Udaykumar Pandharinath Jadhav @ Munna Vs. State of Maharashtra [2008] INSC 748 (29 April 2008)
S.B.SINHA & HARJIT SINGH BEDI 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 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.
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