RUN MURTI, J. ( 1 ) THIS judgment shall also dispose of Criminal Appeal No. 70 1/83 (State of M. P. v. Laxman Prasad Lachhu) as both the appeals have arisen out of the same judgment. ( 2 ) THE appeal, filed by the appellant, is directed against the judgment, order of conviction and sentence, dated 1-2-83, passed by learned Sessions Judge, Damoh, in Sessions Trial No. 69/82, whereby he has been convicted and sentenced to undergo 5 years R. I. and a fine of Rs. 1500/- (in default of payment to undergo RI. for 1 year) under section 304, Part I, I. P. C. The State of M. P. has also come up in appeal, being Criminal Appeal No. 701/ 83, State v. Laxman Prasad Lachchhu, against his acquittal under section 302, I. P. C. ( 3 ) THE appellant was tried for the murder of one Mukundilal under section 302, I. P. C. The incident is said to have happened on 22-6-82 at about 10-00 p. m. in the night. The appellant had returned after attending a marriage at a nearby village Hindoria and he had gone to the deceased to demand repayment of his loan (of Rs. 10,500/- ). The deceased at that time was lying on a stone- slab in front of his house. Eye-witness Santosh (P. W. 1), Kasturchand (P. W. 2), Smt. Tarabai (P. W. 7) and Ganpat (P. W. 8) were also around there, being immediate neighbours. The deceased refused to pay back. Exchange of hot words, coupled with free trading of abuses followed between the appellant and the deceased. This went on for about 20-25 minutes. Enlarged the appellant took out a Katar (knife) from his pocket and gave one knife-blow to the deceased which struck him in the abdomen. The appellant ran away with the Katar. Immediately, deceased's son Santosh (P. W. 1) went to the Police Station and lodged the F. I. R. at 23-10 p. m. , vide Ex. P. 1. The same night investigating officer town Inspector Shri P. L. Ahirwar (P. W. 14) recorded the dying declaration of the deceased, vide Ex. P. 5, in the presence of Ramesh Chandra (P. W. 6), wherein the deceased stated that he was stabbed by the appellant. The deceased succumbed to the injuries the same night at 1-40 a. m. in the hospital. P. 5, in the presence of Ramesh Chandra (P. W. 6), wherein the deceased stated that he was stabbed by the appellant. The deceased succumbed to the injuries the same night at 1-40 a. m. in the hospital. The appellant has admitted to have stabbed the deceased, but in self- defence. ( 4 ) DR. V. K. Rawat (P. W. 12) examined the deceased on 22. 6. 82 at about 10-00 p. m. , vide his report Ex. P-13, He had noted the following injury (apart from 3 very minor injuries on the fingers); Incised wound horizontal, 4 x 2 peritoneal cavity. Loops of bowels were seen in the left side of epigastric region, caused by sharp object. ( 5 ) THE appellant has pleaded self-defence. In his written statement filed under section 313, Cr. P. C. , he has admitted to have stabbed the deceased. According to him, he had returned after attending a marriage at the nearby village Hindoria. He had carried a small knife with him for self- protection as the area around Damoh is a dacoity infested area and the passers-by are often looted on the high-way. He had gone straight to the deceased at his house to demand repayment of his loan. But the deceased refused to pay back and abused him. His further statement is that after mutual trading of abuses, the deceased saying that he was bringing out money, went inside his house and come out with an iron rod and struck him with it on his head, causing him injury on the head. The deceased again raised the iron-rod to strike him, but he (the appellant) in order to save his own life, took out the Katar from his pocket and gave-a blow to the deceased, which struck him in the abdomen. He has committed no offence. ( 6 ) THE learned lower court was little confused in the process by which it recorded the conviction of the appellant under section 304, Part I, I P. C. In Para 42 of his judgment the learned Sessions Judge reached the conclusion that the appellant had failed to establish facts, which would entitle him to the right of private defence. Yet, in Para 44 of the judgment, he recorded the finding that the appellant was guilty under section, 304, Part I, I. P. C. , as he had exceeded the right of private defence. Yet, in Para 44 of the judgment, he recorded the finding that the appellant was guilty under section, 304, Part I, I. P. C. , as he had exceeded the right of private defence. ( 7 ) THE question for consideration is what offence has been committed by the appellant in the circumstances of the case. ( 8 ) AS noted above, it is admitted by the appellant that he had given a knife blow to the deceased. Santosh (P. W. 1) and Kasturchand (P. W. 2), Mst. Tarabai (P. W. 7) and Ganpat (P. W. 8) are the eye-witnesses. and Ex. P-5 is the dying declaration of the deceased. From the evidence of these witnesses and the dying declaration, it is established that the appellant was insisting for repayment of his loan (of Rs. 10,500/-) and the deceased was stalling him off. There was mutual remonstration and exchange of hot words, using filthy language. This had gone on for about 20-25 minutes. In this altercation the appellant gave a knife-blow to the deceased, which landed on the abdomen of the deceased. The incident thus occurred on the spur of moment. Obviously, it was without premeditation. ( 9 ) THERE is no force in the defence contention that the appellant had acted in self-defence. The learned Sessions Judge has rightly held in paras 41 and 42 of his judgment that it was for the appellant to bring such facts on record which would have attracted the Exception contained in section 100, I. P. C. , and excused the appellant from culpability, and that he had failed to do so. The case of the appellant is that he had received an injury on his head during the incident. But he had absconded and could be arrested only on 6-7-82, after 14 days of the incident. He could have get himself examined as to his injury by any physician and proved it in the trial. In the F. I. R. Ex. P-i. it is, of course, mentioned that when the appellant was running away from the place of occurrence after the incident, he was chased and his pursuers had thrown stones at him. It is also true that when his Kurta and trousers (Arts. E and F) were seized from his person, after his arrest, on 22-7- 82, it is recorded at his instance, at the bottom of the seizure memo Ex. It is also true that when his Kurta and trousers (Arts. E and F) were seized from his person, after his arrest, on 22-7- 82, it is recorded at his instance, at the bottom of the seizure memo Ex. P-9 that he was wearing these very clothes on the day of the incident and they were stained with his own blood on that date. (It is also recorded therein that the blood-stains had been washed away by him ). But, no prosecution witness has stated that the people of the Mohalla had pelted stones at the appellant when he was running away from the place of incident. Neither has any defence evidence been led on this point. Thus there is no material on record to show that the appellant was injured during the incident, There is nothing on record to bold that the appellant was acting in self-defence when he had stabbed the deceased. ( 10 ) WE have stated earlier that as the learned Sessions Judge had himself held that the right of private defence was not established, it was wrong on his part to record conviction under section 304, Part I, I. P. C. , on the basis that the appellant had exceeded the right of private defence. We have to determine whether the facts and circumstances of the case make it out an offence of murder or that of culpable homicide not amounting to murder. In Tholan v. State of Tamilnadu1 the appellant Tholan and the deceased Sampat were remonstrating with each other in front of the deceaseds house (over a petty matter) when the appellant Tholan took out, a knife from his waist and stabbed the deceasedt Sampat on the right side of the chest. The heart and lever were injured. The doctor who conducted the autopsy, had opined that the injury caused to the deceased Sampat was sufficient to cause death in the ordinary course of nature. The appellant was convicted under section 302, I. P. C, by the trial Court and conviction was upheld by the Madras High Court. It was held by their Lordships of the Supreme Court that in the circumstances of the case there was nothing to show that the appellant Tholan had intention to murder the deceased or he intended to cause the particular injury found to be present on the deceased Sampat. It was held by their Lordships of the Supreme Court that in the circumstances of the case there was nothing to show that the appellant Tholan had intention to murder the deceased or he intended to cause the particular injury found to be present on the deceased Sampat. The appellant Tholan could only be attributed with the knowledge that he was likely to cause an injury, which was likely to cause death. Hence, the conviction of the appellant Tholan was altered to one under section 304, Part IT, I. P. C. , and he was sentenced to undergo R. I. for 5 years. ( 11 ) THE circumstances of the incident show that the appellant and the deceased were remonstrating with each other for about 20 to 25 minutes on the question of repayment of loan. They were using freely abusive language against each other. The persistent, refusal of the deceased infuriated the appellant and the appellant stabbed him. The knife blow struck the deceased in the abdomen. There is nothing to show that the appellant had intended to cause the very abdominal injury found to be present on the deceased. Of course, he had no intention to murder the deceased. At best, the appellant can be attributed with the knowledge that his act was likely to cause the death of the deceased. Therefore, the offence committed would be under section 304, Part II, I. P. C. ( 12 ) IN the result, this appeal is partly allowed. The conviction of the appellant is altered from one under section 304, Part I, I. P. C. , to under section 304, Part II, I. P. C. The sentence of 5 years R. I. is, however, maintained. But the sentence of fine of Rs. 1500/- is set aside. Criminal Appeal No. 701/ 83 State of M. P. v. Laxman Prasad Lachhu is hereby dismissed. Appeals partly allowed. .