MOHAMMAD SHAKEEL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard on application for suspension of sentence of the appellant.

(2.) Learned counsel for the appellant would argue that the appellant has undergone more than seven years of jail sentence. Referring to the evidence on record particularly to the testimony of the eye-witnesses, PW-1, 6, 7 and 21, it is contended that even if the criminal act on the part of the appellant of he having assaulted the deceased is relied upon, in the background of what had happened, it being a case of free fight and there being clear evidence of appellant Mohammad Shakeel having sustained multiple injuries including injury on his head as would be reflected from Exhibit D-20, the prosecution has failed to explain injury on his person, his culpability would not travel beyond the scope and ambit of Sec. 304 IPC. His argument is that fourth exception or exception relating to exceeding in exercise of right of private defence makes out an arguable case of alteration of his conviction to that under Sec. 304 part II IPC and therefore, at this stage, he may be granted bail.

(3.) On the other hand, learned State Counsel would submit that earlier the suspension application of the appellant was considered and was dismissed as the appellant was aggressor and it was the appellant who gave fatal injury which caused death of the deceased.