Lawrence Jenkins, C.J.
1. The appellant in this case has been convicted by the Sessions Judge of Bankura, disagreeing with the assessors, under Section 304 of the Indian Penal Code, and sentenced to seven years' rigorous imprisonment.
2. The occurrence arose out of a quarrel between the children of two families, which afterwards extended to the ladies and ultimately culminated in the attack which resulted in the death of one of the attacking party, Suchand Dome. The evidence shows, and it is not disputed before us, that the attack was made by Ramsadoy and his party who in the language of one of the witnesses advanced to beat. The party consisted of Ramsadoy, Purno, Fakir and Suchand. Those against whom they advanced were the appellant and his party, three in number. At that time the members of the attacking party were armed with sticks while those who were being attacked were unarmed. The party attacked, however, called out for sticks and lathis were brought. The appellant, Bhut Nath Dome, was struck a blow on the head which foiled him to the ground, and as he rose he used his lathi and, it is said, inflicted on the deceased the blow which resulted in his death. It cannot be said to be absolutely clear that it was the accused's blow that caused Suchand's death. The view of the assessors is that Bhut Nath was not responsible for the fracture of the skull which resulted in the death of Suchand, though they seem to have thought, that he inflicted a blow which would have constituted an offence under Section 334 or Section 323 of the Indian Penal Code. But even if the view of the Sessions Judge be accepted it remains for us to consider whether in the very special circumstances of this case the accused, did not exercise a right of self-defence, within the limits allowed to him by the law. The onus of establishing that rests on the accused : and after a full consideration of all the circumstances I think that he has succeeded in establishing that what he did was by way of private defence and was not in excess of what the occasion required. The law on this subject is very clearly defined in the Penal Code: Section 96 provides that nothing is an offence which is done in the exercise of the right of private defence,' and Section 97 goes on to provide that ' every person has ' a right, subject to the restrictions contained in Section 99, to defend his own body, and. the body of any other person against any offence affecting the human body.' But we have to see whether the case falls within the terms of Section 100 which extends the right of private defence of the body 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, amongst other things, such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. I have described the circumstances generally and among other things how the accused was felled to the ground by the blow proceeding from the party of four men, and immediately on rising from the ground struck the blow which has led to these proceedings against him, A man in such a predicament cannot be expected to judge too nicely, and having regard to all the circumstance of the case, I come to the conclusion that the assault on the accused was such as reasonably caused the apprehension that grievous hurt would, but for his action, have been the consequence of the attack that was being made upon him. Had it been established as Mr. Chippendale in the course of his careful argument suggested that the quarrel was over and the attack had ended so that the accused was merely acting in a spirit of retaliation without in any way being animated by the desire of securing his own safety, matters would have been very different. But that is not made out: on the contrary, the facts established show that the accused was so pressed by his assailants as to be entitled to exercise his right of private defence, that he administered the blow in the exercise of that right, and that what he did was, in no way, in excess of the requirements of the case, that is to say, he did not inflict more harm than it was necessary to inflict for the purpose of defence.
3. On these grounds I think that the accused has made out a good defence to the charge against him. His appeal will, therefore, succeed, the conviction and sentence must be set aside and he must be released.
4. I agree.