JUDGMENT : R.K. Das, J. - Accused Sanya Sisa has filed this appeal against an order dated 25-1-1962 passed by Sri C. Mahapatra, Sessions Judge, Koraput-Jeypore convicting him u/s 304, Indian Penal Code and sentencing him to undergo R.I. for seven years in Sessions Case No. 21 of 1961. 2. The prosecution case may be stated as follows: On the midnight of 18-1-1961 the accused and his wife Khila Sukri (P.W. 1) were sleeping in their hut, when they found a person to have effected a hole in the eastern wall of their hut and thrust his head into the room through that hole. The accused immediately gave a blow on the head of the trespasser when he immediately withdrew his head. Thereafter he opened the door and found two burglars and chased them. When one of the burglars thread to attack the accused the accused killed him. Thereafter some of the villagers were called and first information was lodged before the police by a villager, Krupasindhu Panigrahi. After investigation and commitment proceedings, the accused was put up for trial before the Court of Sessions. 3. The plea of the accused was of a right of private defence. According to him he chased the culprits to some distance when the deceased raised his Tangi to assault him and he with a view to save his own life, gave a blow with his lathi as a result of which the Tangi fell down on the ground. Apprehending further assault, he inflicted some more blows with the Tangi on the deceased which ultimately resulted in his death. 4. There is no eye-witness to the occurrence and the whole case depends upon the statement made by the accused himself to other witnesses as to the circumstances under which the deceased was assaulted. In fact the defence taken by the accused is nothing more than what he had stated before the persons i.e. that the deceased wanted to commit burglary in the house of the accused on the night of occurrence cannot be doubted. In fact the defence taken by the accused is nothing more than what he had stated before the persons i.e. that the deceased wanted to commit burglary in the house of the accused on the night of occurrence cannot be doubted. P.W. 1 the wife of the accused is positive in her evidence that when she and her husband were sleeping inside their hut, they found at about midnight a person thrusting his head through a hole made in their wall and when her husband dealt a blow with a lathi on the head of the intruder, he withdrew and fled away. On opening the door they found two persons running away and the accused chased them with a lathi. A knife was also found near the hole of the wall P.W. 2 has also stated that he found a hole on the wall of the accused, sufficient for a man to get in and a knife lying near about the wall. To the same effect is the evidence of P.W. 3. The investigating officer (P.W. 8) found the hole on the wall with a dimension of about 13" x 20" when he visited the spot and there was also some loose earth near about the hole. Thus, it is proved beyond doubt that there was an attempt to commit burglary in the house of the accused. P.W.1 has proved that the accused chased the burglars which is also admitted by the accused himself. P.W.2 has deposed that the accused called out to him saying that he had killed a burglar and on interrogation the accused informed him that when the deceased was raising his Tangi to give a blow on him, he stuck the handle of the Tangi with his lathi as a result of which the Tangi fell down from his hand when the accused picked up the same and dealt a blow with it on the deceased. To the same effect is the evidence of P.W. 3. Thus, it would appear that from the very start, the accused has clearly stated the circumstances under which the deceased met with his death. From near the deadbody, an iron-rod (M.O.I) was found, and as stated above a knife was also found from near the hole made in the house of the accused. Thus, it would appear that from the very start, the accused has clearly stated the circumstances under which the deceased met with his death. From near the deadbody, an iron-rod (M.O.I) was found, and as stated above a knife was also found from near the hole made in the house of the accused. Thus, it is obvious that the burglars came armed with house-breaking instruments and also with a knife probably to terrorise the inmates of the house or to inflict such bodily injuries as might be necessary. That the deceased was also armed with an axe cannot be doubted. According to the evidence of P.W. 1 the accused chased the burglars only with a lathi known as 'Nanseri Theng' but he returned from the spot with a lathi, a Tangi and an iron implement, M.O.I. P.Ws. 2 and 3 have stated that the lathi and the Tangi were stained with blood, The existence of blood-marks both on the Tangi and the lathi would inevitably lead to the conclusion that both these weapons were used and therefore the story as put forth by the accused that he gave a blow with his lathi as a result of which the Tangi fell down and thereafter he inflicted some more blows with the Tangi on the deceased which resulted in his death, appears to be quite plausible. It is not the prosecution case that the Tangi belongs to the accused. In view of this position, the only question that would arise for consideration is if the deceased was armed with a Tangi and wanted to use the same against the accused, and whether the action of the accused in attempting to disarm the deceased giving the fatal blow, can be said to be in exercise of his right of private defence and whether in the circumstances, be can be said to have exceeded that right. 5. The right of private defence is a valuable right given to a citizen to save himself from the aggression of criminals and the law does not require a person, however, law-abiding he may be, to behave like a rank coward on any particular occasion. 5. The right of private defence is a valuable right given to a citizen to save himself from the aggression of criminals and the law does not require a person, however, law-abiding he may be, to behave like a rank coward on any particular occasion. In the instant case, there was nothing wrong in the accused coming out of his hut and chasing the miscreants without allowing himself to the mercy and depredations of thieves and trespassers, to a reasonably safe distance either to effect the arrest of the culprits or to scare them away. That the accused had a right of arrest of the deceased burglar cannot be doubted. Sections 59 of the Code of Criminal Procedure gives him such a right and it says: Any private person may arrest any person who in his view commits a non-bailable and cognizable' offence, or any proclaimed offender, and without unnecessary delay, shall make over any person so arrested to a police officer, or in the absence of a police-officer, take such person or cause... In the present case the burglary was attempted to be committed in the very presence of the accused and in his own house and undoubtedly therefore, the accused had the right of arrest of the culprit. That was perfectly a legal act permissible under the law. In such circumstances, the burglar cannot take up the plea of right of private defence against the act of the accused as there is no right of private defence available under the Code against any act which by itself does not amount to an offence, but its a perfectly legal act. Thus, an offender has no right of private defence under the law. This position of law appears to be well. found on a decision of the Allahabad High Court reported in Sheo Balcik Dusadh v. Emperor 498 CriLJ 62 where their Lordships have held: When a man is found committing a non-bailable and cognizable offence and then tries to escape, the whole is to be treated as one single transaction and any person who either sees him committing the offence or finds him running saw immediately after the commission of the offence would be entitled to arrest him u/s 59, Code of Criminal Procedure. The offender has no right of private defence against any attempt made by any such person to arrest him. The offender has no right of private defence against any attempt made by any such person to arrest him. A part from the right of arrest, the accused had the right of chase the burglars to a reasonably safe distance in order to effect a successful retreat of the culprit. What would be a reasonably safe distance is always a question of fact depending upon the circumstances of each case. But here according to the evidence, the assault on the deceased took place at a distance of about 100" to 150" from his house which in my opinion is not very far from his house, and the accused under the circumstances was justified in pursuing the culprit to that distance so as to dispel all apprehensions of danger to his life and property. 6. As I have said the accused fully accepts the prosecution story and in fact a substantial part of the prosecution story is based upon the statement of the accused. If that statement is accepted, it amounts to this that the deceased was armed with a Tangi and wanted to attack the accused and the accused in order to save his own life retaliated as a result of which the axe fell down and was used by the accused. It was a dark night and as has been rightly pointed out by Mr. Behuria, learned Counsel for the Appellant it was not possible for the Appellant to know whether his blow fell on any vital part of the deceased. According to the doctor (P.W. 6) who conducted the post mortem examination, there were 11 injuries on the person of the deceased, of which injury Nos. 1 to 5 were simple in nature and could possibly have been caused by coming in Contact with a rough surface and injury Nos. 4 and 5 could be caused by a fall; So also injury No. 6. Injury Nos. 7 to 10 were simple in nature and could have been caused by a fall or a blow. The only grievous injury was injury No. 11, an incised would on the left side of the face which might have proved fatal, and it could have been caused possibly by a Tangi. The deadbody was also found lying against the bank of a Nala which is 10" wide and somewhat deep. The only grievous injury was injury No. 11, an incised would on the left side of the face which might have proved fatal, and it could have been caused possibly by a Tangi. The deadbody was also found lying against the bank of a Nala which is 10" wide and somewhat deep. It is not improbable that after having received the injuries in course of the scuflle the deceased fell down and got some injuries also. Under the circumstances of this case also it cannot be said that the accused had any time left to have recourse to the authorities. It is also evidence that the accused had reasonable apprehension that either death or grievous hurt would be the inevitable result unless he took a bold stand and retaliated the burglar with his own weapon. The circumstances in which he was placed were amply sufficient to give him the right of private defence of his person even to the extent of causing death. A measured infliction of injury is not possible under the circumstances. These are things which cannot be after all weighed in too fine a scale at a time when the life of a man is in danger. Taking all these circumstances into consideration, it can never be said that the accused had exceeded his right of private defence in any manner whatsoever in giving the blows on the burglar which had resulted in his death. Thus, his action does not amount to an offence u/s 304, Indian Penal Code, for which he has been convicted. 7. In the result, the order of conviction and sentence passed upon the Appellant is set aside, and he is directed to be set at liberty forthwith.