( 1 ) THIS. appeal is directed against the judgment of the learned Additional Sessions Judge Nadiad in Sessions Case No 120 of 1979 by which the appellant came to be convicted for an offence under sec. 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life on 22-4-1980. The facts which gave rise to this appeal may be briefly stated as under :

( 2 ) THE incident occurred in village Bhetasi in Taluka Borsad District Kaira on 3-8-1979. The incident was reported by P. W. 3 Lalsing Parmar exh. 9 who was working as Police Patel at that time. In fact the accused went to Police Patel and gave information which was conveyed by Police Patel to Anklav police station. Before going to Anklav police station Police Patel had gone to the place where Fata was lying dead. He placed his Ravania at the place of the occurrence and thereafter he went to Anklav police station. When he went to the scene of the occurrence of the place he found that Fata was lying with a bleeding injury on his head.

( 3 ) P. S. I. Jahangir Dival (P. W. 7) exhibit 21 at the relevant time was incharge of Police station Anklav and he received the report of Police Patel on 3-8-1979 at 10-30 P. M. He registered the offence and recorded the statement of Police Patel. He started for going to village Bhetasi at 11-30 P. M. and reached the place on 4-8-1979 at 1-0 A. M. He held inquest panchnama and recorded the statement of Bharatsing Dolatsingh and others. The accused was arrested and the panchnama of the scene of the offence was prepared. The accused produced a spade which was attached under the panchnama. The earth was attached from the place of the scene of offence and the dead body was sent for postmortem examination. Dolatsingh was sent for treatment as he was injured. The articles seized were sent to the Forensic Science Laboratory for report. Ultimately after completing the investigation chargesheet was submitted against the accused on 28-9-1979. In due course the case was committed to the Court of Sessions and at the trial the prosecution examined 7 witnesses.

( 4 ) THE accused denied the guilt. In his statement he stated that he had gone to file a complaint to the house of Police Patel and Police Patel came to the place of the occurrence and saw that the brother of the accused had died and he was made to sit at that place and at 12-00 midnight police officers had come and Dolatsing and he was arrested. Bhartsing was also arrested and they were all taken to the panchayat office and according to him they were all beaten and thereafter at about 4 A. M. they were all told to sleep. When he woke up in the morning the other two persons were not there and he could not understand as to what had happened.

( 5 ) THE learned Additional Sessions Judge after appreciating the evidence came to the conclusion that the accused was guilty for the offence under sec. 302 I. P. C. and sentenced him as above. The accused has now preferred this appeal. ). . . . . . . . .

( 6 ) NOW before the learned Additional Sessions Judge on the basis of the above evidence it was argued that this was a clear case of private defence and therefore the accused was entitled to acquittal. The learned Additional Sessions Judge came to the conclusion that the evidence of Bharatsing could not be accepted when hes tated that Fata had sat oerv Dolatsing. This was clear even form the evidence of Dolatsing himself. Now when Dolatsing stated that he felt that if the spade blow was not given to Fata he would have been killed this statement is also such which was liable to be rejected and the learned Additional Sessions Judge was right in rejecting the same. This is so because of the evidence of Dr. Sukhani who is examined as P. W. 2 exh. 7. Dr. Sukhani examined injured Dolatsing on 4-8-1979 at 6-20 P. M. and he found the following injury on him:2 cm. big abrasion which diffuse swelling on lower end of radius right. According to the Medical Officer the injury was possible by