JUDGMENT
P.D. Mulye, J.
1. This appeal filed by the appellant is directed against the judgment dt. 23-5-1984 passed by the Additional Sessions Judge, Dewas in S.T. No. 55 of 1984, challenging his conviction for an offence under Section 302, I.P.C. and the sentence of R.I. for life and a fine of Rs. 5000/- (five thousand) awarded to him thereunder, in default further R.I. for two months.
2. The prosecution case at the trial may be stated, in brief, thus : P.W. 2 Kailash is the nephew of deceased Harinarayan who was a mad person having lost his mental balance. On 25-1-1983 the appellant purchased Paan from the shop of Kailash (P.W. 2) where the deceased Harinarayan came, had hot exchange of words which according to the appellant were insulting and thereafter the appellant took out a knife and pierced it into the chest of Harinarayan, who as a result of the injury sustained, died on the spot. The FIR Ex. P-3 was lodged by Kailash (P.W. 2) at police station Sonkutch, the incident having taken place at GandharwaPuri, of which the appellant as also the deceased are residents.
3. The autopsy on the dead body of Harinarayan was conducted by P.W. 1 Dr. Pratap Vyas, who as per the report Ex. P 2 dt. 26-1-83 found one stab wound on the chest, the duration being within 24 hours. The said stab wound was over left side 1/2 below the nipple, cut the heart at the appex which caused severe haemorrhage and thus in the opinion of the said doctor cause of death was as a result of the shock sustained by the deceased.
4. On these facts the appellant after his arrest and due investigation was prosecuted, which on trial resulted in his conviction.
5. The defence of the appellant at the trial was right of self defence and in the alternative it was the deceased who caused sudden and grave provocation by hurling stones at the appellant which anyhow did not hit him.
6. The learned Counsel for the appellant did not dispute the fact that death of Harinarayan was homicidal; and that the stab wound sustained by him was ante mortem. He also did not dispute the fact that it was the appellant who caused the chest injury with the help of the knife which he took out from his pocket. It is, therefore, not necessary to consider the medical evidence, though the learned Counsel for the appellant submitted that the said doctor in his statement or in the post mortem report has nowhere stated that the said injury in the heart was sufficient in the ordinary course of nature to cause death. The learned Counsel further submitted that the facts of this case being not in dispute, in order to prove how the incident occurred which compelled him to cause the injury in the right of his selfdefence because of the grave and sudden provocation at the spur of the moment as also the fact that the deceased was a mad person and had also hurled stones at him, he examined one defence witness Chhotelal (D.W. 1) who has supported the case of the appellant. The learned Counsel further submitted that normally in a case of murder in which life sentence is awarded, in addition no fine is imposed. Therefore, the sentence of fine awarded to the appellant deserves to be set aside, though he did not dispute that Section 302, I.P.C. does make a provision to that effect.
7. The learned Counsel for the appellant after taking us through the prosecution evidence of P.W. 2 Kailash, P.W. 3 Laxminarayan, P.W. 4 Ratanlal, P.W. 5 Ghanshyam, who has been declared hostile, P.W. 6 Bondarla who has also been declared hostile as also P.W. 7 Pannalal, who has not’ supported the prosecution case, submitted that all thesawitnesses have clearly admitted that Harinarayan was a mad person, that before the incident took place the deceased had hurled abuses at the appellant and it is thereafter only that the appellant took out a knife and pierced it into the chest of the deceased, though as stated above some of the witnesses referred to above have been declared hostile by the prosecution. The learned Counsel for the appellant, therefore, submitted that admittedly the appellant had no motive to kill the deceased who was a mad person and because of his act, who was of unbalanced mind, he committed the said crime. The learned Counsel, therefore, submitted that even though the appellant may have exceeded his right of self defence, he had no intention as such to kill the deceased and consequently only an offence under Section 304. (Part II) is made out, though the learned Counsel for the appellant did not dispute this fact that no such specific case as such was put in cross-examination to the prosecution witnesses who are said to have witnessed the incident.
8. The learned Counsel appearing for the State submitted in fairness that considering the facts and circumstances of the case from the prosecution evidence it cannot be safely inferred that the appellant had the intention of killing the deceased. He also did not dispute the fact that normally in a case of life sentence, fine is not separately imposed.
9. Thus, after hearing the learned Counsel and after going through the record we find] that even though as argued by the learned Counsel for the appellant he had a right of self defence as a result of the grave and sudden, provocation given by the deceased who had “hurled abuses at the appellant which irritated him, he had exceeded the same. Thus, the appellant had no intention of killing the deceased as such, but he had the knowledge of the consequences of the said act committed by him.
10. In the result this appeal succeeds partly. The conviction of the appellant for an offence under Section 302, I.P.C. and the sentence of R.I. for life and a fine of Rs. 5000/- (five thousand) awarded to him thereunder are set aside. Instead he is found guilty for an offence under Section 304(PartI), I.P.C. he having inflicted the injury on the vital part of the body, namely heart with a sharp-edged weapon like knife. The appellant is, therefore, convicted for an offence under Section 304 (Part I) I.P.C. and is sentenced thereunder to suffer R.I. for 7 years. The appellant, who is on bail, shall surrender to his bail bond and serve out the remaining sentence for which he shall be taken into custody.