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PETITIONER: RADHEY SHVAM

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT:       16/10/1998

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

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T NANAVATI, J. Leave granted Heard learned counsel for the parties, The appellant, and the other two co-accused  were  convicted by  the  Court of Additional Sessions Judge Shahjahanpur, in Sessions Trial No .181 of 1979 for  the  offence  punishable under Section  302  I.P.C.    All  the  three  accused filed Criminal  Appeal  No.396  of  1980  in  the  High  Court  of Judicature at  Allahabad.    The  High  Court  held that the accused had acted in exercise of  "their  right  of  private defence  but  had  exceeded  the  same and, therefore, their conviction under Section 302 was not proper.  It, therefore, partly allowed the appeal by setting aside their  conviction under  Section 304, IPC and by convicting them under Section 304, Part I, IPC, and sentenced them to suffer 7 years’ R.l. Out of the three convicted, accused only the  appellant  has filed an appeal challenging his and conviction under Section 304, Part I, IPC, and also the order of sentence. What  is  urged  by  the  learned  counsel  for  the appellant  is  that  the  conviction  of the appellant under Section 304, Part I, IPC, is not sustainable as there is  no evidence  to  show  that  he  had  inflicted any blow on the deceased.  He submitted that the evidence which was  led  by the  prosecution  was of general nature as Munshi Lal - PW-1 and Raja Ram- PW -2 - have not specifically stated that  the appellant  had  given  any  particular  blow with a stick to deceased Ram Saran. In  this  case,  the  accused  had  also led defence evidence to prove that accused Ramanand  had  also  received injuries during  the  same incident.  After appreciating the evidence of the prosecution witnesses  and  considering  the circumstance  that  the  accused  had also received injuries which had remained unexplained the High Court  came  to  the conclusion  that  the  prosecution  version  was not such as could be accepted in toto.  It also took note  of  the  fact that  independent  witnesses,  though  available,  were  not examined by the prosecution.  It also held that the  accused had a  right  of  private  defence.   It held that the three convicted accused had exceeded the right of private  defence

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but  we  do not find any evidence to show that the appellant had given, fatal blow or any blow which was likely to  cause the death of  Ram.   Saran.  In absence of such evidence the appellant could have been convicted only under  Section  325 and not under Section 304 Part I IPC.  We, therefore, partly allow  this appeal and alter the conviction of the appellant from that under Section 304, Part I, IPC to Section 325 IPC. Consequently, the order of sentence is also modified and the sentence of 7 years’ R.I.  imposed upon him is reduced to RI for 2 years.