JUDGMENT : B.P. DHARMADHIKARI, J. We have heard Shri Daga, learned counsel for the Appellant and Shri Mirza, Additional Public Prosecutor for respondent No.1 . State. 2. At the outset it must be stated that Shri Daga, learned counsel for the Appellant has stated that the Appellant. accused has acted in self defence and hence he could not have been punished. He further argued that at the most it is a case in which the right of self defence has been exceeded and hence punishment ought to have been under Section 304, Part II of Indian Penal Code. The learned Additional Public Prosecutor, has however insisted that it was a case for conviction under Section 302 of Indian Penal Code as has been rightly done by the trial Court. 3. Appellant before this Court, Anil was accused No.1 in Sessions Trial Case No.18 of 2002. Accused No.2 . Waman and accused No.4 . Manukabai therein are his parents and accused No.3 . Arun is his real brother. Accused No.5 . Sanjay Lichade is stated to be his friend. The learned Sessions Judge, Bhandara, vide his judgment dated 2nd November 2002 had acquitted all other accused and has found present Appellant only guilty of offence punishable under Section 302 of Indian Penal Code and has sentenced him to suffer imprisonment for life and pay fine of Rs.500/- or in default to suffer further rigorous imprisonment for two months. 4. The incident in question has occurred on 19.11.2001. Deceased . Vikas was residing in the neighbourhood of appellant. The story of prosecution is that complainant/ reporter Vimal . mother of the deceased Vikas and her daughter Leena (sister of Vikas) then aged about 20 years were residing at village Maregaon-Toli, Tahsil . Lakhni, District . Bhandara and worked as agricultural labour. Vikas was 18 years old. Accused/ Appellant Anil was residing in front of the house of complainant. The accused was bent upon marrying sister of deceased viz., Leena and Leena herself as also deceased Vikas were not in favour of such marriage. The relations between Vikas and Anil, therefore, got strained and Vikas asked Anil not to visit his house. Accused No.5 . Sanjay was friend of both and he maintained his relations with the family of complainant also. 5. On 19.11.2001, since morning the accused Anil was chasing Vikas with weapon like knife or Gupti. The relations between Vikas and Anil, therefore, got strained and Vikas asked Anil not to visit his house. Accused No.5 . Sanjay was friend of both and he maintained his relations with the family of complainant also. 5. On 19.11.2001, since morning the accused Anil was chasing Vikas with weapon like knife or Gupti. He returned back after finishing his labour work in the evening and it is stated that he also expressed his apprehensions to mother . Vimal. At that time, accused . Sanjay had been to their house. Vikas, after getting fresh, went out and then came back again and after collecting stick again went out. The complainant . Vimal and Leena came in front of their house to see Vikas as he had disclosed his apprehensions and as accused Anil was sitting in front of the house. When Vikas was passing from road in between the house of accused . Anil and one Petkule, quarrel occurred between Vikas and Anil. It is the case of the prosecution that Accused . Anil rushed towards Vikas. Manukabai- mother of Anil saw this and she shouted which alerted other family members, father of Anil and his brother. Accused Nos. 2 to 4 ran towards Anil to help him. The complainant . Vimal also followed her son Vikas and reached in front of the house of accused. According to prosecution, accused No.2 . Waman and his wife accused No.4 . Manukabai held hands of Vikas and accused No.3 . Arun snatched away stick from him. Accused No.1 . Anil stabbed Vikas on left side of his chest by means of Gupti. Vikas shouted that Anil had stabbed and collapsed on the ground with bleeding injuries. Accused . Anil ran away with weapon towards Salebhata road and rest of the accused persons went inside their house. Vimal then started shouting and other people gathered there and found Vikas lying dead. Village Police Patil took Vimal to Police Station at Lakhni where a complaint was lodged and Crime No.167 of 2002 for the offence punishable under Section 302 read with 34 of Indian Penal Code was registered against accused persons. After completing investigation, charge sheet was filed in the Court of IInd Judicial Magistrate First Class, Sakoli, in Criminal Case No.47 of 2002 and said Court committed the matter to Sessions Court for further trial. 6. After completing investigation, charge sheet was filed in the Court of IInd Judicial Magistrate First Class, Sakoli, in Criminal Case No.47 of 2002 and said Court committed the matter to Sessions Court for further trial. 6. By inviting attention to evidence available on record, particularly to evidence of PW1 . Vimal (Exh. 21), PW4 . Lata (Exh. 30) and PW10 . Leena (Exh. 47), Shri Daga, learned counsel for the Appellant has contended that all these eye witnesses show that deceased Vikas had left the house with intention to eliminate the accused No.1 . Anil i.e. present Appellant and the evidence also shows that accused No.4 . Manukabai found that her son Anil was being killed. He contends that thus the evidence on record clearly shows that Vikas was attempting to kill Anil with weapon in his hand and hence in order to protect himself, the Appellant used the weapon i.e. knife and to save him, inflicted injury which turned out to be fatal to the deceased . Vikas. He argues that the Appellant has acted in self defence and therefore there is no culpable homicide and as such his conviction under Section 302 of I.P.C. is unsustainable. He in the alternative contended that at the most Appellant. Anil has exceeded his right of self defence and therefore at the most it can be said that he has committed an offence punishable under Section 304, Part II, as culpable homicide of Vikas is not amounting to murder. He argues that the Appellant had no intention to cause death or to cause such bodily injury as is likely to cause death. He further points out that there was altercation and scuffle between deceased Vikas and Anil and hence Exception - I and Exception . IV of Section 300 are also applicable. He has placed reliance upon the judgments of the Hon'ble Apex Court in the case of Naveen Chandra vs. State of Uttranchal, reported at 2007 ALL MR (Cri) 513 (SC) and Ranbaj Singh vs. State of Punjab, reported at 2007 ALL MR (Cri) 842 (SC). He argues that it was not necessary for the Appellant to lead any specific evidence to prove that he had a right of private defence and it can be raised by putting questions in the cross examination or in statement of the accused under Section 313. He argues that it was not necessary for the Appellant to lead any specific evidence to prove that he had a right of private defence and it can be raised by putting questions in the cross examination or in statement of the accused under Section 313. According to him, this is a fit case in which conviction needs to be altered to one under Section 304, Part II from one under Section 302 of IPC, if this Court finds that the defence of self defence taken by the present Appellant is not made out in any way. 7. Shri Mirza, learned Additional Public Prosecutor, has after placing reliance upon evidence of eye witnesses viz., PW1, PW4 and PW10, as also evidence of PW8 . Dr. Lanjewar at Exh. 36 and Post Mortem Report at Exh.37 contended that the evidence on record clearly shows that prosecution has proved the offence under Section 302 and the conviction of present Appellant therefore needs to be maintained. He also invites attention to other evidence on record to substantiate his arguments. He further states that the burden to prove that he acted in self defence was upon present Appellant and he has failed to discharge it. He has invited attention to absence of any positive evidence in this respect by the Appellant and also the fact that even if it is presumed that there was any altercation or quarrel, the Appellant was armed with a sword stick and he has inflicted a single but fatal blow. He further states that mere mentioning of such right in Section 313 statement before the lower Court is not sufficient in the eye of law. 8. Dr. Sudhakar Lanjewar (PW-8) has proved post mortem report Ex.37 in which he has mentioned the injuries sustained by the deceased, which is stab wound on left mid clavicular line on left side of chest of Vikas 2.5 cms. in length, 0.25 cms. in breadth and 7 cms. in depth. Injury is ante mortem and death is on account of cardio respiratory arrest because of haemorragic shock due to rupture of heart. 9. The judgment of the Hon'ble Apex Court in Ranbaj Singh vs. State of Punjab (supra), particularly para 4 thereof shows that the Hon'ble Apex Court has held that whenever the plea of right of private defence is taken, it is not necessary for the defence to lead specific evidence. 9. The judgment of the Hon'ble Apex Court in Ranbaj Singh vs. State of Punjab (supra), particularly para 4 thereof shows that the Hon'ble Apex Court has held that whenever the plea of right of private defence is taken, it is not necessary for the defence to lead specific evidence. The accused is entitled to substantiate his case from evidence of prosecution and burden of establishing defence is not that rigorous on accused as that on prosecution to prove his guilt. Evidence of the prosecution needs to be scrutinized in this background. 10. In Naveen Chandra vs. State of Uttaranchal (supra), the Hon'ble Apex Court has also observed in para 15 on same lines and has observed that it is enough for such accused to show that preponderance of probabilities is in favour of his plea of private defence as in any civil case. In para 16, the Hon'ble Apex Court has stated that number of injuries is not always a safe criterion for determining who the aggressor was and whenever injuries are on the body of the accused persons, it is not necessary that a presumption must be raised that those injuries are in exercise of right of private defence. The defence has to first establish that injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. It has also been observed that mere nonexplanation of the injuries by the prosecution cannot affect its case. In para 17, it has been observed that right commences as soon as reasonable apprehension of danger to the body arises from the attempt or threat to commit the offence, although the offence may not have been committed and lasts so long as said reasonable apprehension of danger to body continues. Shri Daga, learned counsel has relied upon the observations in para 19 wherein the Hon'ble Apex Court has stated that such person under apprehension of death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. Again it is clear that evidence on record needs to be scrutinized in this background. 11. Again it is clear that evidence on record needs to be scrutinized in this background. 11. The perusal of facts in case of Naveen Chand vs. State of Uttaranchal (supra) show that there all three accused were charged for an offence under Section 302 read with Section 34 of I.P.C. on the allegation that they committed murder of three persons. The dispute was between two brothers and their families and accused persons were one such family consisting of one brother, his wife and son. On the fateful day, prior to alleged incident, there were quarrels between the families and it appears that deceased brother had received injury on his head. Conciliation was to be arranged through a Panchayat and accused No.1 had sought intervention of one Bhupal Dutt and others. In view of these quarrels, on 2.6.2001, Bhupal Dutt visited house of accused No.1 and Ganesh Dutt (deceased) was called out by Bhupal and other two persons present with him. They found that Ganesh Dutt already injured but he came out and on being asked about dispute, deceased . Ganesh Dutt lost his temper and started abusing accused No.1. He was then taken back to his house but he came back and held the hand of his sister-in-law i.e. accused No.2. There was altercation between accused No.1 and him and in the meanwhile accused No.3 . Naveen Chandra s/o Nanda Ballabh rushed and injured deceased Ganesh Dutt on his head by a weapon called .Khukri.. Smt. Janki Devi w/o Ganesh Dutt came there praying for sparing deceased Ganesh Dutt, but she was also attacked by Naveen Chandra on her face and head. Though the persons present requested Naveen Chandra to spare the others, he ran up to the house of Ganesh Dutt where Sandeep Dutt son of Ganesh Dutt was also assaulted. Other two sons of Ganesh Dutt managed to escape. It is in these circumstances, after considering entire case, the Hon'ble Apex Court in para 23 found that though accused persons were exercising right of private defence, it was exceeded by continuing the attacks after the threat to life has ceased. The Hon'ble Apex Court has, therefore, applied Section 304 , Part I to the facts before it. 12. PW-1 . Vimal has in her cross examination accepted that she did not disclose to police in her statement at Exh. 29 that deceased Vikas told her that accused . The Hon'ble Apex Court has, therefore, applied Section 304 , Part I to the facts before it. 12. PW-1 . Vimal has in her cross examination accepted that she did not disclose to police in her statement at Exh. 29 that deceased Vikas told her that accused . Anil was showing him Suri or knife for the entire day or she asked Vikas whether he had abused anybody else and Vikas replied in negative. Similarly, she accepted that the statement made by Vikas to her that he drank milk of his mother and only he (Anil) did not drink milk of his mother, was not disclosed by her in her statement to police. Marked portion .B. in her police statement Exh. 29 that .he proceeded alone from house and came up to the house of Omprakash Petkule and returned back home from there. was put to her in cross examination to contradict her stand that Vikas did not come back and she could not assign any reason why said portion is appearing in her statement. She stated that it did not happen that Vikas after returning back collected wooden handle of the spade and again went out to the house of Petkule. She, however, accepted that Vikas had stick with him when he went out. She denied that Vikas assaulted Anil (appellant) with said stick on his head, back and shoulder and Anil sustained bleeding injury. She also denied suggestion that during scuffle between Vikas and Anil, Gupti which was in the hand of Vikas got inserted in the chest of Vikas. 13. Her evidence further shows that Vikas after coming back from work told her that Anil was showing him Suri and knife whole day and she had enquired from him whether he had abused anybody and thereafter he replied in the negative. She further stated in chief that when Vikas was on road and was proceeded further, accused Anil was sitting in front of his house and he told Vikas that Vikas was abusing. Vikas replied that he had not abused at all and then accused ran towards him and both scuffled with each other. Accused No.4 . Manukabai then shouted that Anil is dead and thereupon accused Nos. 2 & 3 as also accused No.4 ran towards accused . Anil and Vikas. Vikas replied that he had not abused at all and then accused ran towards him and both scuffled with each other. Accused No.4 . Manukabai then shouted that Anil is dead and thereupon accused Nos. 2 & 3 as also accused No.4 ran towards accused . Anil and Vikas. She further stated that one Bala Bhaisare also came there but Bala Bhaisare could not separate the quarrel. Thereafter accused Anil stabbed Vikas on his chest by means of Gupti or knife. She stated that when Manukabai shouted that Anil is dead, she also left her house and went towards the place where scuffle was going on and tried to save her son Vikas. In her cross, she accepted that she did not told police that accused Anil wanted to marry her daughter Leena. But in next breath has stated that she told police accordingly and she could not explain why said statement is not appearing in her police statement. Thus, this evidence shows that there was some altercation and scuffle between Vikas and Anil. However, this witness has also accepted in her cross examination that by sitting in Verandah, one cannot see the house and front portion of the house of accused Anil. It is, therefore, apparent that she saw this scuffle after she rushed towards the spot of incident after hearing cry of original accused No.4 . Manukabai. 14. Next eyewitness examined by prosecution is PW No.4 - Lata Petkule who resided just two houses after the house of complainant Vimal. She has stated that house of accused is in front of her house. At the relevant time she claims to be cooking and from her kitchen she could see the road in front of her house. She saw deceased Vikas coming from the direction of his residence, crossing the house of accused/Appellant and proceeding ahead and he was shouting that anybody wanting to assault him might assault him. She then heard Manukabai -mother of Appellant who was standing in front of her own house shouting that Anil (present appellant) died. Accused No. 2 Waman, Accused No. 3 Arun and Accused No.4 Manukabai then ran towards Vikas and Anil was also standing there. This witness therefore came out of her house and she saw that Vikas was caught by accused Nos. 1-4. Vikas uttered that Anil stabbed him with knife. She also saw stab injury on chest of Vikas. Accused No. 2 Waman, Accused No. 3 Arun and Accused No.4 Manukabai then ran towards Vikas and Anil was also standing there. This witness therefore came out of her house and she saw that Vikas was caught by accused Nos. 1-4. Vikas uttered that Anil stabbed him with knife. She also saw stab injury on chest of Vikas. However, in her cross examination she stated that Vikas was proceeding by road giving abuses to Anil. Her failure to explain non mentioning in her statement to Magistrate of holding of deceased Vikas by accused No. 2 or accused No. 1 has also been brought on record. She denied the suggestion that Vikas assaulted Anil by stick and therefore mother of Anil shouted. She also stated that PW-9 Bala Bhaisare had also reached the spot. 15. PW-9 - Bala Bhaisare has been declared hostile. In his chief he stated that house of deceased Vikas is in front of his house and he heard voice of Vikas, who was saying that somebody was going to kill him on that day and told his mother that he won't be alive. He also heard Vikas asking his mother about stick, his mother inquired why he needed it and Vikas told his mother that if stick was not given to him, he would kill them. Then he heard Vikas talking to himself while going by road and he came in his courtyard from where he could see the road. Vikas stood in front of house of Anil and continued to talk and then he heard mother of Anil shouting that Anil died. Several persons gathered around Vikas and he saw Vikas assaulting Anil with stick. He went near Vikas and found him lying on ground and all persons ran away from there. He saw bleeding injury on chest of Vikas and he stated that he did not know who assaulted Vikas. At this stage he was declared hostile and his crossexamination conducted by APP is only in the shape of suggestions which he has all denied. 16. Last eye witness is younger sister Leena of deceased Vikas. She has been examined as PW-10. In her examination-inchief she has stated that after finishing his work Vikas returned home and took bath and went outside. 16. Last eye witness is younger sister Leena of deceased Vikas. She has been examined as PW-10. In her examination-inchief she has stated that after finishing his work Vikas returned home and took bath and went outside. He returned back after half an hour and her mother had then inquired why he was so much angry whereupon Vikas disclosed that Anil and accused No. 5 Sanjay told him that they would kill the cock on same day. In earlier part she has stated that accused No. 5 had visited their residence twice and he wanted them to give cock to him free of cost. Vikas also told that Anil was saying to accused No. 5 that he would assault Vikas. Vikas then again went out after five to ten minutes and while going out told mother that she should not expect him to be alive. She stated that Vikas was talking to himself and he was expressing that anybody might assault him and he would show him (teach lesson). Anil was sitting on wooden log in front of house of Petkule i.e. PW-4 and he challenged Vikas by asking to whom Vikas was referring and Anil went near Vikas. Vikas told him that he was not referring to Anil but Anil rushed towards Vikas to assault him and then Manukabai shouted that Anil died. Then other accused persons ran towards Vikas and Anil. She has stated that accused Manukabai used wooden stick and lifted her brother and then Anil stabbed Vikas with sword-stick (gupti) in chest and Vikas fell down and died. In her cross examination she could not explain why exchange of dialogue between her mother and Vikas about the latter being angry has not been appearing in her police statement. However she admitted that when Vikas left he was armed with stick. She stated that she did not inform police that Vikas came back from the house of Petkule and collected the stick and when confronted with such version appearing in police statement, she stated that it is not correctly recorded. She accepted that she did not disclose to police that Anil was sitting on wooden log but she stated that she communicated to police that Anil was present there. She also accepted that she did not disclose to police use of stick and lifting of Vikas by Manukabai. She accepted that she did not disclose to police that Anil was sitting on wooden log but she stated that she communicated to police that Anil was present there. She also accepted that she did not disclose to police use of stick and lifting of Vikas by Manukabai. She also could not explain why fact of accused Anil running away from the place of incident was not appearing in her police statement. She denied the suggestion by accused that as Vikas was assaulting Anil by wooden stick, Anil in order to save himself scuffled with Vikas and at that time sword stick which was in the hand of Vikas caused injury to himself. 17. 1993 CRI. L. J. 3674 Kesha vs. State of Rajasthan is the case in which Hon.ble Apex Court considered situation in which right of private defence can be said to have been exceeded. Following observations are important:-- .8. This is a case where the father and 3 sons are involved. It is alleged that A-2 one of the sons finding that his father is being beaten up inflicted injury. In such a situation it cannot be said that the accused are falsely pleading the self-defence. However, it may be noted that there was no reasonable apprehension that death or grievous hurt would be caused. 9. In this view of the matter, the accused are entitled to the right of self-defence. Once their plea of self-defence is not turned down then the question remains whether they are within the limits or they have exceeded the limits. In this case having regard to the various circumstances and the nature of the injuries on the accused as well as on the deceased we are of the view that the accused had exceeded the right of self-defence in which case the offence would be one punishable under Section 304, Part I, IPC. Accordingly the conviction of each of the Appellant under Sections 302 and 302 read with Section 34, IPC and sentence for life imprisonment are set aside. Instead each of them is convicted under. Section 304, Part I, IPC and sentenced to Rigorous Imprisonment for 7 years.. In 1993 CRI. L. J. 301= AIR 1993 SC 968 i.e. Jasbir Singh v. State of Punjab, Hon.ble Apex Court considered right of self defence in quarrel on taking water from tube well for irrigation. Instead each of them is convicted under. Section 304, Part I, IPC and sentenced to Rigorous Imprisonment for 7 years.. In 1993 CRI. L. J. 301= AIR 1993 SC 968 i.e. Jasbir Singh v. State of Punjab, Hon.ble Apex Court considered right of self defence in quarrel on taking water from tube well for irrigation. It was deceased who picked up quarrel with accused by preventing him from taking water & accused fired shot in exercise of right of private defence killing deceased and Hon.ble Apex Court altered conviction from one under S.302 to that under S.304, Part I. Sentence for 7 years' RI was inflicted & fine of Rs. 3,000/- as imposed by the Courts below with the default clause was maintained. In 2005 CRI. L. J. 2555 Dattu Shamrao Valake vs. State of Maharashtra, which is an appeal from (2004) 7 ALL MR (Cri) 1811 (Bombay), scope of right of private defence is considered as under :-- .19. The only doubt that arises is whether A-3, in causing three axe injuries to the deceased- Bajirao, acted in cruel manner? In examining this point, we have to take note of the fact that A-3 (2nd appellant), in spite of having an axe with him, had suffered quite a severe injury viz., contusion of 8"x1" over chest which could have been caused, according to the Doctor, by an object like cycle chain. It is not possible to say at what stage A- 3 had received such injury. At any rate, there was no clarification bearing on this aspect from the prosecution side. The deceased- Bajirao was wielding an axe. The 2nd appellant, probably already injured, might have become apprehensive that he would be attacked by Bajirao with the axe. Though three injuries were noted, they are all on the left parietal region causing the fracture of skull bone. Looking at the nature of injuries, it is quite possible to say that all the injuries would have been caused by one or two axe blows, but not necessarily three. In fact, PW-6 states in cross-examination that she had seen one axe blow being given by accused No. 3 on the neck of Bajirao. No doubt he had used excessive force against Bajirao by causing injury with the axe on a vital part, may be more than once. In fact, PW-6 states in cross-examination that she had seen one axe blow being given by accused No. 3 on the neck of Bajirao. No doubt he had used excessive force against Bajirao by causing injury with the axe on a vital part, may be more than once. However, taking an overall picture, we cannot say beyond doubt that the 2 nd Appellant acted in a cruel or atrocious manner by attacking the deceased with the axe once or twice. We are, therefore, not inclined to deprive the 2 nd Appellant of the benefit of Exception No. 4. At the same time, we are of the view that it would be appropriate to convict him under Part I of Section 304, IPC because having regard to the gravity of the injuries caused with a dangerous weapon, each one of which was fatal, the 2nd Appellant must be imputed with the intention to cause such bodily injury as was likely to cause death, if not the intention of causing death. Accordingly we convict the 3 rd accused-Appellant No. 2 under Section 304, Part I and we are of the view that in the circumstances, a sentence of eight years' R.I. and fine of Rs.1,000/- would be sufficient. In default of payment of fine, Appellant No. 2 will suffer imprisonment for four months.. In 1988 CRI. L. J. 1918 --Sudhir Mahanta vs. State of Orissa- Division Bench of Hon'ble Orissa High Court while considering issue of private defence and scuffle has observed :-- .8. It is next to consider if the Appellant has assaulted deceased Ramesh in exercise of the right of private defence of his brother Bipin. The evidence of P.Ws 1 and 2 which has been discussed above shows that deceased Ramesh and Bipin were having a scuffle over a lathi. It was not stated by them that deceased Ramesh had attacked Bipin or was assaulting him, so that it was necessary for the Appellant to save him from his clutches. There is no other evidence to indicate even remotely that Bipin was so severely attacked by deceased Ramesh that his life was in danger and so in exercise of right of private defence of his brother, the Appellant had to intervene and assault the attacker. Therefore, the Appellant is not entitled to the protection of the right of private defence. 9. Therefore, the Appellant is not entitled to the protection of the right of private defence. 9. Nevertheless, we hardly find it to be a case covered by S.302, I.P.C. The Appellant had no premeditation to murder deceased Ramesh. He did not enter into conspiracy with any one for the above purpose. He did not even intend to commit the murder. He found that deceased Ramesh and his brother Bipin were having a scuffle over a lathi and all of a sudden he lost his temper and dealt a single blow, according to the evidence, on the head of deceased Ramesh. Therefore, it seems to be a case in which the Appellant caused such bodily injury as was likely to cause death coming under S. 304, Part I, I.P.C. In the facts and circumstances of the case, we are satisfied that the appropriate section to hold the Appellant guilty is not 302, but 304, Part I. I.P.C.. In 2002 CRI. L. J. 2085 "Azad Ali v. State" Division Bench of Hon'ble Calcutta High Court has considered question of proof about murder or culpable homicide not amounting to murder. Altercation between accused persons and deceased took place and one of accused on being infuriated brought 'dah' (a sword like weapon) and at instigation of another accused struck one blow on neck and two blows on hands of deceased. Medical evidence showed that injury on neck was sufficient to cause death. It was found that accused persons in furtherance of their common intention committed culpable homicide. As offence committed was without premeditation upon sudden fight and/or in heat of passion upon a sudden quarrel and without accused persons having taken undue advantages or acted in a cruel or unusual manner, Hon'ble Court held that case squarely fell within Exception 4 of S. 300. Conviction of accused persons under S.302/34 was altered to one under S.304, Part I, read with S.34 and accused persons were sentenced to 10 years R.I. instead of life imprisonment. 1996 CRI. L. J. 2374 "Ram Pal v. State of H.P." is the judgment of Division Bench of Himachal Pradesh High Court where question of availability of plea of private defence is looked into. There was clinching evidence to show that accused inflicted injuries by taking out knife from his shoes. Knife was belonging to accused. 1996 CRI. L. J. 2374 "Ram Pal v. State of H.P." is the judgment of Division Bench of Himachal Pradesh High Court where question of availability of plea of private defence is looked into. There was clinching evidence to show that accused inflicted injuries by taking out knife from his shoes. Knife was belonging to accused. In the circumstances, Hon'ble High Court held that there could be no occasion for him to exercise right of private defence. There was fight between parties and deceased was alleged to have attacked and beaten father of accused. No evidence was on record to show that deceased and prosecution witness were aggressors. Story of accused that in order to save his father he was forced to go to scene of occurrence was found not supported by evidence and there was no occasion for grave and sudden provocation. Hon'ble High Court held accused liable to be convicted. However it held that said culpable homicide did not amount to murder as there was scuffle between accused and deceased wherein accused inflicted knife injuries on deceased and absence of premeditation on part of accused. Accused also was not shown to have taken undue advantage or acted in unusual manner and hence conviction of accused came to be altered from S. 302 to S. 304, Part I. 18. When viewed in the light of above principles, evidence on record before us clearly shows that deceased Vikas initially left house without stick. Something happened which enraged him and hence, he came back and collected stick and then again went out. There is no evidence on record to judge what happened earlier which angered or disturbed deceased. However, evidence shows that he was inviting Appellant to assault him and it also appears that present Appellant assaulted him. There was scuffle between two which made Manukabai - mother of Anil to shout .Anil died. and entire family went for his rescue. All 4 witnesses support this cry by Manukabai i.e. mother of Appellant. It is apparent that Anil was not suddenly assaulted and Anil was also armed with sword stick. Nobody has stated that Vikas entered the house of Anil and assaulted him. From examination-in-chief of Leena - sister of deceased and his mother Vimal, it seems that Anil was after Leena. It is apparent that Anil was not suddenly assaulted and Anil was also armed with sword stick. Nobody has stated that Vikas entered the house of Anil and assaulted him. From examination-in-chief of Leena - sister of deceased and his mother Vimal, it seems that Anil was after Leena. Because of this delicate situation, relations between deceased Vikas and Anil were already strained and therefore, present Appellant Anil in response to call of deceased Vikas went towards him which ultimately lead to scuffle. Though Vikas was armed with stick, there is no evidence on record to show that Vikas used it to beat him. Mere suggestions to prosecution witness are not enough in facts of present case to support plea of private defence. It is therefore clear that it was not in exercise of right of private defence that Anil used his sword stick. Had Anil not responded to call of Vikas, episode could have been avoided. There is no evidence on record to show that Vikas posed any threat to the life of Anil and hence, Anil was required to protect himself. In his Section 313 Cr. P.C. statement, Appellant has stated that he was suddenly assaulted when he was sitting in front of his house and there was scuffle between him and Vikas and Vikas fell down and he (appellant) ran away. He has not stated that he apprehended any danger to his life and in self protection either he, or for protecting him, any other person inflicted stab injury on deceased. He has also not stated that Vikas was armed with sword stick or knife. He also did not state that he got any blow or injury in alleged attack by Vikas. In the facts it is clear that it was Appellant Anil who was armed with sword stick. As there is no question of acting in self defence, there is no question of Anil exceeding it. 19. Sister Leena of deceased Vikas was 20 years old at the time of incident. The age of accused . Anil at the time of incident was 23 years and deceased Vikas was 18 years of age. Facts brought on record show that Vikas wanted to save and protect honour of family. Anil also wanted to prove himself. This led to a scuffle between the two as both were carried away by their feelings and emotions. Anil at the time of incident was 23 years and deceased Vikas was 18 years of age. Facts brought on record show that Vikas wanted to save and protect honour of family. Anil also wanted to prove himself. This led to a scuffle between the two as both were carried away by their feelings and emotions. In fact investigating officer Shri Fulpagare , PW-11 at Exh. 48 in opening para of his examinationin- chief states that Police Patil of village Morgaon informed him about death of Vikas in quarrel. There was no premeditation and fight began suddenly as there is no evidence on record to show that Anil provoked or invited Vikas with stick. Both the victim and present Appellant were acting in heat of passion. In scuffle Anil inflicted single blow and ran away. There is no evidence of Vikas using stick during quarrel at all. However, considering the situation then prevailing on spot and for want of any material on record, it is not possible to hold that Appellant - Anil has taken any undue advantage or acted in a cruel or unusual manner. Exception 4 to Section 300 I.P.C. is squarely attracted here and culpable homicide of Vikas at the hands of Anil cannot be held to be a murder. Injury by single stab 2.5 cms. in length, 0.25 cms. in breadth and 7 cms. in depth resulting in rupture of heart can not be said to have been inflicted without intention of causing death or such injury as is likely to cause death. We therefore find that alternate argument of Advocate Daga that Appellant be punished under Section 304, Part II can not be accepted and Appellant is liable to be punished under Section 304, Part I. 20. Thus conviction of Appellant Anil under Section 302 I.P.C. is quashed and set aside. Instead he is found guilty for offence under Section 304, Part I thereof. He is sentenced to undergo rigorous imprisonment for 7 years with set off under Section 428 of Criminal Procedure Code as allowed by lower Court. We maintain the fine of Rs. 500/- and further R.I. of 2 months in default of payment of fine as ordered by Court below.