1. This is an appeal on behalf of the State against the judgment of the Sessions Judge., Gulbarga, acquitting six accused who were charged under Sections 124 and 243, Hyderabad Penal Code. The story of the prosecution is that on 8th Amardad 1356 F., at about 8 a.m. the six accused went to the land known as Saharai Indola situated in Nilanga Taluq, Bidar District and finding the deceased, Basappa, sowing seeds and cultivating the land which,, according to the accused belonged to them, inflicted severe injuries on Basappa and in consequence of which Basappa died and Sharnappa received severe injuries. The accused were charged with the murder of Basappa and for rioting. The accused denied the committing of the crime. On behalf of the prosecution eleven witnesses were examined, of whom P.Ws. 7, 8 and 9 were examined as eye-witnesses. It was stated by the prosecution that the motive for the crime was a dispute between the party of the accused and the party of the deceased with regard to the possession of the land. The prosecution examined other witnesses also with regard to the dispute about the land and about the fight between the two parties. On the evidence before the Sessions Judge, the Sessions Judge came to the conclusion that the accused were guilty of the offence of murder of Basappa, but he held that this act of the accused was in exercise of their right of private defence. In the result the Sessions Judge acquitted the accused. It is against this judgment that this appeal has been preferred.
2. It is argued by the learned Public Prosecutor that the Sessions Judge, having found the accused to be guilty of the murder of Basappa, was wrong in having held that they were entitled to commit the murder in exercise of their right of private defence. The sole question in this appeal is as to whether the accused were entitled to commit the act they have been charged with in the exercise of their private defence and whether the circumstances necessitated the exercise of the right of private defence. So far as this question is concerned it cannot be gainsaid that the right of private defence could be exercised and a person may even strike his adversary with such a sharp weapon which may cause his death where he has a reasonable apprehension that he would be killed. If the facts show that his adversary was using such a weapon, the use of which would cause death, the accused is entitled to defend himself and in defending himself if he happens to kill the adversary he cannot be held guilty of murder. One argument was advanced by the learned Public Prosecutor that it was open to the accused persons to have recourse to the authorities or have gone to a Court of law in order to establish their right of possession rather than have recourse to the inflicting of injuries with a sharp weapon so as to cause death of the deceased. The evidence in the case shows that the deceased Basappa snatched the sword which was in the possession of Aynappa and tried to inflict injuries on Aynappa and actually inflicted injuries on him and also on Ramanna, the accused. It is also clear from the evidence that there was altercation and exchange of harsh words between the party of the accused and the party of the deceased. It is also clear from the evidence that Aynappa received a severe blow from the sword and fell. This was in consequence of the attack by Basappa. In such circumstances if the other five accused finding Basappa was attempting to kill Aynappa and Ramanna used lathis and inflicted severe injuries on Basappa and Sharnappa, we should regard it as an act of the accused in the exercise of their right of private defence. As has been observed by us above, the accused is always entitled to inflict severe injuries which may cause death, if there is danger of his being killed. We, therefore, agree with the Trial Court that in this case the accused were entitled to the exercise of private defence and if in the exercise of private defence they have used lathis and inflicted injuries on the deceased which caused death, they cannot be held guilty of the murder of the deceased.
3. It has to be remembered that the right of private defence is available to a person where it is for the protection of property or for the person. In the case before us admittedly Basappa was tilling the soil on the field which belonged to the party of the accused and if after remonstration Basappa did not forbear from tilling the party of the accused threatened to beat when Basappa snatched the sword from Aynappa and hit him. The provocation was at the instance of Basappa. Although it is an elementary principle of law and jurisprudence that a man cannot take the law into his own hands but should have recourse to the proper authority to get his grievances redressed, but in a case where there is no reasonable opportunity for seeking his redress in a Court and there is imminent danger to his life on account of a person attacking him with a sharp weapon, he can avoid the danger to his life by counter-attack on the assailant. If the accused apprehending immediate danger to his life thinks that it is only if he made a counterattack that he could save his life and makes the attack he is entitled to do so. The question also arises in such cases whether the act of the accused was commensurate with and proportionate to the attack of the opponent A blow by a first cannot be returned by hitting with a sword. Whether the attack was commensurate with and proportionate to the attack of the adversary would have to be determined having regard to the particular facts and circumstances of the case.
4. As regards the argument of the learned Public Prosecutor that recourse should be had to the authorities or a Court of law to establish their right of possession, we are of opinion that the events that have happened in this case do not justify and do not warrant our coming to the conclusion that the accused could have had recourse to the authorities. In the result we dismiss this apneal.
5. Siddiqui J.
I agree. In cases of imminent danger to life, the one in danger of life is entitled to protect his life, and even counterattack if necessary, if the circumstances permit, just to protect oneself. In the circumstances of this case the attack complained of is justified. Appeal is dismissed.