LINGARAJA RATH, J. ( 1 ) THE Petitioner having been convicted u/ S. 307, IPC and sentenced to R. I. for three years for causing multiple stab injuries to P. W. 1 and his appeal against the conviction having failed, has approached this Court in revision. ( 2 ) THE facts in a nutshell, as revealed by the prosecution, are that P. W. 1 had been suspecting illicit affair between Tribeni, the wife of his elder brother Bhuban and the petitioner and that he had also informed the same to his brother but who had not taken any action in the matter. He also got the matter agitated in the village Panchayat but there Bhuban had rather opined as to why his wife was being unnecessarily alleged against. All the same, P. W. 1 was on the look out to catch hold of the petitioner red-handed and on the day of occurrence, 7-8-1983 at about 9-00 p. m. he saw the petitioner in the room of Tribeni. Both P. W. 1 and his brother reside jointly and had three rooms of which one was occupied by Bhuban and another by him and the third room was being used as a cowshed. As the petitioner was coming out of Tribeni's room P. W. 1 caught hold of him near the cowshed. It is his version that the petitioner gave a stab blow with a knife at his neck, but all the same P. W. 1 did not leave him and grappling each, other they came to the village lane where the petitioner gave six more knife blows to P. W. 1 at different parts of his body including his belly, chest, both side ribs, hands, thighs, etc. on account of which P. W. 1 fell down crying out as dying and the petitioner escaped. The petitioner's such escape was noticed by different persons including P. Ws. 2, 5 and 7 and one Udaya Behora who had come upon the site. It is the version of P. W. 1 that the assault by the petitioner on him at the cowshed had also been witnessed by some others who had come there. The petitioner's such escape was noticed by different persons including P. Ws. 2, 5 and 7 and one Udaya Behora who had come upon the site. It is the version of P. W. 1 that the assault by the petitioner on him at the cowshed had also been witnessed by some others who had come there. P. W. 1 lost consciousness but was carried by the witnesses and others to the Primary Health Centre where he was attended to by the Medical Officer (P. W. 3) and thereafter was taken to the M. K. C. G. Medical College Hospital, Berhampur. The police reached the Primary Health Centre on receiving requisition of the doctor and at the Primary Health Centre, on the oral version of P. W. 7, the FIR was reduced to writing. After completion of the investigation, the charge-sheet was submitted and the petitioner was made to stand trial u/ S. 307, IPC and convicted. ( 3 ) MR. Ratho, the learned counsel for the petitioner, has urged in assailing the conviction and sentence, firstly that even accepting the prosecution story as a whole no case under S. 307, IPC is made out since the gist of the offence u/ S. 307, IPC is intention to cause death which admittedly the petitioner did not have and his entire action and conduct was prompted by a desire to escape from the clutches of P. W. 1 and that in course of the action of extricating himself he had inflicted knife injuries and therefore was completely covered by right of private, defence of his person for which the conviction is unsustainable. It is his further submission that all the witnesses, P. Ws. 1, 2, 5 and 7, relied upon by the courts below to sustain the conviction were inimical to the petitioner inasmuch as all of them stated of having had firm suspicion of the petitioner's illicit relationship with Tribeni and their having brought the matter before the village Panchayat. Even though other independent witnesses were available, they were not examined. The next submission of Mr. Ratho is that the FIR as has been exhibited in the trial is not the real FIR since admittedly the village Grama Rakhi had been deputed earlier than P. W. 7 to lodge information at the police station but what happened to the report so lodged is not coming forward. The next submission of Mr. Ratho is that the FIR as has been exhibited in the trial is not the real FIR since admittedly the village Grama Rakhi had been deputed earlier than P. W. 7 to lodge information at the police station but what happened to the report so lodged is not coming forward. For such reason the version as disclosed in the FIR is not the correct picture of the case. ( 4 ) FOR appreciation of the submissions made, a brief reference to the evidence of P. W. 1 who, so to say is practically the sole witness as regards the injuries sustained by him, is relevant. It is in his evidence that seeing the petitioner coming out he immediately caught hold of him and the petitioner inflicted a knife blow at his neck. The petitioner wanted to escape after inflicting the knife injury but P. W. 1 did not leave him from his clutches and then both came to the village lane while the petitioner was trying to escape. In the lane, the petitioner continuously inflicted six blows to his belly, chest, and both side ribs and hands, etc. In the cross-examination, he stated that nobody came to his rescue while tussle between him and the petitioner was going on inside the cowshed, though some persons had come there at the time of the tussle inside the cowshed nobody had intervened while it was going on. It is thus apparent that when P. W. 1 caught hold of the petitioner at the cowshed there was a tussle between them and the petitioner was trying to escape but P. W. 1 was preventing him from doing so and hence with an intention to escape, the petitioner inflicted the knife blow at the neck. Even thereafter P. W. 1 did not leave him and went on grappling and both of them in that condition came to the village lane where P. W. 1 inflicted some further blows with the knife. Even thereafter P. W. 1 did not leave him and went on grappling and both of them in that condition came to the village lane where P. W. 1 inflicted some further blows with the knife. The evidence of P. W. 4 who examined P. W. 1 found three external injuries, one lacerated injury having size of 3" x 2" x up to the tracheal lumen (1 x b x d) situated over the suprasternal area, one lacerated injury having size of 8" x 1"; x depth up to sternum (1 x b x d) over the front of sternum slightly oblique; and one penetrated injury having size of 1" x 1/2" x depth into peritonial cavity of abdomen (1 x b x d) on the lower part of the left side of chest wall. On dissection, one incised wound on the trachea having size of 2" x 1/2; (1 x b x d) and another incised wound on the diaphragm having size of 1" x 1/2" situated over the "eft of the dome were found. While the external injuries were respectively numbered as injury Nos. (i), (ii) and (iii), the internal injuries were numbered as injury Nos. (iv) and (v ). According to the opinion of the doctor, the injury Nos. (i), (iii), (iv) and (v) i. e. , the injuries on tracheal lumen and in abdomen were grievous in nature. The internal injury Nos. (iv) and (v) were corresponding to external injury Nos. (i) and (iii ). There was as such only three injuries found by the Medical Officer on the person of P. W. 1 of which two injuries were grievous in nature. From the evidence of P. W. 1 read with the medical evidence, it amply appears that the petitioner had never any intention to cause death of P. W. 1 and that he was all along trying to escape while P. W. 1 was holding him and did not leave him even after receiving a grievous injury like injury Nos. (i) and (iv) at the tracheal lumen. With such intention of escaping he inflicted the injuries. Viewed from such background, a conviction u/ S. 307, IPC of the petitioner was wholly misconceived as there is absolutely no evidence coming forth of there being any intention on the part of the petitioner to cause death of P. W. 1. (i) and (iv) at the tracheal lumen. With such intention of escaping he inflicted the injuries. Viewed from such background, a conviction u/ S. 307, IPC of the petitioner was wholly misconceived as there is absolutely no evidence coming forth of there being any intention on the part of the petitioner to cause death of P. W. 1. This view of mine is supported by AIR 1965 SC 843 : (1965 (1) Cri LJ 766) (Sarju Prasad. v. State of Bihar ). ( 5 ) ONCE it is held that an offence u/ S. 307, IPC was not committed, the next question that arises for consideration is whether the petitioner was within the right of his private defence or he committed any offence exceeding the same so as to make the offence fall u/ S. 325 or S. 326, IPC. The right of private defence of person is available if the act complained of against which the right is claimed is an offence. It has been strenuously contended by the learned Additional Government Advocate that P. W. 1 in catching hold of the petitioner and preventing his escape was not committing an offence and hence there was no right of private defence available to the petitioner. It has also been held by the learned Second Additional Sessions Judge that the petitioner having trespassed to the house of P. W. 1 no right of private defence was available. It cannot be said that the petitioner had trespassed to the house of P. W. 1 since admittedly the brothers were joint and taking the prosecution story at its face value, the petitioner was in the house with the consent of Tribeni, the wife of Bhuban and that being so, it cannot be termed as trespass. There is also no evidence that the petitioner had committed any offence. Mr. Ratho has taken me through the evidence and it appears that at the maximum P. W. 1 and other witnesses were entertaining suspicion against the petitioner of having illicit relation- ship with Tribeni and that on the day of occurrence itself P. W. 1 did not notice anything else than only the presence of the petitioner in the room of Tribeni and she being also present. As such no offence could have been said to have been committed by the petitioner because of his mere presence in the room of Tribeni. As such no offence could have been said to have been committed by the petitioner because of his mere presence in the room of Tribeni. Consequently forcibly preventing the exit of the petitioner was an offence. Hence I must negative the submission raised by the learned Additional Government Advocate of the right of private defence being not available to the petitioner. ( 6 ) NOW coming to the question as to whether the petitioner in inflicting the injuries on P. W. 1 exceeded his right of private defence, the well settled position of law is that it is open to the person exercising the right of private defence to cause any injury or harm other than death but that such right is subject to the restriction u/ S. 99, IPC that no such injuries shall be caused than is necessary to avoid the risk or danger which necessitates the exercise of the right. It has been argued by the learned Additional Government Advocate that the petitioner had no business to inflict stab injuries on P. W. 1 who was unarmed and that the evidence of P. W. 1 rather shows that as soon as he caught hold of P. W. 1 near the cowshed, immediately a knife blow was given at the neck which would show that there was really no attempt to escape and that the knife blow was unprovoked and unnecessary. I am afraid the submission has no force since as has been referred above, the very version of P. W. 1 is that there was a tussle at the cowshed itself and P. W. 1 was preventing the petitioner from escaping and that even after receiving the blow at his neck he did not leave him. The exercise of right of private defence is not a matter to be judged in the background of the cool atmosphere of the court but is to be judged by transposing oneself to the very situation in which the person claiming the right found himself, the heat of moment, the imminence of the situations and all other connected circumstances taken into consideration. It has been held that whether or not one has a right of private defence is not to be judged with golden scales and that if in the process of exercising the right, a man slightly exceeds the same, yet it is not to be taken as having overstepped the limit. In AIR 1980 SC 660 : (1980 Cri LJ 459) (Yogendra Morarji v. State of Gujarat) it was observed (para 13)"at the same time, it is difficult to expect from a person exercising this right in good faith, to weigh uot;with golden scales" what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender "if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack". It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack. "similar was the observation in AIR 1980 SC 1341 (Mohd. Ramzani v. State of Delhi) in saying that even if at the heat of the moment the accused carried his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it. (1971) 3 SCC 275 : (1971 Cri LJ 1057) (George Dominic Varkey v. State of Kerala) was a case where the appellant had been convicted u/ S. 304, Part II, IPC for having murdered his elder brother. The prosecution case was that there was exchange of words between the two brothers and the appellant drew out a dagger from his waist even as his elder brother bent down to pick up a stone. Before his brother could rise after picking up the stone, the appellant rushed towards him and stabbed him with the knife. The stab was warded off but he again stabbed on the left thigh causing an incised gaping wound on the upper thrid of the left thigh. Thereafter the appellant ran away. The injured was taken to the Government Dispensary but on the way he died. The stab was warded off but he again stabbed on the left thigh causing an incised gaping wound on the upper thrid of the left thigh. Thereafter the appellant ran away. The injured was taken to the Government Dispensary but on the way he died. The court found that the elder brother was the aggressor and when he was picking up large piece of stone, the appellant had a reasonable apprehension that his brother would kill him or cause him grievous hurt. The deceased was picking up a stone of a dangerous size. There was threat to the person and of grievous hurt to the appellant and it was real and immediate danger. In such circumstances, the appellant could try to ward off the danger and save himself. The Court held that the appellant acted in self-defence and the manner and the moment of the incident both indicate that he did not use more force than was necessary and acquitted the appellant. In another case, (1926), 27 Cri LJ 617 (Madras) (Bermu Chetty v. Emporor), there was dispute and quarrel between a brother and the sister over a store room and the brother having roughly handled the sister, she called out that she was being killed. Her husband who was working near about turned up and finding the wife being assaulted by her brother, stuck him one blow with a weapon which killed him at the spot. Their Lordships held that the appelant's wife was roughly handled and her hands were cut and bruised. The appellant had heard her cry out that she was being assaulted certainly by one and probably by two men. His plea of right of private defence was accepted holding that he could reasonably think that his wife may be seriously injured and hence was within his right to strike the blow which killed the deceased. ( 7 ) IN the instant case, I find that the action of the petitioner was prompted all along with the primary intention of escaping and when he found that even though he had inflicted one injury upon P. W. 1 he was not leaving him, he was compelled to strike him more times and when P. W. 1 fell down he immediately escaped without causing any further injuries. In the circumstances, I would think that he did not exceed his right of private defence and had not inflicted any injury more than what was necessary. The apprehension was real and imminent as he was not able to extricate himself from the clutches of P. W. 1 and hence was compelled to use the knife. ( 8 ) SINCE I come to such conclusion, the other submissions raised by Mr. Ratho need not be answered though going, through the evidence I also do not find any merit in the same. ( 9 ) IN the result, the revision is allowed, the judgments of the courts below are set aside as also the conviction and sentence against the petitioner. Revision allowed.