R.L. Gupta, J.
1. This appeal has been preferred by Khemsingh against the judgment passed by the Sessions Judge, Udaipur on April 17, 1972 by which he convicted the appellant for the offence under Section 302, Indian Penal Code and sentenced to imprisonment for life for the murder of his own cousin Asu Singh.
2. The deceased Asu singh alias Asiya & the appellant were cousins. On the day of incident, that is, August 22, 1971 at about 12 noon both of them were grazing their bullocks in Bor-Ki-Kudi Ki-Magri. The bullocks belonging to Khem Singh entered the field of Asu Singh for grazing. Asu Singh complained to Khem Singh that he has put his bullocks in his field. Khemsingh asserted that the field also belonged to him. This verbal altercation turned into grappling between them. Mst. Bhoori (P.W. 2) and Mst. Dakhu (P.W. 3), who were present near by in their fields, asked them not to fight. The deceased and the appellant then separated. Asu Singh went down the the hillock and Khem Singh climbed up the hillock. While climbing up Khern Singh abused Asu Sirgh, where upon Asu Singh went back towards Khem Singh with a stick (lathi) When Asu Singh reached near Khem Singh, Khem Singh gave a blow with an axe on the right side of the neck of Asu Singh with an axe which Khem Singh had with him. Asu Singh turned back to go down the hillock but fell down and died Mst. Bhoori (PW. 2) and Mst. Dakhu (P.W. 3) raised an alarm which attracted Kana, who also reached there Mst Dakhu (P.W. 3) narrated to him what had happened. Kana went to inform Puran Singh, the father of Asu Singh, at his house but he was not available there. One Panna Singh also went to inform Puran Singh. & while he was going he met Prem Singh (P.W. 1) in the way and told him that Asu Singh was lying dead at Bor-Ki-Kudi and that he was going to inform Puran Singh. While they were talking Puran Singh, father of the deceased Asu Singh, happened to come there. Panna Singh took Puran Singh with him and they reached the spot. Prem Singh first went to his house to leave his bullocks there and thereafter he also went on the spot. Puran Sirgh sent Prem Singh to lodge the report at the Police Station, Bhimand he accordingly lodged the report which is Ex. P.2. The Police reached the spot, prepared the Panchnama. site-pian etc. It also took in its possession a pair of shoes, a small 'lathi' (sticks, a turban and a 'chilam' lying on the spot. The autopsy of the dead body of Asu singh (deceased) was performed by Dr. Kesarimal Solankt on August 23. 1971. His statement which was recorded in the committing court is Ex. P.10. The post mortem report is Ex. P.1. The appellant was arrested on August 24, 1971 At the time of his arrest an axe was with him. This axe & the 'dhoti' & the turben which he was wea. ring at that time were also taken into possession by the Police. The appellant was sent to the judicial lock-up on August 25, 1971 and his confessional statement was recorded on August 30,1971 by the Sub-Divisional Magistrates Bhim, which is Ex P.11.
3. The appellant was charged and tried for the offence under Section 302, Indian Penal Code. He pleaded not guilty. As many as 11 witnesses were examined by the prosecution. Mst. Bhoori (PW 2) and Mst. Dakhu (PW. 3) are the eye-witnesses to the occurrence. PW. 5 Kana who reached the spot soon after the occurrence has deposed that he was told by Mst. Bhoori that it was the appellant who has killed Asu Singh. The statement of the doctor recorded in the committing court Ex. P.10 the confessional stasemem of the accused before the Sub-divisional Magistrate Ex. P.11 and the statement of the accused before the committing court Ex. P.12 were also tendered in evidence.
4. The appellant Khem Singh in his statement recorded under Section 342 Code of Criminal Procedure (1898) admitted that there had been grappling between him and Asu Singh. Asu Singh caught the appellant by the neck and fell him down on the ground 2-3 times, but he did not know what happened thereafter He also admitted that his 'dhoti' and the turban were stained with blood, but they were blood-stained because of the injuries on his elbow and back He also admitted that he was armed with an axe but denied that the axe Ex. P.10 belonged to him. Regarding his statement recorded by the Sub-divisional Magistrate under Section 164, Code of Criminal Procedure he has stated thru he was examined by the Sub divisional Magistrate but denied to have stated he had inflicted the axe below on Asu Singh He denied his statement Ex. P.12 having been made by him before the committing court. He did not produce any evidence in his defence.
5. It has not been disputed that Asu Singh died as a result of homicidal violence. There is the evidence of Mst. Bhoori (PW. 2) and Mst. Dakhu (PW. 3) to the effect that Asu Singh was inflicted 'Kulhari' blow on his neck and as a result of the injury he succumbed on the spot. Dr. Keshari Mal solanki, in his statement Rx P.10, has stated that he had performed the autpsy on the dead body of asu singh on august 23, 1971 and found the following external injuries on his person:
1. Oblique incised wound 4' x 2' x 3' right side of neck, radiating from above downward and forward starting blow right ear lobule.
2. Incised wound 1' x 1/4', 1/4' right ear lower part.
3. Abrasion 1/4' x 1/6' anterior surface or right leg, middle part.
4. Abrasion 1' x 1/4' posterior surface of left elbow joint.
5. Superficial abrasion 10' x 3' lateral surface of the left thigh upper part.
6. On internal examination, he further found the carotid artery and jugular vein cut on account of the incised wound on the right side of the neck. In his opinion the cause of death was syncope due to sever haemorrhage cause by the incised wound on the neck. According to him the death Had taken place within 24 hours of his examination. He has proved the post-mortem report Ex. P.1. He also stated that the injuries Nos. 1 and 2 could have been caused be an axe He was also of the opinion that the injury No. 1 was sufficient in the ordinary course of nature to cause death. He also Stated that the injuries Nos. 3, 4 and 5 could be possible by a fall. Thus it has been fully established that Asu Singh died of the injury received by him on his neck with an axe and his death was due to homicidal violence.
7. The next question that calls for our consideration is whether the Appellant was the author of the fatal injury on the person of Asu Singh? On this point the prosecution has produced Mst. Bhoori (PW. 2) and Mst. Dakhu (PW. 3) as eye witnesses. These witnesses were present at the time of occurrence. According to Mst. Bhoori (PW. 2) Asu Singh (deceased) asked the appellant why he had driven away the bullocks from the field, whereupon.The appellant asked Asu Singh why he had put the bullocks in this field, and. Them not to quarrel andshe ran towards them. While she was at a distance, the deceased and the appellant separated. Asu Singh came down the hillock and Khem Singh climbed up the hillock. Then Khem Singh abused Asu Singh. On this Asu Singh came back towards the appellant with a stick(lathi). The appellant struck a 'kulhari' blow on the right side of the neck of Asu Singh climbed up the hillock putting his Hand on his neck, but he fell down and died. She went near Asu Singh and Has also corroborated the statement of Mst. Bhoori (PW 2). Both these eye- witnesses are independent and their presence at the scenc of occurrence wasNatural Nothing has been elicited in their cross-examination to discredit Their testimony their evidence is further corroborated by the statement of Kana(PW. 5) to whom Mst. Bhoori (PW 2) informed that it was the appellant the medical evidence of Dr. Kesarimal. The learned Sessions Judge held the evidence of the eye-witnesses to be wholly reliable. We have also perused. The evidence of these witnesses. We do not find any infirmity in their evidence Which may cast a doubt on their credibility On the other hand, we are satisfied that their testimony is quite cogent, convincing and wholly reliable. Moreover there is the confessional statement Ex. P.12. which was made by the appellant, before the Sub-divisional Magistrate, Bhim on August 30, 1971. Thus the prosecution has left no doubt in our mind that it was the appellant Khem Singh who inflicted the fatal blow with an axe on the neck of Asu Singh (deceased) and as a result of which Asu Singh died.
8. It has, however been contended before us by the learned Counsel for the appellant that the appellant in not guilty as he had acted in the exercise of his right of private defence of person His contention is that admittedly Asu Singh (deceased) was physically stronger than the appellant. Earlier there had been grappling between the two and in that grappling Asu Singh fell down the appellant 5-7 times and they were separated Subsequently when the heat of passion had not yet subsided Asu Singh ran towards the appellant with a Mathi' in his hand in a mood of anger and the appellant having been put in that situation apprehended his death or atleast a grievous injury at the hands of Asu Singh, therefore, the appellant in his right of private defence inflicted the axe blow which unfortunately fell on the neck of Asu Singh deceased. It is also in evidence that the appellant received a number of injuries on his person in this incident It has, therefore, been urged by the learned Counsel for the appellant that the appellant gave an axe blow in the exercise of his right of private defence He had relied on Dominie v. State of Kerala : 1971CriLJ1057 . In that case George killed his brother Dominic. It was found that Dominic was aggressor and when he was picking up a large piece of stone, George had a teasonable apprehension that Dominic would kill him or would cause him grievous hurt. Dominic was picking up a stone of a dangerous size, The previous incidence of quarrels in the past was also there.
9. Whether aright of private defence is available or not to the accused is a question of fact and is to be adjudged in the light of the facts and circumstances of each case. It is true that in proving such a right the burden on the accused is not as onerous as that which lies on the prosecution to prove its case. While the prosecution is required to prove its case beyond reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability The accused who pleads an exception is entitled to be acquitted, if upon a consideration of the evidence as a whole reasonable doubt is created in the mind of the court about the guilt of the accused. The accused even if he fails to discharge his duty fully by establishing the existence of an exception, may get the benefit of the exception indirectly when the prosecution fails in its duty to eliminate genuine doubt about his guilt introduced by the accused.
10. This point i.e the right of private defence was also contended before the learned Sessions Judge, but he did not accept this contention of the accused. It was held by the learned Sessions Judge as a fact that in the facts and circumstances of this case Khem Singh had no right of private defence. According to him the quarrel arose all of a sudden about the grazing of bullocks in the field. Both of them grappled. In the course of that grappling Khem Singh received injuries which were just bruises. Thereafter they separated It was Khem Singh who again abused Am Singh. Ordern account of this abuse he turned back and went towards Khem Singh. Asu Singh had a small stick of 'Babul tree' Ex. 1 which was recovered from the spot. He did not raise the stick to strike the appellant. This 'lathi' which Asu Singh had in his hand at the time was as a matter of fact not a 'lathi' but just a small stick and it could not be said that in the circumstances the appellant could have apprehended death or a grievous hurt According to the learned Sessions Judge such a stick could not have caused a grievous injury, much less an apprehension of death. In these circumstances the appellant could not claim any right of private defence. Moreover, according to the learned Sessions Judge there was mutual fight and the question of right of private defence does not arise in such a sudden and mutual fight.
11. We have given our anxious consideration to this contention of the learned Counsel It may be said that the deceased and the accused-appellant were cousins and that they had no previous enimosity. Asu Singh could not be expected to entertain any idea to cause the death of the appellant. It was all of a sudden that both the cousins quarreled on a trifling matter regarding grazing of the bullocks in the field and they grappled and separated. Thereafter Khem Singh abused Asu Singh Asu Singh, who had a Mathi' in his hand, ran towards Khem Singh. The appellant gave a fatal blow with an axe on the neck of Asu Singh. In the circumstances of the case we do not feel inclined to hold that the appellant could have a reasonable aprehension of death, but he could have the apprehension of receiving injuries at the hands of the deceased Asu Singh as he came back in a challenging mood towards the accused with a small lathi in his hand. However, it is a necessary incidence of the right of private defence that the force used must bear a reasonable proportion to the injury to be averted Undoubtedly, a person in fear of his life is not expected to modulate his defence step by step or tier, by tier but Section 99 of the Indian Penal Code provides in terms clear and categorical that the right in no case extends to the infliction of more harm than it is necessary for the purpose of defence. In the present case there was simply a grappling between the two cousins on a trifling matter and during that grappling some minor abrasions were received by both of them. Thereafter Asu Singh re fired but Khem Singh appellant abused him and Asu Singh came towards him in an enraged and challenging mood with a stick. The appellant struck a 'kulhari' blow on a vital part of the body of the deceased as a result of which the deceased died on the spot.
12. The law of self defence provides that when a person is suddenly faced with an attack to his person or property and immediate aid from the State machinery is not readily available, that person is entitled to defend himself and resist the attack and to inflict on the assailant any harm that is necessary for the purpose of defence. The necessary corollary to this is that the violence which a person defending himself is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and must not exceed its legitimate purpose, and that the exercise of the right of private defence must not be malicious or vindictive It is true that in judging the conduct of a person, who claims the right of private defence, allowance has necessarily to be made for feelings at the relevant time When a person is faced with an assault that inevitably creates in his mind some excitement and confusion At such a moment, the upper most feeling in his mind is to ward off the danger and to save himself against the assault and so he would naturally be anxious to strike a decisive blow in the exercise of his light. It is true that in striking a decisive blow, he must not use more force than in reasonably necessary.
13. In the present case, the appellant and the deceased who were cousins, quarrelled on a matter which can be said to be trifling and grappled with each other. Asu Singh fell down the appellant but they separated and went in different directions. Khem Singh appellant abused the deceased on which the deceased turned back with a lalhi in his hand. That lathi was, however, not a lathi in strict sense but was a stick. This might have caused a reasonable apprehension of assault in the mind of the appellant when the deceased turned back with a stick and the appellant was to face an assault, but the appellant could not be said to have the apprehension of death or of receiving grievous injury. The appellant struck a decisive blow with a kulhari on a vital part of the body of the deceased in cider to ward off the danger of assault In the circumstances, it cannot be said that the appellant did not use more force than was reasonably necessary. In fact, the appellant did use more force than was reasonably necessary in the circumstances of the case. Thus the appellant caused the dearh of the deceased Asu Singh by exceeding his right of private defence. An offence of this nature is therefore punishable under part I of Section 304, IPC. Reference may be made in this connection to Munney Khan v. State of M.P. : 1SCR943 . The conviction of the appellant must, therefore, be altered from under Section 302 IPC to one under Section 304 part I, IPC.
14. As a result, the appeal is partly allowed. The conviction of the appellant under Section 302, IPC is set aside and intead the appellant is convicted under the 1st part of Section 304, IPC. In view of the change in the offence, for which the appellant is being punished, we set aside the imprisonment for life and instead award him a sentence of seven years' rigorous imprisonment and a fine of Rs. 200/-, in default of payment of tine he shall further undergo rigorous imprisonment for three months. The appellant is entitled to a claim of set off for the period of detention, if any, undergone b> him during the investigation, inquiry or trial of the case against the term of imprisonment, in view of the provisions of Section 428, Cr.P.C. 1973.