JUDGMENT

K.T.THOMAS, J.

(1) IN a situation which pitched upto the brim of a communal riot, one person died of a stab injury on the chest. It appears that he was the only person who sustained fatal injury in the occurrence, and the situation did not fortunately escalate into a carnage. Eight persons were charge-sheeted by the police in regard to the murder of one Abdul Sattar which happened at about 11.00 p.m. on 19.8.1986 in front of the house of the accused. The trial court acquitted seven of them but convicted appellant-Moti Singh alone for the offence under section 302 of the Indian Penal Code and sentenced him to imprisonment for life. A division bench of the High Court of Bombay (Aurangabad bench) confirmed the conviction and sentence and dismissed the appeal filed by the appellant. He, therefore, filed this appeal by special leave.

(2) ACCUSED nos. 1 to 5 are siblings and the other accused are closely associated with them. About one and a half hour prior to the occurrence in this case, a minor incident took place in which appellant and his brother Ram Singh has assaulted one Jowharkhan (PW3) in the vicinity of the statue of Dr. Babasaheb Ambedkar situated at Beed (Maharashtra)., Jowharkhan (PW3) had reported this matter to the other members of his community. A number of them belonging to that community assembled together and proceeded to the house of the appellant at about 11.00 p.m. on the same night. According to the prosecution version they proceeded to the house of the accused for talking out the matter. But all the accused rushed out of the house and launched an attack on the deceased. Four of the accused caught hold of the deceased and appellant inflicted one stab injury with a knife on his chest which eventually turned out to be fatal.

(3) PROSECUTION examined PW1 - Dost Mohammad, PW3 - Jowharkhan, PW4 - Ayubkhan (cousin of the deceased), PW5 - Abdul Sami and PW6 - Altaf Khan as witnesses to the occurrence. They have spoken to the prosecution version. The trial court and the High Court accepted their testimony and found the appellant guilty of the offence under section 302 Indian penalCode.

(4) THOUGH the appellant did not adopt the right of private defence as a plea in the statement recorded under section 313 of the Criminal Procedure Code, his co-accused (fifth accused - Jai Singh) put forward a case that the prosecution witnesses and the deceased marched towards their house in retaliation for the earlier incident and launched an attack on the inmates including him.

(5) THE doctor who examined the person of A5 - Jai Singh found the following injuries: 1. One contused lacerated wound on the scalp occipital region of the size ½" x ¼" x ¼". 2. One abrasion on left pinna of the size ¼" x ¼" x ¼" 3. One abrasion on the lower lip of the size ¼" x ¼"/¼".

(6) IN spite of the above fact situation, High Court was not inclined to concede right of private defence to the appellant mainly on two premises. One is that the appellant did not put-forth such a plea at all. The second is that the injuries noted by the doctor on the fifth accused - Jai Singh are minor wounds.

(7) NEITHER of the said premises could be approved on the fact situation. The admitted case of the prosecution is that after the occurrence, witnesses and the deceased together went towards the house of the accused during the untimely hour, on being told that one of them was attacked by the appellant and his brother a little earlier. The injuries sustained by Jai Singh give a clear indication that the prosecution party was armed with blunt objects. They have no case that the injuries found on A5 - Jai Singh were inflicted only subsequent to the injuries which deceased sustained. In all probabilities A5 - Jai Singh would have sustained the injuries prior to the deceased, received the fatal injury.

(8) CAN the appellant legitimately claim right of private defence in the above situation? T