Shvam Vs. State of U.P  INSC 504 (16 October 1998)
Nanavati, S.P. Kurdukar. Nanavati, J.
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.
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
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.
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 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
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.