G. M. LODHA, J. - (1.) GAFOOR appellant has challenged his conviction under section 308 IPC and sentence of 18 months' rigorous imprisonment.
(2.) THIS is one of those cases where the facts are not in dispute. The incident happened at about 6-7 A. M. on July 17, 1975. The injured Ummed demanded Rs. 90/- from the accused on account of the price of kharia. The accused told him that he had no money with him. The complainant persisted in his demand. At this, there was altercation and Ummed caught hold of accused by neck and then accused Gafoor gave two knife blows to Ummed in his abdomen. The whole version has been given out clearly by PW. 3 Ummed. The relevant portion from the judgment of trial court is reproduced here which reads as under : ************** In addition to above, it has come in the evidence of Ummed himself that ********Ghamti P. W. 2 has also stated that ************* The question which emerges for consideration in this appeal is as to what offence has been committed by the accused. The trial court has held that the accused has committed an offence under section 308 IPC. Mr. Singhvi has argued that the injured was a strong man in comparison to the accused who is weak and thin. The injured Ummed did not stop by catching hold of Gafoor but continued to give beating by kicking him with shoes in his abdomen, which could have caused even his death by rupture of spleech. The injured further gave blows on the head of accused by shoes twice. In such circumstances it was a case where the right of private defence was available to the accused, argued Mr. Singhvi. Mr. Mathur, on the contrary submitted that the present one is the case where the accused acted under sudden and grave provocation and there was no right of private defence of person. Mr. Mathur argued that even if there was a right of private defence, the accused exceeded it.
(3.) I have given my thoughtful consideration to the above submissions of the learned counsel for the parties and the facts of the case as emerged from the prosecution evidence, Undoubtedly, as per the prosecution case, the injured Ummed is a healthy and strong person in comparison to the accused who according to the evidence of Ummed is comparatively weak. The injured caught hold of the neck of the accused and gave kicks in his stomach which could have caused him grievous and some time even death, if the splim is ruptured, A healthy person having the shoes in his legs and using that leg with shoes for kicking in the abdomen of another person who is comparatively weak certainly puts the other person into a position where he has to fight for his life or in any case for being saved from grievous hurt. In such circumstances, it is difficult to weight the force which a weak person used against the strong person in golden scales. In Narain Singh v. State of Punjab, (1) it was observed by their Lordships of the Supreme Court that if a person reasonably apprehends that his assailant is attempting to strangulate him, exercise of the right of defence of person extends even to causing death of the astailant. In Deo Narain v. State of U. P. , (2)the right of private defence was held to be preventive and not punitive right. It was held that it is available against apprehension of unlawful aggression and not for punishing the aggressor. Therefore as soon as a reasonable apprehension of danger arises, right of private defence can be exercised. In the above case when a blow with a lathi was aimed on the head of the accused, the accused was justified in using his spear in defending himself which caused death. In the above case the High Court was of the opinion that the right of private defence was exceeded on the ground that spear should not have been used in from the sharp side and it should have been used as a lathi. The Supreme Court observed that at such moments an average man cannot be expected to think coolly and control his action by weighing his force against the aggression. In the instant case as mentioned above, the complainant injured Ummed continued his aggression firstly by catching hold of the neck of the accused, then by giving kicks with his Shoes in his abdomen and then giving shoe blows on his skull and belabouring the accused taking the advantage of his strong body. ;