JUDGMENT - MARLAPALLE B.H., J.:---This appeal arises out of an order of acquittal, passed by the learned Additional Sessions Judge at Aurangabad, in Sessions Case No. 30 of 1984, in which the accused was put on trial for an offence punishable under section 302 of Indian Penal Code. 2. The prosecution contended that deceased Laxman, resident of village Loni in Vaijapur Taluka of Aurangabad district, was married to one Sakhubai and begot two sons and one daughter out of the said wedlook. However, after about 15-20 years of marriage, Sakhubai developed illicit relations with the accused, which was objected to by the deceased. During the Diwali festival of 1983, Sakhubai had gone to her parent's home along with her children and after the festival, the deceased had gone to bring Sakhubai and the children back home. When he reached village Janefal (the paternal home of Sakhubai), he saw the accused in the company of Sakhubai and got angry. The deceased scolded Sakhubai and brought her to his house at Loni along with the children. On the next day i.e. on 18-11-1983, deceased was sitting on a ota and he saw the accused returning to the village on bicycle. The deceased stopped the accused and asked him the reasons for his being at village Jenefal on the earlier day. The accused replied that he was in that village to meet Sakhubai. On this, the deceased got annoyed and thus resulted a fight between the two. The accused assaulted the deceased with kicks and fist blows and knees. This incident was witnessed by about 30-40 people between 10.00 a.m. to 10.30 a.m. in the Bhilati square of village Loni. The deceased managed to get up and holding his stomach he reached his home. Within about half an hour he was dead. His body was sent for autopsy and the doctor opined a homicidal death. Statements of witnesses were recorded. The accused was arrested, the clothes recovered from the person of the deceased which were stained with blood were sent to the Chemical Analyser for examination. P.S.I. Gosawi (P.W. 7) completed the investigation in due course and submitted the charge-sheet. The case was committed to the Court of Sessions for trial. 3. Statements of witnesses were recorded. The accused was arrested, the clothes recovered from the person of the deceased which were stained with blood were sent to the Chemical Analyser for examination. P.S.I. Gosawi (P.W. 7) completed the investigation in due course and submitted the charge-sheet. The case was committed to the Court of Sessions for trial. 3. The accused pleaded not guilty and even in his statement recorded under section 313 of Criminal Procedure Code, he denied all the material allegations against him and took up the defence of complete innocence. The prosecution examined 7 witnesses and 5 of them, namely, Eknath (P.W. 1) the brother of the deceased and complainant, Kishan (P.W. 2), Kaduba (P.W. 3), Salba (P.W. 4) and Karbhari (P.W. 5), claimed to be eye-witnesses. Whereas Dr. Subhash Pokale, Medical Officer was examined as P.W. 6 and P.S.I. Gosawi was examined as P.W. 7. 4. The Medical Officer, in his testimony before the trial Court, stated that he had received the dead body of Laxman Bhima Bagul, which was identified by two persons, namely, Vishwanath Bhima Bagul and Kashinath Mhaske and he conducted postmortem examination of the said dead body between 10.30 a.m. to 11.45 a.m. on 19-11-1983. He did not notice any external injuries on the dead body. However, the internal examination had shown the following injuries : "1) There was blood in paritonial cavity. 2) The left 10th, 11th, 12th ribs were fractured posteriorly. 3) Left supra renal pancreas and uprarenals were ruptured. 4) Spleen was ruptured posteriory. 5) Left kidney was ruptured posteriorly and superiorly." In the opinion of the doctor, the cause of death of the deceased was shock due to internal hemorrhage secondarily because of ruptured spleen and kidney. He confirmed to have issued the postmortem report Exh. 18 under his signature and internal injuries as endorsed by him were possible if the person was assaulted with fists, kicks and knees on his abdomen and thorax. He also stated that the said internal injuries were sufficient to cause the death in the ordinary course of nature. He confirmed to have issued the postmortem report Exh. 18 under his signature and internal injuries as endorsed by him were possible if the person was assaulted with fists, kicks and knees on his abdomen and thorax. He also stated that the said internal injuries were sufficient to cause the death in the ordinary course of nature. In his cross-examination, the Medical Officer stated that for causing fracture of 12th rib, there ought to be some blow from the rear side, a blow on the stomach resulted into causing rupture of kidney, and the rupture of spleen and kidney results into some bleeding in the stomach depending upon the nature of force of the blow. He also stated that the built of the deceased was thin and there was no injury-external or internal on the private parts of the deceased. 5. The trial Court framed the following issues : "(1) Whether the deceased Laxman died of homicidal death? (2) Whether it was the accused who caused the death suffered by the deceased ? (3) Whether the accused caused the death of the deceased with requisite intention or knowledge on his part ?" On assessing the medical evidence, the trial Court recorded a finding that the deceased Laxman died homicidal death and the said death was caused by the accused, but the accused was justified in doing so in the exercise of his right of private defence. It was under these circumstances, the trial Court held that the accused did not cause the death of deceased with requisite intention or knowledge on his part and, therefore, passed an order of acquittal. 6. We are thus require to consider a limited issue, as to whether the evidence as brought before the trial Court in the instant case, supports the finding recorded by the trial Court and whether the accused could be acquitted on the ground of private defence. 7. 6. We are thus require to consider a limited issue, as to whether the evidence as brought before the trial Court in the instant case, supports the finding recorded by the trial Court and whether the accused could be acquitted on the ground of private defence. 7. Shri Patil, learned Additional Public Prosecutor submitted before us that the trial Court fell in error in appreciating the circumstances of this case; firstly in advancing the hypothesis of private defence when the accused himself did not take such a plea at any stage before the trial Court; secondly the accused was having illicit relationship with the wife of the deceased and, therefore, his motive in assaulting the deceased was clear and it was aimed at eliminating the deceased who was questioning him about his intimacy with Sakhubai time and again; thirdly, on the face of the medical evidence before the trial Court, the accused was not entitled for the benefit of private defence and even otherwise he was not entitled for acquittal under any circumstances. 8. In support of these arguments, Shri Patil, learned Additional Public Prosecutor has relied upon the following decisions : "1) (Deoraj v. State of Himachal Pradesh)1, reported in A.I.R. 1994 S.C. 523. 2) (Rajesh v. Dharam Singh)2, reported in A.I.R. 1997 S.C. 3769." 9. We have noted from the record that even the accused had filed a complaint against the deceased with the Police Station on 18-11-1983, which came to be registered as N.C. No. 537 of 1983 for offences punishable under sections 323 and 504 of Indian Penal Code at Vaijapur Police Station. In the said complaint, he specifically stated that on 18-11-1983 at about 11.00 a.m. he was attacked by the deceased in the village and the other two brothers of the deceased, namely Natha and Daulat had also joined the deceased in assaulting him. This complaint itself proved the presence of the accused in the village on 18-11-1983 at about 11.00 a.m. 10. This complaint itself proved the presence of the accused in the village on 18-11-1983 at about 11.00 a.m. 10. Karbhari Gangaram Thorat (P.W. 5) stated before the trial Court that on the date of incident, he and the accused worked in the field of Ramchandra Patil from 7.00 a.m. and returned to the village on bicycle (double seat) at about 9.00 a.m. When they reached the village, they saw the deceased sitting on the ota of one Jagan near Bhilati square and when both of them reached the ota, the deceased Laxman asked the accused to get down from the cycle. Both of them got down from the cycle and Laxman then asked the accused as to why he had gone to Janefal, to which the accused replied that he had gone there to meet his nephew. After this, all the three started going by the road towards the Bhilati square and when they reached the square, Laxman again questioned the accused as to why he had gone to Janefal. At this juncture, the accused replied that he had been to Janefal to meet Laxman's wife. On this reply, both the accused and the deceased started beating each other with fists and kicks and in that process the accused gave a kick on the private part of Laxman. The witness tried to intervene, but the accused and the deceased did not pay any heed. The witness was taken aside by his parents and left the spot of incident. 11. Salba Gangurde (P.W. 4), in his deposition, stated that he had personal knowledge of the illicit relationship between the accused and Sakhubai, as he had seen them in that act in the house of the accused himself. He had requested Sakhubai to bring to an end the said relationship, but she replied him, "you have no business to tell me so". On the fateful day, while he was at his house, he heard commotion coming from the side of the Bhilati locality, and, therefore, he came out of his house. The distance between his house and the Bhilati square is about 100 to 150 feet. He saw the accused beating Laxman with fists, kicks and also with knees. About 10-12 persons had gathered there and amongst them were Sopan, Kisan and Kaduba. Eknath the brother of Laxman arrived at the scene when Laxman was being assaulted by the accused. The distance between his house and the Bhilati square is about 100 to 150 feet. He saw the accused beating Laxman with fists, kicks and also with knees. About 10-12 persons had gathered there and amongst them were Sopan, Kisan and Kaduba. Eknath the brother of Laxman arrived at the scene when Laxman was being assaulted by the accused. No one stopped that quarrel. Laxman had fallen down on the ground and when the quarrel came to an end, Laxman got up and went to his house. While going to his house, he had put his hands on the stomach. Some time later, Laxman expired. In the cross-examination, he admitted that when Laxman arrived at the scene, the incident of Marpit was already over. He did not see if the accused was bleeding through his nose. 12. Kaduba Bagul (P.W. 3) stated before the trial Court that he was present at the square when the incident of Marpit between the accused and the deceased took place and the accused had caught hold of the shirt of deceased Laxman. On the accused telling Laxman that he had been to Janefal to meet Sakhubai, Laxman got annoyed and he slapped the accused on his face. The accused thereafter started beating Laxman and struck him with legs, fists and knees on his stomach and private part. At that stage, Eknath Bagul (P.W. 1), came running to the place of occurrence along with Daulat. The Marpit was intervened and stopped. The deceased who had fallen down thereafter got up and went to his house. About half an hour later, Laxman expired. In his cross-examination, this witness emphatically stated that he had seen the incident right from the beginning and deceased first slapped the accused in the course of that quarrel and he had seen the incident from a distance of about 15 ft. He disagreed that he saw the accused bleeding through his nose. 13. This testimony of Kaduba (P.W. 3) has also been corroborated by another witness by name Kisan Dhangorde (P.W. 2) as well as by Eknath (P.W. 1), the brother of the deceased. We may not consider the evidence of Eknath (P.W. 1) regarding the actual incident of Marpit between the accused and the deceased as admittedly he had come after the altercation was over. 14. We may not consider the evidence of Eknath (P.W. 1) regarding the actual incident of Marpit between the accused and the deceased as admittedly he had come after the altercation was over. 14. From the evidence of these four eye-witnesses, it is seen that the deceased was annoyed with the accused on account of his illicit relationship with Sakhubai and when the accused informed him that his visit to Janefal was to meet Sakhubai, the deceased got angry and slapped on the face of the accused. The altercation between the two ensued and from the nature of injuries, as appearing through the evidence of the Medical Officer, it is clear that the accused had inflicted multiple blows on vital parts, namely, abdomen, chest and back and the very same injuries caused the death of Laxman. The nature of attack and the particulars of each blows inflicted lead us to infer that the accused had the knowledge that he was likely to cause the death of Laxman by the blows he had inflicted. It would not be safe for us, therefore, to hold in the facts and circumstances of this case, that the accused assaulted the deceased with the intention to cause death or with the intention of causing such bodily injury as was likely to cause death. The accused is certainly guilty of an offence in causing the death of Laxman, but he is not guilty of an offence of culpable homicide amounting to murder and, therefore, he cannot be convicted under section 302 of Indian Penal Code. We are also satisfied that the offence committed by the accused would not come within the ambit of section 304 Part I of Indian Penal Code and it would fall within the ambit of section 304 Part II of Indian Penal Code. 15. The reasoning given by the trial Court on issue No. 3 in acquitting the accused does not commend to us and the order of acquittal so passed has resulted into miscarriage of justice. The trial Court fell in error in appreciating the evidence as well as the nature of the offence which was proved against the accused in causing the death of Laxman. A, who is unarmed, slaps B who in turn inflicts a murderous attack on A by fists and blows on vital parts. The trial Court fell in error in appreciating the evidence as well as the nature of the offence which was proved against the accused in causing the death of Laxman. A, who is unarmed, slaps B who in turn inflicts a murderous attack on A by fists and blows on vital parts. B cannot raise a plea of self-defence and if such plea is accepted by the Court, it may amount to rewriting the criminal law, which is not a function of the Court. The order of acquittal, therefore, cannot be sustained and it requires to be interfered with. 16. In the result, the appeal is allowed. The order of acquittal, dated 29-3-1985, passed by the learned Additional Sessions Judge, Aurangabad, in Sessions Case No. 30 of 1984 is hereby quashed and set aside. We hold that the accused was guilty of an offence amounting to culpable homicide within the meaning of section 299 of Indian Penal Code and, therefore, he is liable for punishment under section 304 Part II of Indian Penal Code in causing the death of Laxman. 17. We direct the District Superintendent of Police (Rural), Aurangabad to take appropriate steps so as to ensure that accused Shaluman alias Shalu s/o Savliram Gangurde is presented before us by the Police Inspector, Vaijapur Police Station on 2-8-2002 at 2.15 p.m. so that we can hear him on the issue of sentence. The learned Additional Public Prosecutor to communicate this order to the Deputy Superintendent of Police (Rural), Aurangabad, forthwith. On the issue of sentence, we have heard Shri Mete, learned Counsel for the accused. The accused is produced before us by the police. Shri Mete, learned Counsel urged before us to impose minimum sentence. We have noted that when the complaint was registered against the accused for an offence punishable under section 302 of Indian Penal Code, he was shown to be of 40 years age and, therefore, he may be about 60 years of age as at present. Under section 304 (Part II) of Indian Penal Code, the accused could be imposed sentence of R.I. for a period of extending 10 years with fine or with both. We, therefore, sentence the accused to undergo R.I. for a period of five years. Under section 304 (Part II) of Indian Penal Code, the accused could be imposed sentence of R.I. for a period of extending 10 years with fine or with both. We, therefore, sentence the accused to undergo R.I. for a period of five years. The accused shall be entitled for set off under section 428 of Criminal Procedure Code for the period he was in jail during the trial of Sessions Case No. 30 of 1984. We have noted that the accused was in the custody from 18-11-1983 to 24-2-1984. Order accordingly. -----