JUDGMENT

Piggott, J. - On the 26th of June, last, in the moring, in a frequented part of the city of Allahabad, a scuffle took place between Yusuf Husain, who is appellant now before this Court, and one Musi Raza. The two men came to the ground, the appellant being underneath and Musi Raza uppermost. When the scuffle ended Musi Raza was found to be bleeding profusely from wounds in the chest. There were two distinct wounds, one of which was on the right side of the chest and the other on the left, over the region of the heart. The wound on the right side was long and superficial, and, so far as the medical evidence goes, might have been caused by the knife or other weapon which had just inflicted the wound on the left side slipping along the body. The wound on the left side was of a peculiar character and seems to have honestly puzzled the medical officers who examined it. The most remarkable feature about it was that it was angular in shape, with two distinct limbs each about three quarters of an inch long. The medical officer whose evidence appears the more reliable was of opinion that this wound had most probably been inflicted with a knife, but that both the injuries on the chest looked as if they had been caused by a single blow, the knife having slipped round after penetrating and then slid along the body in the course of a scuffle. It so happened that the wound on the left side, while dangerous, did not prove fatal. The pleural cavity was not penetrated, and though one of the minor arteries was severed and there was serious effusion of blood, at one time threatening to prove dangerous to life, the injury yielded to skilful treatment and Musi Raza recovered. Yusuf Husain was committed for trial on a charge framed u/s 307 of the Indian Penal Code. The learned Sessions Judge has found that Yusuf Husain stabbed Musi Raza with a knife, that he did so with intent to cause death, or at least to cause such bodily injury as he knew to be likely to result in death, but that, even if death had resulted, the case would have been covered by Exception I to Section 300 of the Indian Penal Code, in that Yusuf Husain had acted under sudden and grave provocation. He has accordingly convicted the appellant u/s 308 of the Indian Penal Code and has sentenced him to rigorous imprisonment for three years.

2. The memorandum of appeal to this Court, apart from calling in question the severity of the sentence, raises two distinct pleas. The first is whether the prosecution evidence, even if accepted at the value put upon it by the learned Sessions Judge, justifies a finding that the appellant intended to cause death or even injury likely to result in death. The other is that the appellant was acting in the lawful exercise of his right of private defence and is completely protected by the provisions of Section 97 of the Indian Penal Code. On this latter point there has been considerable argument before me. With regard to the legal aspects of the case, I have been referred more particularly to three reported cases of this Court. Queen-Empress v. Prag Dat I.L.R(1898) All. 459, Queen Empress v. Timmal I. L. R(1899) . All 112 and Emperor v. Gullu Weekly Notes, 1904, p. 113.

3. The first of these rulings seems to have only a remote bearing on the facts now before me. It lays stress upon the provisions of Section 105 of the Indian Evidence Act, and there can be no doubt whatever that, if the present appellant is to secure an acquittal on the ground that he acted in the exercise of his lawful right of private defence, it must be because the court finds this affirmatively, after laying the burden of proof on the accused person. With regard to the second of these two cases, it seems to me that the head-note goes very considerably beyond anything that was decided in the case itself. The learned Judges did not confine their consideration of that case to the fact that the right of private defence had not been pleaded by the persons whose case they were consider