JUDGMENT Ramesh, J. 1. This appeal is by the accused challen ging the order passed by the Prl. Sessions Judge, Mangalore in SC 53/2005 convic ting and sentencing the accused for the offence under S.304 Part II, IPC to under go rigorous imprisonment for ten years. 2. The accused had been charge sheeted for the offence under S.302, IPC alleging that on 26.5.2004 around 7.30 p.m. at Kavu CRC Colony at Madnoor Village in Puttur Taluk the deceased Namashivaya asked the accused not to take water from the tap. The accused with an intention to kill the deceased having removed the pen knife, stabbed Namashivaya on the left side of his chest and also on the left arm and caused bleeding injuries due to which Namashivaya succumbed to the injuries on his way to Puttur Government Hospital. Since the accused pleaded not guilty on framing of the charge, the trial was held. During trial the prosecution examined in all twelve witnesses and got marked about seventeen documents and five material objects. After hearing, while boiling down the offence from that of S.302 to S.304 Part II, IPC the learned Sessions Judge has sentenced the accused to undergo rigorous imprisonment for ten years. Hence, this appeal. 3. Heard the counsel for the appellant and the Government pleader. It is the submission of the appellant’s counsel that there is neither motive nor knowledge to commit the offence. As a matter of fact, when the accused had requested one Ibrahim in the area to let the water, the said Ibrahim had obliged the accused and again when the accused had gone to collect the water from the bore well in the evening, at that time, the deceased Namashivaya and his family members being the aggressors had tried to prevent the accused from collecting the water and there the scuffle took place and the deceased and his family members attempted to assault the accused, the deceased himself was holding a knife and in the scuffle the knife held by the deceased incidentally caused injury to the deceased himself for which the accused could neither be blamed or held responsible. It is further submitted that there is also no motive or intention to commit the offence and the accused had not expected any such untoward incident nor he went there with preparation by carrying any deadly weapon with him and accordingly submitted that the act of the deceased and his family members in attacking the accused by preventing him from collecting the water depicts that the accused is not the aggressor and rather, when the accused was prevented from collecting water and was attacked, while trying to ward of their assault, if any incident has taken place, the accused shall not be held responsible. It is also his argument that when three members including the deceased had tried to prevent the accused from collecting the water from the tap and in the scuffle when they tried to assault the accused, at that time in order to ward of any such act of the deceased and his family members, if any such incident has taken place, it would be a matter of private defence and even knowingly any such injury is caused, it cannot be treated in the circumstances as excessive of private defence to hold him guilty of the offence. If at all any such injury is sustained by the deceased, it has to be treated in furtherance of private defence such an incident might have occurred and there is no question of exceeding the limit of self defence as the deceased and his family members were three in all whereas the accused was alone. Accordingly, it is submitted that as a matter of private defence, the accused is entitled for acquittal and it is not a case of causing death with knowledge that the stabbing is likely to cause death. In support of his argument, learned counsel has relied on the decisions in the case of Shivappa Laxman Savadi vs State of Karnataka 1991 (3) KLJ 728 (DB), State of Karnataka vs Shivashankar 1978 (1) KLJ 197 (DB) and another decision of the Kerala High Court in Chacko Mathai vs State of Kerala AIR 1964 Kerala 222. Per contra, Government Pleader submitted that it is the accused who has assaulted from a knife on the chest of the deceased and there is specific evidence in this regard. Per contra, Government Pleader submitted that it is the accused who has assaulted from a knife on the chest of the deceased and there is specific evidence in this regard. Learned Sessions Judge noting that the scuffle has taken place and also having taken note of the fact that there is neither motive nor intention to commit murder but, there is likely knowledge that the act of the accused in assaulting on the chest of the deceased would result in death, having convicted the accused for the offence under S.304 Part II, IPC has rightly sentenced him to undergo rigorous imprisonment for ten years which does not require any interference. It is also submitted, it is neither a case of self defence nor it can be said that the deceased and others are the aggressors when there is cogent evidence on record and the learned Sessions Judge has not committed any error of illegality in convicting and sentencing the accused. 4. In the light of the arguments advanced, let me consider whether the impugned order of conviction and sentence passed by the Sessions Judge, Mangalore suffers from any illegality or error which requires interference; whether the overt act attributed against the accused falls under the category of private defence as is defined under S.97, IPC and, whether the impugned order of conviction and sentence requires interference. 5. At the outset it is seen as per the post-mortem report, the PW 7 - Doctor who conducted the autopsy has stated that on 27.5.2005 he conducted the post mortem on the body of Namashivaya who is aged about 55 years and noticed (i) incised (stab) wound measuring 2 x 1 cm on the left arm of midline of the chest, (ii) incised wound measuring 2 cm over left side of the chest just below the nipple entering into the thorax (iii) leaner abrasions three in number measuring 2 x 0.5 cm near the middle of the chest and (iv) incised wound measuring 3 x 1 cm over the upper left arm just skin deep. On dissection in the thorax, 1000 ml of blood was found present in the left sided hemothorax; laceration of left lung; penetrating wound on the right ventricle of the heart. The doctor has opined that the death was due to haemorragic shock due to injury to heart and lung. On dissection in the thorax, 1000 ml of blood was found present in the left sided hemothorax; laceration of left lung; penetrating wound on the right ventricle of the heart. The doctor has opined that the death was due to haemorragic shock due to injury to heart and lung. He has also given an opinion that MO 1- knife caused such injury found on the body of the deceased. Thus, the medical evidence is to the effect that the injuries are caused due to the assault by MO-1 and due to haemorragic shock due to injury to heart and lung, the death has occurred. 6. In so far as evidence of the witnesses regarding witnessing the incident is concerned, PW I - N.Ganesh is the complainant; PW 2 is one Shasikumar an independent eye witness to the incident who has turned hostile. PW 1 and 3 are brothers and eye witnesses to the incident. As per the evidence of PW 1, the place they are residing is a colony wherein about 26 families are residing nearby the scene of offence. He himself, his father Namashivaya and his brothers are staying in one of the houses in the colony. There is a common tap from which they collect water and it is connected to a bore well. Ibrahim being the owner of the colony had facilitated to provide water and he used to let water in the evening at about 7.00 p.m. and the residents of the colony used to collect two buckets of water and after all the family members collected water, more water could be collected if it was still let out. On the day of the incident on 26.5.2005 around 11.00 a.m. this PW 1 and his family members returned to their house after work. On that day, around 12.00 noon, the motor was started for letting the water and at that time, he himself along with his father went with buckets and by that time already five buckets were kept in the queue and the accused was found alone there and all the five buckets belonged to the accused and all the buckets were also filled. Thereafter, PW 1 and other members of his family kept the bucket under the tap, but by that time the water had stopped. Thereafter, PW 1 and other members of his family kept the bucket under the tap, but by that time the water had stopped. In the meanwhile, by the time the accused started filling his third bucket, complainant’s father started a quarrel stating that he should be given a chance to fill the water. However, according to the accused, since on his own request to Ibrahim, the water was let as such, he argued that he has got privilege to collect the water in all the buckets. However, after the quarrel, this accused as well as PW 1 and his father all went back to their houses. Subsequently, in the evening also PW 1 complainant, his brother and his father went to the tap and when they were collecting water, the accused also went there to collect the water from the tap and kept two buckets and other residents were also coming towards the tap. At that time, stating that already the accused had collected five buckets of water in the noon, and stating why he should collect the water, the father of PW 1 raised a quarrel and asked the accused to collect water only in the end after everybody has collected. In that context, the scuffle has taken place between the father of PW1 and accused and both of them were defending their contentions. He has stated further that during the quarrel, the accused took out a knife and caused injury to his father. The accused caused three injuries from the knife one after the other i.e., on the left shoulder below the arm pit and the chest of his father, who sustained bleeding injuries. By the time PW 1 went to separate the quarrel, accused had already caused injuries and ran away from the spot. His father fell down and PW 3 to 6 who were there have seen the verbal quarrel and also the scuffle that has taken place and assault through the knife by the accused. Since his father had sustained injuries, securing an autorickshaw nearby the house of Ibrahim, he was taken to Adarsha hospital and at that time, his father was not conscious and when they went to the hospital, his father was declared dead and then, they took the dead body to Government hospital in an ambulance and later, he gave a complaint in this regard. This is the version of PW 1. This is the version of PW 1. 7. What has been noted in his cross-examination is, they straight away took the injured to the hospital and did not go to the police station first nor did they make an attempt to intimate the police about the incident. What is further noticed is, normally Ibrahim used to let the water twice in a day - once in the morning and once in the evening and on that day since there was no electricity, the accused must have approached IbrahIm requesting to leave the water. In the lengthy cross-examination of this witness, it is noted that the scuffle took place between the deceased and the accused for about five minutes. What is also stated by him is, he did not make any attempt to catch hold of the accused at the time of scuffle and rather, he made an attempt to separate his father by holding him and pulling him back and that there were several persons present at time of the incident. 8. According to the version of the defence, when the deceased Namashivaya started quarreling with the accused, at that time PW 1 & 3 also joined in assaulting the accused and that the complainant’s father was holding a knife and from that itself the deceased sustained injuries and it is not as if the injury is caused by the accused. 9. PW 2 is also examined to the effect that he is an eye witness to the incident. Although he has spoken about the exchange of words and the quarrel between the accused and the deceased, what is stated by him is the deceased was having a knife in his hand. He has also stated while the incident has taken place, there was no electricity and as such, he could not see any injury caused by the accused to the deceased and he saw only the deceased had fell down. Since he has turned hostile, he was cross examined by the prosecutor to the effect that the deceased was not having any knife with him. 10. PW3-Rajendra is the brother of the complainant PW 1 and he has also spoken similarly as that of PW 1. Since he has turned hostile, he was cross examined by the prosecutor to the effect that the deceased was not having any knife with him. 10. PW3-Rajendra is the brother of the complainant PW 1 and he has also spoken similarly as that of PW 1. However, in his evidence what is being noticed is, on that day at the time of the alleged incident, his father told the accused that he had taken the water in the noon and he should allow others to take the water first to which the accused replied that if anyone comes in the middle obstructing him collecting water, he would kill them. At that time, his father was filling the water the accused came in the middle and pushed away his father, took out a knife and caused injuries to his left arm below the arm pit and on the chest, as such, his father fell down and the accused ran away from the spot. This is all PWs 1 & 3 who are complainant and his brother and children of the deceased have spoken to about the overt act of the accused in assaulting the deceased on the chest with a knife. 11. PW 4 is a pancha to the recovery of the knife and he has turned hostile. PW 5 also a pancha to the scene of offence panchanama has also turned hostile. Similarly, PW 6 pancha for the inquest has also turned hostile. PW 8 is a pancha for the recovery of knife at the instance of the accused as per EX.P3 and he has spoken about the same. PW 9 is the Station House Officer who registered the complaint and sent the FIR. PW 10 is one of the eye witnesses to the incident and he has turned hostile. PW 11 is a resident of the colony and a pancha to the scene of offence panchanama who has turned hostile. PW 12 is the Police Inspector who has conducted the investigation and laid the charge sheet. 12. The Sessions Judge after analysing the evidence on record, has noted that there is no ill-will between the accused and the deceased prior to the incident; the incident has happened in a spurt of quarrel between the deceased and the accused in connection with collecting of water from the tap. 12. The Sessions Judge after analysing the evidence on record, has noted that there is no ill-will between the accused and the deceased prior to the incident; the incident has happened in a spurt of quarrel between the deceased and the accused in connection with collecting of water from the tap. Stating that there is no pre-meditation to commit murder, noting that the injuries inflicted with a knife in the ordinary course is sufficient to cause death and also noting that the accused had no intention to stab the deceased, learned Sessions Judge has opined that it is a case of offence under S.304 Part II, IPC. The learned Sessions Judge has also relied upon the decision of the Division Bench of this Court reported in 1978(1) KLJ 197 and also the decision of the Kerala High Court in AIR 1960 KLT 362 as to the applicability of plea of private defence and also the decision reported in AIR 1964 Kerala 222 and the decision of the Supreme Court reported in 1970 (1) SCC 235 . Further, referring to another decision of the Apex Court reported in 1971 Crl.LJ 1057 to the effect that when the plea of right of self defence has to be accepted, it depends upon the facts and circumstances of the case, has opined that it is a case of causing death with the likelihood of knowledge without there being motive or intention and not a case of private defence, convicted and sentenced the accused under S.304 part II, IPC. 13. In the decision in the case of Shivappa Laxman Savadi, noted supra with reference to S.97, IPC, the Division Bench of this Court has noted, when a person realises that in all likelihood he is going to be physically harmed, then he can certainly spring into action and need not wait till the evil strikes i.e., the right of private defence arises the moment a person faces a threat of bodily harm or injury and such right having arisen in that situation continues till the threat or danger is warded off ...... it may extend even to the causing of death as enjoined by S.105 and 106, IPC. 14. it may extend even to the causing of death as enjoined by S.105 and 106, IPC. 14. In the decision in Shivashankar’s case cited supra, the Division Bench of this Court as to the right of private defence has held ‘while dealing with the question as to whether more force was used than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court room, long after the incident. The means which a threatened person adopted or the force which he used should not be weighed in golden scales’. Relying upon this decision, learned counsel representing the accused has argued that even assuming that there was injury caused to the deceased by a knife, there were three persons on their side i.e., the deceased, complainant and his brother at that time and when he used some force, that cannot be weighed in a golden scale to say that it exceeds the limit in warding of such a threat to protect himself from the aggressors and there is justification for such an act. 15. In Chacko Mathai’s case noted above, the Kerala High Court has observed that the accused was waylaid by two sturdy and determined persons to wreak vengeance at a time when visibility was poor. Two to one they tussled bitterly and the accused managed to use the knife when he apprehended death or grievous hurt. In the circumstances, it is rather difficult for the accused to measure exactly the stabs necessary to disengage the assailant from such act. In the instant case, as noticed, the death of the deceased was due to ante mortem injuries caused on such stabbing from the knife on the chest which resulted in causing injuries to the heart as well as to the lung. The contention of the appellant’s counsel is, the deceased had the knife with him which itself in the course of the scuffle, caused injuries to the deceased on his chest for which there is no supporting evidence or nothing worth is elicited in the cross examination of PWs 1 & 3. Might be they are interested witnesses being the children of the deceased but, the fact remains that as per their evidence, there is little exaggeration in the version of PWs 1 to 3 as to the overt act. Might be they are interested witnesses being the children of the deceased but, the fact remains that as per their evidence, there is little exaggeration in the version of PWs 1 to 3 as to the overt act. However, it is the argument of the counsel for the accused, the deceased and his two grown up children were very much there and they tried to attack the accused as such, the accused must have exercised private defence to protect himself. However, these PW s 1 & 3 have flatly denied certain of the suggestions made to them. It is probable when the deceased was quarreling these witnesses i.e., the complainant and his brother PW 3 would also have joined the deceased in the quarrel that ensued between the deceased and the accused in the first instance. Necessarily when three of them were there, the accused would have taken out a knife and when they tried to attack the accused or being enraged by the act of the deceased in preventing him from collecting water again stating he had already collected the same in the noon, which according to the accused, was let by Ibrahim only at his request, he would have stabbed the deceased. There is also recovery of the knife supported by the independent witnesses at the instance of the accused. Apart from that, there is the version of two of the eye witnesses, though they are related to the deceased, regarding the assault by the accused and they witnessing the said incident cannot be ruled out though there would be some exaggeration in their version in deposing before the Court while attributing overt act against the accused. 16. The defence of the accused is, in exercise of private defence such injury is caused. At the first instance, it is his case the deceased himself was holding a knife and the accused had never thought of or never anticipated any such untoward incident to happen as such, there was no question of he carrying a knife. Although such a version is possible, but the fact remains that the evidence on record only speaks to the effect, when the scuffle took place the accused took out a knife and stabbed on the chest of the deceased. Although such a version is possible, but the fact remains that the evidence on record only speaks to the effect, when the scuffle took place the accused took out a knife and stabbed on the chest of the deceased. Even the stabbing as is also evident from the evidence on record as per the witnesses, is only a subsequent conduct when the scuffle has taken place between the accused and the deceased and it would not have occurred otherwise. Only when the deceased resisted the accused collecting water stating that he had already collected water in the noon, the scuffle took place. Of course there is justification for the accused to collect water in the evening also as, at his request only Ibrahim had let water in the noon. In the quarrel that ensued in the evening, either to protect himself from the three persons who were there, being enraged by the conduct of the deceased, the accused is shown to have assaulted the deceased which resulted in his death subsequently on the way to the hospital. As per the medical evidence, the deceased had sustained fatal injuries on the chest and also to the lung. The injuries are caused on the spur of the moment on the vital part of the body. As is rightly noted by the Sessions Judge, the injuries are so caused without there being any intention but with a knowledge that it is likely to cause death. In the circumstances, even if it is taken as a matter of private defence, the Division Bench of this Court in the decision noted above, has observed any act of assault by a knife or any other article, to know whether such a blow was excessive in the situation, cannot be weighed in a golden scale and secondly, there should be justification for such assault. Another Division Bench of this Court has also noted that the right of private defense can be raised when a person realises that there is a likelihood that he is going to be physically harmed. Might be as argued by the appellant’s counsel the accused also being alone would have ventured to take out a knife for his protection when three persons from the deceased side were there and the scuffle has taken place. Might be as argued by the appellant’s counsel the accused also being alone would have ventured to take out a knife for his protection when three persons from the deceased side were there and the scuffle has taken place. Since none of the independent witnesses have supported the version of the prosecution, much less about the true facts as to how the incident has taken place, this Court has to fall back only on the evidence available. Even one of the witness has turned hostile though he had tried to depose to the effect that it is the deceased who was having a knife. Since it is not the version of the prosecution, this version either has to be treated as an improvement or an attempt to support the accused and it cannot be taken note of. However, in the instant case, even assuming that there is threat to the accused since the deceased and two others were there on the once side and the accused was alone, the accused would have taken out a knife to protect himself, he should not have ventured to stab on the vital part of the body i.e., the chest. 17. However, in the circumstances a death has occurred due to the assault and it is neither motivated nor with any premeditation. In the circumstances, even assuming that it is a case of private defence and noting that it would be in excess of private defense and it is an act out of rage due to the scuffle, while upholding the order of conviction for the offence under S.304 Part II, IPC, the sentence to undergo rigorous impriso nment for ten years appears to be on the higher side in the facts and circumstances of the case. As such, it would be appro priate to modify the sentence to undergo rigorous imprisonment for four years. Accordingly, the appeal is allowed in part. While modifying the order of sentence, it is ordered the accused shall undergo rigorous imprisonment for four years. Further, he is also entitled to the benefit of set of under S.428, Cr.PC.