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PETITIONER: SHRI A.C. GANGADHAR

       Vs.

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT:       28/04/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                     THE 29TH DAY OF APRIL, 1998 Present:              Hon ’ble Mr. Justice G.T.Nanavati              Hon ’ble Mr. Justice S.P.Kurdukar Mr .  Naresh Kaushik  and Ms.  Lalita Kaushik, Advocates for the appellant. Mr. Ashok Kumar Sharma and Mr.M. Veerappa, Advocates for the respondents.                       J U D G M E N T The following Judgment of the Court was delivered: NANAVATI. J      The appellant  was convicted by the trial court for the offence punishable  under Section  326 IPC  and sentenced to suffer imprisonment  for one  month and to pay a fine of Rs. 1000/-. Not  satisfied with  the conviction and sentence the appellant filed an appeal along with other convicted accused to the  High Court.  State had also filed appeal against the acquittal of all the accused and for enhancement of sentence of appellant.  The High Court confirmed the conviction under Section 326  and enhanced the sentence from one month to one year. The  appellant has, therefore, approached this Court a challenging the order of sentence and also his conviction.      What has  been proved  against the appellant is that he caused an  injury with  an axe   on the head of  P.W. 5. The evidence of  P.W. 5 has been believed by both the courts and it also stands corroborated by the medical evidence. We find on good  reason not  to accept  the finding  recorded by the courts below  confirm the  conviction of the appellant under Section 326  IPC. The  nature of  the injury  indicates that blow must  have been  given by  A.1 with  great force on the forehead of  P.W. 5  as it had caused a fracture. Therefore, the conviction  to the  appellant under Section 326 is quite proper. Considering the nature of injury caused to P.W. 5 we do not  think that  the sentence  imposed upon the appellant can be said to be excessive.      The  learned   counsel  for   the  appellant,  however, submitted that  even if  it is  believed that A.1 had caused grievous hurt  he could  not have  been held  guilty  either under Section  326 or  for any  other offence  as  the  said injury was  caused by  him in  excise of  right  of  private

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defence. Both  the courts  have come  to the conclusion that the accused  and his companions were the aggressors and that too because  they protested  against the accused cutting the tree. Therefore,  there was  no scope for giving any benefit of right of private defence to the appellant. We, therefore, 300 no reason to interfere with the order passed by the High Court. The  appeals are, therefore, dismissed. The appellant was released on bail during the pendency of the appeals. His bail is  cancelled. He  is ordered  to surrender  to custody forthwith to serve out the remaining part of the sentence.