A person has the right of private defense of person if there is an appreciable interval between the assault by the person and the subsequent assault on the person by the deceased, the deceased had no justification to continue the quarrel and assault the person, and the person had a reasonable apprehension of grievous hurt.

JUDGMENT :

Narasimham, C.J. - This is an appeal by the State of Orissa against the judgment of the Sessions Judge of Koraput, acquitting the Respondent who was tried in his court for an offence u/s 304/34 Indian Penal Code. The Respondent's brother Khora Lachmi was also tried for the same offence, but the learned Sessions Judge convicted him u/s 323, Indian Penal Code. In acquitting the Respondent the learned Sessions Judge observed that he was satisfied that he had the right of private defence of person.

2. The facts alleged by the prosecution are as follows. The parties belong to village Muktipalli P.S. Mlalkangiri in Koraput district. On the 3rd March 1961 at about 7 p.m. p.ws. 1 to 5 were sitting in front of the house of P.W. 4 after taking Salpa juice. Apparently they were all somewhat intoxicated. A petty quarrel and scuffle ensued between P.W. 4 and P.W. 2 on account of the former demanding a sum of Re. 1/- which was taken from him by the latter. The scuffled to an altercation and just then Respondent Gagaru was said to have arrived there and given a blow with his stick to P.W. 2 who ran away from the place. Thereafter when P.W. 1 wanted to intervene he was also given a blow by the Respondent. The deceased Khillo Ghasi who was the uncle of P.W. 2 was then said to have come to the spot and given a blow on the head of the Respondent. Thereupon the latter gave him some blows on his head in consequence of which he fell down and subsequently died of fracture of the skull bone.

3. The Respondent made no secret of the part played by him in the occurrence. Both before the villagers and in his judicial confession before the Magistrate recorded on 13th March 1961, he admitted that he gave blows to the deceased in consequence of which the latter died. But in his confession he gave a clear picture as to how the incident took place. First of all there was a quarrel between p.ws. 4 and 2, then when he wanted to intervene he was slapped by P.W. 2, then he assaulted him with a lathi and assaulted Jogi (P.W. 1) also. Thereafter p.ws. 1 and 2 went back to their respective houses and the Respondent also was returning to his own house when the deceased came there and gave him two blows whereupon he hit him with a stick and brought him down. The eye-witnesses namely p.ws. 1, 3, 4 and 5 have not given a consistent version as to how the trouble took place. P.Ws. 1 and 5 have practically supported the judicial confession by saying that during the course of the quarrel the Respondent came and gave a blow to P.W. 2 and then to P.W. 1. Thereupon the deceased who was the uncle of P.W. and who had gone to his house ?01' taking his meal came there with a lathi and gave a blow to the Respondent on his head. Then the Respondent gave him three blows with a lathi in consequence of which the deceased fell down and eventually died. It will be noticed that this version of p.ws. 1 and 5 is not at variance with the version given in the confession of the Respondent though these witnesses have not stated expressly that after the first assault by Respondents. P.Ws. 1 and 2 went away to their houses and that the Respondent was returning to his house when he was attacked by the deceased. But they have not said anything to the contrary. Their evidence therefore does not in any way conflict with the confession.

4. But the other two witnesses, namely p.ws. 3 and 4 "have given a slightly different version. According to them, after the deceased had given a blow on the head of the Respondent the latter snatched away his stick and then gave him blows on his head with that stick. This story, if true, definitely negatives the plea of right of private defence because after the deceased had been disarmed the Respondent had no right to hit him on his head in exercise of his right of private defence. Such an attack on the deceased would be by way of retaliation and would not be justified. But the aforesaid story put forward by p.ws. 3 and 4 has not been spoken to be p.ws. 1 and 5