JUDGMENT
Rajendra Saxena, J.
1. This appeal is directed against the Judgment of learned Sessions Judge, Udaipur dated 25.2.1986 whereby the learned Sessions Judge has convicted the accused-appellant of the offences under Section 302 I.P.C. and has sentenced him to life imprisonment alongwith the find of Rs. 200/- and in default to undergo three months rigorous imprisonment. The facts necessary to be noticed to the disposal of this appeal, briefly stated are that the accused got a report recorded in Thana, Bekaria, Distt. Udaipur on 21.1.85 at 9.00 AM marked as Ex. P/4 wherein he got it recorded that he and deceased Pura who is his uncle enjoyed wine together and while they were coming back from village Kadanch to Champa-Ki-Nal, a dispute arose between them about the way by which they were to proceed to Champa-Ki-Nal. In that process, it is alleged that they abused each other and in that process Sh. Pura inflicted an axe blow on his head. He snatched the axe from his hand and inflicted the blow which resulted in his death. As the concerned Thana was not Bekaria, Therefore, the real F.I.R. was recorded by P.S. Sayra and that is based on the report given by one Lachha wherein it has been reported that on 20.1.85 at about 4-5 P.M., the accused Dharma inflicted as axe blow to Pura whereby Pura died and his dead-body was lying in the way. On this information a case under Section 302 Cr.P.C. was registered and investigation was conducted and post-mortem report of the dead body was obtained. The accused also got himself medically examined and after investigation the case was challaned in the Court of learned Munsif and Judicial Magistrate, Gogunda and there after Sessions Judge, Udaipur who framed the charge under Section 302 I.P.C. against the accused. Accused Dharma denied the same and thereafter that trial was commenced and accused was convicted as aforesaid and hence this appeal. The accused is in custody since 21.1.1985.
2. We have heard Mr. Suresh Kumbhat, learned Amicus curiae and Mr. V.R. Mehta, learned Public Prosecutor. The contention of Mr. Kumbhat is that it is not disputed that the fatal blow on the body of pura was inflicted by Dharma which has resulted in his death. P.W. 2 Dr. Surendra Singh has categorically stated that this injury was sufficient in the ordinary course of nature to cause his death as it has cut a major portion of his neck and the can…dartery was completely cut and, therefore, the death is homicidal. However, Mr. Kumbhat has further submitted that accused has caused this injury in the exercise of his right of private defence of person because the injury was inflicted on his head by an axe by deceased Pura and, therefore, he could have caused any injury on the person of the deceased because danger to cause grievous injury to him was very much imminent and consequently he deserves to be acquitted and in this respect he has placed the reliance on a decision of their Lordships on the Hon’ble Supreme Court rendered in George Dominic Varkey v. State of Kerala reported in 1971 CAR 259 (SC) and Anr. decision of Hon’ble the Supreme Court rendered in Deo Narain v. State of Raj. reported in 1973 CAR 72 (SC). He further placed reliance on a Divisions Bench decision of this court rendered in Asghar Khan and Anr. v. State of Raj. reported in 1992 (1) RLR 353. His contention is that as soon as an apprehension to cause a grievous injury exists the accused gets a right to cause injury to the assailant. He may even kill his assailant. In this case the injury which is alleged to have been caused by deceased Pura on the head of Dharma is only a simple, injury. The injury has made its full impact. The second injury found on the person of the accused has not been explained by the accused himself. Be that as it may the learned Sessions Judge while appreciating the evidence has observed that although Pura might have inflicted the injury on the head of Dharma, but from the evidence it is clear that it has not been so inflicted because two eye witnesses i.e. PW-6 Manga and PW-7 Gola have stated that Pura was armed with an axe. We are unable to accept this finding of learned Sessions Judge. After this injury which has been inflicted to Pura, he could not have inflicted any injury to Dharma. The injury report of Dharma has been proved by P.W. 2 Dr. Surender Singh and he has stated that this injury by sharp weapon was situated on the vital part of the body and was used by an axe. Its duration has been mentioned to be 40 hours. The examination of Dharma took place on 22.1.85 at 8.45 AM and therefore, this period totally concedes with the time of incident. The prosecution has failed to explain this injury found on the person of the accused. No cross examination was done with PW-2 Dr. Surender Singh that it could be self inflicted. It has therefore to be taken as established that this injury has been inflicted on the head of accused by Pura and, therefore, a right of private defence to protect his person did not accrue to the accused. However, looking to the fact that injury which has been caused to the accused is only simple in nature and it is well established that the accused has exceeded his right of private defence of a person by causing such an injury on the neck Pura deceased which has resulted in his death. Although Mr. Mehta does not seriously. Oppose this contention but the submits that the Judgment of learned Sessions Judge does require any interference. We are unable to accept this contention of the learned Public Prosecutor. Actually the accused was hit by the deceased on his head by an axe and therefore, the accused did get a right to protect his person. Of course he has exceeded that right and therefore in our considered view his guilt does not travel beyond Section 304 part II I.P.C.
3. In the result the appeal partly succeeds and the sentence and conviction of accused appellant Dharma under Section 302 Cr.P.C. passed by learned Sessions Judge, Udaipur is set aside and it is converted into one under Section 304 part II I.P.C. Since the accused appellant has already undergone sentence for a period of 8 years, 8 months and 9 days, we are firmly of the opinion that the period of sentence which has already been undergone by him will meet the ends of Justice. The accused appellant therefore, be set at liberty forthwith, if he is not required in any other case. The Jail appeal stands disposed of accordingly.
4. The Jail Authorities be informed of the result of this appeal for immediate compliance.