K. Sadasivan, J.
1. The appellant Raman Raghavan stands convicted by the Additional Sessions Judge of Quilon under Section 304, I.P.C., and sentenced to R.I. for 7 years. He was charged with, having committed the murder of one Joshuva alias Thangachan by stabbing him in front of a bunk shop conducted by the accused. Deceased Joshuva at about 7 p.m. on 18.2.1966 had gone to the accused's shop and purchased therefrom a matchbox and some bee-dies worth in all 10 pies. He had no cash with him, but the accused wanted the price to be paid then and there. Joshua said that he would pay the amount the next day. But the accused was not amenable. He demanded the matchbox and the bee-dies back, which Joshuva considered as an insult offered to him. Thereupon, a wordy altercation ensued between them which ultimately culminated in the stabbing of Joshuva by the accused with a knife which was available in the shop for cutting arecanuts. Three stabs were inflicted on him with the knife and after the stabbing the accused escaped from the scene with the weapon.
(After referring to the evidence, the Judgment proceeded:-) The learned Additional Sessions Judge on a consideration of the evidence has found that the right of private defence was exceeded by the accused, and accordingly, he has convicted him under Section 304, I.P.C. The learned Judge has, however, not specified to which Dart of Section 304 the offence would fall.
2. On a reappraisal of the evidence and the probabilities of the case, I am persuaded to the conclusion that the learned Additional Sessions Judge has gone wrong in finding that the right of private defence was exceeded by the accused. On the question whether the right of private defence was available to the accused the findings entered by the learned Judge are conflicting. In paragraph 14 of the judgment for instance, the learned Judge has entered the definite finding that no private defence was available to the accused. To quote the learned Judge's own words:
Hence there is no right of private defence in favour of the accused to have caused a deadly stab on the deceased.
In paragraph 15, on the other hand, the learned Judge would enter a finding just the other way. He would observe:
My finding is that the accused had the right of self-defence, but not to the extent of causing the death of the assailant.
(After discussing the evidence, the judgment proceeded:-) Thus according to the learned Judge the evidence of P.W. 2 is acceptable and when that evidence is accepted, the position would itself to this,, namely, that the deceased had got flared up when the accused refused to sell him the articles on credit and not only that, he hurled abusive epithets at him but also dealt some blows on him. It was then I that the knife was used by him. It goes without saying that a person placed in such circumstances would entertain the fear that his life would be in danger unless force was used by him in retaliation. There is also the fact that the deceased was at the time accompanied by P.Ws. 2 and 3 and that would have aggravated his fear that all the three had come to make a joint attack on him. In evaluating the right of private defence which, according to the learned Judge was already available to the accused the learned Judge, I am afraid, has fallen himself into error of weighing the right in golden scales. The standard in such circumstances is not the standard of a cool bystander as has been pointed out time and again in reported decisions. The actual assault is not what matters, but it is the apprehension in the mind of the accused that has to be taken into consideration. The observation of the learned Judge that 'beating by the hand even on the face would not have caused a reasonable apprehension in the mind of the accused that there was a danger of grievous hurt being caused' is out of place. How the accused's mind was working at the time cannot be gauged by a theoretical appraisal of the situation by a bystander. The learned Judge has also discredited the prosecution version that the accused chased the deceased and stabbed him. The learned Judge would say-
It does not appear to me that the deceased after beating the accused made a retreat and the accused followed him and stabbed him.
The apprehension entertained by the accused on seeing P.Ws, 2 and 3 by the side of the deceased, has been characterised by the learned Judge as 'some unfounded apprehension'. This is a mere surmise unwarranted by the circumstances of the case. When once it is found that the right of private defence was available to the accused it would be unnecessary and wasteful for the Court to embark upon subtleties as to the modulation of the right, as also to indulge in speculative thoughts on the scope and limits of the right. The learned Judge's finding that the right was exceeded cannot stand in any event.
3. In the result, I hold that the accused was perfectly protected by the right of private defence and I set aside the conviction and sentence passed on the accused and acquit him. He will be set at liberty forthwith.