IMPORTANT POINT
Right of private defence undoubtedly, a defence available to an accused but the Court while dealing with the defence, ought to act with proper circumspection and caution, since the same is an exception rather than a rule.

JUDGMENT

The accused is in appeal against the conviction and sentence imposed by the High Court in affirmation of the finding of guilt under Section 304 Part-I, IPC and sentencing him to suffer rigorous imprisonment for five years. During the course of hearing learned Advocate appearing for the respondent -State, contended that the appeal should be restricted to the question of sentence only. The learned Advocate appearing for the appellant however, contended that question of treating the appeal in any restricted manner does not and cannot arise by reason of subsequent grant of leave without attaching any condition thereto. The records depict that on 20th March, 1998, this Court directed issuance of notice limited to the question of sentence only. Subsequently, however, after about eight months, the matter was placed in the list for hearing but by reason of the objection this Court was pleased to grant special leave in the matter. The learned Advocate appearing in support of the appeals contended that once the leave has been grantedthe matter is open for all the issues to be agitated otherwise the Court would have specified in the order itself while granting leave. Reliance however has been placed on the decision of this Court in the case of Harbans Singh v. State of Punjab1 which inter alia is an authority for the proposition that the Leave, as granted by this Court, is to be treated limited to the question of sentence only - and as such the appeals were directed to be heard on the question of sentence only.

2. The case of the prosecution as the record depicts appears that the deceased Vinayagam purchased 2/3rd share in the Well as well as the pump-set belonging to the Pankal (the accused). On the date of occurrence that is on 5th March, 1990 at about 6.15 p.m. the deceased was in his Tea shop, the accused went there and according to the prosecution stabbed on the stomach of the deceased. When PW 1 Gopal intervened, the latter also suffered injuries. The prosecution case further goes on to record that the accused dragged the deceased inside the room in the business place and bolted the door from inside and thereafter assaulted on the head of the deceased with iron pipe and stabbed him indiscriminately with a knife and caused his death. Though, strictly speaking, there cannot be eye-witnesses since the fatal blow was given admittedly inside the bolted room but prosecution examined PWs 1, 2 and 3 as eye-witnesses to the occurrence though were present outside the room.

3. The prosecution case however, further depicts that the door was opened after some time by the accused and he came out of the room with a blood-stained knife in his hand and the accused made his escape inspite of resistance. It is only thereafter that the body of the deceased was discovered in the room. The full factual analysis has been dealt with by the trial judge as also the High Court and as such we need not deal with the same in extenso, more so by reason of the fact that the appeals are heard on the question of sentence only. Significantly one aspect of the matter which stands high-lighted by the learned Advocate appearing for the respondent-State is that circumstantial evidence as a matter of fact clinches the issue since there is existing a categorical statement from PW2 that the accused opened the door and came out of the room and was holding Vinayagam with left hand and holding the knife in his right hand. It is at that juncture that PW2 Sundaram took two tender coconut which lay there and threw them at the accused, the accused however moved aside and escaped. More or less identical is the deposition of PW3 without any element of contradiction.

4. It is on this piece of evidence that the learned State-Advocate contended that no exception can be taken to the finding and the sentence passed by the Sessions Judge or the High Court.

5. As a matter of fact, the Learned Additional Sessions Judge has been quite lenient while dealing with the matter and has chang