HARIJAN MOHAN BHAI NATHABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) It is unfortunate that the trial court even after holding (though not in so many words) that appellant had exceeded his right of private defence, did not choose to give the benefit to the accused in determining the count of offence. Instead the trial court convicted him under Section 302 of the Indian Penal Code and sentenced him to imprisonment for life. Without adverting to that aspect a Division bench of the High Court confirmed the conviction and sentences passed on the appellant and dismissed his appeal. Hence the appellant is before us by a special leave.

(2.) Appellant in the company of three other persons, who too were arrayed as accused in the trial court, were alleged to have beaten up the deceased with an axe on the head at about 12.30 P. M. in the noon on 2-2-1986. The deceased who sustained skull fracture thereby was removed to the hospital, but he succumbed to his injuries on 5-2-1986.

(3.) Four eye-witnesses who were examined by the prosecution said that appellant was seen going behind the deceased and inflicting a blow with an axe on the head of the deceased. The prosecution case in short was that deceased and the accused had a wrangle over the sale proceeds of the skin of a cow. The altercation mounted up, during the course of which the appellant dealt the blow with the axe on the deceased who was moving away from the scene of altercation.