Judgment :- M.Thanikachalam, J. The accused in S.C.No.84/95 on the file of the Sessions Judge, Kamarajar District at Srivilliputhur, who sustained a conviction and sentence of life imprisonment, for the offence under Section 302 I.P.C., is the appellant. 2. The respondent/complainant had filed a final report against the accused/appellant, arraying him as A1 and two others, seeking appropriate punishment under Sections 302 and 302 r/w 34 I.P.C. respectively, alleging that on 11.3.1994 at about 6.30 p.m., all the accused had wrongfully restrained one Gurusamy and the first accused with an intention to commit murder of Gurusamy, which was shared by other two accused, stabbed him over the upper portion of the right hand, which caused his death and therefore, the first accused should be dealt with under Section 302 I.P.C., whereas accused 2 & 3 have to be dealt with under Sections 302 r/w 34 I.P.C. 3. The learned trial Judge, after going through the materials placed before him, ascertaining a prima facie case, framed charges against the first accused under Section 302 I.P.C. and against A2 and A3 for the offence under Section 302 r/w 34 I.P.C. All the accused, despite the assertion by the prosecution, refused to plead guilty disputing the entire case. 4. On behalf of the prosecution, to prove the offence, eight witnesses have been examined seeking aid from 14 documents, as well as 10 material objects. The learned trial Judge, while evaluating the above materials, came to the conclusion, that no offence is made out as far as A2 & A3 are concerned, but at the same time, he came to the positive conclusion, that the evidence adduced on behalf of the prosecution, had established the guilt of the first accused alone, that too under Section 302 I.P.C. In this view, acquitting A2 and A3, the learned trial Judge had convicted the first accused alone, as aforementioned, which is under challenge. 5. The prosecution case, leading to the acquittal of A2 and A3 and leading to the conviction of A1, are in brief as follows: (a) The first accused/appellant and the third accused Kottaiyammal are the husband and wife. The second accused is known to accused 1 & 3. The first accused approached the husband of P.W.1, viz. Gurusamy, for the purchase of a pig and its price was fixed at Rs.340/-. The second accused is known to accused 1 & 3. The first accused approached the husband of P.W.1, viz. Gurusamy, for the purchase of a pig and its price was fixed at Rs.340/-. Gurusamy also received a sum of Rs.50/- from A1 as advance, agreeing to hand over the pig at later point of time. The subject matter of the sale viz., the pig, escaped from the custody of Gurusamy and therefore, Gurusamy was unable to perform his promise. Because of this, the first accused demanded return of the advance from Gurusamy, for which Gurusamy said that he had spent a sum of Rs.100/-, for the search of the pig and therefore, it was not possible for him, to return the advance amount. Because of the refusal by Gurusamy to return the amount, there was a wordy altercation between the first accused and Gurusamy and at that time A2 and A3 were also present. While the scuffle was going on, Gurusamy assaulted Kottaiyammal-A3, which was noticed by A1. Immediately, while A2 and A3 caught hold of Gurusamy, A1 stabbed Gurusamy over the upper portion of right hand, causing stabbing injuries and thereafter, escaped from the scene of crime. (b) This incident was witnessed by the daughter of P.W.1 viz., P.W.2. P.W.1, in order to save her husband took him to the hospital, where Gurusamy was declared dead, by the doctor. Thereafter, P.W.1 went to police, informed the incident, which was reduced into writing by P.W.7 as Ex.P.1 and on which basis, a case was registered under Sections 341, 323 and 302 I.P.C. in Cr.No.128/94, for which a printed F.I.R., Ex.P.12 was submitted to the court concerned. (c) On receipt of the copy of the F.I.R., on 11.3.1994 at about 8.30 p.m. or so, P.W.8 went to the scene of crime, prepared observation mahazar, sketch and examined the witnesses, recorded their statements, in addition recovered M.Os.5 and 6. Thereafter, he conducted inquest and prepared inquest report, Ex.P.13. (d) At the request of the investigating officer, the doctor, P.W.4 conducted autopsy and issued Ex.P.7, postmortem certificate, incorporating the injuries, as well as the reasons, for the death of Gurusamy. According to the doctor, Gurusamy died due to shock and hemorrhage caused by the stab injuries, which caused damage to brachial artery. (e) In continuation of the investigation, P.W.8 arrested A3 and on her confession, M.O.3 was recovered. According to the doctor, Gurusamy died due to shock and hemorrhage caused by the stab injuries, which caused damage to brachial artery. (e) In continuation of the investigation, P.W.8 arrested A3 and on her confession, M.O.3 was recovered. The investigation also revealed that A3 was also injured for that she was sent for medical examination. The entire investigation, starting to end, brought to surface that all the accused were responsible, for the death of Gurusamy and in this view, a final report was filed, leading to trial, ending in conviction, as far as A1 alone is concerned, as aforementioned, which is under challenge before us. 6. Heard the learned Senior Counsel Mr.V.Gopinath, appearing for the appellant and the learned Additional Public Prosecutor. 7. The learned senior counsel Mr. V. Gopinath appearing for the accused/appellant, submits that the first accused was constrained to attack the deceased, in order to save the life of his wife viz., A3 and this act would come within the meaning of private defence and therefore, the same is not an offence, according to Section 96 of the Indian Penal Code. He has therefore submitted, that in any event, even assuming that the accused had exceeded the right of private defence, the act done by the accused certainly would not attract Section 302 I.P.C. and if at all, the same will come within the ambit of Section 304 I.P.C. and therefore, the conviction should be modified, reducing the sentence under Section 304 I.P.C. 8. Per contra, the learned Additional Public Prosecutor would submit, that the right of private defence is not available to the accused/appellant under the facts and circumstances of the case and in addition, he is also not entitled to be dealt with under Section 304 I.P.C., since the offence is committed with an intention to commit the same. In order to appreciate the rival contentions of the parties, we have to see, under what circumstances, the incident had taken place and what are the roles played by accused and what were the acts done by the deceased. 9. The acquittal of A2 and A3 is not challenged by the prosecution. It is also not the case of the appellant/accused, that he had not involved in this incident and therefore, he should be relieved totally. 9. The acquittal of A2 and A3 is not challenged by the prosecution. It is also not the case of the appellant/accused, that he had not involved in this incident and therefore, he should be relieved totally. He admits that he had stabbed the deceased, in order to save the life of his wife, who was the target of the deceased, at the time of the incident. During the examination of the accused/appellant, under Section 313 Cr.P.C., he had also filed a written statement under Section 233 Cr.P.C. more or less admitting the prosecution case, except the intention to commit murder. The transaction for the purchase of the pig from the deceased, payment of advance of Rs.50/- by the accused, the deceased refusing to return the amount, claiming that he had spent more amount for the search of the pig, were all admitted in the written statement, which was spoken by P.Ws.1 & 2 also. Therefore, it is needless for us to labour upon the act committed by the accused viz., stabbing of the deceased. 10. The appellant/accused is a butcher by profession and therefore, he used to arm with the knife. That is why in the written statement, it is stated- @tha;j;jfuhW te;jJ jpObud;W vd; kidtpia joahy; gy mofs; moj;jhh;/ vd; kidtp bfhy;whnd vd;W rj;jk; nghl;lhh;/ mts; capiu fhg;ghw;w ehd; tHf;fk;nghy; frhg;g[ ntiyf;F cgnahfg;gLk; ehd; vg;bghGJk; koapy; itj;jpUf;Fk; fj;jpia vLj;J ,we;jth; vd; kidtpia moj;Jf;bfhz;oUf;Fk; nghJ xU Fj;J Fj;jpndd;/ mt;thW Fj;jhtpl;lhy; mth; vd; kidtpia bfhd;W ,Ug;ghh;/@ Thus, it is made clear that the first accused alone had stabbed the deceased. Therefore, we have to see, whether the act done by the accused amounts to private defence. Every person has a right, subject to certain restrictions, to defend his own body or body of any other person and in that case, if anything happens, it is not an offence. Since the accused/appellant had taken the right of private defence, it is for him to establish that he comes not only within the definition of Section 96 of I.P.C., but also under Section 100 I.P.C., since the act extended in causing the death of Gurusamy. 11. Since the accused/appellant had taken the right of private defence, it is for him to establish that he comes not only within the definition of Section 96 of I.P.C., but also under Section 100 I.P.C., since the act extended in causing the death of Gurusamy. 11. Under Section 100 I.P.C., the right of private defence of the body extends, if the assault said to have been committed by the offender, caused reasonable apprehension that death will be the consequence of such assault or grievous hurt will otherwise be the consequence of such assault. If at all, the accused appellant could claim protection under clause (1) & (2) of Section 100 I.P.C. alone and for that he must establish that there was reasonable apprehension in his mind, that his wife will receive grievous hurt or the assault would lead to the death of his wife. Though it is stated that A3 was assaulted by the deceased, no medical certificate is produced, informing the court, what kind of injuries were sustained by A3. As seen from the records, when A3 was examined under Section 313 Cr.P.C., she had not stated anything that she was the target of the deceased, aiming the life or the intention of the offender was to cause grievous hurt. Only the husband had the apprehension. There is nothing wrong, when the wife was assaulted by a third party, in the husband apprehending danger to the life of his wife, which may lead to death or grievous hurt. For that, the apprehension should be reasonable and to ascertain the reasonableness, some evidence must be available and the imaginary apprehension will not give protection, for a person to attack the offender, causing his death. If the medical certificate of A3 is produced by the accused, since he had taken the defence, it would be helpful, to ascertain the so called reasonable apprehension entertained by the accused/appellant, in order to commit murder of the offender viz., Gurusamy, claiming protection under Section 100 I.P.C. 12. The learned senior counsel Mr.V. Gopinath submits, that the non production of the medical certificate in this case, will not loom large, because there is ample evidence to show that A3 sustained injuries in the hands of the deceased. P.W.1, the wife of the deceased, during the cross examination would admit, that she was informed that Kottaiyammal sustained injuries. The learned senior counsel Mr.V. Gopinath submits, that the non production of the medical certificate in this case, will not loom large, because there is ample evidence to show that A3 sustained injuries in the hands of the deceased. P.W.1, the wife of the deceased, during the cross examination would admit, that she was informed that Kottaiyammal sustained injuries. When it was suggested to P.W.1, that the deceased assaulted A3 thrice, she denied the same, whereas had stated so, when she was examined by the investigating officer. It seems, P.W.2 had deposed to the investigating officer, that when the deceased attacked the second accused, A3 intervened and sustained injuries. Therefore, from the above evidence, it is not clear, whether the deceased had attacked A3, so as to say that there would have been apprehension in the mind of the accused husband that his wife will die or would receive grievous hurt, if he had not stabbed the deceased. In this view of the matter, we are of the considered opinion that the apprehension said to have been entertained by the accused and that he was compelled to exercise the right of private defence, in order to save his wife, could not be correct and only with an intention to assault the deceased, whether he had the intention to commit murder or not, he could have stabbed the deceased and certainly this act of the accused will not come within the meaning of Section 96 and 100 I.P.C. and therefore, we conclude, the accused is not entitled to the benefits of above said provisions and this defence is liable to be rejected. 13. The main thrust of the learned senior counsel, claiming benefits under Section 304 I.P.C., appears to be acceptable to us. Except the petty quarrel, which had arisen due to non return of Rs.50/-, which was paid as advance by A1 to the deceased, for the purchase of the pig, no other enmity of any kind is suggested. It is the duty of the deceased to sell the pig, since he had agreed to sell the same, for a specified amount and also received the advance. When the pig was not handed over, naturally A1 had demanded either the advance or the pig, for which the deceased was not amenable. It is the duty of the deceased to sell the pig, since he had agreed to sell the same, for a specified amount and also received the advance. When the pig was not handed over, naturally A1 had demanded either the advance or the pig, for which the deceased was not amenable. It seems, the deceased, instead of returning the petty amount of Rs.50/-, went to the extent of denying the same, claiming that he had spent more, for the search of the pig, for which A1 could not be the cause. Aggravated by the conduct of the deceased, a wordy altercation took place and as far as the above facts are concerned, we find no much dispute. 14. During the wordy altercation, as admitted by P.Ws.1 & 2 and as revealed by the investigation also, there was a scuffle between the accused party and P.W.1's party and in that scuffle, admittedly also, deceased Gurusamy slapped Kottaiyammal and in addition, it seems he had also assaulted her, with a stick thrice or so. Any prudent husband, would react naturally, if the wife was assaulted in his presence, unreasonably and in this way, the accused/ appellant reacted, but exceeding the limit, using the weapon. The accused, who he is a butcher by profession, armed with knife, at that time, had no intention to commit murder of the deceased Gurusamy and he would not have had the knowledge also that the injury which he is going to inflict will likely to cause the death of Gurusamy. Having the above in mind, we have to see, whether the act of the accused would come under Section 304 I.P.C. and if so, which part. 15. Exception 4 to Section 300 I.P.C. says culpable homicide is not murder, if it is committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. In our case there was a sudden fight, exchanging words also and while deceased had attacked A3 with stick, the accused deployed M.O.1 knife. This had happened, because of the fact, he is a butcher, armed with knife always, which is not seriously disputed. In our case there was a sudden fight, exchanging words also and while deceased had attacked A3 with stick, the accused deployed M.O.1 knife. This had happened, because of the fact, he is a butcher, armed with knife always, which is not seriously disputed. If the accused had been to elsewhere and brought the knife and then stabbed, we could say that there was some intention or he acted unusually, so as to exclude him from the purview of the exception 4 of Section 300 I.P.C. On the other hand, spontaneously, when he had seen that his wife was the target of the deceased, he acted and in that process, the weapon was available handy to him and therefore, unmindful of the consequences, he had stabbed the deceased, which could not be described as one, coming under the category, that the accused had taken undue advantage or acted in a cruel or unusual manner. 16. In Bhera vs. State of Rajasthan, (2000 SCC (Cri) 1230, the Apex Court has ruled, in a case where the accused and the deceased while quarreling, accused in anger suddenly bringing out a knife and giving blow on the chest of the deceased, which resulted his death, that it cannot be said that the accused gave the blow with the requisite intention of causing the murder of the deceased and in that view, concluded that the offence would be one under Section 304 (ii) I.P.C. More or less, the facts are similar to the facts of the case in our hand. 17. In Surinder Kumar v. Union Territory, Chandigarh, (1989 Crl.L.J. 883), the Apex Court has given a guideline under what circumstances, Exception 4 to Section 300 I.P.C. could be invoked and they are (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. In our case, admittedly there was a sudden fight, there was no premeditation and the act was also done in a heat of passion, aggravated by the conduct of the deceased viz. slapping of his wife. After all the accused had assaulted or stabbed the deceased once and thereafter, he had not repeated, which would in a way show that he had no intention to cause grievous hurt or the death of the deceased. slapping of his wife. After all the accused had assaulted or stabbed the deceased once and thereafter, he had not repeated, which would in a way show that he had no intention to cause grievous hurt or the death of the deceased. He was taken by the passion, because of the fact wife was assaulted by the deceased which was in his uppermost of the mind. Such an act of the accused, established in this case, would suggest that the accused had done this act with the knowledge that it is likely to cause death, but without any intention to cause death and in this view, the act comes under latter portion of 304 I.P.C. 18. For a petty sum of Rs.50/-, which was paid as advance by the accused, when it was not returned, the incident had taken place. People belong to lower sector of the society, not cultured, do the act, according to the command of the situation and unmindful of the consequences and only in this way, the first accused acted, for that some leniency could be shown, at the same time, considering the gravity of the offence also. Under the facts and circumstances of the case, we are of the considered opinion, that the accused is liable to be convicted under Section 304 (ii) I.P.C. and not under Section 302 I.P.C., as did by the trial Court. In the result, the appeal is allowed in part. The conviction and sentence imposed in S.C.No.84 of 1995 dated 9.1.1996 on the file of the Principal Sessions Judge, Kamarajar District at Srivilliputhur, for the offence section 302 I.P.C. are set aside and the accused is found guilty under Section 304 (ii) I.P.C., directing him to undergo five years R.I., confirming the fine amount. The accused was released on bail on 19.2.1996. The accused is directed to surrender within 15 days from today, failing which the trial Court is directed to issue NBW to secure the accused, in order to serve out the remaining period of sentence.