Judgment : ( 1 ) THIS appeal is directed against the judgment of the learned Sessions Judge, pudukottai in S. C. No. 24/89 dated 29-11-1989. ( 2 ) THIS is an unfortunate case of a helpless woman who being persecuted by the carnal desires of her own brother was constrained to defend herself which resulted in the death of her brother and her miseries have been further aggravated by the Trial Court adopting an erroneous approach in appreciating the factual and legal aspects of her right of private defence. The Trial Court thought it fit only to convert the offence of murder (as charged) into one of culpable homicide not amounting to murder and as a result of which she was sentenced to undergo rigorous imprisonment for a period of 4 years under section 304 Part II of Indian Penal Code. ( 3 ) THE case of the prosecution is that the accused was married to one Selvaraj and was living in Senthangudi Village. It is alleged that two months prior to the occurrence the deceased who is none else other than the brother of the accused came to the house of the accused fully drunk and he picked up a quarrel with the husband of the accused and forced him to send the accused with him. Thereafter, the evidence is that the deceased was frequently drunk and used to compel the accused to have physical relationship with him and that since the accused was not agreeable to the demands of the deceased, the deceased was frequently trying to pressurise her. In fact, sometime before the occurrence in view of the problems created by the deceased, she went to the house of P. W. 2, kaliammal, who is her sister-in-law and took refuge under her. But the deceased would not keep quiet and he went to the house of P. W. 2 also and he threatened P. W. 2 by showing a knife and P. W. 2 sent the accused out of the house as a result of which the accused had to come back to the house of the deceased. P. W. 2 has spoken to the fact that the accused had told her about the indecent behavior of the deceased. P. W. 2 has also deposed to the effect that at the time of the occurrence, the accused was in an advanced stage of pregnancy. P. W. 2 has spoken to the fact that the accused had told her about the indecent behavior of the deceased. P. W. 2 has also deposed to the effect that at the time of the occurrence, the accused was in an advanced stage of pregnancy. It appears that a day prior to the occurrence the deceased had again tried to force the accused and after considerable struggle, she ran away from the house and all through the night she was staying outside the house and that again at about 9 a. m. the deceased tried to assault the accused with intention to commit rape and then in that process, her saree and blouse were also torn but she managed to run away from the house. She again returned at about 12 noon and found the deceased lying in front of the house fully drunk and that the deceased took m. O. 1 (Dakkai) and beat on his head and other parts of the body. The incident is said to have been witnessed by P. W. 1, who had accidentally come to the spot. But he did not give any complaint to the police. The accused herself went to p. W. 3, the Village Administrative Officer and gave a confessional statement. P. W. 3 recorded a statement as given by the accused and obtained her signature and directed P. W. 4, Thalayari to hand over the complaint to the police station. P. W. 4 has spoken to the fact that at about 1 p. m. on the day of the occurrence after P. W. 3 had recorded a statement as given by the accused, he went to keeramangalam Police Station along with the accused and left the accused there and handed over the statement given by the accused. P. W. ll is the Sub-Inspector of Police attached to the flying squad of Pudukottai and he has deposed the fact that P. W. 4 accompanied by the accused, met him on 24-9-1988 at about 3 p. m. On the basis of the statement given by the accused a case was registered under Section 302 of Indian Penal Code. He further stated that he immediately sent a message to the Court and to the higher authorities and at about 3. 30 p. m. he arrested the accused and took a confessional statement from the accused Ex. He further stated that he immediately sent a message to the Court and to the higher authorities and at about 3. 30 p. m. he arrested the accused and took a confessional statement from the accused Ex. P-2 is the admissible portion of the statement given by the accused. Thereafter, it is stated that he had recovered the saree, petticoat and the blouse worn by the accused (M. Os 2 to 4 ). He then went to the place of the occurrence along with the accused and M. O. I was handed over to the police by the accused, in the presence of witnesses. M. O. 4 is the Mahazar. Further investigation was taken over by P. W. 12, the Inspector of Police, he went to the place of the occurrence and prepared an observation mahazar Ex. P-18. The next day on 25-9-1988 at about 5. 30 a. m. he conducted an inquest between 6 a. m. and 9 a. m. and Ex. P-20 is the Inquest Report. The body of the deceased was sent to aranthagi Government Hospital for post-mortem examination. Subsequently, he sent a requisition to the Judicial Magistrate for recording a statement under section 164 of Cr. P. C. ( 4 ) EX. P-6 is the post-mortem Certificate and the following are the external injuries noted in the certificate. (1) An Incised wound -Transverse 3 x 1/2 x 1/2 c. m. below left eye brow over upper eye lid. (2) Lacerated wound 2 x 1 cm x bone depth over, bridge or nose. Blood clots over both nostrils. (3) Lacerated wound 2 x 1/2 x 1/2 cm over right Ear Pinna vertical. (4) Lacerated wound 3 x 1 cm x bone depth over right parietal region transverse. (5) Lacerated wound 2 x 1/2 x 1/2 cm. Oblique over right post Auricular region. (6) Abrasion 2 x 1 cm. over right shoulder. (7) Contusion 3 x 3 cm over right shoulder. (8) Lacerated wound 2 x 1/2 x 1/2 cm over right lower jaw. (9) Both upper eyelids and left forehead contused head and face feature -bloated. Eyelids closed. Nose broken. The finding as recorded in the Post-mortem certificate is that the deceased would appear to have died due to shock and haemorrhage due to the fracture of skull and injury to the brain. (9) Both upper eyelids and left forehead contused head and face feature -bloated. Eyelids closed. Nose broken. The finding as recorded in the Post-mortem certificate is that the deceased would appear to have died due to shock and haemorrhage due to the fracture of skull and injury to the brain. ( 5 ) PURSUANT to the request from the Investigation Officer, the Judicial Second class Magistrate, Thirumaiyam recorded the confessional statement by the accused after complying with all the required formalities. (Ex. P-8 ). ( 6 ) IN this case, the evidence of P. W. I, who is an eye witness, fortified by the statement given by the accused herself to P. W. 3, Village Administrative Officer, the judicial confession given before the Magistrate, P. W. 7 and the statement of the accused under Section 313 of Cr. P. C. leave no room for any further discussion as regards the proof of the occurrence. The only variation in the evidence adduced by the prosecution is that as per the confessional statement of the accused given to the Police, it would appear that the deceased had tried to commit rape on the accused at about 9 a. m. , that she ran away after struggling with him that again she returned only at about 12 noon and after finding that the deceased was lying down in the house fully drunk, being apprehensive of further injury from the deceased, she had taken M. O. I and hit him, which resulted in the death of the deceased. P. W. I would claim to have seen the accused hitting the deceased while lying down. In contrast, the facts stated in the judicial confession given by the deceased and the statement made by the accused under Section 313, Cr. P. C, it would appear that the deceased was physically assaulting the accused and trying to rape her at the time of occurrence and that the accused had reacted spontaneously in order to protect herself. In the said circumstances, the only issue which required consideration is whether the accused is entitled to a plea of private defence or not. The statement of P. W. 1 requires cautious scrutiny having regard to the fact that he had not informed the police or any person, even though, he is stated to be an eye witness. In the said circumstances, the only issue which required consideration is whether the accused is entitled to a plea of private defence or not. The statement of P. W. 1 requires cautious scrutiny having regard to the fact that he had not informed the police or any person, even though, he is stated to be an eye witness. His behaviour is rather strange that he did not mention about the occurrence to any one in the police station, even though, he claims to have gone to the police station immediately. Therefore, the judicial confession made to the magistrate is entitled to better weightage having regard to the admission by p. W. I himself that he found the blouse of the deceased torn at the time of occurrence. Hence, it would be reasonable to conclude that the version stated in Ex. P-8 is more reliable and acceptable. Even so, I would rather consider the scene of occurrence from the angle of the evidence least favourable to the accused in the context of her entitlement to the right of private defence. At about 9 a. m. there is violent attempt on the part of the deceased to rape the accused, she escapes and runs away and returns back at 12 noon only to see the deceased waiting for her, lying down fully drunk. The question is whether a helpless woman at an advanced state of pregnancy under frequent and imminent threat of rape is entitled to a right of private defence or not. Sections 96 to 106 of Indian penal Code deal with various facets of rights of private defence. While section 97, entitles a person, a right to protect not only her own body but also the body of any other person, Section 100 enumerates, various categories of assault which may cause specific apprehensions which would justify the causing of the death of the assailant. Clauses 3 and 4 of Section 100 deal with the assault with the intention to commit rape and assault with intention of gratifying unnatural lust. The assailant being none else than the brother of the accused, both the said clauses, would apply. This is in addition to the fact that being in an advanced stage of pregnancy, the natural anxiety of a mother of protect her own child in the womb, is also bound to weigh in her mind. The assailant being none else than the brother of the accused, both the said clauses, would apply. This is in addition to the fact that being in an advanced stage of pregnancy, the natural anxiety of a mother of protect her own child in the womb, is also bound to weigh in her mind. Therefore, this is a case in which Section 100 of Indian Penal Code would apply with full force atleast on three separate counts in favour of the accused. ( 7 ) THE circumstances under which the accused was placed had already been mentioned above in the statement of facts. The fact that she was being threatened by the deceased frequently had been spoken to by P. W. 2, the sister-in-law of the accused in whose house, she had taken shelter and subsequently she was forcibly taken away by the deceased under threat. The fact that the deceased had attempted to rape the accused has been spoken to by P. W. 4 also. P. W. 4 also has spoken to regarding the occurrence on the previous day as a result of which she had spent the whole night outside the house. On the day of occurrence, there was an attempt to rape her at 9 a. m. and she managed to escape and she came back at 12 noon. The deceased was there in a drunken stage. That the deceased was habitually drinking is spoken to by P. W. I himself, who is a friend of the deceased. It is therefore, necessary to consider the state of mind of the accused who had to protect herself as well as her own child in the womb as she was persecuted wherever she went. She had made complaints to the relatives as well as to P. W. 4 himself, who is the Thalayari, without any avail. Section 102 of Indian Penal Code is aptly intended to meet the situation in which the accused was placed. "commencement and continuance of the right of private defence of the body: The right of private defence of the body commences as soon as 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 it continues as along as such apprehension of danger to the body continues". ( 8 ) UNFORTUNATELY, the learned Sessions Judge appears to think that the accused was not entitled to private defence, since, the deceased was sleeping at the time of commission of offence. Neither in the evidence of P. W. 1 nor in the first confessional statement is there any expression stating that the deceased was sleeping. The expression found in the evidence of P. W. 1 as well as the first confessional statement of the accused is that the deceased was lying down (Paduttirinidar) I have already mentioned about the acceptability of the Judicial confession of the accused which would indicate the facts otherwise. At any rate, the learned Sessions Judges finding that the deceased was sleeping has no basis at all. Even accepting that the deceased was lying down, the continuity of events stated above would disclose that the apprehension of danger to the body continued. As pointed out by a Division Bench of Lahore High Court reported in Mohammad Rafi vs. Emperor, a reasonable apprehension of harm is sufficient. The Supreme Court in Deonarayanan vs. State of Uttar Pradesh, has pointed out that the right of private defence continued as long as the apprehension of the danger continued. ( 9 ) IT is necessary to appreciate the circumstances in which the accused in the present case was placed and it would be for her to say what danger she had apprehended. It is not for other persons to guess or to decide what the accused should have done in the said circumstances. A learned single Judge of the Orissa high Court in his judgment reported in Gopinath Das vs. Alekh Sahu has held that:"whether a person claiming to exercise right of private defence had any reasonable apprehension of danger or not depends on the state of his mind at that time and it is for him to say what danger he apprehended. Outsiders cannot divine what was passing in him mind". ( 10 ) THE following extract from Paragraph 13 of the judgment of the Supreme court reported in Yogendra Morarji vs. State of Gujarat, will also be relevant. "at the same time, it is difficult to expect from a person exercising this right in good faith to weigh "with golden scales" what maximum amount of force is necessary to keep within the right. "at the same time, it is difficult to expect from a person exercising this right in good faith to weigh "with golden scales" what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bonafide 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; Fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Section 100". ( 11 ) IT is also relevant to note that even though the initial burden of setting up a plea of self-defence, is on the accused, the burden immediately shifts to the prosecution to establish that the accused had exceeded her right of private defence. An extract from the abovementioned judgment of the Supreme Court would be relevant. "therefore, where the charge about the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in Section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises. As pointed out by the Court in Dahyabhai vs. State of Gujarat, under Section 105, read with the definition of "shall presume" in Section 5, Evidence Act, the Court shall regard the absence of circumstances on the basis of which the benefit of an Exception (such as the one on which right of private defence is claimed), as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist". ( 12 ) IN the case of Mohammed Ramzani vs. State of Delhi, the Supreme Court has pointed out that:"the onus which rests on the accused person under Section 105, Evidence act, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt. A person faced with imminent peril of life and limit not expected to weigh in "golden scales" the precise force needed to repel the danger",the Supreme Court further pointed out that: "even if the accused in the heat of the moment carries his defence a little further than what would be necessary, the law makes due allowance for it". In the case reported in Kishore vs. State of Maharashtra, death of two persons were caused by 7 members of a family (accused) while acting in self-defence. In the absece of proper evidence regarding the role played by each accused, the supreme Court held that they cannot be convicted for exceeding the right of the private defence and benefit of doubt was given to the accused. The ratio of this judgment would be that the burden of proving that the right of private defence was exceeded was on the prosecution. ( 13 ) THOUGH the law relating to private defence in India is codified under the indian Penal Code, the basic requirements constituting the said right are not different from the principle of the Common Law as applied by the English courts. With the passing of the Criminal Law Act, 1967 (Section 3) and the criminal Damages Act, 1971 (Section 5), the principles relating to the right of private defence in the context of use offeree in arresting a person and to the said right as against threat to property respectively, became codified. But as far as the right to private defence to protect himself or another person from unlawful force or injury, only the principles of Common Law were continued to be applied by the English Courts and therefore, reference to the decisions of english Courts may also be useful. But as far as the right to private defence to protect himself or another person from unlawful force or injury, only the principles of Common Law were continued to be applied by the English Courts and therefore, reference to the decisions of english Courts may also be useful. Prior to the decision of the House of Lords in DPP vs. Morgan, the whole weight of authority supported the view that it was an essential element of self-defence not only the accused believed that he was being attacked or in imminent danger of being attacked but also that such belief was based on reasonable grounds. In other words, the English Courts required that it was incumbent on the accused to show that the "honest belief " was based on reasonable grounds. But the House of Lords in DPP vs. Morgan took the view that the question whether the "honest belief of the accused" was reasonable or not, was really not relevant and that it was for the prosecution to establish that he had the necessary intention to commit the offence. ( 14 ) THE Court of Appeal in R. vs. Williams , adopted the same view and held that the reasonableness or unreasonableness of the plea of the accused was not relevant to consider the guilt of the accused. ( 15 ) IN Beckford vs. R. , Privy Council approved the view of the Court of appeal in R. vs. Williams and held as follows:"it is because it is an essential element of all crimes of violence that the violence or the threat of violence should be unlawful that self-defence, if raised as an issue in a criminal trial, must be disproved by the prosecution. If the prosecution fail to do so the accused is entitled to be acquitted because the prosecution will have failed to prove an essential element of the crime, namely that the violence used by the accused was unlawful. If the prosecution fail to do so the accused is entitled to be acquitted because the prosecution will have failed to prove an essential element of the crime, namely that the violence used by the accused was unlawful. " ( 16 ) THEREFORE, once it is clearly shows that the accused had a reasonable belief or apprehension of the continuing danger to her body of being raped and as well as harm to the child in her womb, she was entitled to exercise the right of private defence in terms of Sections 100 and 102 of the Indian Penal Code and the prosecution having failed to show that she had in any manner exceeded her right of private defence, the charge against the accused has to fail. ( 17 ) THE appeal is therefore allowed and the accused is acquitted and set at liberty.