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 Ker