Judgment S. C. AGRAWAL, M. C. JAM JJ. ( 1 ) APPELLANT Sitaram has filed this appeal against his conviction by the learned Sessions Judge, Balotara, for the offence under Section 302. I. P. C. ( 2 ) THE case of the prosecution, in brief, is as under: The appellant as well as deceased Moti were employed as semi-skilled Pump drivers and they were posted at the Railway village well at Samdari on 10-10-1976, the duty of the appellant was from 2. 00 p. m. till 10. 00 p. m. and the duty hours of deceased Moti were from 10. 00 p. m. till 6. 00 a. m. As the pump stopped functioning at 10. 30 pm. , Banshilal (P. W. 3 ). Pump-man, telephoned at the railway village well. The telephone call was received by the appellant, who informed Banshilal that Moti had died and that he was starting the pump. After receiving this in formation about the death of Moti, Banshilal informed Phool Singh (P. W. 6), Shed-man at the Loco-shed, Samdari, that Moti had died and asked him to send the information about it to the Charge-man. Phool Singh sent a Khalasi to the house of Madanlal Bajaj (P. W. 13), Charge-man, and at about 11. 15 p. m. , Madanlal (P. W. 13) called Nathulal, Pump Driver, and went with him to the Railway Station from where he telephoned at the railway village well. This telephone-call was also received by the appellant, who informed Madanlal that he was alive, but Moti had died. Madanlal asked as to how it had happened, but no reply was given by the appellant. Thereupon, Madanlal along with Jagdish Singh, fire man (P. W. 5) and Punjraj Singh (P. W. 4), wireman, went first to G. R. P. Office, at Railway Station, Samdari and submitted a memo (Ex. P/is) informing about the death of Moti and requesting that the matter be investigated. He also gave a similar memo at Police Station, Samdari, and thereafter he proceeded to the railway village well. On reaching there, he found the dead body of Moti lying in the open area between the quarters and the well and he called the appellant from his quarter. When he asked the appellant as to what had happened, the appellant stated that at 10. On reaching there, he found the dead body of Moti lying in the open area between the quarters and the well and he called the appellant from his quarter. When he asked the appellant as to what had happened, the appellant stated that at 10. 00 p. m. he was to be relieved from duty and Moti was to take over, but he did not come and that he (appellant) waited for about 15 minutes, but when Moti did not come the appellant called him and thereupon Moti came. He was in a drunken condition and, therefore, the appellant did not hand over charge to him and went to his quarter along with the log book. Mati followed him and an altercation took place, in which Moti caught hold of throat of the appellant. The appellant had a knife with him and he inflicted injuries with the knife, as a result of which Moti died. The appellant also stated that since there were unhappy relation between the appellant and deceased Moti, the appellant carried a knife with him. While Madanlal was talking to the appellant, Tapasvilal (P. W. 15), S. H. O. , Police Station, Samdari, reached there and. thereafter Madanlal submitted a written report (Ex. P116) to Tapsvilal on 11-10-1976 at 3. 15 am, and it was received at P. S. Samdari on 11-10-1976 at 5. 00 a. m. On the basis of the said report, a case under Section 302, I. P. C. , was registered at Police Station, Samdari, and investigation was commenced. ( 3 ) DURING the course of investigation, the Investigating Officer prepared the memo of site inspection (Ex. P/8), site plan (Ex. P/9), the memo of inspection of the house of the deceased (Ex P/5), Memo (Ex. P/10) of the description of the dead body of the deceased and seized the blood stained earth found near the dead body. The clothes found on the person of the deceased, were seized vide memo Ex. P/li. The appellant was arrested on 11-10. 1976 at 9. 30 a. m. , vide memo Ex. P/4. At the time of his arrest a wrist watch a ring, a Baniyan and an underwear, which, were all stained with blood, were also seized. On the basis of the information (Ex. P/i) given by the appellant a knife and the log book were seized vide memo Ex. P/12. 1976 at 9. 30 a. m. , vide memo Ex. P/4. At the time of his arrest a wrist watch a ring, a Baniyan and an underwear, which, were all stained with blood, were also seized. On the basis of the information (Ex. P/i) given by the appellant a knife and the log book were seized vide memo Ex. P/12. The post-mortem examination of the dead body of deceased Moti was conducted by Shri Bherulal (P. W 8 ). the Medical Officer, Incharge, Primary Health Centre, Samdari, on 11-10-1976 at 1. 00 p. m. The report of the postmortem examination is Ex. P/6. According to the said report, the deceased had five incised wounds on his person, out of which one was on the forehead, the other was situated 3 cm above and 1 cm medial to the right nipple, the third at the right side of chest 2 cm lateral to the midline at the level of nipple, the fourth was situated just lateral to the left nipple and it had pierced heart and the fifth injury was on the left side of the abdomen below the umbilicus and had pierced the peritoneum. Faint smell of alcohol was found present in the contents of the stomach. According to the opinion of the Medical Officer, the deceased had died from shock and haemorrhage due to injuries on the heart and lung caused by stab wounds. The appellant was also examined by Dr. Bherulal on 11. 10. 1976 at 4. 00, p. m and according to injury report (Ex- P/7 there were three injuries (abrasions) on his person. One abrasion was over left shoulder and it was 12 to 18 hours old, but the others two a brasions were healed a brasions and were about one to two weeks old. The blood stained baniyan and underwear as well as the wrist watch and the ring, which were seized from the person of the appellant at the time of his arrest and the knife, which was seized from the possession of the accused, and the blood stained earth seized from near the dead body, were sent for chemical as well as for serological examination and the reports (Ex. P/26 and Ex. P/26 and Ex. P/27) of those examinations, showed that the wrist watch, the ring, the underwear, the baniyan and the knife were all stained with human blood and that the blood group of the blood found on the underwear of the appellant, was the same as the blood group of the blood stained earth, which were recovered from the place, where the dead body was found lying. After completing the investigation the police filed the charge-sheet against the appellant in the Court of Munsif and Judicial Magistrate, Balotara, who committed the case for trial to the Court of Session and, there upon the appellant was charged with the offence under Section 302, I. P. C. , before the Sessions Judge, Balotara. The appellant pleaded not guilty and claimed to be tried. ( 4 ) THE prosecution in support of its case examined fifteen witnesses, namely, P. W. 1 Khemsingh, P. W. 2 Kewal Ram, P. W. 3 Banshilal, P. W. 4 Punjraj Singh, P. W. Jagdish Singh, P. W. 6 Phool Singh, P. W. 7 Madhu, P. W. 8 Shri Bherulal, P. W. 9 Umarkhan, P. W. 10 Munirkhan, P. W. 11 Girdhari Singh, P. W. 12 Hanwant Singh, P. W. 13 Madanlal, P. W. 14 Shiv Prasad Singh, and P. W. 15 Tapasvilal. ( 5 ) THE appellant in his statement recorded under Section 313, Cr. P. C. , admitted having received the telephone call from Banshilal at about 10. 50 p. m. , on 10. 10. 1976 and having told Banshilal that Motilal had died. The appellant also admitted having received the telephonic call from Madanlal Bajaj, Charge man, at about 11. 30 p. m. , on 10-10-1976 and having informed Madanlal that Moti had died. He also admitted that Moti was found lying dead at the time when Madanlal, Jagdish Singh and Punjraj Singh arrived at the well and that they had called the appellant. The appellant has, however, denied having stated anything to them with regard to the manner, in which Motilal died. The appellant also stated that he did not have any quarrel with Moti and that Moti did not catch hold of his (appellant) throat. He has also denied that he (appellant) had inflicted any knife injuries on Moti. The appellant has admitted that the log book was delivered by him 1. The appellant also stated that he did not have any quarrel with Moti and that Moti did not catch hold of his (appellant) throat. He has also denied that he (appellant) had inflicted any knife injuries on Moti. The appellant has admitted that the log book was delivered by him 1. 0 the police after opening the lock of his kitchen, but he denied having handed over the knife. He, however, admitted that a knife was recovered, but he was unable to say as to how it was found there. He has denied that the baniyan and the underwear belong to him, but has admitted that the wrist watch and the ring belong to him. He was unable to explain the presence of blood on the wrist watch and the ring. With regard to the entry in the log book, the appellant stated that the said entry is in his hand, but it was written by him at the police station on the dictation of the S. H. 0. ( 6 ) THE Sessions Judge held that the appellant was the person, who had inflicted the knife injuries on the person of the decreased. In order to arrive at the finding, the Sessions Judge has placed reliance on the extra judicial confession made by the appellant in the presence of Madanlal (P. W. 13 ). Punjraj Singh (P. W. 4) and Jagdish Singh (P. W. 5), which was proved by the evidence of Madanlal (P. W. 13) and Jagdish Singh (P. W. 5 ). The Sessions Judge has further found that apart from the extra-judicial confession of the appellant, there was the circumstance that the underwear, the baniyan, the wrist watch and ring, which were seized from person of the appellant, were stained with human blood and the blood group of the blood found on the underwear was the same, as that of the blood on the blood stained earth recovered from the place, where the dead body of the deceased was found. In addition, the Sessions Judge placed reliance on the recovery of the knife from the possession of the appellant, which was found stained with human blood, and the statement of Madhu (P. W. 7), who has deposed that he had arrived at the scene of occurrence soon after the incident and that he had seen the deceased lying on the ground and the appellant standing near him with knife in hand and that the appellant had also threatened him. In view of the circumstances, referred to above, the Sessions Judge held that it was the appellant, who had inflicted the injuries on the person of the deceased with the intention of causing his death and, therefore, he was guilty of the offence under Section 302, I. P. C. The Sessions Judge, therefore, convicted the appellant for the offence under Section 302, I. P. C. and sentenced him to imprisonment for life. Hence this appeal. ( 7 ) WE have heard Shri N. P. Gupta, who has appeared on behalf of the appellant as Amicus curiae, and Shri Niyaruddin Khan, learned Public Prosecutor, for the State. ( 8 ) THE first question, which needs to be determined in this appeal is as to whether the appellant can be held responsible for causing the injuries on the person of deceased, which resulted in his death. There is no direct evidence to show that the appellant had inflicted the said injuries. The prosecution has sought to establish its case in this regard on the basis of the extra-judicial confession made by the appellant as well as the other circumstances connecting the appellant with the crime. The most important piece of evidence, which implicates the appellant in the crime, is the extra judicial confession, which is said to have been made by the appellant in the presence of Madanlal Bajaj (P. W. 13 ). Jagdish Singh (P. W. 3) and Punjraj Singh (P. W. 4 ). P. W. 4 Punjraj Singh does not support the prosecution case and he has been declared hostile. Jagdish Singh (P. W. 5) and Madanlal Bajaj (P. W. 13) have proved the said extra-judicial confession. Jagdish Singh has stated that he along with Madanlal Bajaj and Punjraj Singh had gone to the well and there they found the dead body of the deceased lying soaked in blood and thereupon the appellant was called from his quarter. Jagdish Singh (P. W. 5) and Madanlal Bajaj (P. W. 13) have proved the said extra-judicial confession. Jagdish Singh has stated that he along with Madanlal Bajaj and Punjraj Singh had gone to the well and there they found the dead body of the deceased lying soaked in blood and thereupon the appellant was called from his quarter. At the time when the appellant came, he was wearing an underwear and a baniyan and there were blood stains on the baniyan. On being asked by Madanlal Bajaj, the appellant stated that he had gone to call Moti to join the duty, but he did not come and that he again went to call him after 15 minutes and then he came, but he was under intoxication and, therefore, he did not handover charge to him. The deceased, thereupon started quarrelling and at that time he gave knife blows. During the course of cross-examination Jagdish Singh has stated that the appellant had told the chargman (Madanlal Bajaj) in his presence that the deceased was drunk and that he had quarreled with him and he had also caught hold of his throat and thereupon he gave knife blows. Similarly Madanlal Bajaj (P. W. 13) has stated that he along with Jagdish Singh, the store clerk and Punjraj Singh (P. W. 4), wireman had gone to the well and on reaching there, they found the lights on, but the Pump was not working and in the open space between the wall and the quarters, the dead body of Moti was lying at a distance of about 3 ft. from the quarter of the appellant and the dead body was of Moti soaked in blood. Madanlal has also stated that he called the appellant and thereupon the appellant came from his quarter and that at that time he was wearing a Baniyan, which was torn, and underwear and that there were stains of blood on them. When he asked the appellants to what had happened, the appellant told him that at 10. 00 a. m. he was to be relieved from duty and Moti was to join and that he waited for 15-20 minutes, but Moti did not come and thereupon he went to call him. When he asked the appellants to what had happened, the appellant told him that at 10. 00 a. m. he was to be relieved from duty and Moti was to join and that he waited for 15-20 minutes, but Moti did not come and thereupon he went to call him. In the meanwhile Mati had arrived, but he was drunk and, therefore, the appellant did not hand over the charge to Moti and went to his quarter along with the log book. Moti followed him and started quarrelling and caught hold of his throat. The appellant had also stated that he had a knife with him and he inflicted injuries with his knife as a result of which Moti died. Madanlal has stated that when he asked the appellant that as to why he was keeping the knife, the appellant had told him that since his relations with Moti were not good, he was keeping the knife with him. The aforesaid version of the extra judicial confession, which is said to have been made by the appellant in the presence of Madanlal, Jagdish Singh and Punjraj Singh, is also contained to the report Ex. P116, which was handed over by Madanlal Bajaj to Tapasvilal (P. W. 15), S. H. O. , Police Station, Samdari, on his arrival at the scene on 11-10-1976 at 3. 00 a. m. In the said report also it is mentioned that Madanlal Bajaj along with Punjraj Singh and Jagdish Singh, after reaching the well at about 2. 30 a. m. had called the appellant and the appellant came out from his quarter and that at that time, he was wearing a baniyan, which was torn and an underwear, and they were stained with blood and on inquiry the appellant had stated that his duty was up to 10. 30 a. m. had called the appellant and the appellant came out from his quarter and that at that time, he was wearing a baniyan, which was torn and an underwear, and they were stained with blood and on inquiry the appellant had stated that his duty was up to 10. 00 p. m. , and thereafter Moti was to take over, but he did not come and after waiting for 15 minutes, he called him and thereafter Moti came, but he was drunk and, therefore, he did not hand over the charge to him and did not also hand over the log book to him and went to his house along with log book and that Moti started quarrelling and caught hold of the throat of the appellant and that since there was hostility between him and Moti and as the appellant was apprehending danger, he used to keep the knife with him and that after taking out the knife he inflicted the injuries, as a result of which he (Moti) died. This would show that on the earliest occasion Madanlal had disclosed about the extra-judicial confession, which was made by the appellant in his presence and in the presence of Jagdish Singh and Punjraj Singh. Madanlal was working as Chargeman and the appellant was his subordinate. It was but natural for Madanlal to have asked the appellant as to how the incident resulting in the death of Motilal, had happened and in response to the said query, the appellant informed him as to what had actually happened. In our opinion, the evidence of Madanlal Bajaj (P. W. 13) and Jagdish Singh (P. W. 5), who have proved the extra-judicial confession made by the appellant, and who are independent witnesses, inspires confidence and deserves to be accepted. ( 9 ) MOREOVER, the aforesaid extra-judicial confession of the appellant finds corroboration from other evidence on record. Madhu (P. W. 7) has deposed that on 10-10-1976 at about 7. 00 p. m. , he had gone to the quarter of Moti deceased and that he had is dinner with Moti and that before that they took liquor. He has also stated that the appellant had called Moti to join the duty and that at 10. Madhu (P. W. 7) has deposed that on 10-10-1976 at about 7. 00 p. m. , he had gone to the quarter of Moti deceased and that he had is dinner with Moti and that before that they took liquor. He has also stated that the appellant had called Moti to join the duty and that at 10. 10 p. m. Moti went to joint duty and that after some time there was a noise and he came out and saw the appellant and Moti fighting and Moti was lying on the ground and the appellant was standing nearby with a knife in his hand and he threatened him (P. W. 7), and thereupon he went inside and closed the door and came out when the Chargman arrived at about 2. 30 or 3. 00 a. m. Madanlal Bajaj (P. W. 13) and Tapasvilal (P. W. 15) have both stated that Madhu (P. W. 7) was present when they arrived at the scene of the occurrence at about 2. 30 -3. 00 a. m. The baniyan, the underwear, the wrist watch and the ring that were seized from the person of the appellant at the time of his arrest on 11-10-1976 at 11. 00, a. m. , were all found stained with human blood and the group of the blood, which was found on the underwear of the appellant, was the same as that of the blood, which was found on the blood stained earth that was seized from the place where the dead body was lying. The knife, which was recovered from the house of the appellant on the basis of information given by him, was found stained with human blood. The log book that was recovered from the house of the appellant, contained an entry (Ex. P/2) dated 10-10-1976 that Motilal came drunk, charged and log book was not given, started quarrelling, died, information was given at the Station and pump was started. The case of the appellant that the said entry was made subsequently at the police station, is belied by the testimony of Umarkhan (P. W. 9) and Munir Khan (P. W. 10), the attesting witnesses of the seizure memo (Ex. P/12) about the log book and the Investigating Officer, Shiv Prasad Sharma (P. W. 14), and Tapaswilal (P. W. 15), who had seized the log book. All of them have stated that the entry (Ex. P/12) about the log book and the Investigating Officer, Shiv Prasad Sharma (P. W. 14), and Tapaswilal (P. W. 15), who had seized the log book. All of them have stated that the entry (Ex. P/2) was in the log book at the time it was seized from the house of the appellant. Taking into consideration the circumstances, referred to above, we are of the opinion that the prosecution has established beyond doubt that it was the appellant, who had inflicted the injuries, which were found on the person of the deceased and which had resulted in his death. ( 10 ) THE next question, which needs to be considered is as to the offence, which can be said to have been committed by the appellant. The submission of Shri N. P. Gupta learned counsel for the appellant, was that in the facts and circumstances of the case, the injuries that were inflicted by the appellant on the person of deceased Moti, Were inflicted in the exercise of the right of private defence of person of the appellant and all that can be said is that the appellant exceeded the right of private defence of person. According to Shri Gupta, the present case is covered by Exception 2 to Section 300, I. P. C. , and, therefore, the appellant cannot be held guilty of the offence of murder under Section 302, I. P. C. but he can only be held guilty of offence of culpable homicide not amounting to murder, punishable under Section 302, Part I, I. P. C. In support of his aforesaid submission, Shri Gupta has placed reliance on the extra judicial confession of the appellant, as proved by Madanlal (P. W. 13) and Jagdish Singh (P. W. 5), which shows that there was a quarrel between the appellant and the deceased and that the deceased had caught hold of the throat of the appellant and thereupon the appellant had inflicted the injuries on the person of the deceased with a knife. Shri Gupta has also referred to the memo of site inspection Ex. Shri Gupta has also referred to the memo of site inspection Ex. P/8, wherein it is mentioned that blood was found between the place where the dead body was lying and the quarter No. 15 (B), which was occupied by the appellant and that in the said quarter blood was found on the three stairs leading to the door of Jafri and also at the plinth level. Shri Gupta has also referred to the memo of site inspection (Ex. P/8) wherein it is recorded that between the place where the dead body was found and the quarter No. 15 (B) there were signs of grappling on the sand. Shri Gupta has also pointed out that baniyan, which was recovered from the person of the appellant at the time of his arrest, was found in a torn condition. Shri Gupta has also invited our attention to the statement of the Investigating Officer, Shri. Tapasvilal (P. W. 15), that the deceased was stronger in guilt, than the appellant. Shri Gupta has also pointed out that the age of the deceased, as disclosed in the post-mortem report is 40 years, whereas the age of the appellant, as mentioned in the memo of arrest (Ex. P/4), is 50 years and further that the height of the appellant, as mentioned in the memo of arrest (Ex. P/4) is 5-3 and that the height of the deceased, as mentioned in the memo relating to the condition of the dead body (Ex. P/10), was 5t -8, On the basis of the aforesaid circumstances, Shri Gupta has submitted that the deceased had started quarrelling with the appellant when the appellant refused to hand over the charge to him and returned to his quarter with the log book and that the said quarrel started near the door of the quarter of the appellant and that thereafter a scuffle took place and that injuries were inflicted by the appellant during the course of the said scuffle. Shri Gupta has submitted that in view of the fact that according to the appellant, the deceased caught hold of the throat of the appellant, the appellant was entitled and was justified in exercising the right of private defence and that the injuries that were inflicted by him on the person of the deceased, were those inflicted in the exercise of the right of private defence of his person. ( 11 ) THE learned Public Prosecutor, on the other hand, has submitted that the plea of right of private defence was not raised by the appellant at any stage of the proceedings and that, on the other hand, in his statement recorded under Section 313, Cr. P. C. , the appellant has completely denied the fact of any quarrel having taken place between him and deceased or the deceased having caught hold of the throat of the appellant or the appellant having given any knife blow. The learned Public Prosecutor has also submitted that in the facts and circumstances of the present case, the appellant cannot invoke the protection of Exception 2 to Section 300, I. P. C. inasmuch as the appellant had inflicted five incised wounds on the person of the deceased, who was unarmed. ( 12 ) IT is, no doubt, true that the appellant did not raise the plea of the right of private defence of person at any state of the proceedings and in his statement recorded under Section 313, Cr. P. C. , the appellant has denied that there was any quarrel between him and the deceased or that the deceased had caught hold of his throat and the appellant had struck him with a knife. The law, however, is well-settled that even if the accused has not expressly pleaded the right of private defence during the course of trial, it is open to him to raise the plea during the course of arguments, if such a plea can be sustained on the basis of material on record. In the present Case, Shri Gupta seeks to establish the plea of right of private defence of person on the basis of the evidence produced by the prosecution. In our opinion, it is permissible for the appellant to raise such a plea, if it can be sustained on the basis of the evidence on record. We will, therefore, go into the question as to whether the plea of right of private defence of person is available to the appellant in the facts and circumstances of the present case. ( 13 ) AS noticed earlier, the only version about the incident, is that contained in the extra-judicial confession, which was made by the appellant in the presence of Madanlal Bajaj (P. W. 13), Jagdish Singh (P. W. 5) and Punjraj Singh (P. W. 4 ). ( 13 ) AS noticed earlier, the only version about the incident, is that contained in the extra-judicial confession, which was made by the appellant in the presence of Madanlal Bajaj (P. W. 13), Jagdish Singh (P. W. 5) and Punjraj Singh (P. W. 4 ). In the said extra judicial confession, the appellant has stated that the deceased was drunk at the time when he came to join the duty and that the appellant refused to hand over the charge to him and that while he was returning to his quarter with the log book, the deceased had followed him and there was a quarrel between him and the deceased and that the deceased had caught hold of his throat and thereupon he (appellant) took out the knife and struck blows with the knife on the person of the deceased. The fact that the deceased was drunk at the time when he went to join the duty, is established from the evidence of Madhu (P. W. 7), who has deposed that he and the deceased had taken liquor on the evening of 10- 10-1976 and that the deceased had consumed one bottle of liquor and was fully intoxicated. The Post-mortem Report (Ex. P16) also indicates the presence of alcohol in the stomach of the deceased. That there was scuffle between the appellant and the deceased, is supported by the fact that the baniyan, Which was recovered from the person of the appellant at the time of his arrest, on 11-10-1976, was torn and the memo of site, inspection Ex. P/8 also records that there was signs of grappling and scuffles on the sand between quarter No. 1 5 (B) occupied by the appellant and the place the dead body was found. We also find that the age of the appellant, as disclosed in the memo of arrest (Ex. P/4) was 50 years and his height is mentioned 5 -3 and the appellant has been described as lean. In so far as the deceased is concerned, his age is mentioned as 40 years in the memo Ex. P/10 with regard to the condition of the dead body as well as in the post-mortem report Ex. P/6, and according to memo Ex. P/10, his height is 5/8 and he was well built. Tapsavi Lal (P. W. 15) has also stated that the deceased was stronger in built than the appellant. P/10 with regard to the condition of the dead body as well as in the post-mortem report Ex. P/6, and according to memo Ex. P/10, his height is 5/8 and he was well built. Tapsavi Lal (P. W. 15) has also stated that the deceased was stronger in built than the appellant. In this context, reference may also be made to the injury report Ex. P/7, which shows that at the time the appellant was examined on 11-10-1976 at 4. 00 a. m. , there was an abrasion 3. 00 x 0. 7 on over left shoulder on superior surface and duration of the injury was about 10 to 18 hours. The aforesaid injury report also lends support the case of the appellant that there was a scuffle between the appellant and the deceased and during the course of such scuffle, the deceased had caught hold of the throat of the appellant. Taking into consideration the circumstances referred to above and the difference in the structure of the bodies of the appellant and the deceased being in a stage of intoxication and having caught hold of the throat of the appellant, it can be held that the appellant was being assaulted by the deceased and that the appellant could reasonably apprehend that hurt may be caused to him as a result of such assault. Since the deceased was unarmed, the appellant could not have a reasonable cause for apprehension that death or grievous hurt would be the consequence of the assault by the deceased. The appellant was therefore, entitled to exercise the right of private defence of his person to protect himself and while doing so he could cause to the deceased any harm, other than death. In the present case, however the appellant in order to protect himself from the assault by the deceased, inflicted five stab wounds on the person of the deceased with his knife. In doing so, the appellant bas clearly exceeded the right of private defence of his person, because the deceased was unarmed and two of the stab wounds, that were inflicted by the appellant, were on the vital part of the body, namely, heart and the lung. In doing so, the appellant bas clearly exceeded the right of private defence of his person, because the deceased was unarmed and two of the stab wounds, that were inflicted by the appellant, were on the vital part of the body, namely, heart and the lung. The question which arises for consideration is as to whether the appellant can seek protection of Exception 2 to Section 300, I. P. C. The said Exception reads as under: Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. A perusal of the aforesaid Exception shows that in a case where the offender exceeds the right of private defence of person or property given to him by law and causes death of the person against whom he is exercising such right of private defence, the offender would not be guilty of the offence of murder, but would be guilty of offence of culpable homicide not amounting to murder, provided the following two conditions are satisfied: 1. He must have acted without premeditation; and 2. He must have acted without intention of doing more harm than is necessary for the purpose of such defence. While considering the application of the aforesaid Exception, it has to be borne in mind that an offender, who exceeds the right of private defence of person or property given to him by law and causes the death of the person against whom he is exercising such right of private defence, has caused more harm than was necessary for such defence. Exception 2, however, postulates that such an act would not amount to culpable homicide, if the offender had acted without the intention of doing more harm, than is necessary for the purpose of such defence. In other words, the Exception lays emphasis on the intention of the offender and not on the act itself. Exception 2, however, postulates that such an act would not amount to culpable homicide, if the offender had acted without the intention of doing more harm, than is necessary for the purpose of such defence. In other words, the Exception lays emphasis on the intention of the offender and not on the act itself. If the right of private defence was the only impulse operating in the mind of the offender and he did not kill with a revengeful motive in the purported exercise of his right of private defence, it cannot be said that he had the intention of doing more harm than is necessary for the purpose of such defence and in such a case the Exception would be applicable. ( 14 ) IN the present case, it cannot be said that in inflicting the injuries with the knife on the person of the deceased, the appellant had acted with premeditation, because the quarrel had started suddenly and during the course of the quarrel the deceased caught hold of the throat of the appellant and thereupon the appellant took out the knife and inflicted the injuries with the knife on the person of the deceased. Can it be said that the appellant had intention of doing more harm, than was necessary for the purpose of exercising his right of private defence of person? It is true that the deceased was unarmed and the appellant bad inflicted five stab injuries on the person of the deceased with the knife but taking into consideration the circumstances, in which the said injuries were inflicted, namely, that the deceased, who was drunk and stronger than the appellant, had caught hold of the throat of the appellant, and, that the grappling continued from the door of the quarter of the appellant to the place, where the dead body was found, indicated that the injuries that were inflicted by the appellant with the knife, were as a result of impules of the appellant to protect himself from the assault by the deceased. In the facts and circumstances of the case, it must be held that the only impulse that was coercing in the mind of the appellant at the time when he inflicted the injuries with the knife on the person of the deceased, was to save himself from the assault by the deceased and that he was not acting with any revengeful motive at that time and it cannot be said that in inflicting the injuries with the knife on the person of the deceased, the appellant had an intention of doing more harm was necessary for the purpose of exercising the right of private defence of person. The present case is, therefore, covered by Exception 2 of Section 300, I. P. C. and the appellant cannot be convicted of the offence under Section 302, I. P. C, The appellant is, however, guilty of the offence of culpable homicide not amounting to murder, punishable under Part I of Section 304, I. P. C. , because the injuries, which were inflicted by him on the person of the deceased, were so inflicted with the intention of causing such bodily injury as is likely to cause death. ( 15 ) IN the matter of sentence, we find that the appellant was arrested on 14-10-1976 and has remained in custody ever since. He has, thus, undergone imprisonment for a period of nearly seven years. Taking into consideration the facts and circumstances of the case, we are of the opinion that the ends of justice would be served, if the appellant is sentenced to the period of imprisonment, already under gone by him. ( 16 ) IN the result, the appeal is partly allowed. The conviction and the sentence of the appellant for the offence under section 302, I. P. C. , are set aside, and instead the appellant is convicted for the offence punishable under Section 304, Part I, I. P. C. , and is sentenced to the period of imprisonment, which has been already undergone by him. The appellant is in jail. He shall be released forthwith, if not required in any other case. Appeal partly allowed.