The main legal point established in the judgment is the application of the right of private defence under the apprehension of being assaulted, as recognized in the case of Darshan Singh v. State of Punjab and Another.

JUDGMENT :

This appeal is directed against the judgment of conviction and order of sentence passed in S.C. No. 273/2012 dated 30.03.2016 and 03.09.2016 passed by the learned 9th Addl. Dist. & Sessions Judge, Belagavi.

2. We have heard the learned counsel for the appellant Sri A.B. Koni and the learned Addl. S.P.P. for the respondent-State Sri V.M.Banakar and perused the records including the trial Court records.

3. The complainant and the accused are own brothers and were having some landed properties. During the lifetime of their parents a panchayat was convened and divided the said properties equally among the complainant and the accused. Thereafter the complainant purchased the land measuring 1 acre at Godholli village out of his own funds. It is alleged that the accused used to demand division in the said property and the complainant refused to give the share. It is alleged that, on the day of the alleged incident, the accused was in his landed property and the complainant, his son and wife were in their landed property. When the complainant was intending to pass through the land of the accused, the accused asked him to give property as demanded and the complainant abused him. At that time, the accused assaulted the complainant with the handle of the pick axe. Due to that, the complainant made a big hue and cry. By hearing the same, the deceased who was in the field, came running and by seeing the same, the wife of the accused made a warning call and the accused assaulted the deceased with pick axe on his right side head and caused grievous injuries. Due to the said injuries, son of the complainant succumbed to the injuries. On the basis of the complaint, a case has been registered in Crime No. 48/2012 and after investigation, charge sheet has been filed.

4. The prosecution in order to bring home the guilt of the accused, got examined 15 witnesses, got marked 18 documents and 12 material objects. Thereafter, the accused was examined by putting incriminating material as against him but he denied. The accused got himself examined as DW1 and has not got marked any documents. After hearing the learned counsel appearing for the parties, the trial Court found that the accused is guilty for the offences with which he has been charged and convicted him for the same. Challenging the legality and correctness of the judgment of conviction, the accused is before this Court.

5. It is the submission of the learned counsel for the appellant-accused that on 24.02.2012 at about 11.30 AM when the accused was doing his work in the field, at that time PW1-complainant came towards him and there was some exchange of words with regard to property dispute. At that time, the accused gave a blow to the complainant-PW1. Upon the said blow, PW1 made hue and cry by saying that, “I will die”. By hearing the same, the deceased came running to the spot by holding a sickle, under the apprehension that the accused may take away the life of his father-PW1. At that time, wife of the accused gave a warning to the accused and the accused swayed the pick axe which was in his hand, which came in contact with the deceased and as a result of the same, he suffered grievous injuries and died.

6. It is his further submission that the accused had no intention to kill, however, the incident took place only under the apprehension that son of the complainant, i.e., the deceased, may take away his life. Mere apprehension in the mind of the accused is enough to put “right of self defence” into operation. It is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. In order to substantiate the said fact, he has relied upon the decision of the Hon’ble Supreme Court in the case of Darshan Singh V. State of Punjab and Another reported in (2010) 2 SCC 333.

7. He has further submitted that, the accused himself has made a phone call to bring the ambulance to see that the injured has to be treated immediately and his