JUDGMENT 1. - The learned Sessions Judge, Merta, under his judgment dated April 15, 1976, convicted the accused appellant in Sessions Case No. 81 of 1975 under Section 304 Part II of the Indian Penal Code and sentenced him to undergo six years rigorous imprisonment. It was ordered that the imprisonment undergone by the accused during investigation and trial shall be set off under Section 428 of the Indian Penal Cede and the accused shall undergo only the remainder of the sentence. 2. One Kamla was married to Jawahara Ram of village Pithola. It appears that the brother of said Kamla was married to a girl in "the family of deceased Jawabara Ram. There was some dispute between the parties for some time before the incident which is alleged to have taken place on July 5, 1975. Kamla was living with her uncle Jhumar Ram. On July 5, 1975, deceased Jawaharam along with some other persons had gone to the house of Jhumar and asked him to send Kamla with him. Jhumar did not agree. When Jawahara Ram and others were returning, it is alleged that the accused appellant Jhumar gave a blow by Jambia (a sharp weapon) to Jawaharam on his abdomen. Jawahara Ram died as a result of the injury and a report of the incident was lodged and investigation was set in motion. 3. Dr. Suresh Chandra PW 9 conducted autopsy on the dead body of Jawaharam on the same day and found that there was one penetrated wound 2.5 cm x 1.5 cm x cavity deep on emigesturin just blow the xiphi-sterum i.e. the end of gestrum where the abdomen starts. There were tags of rectus muscles coming out of the wound. On internal examination, he further found that there was cut about 2cm long on the interior surface of the right lobe of liver with cutting inferior surface of right lobe of the liver with cutting of gesture hepatic omentum. In the opinion of the doctor, the cause of death was shock and syncope due to severe harmorrage as a result of the injury to the liver. The injury was ante-mortem in nature as has been described in Ex. P-10. 4. The accused was charged under Section 302 of the Indian Penal Code to which he pleaded not guilty and claimed to be tried. The injury was ante-mortem in nature as has been described in Ex. P-10. 4. The accused was charged under Section 302 of the Indian Penal Code to which he pleaded not guilty and claimed to be tried. On behalf of the prosecution, nine witnesses were examined and thereafter, the accused was examined under Section 313, Cr.P.C. to explain the circumstances appearing against him in the evidence of the prosecution witnesses. The plea of the accused was that as a result of exchange(Atte Satte which means that a girl of a family is married in another family in exchange of a girl of that family is taken in marriage)his brother, father of Kamla had kept Kamla with him and refused her husband to take her. Kamla also did not like to go with the accused, who used to maltreat her. The accused also stated that Kamla was armed with a Jambia (a sharp edged weapon) and when Jawahara Ram her husband wanted to take her away by force, it was Kamla who stabbed her husband Jawahara Ram. The accused in support of his defence,examined DW 1 Maina the mother of the accused and DW 2 Kali respectively. 5. The learned Sessions Judge holding that Kamla was being abducted by the deceased Jawahara Ram, her husband, that gave right of defence of person of Kamla to the accused appellant but the accused appellant used more force than was necessary and,therefore, the learned Sessions Judge convicted the accused appellant under Section 304 (2) of the Indian Penal Code and held that the accused did not intend to cause the death of Jawahara Ram. 6. The contention of the learned advocate for the accused appellant is that having reached to a conclusion that Kamla was being abducted by her husband Jawahara Ram, the learned Sessions Judge erred in holding that more force than was necessary was used by the accused and, therefore, the accused is liable under Section 304 (2) I.P.C. 7. Thus, the only questions is as to whether the accused appellant exceeded his right of private defence. The learned Sessions Judge has no doubt referred to Vishwa Nath v. State of Uttar Pradesh ( AIR 1960 SC 67 ) but has not correctly appreciated the ratio of that case. A look at the statement of Dr. Thus, the only questions is as to whether the accused appellant exceeded his right of private defence. The learned Sessions Judge has no doubt referred to Vishwa Nath v. State of Uttar Pradesh ( AIR 1960 SC 67 ) but has not correctly appreciated the ratio of that case. A look at the statement of Dr. Suresh Chandra PW 9 will show that besides conducting the autopsy on the dead body of Jawahara Ram, he had also examined the injuries of Kamla and Mst. Kali. On examining their injuries, the doctor found that Kamla had one injury on her person and Kali had also one injury on her person. The doctor also examined Bhura Ram and found that there were two injuries on his person. They were simple injuries and duration was within 24 hours. It can be said that Kamla and others above named received injuries in their same occurrence. Therefore, from the injuries on their person as well as the defence evidence, the conclusions of the learned Sessions Judge that Kamla was being taken by force by the deceased Jawahara Ram are correct. Once it is held that there was a assault on Kamla and others and that the assault was with the intention of abducting Kamla, a right of private defence accrued to the accused even up to the extent of causing-the death. A look at section 100 of the Indian Penal Code will show that under clause Fifthly, in case an assault with the intention of abducting or. kidnapping takes place, then the right of private defence of body extendi, no doubt, under the restrictions in the section preceding to section 100, I.P.C. to the voluntarily causing of death also. In the instant case, the accused is stated to have caused single injury at the time when Karola was being forcibly dragged by her husband. In Vishwanaths case (supra), the facts were almost similar. A single blow by Jambia was caused which resulted in the death. Their Lordships held that where there was assault with the intention of abducting, the right of private defence extended up to the causing of death. 8. I am of the opinion that light of private defence of Kamla who was being abducted and assaulted by the deceased her husband, accrued to the accused appellant her uncle and it extended even up to the causing of death of the deceased. 9. 8. I am of the opinion that light of private defence of Kamla who was being abducted and assaulted by the deceased her husband, accrued to the accused appellant her uncle and it extended even up to the causing of death of the deceased. 9. The appeal is allowed and the conviction and sentence of the accused appellant under Section 304(2) of the Indian Penal Code are set aside. The accused is acquitted of the charges levelled against him. He is on bail and need not surrender to his bail bonds which are hereby discharged.Appeal allowed. *******