Judgment :- 1. The appellant Raman Raghavan stands convicted by the Additional Sessions Judge of Quilon under S.304 I. P. C. and sentenced to R. I. for 7 years. He was charged with having committed the murder of one Joshua alias Thangachan by stabbing him in front of a bunk shop conducted by the accused. Deceased Joshua at about 7 P. M. on 18 21966 had gone to the accused's shop and purchased therefrom a match-box and some beedies worth in all 10 pies. He had no cash with him, but the accused wanted the price to be paid then and there. Joshua said that he would pay the amount the next day. But the accused was not amenable. He demanded the match-box and the beedies back, which Joshua considered as an insult offered to him. Thereupon wordy altercation ensued between them which ultimately culminated in the stabbing of Joshua by the accused with a knife which was available in the shop for cutting arecanuts. Three stabs were inflicted on him with the knife and after the stabbing the accused escaped from the scene with the weapon. P. Ws. 2 and 3 were present in the shop at the time. They too had gone there to purchase beedies. The incident was seen by them from start to finish. P. W.1 is an immediate neighbour who was attracted to the scene on hearing the hubbub and he saw the incident from near the Kayyala of his compound. The injured Joshua staggered and was about to fall when he was supported by P. Ws. 2 and 3. He was then placed on the ground by them. The incident was reported to P. W.1 the brother of Joshua by one Rajan. P. W.1 on hearing the news hurried to the place. Himself and P. W. 3 lifted the injured in a cot and carried him to the hospital. The doctor immediately was summoned from his residence, but by that time Joshua was dead. Intimation was conveyed the next day to the Pathanamthitta police and the Sub Inspector recorded the statement of P. W.1 who had conveyed the information. The Sub Inspector and the Circle Inspector both reached the hospital on 9 21966 and the inquest was held. The investigation was duly taken up by the Circle Inspector and after questioning the witnesses the charge was filed by him on 15 31966. The Sub Inspector and the Circle Inspector both reached the hospital on 9 21966 and the inquest was held. The investigation was duly taken up by the Circle Inspector and after questioning the witnesses the charge was filed by him on 15 31966. The plea put forward by the accused was that he was attacked by the deceased, and for his own protection he had to resort to the knife. The learned Additional Sessions Judge on a consideration of the evidence has found that the right of private defence was exceeded by the accused, and accordingly he has convicted him under S.304 I. P. C. The learned judge has however not specified to which part of S.304 the offence would fall. 2. On a reappraisal of the evidence and the probabilities of the case I am persuaded to the conclusion that the learned Additional Sessions Judge has gone wrong in finding that the right of private defence was exceeded by the accused. On the question whether the right of private defence was available to the accused the findings entered by the learned judge are conflicting. In Para.14 of the judgment for instance, the learned judge has entered the definite finding that no private defence was available to the accused. To quote the learned judge's own words: "Hence there is no right of private defence in favour of the accused to have caused a deadly stab on the deceased." In Para.15 on the other hand, the learned judge would enter a finding just the other way. He would observe: "My finding is that the accused had the right of self-defence, but not to the extent of causing the death of the assailant." P. Ws. 2 and 3 according to the learned judge, are the only eye-witnesses. Of these, P. W. 2 has turned hostile and P. W. 3's evidence the learned judge was not prepared to accept in full. According to P. W. 3, when the deceased wanted the beedi and the match-box to be sold on credit the accused got fretful and used abusive language at him and demanded back the articles from the deceased. But the deceased was not prepared either to return the articles or pay the price, since he was abused by the accused. At this stage the accused got flared up and taking out the knife inflicted the stabs on him. But the deceased was not prepared either to return the articles or pay the price, since he was abused by the accused. At this stage the accused got flared up and taking out the knife inflicted the stabs on him. This version of the incident narrated by P. W. 3 was "extremely improbable" according to the learned Judge. The version given by P. W. 2 on the other hand is that abusive language was used by the deceased at the accused and even some beatings were also administered by him to the accused and it was then that the accused stabbed the deceased. According to the learned judge, even though P. W. 2 was declared hostile his statement is not totally unacceptable. The learned judge observes: "Though P. W. 2 had been declared hostile it is open to the accused to rely on his evidence in so far as it goes to help his case. The court is also bound to act upon the evidence of such a witness if from the circumstances his testimony appears to be credible." Then the learned judge makes an assessment of the acceptability and worth of the evidence of the two and comes to the following conclusion: "The version given by P. W. 2 is definitely in consonance with probabilities while the version given by P. W. 3 is much against probabilities." Thus according to the learned judge the evidence of P. W. 2 is acceptable and when that evidence is accepted the position "would boil itself to this, namely that the deceased had got flared up when the accused refused to sell him the articles on credit and not only that he hurled abusive epithets at him but also dealt some blows on him. It was then that the knife was used by him. It goes without saying that a person placed in such circumstances would entertain the fear that bis life would be in danger unless force was used by him in retaliation. There is also the fact that the deceased was at the time accompanied by P. Ws. 2 and 3 and that would have aggravated his fear that all the three had come to make a joint attack on him. There is also the fact that the deceased was at the time accompanied by P. Ws. 2 and 3 and that would have aggravated his fear that all the three had come to make a joint attack on him. In evaluating the right of private defence which according to the learned judge was already available to the accused the learned Judge, I am afraid, has fallen himself into the error of weighing the right in golden scales. The standard in such circumstances is not the standard of a cool by-stander as has been pointed out time and again in reported decisions. The actual assault is not what matters, but it is the apprehension in the mind of the accused that has to be taken into consideration.The observation of the learned judge that "beating by the hand even on the face would not have caused a reasonable apprehension in the mind of the accused that there was a danger of grievous hurt being caused, is out of place. How the accused's mind was working at the time cannot be gauged by a theoretical appraisal of the situation by a by-stander. The learned judge has also discredited the prosecution version that the accused chased the deceased and stabbed him. The learned judge would say: "It does not appear to me that the deceased after beating the accused made a retreat and the accused followed him and stabbed him." The apprehension entertained by the accused on seeing P. Ws. 2 and 3 by the side of the deceased, has been characterised by the learned judge as "some unfounded apprehension." This is a mere surmise unwarranted by the circumstances of the case. When once it is found that the right of private defence was available to the accused it would be unnecessary and wasteful for the court to embark upon subtleties as to the modulation of the right, as also to indulge in speculative thoughts on the scope and limits of the right. The learned judge's finding that the right was exceeded cannot stand in any event. In the result, I hold that the accused was perfectly protected by the right of private defence and I set aside the conviction and sentence passed on the accused and acquit him. He will be set at liberty forthwith. Allowed.