G.K. Misra, J.
1. The accused was charged under Section 302, I. P. C. but was acquitted. Against the order of acquittal the State has filed this appeal.
2. The prosecution case may be stated in brief. The deceased and the accused were brothers. On 15-12-65 the accused, the deceased, Gunanidhi Guru (P. W. 1) Khetri Guru (P. W. 2) and another went to Bileimunda land to perform Choru Puja. After the performance of the Puna was over, the accused and the deceased took liquor. The deceased then asked the accused to give up possession of the homestead land which he had purchased from him previously. The accused refused to give up that land. A quarrel ensued. In course of the quarrel, the deceased picked up the axe (M. O. I) of the accused, which was lying on the ground, and raised it to assault the accused on the head, P. W. 1 snatched away the axe from the hand of the deceased and threw it to a distance of about 10 cubits. The accused immediately picked it up and dealt a blow with the axe on the left side of the head of the deceased, as a result of which the latter fell down with bleeding injuries. The accused then gave 4 to 5 other blows on the neck of the deceased who died on the spot. The defence is one of denial. The learned Sessions Judge held that the death was homicidal and the accused killed the deceased. He however acquitted the accused (respondent) on the finding that he was protected by the right of private defence.
3. The finding that the death was homicidal is not assailed before us. The Doctor (P. W. 3) held the post-mortem examination. He found 6 external incised injuries on the deceased. All the injuries were ante mortem in nature, and the death was due to shock and haemorrhage resulting from injuries Nos. 1 and 5 which were as follows:--
Injury No. 1 -- Incised wound Vs' above the left ear in the mastoid region 2 1/2' x 1/2' x 1 1/4'.
Injury No. 5 -- Incised wound on the right sterno clavicular joint 2' x 1/2' x 1 1/2'
In cross-examination he said that injury No. 1 was possibly caused first and injury No. 6 last. On the aforesaid evidence there is no escape from the conclusion that the death was homicidal.
4. Both the learned Standing Counsel and Mr. Nanda do not assail the finding of the learned Sessions Judge that accused killed the deceased. It is therefore not necessary to refer to the various evidence on the basis of which the learned Judge held that the accused killed the deceased.
5. On the evidence the learned Judge recorded the following findings. The deceased was the aggressor. He picked up M. O. I. and raised it to assault the accused on his head. P. W. 1 snatched it way and threw it to a distance of about 10 cubits. The deceased and the accused were both drunk. The deceased was in a very angry mood and was scolding the accused in filthy language. The other axe M. O. II was near the deceased at a distance of 2 cubits (see P. W. 2) and was available to him. These findings were recorded by the learned Sessions Judge on the evidence of P. Ws. 1 and 2. Both the learned Standing Counsel and Mr. Nanda do not assail the correctness of these conclusions.
6. The question for consideration is whether the accused had any right of private defence of body. It is to benoted that the deceased had raised the axe M. O. I. to strike it on the head of the accused. At that particular point of time the accused must have entertained a reasonable apprehension that death would be caused. Though the axe had been thrown away to a distance of about 10 cubits by P. W. 1, there was another axe M. O. II lying by the side of the deceased at a distance of 2 cubits and the accused must have entertained a reasonable apprehension in the peculiar context that the deceased was in a very angry mood and was scolding him in filthy language, that he might attack the accused with M. O. II again.
It is well known that the mind of the accused at that particular point of time cannot be determined with the detached objectivity prevalent in a court room. In the peculiar situation, in which the accused was landed, he cannot weigh all the circumstances with golden scale. It can therefore be legitimately inferred that the accused entertained a reasonable apprehension in his mind that death or grievous hurt would be caused to him unless he killed the deceased. The accused was therefore protected by the right of private defence when he seized M. O. I. and gave the first stroke to the deceased. If the deceased had died with the first stroke, the accused would have been fully protected' by Section 100, I. P. C. But in fact by the first stroke the deceased did not die. He fell down defenceless on the ground, and the moment he so fell down there cannot be any reasonable apprehension in the mind of the accused that the danger to his life still continued. Section 99, 4th para, I.P.C. makes it clear that the right of private defence in no case extends to the inflicting of more harm that it is necessary to inflict for the purpose of defence. From the facts and circumstances of this case, it is therefore apparent that the accused gave the 5 further strokes of serious nature after the deceased fell down defenceless on the ground. He accordingly exceeded his right of private defence, and Section 100 I. P. C. would not enure to his benefit. The accused is therefore liable to be convicted.
7. Mr. Nanda however contends that In the peculiar facts and circumstances of this case the offence is one of culpable homicide not amounting to murder under Section 304, I. P. C., Exception 1 to Section 300, runs thus:
'Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.'
It has already been stated that the deceased was in very angry mood. He filthily scolded the accused. He also raised the axe M. O. I. to kill the accused. All these facts were sufficient to give grave and sudden provocation to the accused to the extent of his being deprived of the power of self-control if in such circumstance the accused caused the death of the deceased, Exception 1 to Section 300, I. P. C. in terms applies. We accordingly hold that the offence committed by the accused comes within the mischief of Section 304, I. P. C.
8. For the reasons given above, we set aside the order of acquittal and convict the respondent (accused) under Section 304, I. P. C. and sentence him to undergo R. I. for five years. Appeal is allowed.
9. I agree.