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CASE NO.: Appeal (crl.)  255 of 2006

PETITIONER: Udaykumar Pandharinath Jadhav @ Munna

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 29/04/2008

BENCH: S.B.SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO.255/2006

HARJIT SINGH BEDI,J.

1.      This appeal by way of special leave arises out of the  following facts: 2.      On 22.10.1997, at about 5 or 5.30 p.m., PW1 Rajesh, the  first informant along with Santosh Supekar and Shivraj,  deceased were standing and talking outside the house of Santosh  Supekar.  While they were so involved, the appellant, Udaikumar,  who was known to Rajesh, accompanied by an unknown person  came there and holding Rajesh took him to the side saying that  he had been summoned by one Ram Hallele.  While going away  Rajesh turned around in time to see that Shivraj was being  stabbed by the appellant and while the victim was successful in  warding off the first blow, the other blows stuck home.    Rajesh  thereupon rushed towards the house of one Babar Saheb and  narrated the incident to him and information was conveyed by  Babar Saheb to the police.  The police reached the place shortly  thereafter.  In the meanwhile, Rajesh had returned to the scene  and noticed that Shivraj was lying dead.  ASI Jukte recorded the  statement of Rajesh, Ex.19 and on the basis, a formal FIR was  registered at the Police Station.  The dead body was also  despatched for the post-mortem.  The ASI also recorded the  statement of PW2 Sunita, sister of the deceased and PW4  Santosh.  He also arrested the accused and on his interrogation,  a knife was duly recovered.   During the course of the trial, the  appellant put up a defence that the injuries had been caused by  him in the exercise of his right of private defence as the deceased  who was an expert in karate had first attacked him and caused  him an injury on the neck.  He also stated that he had been able  to disarm the deceased and had caused some injuries to him  thereafter.  In the course of the hearing before us, Mr. Kanade,  the learned counsel for the appellant has first and foremost  contended that the prosecution story was false and that the  appellant had been roped in for some unknown reasons.  We  have gone through the entire evidence and are of the opinion that  this argument has no merit as the case against the accused is  proved by the evidence of the eye witnesses whose presence  cannot be doubted and in addition the fact that the accused had  caused the injuries, has also been admitted though he has  pleaded the right of private defence.  Mr. Kanade then fell back  on the alternative argument that he had caused the injuries in  his right of private defence and therefore no case of murder could

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be spelt out.                                                                              3.      Mr. Kanade’s argument with regard to the right of private  defence flows from the cross-examination of PW4  Santosh,  an  eye witness who deposed as under:                                                                "It is true that the deceased was a  teacher of Karate.  It is true that the knife  was taken out by the deceased and there was  scuffle between the accused and deceased.  It  is true that the deceased was held by his  collar of the accused.  It is true that the knife  had fallen from the hands of the deceased in  the scuffle and the same was taken by the  accused and the deceased was stabbed with  it.  It is true that first blow was inflicted on  the thigh, second was on hand and the third  one was on the chest."

4.      It is significant that despite the fact that this statement had  been made by Santosh in his cross-examination, the Public  Prosecutor did not challenge the correctness thereof in any  manner.   In other words, it is clear that the prosecution itself  has accepted this statement as being true.  It is well settled that  in order to make out a case of private defence,  the accused need  not plead it in specific terms (as it would, indeed, be a very  courageous accused who would come out and take the risk of  admitting his presence) but if the circumstances justify an  inference with regard to such a right, the Court must examine  that possibility as well.  In this background, we are of the opinion  that the plea of private defence is available to the appellant  though it has not been specifically raised by him.  The learned  Government counsel has, however, pointed out that three  injuries had been caused on the person of the deceased and as  such the complete exoneration on the plea of right of private  defence was not available to the appellant.  We observe from the  evidence that the deceased was not only a karate expert but also  armed with a knife and it is not surprising that the appellant  apprehended injury at his hands.  We are therefore of the opinion  that the best that can be said for the prosecution at this stage is  that the appellant had exceeded the right of private defence.  We  therefore partly allow the appeal, acquit the appellant of the  charge under section 302 of the IPC and modify his conviction to  one under Section 304 (1) of the IPC in the background that the  fatal injury caused on the chest had penetrated deep into the  body.  We also impose a sentence of 7 years rigorous  imprisonment on the appellant; the other part of the sentence to  remain as it is.