JUDGMENT : Ahmad, C.J. - Sunadhar Domb of village Katiguda, brother of Sadhu Domb (p.w.13) was killed on Friday the 29th November 1963 at 4 p.m. by the side of the village road near Kendubhatta which is at a distance of about one furlong from village Sigmulhecha-where it is said the altercation between the parties originally began. The information about his death 'was given at the Police Station Mathili-which is about three miles from the place of occurrence-on the next day (30-1l-1963) at 12 noon by Sadhu Domb (p.w.13) who claimed to be a eye-witness of the occurrence along with two others namely Nilakantha Naik of village Sigmulbecha (p.w.3) and Guru Domb of village Katarimajhiguda (p.w.14). According to him the deceased Sunadhar Domb was murdered by the two Appellants namely Cherungu Boipari (aged 26 years) and his father Lochamali Boipari (aged about 55 years) both of village Katarimajhiguda-the former with an axe and the latter by an arrow. 2. The learned Sessions Judge who tried the accepted the prosecution story and convicted the Appellant No. 3 Cherungu Boipari substantively u/s 302, Indian Penal Code and Appellant No. 2 Lochmal Boipari constructively u/s 302, Indian Penal Code read with Section 34, Indian Penal Code and sentenced them both to transportation for life. Appellant Cherungu was also convicted u/s 304, Indian Penal Code for causing hurt with an axe on the person of Guru Domb (p.w.14) and sentenced to undergo rigorous imprisonment for a period of six months for that offence, with a direction that the two sentences imposed on him were to run concurrently. 3. The prosecution case, as deposed to by the aforesaid three eye-witnesses, that the deceased Sunadhar was killed as a result of injuries caused on his person by axe, is fully corroborated by the evidence of the doctor (p.w.9) who held the post mortem examination on the dead body of the deceased on 2-12-1963 at 8 a.m.. In the course of his examination, he found the following injuries on the body of the deceased: (i) a transverse deep incised wound 3" x 3" X 3" across the throat. In the course of his examination, he found the following injuries on the body of the deceased: (i) a transverse deep incised wound 3" x 3" X 3" across the throat. (ii)-a transverse deep incised wound 21/2" x 2" X 2" on the right side of the neck, (iii) one punctured wound 1/2" x1/4" x 1" on the upper third of the left forearm; (iv) one incised wound 2" x 1" x 11/2" on the back soft part of the skull ; (v) one incised wound l" x 11/2" on the right forearm 2" above the wrist. Further the doctor also stated that: On opening the dead body, under external injury No. 1, I found the wound to have cut through the muscles, blood vessels, larynx,the oesophagus, and the wound had reached the vertebra. Then, under injury No. 2 muscles, the large vessels were divided; under injury No. 5, I found nothing in particular; under injury No. 4, I found a fissured fracture of the scalp and under the punctured wound there was nothing in particular. In the opinion of the doctor "all the injuries were ante mortem and death was due to hock and haemorrhage". Further he also closed that "all the incised wounds were possible by any cutting weapon like M.O. III and the punctured wound by a weapon like an arrow. Injury No. 1 was definitely fatal and death would be instantaneous. Injury No. 2 is also fatal and grievous, and death could be instantaneous. Injury No. 4 is grievous though not necessarily fatal; and the other two (i. e. 3 and 5) are simple". 4. The other injured person namely Guru Domb (p.w.r.4) was also examined by the same doctor. That was done on 3-12-1963. On his person there was found only one injury 1" X 1/2" X 1/2" on the lateral side of the lower part of the right thigh. This, according to his opinion, was a simple injury caused by a sharp-cutting weapon such as a tangi. So in regard to the injury on this person also, the evidence of the three eye-witnesses is fully supported by the medical opinion. 5. We have carefully read the evidence of these eye-witnesses and, in our opinion, their evidence, on the whole, at least in regard to the main story, is consistent and cogent. So in regard to the injury on this person also, the evidence of the three eye-witnesses is fully supported by the medical opinion. 5. We have carefully read the evidence of these eye-witnesses and, in our opinion, their evidence, on the whole, at least in regard to the main story, is consistent and cogent. It is true that here and there are certain variations and contradictions in their statements in regard to the exact detail and also as to the order in which the assault took place. But all these witnesses have uniformly and consistently deposed that it was Appellant Cherungu who caused the injuries on the person of the deceased with the axe he had in his hand, and that the arrow which caused the punctured wound on the person of the deceased was shot by Appellant Lachmalo. Over and above it, Appellant Cherungu also in a way-if not directly at least indirectly-has in his statement u/s 342, Code of Criminal Procedure admitted that it was he who inflicted the tangi. A injuries on the person of the deceased. The exact statement made by him was that: They chased and threw the tangi at me. It sed me. I picked it up and brandished it. To the same effect is the admission made by him in the confession which was recorded on 9-12-1963 at 11 A.M.. Therein he stated that I have committed the offence. How shall I speak falsely regarding the commission of the offence? Further he added therein that They threw the axe at me, I seized the axe and when they again came to me I gave a stroke with the axe at the neck of Suna Domb. He died. The plea of the Appellant Cherungu however seems to be that the assault made by him on the deceased was in exercise of the right of private defence. To appreciate this claim it is necessary to know a bit more in detail as to what had already happened before the occurrence. 6. It is admitted by both partie's that at Mathili on every Friday there is always market held, and people from all the surrounding areas go there to make their necessary purchases. On this particular Friday when the occurrence took place Appellant No. 1 Cherungu was said to have been selling illicitly distilled liquor in village Jamulibhatta near about a place known Beminibhatta. On this particular Friday when the occurrence took place Appellant No. 1 Cherungu was said to have been selling illicitly distilled liquor in village Jamulibhatta near about a place known Beminibhatta. At that place there was also an axe with him. Sometime in the afternoon, the three Dombs, namely, (i) the deceased Sonadhar. (ii) his brother Sadhu (p.w.13) and (iii) Guru Domb (p.w, 14) while on their way back from the market, had been to the place of Appellant Cherungu and purchased some liquor. It was over the price of liquor that thereafter an altercation ensued between the parties. In the course of that altercation the three Dombs not only refused to make any payment for the liquor purchased but further threatened Appellant Cherungu that they would report the matter to the Police as to his illicit destitution of liquor unless he paid them a sum of Rs. 15/ - as hush money. At that time the Appellant had only about Rs. 4/ - with him in his pocket. The three Dombs are said to have forcibly snatched that money from him. In the meantime, it is said, Odari Guru (p.w.5) of village Limiguna also happened to arrive there from the market. This witness has stated that - Last Dewali on Friday, when I was returning from the market, I saw near Sigmulbeecha village Guru Domb was holding the hand of A-1 (Cherungu) and Sunadhar and Sadhu pushing A-I land necking and demanding money, or else to go the Police station. Sadhu was holding this tangi (M.O. III). A-I was crying. When I wanted to intervene I was threatened by the Dombs and so I fled away. Then A-I before I left the place, somehow managed to escape from their clutches and fled to the home of p.w.4 and the three Dombs chased him. A-I asked me to inform his father about it. The lands of A-I would be by the side of the path of my village. I found A-2 in his village field and so told him the incident, and advised him to go and help his son. The lands of A.1 would be half a mile from the place at which 1 saw he Dombs and A.I. Then I saw A.2 proceeding to his thrashing floor and collected a bow and some arrows and proceeded to Sigmulbecha. The lands of A.1 would be half a mile from the place at which 1 saw he Dombs and A.I. Then I saw A.2 proceeding to his thrashing floor and collected a bow and some arrows and proceeded to Sigmulbecha. And it finds corroboration from the evidence of p.w.4 who in his evidence has claimed that Last Dewali month, on a Friday three Dombs namely, Guru, Sadhu and Sunadhar chased accused No. l who came running to my house. I asked Cherungu as to why be was running away and he told me that he was being chased by the Dombs. Soon the three Dombs came up. Cherungu told me that as he was selling liquor the Dombs were demanding money from him and threatening to take him to the Police unless some money was paid. To satisfy them he was needing money. I pleaded my inability. The three Dombs who had then come up, then told me the same thing-unless Rs. 15/ - was paid they would not leave accused No. 1. I directed them to approach my uncle p.w.3 who was present and then I came away. Further, in cross-examination, this witness stated that - the shirt of accused No. 1 had been torn when he approached me. Accused No. 1 told me that he had Rs. 4/ - in his pocket which had been taken away by the Dombs, that he had been assaulted by the Dombs, and that they were further demanding Rs. 15/ -. 7. The last then in this chain is the evidence of p.w.3 Nilakantha Naik. He has deposed that In the last Dewali month, on a Friday, while I was sitting after returning from Maithili shandy in my house, four people namely accused No. 1 and three Dombs-Sadhu, Sunadhar and Guru, came to me at about 3 p.m.. Accused No. 1 wanted me to help him with Rs. 15/ - which, he would be giving to the Dombs. I had no money, and I only paid Rs. 3/ - as he pressed me too much. Accused No. 1 gave that money to Guru Domb. Then I left for my land and the accused and the Dombs left my house after me in the same way as the same path leads to Majhiguda. At that time Sadhu was holding a tangi like M.O. III and the other three were unarmed. Accused No. 1 gave that money to Guru Domb. Then I left for my land and the accused and the Dombs left my house after me in the same way as the same path leads to Majhiguda. At that time Sadhu was holding a tangi like M.O. III and the other three were unarmed. When, thus, we were proceeding, at Kendubhatta accused No. 2 suddenly came out with bow and arrows and shot an arrow which struck the left hand of Sunadhar. Accused No. 2 cried out to kill and so accused No. 1 struck Sunadhar with the tangi of Sadhu. I saw three strokes being given-one on the neck, one on the vault of the head and one on the throat. In fear, I fled. The statement of p.w.3, therefore, makes it clear that by the time the three Dombs and Appellant Cherungu reached the place of occurrence the other Appellant Lachmalo (father of Appellant Cherungu) had already received information from p.w.5 as to how the three Dombs were mercilessly trying to extort Rs. 15/ from his son by force and were putting him to all sorts of maltreatment and illegal coercion. Hearing this, as stated by p.w.5 he got himself armed with bow and arrow and started for the village to rescue his son from their clutches. 8. Thus their evidence discloses that the assault began when the two parties met on the way and that it was undoubtedly opened by Appellant Lochan as soon as he saw the Dombs coming from the other side with his Bon Cherungu. But their evidence is silent as to whom the tangi originally belonged, and as to how it changed hands from stage to stage, and ultimately, at the time of assault, came in possession of Appellant Cherungu. The plea raised by Cherungu is that it was not his axe and that it belonged to p.w.14 Guru Domb. But I think this part of the defence is not true. It has been perhaps so stated by him because of fear complex. P. ws. 6 and 7 have unequivocally deposed that this axe was purchased and possessed by Appellant Cherungu and there is nothing on record to suggest that their evidence is not true. In this they are supported also by p. ws. 13 and 14. It has been perhaps so stated by him because of fear complex. P. ws. 6 and 7 have unequivocally deposed that this axe was purchased and possessed by Appellant Cherungu and there is nothing on record to suggest that their evidence is not true. In this they are supported also by p. ws. 13 and 14. It however seems that though originally when the altercation between the parties began in village Sigmulbecha the axe was with Cherungu, it subsequently in the course of that altercation, changed hands. According to p. ws. 4 and 5 the person who was thereafter seen in possession of it was Sadhu (p.w.13). But this is denied by p.w.13. His evidence is that it was p.w.14 who got it from Cherungu. P.w.14 also however, in his statement does not admit it. According to him the person who got it next was the deceased Sundadhar himself. Therefore all that it comes to is that the evidence on the point as to who got possession of the axe from the Appellant Chernngu is not consistent. But this much in any case is well established that thereafter the person who got it was one of the three Dombs. The claim of p. ws. 13 and 14 is that thereafter, as soon as Appellant Cherungu paid Rs. 14/ - to Guru Domb (p.w.14) while they were still in village Sigmulbecha, this axe was given back to him. This part of the evidence of these two witnesses is, I think, not true. They are after all partisan witnesses and therefore their evidence has to be scrutinised with care and should not be accepted un-corroborated by independent evidence. But there is no such corroboration on the record and, on merit, this part of their evidence does not fit in with the probability of the situation. If in fact the three Dombs had been out to extort money from Appellant Cherungu by force and threat and had already, in the course of that attempt, maltreated, assaulted and coerced him for this purpose, in all possible ways, it is not reasonable to expect that until they had gained their object they would have ever given back the tangi to him willingly. Perhaps their scheme was to go along with Appellant Cherungu to his father Lachmalo and there to release the son only on condition that the money they demanded was paid to them by the father. In the meantime, however, as already stated, Appellant Lachmalo had already set out for the village. Therefore, the sudden assault by Appellant Lachmalo on Sunadhar with his arrow must have had an unexpected shock on the three Dombs. Perhaps in the course of that confusion, Appellant Cherungu being encouraged by the presence of his father, somehow successfully managed to escape from the clutches of the Dombs. That, as it appears from the claim made by Appellant Cherungu, in his confession and in his statement u/s 342, Criminal Procedure Code, made the Dombs desperate and they in that desperation attempted to make him disabled by throwing the tangi at him. The attempt however failed but that gave an opportunity to Cherungu to get hold of that tangi. Thus he was in a position to use it in the course of assault. 9. We therefore now come to the plea of right of self defence raised on behalf of the Appellants. This claim has been consistently made in all the statements of Appellant Cherungu that he made at different stages in the course of investigation and trial. In all of them he has asserted that whatever he did was done by him to save his own life. The first in the chain of these statements is the extra judicial confession that is said to have been made by him before p. WE'. 1 and 2 ; the second is the statement made in the course of judicial confession; and the third is the statement u/s 342, Criminal Procedure Code. 10. The extra judicial confession was made immediately after the occurrence in the evening. P.w.1 Guru Naik is the Headman of the village Katarimajhiguda. He was then sitting in his house along with his co-villager Pitabas Majhi (p.w.2). Appellant Cherungu seems to have gone to his house with a view to take him to the police station and there to report the entire matter to the police. At that time the tangi was also with him but as by then it was already dark, p.w.1 asked to wait till the next day. But the very conduct of this Appellant in going to p. ws. At that time the tangi was also with him but as by then it was already dark, p.w.1 asked to wait till the next day. But the very conduct of this Appellant in going to p. ws. 1 and 2 along with the tangi and in making the statement immediately after the occurrence that he was very much troubled by the Dombs and that they forcibly took away R.s. 4/ - from him and therefore, he in disgust killed one of them, is very much consistent with his claim that his life in their hands was in peril. 11. The same again is the claim made in his judicial confession and in the statement made u/s 342, Criminal Procedure Code. 12. In appreciating this part of the defence made by Appellant Cherungu we have to keep in view the entire totality of the occurrence right from the place where the dispute over the demand of the price of liquor began, to the place where the assault ultimately opened. P. ws., 3, 4 and 5 have consistently deposed that the three Dombs, namely the deceased, p.w.13 and p.w.14, had, in the course of that dispute, made a common cause to extort Rs. 15/ - from Cherungu and in the course of that attempt, they had already snatched away Rs. 4/ - from pocket, torn his shirt, and assaulted him badly. But that was not all. They thereafter dragged him first to the house of p.w.4, and then to the house of p.w.3 to extort a further sum of Rs. 15/ - by way of hush money; and the Appellant in order to save his life, had to yield to their illegal demand and to ask these prosecution witnesses to lend that amount to him. But they had perhaps some idea about the high-handedness of the Dombs and so they had no courage to face them. P.w.4 therefore took them to p.w.3, and the latter disposed therein of by making payment of Rs. 3/ - only which the Appellant gave to the three Dombs. But even then they were not satisfied and went ahead to take him forcibly to his father Lachamalo (Appellant No. 2)-perhaps under the impression that as a price for the release of his son he would willingly agree to pay that amount. 3/ - only which the Appellant gave to the three Dombs. But even then they were not satisfied and went ahead to take him forcibly to his father Lachamalo (Appellant No. 2)-perhaps under the impression that as a price for the release of his son he would willingly agree to pay that amount. In these circumstances the father, in my opinion, was perfectly justified in shooting his arrow at the deceased with a view to rescue his son not only from duress and detention, but from extortion. The injury caused by Appellant No. 2 was a simple one and there is no evidence of any preconcert or the meeting of mind between the two Appellants about the fatal assault on' the deceased that was thereafter inflicted by Appellant Cherungu. Therefore, he cannot be held guilty for that fatal injury. u/s 101, Indian Penal Code if the offence which occasions the exercise of the right be not one of those enumerated in Section 100, Indian Penal Code every person has a right to defend his own body and the body of any other person against the offence affecting the human body. Therefore, Appellant No. 2 Lochmalo, in causing a Simple injury on the person of the deceased, is fully protected u/s 96, Indian Penal Cod as he, knowing the danger to the person of his son Cherungu did it with the sole object of saving him from the hands of the three Dombs. Appellant Cherungu had already been put to extreme torture and ill treatment and further when at the place of occurrence he somehow managed to escape from the clutches of the three Dombs at the sight of his father lachmalo, the tangi was thrown at him and that must have been done with a view to get him again arrested by inflicting some injury on his person. Fortunately, the tangi did not strike him, but Appellant Cherungu must be still suffering from a reasonable apprehension that they may forcibly take back the tangi again from him, and thereafter assault both him and his father severely, or may, in the course of that assault, put them both. u/s 102, Indian Penal Code the right of private defence of the body continues so long as such apprehension of danger to the body continues. Therefore, under law, Appellant No. 1 Cherungu was justified in inflicting the fatal injury on the deceased. u/s 102, Indian Penal Code the right of private defence of the body continues so long as such apprehension of danger to the body continues. Therefore, under law, Appellant No. 1 Cherungu was justified in inflicting the fatal injury on the deceased. It is true that in inflicting the injury with the axe he did not stop after the first blow, but repeated it two or three times. That however in my opinion, on the facts of this case does not make any difference. The evidence all the record makes it clear that the blow on the neck of the deceased was given first, and according to the doctor that injury by itself was sufficient to cause instantaneous death of the deceased. Therefore the repetition of the strokes there after did not make the position any worse and for that reason alone, Appellant Cherungu cannot be said to have exceeded the right of private defence. 13. Last is the injury inflicted by Cherungu on p.w.14. That injury as stated by the doctor was a simple one and that as already stated by me, was inflicted most liberally in the course of the assault on the deceased when p.w.14 must have tried to over-power Appellant Cherungu. Had he, in those circumstances, not inflicted any injury on p.w.14 the that might have succeeded in snatching the tangi back from him and thereafter might have taken full revenge. In that view of the matter the assault on p.w.14 also cannot be held to have been unjustified. The view taken by the learned Sessions Judge on this question of right of private defence, is to the effect that the defence contention of the existence of circumstances for the exercise of the right of private defence is clearly unsustainable and that is based on the sole assumption made by him that probably nothing would have turned out if accused No. 2 had not suddenly appeared". But in my opinion, this assumption is not supported by the materials on record. Appellant Cherungu had already been assaulted and was being forcibly taken from the village to the place of occurrence with a view to get further money extorted from his father for his release. The information about it was already in advance communicated to his father by p.w.5. Appellant Cherungu had already been assaulted and was being forcibly taken from the village to the place of occurrence with a view to get further money extorted from his father for his release. The information about it was already in advance communicated to his father by p.w.5. Thereafter if, under the circumstances the father opened the arrow at the sight of the three Dombs he cannot be held, as already stated, to have done anything wrong; ann even if he had not done that, I think the matter would not have rested there; for Appellant Cherungu was still in their custody and they must have tortured him to the extreme until the amount demanded was fully realised. There is, therefore, no basis for the assumption made by the learned Sessions Judge that - nothing would have turned out if accused No. 2 had not suddenly appeared. 14. I have therefore no hesitation to hold that all that the two Appellants did in inflicting the assault on the deceased and on p.w.14, was done by them in exercise of the right of private defence and as such they cannot be held to have committed any offence. 15. The appeal is accordingly allowed, the conviction and sentence imposed on the two Appellants are set aside, and both of them are directed to be released forthwith. Misra, J. 16. I agree. Final Result : Allowed