JUDGMENT 1. - Udasingh has been convicted by the learned Sessions Judge, Jalore for the offence Under Section 304, Part II, IPC and sentenced to five years' rigorous imprisonment and a fine of Rs. 1500/, in default of payment of fine he is to undergo rigorous imprisonment for two years. Further it was ordered that if the fine was realised then it should be paid to the heirs of deceased Bhanwarsingh. Two appeals have been preferred against this judgment dated June 5, 1982. Accused Udaisingh has preferred a jail appeal against his conviction while the State has preferred an appeal for securing his conviction Under Section 302, IPC. Both these appeals are being disposed of by this judgment and Udaisingh shall, here in after be referred to as the appellant. 2. Appellant Udaisingh was running a hotel of meat and 'Roti' at Bhinmal in a room arranged by PW 2 Mohanlal. He had also arranged for the utensils and the necessary furniture for this purpose. On January 6, 1982, at about 8 p.m. deceased Bhanwarsingh son of Bhoorsingh, Constable of Bhinmal and PW 13 Bhanwarsingh son of Bhagatsingh of Ledhermed, who had come to Bhinmal to attend some court hearing together, went to the appellant for having their meals. The deceased had also gone there with the intention of checking the wine shop and the meat hotel and he found that the wine shop was locked. When they reached the hotel of the appellant, they found the hotel closed. The deeeased Bhanwarsingh called out appellant Udaisingh and knocked the door. Udaisingh opened the door after some time according to PW 13 Bhanwarsingh, Udaisingh struck a blow with a knife in the ribs of deceased Bhanwarsingh. The deceased shouted that Udaisingh appellant had attacked him with a knife. Bhanwarsingh fell down and PW 13 Bhanwarsingh went to the Police Chowki and lodged a report about the incident. Deceased Bhanwarsing died thereafter, while the appellant first went to PW 2 Mohanlal and related the incident to him and asked Mohanlal to protect him. According to the version of the appellant, deceased Bhanwar Singh insisted on having food at the hotel even when the appellant told him that the hotel was closed on account of 'Gyaras'. Deceased Bhanwarsingh abused him upon which he got annoyed and picked up the meat knife which was lying there and struck a single btow with it. According to the version of the appellant, deceased Bhanwar Singh insisted on having food at the hotel even when the appellant told him that the hotel was closed on account of 'Gyaras'. Deceased Bhanwarsingh abused him upon which he got annoyed and picked up the meat knife which was lying there and struck a single btow with it. On the basis of the FIR, a case against the appellant was registered and he was arrested. While he was in custody, he made a confession before PW 8 Shri Pradeep Shah, Munsif, Magistrate, which is Ex. P. 13. In this statement, the appellant said that on January 6, 1982 at about 8.30 p.m when the door of the hotel was closed, two persons called him from outside but he told them that the hotel was closed on account of 'Gyaras'. Both the persons started abusing him and kicked the door which gave way under the pressure and both the persons came inside and pulled him out and insisted on him cooking meals for them, He refused upon which they again abused him. They went out and he closed the door but Bhanwarsingh deceased again kicked the door and as the door opened it struck him and he (appellant) fell on the ground. He got angry and picked up a meat knife and inflicted a blow in the stomach of Bhanwarsingh who shouted. He (the appellant) got nervous and threw the knife in a Ber tree and went to the cinema hall from where he was arrested by the Police. This version of the accused-appellant has been repeated by him in his statement Under Section 313 Cr.PC with the addition that when the deceased and the other Bhanwarsingh came inside the hotel, they caught hold of his neck and said that if he was not prepared to cook food, they would finish him, He took the plea that he inflicted the blow on the deceased in his self defence, otherwise he would have been strangulated. 3. The post mortem on the body of deceased Bhanwar Singh was conducted by PW 5 Dr. Mohanlal Pania and he found the following injury on the body of the deceased; "Incised wound 3 cm. x 2 cm. x 7 cm. longitudinally, directed intestines and mesentry coming out of wound situated and wound on left lateral side of abdomen 2⅓" above iliac crest. 4. Mohanlal Pania and he found the following injury on the body of the deceased; "Incised wound 3 cm. x 2 cm. x 7 cm. longitudinally, directed intestines and mesentry coming out of wound situated and wound on left lateral side of abdomen 2⅓" above iliac crest. 4. In the opinion of the doctor deceased Bhanwarsingh met his death due to haemorrhage and shock caused by rupture of kidney and intestines. The injury was sufficient in the ordinary course of nature to cause death. He further opined that the wound in question could have been caused by a weapon like knife. 5. The occurrence of the incident is on admitted position with a variation in the manner in which it occurred. The statements of PW 13 Bhanwarsingh and the confession of the appellant read with his statement Under Section 313 Cr.PC are relevant in this connection. It is proved, as well as admitted that the injury due to which deceased Bhanwarsingh died was inflicted by the appellant at the hotel run by him and as such it is not necessary to go into the statements of the various witnesses examined before the Sessions Judge to show that the appellant was running a hotel in the room in question where the deceased arrived on the fateful day and met his death. The only question to be seen is in what circumstances the blow was inflicted upon the deceased and what offence is made out against the appellant According to the appellant he acted in the exercise of the right of defence of his person as he would have been strangulated by the deceased while according to PW 13 Bhanwarsingh, the injury was inflicted by the appellant on the body of deceased Bhanwarsingh with the intention of causing his death. 6. The learned Sessions Judge after analysing the evidence in this case came to the conclusion that the appellant did not have any enmity with deceased Bhanwar Singh and there was no motive on his part to desire the death of the deceased. 6. The learned Sessions Judge after analysing the evidence in this case came to the conclusion that the appellant did not have any enmity with deceased Bhanwar Singh and there was no motive on his part to desire the death of the deceased. On analysing the evidence of PW 13 Bhanwarsingh, the learned Sessions Judge held that he had omitted to supply the details of the manner in which the incident occurred as such it could not be believed that on the knocking of the door by deceased Bhanwar Singh, the appellant opened the door and immediately struck a knife in the abdomen of the deceased. Referring to the version of the accused himself, the learned Sessions Judge held that the incident should be held to have occurred in the manner as stated in the confession of the appellant and not in the manner as stated in the statement Under Section 313 Cr. PC. The introduction of the story of the deceased catching hold of him by neck was held to be an after-thought improvement. He also came to the conclusion that the version of the appellant that he inflicted the blow on the deceased in his self defence is incorrect and not proved. He analysed the provisions of Sections 99, 100 and 102 IPC to consider the circumstances in which a right of private defence was available and also the extent of such a right. He also considers in detail as to whether the deceased had any legal right to enter into the hotel of the appellant and found that the entry was unauthorised and in the illegal exercise of the rights of the police officer. The learned Sessions Judge held that the accused-appellant had an opportunity to go away from his hotel and seek some help and also that the deceased and his companion PW 13 Bhanwar Singh were not armed with any weapon, therefore, there was no justification in inflicting a knife blow. Finally he observed that the accused-appellant exceeded the right of private defence, if any, available to him and in such circumstances his act was disproportionate to the circumstances. Finally he observed that the accused-appellant exceeded the right of private defence, if any, available to him and in such circumstances his act was disproportionate to the circumstances. Holding that the appellant had no intention to cause the death of the deceased or cause bodily injury as was likely to cause the death of deceased, the learned Sessions Judge did not convict the appellant for the offence Under Section 302 IPC but held that it was in the knowledge of the accused that the injury inflicted by him was likely to cause death, therefore, he was guilty for the offence of Section 304, Part-II, IPC. 7. We have heard the learned Amicus Curiae for the accused-appellant and also the learned Public Prosecutor for the State in support of their rival contentions. 8. According to the learned Amicus Curiae the act of the appellant in inflicting the blow is justified act as it was done in the exercise of the right of private defence. In this connection he has referred to the statement of the accused Under Section 313 Cr. PC and also his confession Ex. P 13 wherein he has stated that the deceased and PW 13 Bhanwar Singh had kicked and opened his door and had abused him and also caught hold of his neck. According to the learned Public Prosecutor, the act of the appellant amounts to commiting murder punishable Under Section 302, IPC. 9. The facts in this case are more or less of an admitted nature and we have to give our attention as to the manner in which the incident occurred and what offence is made out in the circumstances of the case, in this respect it may be proper to refer to the provisions contained in Sections 299, 300 and 304 IPC. Section 299 provides as to what acts done by a person can be said to be an offence of culpable homicide. The offence of culpable homicide is divided into two categories as some acts of culpable homicide amount to murder while there included in the offence of culpable homicide, but they do not amount to murdur. Murder will be said to have been committed by an accused if the act by which the death is caused falls within the four categories mentioned in Section 300 IPC. Murder will be said to have been committed by an accused if the act by which the death is caused falls within the four categories mentioned in Section 300 IPC. If the act of the accused falls under any of these four categories then the offence is punishable Under Section 302, IPC. However if the act of the accused falls within the Exceptions 1 to 5 to Section 300, IPC, in that case the offence would be of culpable homicide not amounting to murder and that will be punishable Under Section 304 IPC. This provision further sub-divides the offence of culpable homicide not amounting to murder in two categories. The first category is covered by Part-I of Section 304 IPC where the act by which death is causing such bodily injury as is likely to cause death. The second category is where the act is done with knoweledge that it is likely to cause death but without any intention to cause death or cause such bodily injury as is likely to cause death. This sub-division is again based on the classification of the definition of culpable homicide as given in Section 299 IPC. The definition given in Section 299 IPC covers both culpable homicide amounting to murder and culpable homicide not amounting to murder. Whether in a particular case the offence of culpable homicide amounts to murder or not would depend upon whether the act of the accused falls under any of the first four clauses of Section 300 IPC or it is covered by any of the exceptions provided to this section. 10. The learned Sessions Judge has held that the appellant exceeded the right of private defence if any and caused more harm than was necessary for the purpose of his defence and, therefore the case of the appellant would be within exception 2 to Section 300 IPC. The provision 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 defence without premeditation, and without any intention of doing more harm that is necessary fur the purpose of such defence. 11. 11. Before bringing the case of an accused under this provision it is necessary that accused should have a right of private defence of person or property. Unless there is a finding of the court that the accused had such a right, and in the exercise of it he could cause harm or hurt to the other person against whom he in exercising the right of defence, without premeditation the question of exceeding such a right does not arise. In the present case, the learned Sessions Judge has held that the accused-appellant did not have a right of private defence because he had opportunity to seek help from others. He also held that the appellant was not under any apprehension that death would be the consequence of any assault made upon him. He had also held that the story of the deceased catching him by the neck is a subsequent development which goes to show that the appellant did not have a right of private defence of the body, unless the appellant can be said to have a right of private defence, the question of exceeding such a right does not arise. Merely because the appellant inflicted one blow on the deceased it cannot lead to the inference that the accused-appellant had acted in the exercise of the right of private defence of his person. The appellant has to show that one of the circumstances enumerated in Section 100, IPC, existed which gave him a right of private defence and it was in the exercise of this right that he acted. In the present case, when the deceased was merely abusing the appellant insisting that the appellant should cook food for him and his friend and was not about to commit any offence then it cannot be held that the occasion gave a right of private defence to the appellant. The learned Sessions Judge has arrived at the correct conclusion on the basis of facts that the appellant did not have a right of private defence but has wrongly proceeded to hold that the appellant has exceeded the right of private defence, if any. Exception 2 to Section 300, IPC is not applicable in the present case where there was no right of private defence available to the appellant. 12. Exception 2 to Section 300, IPC is not applicable in the present case where there was no right of private defence available to the appellant. 12. In our opinion, the circumstances of the case go to show that the act of the appellant falls within Exception 4 to Section 300 IPC which reads as under: "Exception 4 -- Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. 13. It has come in evidence that the incident occurred all of a sudden and there was no premediation on the part of the appellant. Deceased Bhanwarsing and PW 13 Bhanwarsing came to the hotel of the appellant, knocked the door then kicked it and there was a sudden quarrel as the deceased and his companion abused the appellant and demanded that he should cook food for them even though it was 'Gyaras' a day on which the hotel was closed. The sudden opening of the door, by the kicks of the deceased, hurt the appellant and it was in the heat of passion that he picked up the meat knife, which was handy and inflicted one single blow on the deceased. He had no motive to cause the death of the deceased and his act was without premeditation. When the circumstances enumerated in this exception exist then the offence of the appellant would be culpable homicide not amounting to be covered Under Section 304 IPC. It has been seen above that the appellant did not cause the death of the deceased with the intention of causing death or causing such bodily injury as was likely to cause death. However it can be said that the act was done with the knowledge that it is likely to cause death and as such it would fall under Part-II of Section 304, IPC. 14. In Badrilal v. State of Rajasthan 1981 Cr. LR 474 there was no pre-meditation to commit offence on the part of the accused-appellant and there was no previous enmity between the accused and the deceased. The incident took place at the spur of the moment and the accused-appellant gave only one stroke with an axe on the left parietal region of the deceased. LR 474 there was no pre-meditation to commit offence on the part of the accused-appellant and there was no previous enmity between the accused and the deceased. The incident took place at the spur of the moment and the accused-appellant gave only one stroke with an axe on the left parietal region of the deceased. It was held that the offence would be covered by exception 4 to Section 300 IPC. It was further held that the act was done with the knowledge that it was likely to cause death but was without any intention to cause death or to cause such bodily injury as is likely to cause death and he was convicted Under Section 304, Part-II, IPC. In Adiya v. State of Rajasthan 1984 RCC 395 it was held that a single blow given by force on a triflins matter without any intention to cause death could not amount to an offence Under Section 302 IPC. But knowledge of the act could be attributed to the accused which would result in death and the offence was held to be covered by Section 304, Part-II, IPC. In this connection the learned Amicus Curiae has also relied upon Kamji v. State of Rajasthan D.B.Cr. Jail Appeal No. 324 of 1980 decided on August 22, 1985 and Bhanwarlal v. State of Rajasthan D.B. Cr. Appeal No. 204 of 1974 decided on September 12, 1985 wherein the offence of the accused was held to be covered by Section 304, Part II, IPC as the incident occurred on the spur of the moment on a trifling matter without any premeditation, or when no intention could be attributed to the accused with the intention to cause death or cause such bodily injury as is likely to cause death. As seen above, the act of the appellant in the present case also falls in the same category and we hold that the conviction of the appellant Under Section 304, Part-II, IPC is proper, though, as seen above we have come to this conclusion for reasons other than those given by the learned Sessions Judge. The sentence awarded by the Sessions Judge is appropriate. 15. In the result the appeal of the accused-appellant and the appeal of the State both fail and are, therefore, dismissed. 16. The sentence awarded by the Sessions Judge is appropriate. 15. In the result the appeal of the accused-appellant and the appeal of the State both fail and are, therefore, dismissed. 16. The accused appellant be informed of the result of the appeal in jail and he is to serve out the remaining part of his sentence.Appeal Dismissed. *******