IMPORTANT POINT
A person having a reasonable apprehension that death or grievous hurt could be caused to him or his companion, he can resort to private defence.

JUDGMENT

Abhay Manohar Sapre, J.

This appeal is filed against the final judgment and order dated 12.06.2008 passed by the High Court of Judicature at Madras in Criminal Appeal No. 513 of 2006 whereby the Division Bench of the High Court partly allowed the appeal filed by the appellant herein.

2. In order to appreciate the issues involved in this appeal, it is necessary to set out the facts infra.

3. The appellant herein (A-1) along with co-accused- Chinnakolandai (A-2) were tried for the commission of the offences punishable under Section 302 read with Sections 109 and 203 of the Indian Penal Code, 1860(hereinafter referred to as "IPC"), Section 36-A and E of the Tamil Nadu Forest Act, 1882 and Section 3 read with Section 25 (1-B) (a) of the Arms Act in the Court of Additional Sessions Judge, Dharmapuri in Session Case No. 342/2004.

4. By Judgment/order dated 17.05.2006, the Additional Sessions Judge convicted the appellant herein(A-1) for the offences punishable under Sections 302 and 203 IPC, Section 36-A and E of the Tamil Nadu Forest Act and Section 3 read with Section 25(1-B)(a) of the Arms Act and sentenced him to undergo life imprisonment with a fine of Rs. 2000/- and in default of payment of fine to further undergo rigorous imprisonment for three months under Section 302 IPC, to undergo rigorous imprisonment for two years with a fine of Rs. 500/-, in default of payment of fine to undergo further simple imprisonment for three months under Section 203 IPC, to undergo rigorous imprisonment for two years with fine of Rs. 7,500/-, in default of payment of fine, to undergo further simple imprisonment for three months under Section 36-A and E of the Tamil Nadu Forest Act, to undergo imprisonment for two years with a fine of Rs. 500/-in default of payment of fine to further undergo simple imprisonment for three months under Section 3 read with Section 25 (1-B)(a) of the Arms Act.

5. All the awarded sentences were to run concurrently. So far as Co-accused-Chinnakolandai (A-2) is concerned, he was acquitted from all the charges.

6. The appellant (A-1) felt aggrieved by the order of conviction and sentence passed against him and filed criminal appeal in the High Court of Judicature at Madras. So far as the order acquitting co-accused- Chinnakonlandai (A-2) was concerned, the State did not file any appeal against that part of the order and hence the order of acquittal of co-accused- Chinnakolandai (A-2) became final.

7. The High Court, by the impugned order, allowed the appeal in part and while setting aside the conviction and sentence imposed on the appellant under Section 302 IPC altered it to Section 304 Part-II IPC and sentenced him to undergo rigorous imprisonment for five years with a fine amount of Rs. 2000/- and in default of payment of fine, to further undergo rigorous imprisonment for three months. The appellant was, however, acquitted from the offence punishable under Section 36-A and E of the Tamil Nadu Forest Act and was also acquitted from the offence punishable under Section 25 (1-B) (a) of the Arms Act. However, the High Court did not consider the case of the appellant so far as his conviction under Section 203 IPC is concerned. The State has not filed any appeal against that part of the order by which the appellant was acquitted from the charges as detailed above.

8. So, the short question, which arises for consideration in this appeal, is whether the High Court was justified in convicting the appellant under Section 304 Part-II IPC and was, therefore, justified in awarding rigorous imprisonment for five years.

9. In other words, the question to be considered in this appeal is whether the prosecution was able to prove beyond reasonable doubt that the appellant was guilty for commission of the offence punishable under Section 304 part II of IPC.

10. In order to answer this question, it is necessary to take note of the prosecution case in brief infra.

11. The appellant (A-1) was working as Forest Range Officer in State Services