PATHUBHA GOVINDJI RATHOD & ANR. versus STATE OF GUJARAT
[2015] 1 S.C.R. 491, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
[2015] 1 S.C.R. 491 
PATHUBHA GOVINDJI RATHOD & ANR. 
v. 
STATE OF GUJARAT 
(Criminal Appeal No. 2282 of 2014) 
JANUARY 21, 2015 
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.] 
A 
B 
Penal Code, 1860 - s. 304 (Part-I) rlw s. 149 - Fight 
between two groups - Cross-complaints -
Resulting in 
conviction of the accused in both the cases [including the 
C 
conviction of appellant No. 1 u/s 3021149 and of appellant No. 
2 u/s 304(part /)] - Appellants taking plea of private defence 
- Held: The present was a case of free fight - Normally right 
of private defence is not available in such cases - But in view 
of the fact that appellant No. 1, having suffered knife injury 
D 
exceeded his right to private defence, his case would be 
covered under Exception 2 of s. 300 /PC - Thus conviction 
of appellant No. 1 altered to one uls 304 (Part-I) rlw s. 149 -
Sentence reduced to 1 O years RI from life imprisonment -
Conviction and sentence of appellant No. 2 is affirmed. 
E 
Partly allowing the appeal, the Court 
HELD: 1. In the present case, there are cross-
versions of the incident, and cross-complaints were 
lodged with the police. Both the cases resulted in 
F 
conviction. Considering the number of persons involved 
in the incident, it can be safely said that it is a case of free 
fight between two groups of people. In the cases of free 
fights, accused are to be fastened with individual liability 
taking into consideration the specific role assigned to 
G 
each one of them, and normally
right of private defence 
is not available in such cases unless circumstances in a 
given case warrant so. But that is not a rule without 
exception. [para 13 and16] [500-H; 501-B-C; 502-E] 
491 
H
492 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A 
2. Considering the facts and circumstances of the 
present case and evidence on record, it is evident that 
accused/appellant No.1 who suffered knife injury in the 
incident has caused death of one of the deceased by 
firing several shots thereby exceeding right of private 
s defence. A person faced with injury with a deadly weapon 
to his life, cannot be expected to weigh in balance the 
precise force needed to avoid danger. [para 14 and 16] 
[501-D; 502-G-H] 
Bhanwar Singh v. State of M.P. 2008 (9) SCR 1 = 2008 
C (16) SCC 657, this Court, in State of Rajasthan v. Manoj 
Kumar 2014 (5) SCC 744; Mohd. Khalil Chisti v. State of 
Rajasthan 2012 (13) SCR 777 = 2013 (2) SCC 541 - relied 
on. 
o 
3. Thus, it is a case of culpable homicide not 
amounting to murder covered under Exception 2 of 
Section 300 of IPC.The 
conviction 
and 
sentence 
recorded against accused/appellant No.1 under Section 
302 IPC r/w Section 149 IPC is altered to one u/s 304 (Part-
E I) IPC and he is sentenced to imprisonment for a period 
of ten years. The conviction and sentence recorded 
against accused/appellant no. 2 u/s 304(Part I) read with 
Section 149 IPC, does not require any interference. [para 
17] [503-8-E] 
F 
G 
Case Law Reference: 
2008 (9) SCR 1 
2014 (5) sec 744 
relied on 
relied on 
para 14 
para 14 
2012 (13) SCR 777 
relied on 
para 15 
CRIMINAL APP ELLA TE JURISDICTION : Criminal Appeal 
No. 2282 of 2014. 
From the Judgment & Order
dated 30.06.2014 of the High 
Court of Gujarat at Ahmedabad in Criminal Appeal No. 1391 
H of 2007.
PATHUBHA GOVINDJI RATHOD v. STATE OF 
493 
GUJARAT 
Meenakshi Arora, Tulika Prakash, Sheeba Khan,Vasav 
A 
Anantharaman for the Appellants. 
Jesal, Hemantika Wahi, Preeti Bhardwaj, Puja Singh for 
the Respondent. 
The Judgment of the Court was delivered by 
B 
PRAFULLA C. PANT, J. 1. This appeal is directed 
against judgment and order dated 30.6.2014 passed by High 
Court of Gujarat whereby the said Court has partly allowed the 
criminal appeals arisen out of Sessions Case No. 85 of 2003 c 
and the cross Sessions Case No. 53 of 2004, which were 
decided by two separate orders of the same date, i.e., 
5.10.2007 by Additional Sessions Judge/Fast Track Court, 
Junagarh. 
2. We have heard learned counsel for the parties and 
perused the record. 
D 
_3, Prosecution story, in brief, is that complainant Satish 
Jotva (PW-42) used to live with his family in Village Arena. On 
2.9.2003 his uncle Bhurabhai Jivabhai (PW-46) was going to 
E 
his field on a bicycle. At about 10.30 a.m., he was intercepted 
by Pathubha Govindji Rathod (appellant no. 1) near bus stand. 
Accmed/appellant no.1 picked up a quarrel with Bhurabha 
Jivabhai as to why he supported Natha Nagabhai (one of the 
deceased) in Gram Panchayat Election with whom the 
F 
accused/appellant no.1 was not having cordial relations. 
Meanwhile Natha Nagabhai came there and joined Bhurabhai 
Jivabhai in the quarrel. This led heated exchange of words 
between both the sides, and crowd gathered there. Accused/ 
Appellant no.1 was
joined by his other supporters (co-accused}, 
G 
who were armed with deadly weapons like swords, knives and 
sticks. Out of the accused persons, accused Pathubha Govindji 
was armed with revolver, and accused Bhavubhai Gagubhai, 
Bhuraji Gaguji, Kirit Jesing and Punjaji Muluji were armed with 
swords. Accused Mala Gaguji was armed with knife. Rest of 
H
494 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A the accused Gaguji Manji, Gomubha Halarwadi, Navalsinh 
Motisinh, Kanubha Jesangji, Dhiru Jesing, Kiritsinh Punjajai, 
Veraji Punjaji, Jayubha, Samatsinh, Sidharajsinh Manji, Bharat 
Manji, Kanu Bhai Devu bhai and accused/appellant no.2 
Hemubha Govindji were armed with sticks. On hearing the 
B noise, complainant Satish Jiva Jotva (PW-42) and his another 
uncle Bhimshi Jiva (PW-47), father of the complainant Hamir 
Nagabhai (another deceased), Malde Nagabhai (PW-43), 
Bhurabhai Jivabhai (PW-46), Punjabhai Bhimshibhai (PW-44), 
Jagmal Jivabhai (PW-45) and some other villagers also 
c gathered there. When the quarrel further aggravated between 
the two sides, accused/appellant no.1 Pathubha Govindji 
exhorted his supporters to kill Natha Nagabhai and teach 
lesson to other supporters. Thereafter, accused/appellant no.1 
Pathubha Govindii himself took out revolver from his pocket and 
0 
fired at him. Natha Nagabhai suffered bullet injuries on the 
stomach and fell down. In the incident, Bhimshibhai who was 
attacked with sword suffered injury on his head. Bhavubhai 
Gagubhai assaulted Punja Bhimshi with sword in his hand, and 
he also suffered injury on his head. Punjaji gave blow to Bharat 
E Jiva on his head, Gomubha Halarwala gave blow on the head 
of Jagmal Jiva. Accused/appellant no.2 Hemubha Govindji 
inflicted injury with sword on the head of Hamir Nagabhai. 
Accused Malde Nagabhai Jotva assaulted with stick to some 
other
persons. Several persons suffered injuries in the incident 
on both sides. According to prosecution, after the incident 
F complainant took his uncle Natha Nagabhai on his motor cycle 
to Mangrol Government Hospital, and other injured persons 
were also taken on rickshaw to said Hospital for medical 
treatment. Out of the injured Natha Nagabhai, Bhimshi Jivabhai, 
Hamir Nagabhai, Bhura Jivabhai, Malde Nagabhai, Punjabhai 
G Bhimshibhai, Jagmal Jivabhai were shifted to Junagarh Hospital 
for further treatment. In the incident Natha Nagabhai and Hamir 
Nagabhai succumbed to the injuries and died. 
4. A complaint was given by Satish Jiva Jotva regarding 
H the incident on the basis of which ICR No. 70 of 2003 was
PATHUBHA GOVINDJI RATHOD v. STATE OF 
495 
GUJARAT [PRAFULLA C. PANT, J.] 
registered at Mangrol Police Station. A cross version of incident 
A 
(ICR No. 71 of 2003) was also registered by the police. After 
investigation, charge sheets were filed by the police against 
both set of accused. Sessions Trial No. 85 of 2003 relates to 
the charge sheet filed against accused/appellants Pathubha 
Govindji R.athod and Hemubha Govindji Rathod and eighteen 
B 
others. After hearing the parties in the aforesaid sessions case, 
a charge was framed by the trial court against all the twenty 
accused in respect of offences punishable under Sections 147, 
148, 302 r/w 149, 307 r/w 149, 326 r/w 149, 325 r/w 149, 324 
r/w 149 and 506 (2) r/w 149 of Indian Penal Code and under c 
Section 135 of the Bombay Police Act. Accused/appellant no.1 
Pathubha Govindji was further charged in respect of offence 
punishable under Section 25(1 )(a) and Section 27 of Arms Act. 
AU-the accused pleaded not guilty and claimed to be tried. 
5. Ori this, prosecution got examined PW-1 Dr. M.G. 
D 
Satrodiya, PW-2 Dr. Linesh Makwana, PW-3 Dr. Anil 
Sakhiyani, PW-4 Naran Punja, PW-5 Desha Devshi, PW-6 
Nasinghbhai Nensibhai, PW-7 Parsottambhai Savjibhai, PW-
8 Ratibhai Khimjibhai, PW-9 Nagabhai Hirabhai, PW-10 
Virambhai Kanabhai, PW-11 Hardas Desa, PW-12 Arjan 
E 
Govindbhai, PW-13 Vikram Arjanbhai, PW-14 Bhikhabhai 
Virabhai, PW-15 Mansukh Amarsinh, PW-16 Lakhabhai 
Pethabhai, PW-17 Laxmanbhai Makwana, PW-18
Rasulkhan 
Gulamkhan, PW-19 Razak Ismail, PW-20 Hanif Ibrahim, PW-
21 Ali Giga, PW-22 Ismail Hussain, PW-23 Gova Parbat, PW-
F 
24 Kanjibhai Karsanbhai, PW-25 Hasmukh Raja, PW-26 
Karmanbhai Jethabhai, PW-27 Arjan Parbat, PW-28 Musabhai 
Allarakha, PW-29 Amadbhai Musabhai, PW-30 Dhirubhai 
Naranbhai, PW-31 Mohanlal Khimjibhai, PW-32 Mamadbhai 
Ismail, PW-33 Ibrahim Kasam, PW-34 Atul Prabhudas, PW-35 
G 
Dr. Jigna Dave, PW-36 Dr. Kartik Modha, PW-37 Bhanji 
Vashram, PW-38 Ranchhodbhai Rathod, PW-39 Dr. 
Bhalchandra Joshi, PW-40 Dr. Jitendra Gajera, PW-41 Dr. P.B. 
Nariyani, PW-42 Satishbhai Bhimsinh Jothwa (complainant), 
PW-43 Malde Naga (injured), PW-44 Punjabhai Bjhimsinhbhai 
H
496 
SUPREME COURT REPORTS 
[2015) 1 S.C.R. 
A 
(injured), PW-45 Jagmal Jivabhai, PW-46 Bhurabhai Jivabhai 
(injured), PW-47 Bhimsinhbhai Jivabhai (injured), PW-48 
Chandrakant Natwarlal, PW-49 Mahipatbhai Bhikhubha, PW-
50 Ravjibhai Valjibhai, PW-51 Jayeshbhai Tapubhai, PW-52 
Karsanbhai Gangabhai, PW-53 Subhashbhai Vadhera, PW-54 
B Hasmukhlal Aahir, PW-55 Arjanbhai Meraman, PW-56 
Harishchandra Trivedi, PW-57 Bharatbhai Mistri, PW-58 
Vishnukumar Vyas, PW-59 Manharlal Mehta (Investigating 
Officer), and PW-60 Kalekhan Kureshi (Investigating Officer). 
C 
6. The trial court put oral evidence of above witnesses and 
documentary evidence including medical reports, inquest 
reports, post mortem reports of Natha Nagabhai and that of 
Hamirbhai Nagabhai, complaint, serologist report and chemical 
analyst report to the accused under Section 313 of Cr.P.C. In 
reply to the prosecution evidence accused stated that evidence 
D adduced against them is incorrect. It is also pleaded that it were 
the accused, who were attacked by the complainant and his 
supporters. In defence, it was brought on record that serious 
injury was caused by Hamir Naga (deceased) to accused/ 
appellant no.1 Pathubha Govindji, with a knife. It is also brought 
E on record that from the side of accused/appellants, Gumansinh 
Motibha, Juvan Singh Gogubha, Punjaji Muluji, Navalsinh, 
Pathubha (present appellant no. 1), and Punja Bhimshi suffered 
injuries. It is also established that in cross Sessions Case No.
53 of 2004, witnesses of present case, namely, Malde 
F 
Nagabhai Jotva, Bhimshi Jivabhai Jotva, Jagmal Jivabhai 
Jotva, Bhurabhai Jivabhai Jotva, Punjabhai Bhimshibhai Jotva 
are accused, who assaulted the accused of the present case. 
Due to death of Hamir Naga, his name did not figure in charge-
sheet as an accused in the said sessions case. 
G 
7. After hearing the parties, learned Sessions Judge 
decided both the sessions trials by two separate orders of the 
same date and recorded conviction against the accused in both 
the cross cases. In Sessions Case No. 53 of 2004 the five 
H accused, namely, Malde Nagabhai Jotva, Bhimshi Jivabhai
PATHUBHA GOVINDJI RATHOD v. STATE OF 
497 
GUJARAT [PRAFULLA C. PANT, J.] 
Jotva, Jagmal Jivabhai Jotva, Bhurabhai Jivabhai Jotva, 
Punjabhai Bhimshibhai Jotva were convicted by the trial court 
under Sections 323, 324, 325, 147,148 all read with 
Section149 of Indian Penal Code and under Section 135 of the 
Bombay Police Act. Each one of accused in said Sessions 
Case No. 53 of 2004 was sentenced to undergo five years' 
simple imprisonment and to pay a fine of Rs.2500/- under 
Section 326 r/w Section 149 IPC, simple imprisonment for a 
period of one month and to pay a fine of Rs.1000/- under 
Section 324 r/w Section 149 IPC, simple imprisonment for a 
period of three months and to pay a fine of Rs.500/- under c 
Section 147 r/w S,ection 149 IPC, simple imprisonment for a 
period of one year and to pay a fine of Rs.1000/- under Section 
325 r/w Section 149 IPC, simple imprisonment for a period of 
one year and to pay a fine of Rs.1000/- under Section 148 r/w 
Section 149 IPC. 
A 
B 
D 
8. On the other hand, in Sessions Case No. 85 of 2005 in 
which the present appellants were accused, the trial court 
convicted and sentenced each of the twenty accused under 
Sections 302, 307, 326, 325, and 324 all r/w Section 149 IPC, 
to undergo imprisonment for life and to pay a fine of Rs.5000/ 
E 
- under Section 302 r/w Section 149 IPC, imprisonment for 
seven years and directed to pay a fine of Rs.2500/- under 
Section 307 r/w Section 149 IPC, imprisonment for a period 
of five years
and directed to pay a fine of Rs.2500/- under 
Section 326 r/w Section 149 IPC. Similar sentence was passed 
F 
against each of them under section 325 r/w Section 149 IPC. 
As to the offence under Section 324 r/w Section 149 IPC each 
one was sentenced to imprisonment for one year and directed 
to pay a fine of Rs.1000/-. Similar sentence was passed under 
Section 147 r/w Section 149 IPC. On the count of charge of 
G 
offence punishable under Section 148 r/w Section 149 IPC 
each one of twenty accused was sentenced to imprisonment 
for a period of one year and directed to pay fine of Rs.1000/-
U nder Section 506 r/w Section 149 IPC, the trial court 
sentenced each convict to imprisonment for a period of seven 
H
498 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A years and directed to pay a fine of Rs.1000/-. The trial Court 
further convicted accused/appellant no.1 Pathubha Govindji 
under Section 27 of Arms Act, and sentenced him to 
imprisonment for a period of three years and directed to pay a 
fine of Rs.2500/-. 
B 
9. Criminal Appeal No. 1391 of 2007 and Criminal Appeal 
No.1394 of 2007 were filed by the convicts of Sessions Case 
No. 85 of 2003, and Criminal Appeal No. 1244 of 2007 was 
filed by the convicts of Sessions Case No. 53 of 2004, before 
C the High Court. All the three appeals were decided by the High 
Court by common judgment challenged before us. The High 
Court decided three appeals with following directions: 
D 
E 
F 
G 
H 
"26. For the foregoing reasons, the following order is 
passed; 
(I) All the three appeals are partly allowed. 
(II) Insofar as Criminal Appeal No.1391/2007 and1394/ 
2007 are concerned, the judgment and order passed by 
the Court of learned Addi. Sessions Judge, Junagadh in 
Sessions Case No.85/2003 dated 05.10.2007 is modified 
to the extent that original accused no.1 Pathubha is 
convicted for the offence punishable u/s.302 IPC and is 
sentenced to undergo imprisonment for life. The order 
regarding fine and default sentence is not disturbed qua 
original accused no.1. It is also clarified that punishment 
of imprisonment for life imposed upon original accused 
no.1 shall not mean imprisonment till last breath and that 
the State may grant the
accused benefit of remission at 
the appropriate lime. His conviction and sentence u/s.27 
of the Arms Act is also confirmed. 
Insofar as original accused no.2 Hemubha is concerned, 
his conviction Ts allered to one punishable u/s.304 Part1 
IPC instead of Section 307 r/w. Section 149 IPC. For 
conviction u/s.304 Part1 IPC, original accused no.2 is
PATHUBHA GOVINDJI RATHOD v. STATE OF 
499 
GUJARAT [PRAFULLA C. PANT, J.] 
sentenced to undergo imprisonment for Ten years. The 
A 
order regarding fine and default sentence is not disturbed 
qua original accused no.2. The jail report shows that 
original accused no.2 is on bail. His bail bonds stand 
cancelled and he is ordered to surrender to custody within 
a period of Ten Weeks from today. 
B 
Out of original accused no.3 to 20, original accused no.5, 
original accused no.13 and original accused no.16 have 
expired. Therefore, the appeals stand abated qua the said 
three accused persons. 
Insofar as the remaining accused persons are concerned, 
c 
viz. original accused no.3, 4, 6 to 9, 11 to 12 and 14, 15 
and 17 to 20, their conviction is altered to one punishable 
u/s.323 IPC without the aid of Section 149 IPC. For 
conviction u/s.323 IPC, the sentence already undergone by D 
each of the accused persons is ordered to be treated as 
sufficient sentence and each of the accused is ordered to 
pay fine of Rs.2500/. None of the accused person is 
required to undergo any further sentence in respect of the 
offence in question. The above accused persons are on 
E 
bail and hence, their bail bonds stand cancelled and surety, 
if any, stands discharged. 
Rest of the impugned judgment and order remains 
unaltered. 
F 
(Ill) Insofar as Criminal Appeal No.1244/2007 is concerned, 
the judgment and order passed by the Court of learned 
Addi. Sessions Judge and Fast Track Court,
Junagadh in 
Sessions Case No.53/2004 dated 05.10.2007 is modified 
whereby, each of the five accused persons, viz. original G 
accused no.1 to 5, is convicted u/s. 323 IPC without the 
aid of Section 149 IPC. Their conviction, accordingly, 
stands altered to one punishable u/s.323 IPC. For 
conviction u/s.323 IPC, the sentence already undergone by 
each of the five accused persons is ordered to be treated 
H
• 
500 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A 
as sufficient sentence and each of the accused is ordered 
to pay fine of Rs.2500/. None of the accused person is 
required to undergo further sentence in respect of the 
offence in question. The above accused persons are on 
bail and hence, their bail bonds stand cancelled and surety, 
B 
if any, stands discharged. 
Rest of the impugned judgment and order remains 
unaltered." 
10. The present appeal has been filed before us by way 
C of Special Leave Petition, by two of the above convicts, namely, 
Pathubha Govindji Rathod and Hemubha Govindji Rathod. 
11. The only point pressed and argued before us in this 
appeal is that the courts below have erred in law in not 
0 
accepting the plea of private defence taken by appellant no.1. 
It is argued that the accused/appellant no.1 was assaulted with 
a knife and suffered the injury on the vital part, as such he has 
a right of private defence to save his person. It is further 
contended that charge relating to causing death of Natha Bhai 
E with a fire arm, even if proved, is covered by Exception 2 of 
Section 300 IPC. 
F 
12. We have considered the submissions of the learned 
counsel for the appellants. Exception 2 to Section 300 IPC 
reads as under: -
"Exception 2.-Culpable homicide is not murder if the 
offender, in the exercise in good faith of the right of private 
defence of person or property, exceeds the power given 
to him by law and causes the death of the person
against 
G 
whom he is exercising such right of defence without 
premeditation, and without any intention of doing more 
harm than is necessary for the purpose of such defence." 
13. It is not disputed in the present case that there are 
cross versions of the incident, and cross complaints were 
H
PATHUBHA GOVINDJI RATHOD v. STATE OF 
501 
GUJARAT [PRAFULLA C. PANT, J.] 
lodged with the police. It is also not disputed that in both the 
A 
cases police submitted charge sheets against both set of 
accused. It is also evident from the record that both Sessions 
Case No 85 of 2003 and Sessions Case No. 53 of 2004 
resulted in conviction on conclusion of trial by Additional 
Sessions Judge, Junagarh. Considering the number of persons 
8 
involved in the incident it can be safely said that it is a case of 
free fight between two groups of people. It is settled principle 
of law that in the cases of free fights accused are to be 
fastened with individual liability taking into consideration the 
specific role assigned to each one of them, and normally right c 
of private defence is not available in such cases unless 
circumstances in a given case warrant so. 
14. A person faced with injury with a deadly weapon to his 
life cannot be expected to weigh in balance the precise force 
needed to avoid danger. Referring to case of Bhanwar Singh 
v. State of M.P.1, this Court, in State of Rajasthan v. Manoj 
Kumar2, has obseNed as under: -
"15.3. In Bhanwar Singh v. State of M.P., it has been ruled 
to the effect that for a plea of right of private defence to 
succeed in totality, it must be proved that there existed a 
right to private defence in favour of the accused, and that 
this right extended to causing death; and if the court were 
to reject the said plea, there are two
possible ways in 
which this may be done i.e. on one hand, it may be held 
that there existed a right to private defence of the body, 
however, more harm than necessary was caused or, 
alternatively, this right did not extend to causing death and 
in such a situation it would result in the application of 
Section 300 Exception 2 IPC." 
15. In Mohd. Khalil Chisti v. State of Rajasthan3, this court 
1. 
(2ooa) 16 sec 657. 
2. 
(2014} 5 sec 744. 
3. 
(2013) 2 sec 541. 
D 
E 
F 
G 
H
502 
SUPREME COURT REPORTS 
[2015] 1 S.C.R, 
A has observed in para 42 as follows:;-
B 
c 
D 
"42. The analysis of the materials clearly shows that two 
versions of the incident adduced by the prosecution are 
discrepant with each other. In such a situation where the 
prosecution leads two sets of evidence each one which 
contradicts and strikes at the other and shows it to be 
unreliable, the result would necessarily be that the court 
would be left with no reliable and trustworthy evidence upon 
which the conviction of the accused might be based. 
Though the. aGcused would have the benefit of such 
situation and the counsel appearing for the appellants 
prayed for acquittal of the appellants of all the charges, in 
view of the principles which we have already discussed, 
we are of the view that each accused can be fastened with 
individual liability taking into consideration the specific role 
or part attributed to each of the accused. In other words, 
both sides can be convicted for their individual acts and 
normally no right of private defence is available to either 
party and they will be guilty of their respective acts". 
E 
16. No doubt normally the right of private defence is not 
available to either of the parties in incidents of group fighting, 
but that is not a rule without exception. In the case at hand, we 
have a special circumstance where the injured person 
(appellant no. 1) who was given 2cm x 2cm x 1.5cm deep knife 
F blow on his back (scapular region)
has retorted by using 
licensed firearm, and killed one of his rivals in the same incident. 
Accused/appellant Pathubha Govindji has taken plea of private 
defence right from beginning of the trial. From the judgment of 
the trial court also, it is clear that the plea of private defence 
G was taken by the appellant no.1. Considering the facts and 
circumstances of the present case and evidence on record, it 
is evident that accused/appellant no.1 Pathubha Govindji 
Rathod who suffered knife injury in the incident has caused 
death of one of the deceased by firing several shots thereby 
H exceeding right of private defence. Injuries suffered by both the 
sides are on record.
PATHUBHA GOVINDJI RATHOD v. STATE OF 
503 
GUJARAT [PRAFULLA C. PANT, J.] 
17. In the above circumstances, from the evidence, as 
A 
discussed above, we are inclined to accept the argument that 
it is a case of culpable homicide not amounting to murder 
covered under Exception 2 of Section 300 of IPC. Therefore, 
after weighing the submissions of learned counsel for the 
parties and going through the papers on record, we are of the 
opinion that appeal of the accused/appellant no. 1 deserves to 
be allowed partly. Accordingly, the appeal is partly allowed and 
the conviction and sentence recorded against accused/ 
appellant no.1 under Section 302 IPC read with Section 149 
B 
IPC is set aside. Instead he (accused/appellant no.1 Pathubha 
C 
Govindji Rathod) is convicted under Section 304 Part-1 IPC and 
sentenced to imprisonment for a period of ten years and 
directed to pay fine of Rs.5000/-, in default of payment of fine 
he shall undergo simple imprisonment for a further period of 
six months. He is reported to have undergone nine years and 
0 
six months of imprisonment. He shall serve out unserved part 
of the sentence. The conviction and sentence recorded against 
accused/appellant no. 2 Hemubha Govindji Rathod under 
Section 304 Part I read with Section 149 IPC, does not require 
any interference. 
18. The appeal stands disposed of. 
Kalpana K. Tripathy 
Appeal partly allowed. 
E