Govinda Menon, J.
1. The appellant in this case has been convicted under Section 302. I. P. C. for having caused the death of his brother Raveendran and sentenced to rigorous imprisonment for life.
2. The deceased Raveendran was the eldest member of the family and was managing and taking the income from the common properties given by the father to all of them. He was addicted to drinks and was spending the income from the properties without giving anything to the other members for their maintenance. He used to come fully drunk to the house and create trouble in the house. On 26th of March 1959 Raveendran got the cocoanuts plucked from the trees in the paramba in which they were living and the cocoanuts thus plucked had been heaped in the courtyard of their house.
The appellant came there and took 4 or 5 cocoanuts for himself. Raveendran did not like this and in an angry tone demanded that the appellant should drop the nuts there. The appellant said that be HAD also rights in the properties and refused to obey him. There ensued a scuffle between them and Raveendran gave the appellant two or three blows.
The witnesses who were present there separated them. Then, it is stated, the accused took a cadjan stem and threw it at Raveendran. It did not hit him.
Then Raveedran picked up a cadjan stem and proceeded to attack the accused. Seeing this, the accused ran southwards. Raveendran pursued him and after following the appellant for some distance, he threw the cocoanut stem at the accused. It hit the accused on his thigh. Then, it is stated the accused turned round and went and inflicted one stab with the penknife which he had with him. The stab was on his chest and Raveendran sat down. The accused then left the scene, Pws. 1, 2 and 4 removed Raveendran to the Quilon District Hospital. Pw. 12, the head-constable of the Kundara Police Station recorded the first information statement from the deceased. Ext. P11 is the statement and Ext. P12 is the F. I. R. prepared on the basis of that statement.
On 29-3-59 the injured succumbed to his injury. The accused was arrested on 13-4-59 by Pw. 9, a police constable with M. O. 2 penknife. He was produced before the police station and the penknife was taken into custody under a mahazar Ext. P7. Pw. 16, the Circle Inspector of Police completed the investigation and laid a charge sheet under Section 302 I. P. C. against the accused. In the committing Magistrate's Court, the accused stated that he had not committed any offence. In the Sessions Court he stated that what the witnesses stated is not true, that he was beaten with the cocoanut stem by Raveendran, that be ran to the south and that Raveendran chased him and beat him again. He however, denied having stabbed the deceased and inflicted the injury and he would even say that he had no knife with him.
3. There is no doubt that Raveendran died as a result of the injury sustained by him on that day. P. W. 14 is the Medical Officer and Ext. P16 is the post-movtem certificate issued by him. The wound certificate Ext. P14 and the post-mortem certificate Ext. P16 would show that the deceased had one incised wound 1' x W near the left nipple penetrating into the chest cavity and according to the doctor tile cause of death was syncope clue to shock and haemorrhage due to this injury. In his opinion the injury was sufficient in the ordinary course of nature to cause death. It is therefore clear that Raveendran died as a result of the stab injury sustained by him.
4. The next question is whether the injury was inflicted by the accused. The learned Judge has in para 5 of the judgment stated that the act of stabbing is not disputed by the accused. As stated earlier, the accused has not admitted that he stabbed and inflicted the injury. We have, therefore, to see whether the prosecution has succeeded in proving that the injury was actually inflicted by the accused. Pw. 1 is one of the eye witnesses. He lives 30 feet to the north of the scene. He has deposed that the cocoanuts that were got plucked by the deceased were heaped in the courtyard, that the accused came and took 4 or 5 cocoanuts, that the deceased asked him to drop the cocoanuts there, that the accused then retorted by saying that he was also entitled to the nuts and that he also wanted to eat.
He says that the deceased then snatched the cocoanuts from the accused, that there was a scuffle between them, that the deceased beat the accused twice or thrice with his hand and that he himself and Pws. 2 and 4 separated them. He says that the accused then took a cocoanut stem and threw it at the deceased, that it did not hit him, that the deceased also took a cocoanut stem and finding that the accused was running towards the south, the deceased pursued him for some distance, that when he was 5 or 6 feet away from the accused he threw the cocoanut stem at the accused, that it hit the accused on his thigh and then the accused turned round and stabbed. Raveendran and after that the accused ran away from there.
His version is fully corroborated by the evidence of Pws. 2, 3 and 4. They are all disinterested witnesses and nothing has been brought out in their evidence to discredit their testimony. Their names appear as witnesses in the statement Ext. P11 given by the deceased the same night to the head-constable Pw, 12. We have also the evidence of Pw. 6, a witness who has seen the accused leaving the place immediately after the incident with the knife. The accused was later arrested by the police with M. O. 2 penknife. It is therefore clear and the defence has rightly conceded that the prosecution has succeeded in proving that it was the accused who inflicted the fatal injury.
5. The learned counsel for the appellant contends that even if the appellant had inflicted the injury which resulted in his death, the act of the accused is completely protected by the right of private defence. Under Section 97 I. P. C. every person has a right subject to the restrictions contained in Section 99 to defend his body against any offence affecting the human body and under Section 100, I. P. C. the right of private defence of the body extends to the voluntary causing of death, if the offence which occasions the exercise of that right be an assault as may reasonably cause the apprehension that grievous hurt will be caused to him. Under Section 102 I. P. C. 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.
The right of self-defence need not be specifically pleaded. A person taking the plea of the right of private defence is also not required to call evidence on his side, but he can establish that plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence and not a question of the accused discharging any burden. In the light of the provisions set out above, we have to see whether the evidence in the case justified the accused having a reasonable apprehension that either death or grievous injury would be caused to him if he did not exercise his right of private defence.
6. The evidence of the prosecution would show that the deceased was taller and stronger than the accused, that the deceased was addicted to drinks and that he used to come drunk to his house on prior occasions and create trouble. P. W. 1 says that even on that day the deceased was drunk. The accused had only taken 4 or 5 cocoanuts out of the 120 cocoanuts belonging to all of them, heaped in the courtyard of their house. The deceased without any justification took up a most unreasonable attitude and came and grappled with the accused and forcibly snatched the cocoanuts from him. The deceased then beat him twice or thrice.
There is therefore no doubt that the deceased was the aggressor. The witnesses separated them. The accused then took a cocoanut stem and threw it at the deceased. The deceased took another cocoanut stem to beat the accused, Pw. 1 says that the deceased proceeded towards the accused with the coconut stem to beat him. Seeing this, the accused did not use his penknife, but tried to escape and avoid further trouble by runing away from the scene. The deceased was not prepared to leave him alone, but pursued him with the cocoanut stem in his hand. After chasing the accused for some distance when the deceased found that he could not catch the accused, he threw the cucoanut stem at him, which according to the witnesses hit the accused on his thigh.
It was then that the accused turned round and gave one stab with a penknife which he had with him. It is impossible for him to determine whether he would still be followed and violently dealt with by the deceased. It was only reasonable for him to apprehend grievous hurt from the previous conduct of his brother who was admittedly drunk. The circumstances in which he was placed were amply sufficient to give him the right of private defence of his body even to the extent of causing death. These things cannot be weighed in too fine a set of scales or as it is said in 'golden scales'.
It is not necessary nor does the law require that the accused should wait till he receives a grievous injury for the purpose of exercising his right of private defence. The circumstances which we have narrated above would sufficiently justify the accused to entertain a reasonable apprehension that grievous hurt was likely to be caused to him unless he himself dealt with his adversary in the exercise of his right of private defence in the manner ho did. We are not prepared to agree with the contention of the learned Prosecutor that in so doing the accused had exceeded his right or that he ought to have run away from the scene. There was no knowing that his drunken brother will not pursue him still further and overpower him and cause grievous injuries on him.
It is also not suggested by the prosecution that there was any premeditation. In considering whether one is entitled to exercise the right of private defence, one has to place himself in the position of the accused in the midst of circumstances in which the accused stood and then form an opinion whether under the peculiar circumstances the accused had not the apprehension of such injuries to his body as would entitle him to exercise his right. We also feel that the appellant has not used more force than was necessary.
He only gave one stab and that too with the penknife which he had with him. There is no evidence in the case that he was not in the habit of going about with the penknife or that he had come armed with a penknife on that day to take revenge on Raveendran as the learned Sessions Judge seems to think. The learned Judge has observed in para 5 of his judgment that:
'He first threw the stick at Raveendran. The fact that he had run a little distance from the first scene of attack is not of much consequence in this case because his subsequent conduct shows that his intention was not to retreat as is now contended on his behalf. Probably that was a trick to decoy Raveenclran from the original scene where probably the presence of the witnesses was thought to be an obstruction for the accused to achieve his object'.
There is absolutely no warrant either in the evidence or in the circumstances of the case for this speculation.
7. On a careful consideration of the entire evidence in the case and the circumstances and probabilities, we are not prepared to agree with the learned Sessions Judge that the attack by the accused was either 'intentional or retaliatory in nature.' It cannot, therefore, be said that the act of the accused amounts to an offence and we find that he is completely protected by the right of private defence.
8. In the result the conviction and sentence of the accused under Section 302 I. P. C. are set aside and the appellant will forthwith be set at liberty.