JUDGMENT Kisch, J.
1. The appellant B. Suraj Narain Lal, Kayasth, has been convicted of an offence under Section 304, I.P.C., and sentenced to four years' rigorous imprisonment for causing the death of one Sukhoo Koeri. The facts of the case are common ground as between the prosecution and the defence in almost every particular. Sukhoo Koeri, the deceased, aged 30 years, was an orphan and had been brought up from his childhood by B. Suraj Narain Lal. On the night of 22nd April 1932 Sukhoo had been chatting with B. Suraj Narain Lal for an hour or so, and at about 11 p. m. Suraj Narain Lal retired to sleep in the verandah just outside the room in which his wife was reposing. Shortly after he heard his wife crying out "who are you and why have you come? Are you mad?" He took up the lighted lantern by his side and went into the room where he found Sukhoo lying on top of his wife, who was struggling with him. He picked up a gandasa lying on a shelf near by and struck Sukhoo a number of blows with it. Sukhoo was just able to get out of the room and fell dead in the courtyard. After quieting his wife, waking up his servant, Jalil Khan, and telling him what had occurred, B. Suraj Narain Lal went off to the police station and reported the whole occurrence. He repeated his story in a statement which he made before a Magistrate on the same day under Section 164, Criminal P.C. and he has adhered to his story throughout. His wife, Mt. Parmatam Koer, who is about 35 years of age and has given birth to 8 children, deposes1 that Sukhoo suddenly appeared in her room and grappled with her pressing her down with his body and trying to gag her with his hands and his angocha. She called out to her husband that Sukhoo had gone mad. Her husband seeing what was taking place as he entered the room, picked up the gandasa and gave Sukhoo a number of blows with it. She further deposed that if her husband had delayed even a minute, Sukhoo would have raped her. There is some evidence that Sukhoo was under the influence of liquor at the time.
2. The plea that was taken in the trial Court that Suraj Narain Lal had not exceeded his right of private defence under Clause 3, Section 100, I.P.C, was not accepted by the learned Sessions Judge, because he felt that he was bound by the statement of Suraj Narain Lal himself, which he consistently maintained, that Sukhoo had got up from the bed before he struck him and that he (Suraj Narain Lal) pursued him into the compound striking him the while. The learned Sessions Judge accordingly came to the conclusion that the case fell under the first exception to Section 300, I.P.C, and that the accused had killed Sukhoo while deprived of the power of self-control by grave and sudden provocation. It is to the accused's credit that he has nowhere tried to give his story a turn more favourable to himself. The state of mind of a husband who discovers that a man, whom he has befriended from his infancy and brought up in his own household, has betrayed him by endeavouring to commit rape on his wife may well be imagined, and there is no doubt, on a careful consideration of the evidence, that Suraj Narain Lal himself had a very blurred vision of what actually occurred. I prefer to place reliance on the statement of his wife. Mt. Parmatam Kuer, which is corroborated by the medical evidence and the circumstances of the case. She definitely deposes that Suraj Narain Lal struck Sukhoo while he was lying upon her, that he received several gandasa blows and then the blade fell out of the gandasa. Sukhoo fled through the verandah and when Suraj Narain Lal followed him, he had only the handle of the gandasa in his hand. Suraj Narain Lal himself has stated that the blade fell out of the gandasa, and as the blade it self was recovered inside the room in which the occurrence had taken place, it is clear that the accused could not have struck the deceased outside the room. The deceased actually received three cuts on the neck or lower part of the head, and two cuts on the shoulders, and when we turn to the medical evidence we find that it is the opinion of the doctor, Capt. Joshi, who conducted the post-mortem examination, that all the injuries were inflicted whilst the deceased was in a lying position.
3. On this view of the case it appears to me that the action of the accused is covered by Clause 3, Section 100, I.P.C, It is true that the right of private defence laid down in that Section 100, is a restricted right and has to be read subject to the provisions of Section 99. But in the present case the assault-made by the accused upon Sukhoo while he was endeavouring to violate the accused's wife docs, in my opinion, bring the case within Section 100, even as qualified by Section 99. This was the view taken in a somewhat analogous case, Jhakri Chamar v. Emperor (1912) 13 CrLJ 905, decided by a Full Bench of the Calcutta High Court. In my opinion therefore the accused was entitled to an acquittal. I accordingly allow the appeal, set aside conviction and sentence of the Court below and acquit the appellant, B. Suraj Narain, of the offence under Section 304, I.P.C. His bail will be discharged.