Kulwant Singh Tiwana, J. - (1.) JOGINDER Singh appellant has filed this appeal against his conviction under Section 314 of the Indian Penal Code and a sentence of ten years' rigorous imprisonment awarded by the learned Additional Seasonal Sessions Judge, Faridkot.
(2.) A detailed reproduction of the facts of the case is not necessary in view of the findings of the learned trial judge The learned trial judge disbelieved the story of the prosecution as stated by Niranjan Singh P.W., brother of the deceased, about his being an eye witness. He believed the statement of the appellant to the effect that on the day of occurrence at about 9 or 10 p.m. Pritam Singh deceased and Kartar Singh D.W. were gambling in the village. After the appellant had won Rs. 50/ - from Pritam Singh he wanted to stop the game. Pritam Singh wanted him to play for some time more to which the appellant did not agree. On that Pritam Singh deceased caused him two injuries on his head and left hand, the duration of which has been proved to be the same as that of the injuries of the deceased. After that the appellant picked up a tumba (an unshod wooden stick) and caused one injury on the head of the deceased which proved fatal. The learned trial judge also discarded a belated explanation of the injuries to the appellant given by Niranjan Singh that in order to save his brother Pritam Singh, he had caused injuries to the appellant with an ox -goad. The learned trial Judge accepted the statement of the appellant and held that a right of private defence of person had accrued to him against the deceased but he exceeded that right by using more force than was necessary in the situation. This finding of the learned trial judge is contested on behalf of the appellant. The learned trial judge gave a firm finding, which has not been contused by the learned counsel for the State, that the appellant had the right of private defence, The appellant caused only one injury on the head of the deceased which proved fatal. On the other hand, the appellant had two injuries on his person, one on the head and the other on the hand. It has been accepted by the learned trial judge while conceding the right of private defence to the appellant that the appellant had the apprehension of danger to his person at the hands of the deceased. The appellant and the deceased quarreled on a game of cards in which the deceased had lost. The refusal of the appellant to continue the game further upset him. In that agitated and angry mood, the deceased, under the effect of financial loss, in a bid to vanquish the appellant physically, gave two blows with a blunt weapon. The deceased was in an aggressive mood and did not stop when even the appellant gripped the tumba from a nearby cart After giving two blows to the appellant the deceased was still poised for further assault. In that situation, from an armed and aggressive person, the appellant could apprehend at least grievous hurt.
(3.) THE Courts when called upon to decide such cases have not to see the reactions of a cool and calm person. They have to re enact a mental picture of the incident. When the aggressor in a situation created by him has the upper hand, the victim of aggression is not required to modulate his defence step by step or to retreat from the scene to run away, or, in case of his decision, in the exigencies of the situation, to retaliate by force, has not to measure the strength of his blow. When one is under the apprehension of death or grievous hurt and if he, in that situation, musters all his muscles to put his maximum strength behind his blow to vanquish his adverse to ward off the threat to his life, cannot be said to have exceeded the right of defence which had accrued to him because of the danger. In this case, the appellant administered only one blow to the deceased and did not repeat it. In that situation the appellant was only concerned to defend his person and he did not pursue the attack further. In that situation, in my view, the right of private defence as given under Section 100 of the Indian Penal Code was not exceeded by the appellant. He is, therefore, not guilty of any offence chargeable under the criminal law.;