The right to private defense was exceeded; intent to kill established through the brutal nature of the attack, making the appellant liable for murder under Section 302 IPC.

JUDGMENT :

RANJITSINHA RAJA BHONSALE, J.

1. By the present Appeal, the Appellant seeks to challenge the Judgment and Order dated 3^rd February, 2014, passed by the learned Sessions Judge, Pune in Sessions Case No. 475/2010 whereby the Appellant has been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000/- in default to undergo further rigorous imprisonment for six months. The Appellant has been acquitted for the offence under Section 4 punishable under Section 25 of the Arms Act and under Section 37 (1) punishable under Section 135 of the Bombay Police Act.

2. Prosecution case in brief, is as under.

2.1) On 29^th March, 2010 Aruna Mahendra Shinde (PW-2), sister of deceased lodged complaint with the Wanwadi Police Station stating that, one year ago there was quarrel between her brother Shrinath @ Bhultu Sakharam Gaikwad and the Accused No.1 Vishal Ashok Kamble and his brother Krushal (juvenile in conflict with law). During the said quarrel, the Appellant Vishal and his brother Krushal assaulted Shrinath @ Bhultu Sakharam Gaikwad on his head by a blade. That, initially a complaint was filed, which was then compromised. Appellant Vishal and his brother Krushal used to demand money from Shrinath for drinking liquor. On the refusal of Shrinath to pay any amount, the accused used to give threats to kill him. That, Shrinath had informed these facts to the PW-2.

2.2) On the date of the incident i.e. 29^th March, 2010, the Complainant went for her work and on return inquired with her mother about Shrinath, when she was informed that, Shrinath had gone out. That, at about 3.45 p.m., Babita, sister of PW-2 came and told her that, the Appellant Vishal and his brother Krushal have assaulted Shrinath by some weapon and that he was lying in a pool of a blood. PW-2 immediately rushed to the spot and saw her brother Shrinath lying in the pool of blood, with injuries on his face and head. The police arrived at the spot and injured Shrinath was taken to Sassoon Hospital, Pune where he was declared dead before admission.

2.3) On receipt of the Complaint, a crime was registered as Crime No. 85 of 2010 for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code. Investigation was carried out by Dattatraya Mane (PW-9), who visited the spot, prepared Spot Panchanama (Exhibit 36) in the presence of panch witness Chandrakant Gholap - PW4. The spot of incident is in front of grocery shop in a small lane having width of 5 feet to 5 ½ feet. Blood samples were collected, hair found on the spot was collected. Inquest Panchanama (Exh-37) was drawn up. Ajit Ramchandra Khadke (PW-10) took over the investigation, recorded the statement of witnesses including PW-2 Aruna Mahendra Shinde (Complainant), PW-3 Raheman Ismail Shaikh (person who heard conversation between the Accused), PW-4 Chandrakant Baliram Gholap (Panch), PW-5 Anita Laxman Gaikwad Eye-witness (Hostile), PW-6 Shivaji Maruti Waghmare (Eye-witness), PW-7 Amir Husain Sayyad (Recovery Panch), PW-8 Sudhakar Genu Deshmukh (Panch for clothes of Accused).

2.4) During the investigation as per Panchanama (Exh-60) clothes of the deceased were attached. Sample of blood of the deceased as well as Accused were collected. Clothes of the Accused were attached by effecting Panchanama (Exh-50). During the investigation, Appellant Vishal made statement before Police and Panch that he was willing to show place