B.K. Patra, J.
1. This is an appeal by the State against an order of the Sessions Judge, Koraput acauittins the respondent who was tried on a charge under Section 302, I. P. C- on the allegation that on the nisht of 14-4-1969 he committed the murder of his two brothers Donauru Muduli and Bineu Muduli.
2. The accused and the deceased are residents of Mouza Tota Ambaguda within the Koraput Police Station. Long before the occurrence they had separated from one another and had divided their family lands. They were also living in three different houses. The two deceased brothers were living in two adioining houses on the southern row of the Sahi, while the house of the accused is situated in the northern row iust in front of the house of his deceased brother Donguru Muduli. In spite of the partition of the lands, the two deceased brothers were constantly quarrelling with the accused demading from the latter some more lands for them and in fact a dav or two before the occurrence, the accused gave them a piece of land from out of his share. This obviously satisfied the two brothers for the timP being because P. W. 4. the widow of the deceased Bingu Muduli has stated that the two deceased brothers celebrated the occasion. But on Saturday preceding the occurrence both the brothers again approached the accused demanding some more lands which on being refused by the latter, there was again a auarrel between the accused on one side and the two other brothers on the other. Again we get it from P. W. 4 that the two brothers threatened the accused to drive him away from the village if he did not comply with the demand. On the morning following this occurrence, the two deceased brothers were found lying dead on the roadone in front of his own housP and the other in front of the house of the accused. Soon thereafter the accused himself went to the police station carrying a blood-stained Tangia. and it is on the basis of information lodged by him that the P. I. R. was drawn up and he was arrested. The Investigating Officer came to the soot and sent the dead bodies for post-mortem examination- the doctor P. W. 6 who conducted the autopsy found on each of the dead bodies an incised wound which according to him caused their death. He opined that the iniuries could be caused by the Tangia M. O. 1 which the accused himself had produced at the Police Station. During investigation, a confessional statement made by the accused (Ext, 4) was recorded by a First Class Magistrate, In due course, the accused was put on his trial on a charge under Section 302 Indian Penal Code.
3. The accused pleaded not euiltv. He stated that when he was sleeping on the outer verandah of his housp on the night of occurrence the two deceased persons came near his house at about midnight and damaged the roof of his house. He got up aid protested, but hp was assaulted with clubs. He. therefore, caught hold of a Tangia and wielded it with a view to protect himself from further onslaughts. While so wielding, the Tangia struck both the deceased persons on their chests and thev fell down on the road. He discovered next morninsr that both of them were dead. He admitted having made a confessional statement to that effect before the Magistrate who recorded his confession. He stated that in the moraine following the occurrence he admitted all the incidents before P. Ws. 4. 5 7. 8 and 9 and told them that he killed his brothers in self defence.
4. P. Ws. 4 and 5, who are the widows of the two deceased persons, and P. Ws. 7. 8 and 9. threP of the villagers deposed that the accused had confessed before them that hp had killed his brothers. But relying on the confessional statement Ext. 4 made by the accused and the evidence of the doctor P- W. 6 as regards the location of the iniuries and the circumstances in which those iniuries could have been caused, learned Sessions Judge, while believing that the two deceased persons died as a result of the iniuries caused to them by the accused, held that the latter in inflicting the iniuries acted in exercise of his rieht of private defence. He, therefore, acauitted the accused. Hence this appeal by the State.
5. There being no dispute that the two deceased persons died as a result of the iniuries inflicted upon them with the Tangia M. O. I by the accused-respondent, the only submission made by the learned Additional Government Advocate in support of the appeal is that the finding of the learned Sessions Judge that the respondent acted in exercise of his right of private defence cannot be supported- There is no eve-witness to the occurrence and the prosecution has relied entirelv on the iudi-cial confession Ext. 4 made by the respondent and on the extra-iudicial confession made by him before P. Ws. 4. 5. 7. 8 and 9. P. W, 4 is the widow of the deceased Bingu Muduli. In point of time it is to this witness that the respondent made his earliest statement on the dav following the occurrence. She has stated that on the early morning following the occurrence, when she saw the accused with a Tangia in his hand, the latter told her that since her husband and Donguru Muduli on the previous night came to attack him with lathis he killed them with the Tangia. It was pointed out by the learned Government Advocate that P. Ws. o, 7. 8 and 9 have stated that the respondent did not tell them that he killed the deceased persons in self defence and that therefore we should not believe the statement of P. W. 4 that the accused told her that he acted in self defence. We are unable to accept this contention- P. W. 4 is the widow of one of the deceased persons and there is no reason whv she should make a false statement with a view to help the accused when he happens to be the person who killed her husband. There is no evidence that when the accused made the statement to P. W. 4, there were also present P. Ws. 5. 7, 8 and 9. In fact, the statements to P. Ws. 7, 8 and 8 were made when the accused was going to the Police Station carrying the blood-stained Tan-gia. There is no evidence to show that P. W. 5 was present when the accused made the statement to P. W. 4. If. therefore in the subseauent statements made by the accused before P. Ws. 5, 7, 8 and 9 he did not specifically state that he acted in the exercise of his right of private defence that does not in any way affect the credibilitv of the statement made by him to P. W. 4. As already indicated, the statement made to P. W. 4 is the earliest of the statements and the respondent stated to P. W- 4 that he acted in exercise of his right of private defence. He had taken the same stand in his confessional statement Ext. 4 made before the Magistrate. This confessional statement is either to be accepted as a whole or re-iected. It is not permissible to dissect it and accept only the inculpatory part and reiect the exculpatory portion of the statement. It is in this context that the evidence of the doctor may be referred to. On examination, he found an incised wound measuring 5' x 2' in line with the. 5th rib on the left side in the midaxillarv area on the body of the deceased Bingu Muduli and an incised wound measuring 5' x 2' situate obliauelv 1' below from the left sterno-clavicular ioint on the left side of the body of Donguru Muduli. In answers to the Questions put by the Court, the doctor stated:
The iniurv on the person of deceased Bingu Muduli is so situated that normally it would not have occurred there in that part of the bodv since that upoer portion of the bodv is protected by the arm lying close to it. In other words if the hand would have been lvini? there, instead it could have sustained the iniurv. So I conclude that at the time of infliction of the iniurv the arm must have not been there, it might have been lifted or otherwise,
X X X XIn case of the other deceased Doneuru Muduli that protection of the arm is not there and the iniurv might be inflicted either in a state of struggle or otherwise. In the case of the iniuries sustained by both the deceased particularly keeping in view the situation of the iniuries and according to the case stated to me that both the iniuries sustained by both the deceased in course of the same occurrence either simultaneously or in auick succession in my opinion, both the deceased must have been at the time moving about, when the injuries were inflicted by one and the same person by means of a tangi.
The evidence of the doctor suscests that when the iniuries were inflicted on the deceased persons their hands were in a raised positiona circumstance which lends support to the statement made by the accused that thev had assaulted him and that with a view to save himself from further assault he took out the taneia and weilded it. We set it from P. W. 4 herself that she found straw lving down in the house of the accused lending corroboration to the statement of the accused that the deceased persons damaged the roof of his house. There is evidence to show that on the night of occurrence the accused was sleeping in the outer verandah of his house and that Bineu Muduli and Donguru Muduli were sleeping inside their respective houses as their houses have no outer verandahs. The fact that their dead bodies were found lying on the road opposite their houses shows that it is thev who came out of their houses and taken in coniunction with the fact that straw from the roof of the house of the accused was lving near his house, sun-ports the case of the accused that Bineu Muduli and Don-guru Muduli were the aggressors. These circumstances also fit in with the evidence of P. W. 4 that thev were auarrelline with the accused demanding from him more lands and that even after the accused parted with some land in their favour, thev demanded from him more, and on his refusal threatened to drive him awav forcibly from the village.
6. It is well established that the accrual of the right of private defence to a person does not depend upon an iniurv being caused to him. Where the facts and circumstances of a particular case indicate that, ihe accused could have had a reasonable apprehension in his mind of a grievous iniurv being caused to him then the right of self-defence becomes available to him. Even though the plea of self-defence may not have been taken;bv the- accused specificallw 'if 'is open to the Court, if on a proper appraisal of the evidence, it comes to the conclusion that the iniurv caused by the accused was inflicted at a time when he was havine reasonable apprehension of a arievous iniurv being caused to him by the deceased, to eive him the benefit of doubt. Having regard to the evidence and circumstances of the case we are satisfied that the rifht of private defence was available to the accused-respondent and that the learned Sessions Judge did not commit an error in coming to the conclusion that in inflicting the iniuries on Doneuru Muduli and Bineu Muduli, the respondent acted in exercise of his right of private defence. In the circumstances, we see no reason to interfere with the order passed by the learned Sessions Judee.
7. The appeal fails and is dismissed. The respondent Rama Muduli should be released forthwith.
8. I agree,