(1) The appellant has preferred this appeal against his conviction and sentence of seven years rigorous imprisonment under Section 304, Part I, IPC passed by the Sessions Judge, Central Saurashtra.
The prosecution alleged that in the afternoon of 23rd February 1953 Santos, Savita and Rav.it, all children between 10 and 12, had gone to the .grazing ground about half a mile from the village of Dungarpar. The accused was there with his cows and a boy named Arjan was also there. He had an axe with him. A cow belonging to Santok strayed into the accused's herd, Santok went there and there was some altercation as a result of which the accused assaulted her. Santos Savita and Ravat then came away and Santot-complained to tier mother that the appellant had committed an indecent assault on her.
It is proved that she was assaulted no doubt but her report that the assault was an indecent assault does not appear to be correct. The mother reported the matter to Santok's father the deceased Jasa. The deceased got enraged and went to the grazing ground with a spear and an altercation ensued between him and the appellant. The appellant gave two blows with his stick t the deceased, who fell down and his spear also fell away from his hands. He took up the spear and dealt the deceased two blows one on the back and the other on the abdomen which resulted in his death.
A search was instituted by his wife and others and ultimately his body was discovered at a place nearby next evening. Near the dead body wera found the spear blade wrapped in the pachhed of the deceased and also the stick of spear. They were all blood-stained and I he stains axe certified to be stains of human blood.
The post mortem examination of the body revealed two injuries. One of the injuries on the abdomen had perforated he parietal peritoneum and had penetrated the anterior surface of the left lobe of liver. It had also perforated the anterior wall of the stomach. The other injury on the right side of the back was broad at the upper end, but narrowed down like a funnel and had reached near the right seventh rib. The seventh rib was found fractured and the fractured ends of the rib had perforated the parietal pleura.
Both the injuries could be caused by a spear and were sufficient in the ordinary course of nature to cause death. The appellant admitted that the deceased came to him with his spear, but as he was trying to run away the deceased. gave him a thrust with his spear. He denied that he gave any blows to the deceased. According to him after the deceased struck him with the spear, the boy Arjan gave the deceased a blow with his axe on the back of the deceased and the spear fell from his hands. He (the appellant) picked up ie spear but the deceased ran after him and caught hold of the spear. There was a struggle between them and in that struggle the spear accidentally injured the abdomen of the deceased.
The learned Sessions Judge did not accept this defence. The plea of self-defence was urged before him but he held that the appellant had lost the right of self-defence as he had struck the blows after the deceased was disarmed. However he held that the blows were struck under grave and sudden provocation and gave the appellant the benefit of exception 1 to Section 300, I.P.C.
(2) The only witness to the murder is the boy Arjan who is about 12 years of age. According to him the appellant gave two stick blows to the deceased as a result of which he fell down and the spear fell away. The accused then picked up the spear and dealt two blows to the deceased. The accused has an injury on the 'back, which could be caused by a spear, and which supports the appellant's version that the deceased struck Win first, but about this injury Arjan was completely silent. Moreover the deceased had no marks of stick blows which Arjan alleged felled the deceased.
The learned Sessions Judge therefore did not accept Arjan's story but held that the deceased must have struck the appellant with his spear and on receiving the blow the appellant must have turned and snatched the spear from the deceased and thereafter must have delivered the blows to the deceased with it in quick succession. The appellant's learned Advocate contended that the appellant's version should be accepted in view of the fact that Arjan's testimony was found by the learned Judge to be unreliable but we are not Impressed with his arguments and we agree with the learned Judge's reconstruction of the incident.
(3) But one thing is clear from the evidence that the deceased went to the grazing ground in an aggressive spirit. He was told by his wife that the appellant had committed indecent assault on her and the insult which the deceased assumed was offered to his daughter must have greatly enraged him and he took the spear with him probably with the intention of using it and actually struck the appellant with it.
There can be no doubt that when the appellant was given the spear blow, he had the right to defend himself. Arjan's version that the deceased fell down and the spear fell away from him has been rejected by the Special (Sessions ?) Judge. There is no evidence that when the spear was taken from him, the deceased was disabled or did not struggle for recovering the spear from the appellant. There is also no evidence that the deceased's temper had cooled down. On the contrary the probabilities are otherwise and that he must have tried to get back the spear and if he had succeeded, the consequences might well have been very serious for the appellant. It cannot therefore be said with certainty that the moment the deceased was disarmed all apprehension of danger to the appellant necessarily ceased.
The learned Sessions Judge cited several authorities In which it has been held that the accused could not claim the right of private defence of person after the deceased was disarmed. But the question whether the accused had the right of private defence is in every case essentially a question of fact to be decided according to the circumstances of each case and decided cases are not of much help except as indicating generally the principles which should be borne in mind in deciding the question.
We are satisfied that in this case the apprehension of danger to the appellant could not be considered as at an end by the fact that the a) apellant had succeeded in taking away the spear from the deceased and in striking down the deceased it cannot be said that he was not exercising the right of private defence. It is impossible to judge accurately the moment when the right of private defence came to an end. The circumstances however make it probable that the apprehension of danger continued after the deceased was disarmed and the appellant should get the benefit of the 'exception to Section 100, I.P.C.
(4) The appeal is therefore allowed. The appellant's conviction and sentence are set aside and he is ordered to be acquitted.