JUDGEMENT 1. The accused was charged under S.302 of the I. P. C. The Additional Sessions Judge, Panaji, who tried him, found that he had acted in the exercise of his right of private defence, but that he had exceeded that right. Therefore, he acquitted him of the offence under S.302, but convicted him under S.299 of the I. P. C. The accused appeals to this Court. 2. Shortly stated the facts of the prosecution are that at about 10-30 p.m. on April 30, 1977, at Morlem, the accused had a quarrel with his brother Vassu, during which he hit him on the head with a hammer causing Vassu's death. 3. The defence of the accused is as follows: that the deceased was much stronger than him; that he used to harass him on various occasions;, that on the night of the incident the accused (sic) (deceased?) beat him severely, threw him on the ground and throttled him; that while throttling the accused, the deceased had stated that he was going to kill the accused; that the accused felt suffocated and believed that the deceased who had on previous occasions also beaten and harassed him, would in fact kill him, that he therefore caught hold of the hammer, M. O. 2 which he found on the ground and hit the deceased on the head. 4. The learned Additional Sessions Judge states in his judgment that four cardinal conditions must exist before taking life of a person is justified on a plea of self-defence. Firstly, that the accused must be free from fault in bringing about the encounter; secondly, that there must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of exceeding necessity; thirdly, there must be no safe or reasonable mode of escape by retreat; and fourthly, there must have been a necessity for taking life. The learned Additional Sessions Judge came to the finding that the first three conditions were fulfilled and I am entirely in agreement with him, in view of the evidence on record which I do not have to discuss again. I have read it fully and more particularly the passages through which the advocates for the prosecution and defence have taken me. I adopt the reasoning of the learned Additional Sessions Judge regarding his evidence on the three points. I have read it fully and more particularly the passages through which the advocates for the prosecution and defence have taken me. I adopt the reasoning of the learned Additional Sessions Judge regarding his evidence on the three points. I must say that the learned Government Advocate was fair enough to admit that the findings of the learned Additional Sessions Judge on the three points could not seriously be disputed. 5. Regarding the findings on the fourth point, I am unable to agree with the learned Additional Sessions Judge. Shri J. Dias supports his reasoning on this point. Shri Vaze, learned advocate for the defence, however, attacks that finding on the ground that, in the circumstances of the case, it cannot be said that the accused had exceeded his right of private defence. I will analyse the facts of the case on this point. 6. The evidence shows that there was a dispute on account of a cashew grove which was being commonly cultivated by the accused, by the deceased and by their younger brother by name Arjun. All the three brothers were living in the same house, but in separate apartments. Arjun and his wife were living in one of them, the deceased and his mother Saraswati were living in another and the accused and his wife Sita were living in the third. The accused wanted his share in the income of the cashew grove, but the deceased who was living with the mother contended that the income should be given in the hands of the mother. There was a long-standing quarrel on this account. On one occasion, the deceased beat the accused. On another, he snatched a "coita" which was hanging from the thread around the waist of the accused. The deceased also tied the accused with a rope. The deceased was a military man. From the doctor's evidence he was of quite a heavy built. There is evidence on record to show that he was physically much superior to the accused. 7. On the day of the incident a little prior to the occurrence, the accused came back home in an intoxicated condition. He started uttering abusive words against the deceased and holding threats of killing him. The deceased was on that day sleeping in the field. Saraswati went and informed the deceased about the threats of the accused. The deceased got angry and came home running. He started uttering abusive words against the deceased and holding threats of killing him. The deceased was on that day sleeping in the field. Saraswati went and informed the deceased about the threats of the accused. The deceased got angry and came home running. He questioned the accused and a fight ensued. The deceased beat the accused. The deceased was heard saying that he would kill the accused. Sita, P. W. 8, the wife of the accused, asked the deceased whether he wanted to kill the accused. Satyawati Gauns, wife of Arjun, the third brother, who was a totally independent witness stated that she heard the deceased saying that he was going to kill him. She also stated that Sita, the wife of the accused, was crying and asking not to beat her husband. The deceased was heard saying that he had spared him for three times, but he would not spare him now. Considering all this evidence, the learned Additional Sessions Judge, Panaji, came to the conclusion that in the circumstances of the case "it might be possible that the accused apprehended that he was going to be slain by the deceased and that he might have acted in that moment to defend himself". The learned Judge observes that what matters is not what actually was happening but what the accused thought was going to happen to him. He goes on to say that in those circumstances and bearing in mind the facts proved, it was his considered opinion that the plea of self-defence taken by the accused had to be accepted. He however felt that there was no necessity at all of taking the life of the deceased. In this regard 1 shall consider the case law on which Shri Vaze, learned advocate for the accused, has relied. 8. 'State of Orissa v. Ghenu Harijan', 1978 Cri LJ 262 (Orissa) was the first of such cases. There both the deceased and the accused were heavily drunk. There was a quarrel between them. In the course of that quarrel, the deceased rushed towards the accused with a lathi in order to assault him. At that time apprehending danger to his life, the accused assaulted the deceased. There both the deceased and the accused were heavily drunk. There was a quarrel between them. In the course of that quarrel, the deceased rushed towards the accused with a lathi in order to assault him. At that time apprehending danger to his life, the accused assaulted the deceased. It was held that it must be inferred that when in the course of the quarrel the deceased, being provoked, rushed towards the accused with a lathi, the accused had the right to stay and defend himself and he retaliated by assaulting the deceased with the weapon which he had in his hand. The parties were Adivasis and they were volatile in nature. Their temper and sentiment could not be judged on the same lines as other persons. Thus, the accused had the right of private defence and he did not exceed that right. In 'Deo Narain v. State of U. P.', (1973) 1 SCC 347 : (1973 Cri LJ 677) it was held that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant danger. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not a punitive right. In 'Kala Singh v. Emperor', AIR 1933 Lah 167: (34 Cri LJ 1175) the learned Judge held that it was difficult to judge the extent of the right of private defence by any hard and fast rule and the accused could not be expected to regulate the extent of force to be used by him by any precise standard. In deciding whether the right of private defence has been exceeded, regard must be had to comparative physical strength of the accused and the deceased and his conduct at the time of the occurrence. In deciding whether the right of private defence has been exceeded, regard must be had to comparative physical strength of the accused and the deceased and his conduct at the time of the occurrence. The deceased who was a strong man of a dangerous character and brutal nature and reputed to have killed a man previously, had some quarrel with the accused but was taken back to his house. Later he returned armed with a stick, entered the shop of the accused who was comparatively a weakling, threw him on the ground, pressed his neck and bit on his hand and chest. When the accused was extricated he took up a light hatchet and struck three blows on the head of the deceased as a result of which he died after three days. It was further held that the whole conduct of the deceased was aggressive and that even though no grievous hurt was actually caused to the accused, the circumstances were sufficient to raise a strong apprehension in his mind that he was under a reasonable apprehension of receiving such injury at the hand of his assailant unless he succeeded in disabling him and that he did not exceed the right of private defence. 9. In the circumstances of the present case, I am unable to agree with the learned trial Judge that the appellant has exceeded his right of private defence. The appellant, a cultivator, could not be expected, under the contingencies in which he was placed during the scuffle with the deceased, to judge the exact intensity that he should give to the blow of the hammer which he delivered on the deceased. 10. Shri Vaze has very accurately focussed the points involved and has very ably conducted this case. I must give him credit for it. 11. In the circumstances I allow the appeal, set aside the order of the trial Court and acquit the accused. The accused shall be set at liberty. Appeal allowed.