JUDGEMENT 1. Appellant has filed this appeal from jail against his conviction under Sections 302 and 307 of the Indian Penal Code and sentence of imprisonment for life and six years' R.I. respectively. Both the sentences have been ordered to run concurrently. 2. The incident took place around midnight intervening 16th and 17th of May, 1971. The accused, the deceased and most of the prosecution witnesses were at the relevant time working as sailors on vessels "Mekari" and "Precious Pearl" which were docked at Marmagoa at berth No. 5. 3. A few hours before the incident the accused and prosecution witnesses Parahinog P.W. 1 and Borromeo P.W. 6 had gone to Vasco and had taken drinks together. Later at about 8 p.m. the accused again went along with Parahinog and Peredo (P.W. 4) to Vasco and again he drank lot of liquor. As he was not able to walk properly Parahinog reprimanded him and even boxed him on the face. However, they soon started embracing each other. As accused had consumed lot of liquor at Baina Beach, Peredo P.W. 4 took him to his ship 'Mekari' in a taxi. At about 11.30 p.m. Parahinog accompanied by the deceased and witnesses Solis P.W. 2 and Contreras P.W. 3 went to their ship 'Mekari.' When Parahinog and the deceased reached the top of the gangway, the accused who was standing at the entrance way attacked Parahinog with a knife inflicting a stab wound on his stomach. Parahinog turned to run away. The deceased tried to stop the accused from chasing Parahinog. The accused thereupon stabbed the deceased on the stomach and also inflicted two wounds on the back side of his neck. The deceased staggered for a few steps and collapsed. He nearly died instantaneously. Parahinog also lost consciousness after running a short distance. He was taken to the Hospital where he was treated surgically. Meanwhile the accused had been caught and detained by the first mate of the ship. Report was lodged at the Police Station and the accused was taken to custody. After the panchanama the body of the deceased was sent for postmortem examination. Death was found to have been caused as a result of the abdominal injury. 4. Meanwhile the accused had been caught and detained by the first mate of the ship. Report was lodged at the Police Station and the accused was taken to custody. After the panchanama the body of the deceased was sent for postmortem examination. Death was found to have been caused as a result of the abdominal injury. 4. The accused in his examination under Section 342, Criminal P.C. admitted that he had gone ashore with Parahinog and Peredo where he took lot of drinks and there was a quarrel when Parahinog had boxed him. He denied to have caused any injury to Parahinog or to the deceased Satumbaga with a knife as alleged. The accused pleaded that he was heavily drunk at Baina Beach and was brought to the ship by some person. He went to his cabin and slept and he did not know anything as to what had happened. 5. P.W. 15 Dr. Sardessai performed the autopsy on the body of the deceased on 17-5-1971 and found the following injuries :- "(1) One cut wound with edges dark bluish in colour placed vertically, eliptical in shape, size 1" x ¼" x transverse processes of 4th, 5th, 6th and 7th cervical vertebrae of left side. The site was 3½" below and 1½" posterior to the lobule of the penal of the left ear. (2) Cut wound eliptical in shape placed obliquely transversal slightly downwards and medially and through this cut wound one loop of small bowel bearing two cuts was seen protruding out of the size of 1" x ½" x peritonial cavity the site of which 2½" medial to right anterior superior iliac spine. (3) Abrasion irregular in shape of the size ½" x ¼" situated just above the right patella. (4) Abrasion size -" x ½" situated in mid front of the right leg. All these injuries were antemortem. There was one postmortem injury caused by ant bite. They were multiple small abrasions varying in size situated in maxilae. The aforesaid injuries were all external. The internal injuries were as follows :- (1) "The above mentioned injury on the bowel. (2) Cut in the blood vessels in the wall of the abdomen. As a result of this cutting there was in the peritonial cavity 840 ml (blood)." According to Dr. The aforesaid injuries were all external. The internal injuries were as follows :- (1) "The above mentioned injury on the bowel. (2) Cut in the blood vessels in the wall of the abdomen. As a result of this cutting there was in the peritonial cavity 840 ml (blood)." According to Dr. Sardessai the death was caused by shock as a result of the perforating injuries of the small bowel resulting in massive intravascular haemorrhage from the vessels of the right lower portion of an anterior abdominal wall. According to him the wound was sufficient to cause death in the ordinary course of nature. 6. Dr. Sabir P.W. 16 had examined P.W. 1 Parahinog and had found a stab wound 2" x 1" piercing all the layers of the abdominal wall. According to him the injury was dangerous to life and the patient was unconscious when examined. 7. This evidence fully established that the deceased met with homicidal death. It was also proved that P.W. 1 Parahinog had received an injury which by its very nature was dangerous to life. The question for consideration is whether the appellant had caused injuries on the body of the deceased and prosecution witness Parahinog and if so what offences were committed. 8. The most important eye-witness of the incident was Parahinog P.W. 1. Accused had admitted that he had gone ashore to Vasco and later to the Baina Beach with Parahinog. There was no suggestion anywhere that this witness had wrongly identified the accused as the assailant or had any animosity to falsely implicate him. It was clear from the statement of Parahinog supported by prosecution witnesses Solis and Contraras that when these three persons and the deceased were returning to the ship "Mekari" and were on the gangway the accused first stabbed Parahinog and when the deceased tried to prevent him he stabbed him also. After carefully going through the judgement of the learned Sessions Judge. I am of the view that his conviction as regards the acts committed by the accused is correct and proper. It was proved beyond doubt that the accused first inflicted the stab injury with the knife on Parahinog and later on the deceased. 9. Now I have to examine the nature of the offence committed by the accused. I am of the view that his conviction as regards the acts committed by the accused is correct and proper. It was proved beyond doubt that the accused first inflicted the stab injury with the knife on Parahinog and later on the deceased. 9. Now I have to examine the nature of the offence committed by the accused. There is preponderance of evidence to show that the accused at all material times was highly intoxicated due to enormous consumption of liquor. Statement of Parahinog showed repeatedly that the accused had been heavily drunk and was unsteady even when he accompanied him to Baina Beach. At the beach he consumed more liquor. Because of his unsteady behaviour Parahinog mildly boxed him but the accused immediately started embracing him and shaking hands with him. Peredo (P.W. 4) had to leave the party and take him back to the ship as the accused was dead drunk. The same facts appeared from the statements of Solis P.W. 2 and other witnesses. The learned Sessions Judge noted in his judgement this state of heavy drunkenness on the part of the accused. In para 8 of the judgement he referred to the fact "that the mind of the accused was under heavy influence of drink an probably on account of this he magnified the provocation caused by Parahinog beating him at the Beach." In para 16, the learned Judge further observed that he was convinced "that the crime was committed in a fit of alcoholic intoxication." This being a proved fact we will examine the legal consequence following such an act. 10. Section 86 of the I.P.C. is as follows :- "In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or, against his will." A leading case on the application of this section is Basdev v. State of Pepsu, AIR 1956 SC 488 : (1956 Cri LJ 919 (2)). This case has been extensively reproduced in Gour's Penal Law of India, 8th Edn. Vol. I at pp. 568-571. This case has been extensively reproduced in Gour's Penal Law of India, 8th Edn. Vol. I at pp. 568-571. Their Lordships quoted various decisions of the English Courts and particularly the House of Lords decision in Director of Public Prosecutions v. Beard, 1920 AC 479 : (1920 All ER 21). Russel on Crimes 10th edition at page 63 compendiously summarised the result of the authorities on the point as follows :- "There is distinction, however, between the defence of insanity in the true sense caused by excessive drunkenness and the defence of drunkenness which produces a condition such that the drunken man's mind becomes incapable of forming a specific intention. If actual insanity in fact supervenes as the result of alcoholic excess it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. But in cases falling short of insanity evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by drink that he more readily gave way to some violent passion does not rebut the presumption that a man intends the natural consequences of his act." 11. It is therefore necessary to examine whether the accused in the present case was beside his mind altogether as a result of heavy drinking. On this point we have the statements of the prosecution witnesses and the finding of the learned trial Judge to which I have already adverted earlier. There is no doubt that the accused had no grudge against the deceased or Parahinog. Even after a brief brawl at the Beach accused and Parahinog parted as good bottle friends. The remark of the learned Sessions Judge that under the influence of heavy intoxication the accused greatly magnified the small provocation is pertinent. This fact neatly brings out the state of mind of the accused and shows that he was so heavily drunk that he was incapable of forming the requisite intent which could bring his act within the ambit of Section 300, Indian Penal Code. This fact neatly brings out the state of mind of the accused and shows that he was so heavily drunk that he was incapable of forming the requisite intent which could bring his act within the ambit of Section 300, Indian Penal Code. However, in view of Section 86, Indian Penal Code the accused should be imputed with the knowledge of his act. This takes out his case from the rigour of a case of murder to one of culpable homicide not amounting to murder. Since the accused caused the death of the deceased with the knowledge that his act was likely to cause death but without having any intention to cause death, his case would come under Section 304, Part II of the I.P.C. Similarly his act in inflicting a dangerous injury on the person of Parahinog would come within the purview of Section 308 instead of Section 307, I.P.C. The reason is the same for which his act of culpable homicide has been held to be punishable under Section 304, Part II instead of Section 302, I.P.C. 12. The appeal is therefore, partly allowed. Appellant's conviction under Sections 302 and 307 is set aside. Sentences passed under the above sections are also set aside. Appellant is convicted under Section 304, Part II and Section 308, I.P.C. He is sentenced to undergo rigorous imprisonment for 5 years and 3 years respectively, sentences to run concurrently. 13. The appellant has been in custody since 17-5-1971. The entire period of detention as under trial shall be set off under Section 428, Code of Criminal Procedure, 1973 against the term of imprisonment imposed on him and he will be liable to undergo imprisonment restricted to the remainder of the term of imprisonment imposed on him. Appeal partly allowed.