S. L. TALATI, J. ( 1 ) THIS. appeal is directed against the judgment of the learned Additional Sessions Judge Nadiad in Sessions Case No 120 of 1979 by which the appellant came to be convicted for an offence under sec. 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life on 22-4-1980. The facts which gave rise to this appeal may be briefly stated as under : ( 2 ) THE incident occurred in village Bhetasi in Taluka Borsad District Kaira on 3-8-1979. The incident was reported by P. W. 3 Lalsing Parmar exh. 9 who was working as Police Patel at that time. In fact the accused went to Police Patel and gave information which was conveyed by Police Patel to Anklav police station. Before going to Anklav police station Police Patel had gone to the place where Fata was lying dead. He placed his Ravania at the place of the occurrence and thereafter he went to Anklav police station. When he went to the scene of the occurrence of the place he found that Fata was lying with a bleeding injury on his head. ( 3 ) P. S. I. Jahangir Dival (P. W. 7) exhibit 21 at the relevant time was incharge of Police station Anklav and he received the report of Police Patel on 3-8-1979 at 10-30 P. M. He registered the offence and recorded the statement of Police Patel. He started for going to village Bhetasi at 11-30 P. M. and reached the place on 4-8-1979 at 1-0 A. M. He held inquest panchnama and recorded the statement of Bharatsing Dolatsingh and others. The accused was arrested and the panchnama of the scene of the offence was prepared. The accused produced a spade which was attached under the panchnama. The earth was attached from the place of the scene of offence and the dead body was sent for postmortem examination. Dolatsingh was sent for treatment as he was injured. The articles seized were sent to the Forensic Science Laboratory for report. Ultimately after completing the investigation chargesheet was submitted against the accused on 28-9-1979. In due course the case was committed to the Court of Sessions and at the trial the prosecution examined 7 witnesses. ( 4 ) THE accused denied the guilt. The articles seized were sent to the Forensic Science Laboratory for report. Ultimately after completing the investigation chargesheet was submitted against the accused on 28-9-1979. In due course the case was committed to the Court of Sessions and at the trial the prosecution examined 7 witnesses. ( 4 ) THE accused denied the guilt. In his statement he stated that he had gone to file a complaint to the house of Police Patel and Police Patel came to the place of the occurrence and saw that the brother of the accused had died and he was made to sit at that place and at 12-00 midnight police officers had come and Dolatsing and he was arrested. Bhartsing was also arrested and they were all taken to the panchayat office and according to him they were all beaten and thereafter at about 4 A. M. they were all told to sleep. When he woke up in the morning the other two persons were not there and he could not understand as to what had happened. ( 5 ) THE learned Additional Sessions Judge after appreciating the evidence came to the conclusion that the accused was guilty for the offence under sec. 302 I. P. C. and sentenced him as above. The accused has now preferred this appeal. ). . . . . . . . . ( 6 ) NOW before the learned Additional Sessions Judge on the basis of the above evidence it was argued that this was a clear case of private defence and therefore the accused was entitled to acquittal. The learned Additional Sessions Judge came to the conclusion that the evidence of Bharatsing could not be accepted when hes tated that Fata had sat oerv Dolatsing. This was clear even form the evidence of Dolatsing himself. Now when Dolatsing stated that he felt that if the spade blow was not given to Fata he would have been killed this statement is also such which was liable to be rejected and the learned Additional Sessions Judge was right in rejecting the same. This is so because of the evidence of Dr. Sukhani who is examined as P. W. 2 exh. 7. Dr. Sukhani examined injured Dolatsing on 4-8-1979 at 6-20 P. M. and he found the following injury on him:2 cm. big abrasion which diffuse swelling on lower end of radius right. This is so because of the evidence of Dr. Sukhani who is examined as P. W. 2 exh. 7. Dr. Sukhani examined injured Dolatsing on 4-8-1979 at 6-20 P. M. and he found the following injury on him:2 cm. big abrasion which diffuse swelling on lower end of radius right. According to the Medical Officer the injury was possible by hard and blunt substance. He stated that thee injury was possible if a man caught hold of the arm of the victim and the arm was turned round by the person holding the arm. He issued certificate which is produced at exh. 8 There was no cross-examination. Now therefore it was clear that what was done was that the arm of Dolatsing was twisted and turned round. That caused diffused swelling and apprehension. There was hardly any apprehension of death or grievous hurt as held by the learned Additional Sessions Judge. Under the circumstances giving a blow by a spade on the head of a person was not justified and therefore the learned Additional Sessions Judge came to the conclusion that the acquittal would not be justified and there was no case made out for right of private defense in the sense that causing death could not be justified. Now before we say anything in regard to the appreciation of the evidence we may refer to the evidence of Dr. Shah (P. W. 1) exh. 5. He had examined the dead body of Fatesing Shanabhai Parmar and the post-mortem examination was done at 8-0 A. M. on that very day and the following injuries were found : (1) Left side of head and forehead was very much swollen. Both the eyes were swollen and closed and blackened. (2) Right side of the head was depressed and crepitus found on palpetition. (3) Bleeding from right ear and nose. On internal examination it was found as under : (1) Right parietal bone was fractured in three places. (2) Big haemetoma under the right parietal region of the skull. Blood clots under Occipital region of skull Extra-dural subdural and ultra cranial Haemorrhage were seen. According to the opinion given by the Doctor the internal injuries Nos. 1 and 2 were corresponding to external injuries Nos. 1 and 2. All the injuries were antemortem. (2) Big haemetoma under the right parietal region of the skull. Blood clots under Occipital region of skull Extra-dural subdural and ultra cranial Haemorrhage were seen. According to the opinion given by the Doctor the internal injuries Nos. 1 and 2 were corresponding to external injuries Nos. 1 and 2. All the injuries were antemortem. The Medical Officer stated that the injuries were possible by hard and blunt substance and possible by the blunt portion of the spade. According to him all the injuries were possible by one blow with the blunt portion of the muddamal spade. The postmortem notes are at exh. 6 According to the medical opinion the injuries were sufficient in the ordinary course of nature to cause death ( 7 ) NOW if one refers to Sec. 100 of the Indian Penal Code it reads as under :100 When the right of private defence of the body extends to causing death. The right of private defence of the body extends under the restrictions mentioned in the last preceding section to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated namely: first such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;secondly Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault thirdly-An assault with the intention of committing rape; fourthly-An assault with the intention of gratifying unnatural lust; fifthly-An assault with the intention of kidnaping or abducting; sixthly-An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse the public authorities for his release. Considering this section the learned Additional Sessions Judge thought that the right of private defence did not exceed to causing of death because this was not a case where there was any assault which may reasonably cause thee apprehension that death or grievous hurt will otherwise be the consequence of such assault To that extent the learned Additional Sessions Judge was right. But the learned Additional Sessions Judge did not consider exception 2 to sec. But the learned Additional Sessions Judge did not consider exception 2 to sec. 300 of the Indian Penal Code which reads as under :exception 2-Culpable homicide is not 111under if the offender in the exercise in good faith of the 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 defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration to this Exception is as under :attempts to horsewhip A not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped shoots Z deed. A has not committed murder but only culpable homicide. Now therefore though grievous hurt may not be the apprehension but if the hurt was apprehended and the assault persists and if one believes that their is no alternative and he causes death it is covered by Exception 2 and the result is that it is culpable homicide not amounting to murder. ( 8 ) WE may refer to a case of DHOLIA RAVJI V. STATE REPORTED IN 1 GUJARAT LAW REPORTER AT PAGE 151. There it was held as under :even when the right of private defence is exceeded and even when more harm was done than necessary for the purpose of private defence exception 11 to sec. 300 Indian Penal Code would apply provided (1) the accused caused the death of a person without pre meditation and (2) provided that when the accused caused the death of a person he had no intention of doing more harm than was necessary for the purpose of private defence even if he had caused more harm than was necessary for the purpose of private defence. These provisos have reference to the act which caused death. In the case under reference the person had picked up a dharia and gave blows and as a result two persons were killed. In that case the Division Bench of this Court came to the conclusion that Exception 2 to sec. 300 Indian Penal Code would apply and the accused would be guilty under sec. 304 Part I Indian Penal Code. In that case the Division Bench of this Court came to the conclusion that Exception 2 to sec. 300 Indian Penal Code would apply and the accused would be guilty under sec. 304 Part I Indian Penal Code. Conviction of the accused in that case under sec. 302 Indian Penal Code was altered to the conviction under sec 304 Part. I and the sentence was reduced to rigourous imprisonment for seven years. Here the case is one where one spade blow was given on the head by which one person was killed. Under these circumstances when Dolatsings arm was twisted and Fata was not willing to leave his arm under these circumstances a handy spade was taken up by the accused and given one blow on the head by back side of the spade. The result was that Fata died. It is a clear case where Exception 2 to sec. 300 Indian Penal Code would apply and the accused would be guilty for the offence under sec. 304 Part I Indian Penal Code. The learned Additional sessions Judge though rightly came to the conclusion that grievous hurt was not the appreciation and therefore there was no right of private defence of killing the person thereafter he straight considered sec. 200 clause thirdly and clearly forgot to consider Exception 2 to sec. 300 I. P. C. and therefore in the ultimate analysis the result to which he arrived at was erroneous. Therefore that error is required to be corrected by this court. ( 9 ) IN the result the appeal is partly allowed the conviction of the appellant is altered from sec. 302 Indian Penal Code to sec. 304 Part I Indian Penal Code and considering all relevant circumstances appearing in this particular case and particularly the fact that the back portion of handy spade was given on the head and only one blow was given the accused is sentenced to suffer R. I. for five years. Appeal partly allowed. .