2013 ALL MR (Cri) 878
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)

A.P. LAVANDE, J.

Chandan Vagurmekar Vs. State Of Goa

Criminal Appeal No. 34 of 2010

31st August, 2012

Petitioner Counsel: Mr. S.D. LOTLIKAR, Sr. Adv. with Mr. H. KANKONKAR
Respondent Counsel: Mr. S.R. RIVONKAR

Penal Code (1860), Ss.307, 326 - Attempt to murder - Conviction for - Validity - Plea of private defence - Evidence of eye witnesses and medical evidence prove that accused assaulted victim with knife resulting in grievous injury - Accused also sustained injury on his elbow - No investigation about injury on accused - Prosecution failed to explain the same - Prosecution evidence shows that accused had no axe to grind against victim - Incident occurred in sudden provocation - Accused exceeded his right of private defence by causing grievous injury to victim - Clause eight of S.320 clearly attracted - Conviction under S.307 not proper - Conviction modified from S.307 to S.326. (Paras 17, 18, 21 to 23)

Cases Cited:
Shri Agnelo Fernandes Vs. State, 1989(2) Goa L.T. 11 [Para 6,21]
Suresh Singh & Ors. Vs. State of Haryana, AIR 1999 SC 1773 [Para 6,21]
Rizan & Anr. Vs. State of Chhatisgarh, through the Chief Secretary, Govt. of Chhatisgarh, Raipur, AIR 2003 SC 976 [Para 6,21]
Krishna & Anr. Vs. State of U.P., 2007 ALL MR (Cri) 2921 (S.C.) [Para 6,21]
Ravishwar Manjhi & Ors. Vs. State of Jharkhand, (2008) 16 SCC 561 [Para 6,21]
Parsuram Pandey & Ors. Vs. State of Bihar, 2005 ALL MR (Cri) 796 (S.C.) =(2004) 13 SCC 189 [Para 7,21]
Prakash Chandra Yadav Vs. State of Bihar & Ors., 2008 ALL SCR 110 [Para 7,21]


JUDGMENT

JUDGMENT :- Heard Mr. Lotlikar, learned Senior Counsel for the appellant and Mr. Rivonkar, learned Public Prosecutor for the respondent.

2. By this appeal, the appellant ('the accused' for short) takes exception to the Judgment and Order dated 29th April, 2010, passed by the Additional Sessions Judge, Panaji in Sessions Case No. 27/2009, convicting the accused for the offence punishable under Section 307 of Indian Penal Code (IPC) and sentencing him to undergo Rigorous Imprisonment for four years and to pay a fine of Rs.5,000/- and, in default, to undergo Simple Imprisonment for 3 months. The accused has been acquitted of the offence punishable under Section 504 of IPC. The fine amount is ordered to be paid to the victim as compensation, in the event the same is paid by the accused.

3. Briefly, the prosecution case leading to filing of the present appeal is, as under :

On 22.3.2008, at around 10.30 p.m., PW.5 Deepak Redkar, along with his brother PW.3 Dinesh Redkar had gone for celebration of Holi at Rawargadi Temple at Nachinola. There were several persons gathered from the village. At about 1.30 a.m., when the celebrations were about to end, they started returning. At that time, they noticed some scuffle going on between the accused and PW.4 Sandesh Volvoikar. They noticed that the accused was assaulting Sandesh with fist blows and on seeing this, Deepak Redkar PW.5 went to stop him from assaulting. At that time, the accused caught hold of the collar of PW.5 Deepak and started abusing him with filthy words. Suddenly, the accused took out a Swiss Army Knife and stabbed PW.5 on the left side portion of his stomach and thereafter, the accused ran away from the spot. Blood started oozing out from the injury sustained by PW.5. Dinesh Redkar. Thereafter, PW.3 took Deepak PW.5 first to the Health Centre at Aldona and from there he was referred to Asilo Hospital, at Mapusa and later he was shifted to Government Medical Hospital, Bambolim. The assault was also witnessed by PW.7 Pradeep Govekar who was also returning after holi celebrations. Dinesh Redkar lodged First Information Report Exhibit 16. First Information Report was recorded by PW.9 Tulshidas Dhavaskar in GMC, Bambolim, who handed over investigation to PW.10 PSI Harish Bhatta of Mapusa Police Station. Thereafter, scene of offence panchanama was recorded in presence of pancha witnesses. PW.1 Mahendra Garad was one of the pancha witnesses to the scene of offence panchanama Exhibit-9. He also acted as pancha witness to the attachment panchanama Exhibit-10 in respect of attachment of clothes of the victim and also acted as panch witness to the arrest panchanama (Exhibit 11) of the accused.

The accused was arrested on 24th March, 2008 in terms of Arrest Panchanama Exhibit-11. On the same day, pursuant to the statement made by the accused, Swiss Army Knife, was discovered and seized at the instance of the accused under the panchanama Exhibit 14. Rajan Naik PW.2 was one of the panchas to the recovery panchanama. Thereafter, the investigating officer recorded statements of several witnesses and after completion of the investigation, charge-sheet was filed against the accused for the offences punishable under Sections 307 and 504 of IPC in the Court of Judicial Magistrate, First Class, at Mapusa. The case was committed to the Court of Sessions, which was made over to the Additional Sessions Judge, Panaji.

4. In Sessions Case No.27/2009, prosecution examined 10 witnesses, viz. PW.1 Mahendra Garad, PW.2 Rajan Naik, PW.3 Dinesh Redkar, PW.4 Sandesh Volvoikar, PW.5 Deepak Redkar, PW.6 Dr. Jude D'Souza, PW.7 Pradeep Govekar, PW.8 Dr. Deelip Amonkar, PW.9 Tulshidas Dhavaskar and PW.10 Harish Bhatta, the Investigating Officer.

5. The defence of the accused was of total denial. However, he also took a defence that he was assaulted by PW.3 Dinesh Redkar, PW.5 Deepak Redkar and others. The accused did not lead any defence evidence. Upon appreciation of the entire prosecution evidence, learned Additional Sessions Judge, held that the offence punishable under Section 307 of IPC was proved beyond reasonable doubt and accordingly convicted and sentenced him as above. However, the accused was acquitted of the offence punishable under Section 504 of IPC.

6. Mr. Lotlikar, learned Senior Counsel appearing for the appellant-accused submitted that the evidence led by the prosecution does not inspire confidence and, as such, the prosecution has not been able to establish beyond reasonable doubt the offence punishable under Section 307 of IPC. Learned Senior Counsel further submitted that there is absolutely no independent evidence of the assault by the accused on PW.5 Deepak Redkar, nor there is evidence to suggest that PW.5 sought help from PW.3, PW.4 and PW.7. Learned Senior Counsel further submitted that all the witnesses who claimed to be the eye witnesses are closely related to each other and as such, their evidence must be closely scrutinised. Learned Senior Counsel further submitted that the prosecution has suppressed genesis of the incident which is evident from the fact that the accused had also injury to his elbow, which had to be sutured and the prosecution suppressed this fact from the Court and only in the cross examination, PW.10 admitted that the accused had such injury on his elbow. Learned Senior Counsel, therefore, submitted that the prosecution has not come out with whole truth.

In the alternative, Mr. Lotlikar submitted that the incident appears to be on account of a sudden fight in which the accused has exercised the right of private defence and, as such, the conviction for the offence punishable under Section 307 of IPC is patently unsustainable in law. According to learned Senior Counsel, by no stretch of imagination it can be said that the accused attempted to cause murder of PW.5 Deepak Redkar. Learned Senior Counsel further submitted that PW.5 has not come out with truth and his testimony has to be appreciated with great caution, inasmuch as he has criminal record which discloses that for a period of almost four and half years he was in custody in a murder case. Learned Senior Counsel further submitted that the right of private defence can be spelt out from the prosecution evidence itself and although the accused has not specifically taken such a defence, the accused is entitled to take such a defence in appeal and point out from the prosecution evidence itself that the accused had acted in exercise of right of private defence available to him under Chapter IV of IPC. Learned Counsel further submitted that the version of the accused that he acted in exercise of the right of private defence is established, firstly by the fact that there was a serious injury found on the elbow of the accused which was actually suppressed by the prosecution and, secondly, by the fact that the panchanama of the scene of offence discloses that the motor cycle of the accused was damaged. According to learned Senior Counsel, the defence of the right of private defence cannot be said to be a figment of imagination and the same is made out on the touchstone of preponderance of probabilities.

Mr. Lotlikar submitted that it is well settled that the burden of proving the right of private defence in a criminal trial is not as heavy as on the prosecution which has to prove its case beyond reasonable doubt and the accused can prove his/her defence by preponderance of probabilities. Learned Counsel submitted that admittedly, the accused did not have any grudge against PW.5 to cause any injury and, as such, it cannot be said that either he had intention or knowledge that the injuries caused to him might result in his death. Lastly, Mr. Lotlikar submitted that even if the entire prosecution case is accepted and the defence of the accused that he acted in the private defence is not accepted, it can be, at the most, said that the accused exceeded his right of private defence and, therefore, the conviction of the accused under Section 307 is not unsustainable in law.

In support of his submissions, Mr. Lotlikar placed reliance upon the following Judgments:

(1) Shri Agnelo Fernandes vs. State, 1989(2) Goa L.T. (11);

(2) Suresh Singh and others vs. State of Haryana, AIR 1999 SC 1773;

(3) Rizan and another vs. State of Chhatisgarh, through the Chief Secretary, Govt. of Chhatisgarh, Raipur, AIR 2003 SC 976

(4) Krishna & Anr. vs. State of U.P., 2007 ALL MR (Cri) 2921 (S.C.); and

(5) Ravishwar Manjhi and others vs. State of Jharkhand, (2008) 16 SCC 561;

7. Per contra, Mr. Rivonkar learned Public Prosecutor appearing for the respondent supported the impugned Judgment and Order and submitted that the evidence of PW.5 Deepak Redkar stands corroborated on material aspects by other eye witnesses, namely PW.3, PW.4 and PW.7 and there is nothing on record to discredit their version or to establish that PW.3 and PW.5 started assaulting the accused and also throwing bottles at him. According to the learned P.P., there is absolutely no evidence led by the accused to substantiate his defence of the right of private defence, nor the accused has been able to establish the same on the basis of the cross examination of prosecution witnesses. According to learned P.P., the injury on the accused which has been admitted by PW.10 does not probabalise the version of the accused that he was assaulted by PW.3 and PW.5 and that he acted in exercise of the right of the private defence. According to the learned P.P., the accused could have led the defence evidence to establish that he acted in exercise of the private defence, but the accused having not done so, has not been able to even probabalise the same on the basis of the prosecution evidence itself. Learned P.P. lastly submitted that the Judgment and Order of conviction of the accused for the offence punishable under Section 307 of IPC does not warrant any interference.

In support of his submissions Mr. Rivonkar relied upon the following Judgments:

(1) Parsuram Pandey and others vs. State of Bihar, (2004) 13 SCC 189 : [2005 ALL MR (Cri) 796 (S.C.)]; and

(2) Prakash Chandra Yadav vs. State of Bihar & ors., 2008 ALL SCR 110

8. I have carefully considered the rival submissions, perused the record and the Judgments relied upon.

9. In so far as the main story of the prosecution that on 21.3.08, the accused was assaulting PW.4 Sandesh Volvoikar with fist etc., since he owed the accused Rs.100/- and PW.4 stated that he would pay the amount on the next day as he did not have that much amount on that day, has been fairly established by the evidence of PW.4 Sandesh. His further version is that on seeing assault on him, one Pradeep i.e. PW.7 came to his rescue and the accused also came and assaulted him. It is his further version that since the accused started assaulting him and PW.7 Pradeep, PW.5 Deepak Redkar came to their rescue, but the accused caught hold of collar of Deepak and took out a knife from his pocket and gave a knife blow on stomach portion of PW.5 Deepak Redkar. In cross examination of PW.4 Sandesh, he stated that the assault on him by the accused was going on for about 5 to 10 minutes and he did not recollect for how long the assault was going on Pradeep PW.7. It was suggested to him that he and other eye witnesses assaulted the accused and damaged his motor cycle throwing stones on the motor cycle which he denied. He denied the suggestion that the accused had not assaulted PW.5 Deepak Redkar with knife.

10. Evidence of PW.3 Dinesh Redkar is also on similar lines. He claimed that he saw a scuffle going on between the accused and PW.4 Sandesh and on seeing this, his brother Deepak PW.5 went to separate them and at that time, the accused caught hold of the collar of his brother Deepak PW.5 and started abusing him with filthy language and thereafter, the accused removed the knife and stabbed his brother on left side portion of his stomach and thereafter, ran away. He further stated that thereafter, he took his brother firstly to the Health Centre at Aldona; from there he was referred to Asilo Hospital and thereafter to Bambolim.

In cross examination, he admitted that one Satchit Redkar was his uncle. He also stated that there were some persons present near the temple when the scuffle was going on. But, he could not give the number of persons. He claimed that Sandesh PW.4 was not his friend, nor related to him. He denied the suggestion that he along with his brother and cousin, assaulted the accused and damaged his motor cycle by throwing stones. He also denied the suggestion put to him, inter alia, to the effect that the accused had not assaulted PW.5 Deepak Redkar with knife.

11. The evidence of these two witnesses is also corroborated by PW. 5 Deepak Redkar the victim. However, in cross examination, it has been brought on record that he was arrested with regard to the murder of one Bargav Shankar Gauns and he was in Judicial Lock-up for about four and half years. He also admitted that he was also arrested for assaulting one Babal Naik in the year 1993 itself. He also admitted that in the year 1993 he was also arrested for assault on one Ibrahim Filip. It was suggested to him that he along with 4 to 5 persons assaulted the accused with kicks and fist blows and also abused him. It was also suggested to him that they threw empty beer bottles towards the accused. He denied the suggestion that one empty beer bottle hit the elbow of the accused and caused injury to him. He denied the suggestion that the motor cycle of the accused was not damaged by them by hitting it with big stones. He also denied the suggest that his relations with the accused were strained and falsely implicated the accused.

12. PW.7 Pradeep Govekar also deposed that while they were returning home, at about 12.30 a.m. on 22.3.2008, he noticed some scuffle going on between the accused and one Sandesh i.e. PW.4 and on seeing that, he tried to separate them and at that time the accused pushed him and gave a fist blow on his stomach. Deepak came running and asked as to what had happened. The accused caught hold of PW.5 Deepak and after removing the knife, stabbed him. He claimed that several persons, including brother of Deepak were present on the spot. Thereafter, Deepak was taken by his brother in a vehicle and the accused ran away. He stated that he could identify the knife and the knife MO.4 being shown to him, he stated that it was of similar type.

In the cross examination, PW.7 Pradeep Govekar stated that he could not state as to how long the scuffle was going on between the accused and PW.4 Sandesh. But he saw the same for about 5 minutes. He claimed that there were about 200 persons gathered near the temple and at the time of scuffle, people were passing by the side, but he alone went to separate them. He denied the suggestion that the version that Deepak came running and the accused caught hold of Deepak and stabbed him with knife was false or that he was deposing falsely being close friend of Deepak.

13. The version of all these four eye witnesses regarding the assault on PW.5 is corroborated by the medical evidence tendered by the prosecution through PW.6 Dr. Jude D'Souza who has produced the hurt certificate. He had examined the injured PW.5 Deepak Redkar on 22.3.2008 at 3.05 a.m. at Primary Health Centre at Aldona, where he was serving as Medical Officer, on deputation in the month of March, 2008. He found the following injuries on the person of the injured.

(1) Stab wound 4 x 3 cms., depth, which could not be ascertained on the left lower aspect of the lateral chest wall, caused by sharp object having duration of less than 24 hours and he reserved the opinion due to the nature of the injury;

(2) Tenderness on the left lower aspect of lateral chest wall and reserved the opinion.

He stated that the wound was cleaned and dressed and the patient was referred to Asilo Hospital for expert opinion on the nature of hurt and management. PW.6 Dr. Jude D'Souza identified the signature at point "A" on the hurt certificate Exhibit 23. His evidence has not been challenged in the cross examination.

14. PW.8 Dr. Deelip Amonkar who was serving in the Department of Surgery, Goa Medical College, Bambolim in March, 2008, stated that PW.5 was referred from Asilo Hospital, with history of being stabbed by sharp object on the left side of lower chest on 22.3.2008 and on examination he found that the pulse was 100 per minute; BP 110/70, respiratory rate was 15 per minute and the injury had a penetration around 2 to 3 cms. in length on the left chest in the 11th intercostal space, caused by sharp object and within 6 hours duration. On further examination carried out regarding internal injuries by chest X-ray, it was found normal with abdomen and chest ultra sound showed free fluid in the abdomen. He suspected some internal injury and therefore, it was decided to operate the patient and on opening the abdomen he noticed tear in the respiratory muscle (main) diaphragm. Momentum was protruding through the rent (going towards the chest), spleen was lascerated around 5 x 2 cms. in length on superior surface and bleeding actively. There was about 1.5 ltrs. of blood in the peritonial cavity. They sutured the rent in the diaphragm and forced to remove the spleen which was bleeding actively, also evacuated all the clots and blood from the cavity and then closed the abdomen. The patient was shifted to ICU and was observed for 48 hours. The patient was discharged on 16.4.2008. The nature of the injury was grievous. He identified his signature on the medico legal certificate at point "A" on exhibit 31, and stated that such type of injury could cause death in normal circumstances. Knife MO.4 on being shown to him, he stated that the said weapon could have caused such type of injury found on the injured.

In the cross examination, the only suggestions put to the witness were that the details of the injuries were not disclosed in Exhibit 31 and that his opinion that such injury could cause death in normal circumstances was incorrect. The same were denied by the witness.

15. The evidence of the aforesaid eye witnesses also stands corroborated by the evidence of PW.2 Rajan Naik. Though the witness was initially declared hostile and cross examined, his evidence clearly establishes that on 26/2/2003, in the afternoon, at the instance of the accused, Swiss Army Knife was seized under a panchanama from rubble stones, lying near the temple at Jaidev Wado Nachinola. His evidence stands corroborated by the panchanama Exhibit 14.

16. PW.1 Mahendra Garad has acted as Pancha to the scene of offence panchanama Exhibit 9 dated 22.3.2008, attachment panchanama Exhibit -10 dated 22.3.2008 regarding clothes of the victim and arrest panchanama Exhibit 11 of the accused and has deposed about the same.

17. The evidence of four eye witnesses, coupled with the medical evidence, clearly establishes that the accused assaulted PW.5 Deepak Redkar with the MO.4 Swiss Army Knife, resulting in grievous injury.

18. The question, therefore, which arises for consideration is whether the accused caused injury to PW.5 Deepak in exercise of the private defence, as contended by the learned Senior Counsel Mr. Lotlikar appearing for the appellant/accused. The prosecution evidence itself discloses that the accused was demanding the money from PW.4 Sandesh Volvoikar who, admittedly, was owing the said amount to him and PW.4 stated to the accused that he had no money on that day and that he would pay the same on the next day of the incident. The prosecution evidence also establishes that thereafter, the accused started assaulting PW.5. There is nothing on record to suggest that the accused had a grudge against PW.5. If the evidence of the prosecution is tested on the touchstone of probabilities, the version of the prosecution witnesses that PW.5 had questioned the accused, cannot be said to be improbable. However, not a single witness who claimed to have witnessed the entire incident, has deposed that PW.5 had assaulted or had any sort of confrontation with the accused. This fact assumes importance in the light of the fact that the injury on the elbow of the accused was admitted by PW.10 in his cross examination. PW.10 Harish Bhatta, in his cross examination, admitted that the accused was referred for medical check up, but he claimed that there was no injury on his person. But the letter from Asilo Hospital produced by him disclosed that there was finding about injury to left elbow region two days back. In cross examination, PW.10 produced the certificate Exhibit 34. He also admitted that the report from Asilo Hospital dated 28.3.2008 showed the injury as old injury to the elbow and secondary suturing was done and he was called after 4 days for follow up at OPD. PW.10 denied the suggestion that the said injury was caused to the accused when he was assaulted by the complainant and others on the day of the incident and at the time of occurrence. He candidly admitted that he had not investigated further regarding the injuries to the accused. It is also an admitted position that the scene of offence panchanama Exhibit-9 disclosed that Pulsar motor-cycle, which was admittedly belonging to the accused, had fallen on the ground and its petrol tank was damaged. The said motor cycle was also attached under the panchanama.

19. It is, therefore, clear that the prosecution has not come out with entire truth. No doubt, in a criminal case, the prosecution is not bound to explain the simple injuries caused to the accused at or about the time of the incident, but, if the injury is grievous and has been caused at or about the time of the occurrence of the incident, a duty is cast on the prosecution to investigate the same and to find out the cause of such injury. In the present case, as stated above, PW.10 has candidly admitted that although the injury on the elbow of the accused was serious, he did not investigate into the same. In this factual background, the version of the prosecution that the accused assaulted PW.5 without any cause cannot be accepted.

20. At this stage, it would be appropriate to deal with the authorities relied upon by both sides.

21. In the case of Ravishwar Manjhi and others (supra), the Apex Court held that the accused is entitled to show that he is entitled to exercise the right of private defence from the material on record brought by the prosecution itself.

In the case of Suresh Singh and others (supra), the Apex Court while holding that the injuries found on the body of deceased are more grievous than those found on the body of accused, held that the accused exceeded his right of private defence and as such, altered the conviction from Section 302 to Section 304(II) of IPC.

In the case of Rizan and another (supra), the Apex Court held that the burden of proving the right of private defence is also on the accused and it can be proved by showing preponderance of probabilities in favour of that plea. The Apex Court further held mere non-explanation of the injuries by the prosecution, would not affect the prosecution case in all cases. The Apex Court further held that this principle would apply to the cases where the injuries sustained by the accused were minor and superficial or where the evidence is so clear and cogent, so independent and disinterested so probable, consistent, creditworthy that it far overweighs the effect of the omission, on the part of the prosecution to explain the injuries. In order to find out whether the right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities, are all relevant factors to be considered.

In the case of Agnelo Fernandes (supra), the Division Bench of this Court held that the accused had the right of private defence on the basis of the evidence led by the prosecution itself and consequently, acquitted the accused of the offence punishable under Section 302 of IPC.

In the case of Krishna & another (supra), the Apex Court has held that it is not necessary for the accused to plead in so many words that he acted in self defence and whether he acted legitimately in exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. However, the same right cannot be based on surmises and speculation and in order to appreciate such a right, the entire incident must be examined with care and viewed in its proper setting.

In the case of Parsuram Pandey and others, [2005 ALL MR (Cri) 796 (S.C.)] (supra), the Apex Court has held that in order to attract Section 307 of IPC., there must be either an intention or knowledge relating to commission of murder and the same can be drawn on the basis of the factors obtaining in a particular case.

In the case of Prakash Chandra Yada (supra), relied upon by Mr. Rivonkar, the Apex Court held that for the purpose of Section 307 of IPC, what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention.

22. Presence of injury on the elbow of the accused which was caused near about the time of the incident, coupled with the fact that the motor cycle of the accused which was on the spot was found damaged, makes it extremely difficult to place implicit reliance on the prosecution witnesses. I do not mean to suggest that the evidence of the eye witnesses regarding assault by the accused on PW.5 Deepak Redkar has to be rejected. From the defence of the accused that he had apprehension of injury to himself on account of the assault and/or throwing of bottle by the prosecution witnesses cannot be totally ignored nor can be said to be figment of imagination. This is more so in view of the fact that the investigating agency has not investigated about the injury found on the accused or as to how the damage was caused to the motor cycle of the accused which was found at the spot, at the time of scene of offence panchanama. However, considering the evidence of above four eye witnesses and considering the defence taken by the accused that he acted in the right of private defence, I am of the considered opinion that the facts and circumstances brought on record by the prosecution and the circumstances brought on record in the cross examination by the accused, clearly suggest that the accused exceeded his right of the private defence and caused grievous injury to PW.5 Deepak Redkar. No doubt the Apex Court in a catena of Judgments has held that the right of private defence cannot be weighed in golden scales, but considering the totality of the circumstances brought on record through the several witnesses mentioned above, I have no hesitation to hold that the accused exceeded his right of private defence.

23. In so far as the conviction of the accused under Section 307 of IPC is concerned, in my opinion, the same is patently unsustainable in law. The prosecution evidence itself suggests that the accused had no axe to grind against PW.5 Deepak Redkar. It is only when PW.5 intervened and started questioning the accused, that the accused assaulted him with knife, causing him serious injuries. In this factual background, it cannot be said that the accused attempted to cause murder of victim PW.5 Deepak Redkar. The incident occurred suddenly when the accused was confronting PW.4 Sandesh regarding the money which he owed to him. In my view, the accused exceeded the right of private defence. In my considered opinion, the ingredients of Section 307 are clearly not made out against the accused.

24. Considering the nature of injuries suffered by the victim PW.5 Deepak Redkar, and having regard to the evidence of PW.8 Dr. Deelip Amonkar, it is established by the prosecution that the injuries suffered by PW.5 endangered his life. Therefore, clause eighthly of Section 320 of IPC is clearly attracted in the present case. Therefore, what is established by the prosecution is that the accused caused grievous hurt to PW.5 Deepak Redkar while exceeding his right of the private defence. Therefore, appropriate conviction of the accused would be under Section 326 of IPC.

25. Coming to the sentence, in my opinion, considering the facts and circumstances of the case, the interest of justice would be served by sentencing the accused to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.25,000/- (Rupees twenty five thousand only) and in default, to suffer Simple Imprisonment for three months. If the fine amount is paid, an amount of Rs.15,000/- (Rupees fifteen thousand only) be paid to the victim PW.5 Deepak Redkar.

26. In the result, the appeal is partly allowed. The conviction of the appellant/accused for the offence punishable under Section 307 of IPC and the sentence imposed on the accused, are quashed and set aside and the accused is convicted for the offence punishable under Section 326 of IPC and sentenced to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.25,000/- (Rupees twenty five thousand only), and, in default, to suffer Simple Imprisonment for three months. If the fine amount is paid, an amount of Rs.15,000/- (Rupees fifteen thousand only) be paid to the victim PW.5 Deepak Redkar. The accused shall be entitled to set off the period of detention in terms of Section 428 of Cr.P.C. Order passed by the learned Additional Sessions Judge regarding disposal of the property is maintained.

27. At this stage, Mr. Lotlikar, learned Senior Counsel for the appellant seeks time of four weeks for the accused to surrender. The accused is granted four weeks' time to surrender before the learned Additional Sessions Judge, Panaji. In case the accused does not surrender within the period of four weeks, learned Additional Sessions Judge shall take appropriate steps to take the accused in custody to undergo the remaining sentence imposed on him.

28. The appeal stands disposed of in aforesaid terms.

Appeal partly allowed.