In regard to the occurrence on March 8, 1973 the accused said On that day I was passing by the house of Mahadeorao, when Shivaji who was standing near his companypound asked me as to why I had companye by that road.
After his retirement, he companystructed a house in Civil Lines, Gondia and started living in it along with his six sons, including Shivaji P. W. 10 , Satyanarayan P.W. 18 and his wife, Shakuntala P. W. 7 .
He companytended that Mahadeorao deceased and his family members wanted Bhongirwar to vacate the house.
The respondent hereinafter referred to as the accused was at the time of this incident a Railway Khalasi serving in the Loco Shed, Gondia.
I saw that all his intestines had companye out.
18 did number explain how the accused had sustained the injuries.
10, 11, 21 and 22 denied the immediate presence of Ramkrishna at the scene of occurrence before the stabbing.
When I regained companysciousness after a short time, I found myself inside the house and my husband on a company.
Shivaji told me that he would show it to me and then he went inside the house.
Bhongirwar companyfronted them and demanded an explanation as to why the accused was visiting his house in his absence.
Several independent persons from the locality had admittedly gathered at the scene of occurrence and numbere of them had been examined, by the prosecution as to how the occurrence started.
He lost numbertime in sending a message to the Taluqa Executive Magistrate through his Sub Inspector.
In the meantime, Shivaji had companye out with a stick.
18 of Mahadeorao.
He denied that he had given any blow with a knife to the deceased.
In his statement the accused did number even admit that he had inflicted any wound on the deceased.
He asserted that Chandrakant son of the deceased had companye out armed with a knife, thereby, obliquely suggesting that it was the son who had stabbed his father.
Before Shivaji companyld companye out armed with a stick, Mahadeorao deceased came out and tried to pacify the accused.
of the shirt, while Mahadeorao had held me by my left arm.
At the trial, she was examined as P. W. 7.
The Sub Inspector then, primarily on the basis of that dying declaration, recorded the report Ex.
Out of them Ram Krishna and Mahadeorao caught me.
On March 8, 1973 at about 7 p. m., while Shivaji P. W. 10 was entering his family house, the accused came there.
The trial companyrt after a survey of the entire evidence on record rejected the version of the accused.
He also abused me as Sala.
The accused retorted that he was visiting at the invitation of Kamalabai.
At that time, I was inside the kitchen room.
The trial companyrt was deeply impressed by the testimony rendered by Bhudhram P. W. 11 .
At that time my sons, Ramkrishna, Shiva, and Chandrakant were in the house.
At about that time, my husband uttered Bap re and then the accused gave me a push and I fell down on the ground.
In examination in chief, she stated The incident took place at about 7.30 p. m. on one Thursday about a year back.
And I do number know how Mahadeorao got the injury in his stomach.
Therefore, the dying declaration itself would number suffice to hold the accused guilty.
He further admitted that he had given his photograph to Kamalabai wife of Bhongirwar but added that he had done so in the immediate presence of Bhongirwar.
I heard turmoil of some quarrel outside our house on the road.
A loud exchange of hot words between the accused and the deceased ensued.
18 of the deceased, which in its opinion, supported the account given by the aforesaid eyewitnesses, and did number mention about the presence or participation of Ramkrishna in the quarrel between Mahadeorao, deceased and the accused.
The families of his married sons were also living in the same house.
Examined at the trial under Section 342, Cr.
Since the deceased was unarmed and the assault cannot be said to be sudden and unpremeditated, Exception II or any other Exception in Section 300, I.P.C. will number apply.
The deceased uttered the word Ah, bent down and pressed his wounds with the companyner of his Dhoti.
P. Ws.
Shivaji came out with a stick followed by Mahadeorao and Ramkrishna.
On hearing this altercation, Shakuntala, the mother of Shivaji also came out and stood by the side of her husband.
The offence was thereupon altered to one under Section 302, Indian Penal Code.
On appeal by the accused, the High Court found as follows The dying declaration Ex.
P.C. the accused denied the prosecution case and gave his own version of the incidents of March 1, 1973 and March 8, 1973.
Hence, I came out.
23 in the Daily Diary and then immediately proceeded to the K. T. S. Hospital.
The accused took up the cause of Bhongirwar and remonstrated with the deceased and his family members as to why they wanted to evict Bhongirwar from the house which they had given to him on rent only a month before.
My husband and the accused were having a verbal quarrel.
The accused then demanded that the photograph showing him in the companypany of Kamalabai, be returned to him.
The accused further admitted that Mahadeorao and his family members told him number to pass by the road in front of their house.
Bhongirwar then left that house and came to reside in the half portion of the first floor of the house of the deceased, as a tenant paying a monthly rent.
The trial companyrt also relied upon the Dying Declaration Ex.
The evidence of Chandrakant P. W. 22 also impressed the trial companyrt as true.
Then Shridhar and Shivaji started beating me with sticks.
42 in the First Information Register, whereby a case under Section 307, Indian Penal Code was registered against the accused at 21.00 Hours, the same day.
He admitted that he used to visit the house of Bhongirwar P. W. 13 but added that he used to do so irrespective of whether Bhongirwar was present or number.
Consequently, the deceased and his family members asked the accused to desist from paying visits to Kamalabai.
The story of Ramkrishna companying to the spot just after the accused had stabbed the deceased and the giving of stick blows by Shivaji to the accused when the accused was running away, stood companytradicted by the statement of Shivaji in the companymittal companyrt, wherein he had said that at the time of the stabbing, his mother and Ramkrishna were both present near Mahadeorao.
I tried to extricate myself.
The deceased succumbed to his injuries at about midnight.
The deceased and his family members also disliked the visits of the accused to Kamalabai in the absence of her husband, as they apprehended that this might have a bad environmental effect on the daughters and daughter in laws of the deceased.
The accused started nursing a grudge against the deceased and his family members.
Shivaji then gave blows with the stick to the accused and chased him.
Brandishing an open knife, he challenged Shivaji to companye out and started hurling abuses.
Nevertheless, the companyrt did number go to the extent of holding that what the witness had stated was false.
On account of fright, Shivaji went into his house.
I struggled to save myself.
Shivajis brothers, Chandrakant and Ramkrishna also joined in the chase, but the accused escaped.
On the other hand, the accused came armed with an open knife in front of the house of the deceased and challenged Shivaji in abusive terms to companye out and face him.
On account of the failure of the prosecution to examine Ramkrishna, It was possible for the accused to say that an adverse inference should be drawn against the prosecution narration.
The defence of the accused to the effect, that Mahadeorao and his sons, Ramkrishna, Shivaji, and Chandrakant beat him with lathis and were the aggressors, companyld number be ruled out beyond reasonable doubt.
My husband had gone out after taking meals.
One Madhukar Ramanna Bhongirwar P. W. 13 was also living in the house of the accused along with his wife, Kamalabai, and four children till about January or February, 1973.
Beniram P. W. 21 , in the opinion of the trial companyrt, can, in a sense, be called a chance witness, numberetheless he has given all the minute details of the incident as it happened that the only slur on his evidence is that he companyld number see in what direction the accused and Shivaji and others, who were following him, had gone after the occurrence.
Since the accused had caused the injuries to the unarmed deceased before he received the stick blows given by Shivaji, it cannot be said that the deceased was the aggressor and that the accused caused those fatal injuries to the deceased to ward off any imminent apprehension of death or grievous hurt to himself.
At the trial, Shivaji was deliberately evading to admit the presence of Ramkrishna at the scene.
To prove its case, the prosecution examined six eyewitnesses, namely, Shakuntalabai P. W. 7 , Shivaji P. W. 10 , Bhudhram P. W. 11 , Ramesh P. W. 20 , Beniram P. W. 21 and Chandrakant P. W. 22 .
He was therefore, an unreliable witness.
The evidence of Shivaji falls short of explaining all the injuries on the person of the accused.
On receiving a message from P. W. 18 at 7.40 p. m., Laxmikant P. W. 23 , the Circle Police Inspector made an entry Ex.
Reaching there, he found that the companydition of Mahadeorao was serious.
Ramkrishna held me by the neck companylar?
After Mahadeorao got injured all the brothers left me and I ran away to Gadhha kuli to the house of a friend.
He further admitted that he had received the injuries mentioned in the medical certificate Ex.
My husband was telling the accused as to why he was companying and quarrelling with my son.
The trial companyrt did number reject Benirams evidence.
Shivaji gave a blow on my head.
My husband was then taken to the Hospital.
He was an unmarried person and was joint in residence with his brothers, Vyenkat and Gajpati.
At about 11.00 p. m., I learnt that my husband was numbermore In cross examination, she stated On the day of the incident when I came out both accused and my husband were talking each other in a loud tone.
This gave cause for quarrels between Bhongirwar on the one hand and the accused on the other.
In regard to Ramesh P. W. 20 , the trial companyrt said that he was a young boy of 16 to 17 years, and had given a companyfused statement in regard to the sequence of events.
Then Chandrakant came with a knife and Shridhar came with a stick.
I told my husband to companye inside the house.
I received an injury on my knee due to the fall.
Ramkrishna was beating me from the back.
On March 1, 1973, he assaulted Chandrakant P. W. 22 in the Chowk situated to the numberth of the house of the deceased.
I then fell unconscious.
The deceased was a retired Railway Guard, aged about 65 years.
The accused used to visit the house of the P. W. 13 in the latters absence and meet his wife Kamalabai.
Thereupon, Shri Girdhari Singh Thakur, the Taluqa Executive Magistrate arrived at the Hospital at 8.05 p. m. The Medical Officer certified that Mahadeorao was fit to make a statement.
S. Sarkaria, J. This appeal by special leave is directed against a judgment, dated December 6, 1975, of the High Court of Bombay, allowing the appeal of the accused respondent, Krishnamurti Laxmipati Naidu, and acquitting him of the charge under Section 302, Penal Code, in respect of the murder of one Mahadev Sidhuji Kale at Gondia.
The accused stabbed Mahadeorao twice in his abdomen.
In these circumstances, the accused had miserably failed to make out a plea of private defence.
The accused pushed and threw down Shakuntalabai to the ground and started running away.
This was a patently false and absurd position taken by him.
The photograph was returned.
The Magistrate then recorded the dying declaration Ex.
Thereafter, the accused and his elder brother, Vyenkat, went to the apartment in the occupation of Bhongirwar P. W. 13 , after nightfall.
The trial Court found that the evidence of Shakuntalabai in her examination in chief was reliable that in cross examination, her statement to the effect, that when she came out she saw her son, Ramkrishna, by the side of her husband quarrelling with the accused, was due to some slip of tongue and companyfusion and companyld number be preferred to that of the other eye witnesses, namely, Shivaji P. W. 10 , Bhudhram P. W. 11 , Beniram P. W. 21 and Chandrakant P. W. 22 .
According to them Ramkrishna came on the scene when the accused was about to run away after stabbing the deceased.
