\\\\\\\\\\\|\\\0\\0g\5\\9\§gg\\\\\ CF00 CRINL AP , 1 ’ INA EE a‘‘a‘m'as son of Udalal *Nd y Sat’ VRS ESU St f Mdh dsh. ate o aya Prae ) G. Ahluwaha counselfo appell‘, _2 _ Q f Criminal Proceure In which he denied the charges levelled gainst hrm and pleaded hrs Innocence and false Implication In th fter hearing the parties the trial Court has acultted t ccused/appellant of the offence under Seion 302 IPC b n ed im as mentioed bove E T4; A q he la ct ut ; ,:' covrcted and sentnce h n a. 5 eard counsel for te parties and perused the materi vaiable on record includin theiudment impu ounsel for he appellant sumits that resent is a case of self deceaf’ ”‘d had made an attempt to assault th accused/appellant and tojprotect himself he might have caused some injuries to him He submits that there was no intention on the art of the accused/appellant to commit the murder of the decease nd the injury, if any, might have been caused by th ap g p ‘ ' p d .a e, , ccused/apellant in exerCIse of his riht of rivate defence On the ‘-an counse or e responenttae supports he Judgment ned and submits that the right of private defenc ommences n as the‘reasonable apprehenSion of immi anger to the body arises f a o l ‘o * u at s ‘ c ; rapprehensmn of imminent danger was present in the mind of the accused/appellant which had impelled him to snatch the club from the hands of the deceased and cause the inuries on his hea eading to‘his dea l th ' rhd l f th d/St r " t i X g e ’ t - an attempt or threat to commit the ffence a ugh he offence may not have been committed but not ntil there hat reasonable apprehenSion He submits that in thi ase nothing has been brought forth by the defence as to what Thoug iraal — one o e eyeWinesses o the ”inCIdent has been declared hostile he has stated that on the date of nCident after hearing the abuses when he came out of his house h aw the deceased standing near his house According to itness when the accused/appellant was gomg to his workplac 5 I ' o d ' a e H h al . al g g gned - C t b p e e “ i ‘ . c a o n 3d r‘ j d ~ ,8 h Hl (PW1) f th t t if i e I r _ : ~s ‘ (W e” _ ‘ Twhen the deceased .\ ccused/appellant on e way an rew away his blccle th ccused/appenant caused Injuries on his head as a result o whic e fell down Another eyewrtness namely Blsantln Bar (PW 5 ha tated that on the date of Incrdent the accused/appeHant had given , athl blow on the head of her husband the deceased as a result of hlch he dled Thus Witness Is sal o ave seen e entlre Ine from a distance of 5 6 steps According to her Immedlatel aer belng assaulted the deceased had tumbled down on the «R d th h t va s u l e lt e ccused Th ad snatche a th d th y e ‘ a f h ‘ 'fh ) s,- ‘rs a ' s:l ( ) *w d t h th eldnt » ” ‘ y ft: f . . ground aghunandan (PW-11) brought him home an en e was go dmltted In D K Hospital Ralpur where he died This wrtness ha rther st ed that when the accused/appellant set out of the house ' so left his house carrying club In hrs hand as som lme there be re'there was some altercatlon between hrm and th ated that one Raghunandan (PW-11 club carried by the deceased and then t ppellant by snatching the same from Raghunandan assaulted th eceased on his head Though Raghunandan (PW—11) has no upported the ase of the prosecution yet he has stated that ther as som s e between the accused/appellant and the deceased 6) has hough stated In the examination In chi hat the a' us d/appellant had snatched the club from the decease ‘a n‘”: he has s tedthat she has not seen the InCIdent Jhaduram (PW * s the Witness of seizure of ‘lub Vlde Ex P 3 has supported the cas Yo s ‘t e ‘d d r ‘ ’ t )? e he ’ ‘ T 2'5 » a e" d t ’ C‘s e ' 1 w e c l W ef: it d nd assaulted him With It on his head yet In the cross examlnatlo i-s 8) I e f the prosecution Another eyeWItness namely Sltaram (PW 9) ha hough supported the InCIdent yet he has stated that It was th eceased wh} (threw away the cycle of the accused/appellant an en accused/appellant snatched his club and gave blows on hi "h s ead Madho (PW'1:0) and Johan (PW 12) have not supported the ase of the prosecutlon and have been declared hostile Dr D C ain (PW 2) who conducted the post mortem examination on the ' ody of the deceased has stated that there was fracture on the bone fthe left Side of the head and the broken bone had gone deep The accordin to this Witness g ; h f c J b o njuries sustalne b the decease nte morte ’ a l‘ h d .1 u I y d a m' ’ avmg gone through the material avallable on record as mmutely as possrble this Court could not Iay hand on even a smgl iece of evrdence suggestive of the fact that It ls the deceased who ad first threatened the accused or had shown any Sign of ggressmn which prompted the accused to attack the deceased With lub on his head Ieadmg to his death Law In respect of right private tled that where the assault Is Imminent by use o - t f} r force It would be lawful to repel the force In self defence and the' ight of private defence commences as soon as the threat becomes o Imminent If the fact Situation shows that In the gwse of self— reservation what really has been done Is to assault th a , lght of private defence has to glnal ggressor even after thecause of reasonable apprehenSIon has :r be« pprehenS is defence s al exactltude of only tha uch which Is required In the thinking of a man In ordinary times Ircumstances conVIctIon of the accused/appellant under Sectlo 04 Part ll I'C Is maintained Relevant portion of the abov pronouncement of the Supreme Court reas as under - d ght of private efence of well see and may be brlefly he onus Is on the accused to stablIsH this right not on the baSIs of the standard H ' , e ' > w p , h ' a , ' ' c w x9. f i r , s I - p e i I , ‘ *aIo ‘h t c t m or I r EC nv “-3 e ‘ I d 7 ., , ttld T e of’ g " If he ls able to brlng out matenals In the records of the case on the baSIs of the eVIdence of the prosecution s wutnesses or on other pieces of evrcence to show that the“ pparently crlmlnal act whrch he commltted was justified In exercrse of his rlght of private defence of ,‘ property or person or both But the exercrse of thls - . rrght Is subject to the hmltatlons and execeptrons, prOVIced In S 99 ofthe Penal Code the last one belng- ‘- , “The right of private defence In no case extends to the mfhctmg of more harm than It Is necessary to InflIct fo I the purpose of defence” As to when the right of' ‘ private defence of the body extends to causmg death ~r ‘ Is prOVIded for In S 100 The appellant’s case Is not ' 7' :" covered by It in the View which we have expressed 'e appellant‘had not only the right “ ‘ ‘ his property but also his body to a » ‘ he meaning of S 101 subject to tloned In S 99 This did not extend» to the Inf|Ictlng of so much harm to Sant Ram and; 'In his death nor the right of private defence ofli' " ”Theft mischief or house—trespass under such ,r _ ‘ reasonably I cause ' grievous hurt WIII be the consequence If such right of private defence Is not r ‘ ‘ w ot ' as caused to his property but It was n m'pon I or ~' ' prehenSI n: -hls ’mlnd that death such a prehenSIon Is not enough The C _$—I _ c ered'by‘any of the clauses j » of S 103 Mr Mulla tried to bring It under ‘4thly which _ ‘ Circumstances 'r J ' ~ o objective test and on the facts and olrcumstances of r a‘ case mst arrive‘a't the conCU’sion ta th ition was such as was el o reasona caus uch apprehenSion The rlght o private eence of roper aso ech u I ht e‘ Stua hky t bly e ' s f df therefo In the aellans cas re ppt e ’ xtended to causmg of an harm other than te deat ndoubtedl the appeallnt did exeed this rg o rivate defence and apparently te murer wic h omitted within the meaning of clause’4thl’ of S 00 squarely fell within Excepon hereo. He xceeded the power given to him by aw n cause the” death of Santv Ram againstawom e wa xercising such right of defence. He did so withou remeditation and Withoutany intention of doing mor ha than was necessar for the purpose of suc eence He thougt tha y Imminently dangerous act he wou e ae o scar way the labourers and stop them from coninumg their unjustified agitation the raismg of the slogans .a hh nd the throwmg of the brickbats But then altoug he intention was not to kill or cause such bodily injur a; as suffCIent in the ordinary course o naure t ause death yet he must have commie e ac knowmg that it was so imminently dangerous that must in all probability cause death or such bodily inju _ a rs‘t‘ s d dlgn inuig pty l e y h h. Uy c iht lf” p h d hh e cm y / 3 ti 2 tf e l ad d h h s e t ‘ p e rm y h df h t b in this ld b bl t e a t a t y i s f t o; Vigc ttd th t it' ry . s was likely to cause death of the worker or worke tanding on the other Side of the bounary wall ” owever as regards sentence akin support ofit fiaforesaid dec13ion of the Supreme Court counsel orte appellan : "submits that as the appellant has already remained in Jail for a eriod of about 18 months interest of Justice would be met if th entence of the accused/appellant imposed by the trial Court i educed to the period already undergone by him This concess ; VI 1r sought for by the counsel for the appellant is seriously oppo 1 %_ H tg h’e‘ fh t «.1 f p e; s s r mn E s his submISSIon regarding reduction of jail sentence though- ; iopposed by the State If seen In the light of the aforementioned j I Judgment of the Supreme Court appears to be genuine an k Qtherefore the same Is accepted Appellant Is reported to hav ‘§ remained In Jail for a period of about 18 months the fact that th _ ,Incrdent had taken place 19 years back and In vrew of the aforesaid _, f 'deCISIon of the Supreme Court the Jall sentence Imposed on the, 1 : accused/appellant rs reduced to the penod already undergone by; t y. hrm However the appellant shall paw a fme of Rs 10 000 out of§ ‘ which Rs 8 000 would be payable to the family of the deceased as ‘ compensation Let this amunt f V 1O 000 be depOSIted in thej rom the date of receipt off .copy of this order or else av to remain in Jail for a period; ' : of one ear y o o R”; “ _ gCourt below Wit; nia perio o Sdl- Pnk aker 1. ‘ T 3 " ritier Diw ypeaiisfthus’p'artiyxgii‘owr , Aped; t _‘;12. 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