1 Cri.Appeal 564-1993 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.564 OF 1993 Baban Vithoba Londhe ..Appellant Age : 27 years, Resident of Nagroli, Taluka Madha, District Solapur. V/s. The State of Maharashtra ..Respondent Mr.Madhav Thorat i/b. Mr.V.M.Thorat, Advocate, for the Appellant Ms Alpa T. Javeri, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 3RD MAY, 2011 ORAL JUDGMENT . This Appeal is directed against appellant's conviction by the learned Additional Sessions Judge, Solapur for the offence punishable under Section 307 of the Indian Penal Code and sentence of rigorous imprisonment for five years with a fine of Rs. 200/- or in default further rigorous imprisonment for one month imposed upon the 2 Cri.Appeal 564-1993 appellant on conclusion of Sessions Case No. 220 of 1992 before him. 2. Facts which are material for deciding this Appeal are as under :- On 12th June, 1992, one Dattatraya along with brother Ankush had gone for a weekly bazar at Tembhurni. Ankush returned home followed by Dattatraya. Dattatraya informed his brother Ramesh that the appellant had abused and beaten him. Then Dattatraya accompanied by his brothers including Ramesh went to the house of appellant to question the appellant about abusing. The appellant gave a blow by Axe on the chest of Dattatraya which resulted in grievous injury being caused to Dattatraya. Dattatraya was taken to hospital. On a report by Ramesh an offence had been registered and investigation commenced. Dattatraya was treated and then discharged. In course of investigation, police recorded panchanama of the spot, seized incriminating 3 Cri.Appeal 564-1993 articles, recorded statements of witnesses and on completion of investigation, sent charge sheet to the Court of JMFC, Madha, who committed the case to the Court of Sessions, Solapur. 3. The learned Additional Sessions Judge to whom the case was made over charged the appellant for the offence punishable under Section 307 of the Indian Penal Code. The appellant pleaded not guilty, he was put on trial at which the prosecution examined in all eight witnesses in its attempt to bring home guilt of the appellant. After considering the prosecution evidence in the light of defence of exercise of right of private defence, the learned Additional Sessions Judge convicted and sentenced the appellant for the offence punishable under Section 307 of the Indian Penal Code as indicated earlier. Aggrieved thereby, the appellant is before this Court. 4 Cri.Appeal 564-1993 4. I have heard the learned Counsel for the appellant and the learned APP for the respondent  State. With the help of both the learned Counsel I have gone through the record. P.W.1 Mahaling Rambhau Vibhute is panch of seizures effected vide Exhibits 8 and 13. The appellant is allged to have agreed to produce Axe which was seized vide Exhibit 13 pursuant to disclosure made. P.W.2 Ramesh Shivaji Bhosale is the victim's brother, who had given the report. P.W.3 Vishnu Sopan Bhosale is another brother of the victim. He along with P.W.6 Uttareshwar Ganpat Navale are eye witnesses to the incident. P.W.4 Dr. Pandurang Babasaheb Burute examined the victim and treated him. P.W.5 Dattatraya Shivaji Bhosale is the injured person, who states about the assault by the appellant. P.W.7 Police Head Constable Narayan Agatrao Bhosale had carried the seized articles to the Forensic Science Laboratory and P.W.8 P.S.I. Rajan Narayan Jagtap is the investigating 5 Cri.Appeal 564-1993 officer, who states that the appellant had also reached police station to give a report about the incident. Apart from answering the question put to the appellant by the learned Judge, the appellant also filed a Written Statement of defence raising right of private defence. 5. The learned Counsel for the appellant submitted that in fact, the Complainant's party had tried to assault the appellant and the appellant acted in exercise of right of private defence. It is not the appellant who had gone to the house of the Complainants but the Complainants had marched to the house of the appellant. When they asked the appellant about abusing, the appellant lifted an Axe which was lying and gave just one blow on the chest of Dattatraya. He submitted that had the appellant any intention to commit murder of Dattatraya, appellant could have inflicted multiple blows or could have imposed blows 6 Cri.Appeal 564-1993 with greater force to cause greater damage. Therefore, according to the learned Counsel for the appellant, the appellant had exercised his right of private defence within the limit permissible under law and had not exceeded his rights. He, therefore, submitted that in fact, the appellant is entitled to clean acquittal. He also pointed to some discrepancies in the evidence and also drew my attention to the evidence of P.W.4 Dr.Pandurang Burute, who stated that the injury sustained by the victim was simple in nature and there was no fracture. The doctor also admitted in his cross examination that injury mentioned in the Certificate was not fatal. 6. The evidence tendered and suggestions made by the defence to the prosecution witness shows that the appellant admits that he was author of the injury which was inflicted on the person of P.W.5 Dattatraya. The injury 7 Cri.Appeal 564-1993 has been described by P.W.4 Dr.Burute as under:- Incised wound at anterior chest wall, bone deep right side in size 9 cm x 4 cm x 2 cm. The bone was exposed. Now, the question is whether this injury could be justified by the appellant to have been caused in exercise of his right of private defence. 7. The learned Counsel for the appellant is right in submitting that it was not the appellant, who had gone to the house of the victim but it was the victim and his brothers, who had marched to the house of the appellant. It does not however follow that the appellant had the right to inflict such an injury on the victim, when the victim and his brothers had merely come there to question the appellant about the incident of abusing which had taken place earlier. For justifying exercise of his right of private defence, it was necessary for the appellant to show that there he 8 Cri.Appeal 564-1993 apprehended suffering an injury. Here neither P.W.2 Ramesh Bhosale nor his brother P.W.3 Vishnu Bhosale and P.W.5 Dattatraya Bhosale are shown to have been armed with any weapon or shown to have attacked the appellant. There is nothing to show that the appellant was injured in the incident, though P.W.8 PSI Rajan Jagtap states that the appellant had also come to the police station to give a report. Therefore, the blow by the appellant on the chest of P.W.5 Dattatraya Bhosale with Axe cannot at all be said to be one in exercise of right of private defence within the limits of threat perceived. Even, if it is taken for a while the appellant had a justification to assault because the three brothers had marched to his house, his response in administering a blow on the chest of Dattatraya was obviously in excess of exercise of right of private defence which the appellant could have claimed. 9 Cri.Appeal 564-1993 8. The learned Counsel for the appellant is right in submitting that if the appellant is held to have acted in exercise of right of private defence, exceeding that right would bring his case in one of the exceptions to Section 300 of the Indian Penal Code. If a person exceeds his right of private defence, he could not be said to have committed murder but only culpable homicide not amounting to murder. As a corollary, in the case of attempt to commit murder, such a person could be held guilty of the offence of attempt to commit culpable homicide which is punishable under Section 308 of the Indian Penal Code which is distinctly an offence of lesser gravity. 9. Considering the fact that the victim and his brother had marched to the appellant's house, it cannot be said that the appellant's apprehension was unfounded but the response was excessive and his assaulting the victim 10 Cri.Appeal 564-1993 with Axe on chest could be said to be exceeding his right of private defence and would, therefore, amount to attempt to commit culpable homicide not amounting to murder and not attempt to commit murder itself. Therefore, the learned Judge should not have held the appellant guilty for the offence punishable under Section 307 of the Indian Penal Code, but should have held him guilty for the offence punishable under Section 308 of the Indian Penal Code. 10. While for an attempt to commit murder, if an injury is caused the punishment can extend to imprisonment for life, for the offence of attempt to commit homicide, if an injury is caused the punishment can extend to seven years. Considering this ratio, rigorous imprisonment for five years with a fine of Rs. 200/- or in default further rigorous imprisonment for one month imposed upon the appellant is obviously excessive. The learned 11 Cri.Appeal 564-1993 Counsel for the appellant submitted that the appellant has been convicted for an incident which took place 19 years ago and has been living in shadow of conviction which he has already suffered. He has been an under trial prisoner from 12th June, 1992 to 23rd June, 1992 and from 5th October, 1993 to 1st November, 1993. He submitted that the offence punishable under Section 308 of the Indian Penal Code is punishable with imprisonment or fine and not necessarily rigorous imprisonment. In view of this, he submitted that after 18 years, it may be unnecessary to send the appellant to prison, particularly, since the appellant is not shown to have committed any offence in all these 18 years. The learned APP submitted that in case, the appellant has to be let off on the sentence which he has already suffered, fine may be increased to a suitable amount. 12 Cri.Appeal 564-1993 11. Considering this, the Appeal is partly allowed. Conviction of the appellant for the offence punishable under Section 307 of the Indian Penal Code is altered to one Section 308 of the Indian Penal Code and sentence of rigorous imprisonment for five years is substituted by rigorous imprisonment for thirty six days which the appellant has already undergone, increasing the fine to Rs. 25,000/- or in default to suffer rigorous imprisonment for further period of nine months. If the fine is not paid within 6 weeks, the learned Additional Sessions Judge would have the appellant arrested and to serve his sentence in default of fine. (R.C.CHAVAN, J.)