Judgment H.B. Antani, J.—This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (“the Code” for short), is directed against the judgment and order dated 29.03.2003 passed by the learned Additional Sessions Judge, 6th F.T.C., Junagadh in Sessions Case No. 51 of 2002 by which, the learned Judge convicted the appellant for the offence punishable under Section 302 for life imprisonment and fine of Rs. 1000/-, in default, S.I. for one month; under Section 323 of I.P.C. R.I. for six months and fine of Rs. 500/-, in default, S.I. for 15 days and under Section 135 of the Bombay Police Act, S.I. for six months and fine of Rs. 500/-, in default, S.I. for 7 days. The learned Judge held that all the sentences shall run concurrently. 2. The short facts giving rise to the present appeal are as under. 3. As per the prosecution case, the appellant, who had quarrel with his nephew with regard to share in the land, assaulted deceased-Chako with the wooden log when he was fast asleep in the bed in wee hours on 16.04.2002. The deceased sustained serious injuries and was immediately taken to the Visavadar civil hospital where, he was declared dead. The complaint was given by Champaben on 16.04.2002 at Visavadar police station wherein, she has narrated the manner in which her son-Chako was assaulted by the appellant. In pursuance of the complaint filed by Champaben, the offence was registered against the appellant under Sections 302 and 323 of I.P.C. as well as under Section 135 of the Bombay Police Act. The investigating officer visited the place of incident and prepared panchnama of the place of incident. Complainant-Champaben, who sustained injuries in the incident, was sent to the hospital for giving immediate treatment. The muddamal which was recovered from the scene of offence was sent to F.S.L. for the purpose of detailed analysis. Inquest panchnama of the dead body of deceased-Chako was prepared in presence of panch witnesses. Thereafter, postmortem was carried out and the detailed report of P.M. was obtained by the investigating officer. The muddamal which was recovered from the scene of offence was sent to F.S.L. for the purpose of detailed analysis. Inquest panchnama of the dead body of deceased-Chako was prepared in presence of panch witnesses. Thereafter, postmortem was carried out and the detailed report of P.M. was obtained by the investigating officer. The statements of the witnesses were recorded from the neighbourhood and, on receipt of the report from F.S.L., P.M. report etc., the accused was charge sheeted and produced before the learned Magistrate at Visavadar who, in turn, committed the case to the Sessions Court under Section 209 of the Code as the case was exclusively Triable by the Sessions Court. When the case was remitted to the Sessions Court, it was numbered as Sessions Case No. 51 of 2002. The charge against the appellant was framed vide Exh.4 and the appellant pleaded not guilty to the charge levelled against him. Thereafter, the matter was set-down for full-fledged trial before the learned Sessions Court. 4. The prosecution has examined following witnesses in order to prove the involvement of the appellant in the commission of offence. P.W. Name of prosecution witness Exh. 1 Vitthalbhai Dahyabhai 26 2 Bhupatbhai Vallabhbhai Malaviya 28 P.W. Name of prosecution witness Exh. 3 Prafulkumar Chhaganlal 36 4 Jayantibhai Lakshmanbhai 38 5 Fulabhai Bhanabhai 39 6 Champaben Chhaganbhai 40 7 Mohanbhai Bhovanbhai 41 8 Dr. Sumit Bharatbhai Jagani 42 9 Dr. Girishkumar Lakhabhai 50 10 Bharat Sukanath Suryavanshi- PSO 55 11 Girirajsinh Ghanshyamsinh Zala 61 12 Narsinh Parsottam 70 5. The prosecution has produced following documentary evidence in order to bring home the guilt against the appellant. Sr. No. Nature of documentary evidence Exh. 1. Yadi written to P.S.O. for registering offence. 11 2. Copy of Yadi sent to P.I. Visavadar by P.S.O. Visavadar. 12 3. Copy of Yadi sent to P.I. Visavadar by P.S.O. Visavadar. 13 4. Yadi written to Executive Magistrate regarding inquest 14 5. Inquest panchnama 15 6. Dying declaration 16 7. Panchnama of seizure of muddamal carried out at the time of P.M. 17 8. Yadi written by Medical Officer, Visavadar to P.I. Visavadar. 18 9. Yadi written by Medical Officer, Visavadar to P.I. Visavadar. 19 10. Yadi written by Medical Officer, Visavadar to P.I. Visavadar. 20 11. Yadi written by P.I. To FSL for analysis of muddamal. 21 12. Dispatch note along with muddamal sent to FSL. 22 13. Yadi written by Medical Officer, Visavadar to P.I. Visavadar. 18 9. Yadi written by Medical Officer, Visavadar to P.I. Visavadar. 19 10. Yadi written by Medical Officer, Visavadar to P.I. Visavadar. 20 11. Yadi written by P.I. To FSL for analysis of muddamal. 21 12. Dispatch note along with muddamal sent to FSL. 22 13. Receipt issued by FSL 23 14. Copy of extract of complaint being Visavadar Ist-118/99. 24 15. Copy of extract of Visavadar Police Station diary. 25 16. Panchnama of local place 27 17. Forwarding letter of FSL 33 18. Report of FSL 34 19. Serological report 35 Sr. No. Nature of documentary evidence Exh. 20. Panchnama of blood sample of accused taken by the medical officer. 37 21. Medical certificate [Junagadh] 43 22. Papers of medical treatment of Champaben 44 to 47 23. Map of local place. 49 24. Medical certificate [Visavadar] 51 25. P.M. Note. 52 26. Yadi sent by P.I. Visavadar to Medical Officer for taking blood sample 53 27. Medical papers regarding treatment of Chambapen Chhaganbhai 54 28. Panchnama of muddamal weapon, person and arrest of accused. 62 29. Yadi written by A.S.I. “B” Division Junagadh to PSO Junagadh. 63 30. Copy of extract of complaint of Visavadar Ist-45/02. 64 31. Copy of extract of complaint of Visavadar Ist-116/99. 65 32. Copy of extract of “B” Division Police Station No. 17/2000. 66 33. Copy of extract of station diary of Visavadar Ist-45/02. 57 34. Copy of Notification. 71. 6. At the conclusion of the trial, the learned Sessions Judge recorded further statement of the appellant under Section 313 of the Code and his attention was drawn to the incriminating evidence against him. The appellant denied his involvement in the commission of offence and stated that he was falsely implicated in the commission of crime. 7. The learned Sessions Judge, on appreciation of oral depositions and documentary evidence, held that the appellant assaulted deceased - Chako with wooden log and caused fatal injuries which resulted in his death and thereby committed the offence punishable under Section 302 of I.P.C. The appellant also committed the offence punishable under Section 323 of I.P.C. by giving blow to eye-witness - Champaben with wooden log on her shoulder. The learned Judge held that the prosecution has, on the basis of the deposition adduced by P.W. 6-Champaben vide Exh.40, established the involvement of the appellant in the commission of offence. The depositions adduced by P.W. 8-Dr.Sumit Bharatbhai Jagani vide Exh.42 and P.W. 9 - Dr. Girishkumar Lakhabhai at Exh.50 further corroborate the prosecution story with regard to involvement of the appellant in the commission of offence. The learned Judge placing reliance on the documentary evidence held that the documentary evidence such as, panchnama with regard to the place of incident vide Exh.27, inquest panchnama vide Exh.15, P.M. note vide Exh.52, F.S.L. report vide Exh.34 and serological report vide Exh.35 provide necessary corroboration to the oral depositions adduced by the prosecutio n in a conclusive manner and, therefore, he convicted the appellant for the offence punishable under Section 302 for life imprisonment and fine of Rs. 1000/-, in default, S.I. for one month, under Section 323 of I.P.C. R.I. for six months and fine of Rs. 500/-, in default, S.I. for 15 days and under Section 135 of the Bombay Police Act, S.I. for six months and fine of Rs. 500/-, in default, S.I. for 7 days. 8. Learned Advocate Mr. P.B. Khambholja appearing for Mr. N.K. Majmudar for the appellant submitted that there is no dispute about the incident which took place on 16.04.2002 at about 6 O’clock in the morning when the appellant assaulted deceased-Chako, son of the complainant, with wooden log. However, the learned Advocate submitted that there was no intention on the part of the appellant to cause fatal injuries to deceased - Chako. He had also an apprehension in his mind that because of the dispute with regard to land, he might, as well, be assaulted by Chako, son of the complainant, and, therefore, he took wooden log while passing through the house of the complainant which is reflected in the document produced at Exh.56. On perusal of the N.C. complaint given by the appellant himself, he has stated therein that on 15.04.2002, he alongwith his wife-Hansa, was sitting in the house and, at the material point of time, his nephew - Chako came to his residence and after abusing him, he went to his house. Thereafter, the appellant and his wife closed the door and had gone to sleep. Thereafter, the appellant and his wife closed the door and had gone to sleep. When he got up in the morning at about 6 O’clock, he had apprehension that if he will pass through the house of his nephew - Chako, he is likely to be assaulted by him and, therefore, he took wooden log with him and was just wielding wooden log while passing through the house of his nephew - Chako. The learned Advocate submitted that it is true that the accused himself gave information to the P.S.O., Visavadar police station at about 11:30 on 16.04.2002, whereas, the complaint was given by Champaben to the P.S.O., Visavadar police station at 9:45 hrs. on 16.04.2002 wherein, she has narrated as to how her son - Chako was assaulted on the head by the appellant in wee hours on 16.04.2002 with the wooden log. The learned Advocate submitted that as there was apprehension in the mind of the appellant that because of the dispute with regard to land, Chako might, as well, assault him, he kept wooden log with him for self protection. Therefore, there was no intention on his part to cause fatal injuries to the deceased with the wooden log. The learned Advocate submitted that the prosecution has examined as many as 12 witnesses and out of 12 witnesses, P.W. 6-Champaben vide Exh.40 has given deposition with regard to assault committed by the appellant on her son - Choko with the wooden log. Save and except the deposition adduced by Champaben, no other witnesses examined by the prosecution have supported the version given by Champaben. The prosecution examined P.W. 8-Dr.Sumit Jagani vide Exh.42, who examined Champaben and gave injury certificate to her. P.W. 9-Dr.Girishkumar is examined vide Exh.50. He carried out P.M. on the dead body of Chako and given certificate. The learned Advocate submitted that the P.M. note which is produced during the course of deposition mentions about the internal and external injuries sustained by the deceased. P.W. 11-Girirajsinh Ghanshyamsinh Zala is examined vide Exh.61. The learned Advocate submitted that on perusal of the evidence on record of the case, it becomes clear that there was no intention on the part of the appellant in causing fatal injuries to the deceased. There is no dispute about the date of incident or the involvement of the appellant in the commission of offence. The learned Advocate submitted that on perusal of the evidence on record of the case, it becomes clear that there was no intention on the part of the appellant in causing fatal injuries to the deceased. There is no dispute about the date of incident or the involvement of the appellant in the commission of offence. The learned Advocate submitted that the assault committed by the appellant, no doubt, caused death of deceased-Chako but it would fall under the Exception carved out by Section 300 of the Indian Penal Code as the appellant had no intention of doing any harm to the deceased and there was no premeditation on his part in causing bodily injuries to the deceased. The act of the appellant could be said to have been done by exercising the right of self-defence and, therefore, the appellant could, at the most, be convicted for the offence punishable under Section 304 Part II of I.P.C. and he be imposed sentence which he has already undergone as on today. 9. Learned A.P.P. Mr. L.R. Pujari, representing the respondent-State, submitted that the prosecution has examined 12 witnesses in order to prove inextricable involvement of the appellant in the commission of offence. He submitted that the incident in question took place on 16.04.2002 in the wee hours in the house of complainant-Champaben when her son - Chako was fast asleep in the morning. The appellant suddenly came to her residence with wooden log and gave fatal blows on the head of Chako. The deceased, as a result of serious injuries, died on the spot. The complaint was given by Champaben vide Exh.64 to the P.S.O., Visavadar police station wherein, she has narrated the incident in question which took place on 16.04.2002. She has narrated the involvement of the appellant in the commission of offence and how her son-Chako was assaulted by the appellant with wooden log on his head. The complaint given by Champaben is supported by her own deposition vide Exh.40 and the P.M. report produced at Exh.52. The learned A.P.P. submitted that Champaben herself sustained injuries in the incident and was given injury certificate. P.W. 8-Dr. Sumit, who is examined vide Exh.42, gave treatment to Champaben and issued certificate with regard to the injuries sustained by her. P.W. 9-Dr.Girish is examined at Exh.50. He carried out P.M. on the dead body of Chako. The learned A.P.P. submitted that Champaben herself sustained injuries in the incident and was given injury certificate. P.W. 8-Dr. Sumit, who is examined vide Exh.42, gave treatment to Champaben and issued certificate with regard to the injuries sustained by her. P.W. 9-Dr.Girish is examined at Exh.50. He carried out P.M. on the dead body of Chako. P.M. note at Exh.52 makes it clear about the internal and external injuries sustained by the deceased. The learned A.P.P. submitted that further corroboration is also provided to the prosecution story about the inextricable involvement of the appellant in the commission of offence by the depositions of P.W. 10-Bharat Suryavanshi at Exh.55, P.W. 11- Giriraj Ghanshyam at Exh.61, P.W. 12- Police constable - Narsinh Purshottam at Exh.70, inquest panchnama at Exh.15, panchnama with regard to scene of offence at Exh.27, F.S.L. report at Exh.34 and serological report at Exh.35. The learned A.P.P. submitted that after going through the entire oral deposition and documentary evidence, the learned Judge convicted the appellant for the offence punishable under Section 302 of I.P.C. for life imprisonment and fine of Rs. 1000/-, in default, S.I. for one month, under Section 323 of I.P.C. R.I. for six months and fine of Rs. 500/-, in default, S.I. for 15 days and under Section 135 of the Bombay Police Act, S.I. for six months and fine of Rs. 500/-, in default, S.I. for 7 days. All the sentences imposed by the learned Judge are just and proper in the facts and circumstances of the case and, therefore, the judgment rendered by the learned Judge is required to be upheld and the appeal deserves to be dismissed. 10. We have heard learned Advocate Mr. P.B. Khambholja appearing for Mr. N.K. Majmudar for the appellant and learned A.P.P. Mr. L.R. Pujari for the respondent-State at length and in great detail. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record of the case with reasonable and broad probabilities. 11. On the appreciation of the evidence on record of the case, the incident in question took place on 16.04.2002 at 6 O’clock in the morning. On the date of incident, the appellant was not happy about the share in the land and, therefore, he went to the house of complainant. 11. On the appreciation of the evidence on record of the case, the incident in question took place on 16.04.2002 at 6 O’clock in the morning. On the date of incident, the appellant was not happy about the share in the land and, therefore, he went to the house of complainant. On reaching the house of the complainant, he assaulted Chako-son of the complainant, who was sleeping on the cot with wooden log on his head and thereby caused serious injuries to him. The deceased, as a result of the injuries, immediately was taken to the hospital where he ultimately succumbed to the injuries. It is pertinent to note that there was a dispute between the appellant, Champaben and her son with regard to the land. Previously also, a litigation was filed in respect of the dispute regarding the land. As the appellant had apprehension that because of his dispute with the son of the complainant with regard to land, he might, as well, be assaulted by Chako, he had given N.C. Complaint on 16.04.2002 wherein, he has stated that on 15.04.2002, when he was sitting with his wife-Hansa at about 8 O’clock in his house, Chako visited his house and abused him. Thereafter, he and his wife-Hansa closed the door and went to sleep. When he started to go for work on the next day in the morning at 6 O’clock, he had apprehension that Chako might as well assault him because of the abusive language used by him on the previous night. He, therefore, kept wooden log with him in case of any scuffle which might ensue in the morning on 16.04.2002. Thus, on perusal of Exh.56, it becomes clear that the real bone of contention between both sides was the share in the land. When the deceased abused the appellant on the previous night i.e. on 15.04.2002, the appellant had apprehension that he might be assaulted by Chako. The following facts are not in dispute. (i) The incident took place on 16.04.2002 in the house of complainant-Champaben. (ii) On 16.04.2002, the appellant who was armed with wooden log, assaulted deceased-Chako on his head and also caused injuries to Champaben on her shoulder. The following facts are not in dispute. (i) The incident took place on 16.04.2002 in the house of complainant-Champaben. (ii) On 16.04.2002, the appellant who was armed with wooden log, assaulted deceased-Chako on his head and also caused injuries to Champaben on her shoulder. (iii) As per Exh.56, on 15.04.2002 at 8 O’clock in the evening, Chako went to the house of the appellant and used abusive language and; (iv) There was some dispute with regard to share of land between appellant and deceased-Chako. 12. In view of the aforesaid facts and circumstances of the case, it becomes clear that the appellant had no intention to cause fatal injuries to deceased-Chako on 16.04.2002 and there was no premeditation on the part of the appellant to cause fatal injuries. Therefore, the case of the appellant, in our considered view, would fall under the Exception carved out under Section 300 of I.P.C. and, therefore, the appellant, in our view, can be imposed the sentence under Section 304 Part II of I.P.C. which reads under:— “304 Part II:—Punishment for culpable homicide not amounting to murder:— Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” However, we have perused the entire evidence on record of the case and the documentary evidence on which, heavy reliance is placed by the prosecution in order to bring home the guilt against the appellant. The reasons given by the learned Judge while convicting the appellant for the offence punishable under Sections 302 and 323 of IPC and under Section 135 of the Bombay Police Act are perused by us. The deposition adduced by P.W. 6-Champaben Chaganbhai vide Exh.40, who is the complainant, is carefully perused by us. The depositions given by P.W. 8-Dr.Sumit Bharatbhai Jagani vide Exh.42 and P.W. 9-Dr.Girishbhai Lakhabhai vide Exh.50 are also taken into consideration by us. The deposition adduced by P.W. 6-Champaben Chaganbhai vide Exh.40, who is the complainant, is carefully perused by us. The depositions given by P.W. 8-Dr.Sumit Bharatbhai Jagani vide Exh.42 and P.W. 9-Dr.Girishbhai Lakhabhai vide Exh.50 are also taken into consideration by us. We have also carefully perused the documentary evidence adduced by the prosecution in support of the oral deposition such as, panchnama of the place of incident vide Exh.27, inquest panchnama vide Exh.15, P.M. note vide Exh.52 and the F.S.L. report vide Exh.34 and serological report vide Exh.35 etc. to the present case. However, we are not reiterating the testimony adduced by the complainant and the other witnesses in view of the fact that N.C. complaint was given by the appellant vide Exh.56 and there was some dispute between both the sides in respect of share in land. 13. In view of the aforesaid facts and circumstances, the appeal is partly allowed. Order dated 29.03.2003 passed by the learned Additional Sessions Judge, 6th F.T.C., Junagadh passed in Sessions Case No. 51 of 2002 imposing sentence under Section 302 of the Indian Penal Code is quashed and set aside and instead, the appellant is imposed sentence under Section 304, Part II of I.P.C. for a period of 8 years’ R.I. and fine of Rs. 500/-, in default, S.I. for 15 days. Sentence imposed under Section 323 of I.P.C. and under Section 135 of the Bombay Police Act would remain the same. The sentence imposed on the appellant shall run concurrently. Muddamal articles to be disposed of in terms of the order passed by the learned Judge.