N.K. Das, J.
1. This appeal is directed against acquittal of the respondent who was charged Under Section 302, IPC for committing murder of his brother Ghudka Harijan of village Niohemaska on 19-1-1973 under Thumul-Rampur P. S. in Kalahandi District.
2. Prosecution case is that the deceased and the accused were brothers and they had some difference about shares in the landed property. In the evening of the date of occurrence, there was some altercation 'between them and in course of the quarrel, the respondent challenged the deceased for a trial of strength. When the deceased proceeded to the house of the respondent with a lathi (M.O.I.) to meet the challenge, the respondent dealt a tangi blow on the head of the deceased, in consequence of which the deceased sustained a bleeding injury on his head and was carried to a primary health centre, but he expired on the way while he was being carried to Bhawanipatna Hospital for treatment. P. W. 1, son of the deceased, lodged F. I. R. (Ext. 1). P. W. 9, the Officer-in-Charge, registered the case Under Section 307, IPC and after investigation charge-sheet was submitted.
The plea of the respondent is not guilty of the charge.
3. There is no dispute about the fact that the injury was ante-mortem and death was due to the injury. Though the respondent in 'his statement in Court has stated that both the deceased and he were drunk and were dancing, yet he cannot say how Ghudaka died. But from the evidence of the prosecution witnesses, it appears that both of them were- heavily drunk and they had a quarrel and each challenged the other. P. W. 1, the son of the deceased, states that there was a quarrel and his father went with a lathi to meet the challenge of the respondent. His father suddenly ran out from the house with the lathi. P. W. 4 who was the liquor shop holder and from whose shop both of them had taken liquor has stated that both of them were drunk and they quarrelled with each other. The deceased, rushed towards the respondent with a lathi and went up to his house. He has not actually seen the occurrence. P. W. 7 is the wife of the deceased. She has stated that after taking liquor, the deceased went out with a latihi after opening the door and he was uttering slang words and was in a hot mood. P. W. 5, the Ward Member, has stated that the respondent expressed before him that as the deceased rushed to assault (him, he assaulted the deceased with a tangia.
4. From the aforesaid testimony of the witnesses who consist of the family members of the deceased as well as the independent witnesses, it transpires that both the deceased and the respondent were heavily drunk. There was a quarrel between them. In course of that quarrel, the deceased rushed towards the respondent with a lathi in order to assault jhim and at that time apprehending danger to his life, the respondent assaulted the deceased. Admittedly, the parties are Adivasis and they are volatile in nature. Their temper and sentiment .cannot be judged on the same lines as other persons. When there is apprehension of danger to the life of a person, or there is apprehension of any grievous hurt, one can exercise right of private defence. It has been held by the Supreme Court in George Dominic Varkey v. State of Kerala : 1971CriLJ1057 :
The apprehension is in the mind of the person exercising the right of self-defence and the apprehension is to be ascertained objectively with reference to events and deeds at that crucial time and in the total situation of surrounding circumstances. Broadly stated, the right of private defence rests on three ideas; first, that there must be no more harm inflicted than is necessary for the purpose of defence; secondly, that there must be reasonable apprehension of danger to the body from the attempt or threat to commit some offence, and, thirdly, the right does not commence until there is a reasonable apprehension. It is entirely a question of fact in the circumstances of a case as to whether there has been excess of private defence within the meaning of the 4th clause of Section 99 of the Indian Penal Code, namely, that no more harm is inflicted than is necessary for the purpose of defence. No one can be expected to find any pattern of conduct t& meet a particiita' case. Circumstances must show that the court can find that there was apprehension to life or property or of grievous hurt. If It is found that there was apprehension to life or property or of grievous hurt the right of private defence is in operation. The person exercising right of private defence is entitled to stav and overcome the threat.
In that case the antecedents were that a quarrel started and while the deceased bent down to pick up a stone after seeing the accused advancing towards him, the accused assaulted the deceased, which resulted in death. It was held that there was real and immediate danger and in -such circumstances the accused would try to ward off the danger and save himself and he was entitled to stay and defend. The circumstances, as held by the Supreme Court, indicated real apprehension to the body and life of the accused and he acted in a reasonable manner of self defence and did not exceed the right.
5. In view of the aforesaid dictum of the Supreme Court, if the circumstances of the case are taken into consideration, it can safely be inferred that when in course of the quarrel the deceased, being ' provoked, rushed towards the respondent with a lathi, the respondent had the right to stay and defend himself and he retaliated by assaulting the deceased with the weapon which he had in his hand. In such circumstances, we hold that he had the right of private defence and he did not exceed the right.
6. In Munshi Ram v. Delhi Administration, (1968) 2 SCJ 521 : 1968 Cri LJ 806, the Supreme Court has held that even if an accused does not plead self-defence in a prosecution against him, it is open to the Court to consider such a plea if the same could legitimately arise from the evidence and material on record.
In Venkata Siva Subbrayanam v. State of Andhra Pradesh, (1970) 2 SCWR 234 : 1970 Cri LJ 1004, the Supreme Court has observed that the right of private defence serves a social purpose and as observed by the Supreme Court more than once there is nothing more degrading to the human spirit than to run away in face of peril. This right, it ihas further been observed, is basically preventive and not punitive. It is in this background that the provisions of Sections 96 to 106, IPC which deal with the right of private defence ihave to fee construed. According to Section 96 nothing is an offence which is done in the exercise of the right of private defence and Under Section 97 Sub-section to the restrictions contained in Section 99 every person has a right to defend: (1) his own body and the body of any other person against any offence affecting the human body and (2) the property whether moveable or immovable of himself or of any other person against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit these offences. The right of private defence to the body commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as the apprehension of danger to the bodv continues. It has: also been held in the aforesaid decision that even if the plea of self defence has not been taken by the accused, it does not preclude the court from giving to him the benefit of the right of private defence if on proper appraisal of evidence and other relevant materials on record the Court concludes that the circumstances in which he found himself at the relevant time gave him the right to use his instrument in exercise of the right. The aforesaid decision of the Supreme Court clearly establishes that from the evidence on record it is apparent that there was imminent danger to the person of the respondent and as such he had the right of private defence of his person and in course of that taking into consideration the tribe t6 which the respondent 'belongs, we hold that he has not committed any offence.
7. Though we do not agree with the reasonings of the trial court, yet on the aforesaid analysis, we do not find any compelling reason to differ from the ultimate conclusion.
8. In the result, the appeal fails and is dismissed.
R.N. Misra, J.
9. I agree.