ORDER Leave granted. Aggrieved and dissatisfied by the judgment and order dated 16th July, 1998 passed by the High Court of Bombay Bench at Goa in Criminal Appeal No. 29 of 1996 confirming the judgment and order passed by the Sessions Judge, South Goa, Margao convicting the appellant for the offence punishable under Section 302, the appellant has filed this appeal by special leave. 2. The learned Counsel for the appellant submitted that considering the fact as stated by the prosecution witnesses the High Court committed an apparent error on record in confirming the conviction of the appellant for the offence punishable under Section 302. He contended that on the facts as they are on record at the most the appellant could be convicted for the offence punishable under Section 304, Part I, IPC. 3. It is the prosecution version that on 6th December, 1993 between 7.45 p.m. and 8.30 p.m. the accused committed the murder of Lalit (deceased) by giving him knife blows. For this purpose the prosecution has relied upon the evidence of the wife of the deceased Smt. Kuku (PW 11). It is her say before the Court that accused and deceased were friends and they were staying at the house of the accused at Gudi, at Goa. The said house consisted of only one big room which was partitioned by placing wooden cup-boards. They were residing together since October, 1993. It is her say that when they were staying at the house of the accused her husband and accused used to drink daily and also used to quarrel with each other. The accused used to praise and embrace her in presence of her husband. Because of this there were quarrels and her husband used to fight with the accused. As accused continued to behave in that manner for about one month they decided to leave Goa. On the day of the incident i.e. 6th December, 1993 her husband and the accused were drinking from the morning and also quarrelling with each other. At about 4.00 p.m. they came back and at about 7.30 p.m. when she was preparing dinner, the accused and her husband were sitting in a room and her children were packing their belongings. It is her say that the accused was angry because they were leaving his house. At about 4.00 p.m. they came back and at about 7.30 p.m. when she was preparing dinner, the accused and her husband were sitting in a room and her children were packing their belongings. It is her say that the accused was angry because they were leaving his house. During the quarrel the accused came in the kitchen, picked up a knife and stabbed her husband repeatedly. It is her say that when the accused stabbed her husband, both of them were standing face-to-face and exchanging words and quarrelling with each other. She tried to separate but could not succeed. Thereafter, the FIR was lodged by her at the police station. In cross-examination she has admitted that accused and the deceased had drunk and were fighting for the whole day and the deceased was fully under the influence of alcohol. She has denied the allegation that she was having illicit relations with the accused. The prosecution has also relied upon PW 12 Sonia, the daughter of the deceased. She has also stated that at about 7.45 p.m. to 8.00 p.m. her mother was busy in cooking while the deceased and the accused were drinking and quarrelling with each other. After they stopped quarrelling the accused and the deceased had a fight, in the meanwhile the accused went in the kitchen and brought a knife and stabbed the deceased. In the cross-examination she has admitted that her father was assaulting the accused on the day of incident because the accused was interfering with her mother. She has also stated that her father was a good fighter and an expert in Martial Art and was a holder of Brown Belt in Karate . As per the scene of offence Panchnama there was a blood soaked shirt and blue coloured pant on the deceased and a knife with black handle close to the dead body was found. It is also mentioned that one orange coloured handle was also seen below the waist belt of the deceased and that within the area of about two sq. feet there were marks of scuffle and fight and movement on the ground. 4. From the evidence as stated above it is clear that there was a quarrel and fight between the deceased and the accused. Both of them were drunk. Deceased was also having a knife which was found at the Scene of Offence. feet there were marks of scuffle and fight and movement on the ground. 4. From the evidence as stated above it is clear that there was a quarrel and fight between the deceased and the accused. Both of them were drunk. Deceased was also having a knife which was found at the Scene of Offence. On his person, one knife with orange plastic handle was also found below the waist belt. As admitted by the witness, deceased was expert in Martial Art and was a fighter. Accused was also having injuries. No doubt, the injuries were minor. Reason for the quarrel and fight is not properly disclosed by the prosecution witnesses. But in this set of circumstances the accused cannot be convicted for the offence punishable under Section 302. His case would be covered by Exception 2 and Exception 4 of Section 300, IPC. As stated above the accused and the deceased were fighting so the accused was having the right of private defence of his person. Presuming that accused has exceeded his right of private defence he could at the most be convicted under Section 304, Part I, IPC. Similarly, he was also entitled to get the benefit of Exception 4 because the incident was without pre-meditation, in the heat of passion, on sudden quarrel and that accused has not taken any undue advantage of the situation. 5. In this view of the matter, in our view, the conviction of the appellant - accused for the offence punishable under Section 302, IPC requires to be set aside and he is convicted for the offence punishable under Section 304, Part I, IPC and is sentenced to suffer rigorous imprisonment for ten years and a fine of Rs. 500/-. In default of payment of fine the appellant is to suffer one month s rigorous imprisonment. The appeal is disposed of in the above terms. Appeal allowed partly. ************** Parallel Citations of other Journals : Inacio Manuel Miranda v. State of Goa, 2001(5) Supreme 544 : 2001 (3) Crimes 453 : 2001 (2) CCR 14 : 2001 (1) JCC 288 00024