JUDGMENT (ORAL) Ashok Agarwal, J. - An order of conviction under Section 304 Part-I, I.P.C. and a sentence of rigorous imprisonment for five years and a fine of Rs. 5,000/-, in default further rigorous imprisonment for five years is impugned in the present appeal. At the trial, the appellant-original accused was charged under Section 302 of the Indian Penal Code for having, on the 14th-of April 1986 at about 10.00 p.m. on a public road connecting Nasik Yes and Bazzar Yes, near hotel Dayanand at Sinnar, committed the murder of Mininath Waluji Borade by stabbing him with a knife. On the evening of the date of incident P.W. 7 Vijay Madhavrao Deopurkar, the accused and two others had gone to Manish Bar. The three others had taken beer whereas the accused had consumed a quarter bottle of brandy. After finishing their drinks, the four came out. Two of them proceeded to see a picture whereas Vijay and the accused were returning to their respective houses. While they were proceeding on foot near Saraswati bridge they had Mughbhaji and Papad from a Farsan shop in front of Altaf Hotel. Thereafter they proceeded further and came near Dayanand Hotel. Accused suggested that they should have Malai Barfi Both entered Dayanand Hotel. P.W. 2 Devidas Dattatraya Cadekar and the deceased Mininath were present in the hotel. The accused and Vijay placed an order for being served Malai Barfi. The deceased Mininath was unable to serve Malai Barfi as the stock was exhausted. On this the accused got irritated. There was exchange of words. The situation flared U.P. The accused and Mininath started scuffling with each other. They started giving fist blows to each other. Mininath scratched the accused with his nails on his neck and face. He went and brought a rubber pipe and assaulted the accused with it. The accused, in turn, took out a knife and gave two stab blows to the deceased Mininath. After mounting the attack on the deceased the accused made good his escape. P.W. 8 Balu Vishnu Vaidya carried Mininath on a hand-cart to the Sinnar Municipal Dispensary where P.W. 5 Dr. Deepak Vishwanath Sonawane gave him first aid. Dr. Sonawane also treated the injuries on the person of the accused. After mounting the attack on the deceased the accused made good his escape. P.W. 8 Balu Vishnu Vaidya carried Mininath on a hand-cart to the Sinnar Municipal Dispensary where P.W. 5 Dr. Deepak Vishwanath Sonawane gave him first aid. Dr. Sonawane also treated the injuries on the person of the accused. The medical certificate in respect of the injuries found on the person of the deceased is at Exhibit-10 and the medical certificate in respect of injuries on the person of the accused is at Exhibit-12. The cause of death as found by Dr. Sonawane is reflected in the certificate which is at Exhibit-H. On the advise of Dr. Sonawane, Mininath was removed to the Civil Hospital at Nasik. While on the way he breathed his last. P.W. 6 Dr. Manohar Devram Nehate, a Medical Officer at the Civil Hospital, Nasik, performed the post mortem on the corpse of Mininath. The post-mortem notes are at Exhibit14. 2. Information regarding the incident was conveyed by P.W. 10 Krushna Ramdas Kshatriya to P.W. 1 Sainath Vithal Sadawarte, a Police Constable attached to the Sinnar Police Station. P.W. 1 Sainath Sadawarte, in turn, filed a complaint which is atExhibit-17. The investigation of the case was taken over by P.W. 12 Ramesh Vanaji Bangal, a Police Sub Inspector attached to the Sinnar Police Station. He arrested the accused vide arrest panchanama Exhibit-30. While in custody accused made a statement which is at Exhibit-28and led Panch witness P.W. 11 Dinkar Datingrao Patil and the police party to his house, removed a key hidden in the roof of the house, opened the lock of a cup-board and produced a blood-stained shirt and a blood-stained knife which are Articles 10 and 11 respectively. The panchanama in regard to the discovery is at Exhibit-29. Then Muddemal Articles were sent to the chemical Analyser. As per the report of the Chemical Analyser (Exhibit 33) the shirt and the knife were found stained with human blood of' A' group which happen to be the blood-group both of the deceased and of the accused. After recording the statements of the material witnesses and after completing the investigation, P.S.I. Bangal filed a charge sheet and thereafter the accused was charged for the offence of having committed the murder of Mininath. 3. The accused pleaded not guilty. After recording the statements of the material witnesses and after completing the investigation, P.S.I. Bangal filed a charge sheet and thereafter the accused was charged for the offence of having committed the murder of Mininath. 3. The accused pleaded not guilty. According to him, a friend of his forcibly took him to Manish Bar and there he gave him some drink. He does not know and did not understand what drink he had given. Due to the consumption of drink he started feeling giddiness and therefore he went home and went asleep. Early in the morning police came to his house and they took him to the police station. 4. At the trial, the prosecution examined as many as five witnesses who are eye-witnesses to the incident in question. They are P.W. 7 Vijay Madhavrao Deopurkar, P.W. 2 Devidas Dattatraya Cadekar, P.W. 3 Shivaji Pandharinath Shinde, P.W. 4 Waman Govind Engale and P.W. 9 Ramesh Rambhau Pagar. A Special feature which appears in the case, is that each one of the aforesaid witnesses have refused to support the prosecution in respect of the crucial incident of the assault by accused with the knife on Mininath. Each of the witnesses have, no doubt, supported the case of the prosecution in so far as the rest of the incident is concerned. They are consistent in respect of the demand made by the accused for Malai Barfi. Since the stock of Malai Barfi was over Mininath was unable to fulfil the demand. This irritated the accused. An exchange of abuses ensued. Both started scuffling with each other. They started exchange of blows. Mininath scratched the accused on his face and neck. He also went inside and brought a rubber tube and assaulted the accused with the tube. This is what the aforesaid witnesses have deposed. However, when it came to the crucial assault at the hands of the accused with a knife each one of them have turned hostile and have resiled from their previous statement before the police. The learned Judge of the trial Court has placed reliance on the testimony of the aforesaid witnesses. 5. I have, with the assistance of Shri Gore, the learned Advocate appearing in support of the appeal, gone through the evidence on record and I have no hesitation in subscribing to the said finding. The learned Judge of the trial Court has placed reliance on the testimony of the aforesaid witnesses. 5. I have, with the assistance of Shri Gore, the learned Advocate appearing in support of the appeal, gone through the evidence on record and I have no hesitation in subscribing to the said finding. Even though each of the aforesaid witnesses have refused to depose to the assault by the accused with a knife, there is sufficient evidence on record to arrive at a finding that the accused had assaulted the deceased with a knife. The first evidence is in respect of the injuries which the deceased had sustained. Both Dr. Deepak Sonawane as also Dr. Manohar Nehate have noticed two insized wounds having been caused to the deceased Mininath. The said two injuries are consistent with an assault by a knife. 6. In addition to the above, we have the evidence of P.W. 11 Dinkar Datingrao Patil and P.W. 12 Ramesh Vanaji Bangal. Both the panch and the Investigating Officer have deposed that while in custody accused made a voluntary statement (Exhibit 28) leading to the discovery of a blood-stained shirt and a blood-stained knife. It is true, as pointed out by Shri Gore, that Dinkar Patil had acted as a Panch witness in two or three cases prior to the discovery in the instant 'Case. That, however, cannot set at naught the evidence regarding discovery. As has been pointed out by the learned Judge of the trial Court, P.S.I. Bangal was transferred to the Sinnar Police Station hardly 21/2 months prior to the incident in question. It would, therefore, be futile to contend that he has utilised the services of a panch witness who was under his control and command. Neither of them have any animosity towards the accused. The evidence regarding discovery is, therefore, satisfactory and deserves to be relied upon. 7. We next have the evidence of the report of the Chemical Analyser which is at Exhibit-33 The Chemical Analyser has certified that both the knife as also the shirt was found stained with human blood of' A' Group which is also to blood group of the deceased licence, it follows that the accused has discovered a shirt and a knife. He was wearing the shirt at the time of the incident and he had used the knife for the purpose of mounting an attack on the deceased. He was wearing the shirt at the time of the incident and he had used the knife for the purpose of mounting an attack on the deceased. Both were found to be stained with human blood of 'A' group which is the same group as that of the deceased. It is true that the blood group of the accused is also' A' group. The accused, however, had not sustained bleeding injuries at the time of the incident. The certificate in respect of the injuries sustained by accused is at Exhibit- 12. He had sustained abrasions and contusions which are eleven in number. Hence, the blood stains found on his shirt and on the knife cannot be the blood of the accused. Hence, even though none of the aforesaid witnesses have not supported the prosecution in respect of the assault by the knife the above mentioned circumstantial evidence is sufficient to arrive at a finding that the accused had assaulted the deceased with a knife. 8. The question which survives for consideration is, what offence has the accused committed? The learned Judge of the trial Court has found that the accused is guilty of an offence punishable under Section 304 Part- I, I.P.C. I have considered all the facts of the case. I have considered the events which have immediately preceded the assault by the accused with the help of the knife. The accused has, no doubt, initiated the quarrel. He started giving abuses. This led to exchange of words. A scuffle ensued and there was exchange of blows. The deceased scratched the accused with his nails on his face and his neck. He went inside and brought a rubber pipe and assaulted the accused with the pipe. It is at this stage that the accused whipped out a knife and gave two blows of the knife on the deceased. One of the blows was serious and the deceased unfortunately succumbed to the injury. The incident was not premeditated, it was a sudden fight. It is, therefore, difficult to hold that the accused had the intention of causing death or of causing such bodily injuries as are likely to cause death However, when the accused assaulted the deceased with the knife, the accused will have to be attributed with the knowledge that his act was likely to cause death. It is, therefore, difficult to hold that the accused had the intention of causing death or of causing such bodily injuries as are likely to cause death However, when the accused assaulted the deceased with the knife, the accused will have to be attributed with the knowledge that his act was likely to cause death. 'Though he may not have had any intention to cause death or to cause such bodily injury as is likely to cause death, the accused shall be deemed to have caused such bodily injury as are likely to cause death. 9. This was a case of a sudden fight. There was no premeditation there was a scuffle between them. They exchanged abuses and blows. The deceased was an match. He scratched the accused. He went in, brought a rubber pipe and assaulted the accused. The accused had sustained several injuries. They are eleven" in number. The accused had a drink that cannot be a instigating circumstance the same may have added fuel to his wrath. The assault was-committed without premeditation, in a sudden fight, in the heat of passion and upon a sudden quarrel. In the circumstances, I am inclined to hold, on the facts and circumstances of the present case that no offence under Section 304 Part-I is made out but an offence under Section 304 Part-II is made good against the accused. In the circumstances, the order of conviction passed by the trial Court under Section 304 Part-I deserves to be set aside and the accused deserves to be acquitted of that charge. In its place, the accused is convicted under Section 304 Part-II of the Indian Penal Code. 10. At this stage, I have heard Shri Gore, the learned Advocate appearing for the appellant, as also Shri Patil, the learned Public Prosecutor, on the point of sentence. Shri Gore has submitted that at the time of the incident the accused was studying for his M. Com. examination. He has since completed his education and has started serving. He has also recently got married and his wife is now carrying. Her pregnancy is of five months. Apart from his wife, he has an old mother, who is a retired primary teacher, to look after. According to Shri Gore, a period of over seven years has gone by. examination. He has since completed his education and has started serving. He has also recently got married and his wife is now carrying. Her pregnancy is of five months. Apart from his wife, he has an old mother, who is a retired primary teacher, to look after. According to Shri Gore, a period of over seven years has gone by. Pending the trial and during the period after the impugned order of conviction and the a ailment of the bail granted during the present appeal the appellant has undergone a sentence of about three months. He prays that the accused should not be sent back to jail at this belated stage and the substantive sentence should be reduced to the one already undergone. 11. It is, no doubt true that the incident in question has resulted in causing the death of deceased Mininath. It is also true that the accused had initiated the quarrel. It, however, cannot be said that he was the sole aggressor. Mininath is seen to have risen to the occasion and has retaliated in equal measure. He has caused several injuries on the accused. He has scratched him with his nails both on his face and on his neck. He has brought out a rubber pipe and has assaulted him with it. It is at this stage that the accused was led to whip out a knife and give two stab blows with it on the person of the deceased. Having regard to all the aforesaid facts and circumstances of the case, in my view, no useful purpose is likely to be served by sending the accused back to jail. The learned Judge of the trial Court has imposed a substantial amount of fine against the accused. Out of the amount of fine an amount of Rs. 4,000/- is made payable to Nanyabai Walu Borade, the mother of the deceased. The learned Judge of the trial Court, however, has imposed a default sentence of a period of five years. The maximum penalty permissible for an offence under Section 304 Part-II, I.P.C., for which the accused is found guilty, is a sentence of ten years. The sentence in default of payment of fine can, therefore, at the highest be 21/2 years. 12. For the foregoing reasons, the appeal partly succeeds. The maximum penalty permissible for an offence under Section 304 Part-II, I.P.C., for which the accused is found guilty, is a sentence of ten years. The sentence in default of payment of fine can, therefore, at the highest be 21/2 years. 12. For the foregoing reasons, the appeal partly succeeds. The impugned order, passed on the 27th of January, 1987 by the learned Additional Sessions Judge, Nasik in Sessions Case No. 209 of 1986, convicting the accused under Section 304 Part-I and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 5,000/-, in default to suffer further rigorous imprison for five years is quashed and set aside. The accused is now convicted under Section 304 Part II of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for the term he has already undergone. In addition he shall pay a fine of Rs. 5,000/-, in default he shall suffer further rigorous imprisonment for 21/2 years. As directed by the trial Court, out of the sum of Rs. 5,000/-, if recovered, a sum of Rs. 4,000/- shall be paid over to Nanyabai W/o Walu Borade, who is the mother of the deceased Mininath Waly Borade. The accused is granted time of two months to pay the fine. On his paying the fine within the aforesaid period his bail bonds shall stand cancelled. In default of payment of fine within the said period, he shall surrender to his bail for the purpose of suffering the in-default sentence of rigorous imprisonment for 21/2 years. Appeal is partly allowed. Appeal partly allowed.