http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7

CASE NO.:

Appeal (crl.) 615 of 2004

PETITIONER:

DATTU SHAMRAO VALAKE & ANR.

RESPONDENT:

STATE OF MAHARASHTRA

DATE OF JUDGMENT: 15/04/2005

BENCH:

P. VENKATARAMA REDDI & P.P. NAOLEKAR

JUDGMENT:

JUDGMENT

P. VENKATARAMA REDDI, J.

Four persons including the two appellants herein faced

the charges under Sections 302/34, 307/34 and Section 326

IPC and also under Section 25(1)(b) and Section 30 of the

Arms Act for the fatal assault with deadly weapons on the

two deceased persons namely Bajirao and Krishna (also

referred to as 'Kishan' by some witnesses) on the forenoon

of 18.8.1984 in the village of Walkewadi. On trial, the

Additional Sessions Judge, Kolhapur convicted accused Nos.

1 to 4 under Section 302 read with Section 34. Accused Nos.

1 & 2 were alternatively convicted under Section 302 IPC

individually. Accused Nos. 1 & 2 were also convicted for the

offence under Section 25(1)(b) and Section 30 of the Arms

Act respectively. A4 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.

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)\027

Tanaji Shamrao Valake under Section 302 IPC and the

appellant No.1(A-1)\027Dattu 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.

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

accused No.1 on the pasture land situate at the adjacent

village Awali said to be in the possession of the deceased

and his sons. In the course of scuffle, it is alleged that the

accused No.1 was assaulted by Ananda, the brother of PW10

with a stick. PW10 drove away the cattle. On the very next

day at about 10 a.m. the two deceased persons, namely

Krishna and his son Bajirao along with PW10 and his brother

Ananda and the ladies (Suseela-PW7 and Kamal-PW8) went

to the village Walkewadi for the purpose of carrying on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7

weeding operations in the land belonging to PW6\027Akkatai

who is the daughter of the deceased Krishna and the sister

of deceased Bajirao. They were armed with axe and

sticks. When they came near the house of one Hindurao

Valake, which is close to the house of the accused, the

accused armed with gun, axes and sticks attacked the

prosecution party. The accused No.1 was having a double-

barrel gun which he fired in the air in the first instance.

When he was aiming the gun at Ananda, his brother (PW10)

gave a hit on the gun with a stick under the impact of which

the gun fell down and there was accidental shot which,

however, did not injure anybody. Then, accused No.3

inflicted injuries with axe on the head and neck of Bajirao as

a result of which he fell down and succumbed to the injuries

after a gap of about a month. It is alleged that after Bajirao

fell down, the second appellant i.e. accused No.1 took out

the axe which Bajirao was having and then attacked Krishna

and as a result of the injuries caused to him, Krishna died

the next day in the hospital. Accused No.2 is alleged to have

given a stick blow on the head and the back of PW10. As

regards accused No.4, it is alleged that he was about to

attack PW1 with axe and when PW10 raised his right hand to

ward off the attack, the injury was caused to his index

finger.

There were three head injuries on the deceased Bajirao

which are attributed to the attack by accused No.3. These

injuries were inflicted on the left parietal region causing the

fracture of skull bone and the brain matter protruding out.

The deceased Krishna had two injuries\027one incised wound

on the nape of neck 4" x 2" x 1=", spine deep exposing the

bleeding spine and the second incised wound was on the left

parietal region, scalp deep. The first wound, according to the

opinion of the Medical Officer, was the fatal wound.

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\027Shamrao, had suffered incised wound

obliquely on the right parietal region of his head, 2"

x <", contusion 1" x 1" over left wrist and multiple

abrasion over the right scapula region.

(2) Accused No.1\027Dattu Shamrao, had suffered

contusion over left forearm, 2"x1" reddish in colour.

(3) Accused No.3\027Tanaji 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").

Four others (other than the accused) were also injured.

PW12\027Head 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 statement of Sambaji\027PW10

who was able to speak. The first information based on the

said statement was recorded and the case was transferred

to Kodoli police station which had jurisdiction over the place

of offence. Initially some investigation was done by the Head

Constable of Kodoli P.S.\027PW14 who went to the village and

drew up the panchnama of the scene of occurrence. PW17\027

the Sub-Inspector incharge of Kodoli police station,

continued the investigation from 20.8.1984 onwards. He

seized the gun and axe from the houses of the accused and

recorded the statements of the witnesses and after

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7

investigation filed charge-sheet on 31.12.1984. While so, on

the date of the incident itself, the second accused Shamrao

lodged a complaint with Kodoli police station alleging that he

and other accused were assaulted by the two deceased\027

PW10 and his brother with axes, sticks and cycle chain. After

investigation by PW 17, a charge-sheet was filed implicating

PW10 and his brother Ananda for the offence under Section

307 IPC. That case was also tried along with the present

case and by the judgment of the same date, the learned

Sessions Judge acquitted them of the charges.

At the time of examination under Section 313 Cr.P.C.,

the appellants filed a written statement in which they took

the plea of private defence. While admitting the incident,

they stated that the deceased Krishna and his three sons

entered the house of the accused armed with axe, cycle

chain and stick and one of them (Ananda) assaulted Tanaji\027

A3 with the cycle chain as a result of which he fell down and

became unconscious. Then the prosecution party started

beating the other accused. Accused No.1 therefore went

inside and brought a gun and fired two shots in the air with

the idea of scaring them away. However, the prosecution

party continued to beat the accused and cause injuries to

them. The names of seven persons including the three

accused were mentioned as the recipients of injuries. They

denied the presence of lady witnesses\027PWs 6, 7 & 8 at the

scene of occurrence. They referred to the complaint filed by

them against the prosecution party.

The High Court was of the view that the evidence on

record probablised the plea of private defence taken by the

accused. The High Court found substance in the contention

of the accused that the deceased and their associates were

the aggressors. At the same time, as far as the third

accused\027second 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.

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 right of private defence

was available to the accused and that the accused No.4

entered the scene later on, curiously the High Court upheld

his conviction under Section 324 for causing the injury to

PW10. However, that is not the subject matter of the

present appeal.

There were five eye-witnesses to the offence. The first

one is PW6\027Akkatai (daughter of the deceased Krishna)

whose name was referred to in the F.I.R. itself. The other

eye-witnesses are PW7\027daughter-in-law of the deceased

Krishna, PW10\027his son, PW8\027the wife of deceased Bajirao

and PW9\027one Shivaram. None of them explained as to how

the accused received injuries. The trial Court expressed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7

doubt regarding the presence of PW8.

In our view, the view taken by the High Court on the

aspect of self-defence is not a reasonably possible view. We

do not think that the evidence on record justifies the

inference that the appellants acted in self-defence. Three

reasons weighed with the High Court in giving credence to

the plea of private defence. The following passage at para

10 of the judgment summarizes these reasons.

"\005In our view, the material mentioned above

thus lends support to the defence contention that

the complainants party had also come armed with

the weapons such as axe, motor cycle chain and

sticks. Material further indicates that the

complainants party were also abusing the

accused persons. The aforesaid facts coupled with

the fact that three of the accused alongwith four

other from their party did in fact suffer injuries,

which are not explained by the prosecution

witnesses in our view, indicates that the

complainants party had come prepared for

aggression and did commit overt acts against the

accused and others. \005"

Then, the High Court examined the overt acts

committed by the appellants and held that the

appellant No.2\027Tanaji intended to cause more harm than

necessary for the purpose of self-defence and therefore the

Exception 3 cannot come into play in his case. However, the

Exception was applied to the case of first appellant and he

was convicted under Section 304 Part I. On a scrutiny of the

evidence on record and the clear finding of the trial court in

regard to the scene of offence, we are of the view that the

High Court was not justified in reaching the conclusion that

the accused had the right of private defence against the

deceased and their companions 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 Hindurao 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

offence (Ext. 21), the evidence of panch witness\027Vasant

Sawant (Ext. 20), the lack of blood-stains at the alleged

place of incident pointed out by Tutala Bai\027the wife of A2 to

the I.O., the presence of blood on the earth recovered from

the actual spot and the evidence of I.O. The trial Court

concluded as follows:

"Thus it is clear that as the place of offence is

near the house of Hindurao Walake, it falsifies the

version of the accused that the incident took

place in front of their house as contended by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7

them in their written statement under Section

313 Cr.P.C."

It was also observed:

"The version given by the prosecution and the

complainant that on the date of incident at about

10 a.m. they were going to the land of Mali

(owned by Akkatai) appears to be most natural

and probable".

This finding of the trial Court based on thorough

analysis of the evidence has not been upset by the High

Court. Yet, the High Court came to the conclusion that the

members of the prosecution party were aggressors. At least,

two reasons that were taken into account by the High Court

in reaching the conclusion cannot be sustained. There is no

evidence to show that PW10 was carrying the motor cycle

chain. The suggestion put to him was denied. PW9 denied

having made the statement before the police that PW10 was

carrying cycle chain and the axe. So also he denied having

made the statement that the deceased Krishna and his three

sons were hurling abuses in loud tone against the accused

for the previous night's assault on A1. The High Court made

use of the statements under Section 161 Cr.P.C. to record

its findings on these two aspects. It may be that PW9 is an

untruthful witness but the omissions and contradictions

cannot be treated as evidence of the alleged facts. There is

every possibility that the offensive article like cycle chain

could have been picked upon the spot by a member of the

prosecution party.

As regards the injuries on the accused, we shall advert

to that aspect a little later.

The learned counsel for the appellant tried to

supplement the reasons given by the High Court by

contending that in the background of the previous night's

incident, the prosecution party would have thought of

retaliation, as otherwise there was no acceptable reason for

the deceased and their family members coming to the

village of the accused on the very next day. It is commented

that the explanation of PW6\027Akkatai 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 that the weapons they were carrying (axe

and sticks) were such as are ordinarily carried in villages

while going to fields, would probablize the fact that that

their arrival in the village of Walkewadi was for some reason

other than initiating a fight against the accused. The learned

counsel for the appellant repeatedly stressed that the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7

incident was only of a short duration\0272 or 3 minutes

according to PW8. But it has no bearing on the question

whether the members of the prosecution party were the

aggressors.

For the aforesaid reasons, we discard the plea of self-

defence advanced by the accused which has been accepted

by the High Court without evidentiary basis and without

considering the clear finding of the trial Court in regard to

the scene of offence. The High Court's finding on the aspect

of private defence almost borders on perversity and cannot

be sustained.

What remains is the fact that the injuries were caused

to some of the accused which remained unexplained.

Whereas the accused No.1 received a minor injury viz.,

contusion over left fore arm 2"x1", the injuries received by

accused Nos. 2 & 3, though simple, are fairly severe.

Accused No.2 had received an axe injury and accused No.3

had received an injury with some other dangerous object

such as cycle chain. One person by name Sadashiv suffered

a lacerated wound over occipital region, scalp deep with a

fracture of skull. According to the appellants, he was their

associate. He was examined by the Medical Officer\027PW5.

There was no explanation for these injuries received by the

accused and some others in the course of the same incident.

In fact, the incident as such has not been denied by either

of the parties. It is not possible to say with reasonable

certainty as to which party provoked the other and how the

fight was initiated. In the circumstances, a reasonable

inference based on a high degree of probability could be

drawn that there was a sudden quarrel and free fight

between the parties. The attack by the appellants on the

prosecution party in the course of this fight cannot be said

to be a premeditated affair. It is not the prosecution case

that the accused anticipated the arrival of the prosecution

party and they were lying in wait to cause harm to the

deceased. Though A1 had a fire arm, he did not use it

against the deceased. He fired a shot or two in the air. After

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 probablize 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.

The only doubt that arises is whether A3, in causing

three axe injuries to the deceased Bajirao, acted in a cruel

manner? In examining this point, we have to take note of

the fact that A3 (2nd appellant), in spite of having an axe

with him, had suffered quite a severe injury viz., contusion

of 8"x1" over chest which could have been caused,

according to the Doctor, by an object like cycle chain. It is

not possible to say at what stage A3 had received such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7

injury. At any rate, there was no clarification bearing on this

aspect from the prosecution side. The deceased Bajirao was

wielding an axe. The 2nd appellant, probably already injured,

might have become apprehensive that he would be attacked

by Bajirao with the axe. Though three injuries were noted,

they are all on the left parietal region causing the fracture of

skull bone. Looking at the nature of injuries, it is quite

possible to say that all the injuries would have been caused

by one or two axe blows, but not necessarily three. In fact,

PW6 states in cross examination that she had seen one axe

blow being given by accused No.3 on the neck of Bajirao. No

doubt he had used excessive force against Bajirao by

causing injury with the axe on a vital part, may be more

than once. However, taking an overall picture, we cannot

say beyond doubt that the 2nd appellant acted in a cruel or

atrocious manner by attacking the deceased with the axe

once or twice. We are therefore not inclined to deprive the

2nd appellant of the benefit of Exception No.4. At the same

time, we are of the view that it would be appropriate to

convict him under Part I of Section 304 IPC because having

regard to the gravity of the injuries caused with a dangerous

weapon, each one of which was fatal, the 2nd appellant must

be imputed with the intention to cause such bodily injury as

was likely to cause death, if not the intention of causing

death. Accordingly we convict the 3rd accused\027appellant

No.2 under Section 304 Part I and we are of the view that in

the circumstances, a sentence of eight years R.I. and fine of

Rs.1,000/- would be sufficient. In default of payment of fine,

appellant No.2 will suffer imprisonment for four months.

The case of the accused No.1\0271st appellant,

undoubtedly falls under Section 304 Part II. As noticed

supra, A1, although having fire arm, did not shoot the

deceased or any other member of the prosecution party.

Other than the gun, he was not having any weapon in his

hand. Instantaneously he picked up the axe that was in the

hands of the injured\027Bajirao 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\027PW5, 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\027A1 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 Rs.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

course be given the benefit of set off of the period of

detention already undergone.

Accordingly, the judgment of the High Court is

modified and the appeal is partly allowed.