Jagannadha Das, J.
1. The applt. before us, one Ratan Munda, has been convicted under Schedule 04, Penal Code, for having caused the death of one Tuti Munda on the evening of 22-9-1949 & has been sentenced to undergo R-1. for five years.
2. The prosecution ease is as follows : 22-9-1949, was the Nuakhoi day when the villagers were in a festive mood. The deceased who had taken drink on that occasion came out of his house with a Falsia telling his wife that he was going to kill the accused & finish him off that day & ran towards the house of the accused which was about no cubits away. Ha is said to have entered into the house & attempted to assault the accused with the Falsia, but the accused managed to ward off the assault. He straggled with the deceased to wrest away the Falsia from his hands. There was a tussle between the two & ultimately the accused was able to get hold of the Falsia with which he dealt severe blows on the deceased & ran away from the place. After having run away from the place, he is said to have made some extra judicial confessions. The wife of the deceased came to know of this & tan up to the house of the accused, & found bee husband lying dead with serious injuries on his body. She went to p. w. 1 another villager, a relation, who also came & saw the dead body. P.W. 1 lodged F.I.R. with the police. Thereafter there was the usual investigation & the post mortem examination of the dead body of the deceased.
3. The post mortem report, Ex. 2, & the evidence of the doctor P. W. 7, clearly disclose that the deceased died as a result of having received serious injuries with a weapon like a Falsia which is said to have been used in this case. There is no doubt, therefore, that the deceased died as a result of severe injuries dealt on him with a Falsia. The actual evidence of the prosecution is to the following effect: P.W. 2 the wife of the deceased gives evidence that the deceased started out from his house that evening telling her specifically that he was going to murder the accused with the Falsia in his hand & that he ran towards the house of the accused in spite of her attempt to stop him. P. W. 5 another witness who was near about the house of the accused tending cows says that ha at the time found the deseassd entering into the house of the accused with a 'Falsia in hand saying that he would kill the accused that day, P.W. 8 another witness who happened to be going that way at the time heard the deceased saying that he would finish off the accused says that though he did not see what happened inside the house of the accused, he heard Ghada Ghada noise emaciating from the house of the accused after the deceased went in & that thereafter he left the place out of fear. P. W. 3 who is an eye witness & whose evidence will be presently notioed, also says that the deceased while on the way, before entering the house of the accused was saying that he will finish off the accused that day. Therefore, there can be no doubt on thi3 evidence that the deceased, whatever may have been his reason or motive rushed that evening into the house of the accused with a Falsia in hand to kill the deceased with the same. The evidence, however, of the actual murderous assault by the accused against the deceased is that of P.W. 3 & of another witness by name, Lunda Munda, who was 85;amined in the committing Mag's Ct. but who was not examined in the Sessions Ct. So far as the evidence of the witness, Landa Munda, is concerned, the prosecution attempted to peove by the evidence of P. W. 14 that he was ill. and not able to attend the 06. & that, therefore, his deposition, in the committing Mag 'a 0c. should be admitted in evidence. The learned Ses. J. while being of opinion that the evidence of P. W. 14 was not enough to make out strictly the precondition for the admission of Lunda Munda's evidence under Schedule 3, Evidence Act, still admitted the same & marked it as ex. 14 on the ground that the lawyer for the defence waived his objection to it. This is a wholly irregular procedure. It has been often pointed out that there can be no waiver on the part of the accused in a criminal case as regards any statutory requirements. It is a matter beyond dispute that under Schedule 3 a previous deposition cannot be marked unless the conditions for its admission are made out. It is no doubt true that in a civil proceeding, strict proof of these conditions can be waived; that is so only because in a civil proceeding the facts required to be proved can be admitted by the opposite party & a waiver in a civil proceeding amounts to proof by waiver. This principle has been very clearly reiterated by their Lordships of the Privy Council in Ghaniohal Singh v. Emperor, A.I.R. (33) 1946 P. C. 1 : (I. L. R. (1945) Kar. P. G. 366), where they point 'out that the conditions of Schedule 3, Evidence Act, must be strictly proved & that they cannot be waived in a criminal proceeding. We must, therefore, rule out the deposition of Lunda Munda in the Committing Ct. marked as Ex. 14. The evidence of P. W. 3 who is the only other eye witness to the assault by the accused against the deceased shows that he saw the accused inflicting several blows on the deceased with a Falsia when the deceased was in a lying posture at the entrance of the house of the accused. He says that on seeing the same he himself ran away out of fear. On this evidence which there is no reason to doubt, it must be taken as proved that the deceased died as a result of murderous assault by the accused with a Falsia when as a fast the deceased ran up to the accused with a Falsia with the avowed object of killing him.
4. It may be mentioned that there is in this case an extra judicial confession under Schedule 64, Cr. P. C., made before the Mag. P. W. 11 & marked as Ex. 3. The learned Ses. J. has ruled out the judicial confession as inadmissible, but has to some extent; relied on the extra judicial 'confession made to P. W. 6. It is unnecessary, however, in this case to make use either of the extra judicial confession or the judicial confession because the evidence of the witnesses notified above is quite clear & satisfactory to establish that the accused dealt serious & severe Mows on the deceased as a result of which he died on the spot.
5. There is no direct evidence of what exactly happened after the deceased rushed into the house of the accused with a Falsia in hand, & before p. w. 3 found the accused dealing blows on the deceased with a Falsia in front of his house. This is only a matter for reasonable inference from the circumstances. The accused in his statement says that the deceased gave him a blow with the Falsia & that only the blunt side of the blade thereof struck him, in his attempt to ward it off, that he fell down as a result thereof & that there was tussle for the Falsia between them & that he succeeded in snatching it away. This version appears very likely having regard to the evidence & the circumstances & may be taken as true. The accused, however, does not admit having himself assaulted the deceased with the Falsia but says that ha ran away from the place after he secured possession of the Falsia. His suggestion is that in the course of the struggle for the Falsia, the deceased may have received injuries & died as a result thereof. This, however, is most unlikely having regard to the number & nature of the injuries disclosed in the post mortem certificate & must be rejected in view of the evidence of P. W. 2. The denial by the accused of any assault by him can only be ascribed to nervousness. At this stage we may notice that while the post mortem certificate shows as many as 15 injuries, it unfortunately does not appear therefrom, nor has it been elicited from the doctor, P. W. 7, whether all of them were ante mortem. The evidence was probably intended to convey the idea that all the injuries were ante mortem but this is a matter which in a casa of this kind should have been expressly clarified. In the evidence as recorded there is certainly room for the argument on behalf of the accused that at least some of the injuries were post mortem in the sense that the accused may have inflicted one fatal blow which immediately brought about the death of the deceased & that he may have dealt all other blows actually after the life was extinct though still under a feeling that the deceased may have been alive.
6. However that may be, the real question that arises in this case is whether or not the accused is in the circumstances of the case protected completely by the exercise of the right of private defence. The learned Ses. J. was of the view that though the circumstances show that the accused had the right of .private defence, he exceeded it by dealing quite a number of fatal blows mercilessly on the deceased after the earlier blow or blows brought him down to the ground, that the infliction of the injuries when the deceased was in a lying condition was unjustified & that this amounts to excess of the right of private defence. It is necessary in the first instance to point out that in making the assumption that the deceased was dealt a fatal blow when standing which brought him to a lying condition the learned Judge acted on the evidence, Ex. 14, which we have ruled out as inadmissible. Once that is excluded, there is no other evidence on which it can be said that the deceased was brought into lying condition in the first instance by an earlier fatal blow given while standing. It is possible that the accused dealt all the blows only when the deceased fell down during the course of the straggle between him & the deceased for the possession of the Falsia which he succeeded in securing. The limits of the exercise of the right of private defence in such cases are indicated in Sections 104 & 102, I. P. C. As is clear from the evidence there was a definite attempt by the deceased to kill the accused with the Falsia. The accused was perfectly justified in resisting that aggressive attack on him by taking the Falsia from out of the deceased & inflicting injuries on him to the extent that may be required according to hit assessment of the circumstances at the time for the purpose of preventing any further assault on himself by the deceased. If in the course of it he kills the originally aggressive person a. 100 I. P. C. completely protects it. While no doubt it is true that the exercise of the right of private defence subsists only so long as an apprehension of the aggressive attack continues, it is also well settled that a person in the position of the accused at the time who has had to face an aggressive murderous attack by the deceased & who had to struggle with him in order to get possession of the Falsia which was used against him, cannot be expected to exercise any coo) judgment in the situation. His responsibility if not to be judged by any mere meticulous standards. The law on the subject has been laid down in quite a number of cases and it is sufficient to refer to the cases in Dalipsingh v. Emperor, A. I. R. (10) 1923 Lah. 155 : (25 Cr. L. 3. 676), Ahmad Din v. Emperor, A. I. R. (14) 1927 Lah. 194 : (28 Cr. L. J. 252) and Ghheda v. Emperor, A. I. R. (20) 1933 Oudh 380 : (36 Or. L. J. 56). These cases adopt the passage in Mayne's Criminal Law at p. 231 which is the correct law :
'Where the assault has once assumed a dangerous form, every allowance should be made for one, who with the instinct of self-preservation strong upon him, pursues his defence a little further than to a perfectly cool by standar, would seem absolutely necessary. The question in such cases will be, not whether there was an actually continuing danger, but whether there was a reasonable apprehension of such danger.'
The learned Government Advocate argues that having regard to the large number of injuries in this case, a good many of which each by itself might have proved fatal, the accused as soon as he found that he had dealt one fatal injury or probably two, must have desisted from the rest & that the fact of his having persisted in inflicting so many injuries is a clear indication that he was acting out of vindictiveness & anger & not in Self-defence, To adopt this view is to indulge in speculation. We have no means of knowing from the evidence which injury was inflicted earlier & which was inflicted later. We cannot find anything in this case from which we can come to any satisfactory conclusion that the accused inflicted deliberately certain injuries out of mere anger & revenge after the apprehension of an aggressive attack from the deceased passed away. In the circumstances we cannot agree with the learned Ses. J. that the accused had exceeded the limits of private defence.
7. In the result, the accused must be found completely protected by the right of private defence. He is accordingly found not guilty. His appeal must be allowed. The conviction and sentence must be set aside and the accused acquitted,
8. I agree that this appeal be allowed as this is a case of justifiable homicide. I would like to point out, however, that the learned Ses. J. is not correct in ruling out the confession recorded under Schedule 64, Cr. P. C., as inadmissible on the ground that the accused was not asked the motive of his confession. The Code does not require any such question to be put & the Mag. has recorded his reasons why he was satisfied that this is voluntary. The Mag. in Para. 7 of the confession says that the confessant was properly cautioned. Sufficient time was given to him for a cool reflection. There was no extraneous influence operating on him. It is, therefore, believed that he makes a clean breast. The accused was produced before him on 18-10-49, 19-10-49 & again on 20-10-49 on which date his confession was recorded. He was warned on more than one occasion & then he was asked whether he had been influenced or tutored by anybody to make a confession & be was told that the statement, he would make, might be used as evidence against him. The Code does not prescribe any other requirement, not certainly any question relating to the motive of the accused as to why he was going to confess. I have also noticed in the examination of the accused under Schedule 42, Cr. P. C., that the learned Ses. J. put a question regarding the number of injuries on the person of the deceased. The question is as follows:
'The doctor says that there were 15 injuries on the body of the deceased. All those injuries could not have been caused only when the Falsia was being dragged, can you explain how they were caused?'
This question is in the nature of cross examining the accused & should not have been pub. The object of Schedule 42 as has been repeatedly pointed out is to enable the accused to explain any circumstances appearing against him. It is intended to be exploratory rather than inquisitorial. In the present case, however, this question has not prejudiced the accused & therefore,. is not of much consequence.