Exception 4 to Section 300 I. P. C. is not applicable to a case where the accused had the right of private defense of person.

( 1 ) ABDUL Razzak has filed this appeal against the judgment of the learned Sessions Judge of allahabad, convicting him under Sections 323 and 325, each read with Section 34 I. P. C. and sentencing him to one years rigorous imprisonment for the former offence and to two years R. I. for the latter offence. The sentences were ordered by the learned trial Judge to run concurrently.

( 2 ) THE following facts are not in dispute, Abdul Razzak and his son Naziruddin are residents of village Kasari Masari, police station Dhumanganj, district Allahabad. Reayat Hussain P. W. 1 is also a resident of that very village. On 22-4-1958, at 6 a. m. an incident, involving the use of violence, took place near a well situate at a short distance from Reayat Husains house. In this incident Reayat Husain, Abdul Majid and Ramizan Ali received injuries on the side of Reayat husain and Abdul Raz-zaq and bis son received injuries on the other side. Reayat Husain bad two traumatic swellings on his bands and an abrasion on one of his fingers. Abdul Majid had nine injuries consisting of two contused wounds, six contusions and an abrasion. Ramzan Ali had nine injuries consisting of contused wounds, a lacerated wound and abrasions. Ramzan AH and Reayat Husain had one grievous injury each. The remaining injuries were simple. Abdul razzaq appellant had the following injuries :

(1) Contused wound 3/4"x 1/4" x scalp deep on the back of head, right side, just above the occipital region. . (2) Abrasion 3-4" x 1/4" adjacent to injury No. 1 On its left side. (3) Traumatic swelling over the whole of the left thumb on its dorsal aspect 2"x 1 1/2". (4) Traumatic swelling 3" x 3 1/2" on the dorsurn of the left hand outer side.

( 3 ) X-RAY revealed that his thumb had been fractured. As regards the appellants son Nazirud-din, he died as a result of the injuries received by him. His post mortem examination was performed by Dr. R. P. Mathur D. W. 1 and the report of that examination shows that Naziruddin had the following injuries :

(1) Contused wound 1 1/2"x 1/2"x bone, vertical 3" above the root of the nose. (2) Contusion 2 1/2" x 1 1/2". anterio posterior, 2 1/2" above the left ear. (3) Abrasion 1/4" x 1/4" back of the left elbow. (4) Abrasion 1/2" x 1/4" vertical, middle of the front of the left leg. (5) Abrasion 1/4" x 1/4" front of the middle of the right leg.

( 4 ) IN the opinion of the doctor death was due to coma resulting from injuries to the head.

( 5 ) IT is also undisputed that the fight took place because of the watering of buffaloes by the appellant and his son Naziruddin at the well near Eeayat Husains house. The points upon which there was a dispute were as to how the fight originated, who were the aggressors and who were the participants in the occurrence. According to the prosecution case, the watering of the buffaloes at the well made theeround muddy and slippery as a result of which Reayat Husain slipped and fell. He protested against the manner in which the buffaloes were being watered whereupon he was taunted. A verbal altercation ensued and then arrived on the scene Iftikhar ahmad, Abdul Wahab, Kulla and Sirajuddin on the side of the appellant. Out of these persons iftikhar Ahmad had a spear and others were armed with lathis. On seeing these persons Reayat Husain retreated and mounted the platform of his house, Abdul wahab and Naziruddin launched an attack upon him. Ramzan Ali P. W. 9 and Abdul Majid P. W. 4 turned up. They remonstrated with the assailants of Reayat but they were also beaten. According to the prosecution version, thus, the appellant and Iftikhar Ahmad and others mentioned above were the aggressors. As regards the defence version Abdul Razzaq admits that he and his son Naziruddin were watering the buffaloes at the well. According to him, Reayat asked them not to do so. Naziruddin replied that he had every right to do so. He was abused and he also abused in return. Upon this Reayat Hussain, Kifayat Hussain, Baqridi, Nanh