Chandra Reddy, J.
1. Criminal Ap. No. 522 of 1951 is a jail appeal preferred by accused 1 in sessions case No. 59 of 1951 against the judgment of the learned Sessions Judge of Trichinopoly, convicting him under Section 304, I. P. C., and sentencing him to three years R. I., while Crl. Ap. No. 237 of 1952 is by the State against the acquittal of accused 2 in the same case. The charge against these two accused and accused 3 and 4, acquitted by the trial court, was that ait of them murdered one Ganesan on 19-11-1950 at about 7 a.m.
2. The case for the prosecution is briefly this. There was long standing animosity between the deceased on the one hand and accused l to 4 on the other and there were a number of clashes between them resulting in complaints and counter-complaints. Because of this ill-feeling between the parties, the deceased always used to carry a 'bitchuva' with him.
3. On the morning of 19-11-1950, when the deceased was going from his house towards the Uyyakondan river, the accused accosted him and asked him why he was collecting men to attack them. Not satisfied with this, the four accused beat the deceased with their hands. The reaction of the deceased to this was to meekly submit and to ask them to beat him further, if they so chose. Just at that time. P. W. 8 happened to pass that way when the deceased shouted out to him that the accused were beating him. P. W. 8 went away in order to fetch some help to the deceased. Meanwhile, accused 3 taunted the deceased by asking him what would he do if he was beaten by him and followed this up by giving him a slap on his cheek. At once, the deceased pulled out the 'bitchuva' (M. O. 1). which he was having in his waist and stabbed accused 3 on the left shoulder. Accused 1 went to the rescue of the latter, which led to the deceased stabbing accused 1 over the right shoulder, the injury thus caused being 1 1/4' x 5/8' x 1/3'. Accused 2, who happened to be nearby, in order to disable the deceased from inflicting any further injuries on accused 1, caught the deceased from behind his waist. Immediately, accused 1 wrenched the 'bitchuva' from the hands of the deceased and inflicted an injury on the back of the deceased, which resulted in his death. The accused, thereupon, ran away from the scene.
4. P. W. 8, who returned to the scene of occurrence with one Olakkan found the deceased lying dead. P. W. 4 informed his brother-in-1aw, P. W. 5 about this occurrence and the latter gave a report; Ex. P. 1, to the Village Munsif. Uponthis, the Village Munslf sent his reports, Exs. P. 5 and P. 6 to the Police and the Magistrate. The Sub-Inspector P. W. 17, on receipt of this information, reached the village at about 10-30 a.m. held an inquest and sent the body for postmortem. He also recovered the 'bitchuva', which was used to stab the deceased from the house of accused 2 on information given by accused 1.
5. The plea of the accused was that it was the conduct of the deceased that was responsible for the whole incident, that on that morning when the accused (?) met them he questioned them as to why a complaint was filed by accused 1 against him and why they showed his house to the police a few days before the occurrence and that he followed it up by stabbing accused3 and that when accused 1 went to the rescue of accused 3, the deceased stabbed accused 1 also on the back and the latter in the exercise of his right of private defence, stabbed the deceased once.
6. The Sessions Judge acquitted accused 3 and4 holding that they did not take any part in the attack on the deceased. So far as accused 2 is concerned, he observed that though he caught the deceased, which facilitated accused 1 giving the fatal blow, he did it only with a view to prevent the deceased from inflicting any further injuries on accused 1 and there was nothing criminal in what he did. For this reason accused 2 was also acquitted. Accused I, in the opinion of the learned Judge, was guilty of an offence-under Section 304, I, P. C., and was sentenced to three years R. I. The reasons given by the learned Sessions Judge for holding him guilty under Section 304, I. P. C., are rather interesting. The learned Judge, after finding that the whole thing took place in a sudden fight which was unpremeditated and that accused 1 did not act in a cruel or an unusual manner or take undue advantage, stated that:
'The accused dealt a stab in the back just as the deceased had stabbed him in the back and with the same weapon. But the stab of accused 1 went deeper than the steb dealt ,by the deceased. I consider that accused 1 is also entitled to the benefit of exception (2).'
We do not agree with the learned Judge that merely because the stab given by accused 1 is a little deeper than the one caused by the deceased, accused 1 Is guilty of exceeding his right of private defence. In our opinion, accused 1 was entitled to cause the injury which he did in this case in the exercise of his right of private defence. It is not correct to say that a person apprehending danger to life or grievous hurt should inflict an injury of the same nature to the assailant as was caused to him. Under Section 100, I. P. C., the killing of an assailant is justified when the victim of the assault apprehends either death or grievous hurt. The only restriction imposed is that the person exercising the right should not use more force than is reasonably necessary and should not inflict an injury out of all proportion to the injury, which he received or which he was threatened with. It must be noted here that the learned Sessions Judge found that at the time when accused l dealt the fatal blow, he was not out of danger as the deceased might get back the 'bitchuva' into his hands & also that there was no time for him to think coolly before acting. In these circumstances, we think that the conviction of accused 1 under Section 304, I. P. C. is not justified and he is entitled to an acquittal. We, therefore, set aside the conviction, and sentence passed on the appellant.
7. As regards the appeal filed by the state, we do not think that the order acquitting accused 2 calls for interference. We have found that accused 1 was justified in inflicting the Injury on the deceased as he was acting in the exercise of his right of private defence. It should be remembered that when accused 2 caught the deceased from behind, it was only with a view to prevent the deceased from inflicting any further injuries on the first accused. Hence accused 2 cannot be said to nave committed any crime in doing so. He did it at great risk to his own person with intent to prevent the deceased from using the 'bitchuva' more freely and causing the death of accused 1. We do not think that this deserves any condemnation. On the other hand we feel that he acted quite rightly in the circumstances of the case and that he does not deserve to be branded a criminal and sent to jail. We are told that accused 2, who is a post-man, has been dismissed after the case was filed against him. In our opinion there are no grounds so far as this case is concerned to merit his dismissal or for not restoring him to his position. We think, he does not deserve to be punished.
8. In the result Crl. Ap. No. 237 of 1952 is dismissed.