JUDGMENT : Das, J. - This is an appeal by the State against an order dated 15-12 1961 passed by Sri G. Mohapatra, Sessions Judge, Koraput-Jeypore, acquitting the accused-Respondent of an offence u/s 302, Indian Penal Code in Sessions Case No. 6 of 1961. 2. On 16-11-1960 at about midnight, a village dance called 'Dhansa Dance' was going on with the help of musical instruments such as drums and pipes wherein the accused Budra Golpeda and the deceased Muni Khilla along with some of the prosecution witnesses took part. When the dance was going on in full swing the deceased wanted the piper to change the tune at which the accused got annoyed for stopping the dance and there was some altercation between the two during which the deceased pulled out some hairs from his pubic region and thrust the same on the face of the accused. Thereupon the accused gave a slap on the deceased protesting against his misbehavior and the deceased brought out one half-burnt bamboo stick (M.O. II) from the fireplace near the piper and dealt some blows on the accused. In the scuffle that ensued the accused brought out a pen knife and gave two blows on the body of the deceased as a result of which he fell down and expired on 18-10-1960. First information was lodged before the police by P.W. 4 the younger brother of the deceased on 18-11-1960 and after due investigation and commitment, the accused stood his trial in the Court of Sessions and was acquitted by the learned Sessions Judge. It is against this order of acquittal, this appeal has been preferred by the State. 3. The plea of the accused is one of denial. 4. The evidence of the prosecution may be classified into three categories: (1) The eye-witnesses to the occurrence: (2) The witnesses before whom dying declaration was made by the deceased; and (3) The witnesses before whom extra-judicial confession was made by the accused. 5. The learned Sessions Judge accepted the prosecution case so far as the occurrence is concerned, and held as follows: If we believe the P.Ws. there can be on doubt to accept that the accused inflicted the injuries. The whole thing is whether the discrepancies are such as to discredit an the witnesses. 5. The learned Sessions Judge accepted the prosecution case so far as the occurrence is concerned, and held as follows: If we believe the P.Ws. there can be on doubt to accept that the accused inflicted the injuries. The whole thing is whether the discrepancies are such as to discredit an the witnesses. In view of my above observation, I am not inclined to hold that all the witnesses are coming with false stories and it is evidently clear in spite of the fact that the recovery of the knife and the alleged extra judicial confession are not reliable, yet there is ample reason to believe that the deceased has got the injuries through the agency of the accused. but thus acquitted the accused on the ground that he committed the act in self-protection and under grave and sudden provocation. 6. P.Ws. 2, 4, 11, 12 and 13 are said to be eye-witnesses to the occurrence as also to the dying declaration made by the deceased. Doubtless there are some discrepancies in the evidence of these witnesses. P.Ws. 2 and 4 though not had actually seen the act of stabbing by penknife, they had seen the entire occurrence up to the stage of assault by the deceased with the half-burnt bamboo. P.Ws. 1 Land 12 stated in their evidence to have seen the occurrence from the beginning till the infliction of the injuries with the knife by the accused on the deceased, though it was pointed out that they did not make any such statement before the committing Court. P.W. 13, however, made a consistent statement both in the Committing Court as well as at the trial about the actual act of stabbing by the accused. These very witnesses are the witnesses to the dying declaration made by the deceased. P.Ws. 2, 3, 6 and 7 who happen to be the relations of the accused have stated that the accused made an extra-judicial confession before them admitting the infliction of the injury on the deceased. The accused informed his brother-in-law, P.W. 2 that the knife with which he had stabbed the deceased had been thrown in the Bari of Dinabandhu Palashi and requested him to pick it up and make it over to the Sarpanch, and at the request of the Punch the witness picked it up. The accused informed his brother-in-law, P.W. 2 that the knife with which he had stabbed the deceased had been thrown in the Bari of Dinabandhu Palashi and requested him to pick it up and make it over to the Sarpanch, and at the request of the Punch the witness picked it up. He also identified it to belong to the accused which he used to carry always. This knife, M.O. I, which was seized by the police had stains of blood on it, though the Chemical Examiner could not detect the origin of the blood on VI. O. I due to disintegration. Nothing has been brought out to discredit the evidence of these witnesses. 7. P.W. 1 the doctor who examined the dead body of the deceased found two perforated wounds on the left lower intercostal space and on the right side of the abdomen which were ante-mortem and each of the injuries could cause death in ordinary course of nature. Thus, in view of the evidence of the eyewitnesses, the evidence of dying declaration and the medical evidence, it must be held that the story of the prosecution has been fully made out against the accused that he was responsible for having killed the deceased. 8. The next question that arises is whether the act of the accused is protected by his right of private defence as is not contended by Mr. Misra, learned Counsel for the Appellant. The case of the accused was one of mere denial and he did not take any specific plea of right of private defence. But it is well settled that the question of right of private defence can also be examined from proved facts of a case even though the accused had failed to take any specific plea to this effect. The learned Standing Counsel on behalf of the State contended that even if the right of private defence was available to the accused in this case, he had exceeded that right since he had no justification to inflict more harm than was necessary for his self defence. The learned Standing Counsel on behalf of the State contended that even if the right of private defence was available to the accused in this case, he had exceeded that right since he had no justification to inflict more harm than was necessary for his self defence. According to him there was no necessity or justification to inflict two fatal blows on the deceased since after the first one which according to the doctor was fatal in its nature, the deceased was sufficiently disabled and the accused had no reasonable apprehension to get further assault or grievous hurt in the hands of the deceased. 9. It cannot be doubted that the accused had not time enough to take recourse to the protection of public authorities and in view of the previsions of Section 99, Indian Penal Code, it cannot be disputed that the accused was not entitled to inflict more harm than was necessary for the purpose of his self-defence. Section 100 enumerates the circumstances under which the right of private defence can be extended to cause death of the assailant if the assault reasonably caused the apprehension that death or grievous hurt will otherwise be the consequence of so assault. "Grievous Hurt" has been defined in Section 320 to include inter alia permanent privation of the sight of either eye, permanent privation of the hearing of either ear and permanent disfiguration of head or face or any hurt which may endanger life. 10. In the present case the deceased admittedly behaved very shabbily by thrusting his public hair on the face of the accused and he also in fury brought out the half-burnt bamboo from the fire-place and according to P.W. 2 gave two blows with the same on either side of his shoulder. The doctor also found one injury on the left side of the back of the accused, which could have been caused by a bamboo lathi like M.O. II. That a half-burnt bamboo like M.O. II when used with some force can cause disfiguration of head or face cannot be doubted. Seeing the temper of the deceased and the unusual way in which he behaved the accused might have reasonably entertained an apprehension that grievous hurt might result to his person with the half-burnt bamboo which the deceased used. That a half-burnt bamboo like M.O. II when used with some force can cause disfiguration of head or face cannot be doubted. Seeing the temper of the deceased and the unusual way in which he behaved the accused might have reasonably entertained an apprehension that grievous hurt might result to his person with the half-burnt bamboo which the deceased used. The question arises whether the accused had exceeded his right of private defence or was within its limits. It cannot be disputed that the exercise of the right of private defence of the body continues as long as such apprehension of danger to the body exists. It appears from the evidence of P.W. 12 that on getting the two blows with M.O. II, the accused traced back his steps obviously with a view to run away from the spot but the deceased again caught, him when he received the stab injuries. According to P.W. 13 also the deceased continued to hold the stick M.O. II (sic) he was stabbed. Thus, there can be no doubt that under the circumstances the apprehension of his getting some grievous hurt must be still continuing in the mind of the accused until he stabbed the deceased with his pen-knife. 11. No doubt, the injury on the accused was of a minor nature, but an actual assault of the accused was not necessary before the right could arise. The question is whether he had under the circumstances any reasonable apprehension of getting grievous hurt from his assailant the deceased. As I have said already, the accused could have such an apprehension. 12. Whether the accused has exceed his right of private defence is a question which depends upon the facts of each case. It is difficult to lay down any general proposition except to keep in mind what has been laid down u/s 99 that no more harm should be inflicted than is necessary for self-defence. In the present case, it was argued that even if the accused had the reasonable apprehension of receiving grievous hurt, he had no justification to deal two fatal blows on the victim when one would have been good enough for his defence. No doubt, according to the doctor both the injuries were grievous and each could cause death in the ordinary course of nature. No doubt, according to the doctor both the injuries were grievous and each could cause death in the ordinary course of nature. It has also to be borne in mind that the deceased survived for two days and made dying declarations before a number of persons even after the receipt of such injuries. There is nothing to show from the evidence that the deceased fell down and was completely disabled after receipt of the 1st blow or in any event, the accused knew the serious effect of such a blow, and all that appears is that the two blows were given in quick succession without any interval of time. The materials here are not sufficient to justify an inference that the accused exceeded his right. Moreover these things cannot be too finely weighed. In a case reported in Amjad Khan Vs. The State, the accused fired two shots to scare away a mob which resulted in the death of one man. There the question came up for consideration whether the Appellant has exceeded the right of private defence. Their Lordships held: We have next to see whether the Appellant used more force than was necessary and here also we cannot use golden scales. He was entitled to cause death and did not kill more than one man. In view of this position of the evidence in the case, I have said it is difficult to hold that the accused had used more force than was necessary under the circumstances of the case. The learned trial court was justified in acquitting the accused though his judgment lacks elaborate discussion touching the question of the exercise of the right of private defence. In the result, there is no merit in this appeal which is accordingly dismissed. Misra, J 14. I agree. Final Result : Dismissed