Krishna Rao, J.
1. The appellant, Dontalugadu alias Subramanyam, has been sentenced by the Sessions Judge, Chittoor to imprisonment for life under Section 302 I. P. C. for the murder of one Krishtan at about 6 p.m. on 12-9-62 by stabbing him with a knife, M. O. 1. He has also been sentenced to rigorous imprisonment for eight months under Section 324, I. P. C., for having at the same time stabbed and caused hurt to the deceased's son, Kathan (P. W. 1) and to rigorous imprisonment for six months under Section 323, I.P.C., for having caused hurt to Munigadu (P. W. 2) by throwing a stone at him. All the three sentences were ordered to run concurrently.
2. The facts according to the prosecution are briefly as follows; -
Both the deceased Kristan, who was aged about 50 years, and the accused Dontalugadu, who is aged about 21 years, were residents of Karur Harijanawada, their houses being at a short distance from each other. The deceased and P. Ws. 1 to 5 belong to the 'vetli' group of families, while the accused belongs to the 'payakari' group of families. About one month prior to the occurrence, there was a quarrel between the accused and P. W. 1 because the latter beat the former's bull and drove it away from P. W. 1's hayrick. On the morning of the occurrence, while the accused and P. W, 1 were ploughing the field of Kalappachari (P. W 10), the accused picked up a quarrel and beat P. W. 1, P. W. 1 stopped ploughing and returned home.
3. At about 6 p. m. on the same day, the deceased and P. W. 1 were erecting a fence for the pen near their house. The accused came along the adjacent road on his way home. The deceased went up and asked him why he had beaten P. VV. 1 in the morning. The accused replied that he would beat not only P. W. 1 but also the deceased. Thereupon the deceased became angry and pushed the accused. The accused whipped out a knife (M. O. 1) and stabbed the deceased on the stomach. The deceased fell down and the accused started running away. P. VV. 1 tried to catch him, but the accused stabbed him on the abdomen and escaped.
P. Ws. 2 to 4, who were in the vicinity, saw these events P. W. 2, Munugadu is the deceased's elder brother's son living a few houses off from the deceased's house. P. W. 3. Katadu, is P. W. 1's maternal uncle's son and P. W. 4, Murugesan, is the deceased's first cousin, P. Ws. 2 and 3 chased the accused and P. W. 4 went near the deceased to bandage his wound. The accused, while running threw away his knife into a field. Then he pelted a stone at P. W. 2, which struck P. W. 2's right hand and ran towards the house of Natesan (P. W. S), which is separated by one house from his own house. He jumped over a thorny fence and fell down, receiving some injuries. P. W. 5 caught hold ot the accused. P. Ws 2 and 3 joined him and helped him to hold the accused. The accused's dhoti (M. O 3) and towel (M. O. 4) got loose and fell over the fence. The accused's sister took them away and the accused who had become naked used his banian (M. O. 2) to cover his private parts.
4. P. Ws. 2 to 5 took the accused to the house of Kandaswami Reddy (P. W. 12), who is the President of the Karur Panchayat Board. When P. W. 12 inquired the accused, the latter confessed in the presence of P. Ws. 2 to 5 and 11 and one Vetti Doraswamy that he had stabbed both Kristadu and P. W. 1. The party proceeded to the field, where the accused had thrown away his knife. They searched for the knife and the accused picked it up. P. W. 11 and Vetli Doraswamy kept the accused and the knife (M. O. 1) in their custody until the arrival of the police,
5. P. Ws. 2, 3 and others took the deceased and P. W. 1 on cots to the Nagalapuram police station, about 3 miles off. The deceased was unable to make a statement and died within a few minutes. The Sub-Inspector (P. W. 14) recorded P. W. 1's statement (Ex. P. 1) as the first information. He investigated the case, arrested the accused in the village and also recovered the knife (M. O. 1) from Vetti Doraswamy. The medical evidence is that the deceased had an incised wound on his abdomen which had injured the abdominal wall, peritoneum, greater omentum, and transverse colon and which was necessarily fatal. P. W. 1 had an incised wound in the left intercoastal space pointing into the abdomen and P. W. 2 had a contusion on his right fore-arm. The accused had a lacerated wound on his head, a bruise on his left side over the hip and an abrasion on his left leg below the knee,
6. The accused admitted that he beat P. W. 1 at P. W. 10's field on the morning of the occurrence. His version was that while he was returning home in the evening, the deceased and P. Ws. 1 to 4 and a number of other persons beat him. He fell down unconscious and did not know what happened thereafter. He denied having made a confession before P, W. 12 or having handed over the knife (M. O. 1). He called no witnesses in defence.
7. The learned Sessions Judge, after considering the evidence at great length, accepted the direct evidence of P. Ws. 1 to 4 as to how the accused caused the injuries to the deceased and to P, Ws. 1. and 2 ; and also the evidence of P. Ws. 2 to 5, 11 and 12 as regards the accused's confession and the recovery ot the weapon of offence (M. O. 1). With regard to the injuries on the accused, however, he did not accept the evidence of P. Ws. 2, 3 and 5 that they were caused by the accused falling down at the fence near P. W. 5's house. He held that they must have been caused by the deceased's relations beating the accused after he was caught. Ha negatived the defence contention that the accused stabbed) the deceased in the exercise of his right of private defence, convicted the accused under Sections 302, 321 and 323 I.P.C. and sentenced him as mentioned above.
8. Sri N. Raghavarao, the learned Counsel for the appellant, contends that all the direct witnesses (P. Ws. 1 to 4) are closely related to one another and to the deceased, that there are contradictions between their evidence and their earlier statements, that the story of P. Ws. 2 to 5, 11 and 12 as to the confession by the accused and the recovery of the knife (M. O. 1) is improbable and that owing to these infirmities there is no reliable evidence to support the conviction.
His next contention is that even if reliance is placed on the aforesaid P. Ws., the accused's story that he was attacked by the deceased and his partisans is borne out by the injuries received by him and the accused must therefore be held to have acted in the exercise of his private defence of his person. Alternatively, the learned Counsel contends that the deceased was beyond doubt the aggressor and the accused must be held to have acted under grave and sudden provocation from the deceased.
9. No doubt P. Ws. 1 to 4 are related to one another and to the deceased. But there is absolutely no evidence established that there was any prior ill-feeling between P. Ws. 2 to 4 and the accused. The relationship is not a good reason to suspect the evidence of P. Ws. 1 to 4 against the accused because they are far from likely to leave off the real culprit and name another person as the deceased's assailant. We shall refer in the next paragraph to the contradictions commented upon by the learned Counsel. Having carefully considered them and gone through the entire evidence, we do not consider that they shake the veracity of P. Ws. 1 to 4. Besides the direct evidence there is the evidence of the accused's confession and the recovery of the pen-knife after a search with the help of the accused. We are inclined to agree with the learned trial Judge that the evidence of P. Ws, 2 to 5, 11 and 12 on this part of the case carries conviction. The medical evidence also establishes that the injury caused to the deceased was fatal and that both P. Ws. 1 and 2 received injuries by stabbing with a knife and by means of a blunt object respectively. We, therefore, see no force in the contention of the learned Counsel for the appellant that the evidence against the accused ought to be rejected as being unworthy of credit.
10. There is more force in the next contention on behalf of the accused, which proceeds on the footing that P. Ws, 1 to 4 have suppressed some facts bearing on the accused's plea of self-defence. White the present evidence is that when the deceased questioned the accused in the evening, the latter threatened to beat not only P. W. 1 but also the deceased, the earliest version namely of P. W. 1 in Ex. P. 1 was that the accused said to the deceased merely ''What can you do, if I beat. Now come to beat'. Ex. P. 1 goes OH to state that thereupon the deceased caught hold of the accused's hair and both of them beat each other. Besides P. W. 1, only P. W. 3 was stated to have been present at the time, and all the other people were stated to have gathered there afterwards. In his next statement (Ex. P. 2), which was recorded as P. W. 1's dying declaration on the night of 12.9-1962, P. W. 1 stated that both the deceased and P. W, 2 questioned the accused as to why the accused had beaten P. W. 1 in the morning. During the investigation by P. W. 14, the Sub-Inspector, P. W. 1 stated that the deceased caught hold of the accused's hair and there was a scuffle between them, that on seeing it, P. Ws. 1, 2 and 4 went up followed by P, W. 3, and that meanwhile the accused took out a knife and stabbed the deceased. It emerges from these statements that the deceased attacked the accused by catching hold of the latter's hair and exchanging blows with him and that P. Ws. 1 to 4 endeavoured to interfere on behalf of the deceased. But in the witness box, P. Ws. 1 to 4 tried to put forward the story that the deceased merely pushed the accused after catching hold of his hair and that they merely chased the accused after the accused had stabbed the deceased. The evidence of P. Ws. 2, 3 and 5 as to how the accused received his injuries by falling down at the fence is discrepant with their earlier statement and does not satisfactorily account for the injuries actually found on the accused. Although it is possible to suspect that the injuries were caused by P. Ws. 1 to 4 attacking the accused, it is also possible as held by the learned; trial Judge that some relations of the deceased ultimately beat the accused. On the evidence as it stands, we cannot say with any degree of certainty that the accused's injuries were due to P. Ws. 1 to 4 having beaten him before the accused stabbed the deceased. But on a consideration of P. W.1's earlier statements and all the circumstances, we feel no doubt that the deceased was the aggressor, who questioned the accused, caught his hair and exchanged blows with him; and that P. Ws. 1 to 4 who happened to be nearer by at the time went against the accused with a view to support the deceased; and that the accused had reason to apprehend that the deceased and P. Ws. 1 to 4 would make common cause and manhandle him. However, none out of the deceased and P. Ws, 1 to 4 was armed with any weapon. It is true that a right of private defence of the body accrued to the accused under the first clause ot Section 97 I. P. C., during his scuffle with the deceased. But he had no reason to apprehend an assault of any of the descriptions in Section 100 I. P. C., and the right ceased when his scuffle with the deceased terminated.
11. In Re Garugu Ramayya, 8 Ind. Cas. 1088 (Mad), the facts were that three men trespassed by night into the house of the accused, seized him and tried to drag him forcibly out of the house. There was a scuffle between the accused and his assailants. The latter were unarmed and the accused had no reason to believe that he was in danger of grievous hurt but he believed that he could not escape from his assailants without using a knife which he picked up and used, stabbing one to death and wounding another of his three assailants. On his trial for murder, the accused did not plead that he had used the knife in his self-defence.
A Division Bench of the Madras High Court held that as it was in evidence that the accused had to struggle against three persons, the court was not only entitled but bound to take into consideration the accused's right of self-defence and to decide the case on the facts proved in his favour, though he had not set up those facts in framing his defence. On the facts the accused was found to have exceeded his right of private defence but being within the 2nd exception to Section 300, he was not found guilty of murder. He was convicted under Section 304, I. P. C., and sentenced to rigorous imprisonment for seven years.
12. In our opinion, the facts here are similar. While the deceased was holding the accused by the hair and was exchanging blows with him, P. Ws. 1 to 4 who were closely related to the deceased approached with the intention of helping the deceased. The accused might well have thought that he could not escape, except by using, against the deceased before P. Ws. 1 to 4 pounced upon him, the pen knife (M.O.1) : which happened to be in his possession. Although the accused acted in the exercise of his right ot private defence of the body, we are of the opinion that he exceeded that right and comes under Exception (2) to Section 300 I. P. C.
13. Sri N, Raghavarao relied on Pheli v. State and Souri Antony v. State of Kerala 1980 Mad L. J. (Cr) 272 (Kerala) and urged the accused acted within the limits of his right of private defence. In A. I. R, 1952 Raj 158 the accused who was armed with a sword cut the deceased only on the leg. The view taken by Wanchoo C. J. (as he then was) was that the accused had no intention to cause the victim's death but his whole intention was only to disable the deceased from repeating the attack on him. In 1960 Mad L. J. (Cr) 272 (Kerala) the accused had to grapple with the deceased for some time on the ground and during the course of the grappling, the deceased caught hold of the testicles. It was in that situation that the accused stabbed the deceased. In our opinion, the facts of these two cases are distinguishable from the facts of the present case.
14. On the question whether the accused had grave and sudden provocation Sri N. Raghavarao has relied on Nagalu v. Emperor A.I.R. 1928 Mad 136 for the position that the deceased by seizing the tuft of the accused gave the latter grave and sudden provocation. In that case, the murdered man had abused the women of the house of the accused earlier on the same day during the accused's absence. The accused was informed of it when he returned home. Then the accused's father was beaten by the deceased's brother immediately before the deceased caught hold of the accused's tuft of hair and gave him blows with his fist. It was in this context that Wallace J. found that the seizing of the tuft by the deceased gave rise to grave and sudden provocation of the accused.
As observed by His Lordship Subba Rao J. in K. M. Nanavati v. State of Maharashtra : AIR1962SC605 the mental back-ground created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence; but the test of 'grave and sudden' provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked to lose his self-control. In this connection, it may be useful to recall Vis-count Simon's observation in Holmes v. Director of Public Prosecutions 1943 AC 588 '...he law has to reconcile respect for the sanctity of human life with recognition of the effect of provocation on human frailty.' The limit of the concession to human frailty has to be judged by regarding the accused as a reasonable man. We do not think that the decision in A. I. R. 1928 Mad. 136 intends to lay down that catching a person's tuft of hair by way of assault, amounts to grave and sudden provocation in all circumstances. Here the deceased questioned the accused as to why the latter had beaten his son. The accused did not regret his act but give a challenging reply provoking the deceased to catch hold of his tuft and they began to exchange blows. There was mutual provocation and we do not consider that the provocation to the accused was so grave as to bring his act of stabbing the deceased within Exception I to Section 300 I. P. C. In our opinion, the accused's act of causing the deceased's death comes within Exception (2) to Section 300 I. P. C.
We, therefore, set aside the conviction and sentence under Section 302 I. P. C. , and find the accused guilty under Section 304, Part I, I. P. C., and sentence him to rigorous imprisonment for seven years. The injuries caused to P. Ws. 1 and 2 were not for the purpose of defence but were for the purpose of escaping apprehension. The convictions and sentences under Sections 324 and 323 I. P. C, in respect of the injuries caused to P. Ws. 1 and 2 respectively are confirmed. The sentence under Section 304 I. P. C. Part I, I. P. C. will run concurrently with the sentences under Sections 324 and 323 I. P. C.