JUDGMENT M.B. Ghodeswar, J- Appellant Kailash has challenged the judgment and order passed by 3rd Additional, Sessions Judge, Amravati dated 16-9-1993 in Sessions Trial No. 194/91 for his conviction and sentence for the offence punishable under Section 302 of Indian Penal Code. 2. The incident in this case has taken place on 15-7-1991 at about 7 P.M. in Belpura locality of Amravati City. The deceased Harinarayan Chomale was sitting on a chair in his courtyard and ladies of the locality were fetching water from a public tap, which is 25 or 30 feet away from his house. Kasturibai (P.W. 1) wife of deceased had also gone to fetch water. The prosecution case is that when the mother of appellant-accused No.1 Kailash Nanna alias Radhabai was going to fetch water from public tap, the deceased gave her abuses "Chhinal Pani Bharde" The appellant was flying kite at a distance of 250 to 300 feet away from the spot and on being informed about the quarrel between his mother and deceased. He came to the spot enquired from his mother and also from deceased told the deceased that he would show him the way went to his house, brought spear and dealt a blow of spear on the chest of deceased. The blow was so forceful that accused could not withdraw the weapon easily and the accused and deceased went in the courtyard of adjacent house of Shankar where deceased fell on the cot. The wife of deceased Smt. Kasturibai (P.W. 1) went to Police Station, Rajapeth and lodged her oral report. Meanwhile the deceased was taken to General Hospital where he was declared dead. 3. The prosecution has examined the wife of deceased Kasturibai (P.W. 1) Shankar (P.W. 2) as eye-witnesses and Jummi (P.W. 3) on the point of extra judicial confession of the accused. There is one incised wound on the chest of the deceased and two abrasions. The Spot Panchanama (Ex. 16) shows that trail of blood was found from the house of deceased to the house of Shankar, Kasturibai (P.W. 1) and Shankar (P.W. 2) have narrated the incident of stabbing. The deceased and accused belongs to the same community. They were having cordial relations. There was no enmity between them. The accused was addressing the deceased as "Bade Bap" and his mother original accused No.2 Nanna @ Radhabai was addressing the deceased as "Jethji". The deceased and accused belongs to the same community. They were having cordial relations. There was no enmity between them. The accused was addressing the deceased as "Bade Bap" and his mother original accused No.2 Nanna @ Radhabai was addressing the deceased as "Jethji". Deceased was held in reverence by both the accused. The defence has given suggestions that deceased was armed with axe though Kasturibai (P.W. 1) denied. Shankar (P.W. 2) has admitted this suggestion. The defence as is stated by accused in his statement under Section 313 of Criminal Procedure Code is as under: "Hari was abusing my mother. Thereafter I went to question Hari. Hari brought axe from his house. Therefore, I went to my house and brought the spear for my self defence. Thereafter there was scuffle between us. We fell on cot. I then left the spot. " On the basis of the evidence and material, the learned trial Judge has believed the prosecution evidence rejected the private defence by accused and the defence of sudden quarrel and recorded a finding of conviction for the offence punishable under Section 302 of Indian Penal Code. 4. The learned counsel for the appellant Shri Daga has not disputed the prosecution evidence of Kasturibai (P.W. 1) Shankar (P.W. 2) and Jummi (P.W. 3) in so far as the presence of appellant-accused with spear and the blow caused by spear to deceased. Even the cause of death is also not disputed. The submission of the learned counsel for the appellant is that looking to the circumstances of the case, the offence under Section 302 Indian Penal Code is not made out and though he did not press the right of private defence, according to him, Exception 4 to Section 300 of Indian Penal Code is attracted. The learned Additional Public Prosecutor has supported the judgment of the trial Judge. 5. The circumstances appearing in this case are as under: (i) The appellant-accused is a young boy of 19 years. (ii) Cordial relations between deceased and accused. (iii) No previous enmity. (iv) No motive. (v) No premeditation. (vi) No planning to kill the deceased. The learned Additional Public Prosecutor has supported the judgment of the trial Judge. 5. The circumstances appearing in this case are as under: (i) The appellant-accused is a young boy of 19 years. (ii) Cordial relations between deceased and accused. (iii) No previous enmity. (iv) No motive. (v) No premeditation. (vi) No planning to kill the deceased. 6 Addressing in filthy language by deceased over the tap water to Kasturibai (P.W. 1) is taken as abuse to herself by accused No.2 Though Kasturibai (P.W. 1) the wife of deceased says that the deceased addressed to her, in the community of deceased and accused giving abuse of such a nature is normal and is not taken as an offence and an offending act. But the use of this abuse hurled at the mother of Accused No.1. he being the son, must have taken it as an offence and an offending act and it is also in the evidence admitted by Kasturibai (P.W. 1) that accused was annoyed. The deceased was aged 50 years. Though Kasturibai (P.W 1) denies the deceased having axe at the time of incident, Shankar (P.W 2) has admitted it and he is not declared hostile. There is, therefore, no reason to disbelieve Shankar (P.W. 2). Even Jummi (P.W. 3) also speaks about the extra judicial confession of accused during which reference to axe with deceased was specifically mentioned. It is a fact that deceased has not used the weapon axe or he had no occasion to use it. Accused is not having any injury though he was arrested on the next day. Shankar (P.W. 2) has stated that deceased was under the influence of alcohol at the time of incident. Though Shankar (P.W. 2) has stated that deceased Hari was under the influence of liquor, traces of alcohol are not detected in the post mortem report or in the viscera report. The internal injuries to Hari deceased are corresponding to the external stab injuries. The death is caused by a single blow From the evidence. Though Shankar (P.W. 2) has stated that deceased Hari was under the influence of liquor, traces of alcohol are not detected in the post mortem report or in the viscera report. The internal injuries to Hari deceased are corresponding to the external stab injuries. The death is caused by a single blow From the evidence. it is clear that accused has dealt a blow of spear to deceased when he was in his courtyard and as the accused tried to withdraw the weapon, he could not withdraw it easily, and therefore, the deceased was dragged by the accused to the court yard of Shankar, Kasturibai (P.W. 1) has described this act as accused and deceased had gone to the courtyard of Shankar quarreling (as deposed to in para 9 of her deposition in marathi version) There is no satisfactory evidence regarding scuffle between the deceased and accused when deceased was being dragged to the courtyard of Shankar It is clear from the evidence that both the deceased and the accused were armed with weapons - deceased with axe and accused with spear when the actual incident of stabbing had taken place. 7. The learned counsel for the appellant has relied on the decisions reported in Randhir Singh v. State of Punjab1 and ldandas v. Anant Ramchadra2. The learned trial Judge has also referred to the decision reported in Jagtar Singh v. State of Punjab3. but distinguishes on the facts of the case. Considering the circumstances of this case a singles blow of spear resulting in to the death of deceased. Exception 4 of Section 300 is attracted. The finding recorded by the learned trial Judge on the offence of conviction and sentence recorded by the trial Judge under Section 302 of Indian Penal Code is not justified and hence the conviction and sentence for the offence punishable under Section 302 of Indian Penal Code has to be set aside. 8. In the result the appeal is partly allowed. The conviction and sentence under Section 302 Indian Penal Code is quashed and set aside and instead of the appellant-accused is convicted for the offence punishable under Section 304 Part II of Indian Penal Code and sentenced to suffer R.I. for seven years. Appeal allowed partly. 1. A.I.R. 1982 S.C. 55. 2. A.I.R. 1982 S.C. 126. 3. 1983 Cr. L .J. 852.