Krishnaswamy Reddy, J.
1. The appellant, Kavundiappa Goundar who was charged under Section 302, I. P. C. was convicted under Section 304 (Part II) I. P. C. and sentenced to undergo Rule I. for two years by the Additional Sessions Judge, Coimbatore in Sessions Case No. 173 of 1966.
2. The charge against him is that he committed the murder of one Nachimuthu Gounder by stabbing him with a knife at about 4-30 P. M., on 31-7-1966 at Vellala-palayam.
3. The prosecution case is briefly this: Deceased Nachimuthu Gounder was residing at Lekkapurampudur and one of his sisters Pavavee was married to the appellant. Another sister, Kannammal (P. W. 4) was married to one Athappan the son of the junior paternal uncle of the appellant. Athappan died about 1 or 11/2 months before the occurrence. The father-in-law and brother-in-law of P. W. 4 refused to give P. W. 4 the share of her husband's properties to which she was entitled. The appellant and Nachimuthu interceded on behalf of P. W. 4 and got her from her father-in-law 11/2 acres of land. P. W .4 sold gold jewels of about 22 sovereigns in weight and also seven heads of cattle through the appellant and the deceased. From out of the sale proceeds, some debts due by P. W. 4's husband were discharged and in respect of the balance of amount, the deceased wanted that P. W. 4 should lend it to persons named by him. He also wanted that P. W. 4 should lease out her lands to him for a period of seven years. P. W. 4 refused to oblige the deceased saying that she intended doing personal cultivation of her lands. In respect of the cash that she had, she lent it on pronotes to persons named by the appellant. On this account there were misunderstandings between the deceased and the appellant.
3. On the day of occurrence namely 31-7-1966, at about 3 P. M., P. W. 4 and one Kasthuri, daughter of the appellant were talking with P. W. 5 Pavayee in her house. At that time, the daughter of the deceased one Periammal came running to the house of P. W. 5 and informed P. W. 4 that the deceased was coming to Vellala-palayam in order to finish P. W. 4, the appellant and his wife. Within a few minutes thereafter, the deceased came to the house of the appellant abusing him and then began to pelt stones at the house of the appellant. The appellant came out of his house and asked the deceased not to pelt stones. P. W. 7 Karuppanna Goundar, a jutka-driver of Lakkapuram-pudur, who happened to come to Vella-palayam at that time for taking a passenger to Erode Hospital, saw the appellant and the deceased catching hold of each other and quarrelling on the road. P. W. 7 got down from his jutka, separated both of them and led away the deceased asking him as to why he should quarrel with his own brother-in-law.
4. About half an hour or forty-five minutes later, the deceased once again returned to the house of the appellant and began to pelt stones and shout angrily at the appellant. On seeing this, P. W. 4 and the daughter of the appellant took fright, got into the house of the appellant and bolted the door from inside. P. W. 1 Ammasai Gounder, junior paternal uncle of the deceased who was grazing goats at a field obout 75 yards from the house of the appellant and P. W. 2 Komaraswami, the son of the deceased who was baling water in his land about 200 yards away from the house of the appellant, heard a noise from the house of the appellant and they rushed to the house of the appellant to see what the matter was. When they came near the house of the appellant, they saw the appellant and the deceased catching hold of each other and trying to push each other.
At that time, Pavayee, the wife of the appellant pulled the legs of the deceased and tripped him. On the deceased falling down, the appellant took out a pen-knife (M. O. 1) from his waist and gave a stab to the deceased on the right side of his chest. On receipt of the stab he died almost instantaneously. The appellant took his cycle (M. O. 2) from his house and left his house saying that he was going to the police station. While going to the Police Station, the appellant told P. W. 6 Ramanadham whom he met on the way that he stabbed his brother-in-law and that he was going to the Police Station. The appellant informed P. W. 8 also about his going to the Police Station. The appellant told P. W. 8 that when the deceased came to beat him, he had finished him. The appellant went to the house of P. W. 3 Sadayappa Gounder who was residing at Erode and told him that the deceased came to his house fully drunk and created panic and came again after he was specified by the mediators and started quarrelling with him and that the (the appellant) stabbed him.
5. P. W. 3 and the appellant went to the Police Station at about 6 P. M., on 31-7-1966 and P. W. 3 gave a report (Ex. P-l) to P. W. 13, the Inspector of Police. P. W. 13 arrested the appellant and seized M. O. 1 the knife and M. O. 3 dhoti. P. W. 13 proceeded to the Village and held inquest over the dead body of the deceased and examined P. Ws. 1, 2, 4, 6, 8 and others. P. W. 9, Dr. Natarajan of the Government Hospital, Erode, conducted the post-mortem examination on the dead body of the deceased at 11-45 A. M., on 1-8-1966 and found two injuries, namely (1) an oblique, incised wound, 1' x 1/4' bone deep, on the right shoulder blade, just below the spine and 2' from its medial border; and (2) a penetrating wound, 4' x 1/2' starting just below the middle of right collar bone, extending upto the middle of sternum at the level of the 2nd intercostal space, cutting the right side of the sternum, the right 1st and 2nd ribs and directed posteriorly increasing in depth 1' in the lateral end and 4' at the medial end. On dissection, underneath external injury No. 2, P. W. 9 found the right superior venacava to be cut completely. He was of the opinion that the deceased would have died of shock and haemorrhage as a result of injury No. 2 and that the injury was necessarily fatal. The appellant also had three injuries on his person; (1) and abrasion 2' x 2' on the back of left elbow; (2) an abrasion, 2' x 1' on the back of right elbow; and (3) a slight contusion on the left of the upper lip.
6. The appellant, when questioned under Section 342, Criminal P. C. both in the committal Court and in the Sessions Court stated that the deceased came twice to the house of the appellant and pelted stones at his house, hit him with stones and when the appellant fell down on the ground, the deceased took out a knife from his waist to stab him and as he apprehended danger to his life, he snatched the knife from the hands of the deceased and when the deceased took a big stone to beat him on his head, he (the appellant) stabbed him once. Thus the appellant has set up a right of private defence of person.
7. There cannot be any doubt in this case that the deceased died as a result of the injury inflicted by the appellant with a knife. The appellant admitted that he stabbed the deceased. The main point to be considered is whether the circumstances under which the appellant stabbed the deceased were such that the appellant could not have avoided danger to his life without stabbing the deceased. The learned Sessions Judge has come to the conclusion on the evidence that the appellant had right of private defence, but had exceeded his right in causing the death of the deceased by stabbing him, and, therefore, he convicted the appellant under Section 304 (Part II) I. P. C. giving the benefit of Exception (2) to Section 300. I. P. C. The learned Sessions Judge has rejected the direct evidence of P. Ws. 1 and 2 as they were interested. P. W. 1 is the junior paternal uncle of the deceased and P. W. 2 is the son of the deceased. Their evidence is undoubtely interested and they have not come forward with the entire facts in respect of the offence. We have the evidence of P. Ws. 6 and 8 to whom the appellant was alleged to have told about his having stabbed the deceased and we have also the first information given by P. W. 3 and the statements made by the appellant under Section 342, Criminal P. C.
As the direct evidence has been rejected, we have to necessarily depend upon the statements of the appellant for considering whether he would be entitled to the right of private defence. The learned Sessions Judge has been very much influenced by the fact that the appellant did not tell P. Ws. 6 and 8 whom he met on the way the entire circumstances under which he stabbed, as stated by the appellant in his statements under Section 342, Criminal P. C. and, therefore, he felt that the appellant would not be entitled to the right of private defence. One cannot expect the Appellant to have stated, in the circumstances, the entire facts to the persons whom he met casually on the way when he was in an agitated mind, determined to go to the Police Station and inform the police. The first information in this case was given by P. W. 3. In the first information Ex. P. 1, it is stated as follows by P. W. 3.
He (the appellant) said 'Brother-in-law Nachimuthu trespassed into (my) house and came to quarrel. He took stone and pelted. The stone hit fell on (me). Pushing (him) down and taking the knife that was in his waist, I stabbed twice on the chest and back. Life became extinct due to chest-stab.
8. We cannot give much weight to this statement as it was made by P.W. 3 and this was what he heard from the appellant. So, finally we are left with the statements made by the appellant under Section 342, Cr. P. C. I am of the view that the statements made by him, if accepted, would entitle him to claim a complete right of private defence. I am inclined to accept the statements as there were several circumstances from which it could be inferred that at the time when the appellant stabbed, he apprehended danger to his life from the deceased.
9. The circumstances are these: The deceased was drunk. He came to the house of the appellant and picked up quarrel. He pelted stones at the house of the appellant. P.W. 7 and others pacified him and sent him away. Within a few minutes, the deceased came again to the house of the appellant and began to pelt stones. The deceased was having a knife in his waist. The appellant sustained three injuries on his person as a result of the deceased beating him.
10. From the above facts, it is clear that the deceased was in an aggressive mood and using stones indiscriminately after having got drunk, on the appellant and at the house of the appellant. If the knife was in the waist of the deceased and, as stated by the appellant, if he took out the knife to stab him, the appellant would be justified in snatching the knife and in that state of mind to inflict injury on the deceased to avoid further attack by the deceased. It must have been very difficult for the appellant in that state of circumstances to escape by running away with the knife as it would be possible that the deceased might over-power and attack the appellant again. Taking an all round view of the entire circumstances of the case, I am of opinion that the appellant was entitled to right of private defence and he is, therefore acquitted.
11. The conviction and sentence are set aside and the appeal is allowed. The bail bonds of appellant shall stand cancelled.