JUDGMENT 1. 1. The accused appellant Jagdish has been convicted for the offence under Section 302, IPC, and sentenced to imprisonment for life by the Additional Sessions Judge, Behror, by his judgment dated the 29th September, 1992. A fine of Rs. 2,000/- has also been imposed and in default of payment of fine, he has to undergo rigorous imprisonment for one year. He has further been convicted for the offence under Section 323, IPC, and sentenced to three months rigorous imprisonment and a fine of Rs. 250/- in default thereof, the has to undergo one month's simple imprisonment. Against this conviction and sentence the appellant has preferred this appeal. The appellant Jagdish and Surajbhan (deceased) were real brothers. The informant Hari Singh (PW 1) is third brother. They have their houses nearby. It so happened that on 26th March, 1989, Chidiya (PW 6) daughter of deceased, Surajbhan, went to fetch fodder (kutti) and the appellant Jagdish abused her. She came to her house and reported the matter upon which Surajbhan (deceased), Smt. Mohrli (PW 7) (mother of Surajbhan deceased) went to the appellant Jagdish to object to his conduct and at that time, around 8 p.m. Jagdish with intention of causing the death of Surajbhan inflicted a knife blow in his ribs. Mohrli (PW 7) tried to intervene and an injury was inflicted on her head, also. The neighbours, Sher Singh and Rohitash, witnessed the incident and their names have also given out in the first information report which was lodged by Hari Singh (PW 1). 2. Soon after the incident, Surajbhan & Mohrli were taken to the Referral Hospital, Behror, and Dr. Kamal Goyal on telephone informed the police station that Mohrli had been brought in an injured condition and Surajbhan had been brought dead who had a knife injury. This report was entered in the rojnamcha and the police proceeded to the hospital. A report (Ex. P. 1) by Harisingh was subsequently lodged. On postmortem examination on the body of the deceased, Surajbhan, it was found that he had a penetrating wound of 2 & 1/4 cm x 1 cm connecting .with through thorasic cavity to abdomen on left lateral chest wall at 9th & 10th ribs in mid axillary line 21 cm below axilla and it was oblique in direction. Spleen was found ruptured and capsule was cut. Spleen was found ruptured and capsule was cut. The doctor gave his report that the deceased died due to shock resulting from excessive internal haemorrhage from spleen and in ordinary course of nature, this was sufficient to cause death. 3. Relying upon the testimony of the witnesses who had seen the incident, the learned trial Judge convicted the appellant under Section 302, IPC, for causing death of Surajbhan and under Section 323, IPC for causing injury to Mohrli. 4. In this appeal preferred by the appellant, the learned amicus curiae has first of all tried to make out a case that the deceased died due to the rupture of spleen and the cut injury was inflicted after his death in order to implicate the accused. The basis of this argument is that post mortem report (Ex. P. 7) does not state that the injury of the deceased Surajbhan was ante mortem. Merely because, the post morten report is silent as to whether the injury stated in the report was ante mortem or not, the appellant could not be entitled to take benefit out of it, specially when Dr. B.D. Gupta (PW 11) in his statement before the Court said that the injury was ante mortem. It can also be said that copy of Rojnamcha (Ex. P. 12) states that Dr. Kamal Goyal on telephone informed that Surajbhan was brought as dead who had a knife wound. In such circumstances, it cannot be said that the injury of Surajbhan was post mortem. 5. Looking to the evidence in the case, the learned counsel for the appellant has argued that the offence would not travel beyond Section 304, Part II, IPC. In support of this contention, it has been pointed out that the incident occurred in front of the house of the accused where Surajbhan (deceased) and others came with the intention of attacking him and in the incident the accused had also sustained injuries as described in report (Ex. D.6) which are as many as 11 in number including swelling, abrasions, bruises and lacerated wounds. The learned counsel then contended that when the complainant party came and inflicted injury on the person of the accused, he in his defence caused a single injury to the deceased, Surajbhan, without intention to cause death and it was by chance that the spleen was ruptured resulting into death of the deceased. The learned counsel then contended that when the complainant party came and inflicted injury on the person of the accused, he in his defence caused a single injury to the deceased, Surajbhan, without intention to cause death and it was by chance that the spleen was ruptured resulting into death of the deceased. According to the learned counsel, the accused had a right of self defence and that he acted in exercise of the right of his self defence and that being so the offence under Section 302, IPC, would not be made out. In the same context, it has also been contended that the deceased Surajbhan had a single injury at a time when there was a sudden quarrel on the spur of moment and in the heat of passion, the blow was inflicted and for this reason also, the offence would travel beyond Section 304, Part II, IPC and the offence under Section 302 IPC would not be made out. 6. The learned Public Prosecutor, on the other hand, has contended that the accused inflicted a blow on Mohrli also and this injury was caused when the accused was trying to hit Surajbhan for second time. However, the injury of Mohrli is by a blunt weapon and the accused could not have inflicted this injury when the injury of Surajbhan is alleged to have been caused by a sharp weapon. 7. We have examined the evidence in the case and all other material placed on record. All the prosecution witness have admitted that they had gone to the appellant to rebuke him after the accused had abused the daughter (PW 6) of deceased Surajbhan when she went to fetch fodder. It was the complainant party who had gone to the accused and it was not the other way around. The prosecution witnesses have not explained the injuries which were found on the person of the accused. In such circumstances, it can be accepted that the accused had also sustained injuries in the same incident. There was no pre-plan on the part of the accused and the incident occurred upon a sudden quarrel in the heat of passion and on the spur of moment. This would take the case out of Section 300 IPC, and would fall under the Exception of Section 300, IPC. There was no pre-plan on the part of the accused and the incident occurred upon a sudden quarrel in the heat of passion and on the spur of moment. This would take the case out of Section 300 IPC, and would fall under the Exception of Section 300, IPC. It has been seen that the accused did not have any intention to cause death of Surajbhan. Looking to the fact that the accused inflicted a knife blow, it can be said that he had the knowledge that the injury is likely to cause death and, therefore, his act would fall under Section 304, Part II, IPC. 8. As regards the conviction & sentence for offence under Section 323, IPC, after having examined the evidence on record in the facts and circumstances of the case, we find no illegality in the findings arrived at by the learned trial Court. We affirm the same. 9. In the result, this appeal is partly allowed. The conviction & sentence for offence under Section 302, IPC, are set aside but the appellant is convicted under Section 304, Part II, IPC. As regards sentence for conviction under section 304 Part II, IPC, the appellant has remained in jail for over six years and this period of sentence already undergone by him is sufficient for the conviction ordered by us, hereinabove. For this offence, the appellant is sentenced for the period already undergone by him. The appellant is in jail and he is ordered to be released forthwith from jail, if not required in any other case. The sentence for the offence under Section 323, IPC, shall be deemed to have been included in the above sentence.Appeal Partly Allowed. *******