C.V. Rane, J.
1. This is an appeal to challenge the order of conviction and sentence passed by the learned 2nd Extra Additional Sessions Judge. Baroda, in Sessions Case No. 42/71 on 15th May 1971. The learned Judge has convicted the accused-appellant of an offence punishable under Section 304 Part I of the Indian Penal Code and sentenced him to suffer R. I. for seven years. The prosecution story in the above case, was in brief, as under:
2. The houses of the accused and the deceased Nivrutirao are situated near each other at Baroda. On the previous day of the incident i.e. on 7-11-1970 the wife of the accused had assaulted the wife of Nivrutirao, Nivrutirao returned home on that day at about 1 a. m. On the next day in the morning when he sot up. his wife Narmada was lying in a bed due to the injuries caused to her by the wife of the accused. In the morning he went to the house of the accused and told him that, his wife and daughter had beaten his wife Narmada on the previous day. After talking for some time they started abusing and grappling with each other. At one stage, the accused felled the deceased to the ground and mounted on his body. The deceased however got himself extricated from the grip of the accused and sat over his body keeping both his hands on the latter's shoulders. While the accused was lying in that position, he took out penknife from his pocket and gave two blows to the deceased. At this point of the incident some persons intervened and they were separated. The deceased was removed to the hospital where, he was found to be dead. The first information report was given by Eknath, brother of the deceased. The accused was arrested on that very day. After committal proceedings, the accused was tried for the offence punishable under Section 302 of the Indian Penal Code by the learned 2nd Extra Additional Sessions Judge. Baroda.
3. According to the defence version it was not the accused who had stabbed the deceased and in the alternative, it was pleaded that the accused had caused the injuries which resulted in the death of Nivrutirao in the exercise of the right of private defence. The learned Additional Sessions Judge however did not accept either of the aforesaid two versions and he held the accused guiltv of the offence punishable under Section 304 Part I of the Indian Penal Code.
4. It appears that the main prosecution witness in the case is Mahemudkhan who stays near the houses of the accused and the deceased. According to him. on the day of the incident when he was sitting at his house at about 7 or 7.15 A. M. in the morning, the deceased went to the house of the accused and told him that, his wife had broken the head of his wife on the previous day. There was exchange of words between them. The accused got excited and both of them started grappling with each other. Both of them fell to the ground and at that time the accused was over the deceased. The deceased however, got himself freed from the grip of the accused and sat over his body. The accused took out the penknife and inflicted a blow on the left side of the chest of the deceased. He also save one blow on his left shoulder. Witnesses intervened and separated them. When the deceased was being taken to his house he fell down. Thereafter, he was removed to the hospital in a rickshaw. Even though in the Court of the learned Additional Sessions Judge the accused had taken the stand that, it was not he who had stabbed the deceased, it is conceded by the learned advocate for the appellant that, there is ample evidence to show that it was the accused who was the author of the injuries found on the body of the deceased. In these circumstances, the only question that remains to be decided in the appeal is as to whether the accused had caused the above injuries in the exercise of the right of private defence or whether, he has committed the offence of which he has been convicted by the learned Additional Sessions Judge.
5. The evidence of P. W. 2 Mahmudkhan clearly shows that it was the deceased who had gone to the house of the accused and that hot words were exchanged between them at that place. It is further found from the evidence of Mahmudkhan that, the accused took out the small penknife from his pocket only at the time when, he was lying on the around and the deceased had mounted on his body. He has also made it clear that, at the time when the accused gave the blows to the deceased the latter's two hands were on the shoulders of the accused. It also appears from his evidence that, the accused was trying to push the deceased aside with his hands but. he could not succeed in doing so. as the deceased's hands were on his shoulders. The above circumstance clearly shows that the accused had no alternative but to take out the penknife from his pocket in order to give a blow to the deceased for the purpose of saying his own life. In this connection, it should be remembered that, the relations between the accused and the deceased had been considerably strained, because of the incident that took place on the previous day. It is also found from the evidence on the record that, abuses were exchanged between them and that, the grappling went on for sufficiently long time. In these circumstances, it was natural for the accused to apprehend danger to his life and in that case it is difficult to say that, he was not justified in causing the injuries that he did in the exercise of right of private defence.
6. It is not the case of the prosecution that. P. W. 2 Mahmudkhan is. trying to help the accused by some sort of exaggeration. As admitted by the witness, the wife and daughter of the accused had made certain objectionable allegations against Mahmudkhan. Under these circumstances it was not at all like-iv that, he would make any false statement in order to help the accused. Considering all these circumstances, proper weight should be attached to the evidence of P. W. 2 Mahmudkhan and this aspect is not disputed, by the learned Assistant Government Pleader.
7. Even P. W. 6 Eknath who is the brother of the deceased has to admit that, the accused had given a blow with the penknife to the deceased while the deceased was sitting over the body of the accused who was lying flat on the ground, at the time of the incident. It is. however, surprising to find that even though, according to Eknath he was present at the time of the incident he did not intervene during the scuffle. This conduct of the witness gives rise to an inference that, he may not be present at the time of the incident. Even if it is assumed that, he was present at the time of the incident, his evidence is not different in material particulars from that of P. W. 2 Mahmudkhan. Eknath has to admit that, it was only a household penknife which the accused took out from the right pocket of his trouser. According to the prosecution another eve-witness is P. W. 3 Yeshwantrao Pawar. He has however, to admit in his cross-examination that, he had not actually seen the knife blow being given by the accused to the deceased. Thus, in view of the evidence discussed above, it is found that, the accused and the deceased first exchanged abuses and then started grappling9 with each other and at the time when the accused took out the penknife he was lying on the ground and the deceased had actually mounted on his body and he had caught hold of the shoulders of the accused with his hands. The above assault was likely to cause in the mind of the accused, the apprehension, that death or grievous hurt will otherwise be the consequence of such assault.
8. According to the medical evidence there were two incised wounds and two other superficial wounds on the dead body of Nivruti. The description of injuries Nos. 1 and 2 as given in the postmortem notes is as under:
1. An oblique incised wound 1/2' x 1/6' X deep on left side chest in the 3rd intercostal space near left sternal border. On exploration about 2' deep.
2. Incised wound l'xl/4'x muscle deep on left side shoulder, back.' It is not disputed that, it was only injury No. 1' that resulted in the death of Nivrutirao. In the circumstances in which, the accused caused injury No. 1 it cannot be said with certainty that it was his intention to give that particular blow only on the chest of Navruti. In order to find out the intention with which the accused save the above blow it is necessary to bear in mind the apprehension that was uppermost in his mind at the time when, he gave that blow. In this connection the important circumstance to be noted is that, even though, there was a penknife in the pocket of the accused he did not try to use it for a long time and it is found from the evidence that, it was only when he was felled to the ground and Nivruti had actually caught hold of his shoulders while he was lying on the ground that he took out the penknife from the pocket of his trouser and gave blows with it to Nivruti. The above circumstance gives rise to a strong presumption that, the accused was compelled to take out the Penknife from the Docket of his trouser and give blows with it to Nivruti for the purpose of saving his own life or at any rate for preventing Nivruti from causing grievous hurt to him.
9. According to Section 100 of the Indian Penal Code:
The right of private defence of the body extends, under the restrictions mentioned in Section 99. to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely; (i) such and assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; (ii) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault' (only the relevant clauses quoted here). In the present case, it is found from the evidence on record that Nivruti had deliberately gone to the house of the accused probably for scolding him for the injuries caused by his wife and daughter to his wife. The circumstance that Nivruti and the accused while Prapnling with each other went unto a lone distance from the place where, they first started grappling shows the seriousness of the assault. In the face of such an assault, it can be reasonably inferred that. the circumstance that Nivruti had felled the accused to the ground and firmly caught hold of his shoulders: while actually sitting on his body was such as would have reasonably caused the apprehension in his mind that, death, by throttling or otherwise grievous hurt would be the consequence if. he did not act swiftly in order to defend himself and in that case, the act of the accused, in giving a blow on the chest of Nivruti would be covered by Section 100 of the Indian Penal Code. In the circumstances in which, the accused had given the above blow, it was also likely that it accidentally hit Nivruti on his chest as would be evident from the fact that, while being in a state of panic, he had to take out the penknife from the Docket of his trouser and use it at the time when he was lying in an awkward position on the ground and Nivruti was sitting on his body. The second injury is however, triviall. Under these circumstances, it is difficult to say that, he had inflicted more harm than it was necessary to inflict for the purpose of his defence, as contemplated by Section 99 of the Indian Penal Code. That being so. he cannot be held guiltv of the offence punishable under Section 304 Part I of the Indian Penal Code or of any other offence. The above view is sun-ported by the decision in the case of Dominic v. State of Kerala : 1971CriLJ1057 . cited by the learned advocate for the appellant accused.
10. According to the learned Assistant Govt. Pleader however there is no evidence to show that, it was Nivruti who was the aggressor and hence, this was only a case of mutual fight in which, neither party could claim the right of private defence. The evidence of Mahmudkhan shows that, Nivruti had deliberately pone to the house of the accused and picked up the quarrel as detailed above. The mere circumstance that, he was unarmed when he went to the house of the accused does not make any difference in view of the subsequent events which show that, he was bent upon assaulting the accused. There is nothing in the law of private defence to suggest that, the right of Private defence of body cannot be claimed against an assailant who is not armed with some sort of weapon. Looking to the plain language of Section 100 of the Indian Penal Code it appears that the question whether, a person has a right of private defence in a given case depends on the manner in and the ferocity with which he is attacked and the apprehension in his mind resulting from such an attack and not on the question whether, he was armed or otherwise. If. in view of the manner of attack he has a genuine apprehension that, the person assaulting him would either cause his death or grievous hurt to him. he would be justified in causing the death of his assailant in exercise of the right of private defence irrespective of the fact whether the assailant was armed or not. In the present case, in view of the circumstances and the manner in which, the accused was attacked, it would be difficult to say that, he had no genuine apprehension of danger to his life by throttling or otherwise or of grievous hurt. It is not the case of the prosecution that, it was the accused who started the quarrel and in view of the fact that, it was his wife who had assaulted the wife of Nivruti on the previous day. it can be reasonably inferred that the deceased had some cause for starting the quarrel. Thus, considering from all points of view. it appears that the accused was justified in causing the above injuries to Nivruti in exercise of the right of private defence.
11. The learned Additional Sessions Judge has however, disallowed the plea of the right of private defence. His observations on the point are as follows:
But. in my opinion such a theory is not plausible. Accused himself does not state so. The statements of witnesses do not bring out the right of self defence.
The reasons given by him for not accepting the plea of the right of private defence show that, he has not considered the question in its proper perspective. According to the law on the point which is well settled, the right of self defence need not be specifically pleaded. A person taking the plea of the right of private defence is also not required to adduce evidence in support of his plea, but he can establish that plea by taking recourse to the prosecution evidence itself. In the present case, as observed above, there are sufficient reasons to hold that the accused had acted in exercise of the right of private defence of body and hence, the finding of the learned Additional Sessions Judge holding the accused guiltv of the offence under Section 304 Part I of the Indian Penal Code cannot be sustained.
12. The appeal is therefore allowed. The order of conviction and sentence passed by the learned 2nd Extra Additional Sessions Judge. Baroda in the above case is set aside and the accused is acquitted of the offence punishable under Section 304 Part I of the Indian Penal Code. He should be set at liberty forthwith.