Urmila Joshi Phalke, J.
1. By this Appeal, the Appellant is assailing the judgment and order of conviction and sentence passed by the Additional Sessions Judge, Akola in Sessions Trial No. 111/2018 dated 04.10.2021 by which the accused is convicted of the offence punishable under Section 302 of the Indian Penal Code (for short “IPC”) and sentenced to suffer imprisonment for life and a fine of Rs. 5,000/-, in default of payment of fine to suffer rigorous imprisonment for one year.
2. Brief facts which are necessary for the disposal of the present Appeal are as under:
2(i). The accused and the daughter of the deceased namely Kiran i.e. PW-3 had love affair and they performed the marriage. Subsequent to the marriage, as per the allegation, the accused used to raise quarrels with PW-3/Kiran on trivial grounds as well as assaulted her. He was also not doing any work. Prior to the incident four months ago, as PW-3/Kiran was assaulted by the accused by means of an iron rod over the issue of serving the food, she started residing alongwith her parents. The deceased was the father of PW-3/Kiran Gawai. The accused and the deceased were residing in the same lane at a distance of approximately 200 feet. From the said wedlock, PW-3/Kiran Gawai and accused are having small daughter. On 09.03.2018 at about 05.30 p.m., the accused had been to the house of the deceased and insisted her to come alongwith him. He also snatched the daughter of PW-3/Kiran Gawai and started dragging PW-3/Kiran Gawai forcibly and, therefore, the deceased followed them. Thereafter the accused went inside his house brought the knife and gave repeated blows on the chest and stomach of the deceased. The deceased immediately fallen on the ground. Thereafter the deceased was taken to the Hospital but he was declared dead. On the basis of the said report, Police have registered the crime against the present accused/Appellant.
2(ii). On registration of the crime, the Investigating Officer has completed the formalities of the investigation by drawing various panchanamas, seizure of knife, seizure of clothes of the deceased as well as of the accused and after completion of the investigation submitted charge-sheet against the accused.
2(iii). The learned Additional Sessions Judge, Akola framed the charge vide Exh.3 for the offence punishable under Sections 302, 498-A, 323, 504 and 506 of IPC. The contents of the charge were explained to the accused in vernacular, to which he pleaded not guilty and claimed to be tried.
2(iv). In support of the prosecution case, the prosecution has examined in all 9 witnesses, which are as follows:
| (i) | PW-1 | Rekha Dilip Savang | Exh.19 | Informant, eyewitness & wife of the deceased. |
| (ii) | PW-2 | Manisha Rajendra Shivdharkar | Exh.28 | Panch on the spot panchanama as well as memorandum statement of the accused and recovery of the weapon. |
| (iii) | PW-3 | Kiran Vishal Gawai | Exh.41 | Eyewitness, daughter of the deceased and wife of the accused. |
| (iv) | PW-4 | Milind Dilip Aakode | Exh.42 | Panch witness to inquest panchanama. |
| (v) | PW-5 | Venubai Baburao Pawar | Exh.46 | Eyewitness neighbour of the accused and deceased. |
| (vi) | PW-6 | Yashoda Ganpat Paithankar | Exh.58 | Carrier. |
| (vii) | PW-7 | Dr. Mahesh Rohidas Sabale | Exh.64 | Medical Officer who conducted postmortem. |
| (viii) | PW-8 | Raju Janrao Bharsakle | Exh.71 | Investigating Officer. |
| (ix) | PW-9 | Santosh Manoharrao Mahalle | Exh.75 | Investigating Officer. |
2(vi). On the basis of the oral as well as documentary evidence, the prosecution claimed that the prosecution has proved its case beyond reasonable doubt. The defence of the accused is total denial and of false implication due to the matrimonial dispute between him and the daughter of the deceased.
2(vii). After appreciating the entire evidence, the learned Trial Court held the accused guilty and convicted him as aforestated.
3. Heard Mr. Das, learned Counsel (Appointed) for the Appellant/Accused, who submitted that, undisputedly there was a matrimonial dispute between the accused and the daughter of the deceased. The daughter of the deceased was not cohabiting with the accused. The entire case of the prosecution relied upon the evidence of the prosecution witnesses especially PW-1/Rekha Savang and PW-3/Kiran Gawai. As per their evidence, the accused had been to the house of the deceased. However, the spot of incident is in the courtyard of the house of the accused. Thus, it was the deceased who was the aggressor. The true genesis of the incident is suppressed by the prosecution. All witnesses examined are interested witnesses. No independent witnesses are examined. The allegation is that PW-3/Kiran Gawai was harassed and illtreated by the accused, itself is not proved, as there was no previous complaint as to the harassment or illtreatment at the hands of the accused. Therefore, the root cause to the incident itself is not established by the prosecution and, therefore, the prosecution has not proved its case beyond reasonable doubt.
3(i). In support of his contention, he placed reliance on Arvind Kumar Alias Nemichand & Ors. Vs. State of Rajasthan, (2022) 16 SCC 732.
4. Per contra, Mr. Doifode, learned Addl.PP for the Respondent/State, submitted that as per the case of the prosecution, the accused had been to the house of the deceased and forcibly taken PW-3/Kiran Gawai and daughter of PW-3/Kiran Gawai and, therefore, the deceased has followed the accused and tried to intervene when he dragged PW-3/Kiran Gawai. At that time, the accused went inside his house and brought a knife. This evidence is supported not only by the wife of the deceased PW-1/Rekha Savang and daughter PW-3/Kiran Gawai but also supported by PW-5/Venubai Pawar, who is the independent eyewitness. The evidence of the eyewitnesses is further corroborated by the seizure of the knife at the instance of the accused and medical evidence, as direct evidence is already adduced by the prosecution. Therefore, it is not necessary to prove the motive. For all above these reasons and no other reason came forward from the side of the accused that he has been falsely implicated and, therefore, the prosecution’s case deserves to be accepted and hence no interference is called for.
5. We have heard the learned Counsel for the Appellant/accused and learned Addl.PP for the Respondent/State at length. They have also taken us through the entire evidence and on going through the evidence the first and foremost question which requires to be answered is whether the death of the deceased is homicidal one.
6. To prove the death of the deceased as homicidal one, the prosecution mainly placed reliance on the evidence of PW-7/Dr. Mahesh Sabale, who categorically stated that, on 10.03.2018, he was attached to the Government Medical College and Hospital. He received the requisition Exh. 65. Accordingly, he alongwith Dr. Om Kale conducted the postmortem and found the external injuries which he has mentioned in column No.17 of the postmortem report, which are as under:
i] Stab wound present vertically over left side of chest, of size 2.5 cm x 1 cm x cavity deep, elliptical in shape, upper angle is sharp and lower angle is blunt, margins clean cut and blood infiltrated, situated 8cm below the left nipple and 8.5 cm lateral to the midline.
Direction of stab wound - Directed downward and backward.
ii] Incised wound present vertically over right upper chest region, of size 5.3 cm x 0.5 cm x 0.5 cm x subcutaneous deep, vertical, margins clean cut and blood infiltrated, situated 8cm above the right nipple, 7cm below the right acromion process.
iii] Two abrasions horizontally placed over left scapular region of back, of sizes 2.5 cm x 1.5 cm (upper) and 1.5 cm x 0.5 cm (lower), separated from each other by 5 cm, reddish in colour.
iv] Punctured wound of intravenous catheterization present over dorsum of right hand (as a part of treatment).
6(i). All the aforesaid injuries mentioned above were ante mortem.
6(ii). Similarly, he has also noted internal injuries in column No.19, which are as follows:
| i] | Injuries under the scalp, their nature. | Under scalp hematoma present in left temporalis muscle, of size 6 cm x 5 cm, reddish in colour. |
| ii] | Skull-vault and base-describe fractures, their sites, dimensions, directions, etc. Intact. | No fracture of base of skull and vault. |
| iii] | Brain- The appearance of its coverings, size, weight and general condition of the organ itself and any abnormality found in its examination to be carefully noted. | Membranes:- Intact, pale. Brain :- intact, pale, edematous, weight-1225gm. |
| a] | Walls, ribs, cartilages. | Cut injury of size 2.5 cm x 1 cm x cavity deep present in left 5th intercostal space corresponding to injury no. 1 under column no. 17, margins clean cut and blood infiltrated. |
| f] | Pericardium | Cut injury of size 2.5 cm x 1 cm present over anterior surface, corresponding to injury no. 1 under column no. 17, with hemorrhagic infiltration present. 20 ml fluid blood and 125 gm of blood clots present pericardial cavity. |
| g] | Heart and weight 275 gm | Cut injury, of size 2.5 cm x 0.5 cm x cavity deep, present vertically over anterior surface of right ventrical, corresponding to injury no. 1 under column no. 17, margins clean cut and blood infiltrated. |
6(v). As far as the cross-examination is concerned, from which nothing incriminating is transpired. His further evidence disclosed that, on 15.06.2018, he also received the seized weapon knife from Khadan Police Station vide Exh. 67. Accordingly, he has rendered his opinion by examining the said weapon. He testified that, the said knife was sharp edged weapon. The mark of infliction of knife and the cuts of knife on two places on the clothes of the deceased which is verified by him. Accordingly, he issued the opinion.
7. Thus, the evidence of PW-7/Dr. Mahesh Sabale stated that, the injuries which were on the person of the deceased, due to which, the homicidal death was caused. He also examined the weapon and the clothes of the deceased and gave his opinion.
8. A medical witness, who performs a postmortem examination, is a witness of fact though he also gives an opinion on certain aspects of the case. This proposition of law has been stated by the Hon’ble Apex Court in the case of Smt. Nagindra Bala Mitraand Vs. Sunil Chandra Roy and another, reported in 1960 SCR (3) 1, wherein the Hon’ble Apex Court observed that “the value of a medical witness is not merely a check upon the testimony of eyewitnesses; it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. If a person is shot, at close range, the marks of tatooing found by the medical witness would show that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim’s person.” Thus, the testimony of medical witness is very important and it can be safely accepted. The evidence adduced by the Medical Officer corroborated by the inquest panchanama shows that the deceased died homicidal death.
9. In the recent judgment also, the Hon’ble Apex Court in the case of Anuj Singh @ Ramanuj Singh @ Seth Singh Vs. The State of Bihar, reported in 2022 Live Law (SC) 402, dealt with the evidentiary value of the medical evidence and observed that the evidentiary value of a medical witness is very crucial to corroborate the case of prosecution and it is not merely a check upon testimony of eyewitnesses, it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. It has been reiterated by this Court that the medical evidence adduced by the prosecution has great corroborative value as it proves that the injuries could have been caused in the manner alleged.
10. Thus, the prosecution has succeeded in proving that the death of the deceased is homicidal one. As far as the defence of the accused is concerned, nothing is brought on record to show that there was any other reason for causing the death of the deceased.
11. To prove the charges against the accused, the prosecution mainly placed reliance on the direct evidence of PW-1/Rekha Savang Exh. 19, who is the wife of the deceased as well as the eyewitness, PW-3/Kiran Gawai, who is the daughter of the deceased and also an eyewitness and PW-5/Venubai Pawar is the neighbour of the accused and deceased and is an independent eyewitness.
12. The evidence of PW-1/Rekha Savang discloses that, her daughter Kiran was married with the accused. After marriage he started harassing her and, therefore her daughter started residing with them. Her daughter was also having a small daughter and they started residing at their place being fed up with the harassment at the hands of the accused. Her further evidence shows that, on the day of incident, the accused had been to their house and started abusing her husband. He also pulled the hair of her daughter, picked her granddaughter and forcing them to take alongwith him. Therefore, her husband had intervened. Thereafter, accused went inside the house and brought the knife and gave repeated blows on his stomach and chest. Her husband sustained bleeding injuries and fall down in the pool of blood. Thereafter, he was taken to the Hospital but he was declared dead. Thereafter, she lodged the report which is at Exh. 20 and FIR is at Exh.21. She identified the knife Article-A. She also identified the clothes of her husband Articles-B to E and clothes of the accused Articles-F & G.
12(i). From her cross-examination which came on record shows that, there is a distance of 200 feet from her house and the house of the accused. She also admitted that, no previous complaint was filed against the accused as to the illtreatment to her daughter. She further admits that, the accused had been to her house on 09.03.2018 for taking back her daughter Kiran and she was taken by the accused. Her evidence further shows that, she alongwith her husband also went to drop them at their house. She denied that, there was scuffle in between her husband and the accused and knife was accidentally hit her husband. Thus, from her cross-examination attempt was made to show that, during the scuffle, the deceased has sustained the injuries.
13. The another eyewitness examined by the prosecution is PW-3/Kiran Gawai, the daughter of the deceased as well as the wife of the accused, who deposed that her marriage with the accused was a love marriage. The accused was illtreating and harassing her by consuming liquor and, therefore, she was residing alongwith her parents. On 09.03.2018 at about 05.30 p.m., the accused came at her parents house and started abusing her as well as her parents. He was insisting her to join him at his house. He snatched her daughter from her and pulled her hairs and took them to his house. Therefore, her father followed them to the house of the accused. Thereafter, the accused left them and brought one knife from his house and gave blows of knife on the stomach and chest of her father and, therefore, her father sustained the bleeding injuries. He was taken to the Hospital but he was declared dead. Her evidence shows that, the house of the accused is adjacent to the house of her parents.
13(i). Her cross-examination shows that, prior to 2 to 3 years of marriage she was knowing the accused. He was residing alone, though he was having parents. Her cross-examination further shows that, after her delivery the accused had been to her house for fetching her back. She denied that, her marriage was opposed by her parents and, therefore, she was residing alongwith her parents. Thus, as far as the cross-examination is concerned, which shows that despite there was a dispute, no previous complaint was filed. On the contrary, the cross-examination shows that, there were good relations in between her husband and her father.
14. To corroborate the evidence of PW-1/Rekha Savang and PW-3/Kiran Gawai, the independent eyewitness PW-5/Venubai Pawar was examined vide Exh. 46.
15. Her evidence shows that, there used to be frequent quarrels in between the accused/Vishal and Kiran i.e. PW-3 and, therefore, Kiran started residing with her parents. As to the incident, she narrated that on 09.03.2018 at about 05.00 p.m., she was at her home. At that time, a quarrel took place between the deceased/Dilip Sawang and accused, as the accused was insisting his wife to accompany him. She had witnessed the incident of assault between both of them. The accused gave a blow of knife on the chest and stomach of the deceased and thereafter fled away. The deceased subsequently reported to be dead. She denied that, she is having any relations with PW-1/Rekha Savang. As per her evidence, there is a distance between the Buddha Vihar and the house of the accused is about 100 mtr. Her house is behind the house of accused Vishal. It was suggested to her that, she is doing the labour work and, therefore, she attend the work from 10.00 a.m to 05.00 p.m., which is admitted by her, but she specifically stated that, on the day of incident, she had reported to work, however, she had returned back when the incident took place. She further admits that, there were strained relations between PW-1/Rekha Sawang and accused. She further admits that, PW-1/Rekha Sawang was opposing for the marriage of her daughter with the accused. From this cross-examination an attempt was made to show that, due to the oppose of the marriage between PW-3/Kiran Gawai and the accused, the accused was falsely implicated in the alleged offence.
16. PW-2/Manisha Shivdharkar was examined as a panch on the spot panchanama as well as on the seizure of the knife and the mobile phone of the accused. Her evidence shows that, in her presence the spot was shown by PW-1/Rekha Savang. There were blood stains on the spot. Police seized blood stained and simple soil from the spot and spot panchanama Exh. 30 and seizure memo Exh. 31 were prepared. In her presence, the blood samples of the deceased as well as the clothes of the deceased were also seized by drawing seizure memos Exhs. 32 and 33. Similarly, on 04.06.2018 the clothes of the accused were also seized vide seizure panchanama Exh. 35. On 06.06.2018, the mobile phone of the accused was seized.
17. Her further evidence shows that, on 06.06.2018 the accused made a memorandum statement that he will show the location where the knife was concealed. Accordingly, the said memorandum statement was reduced in writing which is at Exh. 38. Thereafter, the accused led them and took them at his house and accused produced the concealed knife from the bundle of clothes. The same was seized by drawing panchanama which is at Exh.39. As far as the cross-examination is concerned, which is only in the denial form. Thus, the evidence of this panch witness is not shattered during cross-examination.
18. PW-4/Milind Aakode is the panch on the inquest panchanama, who stated that in his presence the inquest panchanama was drawn which is at Exh. 44.
19. PW-6/Yashoda Paithankar is a Police Naik. As per her evidence, she has carried the muddemal to Forensic Lab at Amravati and handed over the requisition letter Exh.59 and obtained the acknowledgment. She was also given the duty pass, which is at Exh. 60. Her evidence also remained intact as there was no challenge to carrying out the muddemal to the Forensic Lab.
20. PW-8/Raju Bharsakle and PW-9/Santosh Mahalle are the Investigating Officers, who have narrated about the investigation carried out by them. Their cross-examinations also consists of mere denials of the evidence.
21. Besides the evidence of these witnesses CA Reports are at Exh. 55 and 56. Exh. 55 is the analysis of the clothes of the deceased, which shows that Ex. 1 is Full pant, Ex.2 is Full shirt, Ex. 3 is Sandow baniyan, Ex.4 is Underwear, Ex.5 is Blood stained soil having blood group ‘AB’. Though evidence of Investigating Officer i.e. PW-9/Santosh Mahalle shows that, he has forwarded the knife and clothes of the accused for analysis but the CA report regarding the examination of the weapon and the clothes of the accused is placed before the Court. There is no reference of the said CA report in the judgment of the learned Trial Court also. Thus, as the evidence as to the knife and the clothes of the accused were stained with blood or not has not came before the Court.
22. On appreciating the evidence of PW-1/Rekha Savang, PW-3/Kiran Gawai and PW-5/Venubai Pawar who appears to be the consistent and corroborative with each other. Though the learned Counsel for the Appellant/Accused made an attempt to show that, there is a dispute to the spot of incident. But evidence of these three witnesses show that, the accused had been to the house of the deceased and insisted PW-3/Kiran Gawai to come alongwith him and also snatched their daughter from PW-3/Kiran Gawai and was taking them to his house, at the relevant time, the deceased has followed them and thereafter the incident has occurred. The blood stains as per the spot panchanama was found in front of the house of the accused. PW-5/Venubai Pawar who was residing behind the house of the accused specifically stated that the incident has occurred in front of the house of the accused.
23. Thus, the contention of the learned Counsel for the Appellant/accused that, there is a dispute as to the spot of incident is not sustainable. The another limb of submission was that, PW-1/Rekha Savang is the wife of the deceased and PW-3/Kiran Gawai is the daughter of the deceased and, therefore, they are the interested witnesses.
24. Admittedly, while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
25. While appreciating the evidence of relatives great weightage is to be given to them on the principle that there is no reason for them not to speak the truth and shield the real culprit. In fact a close relative who is a natural witness cannot be regarded as an interested witness. The term “interested” postulates that, the person concerned must have some direct interest in seeing that the accused is somehow or otherwise convicted either because he had some animus with the accused or for some other reason. While dealing with the evidence of witness who is relative, the evidence of witness cannot be discarded merely on the ground that he is either partisan or interested or close relative of deceased, if it is otherwise found to be trustworthy. The said evidence only requires scrutiny with more care and caution.
26. Examining the evidence on the touchstone of the credibility as already observed that the credibility of the witnesses nowhere affected. The evidence of PW-5/Venubai Pawar is concerned, which was not shattered during the cross-examination. She is an independent eyewitness and there is no embellishment in her evidence. Thus, nothing is on record to suggest that she is having any ulterior motive to implicate the accused falsely in the alleged offence. On the contrary, her presence at the spot of incident appears to be natural as she was residing towards the backside of the house of the accused and the alleged incident has occurred in the courtyard of the house of the accused. Thus, after appreciating the evidence, there is no inconsistency and, therefore, the evidence of these witnesses requires to be accepted.
27. Coming to the aspect of recovery evidence, the evidence of PW-2/Manisha Shivdharkar who acted as a panch on memorandum statement of the accused and recovery at his instance specifically shows that, in her presence the accused made a memorandum statement to the extent that he will show the location where the knife was concealed. Accordingly, he took them at his house and produced the concealed knife from the bundle of clothes. Despite her cross-examination nothing has been brought on record to discard her evidence.
28. The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the Investigating Officer during interrogation which has been taken down in writing. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence as laid down by the Hon’ble Apex Court in the case of State of Uttar Pradesh Vs. Deoman Upadhyaya, AIR 1960 SC 1125.
29. Thus, when the panch witness has stated about the disclosure statement, PW-2/Manisha Shivdharkar has specifically narrated what the accused has stated in her presence and in presence of other panch. The Investigating Officer has also narrated about the same.
30. The manner of proving the disclosure statement under Section 27 of the Evidence Act has been considered by the Hon’ble Apex Court in the catena of decisions. In the case of Ramanand @ Nandlal Bharti Vs. State of Uttar Pradesh, 2022 SCC OnLine SC 1396, wherein the Hon’ble Apex Court held that, mere exhibiting of memorandum prepared by the Investigating Officer during investigation cannot tantamount to proof of its contents. While testifying on oath, the Investigating Officer would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement.
31. In view of this if the evidence of PW-2/Manisha Shivdharkar panch and evidence of PW-9/Santosh Mahalle Investigating Officer is perused, it specifically states about the memorandum statement made by the accused in presence of the panchas, which inspires the confidence and, therefore, deserves to be accepted.
32. Admittedly, the CA reports regarding analysis of the weapon and blood stained clothes of the accused was neither produced before the Trial Court nor before this Court. However, the evidence of three eyewitnesses which is consistent and corroborative to each other, is sufficient to prove the guilt of the accused. It is further corroborated by the evidence of PW-2/Manisha Shivdharkar who acted as a panch and her evidence is to the extent that the weapon was recovered at the instance of the accused, is also established. The evidence of Medical Officer PW-7/Dr. Mahesh Sabale to whom the said weapon was referred for examination who has also opined that the knife was sharp edged weapon. He has examined the weapon as well as the clothes of the deceased, wherein there were cut marks and opinion was given that the said cut marks on the shirt of the deceased are possible by the weapon knife.
33. The query report is at Exh. 68, which shows that, he has described the said knife as an old iron knife with handle with length 31.1 c.m., length of handle 11 c.m., length of blade 20 c.m., width 3.1 c.m., with edge sharp and pointed. He also describes that, blade is of steel and texture relatively smooth. Possible injuries he mentioned are stab wound, incised wound and abrasion. He specifically opined that, injury Nos. 1 to 3 mentioned in column No. 17 of the postmortem report dated 10.03.2018 are possible with such type and kind of article provided for the examination. He also forwarded the diagram of the weapon knife.
34. Thus, not only the evidence of eyewitnesses but the evidence of panch witnesses as to the recovery and medical evidence also consistently points out towards the guilt of the accused. Moreover, no reason came forward behind the false implication of the accused. Merely because PW-1/Rekha Savang and PW-3/Kiran Gawai who are wife and daughter of the deceased, is not sufficient to discard the evidence by treating them as interested witnesses, as interested witness postulates that the person concerned must have some direct interest in seeing that the accused is somehow or otherwise convicted either because he had some animus with the accused or for some other reason.
35. Though the learned Counsel for the Appellant/accused, pointed out that during scuffle the said injury has occurred but it is not supported by any other evidence. On the contrary, the evidence on record sufficiently shows that it was the accused who went inside the house brought knife and gave repeated blows on the person of the deceased. Therefore, the case law relied upon by the learned Counsel for the Appellant/accused on Arvind Kumar Alias Nemichand (supra), is not helpful.
36. We respectfully agree with the proposition that, a private defence need not be set up in a particular manner. Such a private defence need not be confined to the individual accused alone, to be applied to the others. Though the initial onus is on the accused to satisfy the Court, the extent of evidence is that of preponderance of probabilities. Thereafter, the onus shifts. Once a private defence is accepted, there are two questions alone to the answered by the Court, namely, the defence coming within the purview of Section 96 to Section 102 IPC and the other acting in excess. The concept of acting in excess has to be seen from the point of view of continued existence of the apprehension of danger.
37. However, the facts of the present case nowhere supports the contention of the learned Counsel for the Appellant/accused that, during scuffle the alleged incident has taken place and the deceased has sustained the injuries. Absolutely, there are no circumstances on which it can be incurred that the accused has used the knife in furtherance of his private defence and, therefore, the judgment in the case of Arvind Kumar Alias Nemichand (supra), is not helpful to the accused.
38. For the reasons recorded above as already observed that, the involvement of the accused to the extent of assault to the deceased who is the father-in-law on the count that he intervened when he was forcefully taking PW-3/Kiran Gawai and her daughter, is established by the prosecution beyond reasonable doubt and, therefore, the Appeal being devoid of merits liable to be dismissed. Hence, it is dismissed.
39. The fees of the learned Appointed Counsel for the accused be quantified as per rules.
40. Pending application/s, if any, shall stand disposed of accordingly.