Modi, J. - (1.) THIS is an appeal by the accused Kabulsingh against the judgment of the learned Additional Sessions Judge, Ganganagar, dated the 10th December, 1951, by which the appellant was convicted of an offence under sec. 304 of the Penal Code and sentenced to five years' rigorous imprisonment.
(2.) THE only question for determination in this appeal is whether the accused Kabulsingh exceeded his right of private defence. The deceased Keharsingh and the accused Kabulsingh are residents of Chak No. 22 H. It is common ground that Keharsingh was a proclaimed offender u/s 366 of the Indian Penal Code, and further that Kabulsingh was instrumental in getting the former arrested about two-and-a-half months before the occurrence took place. Thus, Keharsingh bore deep personal grudge against the accused Kabulsingh. It appears that on 30th December, 1949, at about 10 P. M. in the night there was a verbal altercation between Keharsingh and Kabulsingh. P. W. 8 Ratan-kaur and P. W. 2 Shanker, who was a tenant of the former, intervened and dispersed them. But the matter did not rest there. A short while afterwards, Keharsingh and Kabulsingh came out, the former armed with a lathi and the latter with a gun, and they again exchanged hot words. The case for the prosecution is that Kabulsingh fired a short at Keharsingh which hit him in the lower region of the right side of his back as a result of which Keharsingh died instantaneously. The scene of death is stated by the prosecution to be a Diggi or a water reservoir which is said to be situated about twenty paces away from the house of Kabulsingh. P. W. 1 Sohansingh, brother of the deceased Keharsingh, lodged the first information report at the police station Kesrisinghpura at about 11-30 P. M. on the same night, that is, 30th December, 1949. The Assistant Sub-Inspector Dharmchand, P. W. 6, arrived on the spot soon after, completed the investigation, and challaned the accused under sec. 302 I. P. C. in the court of Sub-Divisional Magistrate, Karanpura, who sent up the accused for trial to the court of the learned Additional Sessions Judge, Ganganagar. The accused Kabulsingh admitted that he had fired his rifle at the deceased Keharsingh, but his contention is that he did so in the exercise of his right of private defence. His version is that the deceased Keharsingh accompanied by P. W. 2 Shankar and another person named Jagdish came armed with Gandasis to his house. The assailants wanted to strike him with the Gandasis but Bikarsingh, who had just come having heard the hue and cry, raised his Sela and thereby saved him. It is said that Bikarsingh's Sela received some cut-marks from the Gandasis. As regards the scene of occurrence, the defence version is that the altercation did not take place near the Diggy as stated by the prosecution, but just near or at the foot of the wall of Kabulsingh's house. It may be pointed out here that the learned Additional Sessions Judge has accepted the defence version on this point and has gone so far as to hold that the prosecution in this case sedulously strived to shift the scene of occurrence from the proximity of Kabulsingh's wall to somewhere near the Diggy. In my opinion, the learned Judge's finding on this aspect of the case is perfectly justified and betrays a crude attempt on the part of the prosecution to change the scene of the occurrence. The learned Judge has also found that Keharsingh, the deceased, was the aggressor and not Kabulsingh. In fact, the attempt on the part of the prosecution to change the place of occurrence, as referred to above, appears to have been actuated by a desire to show that Kabulsingh and not Keharsingh was the aggressor. The police in this case happened to arrive on the spot soon after the occurrence. It appears from the testimony of the investigating Officer himself that an empty cartridge was found very near the wall of Kabulsingh and that there were signs on the ground of Keharsingh's body having been dragged from near the wall to the Diggy which was about 20 paces away. The learned Additional Sessions Judge has further held that in his opinion Keharsingh was shot by the accused when the former was trying to climb the wall of Kabulsingh's house and not at the place where the dead body was eventually found lying. The learned Judge also held that it was established in his opinion that Keharsingh was determined to wreak his revenge upon Kabulsingh and had even expressed his intention to kidnap his daughter and set fire to his house or otherwise to put the members of Kabulsingh's family to harm. In fact, the learned Additional Sessions Judge, to quote his own words, was of the opinion that "kabulsingh had, therefore, genuine apprehension of his family members being attacked or at least roughly handled by Keharsingh, if he succeeded in entering his house by climbing over his wall. " Having gone so far as to hold what he did, the learned Judge; was, however, of the view that the accused could have caused the deceased any injury short of death to prevent him from climbing the wall of his house, or in case he considered the risk to his family or to himself very imminent, he should have given Keharsingh a warning to get down from the wall before he should have shot him dead with his rifle. The learned Judge went on to state that if, even in spite of such warning, the deceased should have still persisted in climbing the wall, the accused should have been justified in causing the former's death; but as the accused did not proceed in the manner indicated by him, he had exceeded his right of private defence because, in the opinion of the learned Additional Sessions Judge, the accused had caused more harm to the deceased than was necessary in the circumstances of the case. Learned counsel for the appellant has urged that the view taken by the learned Additional Sessions Judge as set forth above was too strict and narrow, and that it was not possible for the accused, situate as he was, to measure his steps and that, as found by the learned Judge himself, the accused entertained a genuine apprehension of the members of his family being attacked or roughly handled by the deceased Keharsingh should he have succeeded in entering Kabulsingh's house. I have given this case my most careful consideration and have come to the conclusion that there is considerable force in the argument oft he-learned counsel for the appellant, As already stated above, the deceased was a proclaimed offender and was on terms of deep enmity with the accused Kabulsingh. The deceased was a young stout person of 28 years of age. It has also been established on the evidence of prosecution witnesses Gurdayal P. W. 3, Dharamchand P. W. 6 and Jogendrasingh P. W. 7 that the deceased was attempting to climb the wall of Kabulsingh's house as to get in there. According to P. W. 2 Shankar, the deceased was armed with a Gandasi. He had threatened Kabulsingh to the effect that he would set fire to his house or kidnap his daughter or otherwise harm the members of the accused's family which might have easily amounted to grievous hurt. At this stage, an argument put forward by the learned Assistant Government Advocate may be considered. His argument was that while the owner of the house Kabulsingh stood armed with a rifle outside his own house, it was wholly contrary to the course of normal human conduct that the deceased Keharsingh or any other person should have dared to scale the wall of Kabulsingh's house, and, therefore, the defence version on this point, according to the learned Assistant Government Advocate, was not worthy of belief. The answer to the above argument is, in my view, of a two-fold character. In the first place, the inference is irresistible from the evidence brought on record in the depositions of P. W. 3 Gurdayal, P. W. 6 Dharamchand and P. W. 7 Jogendra Singh that Keharsingh did make an effort to climb the wall of Kabulsingh's house. The attempt on the part of the prosecution to remove blood-stains from the foot of the wall and the presence of marks of dragging the deceased's body from the foot of the wall to the Diggy leave no doubt whatsoever in my mind that the incident took place at or near the wall, and the learned Sessions Judge has also found to the same effect. Secondly, there is one very important circumstance, which has not been taken into consideration by the learned Additional Sessions Judge, and that is that the deceased Keharsingh was heavily drunk at the time. In fact, P. W. 8 Ratankaur stated in so many words before the police that Keharsingh was drunk so much so that, with the help of some other persons, she had put him into the Kotha of her house. It seems to me, therefore, that Keharsingh who was burning with revenge against Kabulsingh was determined, under the influence of liquor, to do the worst that he could at the time and was not prepared to see reason or to weigh the risk which he was subjecting himself to. That being so, I have no hesitation in coming to the conclusion that the version put forward by the defence is neither incredible nor even improbable, but is the correct and the most probable version. Now sec. 100 of the Indian Penal Code provides that the right of private defence of the body extends to the voluntary causing of death if the offence which occasions the exercise of the right may reasonably cause the apprehension that death or grievous hurt will otherwise be the consequence of such assault. The right also extends under this section to the causing of death if the assault is made with the intention of kidnapping or abducting. Under sec. 97 of the Penal Code, the right extends not only to the defence of one's own body but also the defence of the body of any other person against an offence affecting the human body. Learned counsel for the appellant has referred me to Amjad Khun vs. The State (1) (A. I. R. 1952 S. C. 165.); Kuppusamier vs. Emperor (2) (A. I. R. 1929 Mad. 749.) and Dhuram vs. Emperor (3) (A. I. R. 1929 All. 299. ). It is true that none of these cases is on all fours with the present case. But they establish a principle which, in my opinion, fully applies to this case. The case before their Lordships of the Supreme Court arose out of a communal riot which broke out between some refugees residing in a town and the local Muslims. The mob broke into the shop of the appellant's brother and looted it and were beating the door of the appellant's shop as they were passing but did not break into his shop. At that time the appellant fired a short and thereby caused the death of one man and injured three others. Their Lordships of the Supreme Court held that the High Court was wrong in thinking that actual looting of the appellant's shop was necessary before the right could arise. They referred to sec. 102 of the Penal Code and observed that the right of private defence of the body commences as soon as a reasonable apprehension of the danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed. On the point whether the appellant in that case used more force than was necessary, their Lordships held that the circumstances in which the appellant was placed were amply sufficient to give him a right of private defence of the body even to the extent of causing death. Their Lordships further pointed out that such things could not be weighed in too fine a set of scales or as some learned judges have expressed it in golden scales. Applying the test laid down by their Lordships of the Supreme Court to the facts and circumstances of the present case, I hold that the facts found by the learned Additional Sessions Judge himself are sufficient to lead one to come to the conclusion that the deceased Keharsingh intended at least to cause grievous hurt to the members of the accused Kabulsingh's family or to kidnap his daughter, and, at any rate, that there was a reasonable apprehension in the mind of the accused Kabulsingh that the decease might do so. This finding is enough to afford a right of private defence to the appellant in the present case. I have next to see whether the limitations prescribed by law on the extent and scope of right of private defence negative the possibility of such a right being given effect to in this case. It is true that there is no right of private defence in cases in which there is time to Have recourse to the protection of the public authorities. I do not think, however, that there was any opportunity for the accused to have recourse to such authorities at dead of night when the deceased was trying to get into the accused's house and menace the safety and honour of the women folk of his house. I am clearly of opinion that the accused's right of private defence in this case extended even to the causing of death and that he had not used more force than was necessary. The accused fired just one shot and it appears that he did so when the deceased Keharsingh was climbing the wall of his house, which was about six feet only. The view taken by the learned Additional Sessions Judge seems to me to be in the nature of a counsel of perfection, but that is precisely trying to weigh human conduct in difficult circumstances in too fine a set of scales, a course which has not been approved at the highest level of judicial authority in India. In the result I accept this appeal, set aside the judgment of the learned Additional Sessions Judge and hereby direct that the accused Kabulsingh be acquitted. He need not surrender to his bail. . ;