Judgment NARESH H. PATIL, J.:- The appellant preferred this appeal against the judgment and order of conviction and sentence for the offence punishable under section 302 of Indian Penal Code. 1860 (for short "I.P.C.") delivered by learned Additional Sessions Judge, Basmathnagar, District Hingoli, in Sessions Case No.64 of 2004, on 15th October, 2005. Under the said judgment and order, the appellant was sentenced to suffer imprisonment for life and to pay fine of Rs.One Hundred, in default to suffer imprisonment for 15 days. 2. The factual matrix of the prosecution case in brief is as under: 3. The appellant and deceased Vithal Babarao Dhuldhule are residents of village Palasgaon, Taluqa Basmath, District Hingoli. The incident took place on 22-6-2004. Deceased Vithai was a barber by profession and was running a hair cutting saloon near Bus Stand at Palasgaon. One Prabhakar alias Balu Balaji Dakhore was sitting in the hair cutting saloon of deceased Vithal and was getting his shave done by the deceased. The shop accommodated one chair for the customer. 4. It is alleged that accused Maroti entered the shop asking Prabhakar for return of the spade. On that count, exchange of words was going on between accused and Prabhakar. Near the shop, a bench was kept outside the shop on which P.W.4 Maroti Kadam was sitting waiting for his turn as a customer. Deceased Vithal told the accused that they should settle their matter by going outside the shop. Some exchange of words took place between deceased and the accused and in the process, accused lifted the scissors lying on the table and gave two blows on the left side of chest portion of deceased Vithai who fell down after receiving the blows. It is alleged that P.W.2 Ganesh Kadam was a by-stander along with other persons, who provided water to the deceased and brought him in an auto rickshaw to Basmathnagar, which is stated to be at a distance of around 7 kilometres from Palasgaon. While on the way to Basmathnagar, the deceased Vithal succumbed to the injuries. 5. Police Station Officer, Basmath received a telephonic message that one person was assaulted near Palasgaon bus stand. P.W.8 Ramsingh Chiragiya, Police Sub Inspector, along with staff proceeded to Palasgaon and found that the accused was sitting on an iron cot in front of his house which was adjacent to barber's shop of deceased. 5. Police Station Officer, Basmath received a telephonic message that one person was assaulted near Palasgaon bus stand. P.W.8 Ramsingh Chiragiya, Police Sub Inspector, along with staff proceeded to Palasgaon and found that the accused was sitting on an iron cot in front of his house which was adjacent to barber's shop of deceased. Accused was taken in the custody and thereafter taken to the police station. The accused was referred for medical examination as he had sustained injury on his forehead. 6. The brother of deceased namely Baban Babarao (P.W.1) filed complaint (Exh.10) in Police Station, Basmath. Police Sub Inspector Shri. Baig reduced the same into writing and registered an offence vide Crime No.103 of 2004 for the offence punishable under section 302 of Indian Penal Code. 7. The investigation was handed over to P.W.8 P.S.I. Ramsingh Chiragiya, who conducted inquest panchanama (Exh.29). On the same day, the officer seized blood stained shirt of accused in presence of panchas. The seizure panchanama of shirt of the accused is at Exh.28. The spot panchanama is at Exh.27. The accused was arrested at 14.30 p.m. and the officer claims to have seized the clothes of accused along with scissors. The said seizure panchanama is at Exh.21. 8. On 22-6-2004 the Investigating Officer recorded statements of seven witnesses, issued letter to Chemical Analyser and sent the articles for analysis along with Police Constable Nilkanth Dandge (P.W.7). Post-mortem report (Exh. 19) was received from the Medical Officer. 9. Prosecution further alleges that during investigation, it was found that the accused had self inflicted injuries by the same scissors on his face and forehead and thereby attempted to commit suicide. Therefore, an offence punishable under section 309 of Indian Penal Code was registered against the accused on 23-6-2004. A Criminal Case against the said offence was said to be pending against the accused in the Court of Judicial Magistrate, First Class, Basmath, when the present Sessions Case was tried. 10. After completion of investigation, police filed charge-sheet and the case was committed to Sessions Court for trial. 11. The accused pleaded not guilty to the charge which was framed at Exh.2. The defence of the accused is that there was a scuffle between himself and the deceased, who was armed with a Vastara (razor) and in the scuffle the deceased suffered injuries. 11. The accused pleaded not guilty to the charge which was framed at Exh.2. The defence of the accused is that there was a scuffle between himself and the deceased, who was armed with a Vastara (razor) and in the scuffle the deceased suffered injuries. The defence of the accused in the trial Court was of total denial. 12. The learned counsel, Shri. Vijay Sharma, appearing for the appellant submitted that accused is a young person of 22 years who had no enmity with the deceased nor they had any previous quarrel on any count. The incident took place at the spur of moment. The accused/ appellant also suffered injuries. According to the counsel, from the circumstances itself it can be inferred that the accused must have acted in his self defence. According to the counsel, accused had no intention to kill the deceased. 13. We have gone through the evidence and the record and proceedings to appreciate the facts of the case and the evidence brought on record. From the evidence we find that the incident, which took place in the shop of deceased, could not be disputed, which resulted into death of deceased Vithal. We find that Vithal had a small barber's shop and the accused was immediate neighbour to the shop of deceased. The accused was asking for his spade from one customer namely Prabhakar Balaji Dakhore (P.W.3), who was sitting in the chair and getting his shave done from the deceased. As the accused was interfering in the work of deceased, it seems that, the deceased asked them to settle their issue outside the shop. At this juncture, the accused, who had already entered into the shop and had altercation with Prabhakar, started altercation with the deceased too. 14. P.W.1 Baban, the brother of deceased, who lodged the complaint (Exh.10), stated before the Court in his evidence that one Shivaji Dakhore informed him that his brother was assaulted and, therefore, he reached the spot. The persons gathered there informed him that the incident occurred in the fashion narrated by the prosecution. The moment his brother told the accused not to quarrel in the shop, the accused assaulted deceased with the help of scissors. The witness admits that there was no previous quarrel or enmity between accused and deceased. 15. The persons gathered there informed him that the incident occurred in the fashion narrated by the prosecution. The moment his brother told the accused not to quarrel in the shop, the accused assaulted deceased with the help of scissors. The witness admits that there was no previous quarrel or enmity between accused and deceased. 15. From the evidence of P.W.2 Ganesh Chanduji Kadam, who is an eye-witness to the incident and a by-stander, it could be ascertained that the incident did happen in the manner described by the prosecution witnesses. In his cross-examination, this witness stated that hearing the exchange of words and altercation going on between the accused and Prabhakar, their attention was also diverted to their talk and he witnessed the accused giving two blows on the person of deceased. The deceased Vithal was standing besides the chair of Prabhakar and the accused was quarrelling by entering into the shop. This witness denies that he saw any scuffle on the spot between the accused and deceased and the deceased suffered injuries during the scuffle. The witness further stated that there were no blood stains seen to the Vastara (razor) which was used by deceased while shaving Prabhakar. Some suggestions were put to this witness to the effect that there was a grudge against the accused who was an outsider and had developed some business in the village; but these suggestions were denied. The suggestion that the deceased gave two blows of Vastara (razor) on the person of accused was denied by this witness. These suggestions were given by the defence as the defence version is that the accused had also suffered injuries to the nose and forehead, which were bleeding injuries, and he was referred for medical examination. The suggestions were also given to the effect that these injuries were inflicted by the deceased and in self defence, the accused reacted by picking up scissors which was lying on the table and assaulted the deceased. 16. The evidence of P.W.3 Balu alias Prabhakar Balaji Dakore is of the person who was getting shave done by the deceased. Unfortunately, he did not support prosecution and was declared hostile. This witness stated that he had not seen whether accused inflicted injuries by scissors on the person of the deceased. But in substance, he has not denied the prosecution case except incident of assault by the accused on the deceased. 17. Unfortunately, he did not support prosecution and was declared hostile. This witness stated that he had not seen whether accused inflicted injuries by scissors on the person of the deceased. But in substance, he has not denied the prosecution case except incident of assault by the accused on the deceased. 17. P.W. No.4 Marati Purbhaji Kadam, who was a customer sitting on the bench outside the shop, has narrated before the Court the incident in the identical fashion in support of the prosecution case. He stated that there were exchange of words in the shop between accused and deceased and at that moment accused took scissors and gave two blows by the scissors on the body of Vithal on the left side of the chest. In the cross-examination, this witness stated that scuffle by catching hold of each other between accused and the deceased was going on which ended within 2 to 4 minutes resulting in deceased falling down on the ground. He had also seen blood on the face of accused Maroti. The witness volunteered before the Court that Maroti, the accused, had self inflicted injuries. 18. P.W. No.5 is Doctor Satish Tak, Medical Officer, who examined the deceased and declared him dead. He conducted postmortem during which he found following injuries on the person of deceased: (1) Stab injury on left hypochondrium below left sub costal margin piercing the abdominal wall and peritoneum passing in oblique direction having cut to spleen. Dimensions 1/2 cm. x deep to spleen. (2) Stab injury over left side of chest near sternum passing obliquely through chest wall through the pleura, piercing interior wall of the Heart. Dimensions 1/2 cm. x deep to Heart. According to Medical Officer, these injuries were ante mortem and he found injury to interior wall of the heart. There was contusion of peritoneum at the left hypochondrium and the peritoneum cavity contained near about 300 cc blood. The stomach contained semi digested food. In the opinion of Medical Officer, the death was caused due to cardia respiratory arrest due to the injury to heart. The post-mortem report is at Exh.19. According to Medical Officer, the injuries were possible by the scissors before the Court. The injuries were sufficient to cause death in the ordinary course of nature. The stomach contained semi digested food. In the opinion of Medical Officer, the death was caused due to cardia respiratory arrest due to the injury to heart. The post-mortem report is at Exh.19. According to Medical Officer, the injuries were possible by the scissors before the Court. The injuries were sufficient to cause death in the ordinary course of nature. In the cross-examination, the Medical Officer (P.W.5) stated that both the injuries were oblique in nature and the width of both the injuries was very identical. Distance between the two injuries was not more than 4 inches. If the assault was carried out by keeping the scissors open, both the injuries in a single stab are possible. 19. On behalf of defence it was tried to be suggested that it must not be an assault twice made by the accused but in one assault two injuries got inflicted on the person of the deceased. 20. pancha in seized. 21. P.W.7 is Police Constable Nilkanth Dandge who carried articles to the Chemical Analyser. 22. P.W.8 is the Investigating Officer PSI. Ramsingh Chiragiya. 23. The defence has criticized the recovery of scissors and, in the view of the counsel, it is stated that, during the personal search of accused nothing was found by the police but at a later point of time it was shown by the Investigating Officer that the accused was searched and a scissors was found in his pocket. This panchanama (Exh.21) was carried out at about 14.30 p.m.; whereas the incident took place at about 8.30 a.m. and soon thereafter accused was arrested by police. 24. Considering the submissions of learned counsel for accused and the evidence led by prosecution, we have no doubt that the incident took place in a small shop of the deceased in which the accused assaulted deceased with the help of scissors near chest region which blow was fatal. Accused was residing just adjacent to the shop of deceased. Though P.W.3 Balu @ Prabhakar Dakore, who was a customer sitting in the shop, getting his shave done, did not support the prosecution, but we do not find any difficulty to accept the evidence of P.W.2 Ganesh Kadam and P.W.4 Maroti Kadam, who were present at the time of occurrence of the incident. The evidence of Medical Officer (P.W.S) Dr. Tak has supported the prosecution case. The evidence of Medical Officer (P.W.S) Dr. Tak has supported the prosecution case. The injuries inflicted on P.W.6 Baliram Dauji Padole is the whose presence the scissors was the person of deceased were possible by the weapon like scissors. 25. The alternate defence theory propounded by the counsel is that the circumstances disclose that the accused had exercised his right of self defence when the deceased had inflicted injuries on his face and forehead. Though in the evidence of P.W.8, the Investigating Officer PSI Chiragiya stated that the accused had injury on his forehead, but the Investigating Officer termed it as a self inflicted injury and even proceeded to file a Criminal Case against the accused for the offence punishable under section 309 of Indian Penal Code. 26. The other prosecution witness P.W.4 Maroti Kadam had also stated that the blood was seen on the face of the accused but it was a self inflicted injury. 27. The accused was not examined by Medical Officer nor there is any other evidence on record to show that accused did receive injuries during the occurrence of the incident at the hands of deceased. The question, therefore, would be as to whether the accused was entitled to assault the deceased by exercising his right of private defence. It was submitted by counsel that the accused must have exceeded his right of private defence due to sudden provocation and humiliation meted out to him by the deceased. We are not convinced to accept this theory of defence. We reject the contention that the accused was entitled to exercise his right of private defence and assault the deceased in the manner described by the defence. 28. From the nature of occurrence of the incident, we find that there is nothing on record to suggest that the accused had any previous enmity with the deceased nor there was any previous incident indicating that the accused was harbouring grudge against the deceased and with an intention to take some revenge against the accused, he had entered the shop. In fact, the accused had some business to transact with P.W.3 Balu @ Prabhakar, who was a customer, the deceased asked both of them to settle the same by going outside the shop. In fact, the accused had some business to transact with P.W.3 Balu @ Prabhakar, who was a customer, the deceased asked both of them to settle the same by going outside the shop. Certainly, exchange of words took place between the accused and deceased and even if we accept the theory of defence that a sort of scuffle took place between both of them, still, we find that the situation was not such for the accused to lift the scissors lying on the table and give blows on the vital portion of the body of deceased. 29. It was tried to be shown that, in fact, there was one blow given on the person of deceased by the scissors. If the scissors is used in open condition, one blow by the accused would appear to have caused two injuries on the person of deceased as if two blows were inflicted. This argument was advanced on the basis that both the injuries mentioned in postmortem report (Exh.19) were oblique in nature. We have seen the scissors (Article No.6). We do not find that the theory suggested by the defence, on account of manner of assault with the aid of scissors, is convincing. The Medical Officer (P.W.S) had opined that the first injury was cut to spleen and its dimension was 1/2 cm. x deep to spleen. The other injury was of the dimension 1/2 cm. x deep to heart. Unfortunately, the Medical Officer did not give the exact dimensions of depth of these injuries, which was possible for the Medical Officer to give when post-mortem was conducted. 30. The defence submitted that the accused had absolutely no intention to kill the deceased, which could be gathered from the inception of incident, the manner of assault and the conduct of accused soon after the incident. We do find substance in the submissions on these lines advanced by counsel for the appellant/accused. 31. Per contra. the learned Additional Public Prosecutor submitted that taking into consideration the ratio laid down by the Apex Court in the case of Virsa Singh Vs. State of Punjab, AIR 1958 SC 465 : (2007 ALL SCR (O.C.C.) 33), the accused assaulted the deceased with intention to cause serious injury. He could not be presumed to have acted under sudden provocation. the learned Additional Public Prosecutor submitted that taking into consideration the ratio laid down by the Apex Court in the case of Virsa Singh Vs. State of Punjab, AIR 1958 SC 465 : (2007 ALL SCR (O.C.C.) 33), the accused assaulted the deceased with intention to cause serious injury. He could not be presumed to have acted under sudden provocation. The injuries were sufficient to cause death in the ordinary course of nature and even if it could be stated that the accused had no intention, he certainly had knowledge that by his act he would endanger the life of deceased and, in fact, due to the injuries, the deceased died. In the submission of the learned Additional Public Prosecutor, though motive may not play any relevant part in this case, but there was absolutely no provocation to the accused by the deceased to exercise his so called right of self defence or to cause any serious injury of this nature, which resulted in the death of deceased. 32. We find sufficient force in the submissions of learned A.P.P. and the argument deserves to be accepted in principle in the light of evidence on record. 33. In absence of any evidence of injury suffered by accused at the hands of deceased, the accused had no reason to inflict serious blows on the person of deceased. But taking into consideration the totality of facts and circumstances of the case, we find that there was no premeditation on the part of accused. He had no previous enmity or grudge against the deceased. He entered the shop to have interaction with the customer P.W.3 Balu. But as the same disturbed the deceased, who asked the accused and the customer Balu (P.W.3) to settle the same by going outside the shop, it seems that exchange of words took place and a sort of scuffle took place between accused and deceased on this count and during this, the accused assaulted deceased with the help of scissors on a vital portion of the body of deceased. The deceased fell down and on the way to Basmath died, which describes the seriousness of the injuries inflicted by accused. The he31t of deceased was found floating in the blood as the injury touched the interior wall of the heart. The deceased fell down and on the way to Basmath died, which describes the seriousness of the injuries inflicted by accused. The he31t of deceased was found floating in the blood as the injury touched the interior wall of the heart. We find that there was absolutely no reason for the accused to get agitated to this extent and assault the deceased. The conduct of deceased in asking the accused to settle his issue by going outside the shop was in no way sufficient cause to provoke the accused to assault the deceased. The question now is as to what offence the accused has committed in the eye of law and what would be the punishment which would be commensurate with the guilt of the accused. 34. The learned counsel for appellant/accused placed reliance on the following judgments: (1) Lakshmi Singh Vs. State of Bihar, 1976 Cr.L.J. 1736. It was observed that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. (2) Jai Dev Vs. State of Punjab, AIR 1963 SC 612 . In this case, the principles governing the right of private defence were enunciated. It was observed by the Apex Court that it was for the party pleading self defence to prove the circumstances giving rise to the exercise of the right of self defence, and this right could not be said to be proved as soon as the conclusion is reached that at the relevant time there was no threat either to the persons of the appellants or the persons or property of their companions. (3) Jawahar Lal Vs. State of Punjab, AIR 1983 SC 284 . The Apex Court converted the conviction under section 302 of Indian Penal Code into section 304. Part II of Indian Penal Code. In the said case the accused, the immature boy of 19 years age, had trivial quarrel with "A" and had given a solitary blow of knife to the deceased which fell on his chest. The accused had no malice against the deceased. He had no quarrel with the deceased. He did not make any attempt to give second blow to the deceased. The accused had no malice against the deceased. He had no quarrel with the deceased. He did not make any attempt to give second blow to the deceased. Since the accused could be attributed the knowledge that he was likely to cause an injury which was likely to cause death, the accused was convicted under section 304, Part II of Indian Penal Code and not under section 302 of Indian Penal Code. (4) Shivaji Ganu Naik Vs. State of Maharashtra, 1999 Cri.L.J. 471. The Division Bench of Bombay High Court observed that the right of private defence need not be specifically pleaded. Its benefit can be given to the accused if circumstances show that he may have acted in exercise of it. (5) Manoj Shivaji Trimukhe Vs. State of Maharashtra, 1996(2) Mh.L.J. 477 : 1997 Cri.L.J. 178 : [1996(2) All MR 333]. The Division Bench of Bombay High Court, on the facts of the case, set aside the conviction and sentence under section 302 of Indian Penal Code and convicted the appellant under section 304. Part II of Indian Penal Code and sentenced to 5 years rigorous imprisonment. (6) Babulal Vs. State of Rajasthan (Rajasthan High Court), 1977 Cri.L.J. 59. In this case the High Court had considered the effect of assault which was outcome of sudden quarrel with verbal altercation. In the heat of passion accused had given one piercing thrust with a pair of scissors in chest of deceased resulting in his death. The appellant therein was convicted under section 304, Part II of Indian Penal Code. 35. In the statement recorded under section 313 of the Code of Criminal Procedure, 1973 the accused gave answers to questions framed by the trial Court in the following manner: "Q, No. 17. It has further come in his evidence that he was sitting in the shaving chair in the shop of Vithal. Vithal was shaving his beard, What you have to say about it ? Ans. It is true. Q. No.18. It has further come in his evidence that you came in the shop of Vithal. What have you to say about it ? Ans. It is true. Q. No.19. It has further come in his evidence that you told him that he had brought you spade, but yet did not return. What have you to say about it? Ans. It is true. Q. No.22. What have you to say about it ? Ans. It is true. Q. No.19. It has further come in his evidence that you told him that he had brought you spade, but yet did not return. What have you to say about it? Ans. It is true. Q. No.22. It has come in his evidence that he told you that let finish the shaving the beard, he will return your spade. What you have to say about it ? Ans. It is true. Q. No.23. It has further come in his evidence that Vithal told you to come outside the shop. What you have to say about it? Ans. It is true. Q. No. 27. It has further come in his evidence that Vithal was touching his both hands near abdominal portion and was sitting on the Bench. What you have to say about it ? Ans. I do not know. Q. No. 34. It has further come in his evidence that Vithal told that you should go outside the shop and can do whatever you please. What you have to say about it ? Ans. It is true. Q. No. 67. Do you want to say anything more ? Ans. I have constructed the house. I was intending to start business. People in the village have damaged to articles in my house." 36. We find that the incident took place suddenly without premeditation. The accused inflicted two blows on the vital portion of the body of deceased. A life is lost due to the act of accused. He has to be held guilty. We, therefore, find that the accused had knowledge that by his act death would be likely result though he never intended to cause death of deceased. We are, therefore, of the considered opinion that the accused deserves to be held guilty and punished for an offence punishable under section 304, Part II of Indian Penal Code. 37. In the case of Mathu Vs. State, 2007 AIR SCW 6982, the Apex Court in the facts of the said case observed thus: "11. No doubt, even in the heat of the moment or fit of anger one should not attack somebody since human beings are different from animals inasmuch as they have the power of self-control. 37. In the case of Mathu Vs. State, 2007 AIR SCW 6982, the Apex Court in the facts of the said case observed thus: "11. No doubt, even in the heat of the moment or fit of anger one should not attack somebody since human beings are different from animals inasmuch as they have the power of self-control. Nevertheless, the fact remains that in the heat of the moment and in a fit of anger people sometimes do acts which may not have been done after premeditation. Hence the law provides that while those who commit acts in the heat of the moment or fit of anger should also be punished, their punishment should be lesser then that of premeditated offences. It is for this reason that Exceptions 1 and 4 have been inserted in section 300, Indian Penal Code." 38. In the facts of this case, we find that the appellant had absolutely no reason to get agitated to the severe extent of picking up the scissors lying on the table and assaulting the deceased by inflicting blows on vital portion of the body. The appellant ought to have known the consequences of his act. In the given set of facts and circumstances, though there was some exchange of words and a sort of quarrel but the situation was not such which would give excuse to the appellant to assault the deceased so severely that he had to succumb to the injuries. We, therefore, propose to award punishment to the appellant commensurate with his guilt. 39. In the result, the appeal is partly allowed. 40. The order of conviction and sentence awarded by the trial Court for the offence punishable under section 302 of Indian Penal Code is modified. Instead, we hold the appellant guilty for an offence punishable under section 304, Part II of Indian Penal Code and sentence the appellant to suffer rigorous imprisonment for seven years and to pay a fine of Rs.500/- (Rs.Five Hundred), in default to suffer simple imprisonment for fifteen days. 41. In case the appellant had deposited amount of fine earlier, then the same be adjusted towards the order of payment of fine amount. 42. Appellant is entitled to set off in accordance with the provisions of section 428 of the Code of Criminal Procedure, 1973. Appeal partly allowed.