1. I have had the advantage of reading the judgment of my learned brother, I entirely agree with the finding of fact, and take up the story from the fatal fight:
The accused who was then standing near the tree abused in return and defied the deceased and told him to come on. The deceased caught hold of the accused by the tuft and gave him two blows with his fist. There was a struggle and the deceased held accused firm by the tuft. The accused then gave the deceased a blow on the left side with a 'baku,' which he had in his hand.
2. I think that the only exception in Section 200, I.P.C., possibly applicable to such circumstances is Exception 4 a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage.
3. When a man defies another and tells him to come on, in brief, challenges him to fight, and a fight ensues, he cannot claim that he has been gravely and suddenly provoked merely because he is getting the worst of it. Suppose it is the other way round, and accused after challenging deceased to fight, is getting the better of it, is he prepared to concede that at that point deceased may stab him and plead grave provocation. Whoever in such a case stabs, is doing exactly what Exception 4 provides against, he is taking undue advantage, and acting in a cruel manner. Nor can I find that accused bona fide exceeded the right of private defence. He had asked for a fight, and was in no serious danger. I agree with the learned Sessions Judge that the offence is clearly murder, and see no reason to interfere.
4. The appellant in this case has been convicted of the offence of murder and sentenced to transportation for life, the charge against him being that he intentionally caused the death of Kodipatnam Bapayya Reddy by stabbing him with a dagger. The appellant denied the charge and said that the case against him was wholly concocted. The learned Sessions Judge agreeing with three of the assessors found the accuse guilty. The fourth assessor was of opinion that the accused was not guilty. The appellant in his petition of appeal contests that finding. Upon the evidence there can be hardly any doubt as to the correctness of the learned Judge's finding that the accused stabbed Bapayya Reddy with a dagger with intent to cause his death, or I may add at least such bodily injury as was sufficient in the ordinary course of nature to cause death.
5. The only question, therefore, which remains to be considered is whether in the circumstances of this case the appellant should be held guilty of the graver offence of murder under Section 802, or of the offence of culpable homicide not amounting to murder under Section 304, and in the latter case whether he should be convicted under the first part or the second part of 'that section. The learned Sessions Judge has considered this question with reference to Exception 2 to Section 200, I.P.C., and his opinion is that the said exception does not apply to this case and that the offence committed by the appellant is murder. The material facts bearing on this question are as follows.
6. About ten days prior to the occurrence the deceased discovered that there was criminal intimacy between the accused and the wife of his brother, P.W. 4 and that they intended to elope. The deceased and his brother thereupon chastised the latter's wife. Her husband threatened to shoot her and her lover (the accused) if he saw them together. The accused apprehending danger to himself made himself scarce for some days.
7. The events that immediately preceded the occurrence are set out by the learned Sessions Judge in para. 6 of his judgment. P.W. 6, the brother of the wife of P.W. 4, had been sent for by the deceased and he came to their house on the morning of the day of the occurrence. After breakfast he went to the house of the accused, referred to as Guturi house and there he was informed by Achamma and Papulu, the women of the house that P.W. 4 and the deceased were ill-treating his sister P.W. 7. P.W. 6 came back to his brother-in-law's house and asked the deceased why his sister was beaten to which the latter replied
if she misbehaves in the house is she not to be checked?
8. P.W. 6 said that the husband was the proper person to chastise her and 'not he. Then the deceased asked P.W. 6 who told him that he had beaten and abused his sister. P.W. 6 mentioned the names of Achamma and Papulu. The deceased went out of the house and asked those women who were standing in their premises why they carried tales, which brought about misunderstanding. There was then an exchange of abuse between the deceased and the said women and the deceased pulled out a stick from the fence and was going to jump out to attack them when his brother P.W. 4 came and restrained him. This quarrel took place in the afternoon and then neither the accused nor his father and uncle were in the house. The accused and his father after they came home in the evening hoard evidently from their women that the deceased had come to their house and abused them. That put them (accused and his father) in an angry mood and with sticks in their hands they proceeded to the entrance of the deceased's house and challenged him to fight with them for having abused their women. The deceased went out to meet them and presently came back and picked up a bamboo stick. His brother P.W. 4 held him back and asked him to stay in and himself went out saying that he would speak to the accused and his father. In the meantime Chalamiah, the paternal uncle of the accused who was then in the house of P W. 4 also went out and pushed the accused and his father towards their house. When P. W 4 came out into the street the accused's father Narayana attacked him at once with his stick giving him a blow on the shoulder and another on the knee. P.W. 4 snatched the stick from him and dealt blows in return. It would appear that in that fight the accused's father Narayana was hurt more than P.W. 4. The deceased also came out of the house shouting where is Nagulugadu? The accused who was then standing near the tree in front of his house abused in return and defied the deceased and told him to come on. What happened afterwards is spoken to by P. Ws 4 and 6. The de-ceased caught hold of the accused by the tuft and gave him two blows with the fist. There was a struggle and the deceased held accused firm by the tuft. The accused then gave a blow to the deceased on the left side with a baku ' which he had in his hand. The deceased cried out that the accused had stabbed him with a ' baku ' and left the accused and went home holding his side with his hand. It would appear that in the struggle the accused also received some injuries which are set out in the wound certificate Ex. C; which, however, were not of a serious nature. The learned Judge observes as follows:
The deceased was, therefore, clearly the aggressor, but the evidence shows that he was not armed with any weapon whereas the accused must have already armed himself with a dagger for the fray before his assailant came to attack him.
9. On that ground the learned Judge holds that Exception 2 to Section 300, I.P.C. does not apply. He has not considered whether the case would fall within any of the other exceptions to Section 300. I need scarcely observe that the facts of a case may be such that it may fall within more than one exception to S. 00, and the question, therefore, for consideration in this case is whether the case falls within any and which of the exceptions to Section 300. The deceased in this case having been the aggressor, as found by the learned Judge, the first question is whether Exception 1 to Section 300 does not apply to the case. I have thought it necessary to state the facts at some-length as it seems to be clear that the quarrel was provoked by the deceased himself. The accused was standing at a distance in front of his house He took no part in the quarrel between his father and brother of the deceased. But the deceased went towards challenging him to fight and caught hold of him by his tuft and gave him blows with his fist, There was a struggle between them during which according to the 6th witness, the deceased held the accused firmly by his tuft, and while he was so being held and had received some injuries, the accused stabbed the deceased with the dagger which ho had with him. It will be seen that though the accused was armed with a dagger he used it only when the deceased went on beating him without leaving his hold of the tuft. The act of the deceased was highly provocative and it was both grave and sudden and was well calculated to enrage the accused and deprive him of the power of self-control. He found himself suddenly under the grip of his enemy from whom he might have apprehended serious danger to himself. If under those circumstances the accused retaliated and stabbed the deceased with the dagger which he already had, I think he is entitled to the benefit of Exception 1 to Section 300. I may here refer to Illustration (F) to this Exception which runs as follows.-Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.
10. I do not think that so far as Exception 1 is concerned if the act which resulted in the death was the result of grave and sudden provocation, it makes any difference that the man who was so provoked had a knife already or he was given a knife by a bystander with which he stabbed his assailant. No doubt, the circumstance that he had already provided himself with a knife or dagger is a fact to be taken into consideration in order to determine whether the stabbing was merely the outcome of the grave and sudden provocation which the accused had or whether it was a premeditated act which the accused had already determined to carry out apart from any provocation to him from the deceased. Upon the fact of this case, I am of opinion that the stabbing of the deceased by the accused is directly attributed to the grave and sudden provocation which the deceased gave to the accused, and that Exception 2 also applied to the case. It can hardly be questioned that the deceased who was evidently much enraged attacked the accused violently and in such a manner as to make him apprehend that the deceased wanted to wreak vengeance on him for his misconduct with his brother's wife which was the original cause of all this trouble between the two families. The accused had certainly the right to defend himself against such an attack. No doubt, accused would be justified in causing death only if he could reasonably apprehend that death or grievous hurt would otherwise be the consequence of such assault. Otherwise ho can only inflict so much harm as is necessary to inflict for the purpose of defence. It need scarcely be observed that a man who is suddenly attacked by his enemy violently cannot be expected to judge too nicely what the consequences of the attack may be, or how much force ho should use in retaliation. Considering that the deceased, though the aggressor, was unarmed, it might not have been reasonable on the part of the accused to apprehend that either death or grievous hurt would result from the assault. But there was sufficient cause for him to apprehend that he would be seriously injured as the deceased held his tuft firmly and went on beating him. It is only then that he stabbed the deceased fatally in two places. I think the case is very similar to the one given in the illustration to Exception 2 in which the accused used a pistol he already had with him, but in excess of the right of private defence and that the offence committed by the accused in this case amounts only to culpable homicide not amounting to murder. Under the circumstances the mere possession of the dagger by the ac-accused cannot make the crime one of murder any more than the possession of the pistol by A in the illustration to Exception 2.
11. Lastly I may observe that when the evidence in a case leaves room for doubt as to whether the accused has committed murder or the lesser offence of culpable homicide not amounting to murder the benefit of that doubt should be given to the accused.
12. For the reasons stated I am of opinion that the accused should have been convicted only of culpable homicide not amounting to murder under the first part of Section 304, and I would alter the finding of the learned Sessions Judge accordingly. Taking the circumstances of the case into consideration, I would reduce the sentence to one of rigorous imprisonment for a period of five years.
13. As we disagree this case must go to a third Judge under Section 429, Criminal P.C.
14. In my view the provocation began at an earlier stage than that noted by Mr. Justice Jackson viz., when deceased ran out of his house calling out.
Where is this Nagulugadu?
15. Obviously he was then spoiling for and; provoking a fight; if he was not, he would have remained whore he was in his house. This challenge accused answered verbally and then deceased started the use of violence by seizing accused by the tuft. Though the original provocation by deceased was not grave and sudden it was aggressive, and the 2nd provocation viz., seizing accused by the tuft was certainly grave and sudden.
16. I agree with Mr. Justice Thiruvenkatachariar that the first exception to Section 300. I.P.C. is in point and that the offence is culpable homicide not amounting to murder. I alter the conviction accordingly and reduce the sentence to rigorous imprisonment for three years.