K. P. MOHAPATRA, J. ( 1 ) THE appellant has challenged the order of his conviction and sentence under S. 302 of the Indian Penal Code ('i. P. C' for short) passed by the learned Sessions Judge, Dhenkanal. ( 2 ) FACTS in brief may be stated. The appellant, Arjuna (P. W. 2), Bhima (P. W. 4), Sanatan (P. W. 11) and their father Dhaneswar (referred to as deceased) are neighbours and their house and Baris in village Dukhama adjoin with a common fence. On 27-4-1981 in the afternoon there was misunderstanding between the appellant and Bhima (P. W. 4) with regard to the whereabouts of the latter's maternal uncle which turned into a serious quarrel and mutual pelting of stones between the appellant and his wife Kamala (accused since acquitted) on one side and Arjuna (P. W. 2), Bhima (P. W. 4) and Sanatan (P. W. 11) on the other who were standing in their respective Baris. As a result, some of them received injuries. It is stated that the appellant became very much enraged, went inside the house, returned with a Tangi (M. O. I) and attempted to deal a blow on Bhima (P. W. 4) who warded off the blow although he received a bleeding injury on his left palm. Just at that time, the deceased came to the scene of occurrence in order to take back Bhima (P. W. 4) so that he would not be further assaulted by the appellant, but the appellant dealt a Tangi blow on the head of the deceased as a result of which the latter fell down on the ground and lost his senses. He was removed to the Bhapur Hospital where he was declared dead. FIR (Ext. 7) about the incident was lodged at Bhapur Outpost. The case was investigated and charge-sheet was submitted against the appellant and his wife Kamala for having committed offences under S. 302 read with Ss. 34, 324 and 337 I. P. C. ( 3 ) THE defence of the appellant was that Arjuna (P. W. 2), Bhima (P. W. 4), Sanatan (P. W. 11) and other members of their family being armed with Tangi, lathi and stones etc. 34, 324 and 337 I. P. C. ( 3 ) THE defence of the appellant was that Arjuna (P. W. 2), Bhima (P. W. 4), Sanatan (P. W. 11) and other members of their family being armed with Tangi, lathi and stones etc. surrounded and attacked him and his wife Kamala, Being placed in such a situation he snatched away a Tangi from Arjuna (P. W. 2) and in order to save him and his wife Kamala from further assault by the prosecution witnesses whirled it round and round when the Tangi hit the head of the deceased In short, he took the right of private defence of person. ( 4 ) MR. S. D. Das, learned counsel appearing for the appellant, contended that the appellant and his wife were attacked by Arjuna (P. W. 2), Bhima (P. W. 4), Sanatan (P. W. 11) and other members of their family at a time. They were the aggressors and numerically stronger. In such a situation finding himself and his wife in grave danger, the appellant must, in ordinary course, have lost his self-control and with the natural urge of saving themselves from the attackers, he had to strike in his defence. It was not, possible on his part at such a juncture to measure the blow with a golden scale even if it might have hit an innocent person like the deceased. Furthermore, although the deceased might have appeared at the scene of occurrence in order to intervene and take away his sons, yet while under attack it was possible on the part of the appellant to think that the deceased was one more attacker. This being the situation, the plea of right of private defence of person was available to the appellant. The contention requires careful examination with reference to the evidence on record. ( 5 ) THE learned Sessions Judge after analysing the evidence came to the finding that the appellant was not the aggressor. The aggressors were Arjuna (P. W. 2), Bhima (P. W. 4) and Sanatan (P. W. 11) who are sons of the deceased. They began the quarrel by throwing stones at the appellant and his wife. Bhima (P. W. 4) also assaulted the appellant's wife by means of a lathi, although it has been called a stick. The aggressors were Arjuna (P. W. 2), Bhima (P. W. 4) and Sanatan (P. W. 11) who are sons of the deceased. They began the quarrel by throwing stones at the appellant and his wife. Bhima (P. W. 4) also assaulted the appellant's wife by means of a lathi, although it has been called a stick. The appellant might have thought that his opponents who were numerically stronger than himself would commit further assaults and, therefore, in exercise of his right of private defence of his wife and of his own, he assaulted the prosecution witnesses particularly, Bhima (P. W. 4) and to this extent his actions were justified, for, he did so in exercise of his right of private defence. These findings were not challenged by Mr. Das nor by the learned Additional Standing Counsel. The learned Sessions Judge, however, took the view that the appellant had no justification to assault by means of a Tangi (M. O. I) an old and unarmed man of 60 years who appeared at the scene of occurrence to dissuade his son Bhima (P. W. 4) from further quarrelling with the appellant and to drag him away. The appellant's right of private defence of person could not extend to this point. This part of the finding has been very strenuously challenged by Mr. Das. ( 6 ) P. W. 1 the Medical Officer of Bhapur Dispensary had examined the appellant and found the following injuries : -1) Lacerated wound of the size of 1/2" X 1/4" X 1/8" on the right forehead. 2) Abrasion of the size of 1/4" X 1/4'' on the back of the left elbow joint; and 3) Abrasion of the size of 1/4" X 1/8" on the middle of the left index finger on the dorsal aspect. The appellant's wife, Kamala was also examined by him and he found one abrasion over her right shoulder, another abrasion on her neck above the right clavicle and yet another abrasion on the left shoulder. According to the opinion of the Medical Officer, the first injury on the appellant could be caused by lathi blow. Had there been no proper treatment, the injuries both on the appellant and his wife though simple in nature, could have turned into titanous and gangrene in which case there would have been danger to their lives. According to the opinion of the Medical Officer, the first injury on the appellant could be caused by lathi blow. Had there been no proper treatment, the injuries both on the appellant and his wife though simple in nature, could have turned into titanous and gangrene in which case there would have been danger to their lives. Further, injury No. 1 on the appellant was caused on a vital part of the body like the forehead and if the blow would have been severe, the resultant injury would have been fatal. The reason for making reference to the evidence of P. W. 1 is to show that the appellant and his wife were both assaulted and injuries were caused to them. ( 7 ) ARJUNA (P. W. 2), Bhima (P. W. 4), their mother Chanduri (P. W. 10) and Sanatan (P. W. 11) took part in the occurrence and it is necessary to refer to their evidence. There is another eye witness (P. W. 13) belonging to a different village. He spoke about the assault by the appellant by means of the Tangi (M. O. I) both to Bhima (P. W. 4) and the deceased. He did not speak of the rest of the occurrence. Had he been a true eye witness, he would have spoken the other parts of the occurrence as spoken to by P. Ws. 2, 4, 10 and 11. That apart, there was no reason why he should have been present at the time of occurrence although he belonged to a different village. So, he was a chance witness in the real sense of the term and his evidence seems unreliable and or of no corroborative value. ( 8 ) THE evidence of P. Ws. 2, 4, 10 and 11 is almost identical. It will appear therefrom that they had not made a secret of the fact that they began the quarrel and assault, were the aggressors and as a result of their assault either by brickbats, stones or lathi, the appellant and his wife sustained injuries. Bhima (P. W. 4) even went to the extent of laying his hands on an unarmed woman, appellant's wife Kamala by giving a lathi blow to her. The deceased was very much present at the time of the occurrence. The aggressors were undoubtedly numerically stronger than the appellant who was alone to defend himself and his wife. Bhima (P. W. 4) even went to the extent of laying his hands on an unarmed woman, appellant's wife Kamala by giving a lathi blow to her. The deceased was very much present at the time of the occurrence. The aggressors were undoubtedly numerically stronger than the appellant who was alone to defend himself and his wife. P. W. 2 has also admitted in his evidence that there was assault and counter assault. When the appellant saw that the aggressors were numerically stronger, they started the assault and his wife was assaulted by one of them by means of a stick or a lathi, as the case may be, it was normally difficult on his part to remain calm and cool. On the other hand, like a normal human being having the instinct to protect himself and his dear and near ones from approaching danger, it was possible that he was convinced from the surrounding circumstances that unless he would strongly resist to the attack and strike, he will be further assaulted and may be killed. Therefore, it was not unnatural that in the face of danger he wanted to act bravely to defend himself and his wife and dealt the Tangi blow on Bhima (P. W. 4) which was warded off by the latter. When the deceased approached Bhima (P. W. 4) at that moment, it was not unlikely that the appellant might have thought that the deceased was also coming to the help of the former so as to catch hold of and assault him. At such a critical moment it was neither possible nor likely that the appellant should have deliberated in a calm mood about the pros and cons of the situation in a golden scale and then inflict injuries on the right persons so that no harm greater than what was required was caused. ( 9 ) AFTER giving my anxious consideration to the evidence, facts and circumstances of the case and in partial disagreement with the findings recorded by the learned Sessions Judge, I am of the view that the appellant acted in exercise of right of private defence of his own self and that of his wife and is protected by S. 100, I. P. C. Therefore, he is entitled to an acquittal. ( 10 ) IN the result, the appeal is allowed and the order of conviction and sentence under S. 302 I. P. C. is set aside. The appellant is acquitted. He be set free forthwith. ( 11 ) H. L. AGRAWAL, C. J. :- I agree. Appeal allowed. .