K. Lahiri, J.
1. The accused, an indigent boy, to whom free legal aid had been provided in the lower court was convicted under Section 302 IPC for killing his elder brother. It is alleged that his elder brother, Durga Majhi, being drunk returned home at mid-night abused his mother and sister, assaulted and kicked them both, broke the walls and posts of the house, chased after everyone with a dao in his hand threatened the inmates 'to cut to pieces' when the accused snatched the dao and dealt blows apprehending death or grievous assault on his mother, daughter and upon himself as well. The story depicted above is pictured in the written ejahar lodged by an unsophisticated and illiterate person, PW 2 Smt. Bhadori Majhi, mother of the deceased as well as the appellant. As a consequence of the dao blows inflicted Durga succumbed to the injuries. It is the prosecution case narrated by P.W. 2 Smt. Bhadori Majhi that the deceased returned home being drunk, commanded for getting food, asked for tobacco leaf (sada) and started abusing all and attempted to assault with a dao. The prosecution brought out from P.W. 2 Smt. Bhadori Majhi that she had narrated the story that Durga Majhi tried. to attack all of them and the young accused snatched the dao and dealt blows on his body as a result whereof Durga succumbed. It appears clear from the evidence of these witnesses the Ejahar - the first written report of the occurrence and the confessional statement of the accused that the deceased was drunk, he came and picked up quarrel, assaulted his mother and sister and threatened to assault every one with a dao in his hand when the young hoy managed to snatch away the dao and dealt blows on the deceased in consequence his elder brother died.
2. The crucial question for determination is whether the accused, a boy aged about 15/16 years at all relevant times, had reasonable apprehension that there was imminent peril of life and limb of himself and the other members of the family-his own dear and near relations, his mother and sister. The .apprehension in the mind of the accused who claimed the right of private defence must be judged objectively with reference to the events and deeds at that crucial time and in the total situation of the surrounding circumstances. The accused was a young boy aged 15/16 years; the deceased, his eldest brother, was drunk, had assaulted his mother and sister, kicked them, damaged the posts and wall of the house, thereafter he brought out a dao and chased everyone threatening to kill them. Therefore, the deceased created a horrendous quandary at the, dead of the night and these happened in quick successions obtaining aid from private sources and recourse to public authority were beyond any question on the fact-situation. Further, reasonableness of the apprehension must be judged from the conduct of the deceased coupled with the reasoning faculties of the young boy. The accused comes from the family to tea garden labourers. He is illiterate vide L. T. Is in his confessional statement and statement recorded under Section 313 of the Cri. P. C. He never minced a word. He killed his elder brother in self defence to prevent commission of apprehended crimes which the deceased was about to commit, namely, either death or grievous hurt to the inmates of the house. Admittedly, the conduct of the drunk, armed with a dangerous weapon in his hand, was sufficient to give rise to the alluded reasonable apprehension in the mind of a reasonable person not to speak of a teenager. It was quite reasonable for the boy to have reasonable apprehension that his elder brother was out to cause grievous injury or death to his mother, sister as well as himself. He tried to prevent the commission of crimes and exercised the right of private defence. In fact, the deceased had already kicked and assaulted his mother and thereafter took the dao, and threatened all to do away with their lives. Therefore, there was reasonable ' apprehension of danger to. the accused, his mother and sister from the attempt or threat to commit the offence of murder or grievous hurt. There was existence of real apprehension of danger. The young boy faced imminent peril of life and limb of himself and others, he could not be expected to weigh in goldsmith's scale the precise force needed to repel the danger. It may be recalled that the attacker was his elder brother fully armed and if the accused would have allowed the deceased to get the better of the accused, the latter would have been finished along with the members of his family. Under such circumstances, if he had dealt more than one blow on the deceased it cannot be said that he exceeded the right as in the heat of the moment and excitement the power of calculation with precision and exactitude by a calm and unruffled mind were destroyed by the situation created by the attacker. What would have happened had he not dared to snatch away the dao? It would have been perilous end of three lives. What would have happened if he would not have dealt sufficient blows to disable the attacker It would have resulted in the same consequence. The blows given by the accused were neither vindictive nor malicious. In deciding whether the force used was reasonable, all the attending circumstances must be considered, the matter being fully a question of fact.
3. We have considered all the relevant facts including the fact that there was no possibilities of retreat and, we hold that the accused had the right of private defence and allowance must necessarily be made for his 'feeling' at all relevant time. He faced an imminent danger to his life or at least grievous hurt which inevitably caused great excitement and confusion in his mind. At such moments the uppermost feeling was necessarily not only to ward off the danger but to save himself and naturally he would be anxious to strike a decisive blow in exercise of his right,
4. While considering the right of private defence of person we have borne in mind the limitations on Sections 99 to 100 of the Indian Penal Code. On materials we find that there, was a real apprehension of death or grievous assault upon the accused and/or his neap relations (mother and sister), There was no time for recourse to the public authorities nor was there any possibility of getting public assistance; the injuries inflicted on the deceased cannot be said to be excessive as (a) the deceased was drunk powerful and if allowed to get the better of the accused the former could have certainly finished him; (b) the blows were neither vindictive nor malicious but protective in nature; (c) the act of giving blow cannot be weighed in golden scale and we have given allowance to the status of the accused and his age. The blows were inflicted in the heat of the moment and excitement when it was a case of life and death for the accused.
5. The learned Sessions Judge rejected the plea of private defence entirely relying on the evidence of P.W. 3 Sumita Majhi. While appreciating the evidence, the learned Judge completely overlooked the fact that the young girl was trying to protect, shield or cover her brothers, deceased as well as the accused. Naturally, she thought that if she did not disclose that the accused had given the blows he would be acquitted. The learned Judge himself observed, while recording the evidence of P. W. 3 Sumita, that she was concealing facts, evaded answers and unwilling to make statements. From the observation of the learned Judge it is difficult to believe the testimony of the witness. Admittedly, she was trying to conceal the entire story but she could not conceal the facts that Durga created nuisance and threatened them. She also said that Durga kicked the lamp and quarrelled with Satnu, She tried her best to say that the accused did not give any blow or at least she did not see it. How ever, when we peruse the Ejaher, the confessional statement and the evidence of the other eye-witness P. W. 2 Smt, Bhadori, we are constrained to reach the conclusion that P. W. 3 concealed material facts and cannot be relied upon to reach the conclusion that Durga had no dao in his hand or that he did not try to assault the inmates with the weapon. The learned Judge committed grave error in rejecting the evidence of P.W. 2's story, statements contained in the confessional statements as well as the statement of the accused.
6. Considering the facts and circumstances of the case we hold that the accused had the right of private defence of person, he did not exceed it and for these reasons we set aside the conviction and sentence of the accused and set him at liberty by our order dated 13-8-82.