The right of private defense is negated when the response is disproportionate to any provocation, as established in the court's findings on the nature of the attack.

JUDGMENT :

S.Muralidhar, C.J.

1. The present appeal is directed against the judgment and order of conviction dated 2^nd May, 1998 passed by the learned Additional Sessions Judge-cum-Special Judge (Vigilance), Berhampur in Sessions Case No.22 of 1998 [SC No.261 of 1997 (GDC)] arising out of G.R. Case No.75 of 1997 (corresponding to Rambha Police Station Case No.35 of 1997). By the said impugned judgment and order of conviction, the learned trial Court convicted the present Appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC) and sentenced him to imprisonment for life.

2. The case of the prosecution is that on 1^st April, 1997 at around 7.30 pm, the deceased Ghanashyam Behera was sitting in his verandah in Gajapati Nagar when the accused suddenly came there and attacked him by giving him stab blows on his left chest and left belly causing bleeding injuries. The deceased became unconscious and was immediately removed to the Rambha hospital. As his condition was serious, the doctor there referred him to the MKCG Medical College and Hospital, Berhampur. While he being taken to the MKCG Medical College and Hospital, the deceased succumbed to his injuries and was brought dead to the said hospital. Thereafter a written report was lodged before the Rambha Police Station (PS), which came to be registered as Rambha P.S. Case No.35 of 1997 under Section 302 IPC. After completion of investigation, the charge-sheet was filed. The Appellant having pleaded not guilty was sent up for trial.

3. The prosecution examined as many as 14 witnesses. The defence did not examine any witness. The prosecution witnesses (PWs) 7 to 10, who were examined as eye-witnesses to the occurrence. On analyzing the evidence, the trial Court came to the conclusion that the Appellant was guilty of the offence under Section 302 IPC and sentenced him as noticed hereinbefore by the impugned judgment.

4. It must be noticed here that by an order dated 10^th March 2000, the Appellant was enlarged on bail subject to the satisfaction of the trial Court.

5. Among the PWs. who were crucial to the case of the prosecution, were P.W.8 (Saibani Behera), the wife of the deceased and P.W.9 (Tarinisen Behera), eye-witnesses to the occurrence. Neither of these witnesses turned hostile.

6. P.W.8 stated that on 1^st April 1997 at around 7 PM, the deceased was in the verandah of their house. She was inside the house preparing to serve meals. She heard noise in the verandah and immediately came there. By that time the accused had stabbed the deceased on his chest and belly with a knife. By then, according to P.W.8, P.W.3-B. Sanyasi Prusty (who had a shop in a portion of the house of the deceased), P.W.4 (Balaram Behera), P.W.9 (Tarinisen Behera) and P.W.10 (Kalia Behera), were present at the spot. The mother of the deceased, Dukhi Behera (P.W.7) had also reached the spot by that time. P.W.8 stated that the accused, after stabbing the deceased, ran away towards his house with his knife. P.W.8 then stated that since the blood from the wound could not be stopped, they immediately removed the deceased to the Rambha PS and from there they took him to the Rambha Hospital. The doctor there bandaged the wound and referred the deceased to the MKCG Medical College and Hospital, where the deceased was brought by an auto-rickshaw. However, on the way, he died.

7. In the cross-examination of P.W.8, she denied the suggestion that the deceased has stolen a fishing net of one Padmanava Behera in August, 1992