Pages 427-428:--
If both the parties come to Court with untrue facts and conceal the real truth, they have themselves to blame and they cannot expect the Court to arrive at any definite conclusion on the unreliable evidence produced either for or against either of the parties. In such a case, the Court will certainly attempt to separate the grain from the chaff but, only if it is possible to do so. In certain circumstances, it may be found to be an impossible task. That is particularly so when the evidence of both the parties is thoroughly unreliable and cannot be accepted even in part with safety. In such a case it is not open to the Court to make out a third case which is different from the case set up by both the parties. In such a case, the Court can only say that the matter is doubtful in the extreme and it is not possible to arrive at any conclusion one way or the other. The result of such a finding may be that all the persons who stand as accused in the case may have to be given the benefit of doubt. But, that cannot be helped. The defective investigation and the conduct of the parties themselves are really responsible for that regrettable result. In such a case, there can be no question of recording any conviction.
16. Mr. I.S. Thakur, learned Additional Public Prosecutor for the State of Maharashtra-Respondent urged that even if is assumed that the appellant acted in the right of private defence of person, there is no getting away from the fact that he exceeded the said right. He urged that since the injuries suffered by the appellant and the accused were simple in nature, the right of private defence of person did not extend to causing the death of Ausinath.
He contended that Section 99, IPC makes it clear that the right of private defence of person does not extend to causing more harm than is necessary to ward off the aggression. He urged that it is a preventive and not a punitive right. He contended that the proper course would be to downgrade the conviction of the appellant from the offence under Section 302, IPC to that under Section 304(1), IPC.
We have reflected over Mr. Thakur's submission and are constrained to observe that we do not find any merit in it. We have seen, that including the appellant, in all five persons were injured from the side of the defence. We have also seen that the cumulative number of injuries suffered by them are 10. We have further seen that one injury each sustained by the appellant, Ganpat, Rajaram and Murlidhar was on the region of head.
In our judgment, in view of the provisions contained in Section 97 of IPC, the appellant had the right of private defence of person subject to the restriction contained in Section 99, IPC, to defend his own person and person of other three victims. Section 100, IPC makes it manifest that even if there is a reasonable apprehension of grievous hurt, the right of private defence of person extends to causing death. In our view, since four of the injuries suffered on the side of the defence were injuries on head, it can safely be said that the appellant and other victims on his side had apprehension of grievous hurt. In our judgment, the appellant, who in the aforesaid factual matrix, only inflicted two knife blows on the person of the deceased cannot be said to have exceeded the right of private defence of person. In our judgment, the unexplained injuries of the appellant and the accused render probable that the appellant and the acquitted accused may have acted in exercise of right of private defence of person.
17. Before parting with Mr. Thakur's submission, we would like to point out that the right of private defence of person cannot be weighed in golden scales. Persons who are the victims of aggression cannot be expected to judiciously weigh in golden scales the quantum of force which they are to use. So long as the force used to combat aggression is not unduly excessive, which is not the case here, it would be a wrong judicial approach to hold that the right of private defence of person has been exceeded.
18. For the said reasons, we reject Mr. Thakur's submission.
19. For the said reasons, we extend the benefit of doubt to the appellant; acquit him for offences punishable under Sections 302 and 324, IPC; set aside his conviction on the said counts and his sentence on the former count; and direct that in case he has paid the fine on the former count, it shall stand refunded to him.
The appellant is on bail. He need not surrender. His bail bonds stand cancelled and sureties discharged.