The right of private defence of property and person extends to causing harm short of death, but if the harm caused exceeds the right of private defence, the person causing the harm may be convicted under Section 304(2), I.P.C.

VISHNU SAHAI, J.:- The appellant aggrieved by the Judgment and order dated 31-12-1996, passed by the Additional Sessions Judge, Gadhinglaj, Kolhapur, in Sessions Case No.41 of 1996, convicting and sentencing him to undergo 10 years R.I. and to pay a fine of Rs. 5000/- in default to suffer R.I. for 11/2 years, for an offence under Section 304(2), I.P.C, has come up in appeal before us.

2. In short, the prosecution case is that the deceased Dhulappa was husband of the informant Surekha Naik PW 4. He had a brother Antu who died sometimes prior to the incident leaving behind his widow Ambubai and three sons. It is said that illicit relationship between the appellant and Ambubai developed and on this score, Dhulappa was not on talking terms with the appellant.

Both Dhulappa and appellant used to stay in contiguous houses in Naik Galli, Nosari Tal, Gadhinglaj, District Kolhapur.

On 9-7-1996, at about 9 to 9.15 p.m. Dhulappa was talking with his niece Irappa PW 5, on the verandah of the appellant. An exchange of hot words between Dhulappa and Irappa took place. Dhulappa was asking Irappa not to spend the money which he had brought from his mother. In the meantime, the appellant came out of the house and asked Dhulappa not to beat and take away Irappa. A quarrel between the appellant and Dhulappa thereupon took place. Irappa ran to the house of the appellant and hid himself there. It is said that Santosh and Ravi who had arrived hearing the quarrel between Dhulappa and the appellant separated them. It appears that the appellant went inside his house thereafter. Immediately, thereafter Dhulappa knocked the door of the appellant's house and exhorted that he would take away Irappa. The appellant opened the door and inflicted two knife blows on the chest of Dhulappa who fell down as a consequence thereof.

Thereafter Surekha and the persons who had gathered there took Dhulappa, who was in a precariously injured condition, to Government dispensary Nosari, where the doctor informed that he was dead.

3. From the Government dispensary Nosari, Surekha proceeded to police station Nosari and lodged her FIR, which was recorded by PSO Ramesh Kotkar PW 8 who on its basis, registered C.R. No. 22 of 1996, under Section 302, I.P.C., against the appellant.

4. After recording the FIR, PSO Kotkar immediately commenced the investigation. He went to the place of the incident and recovered therefrom bloodstained earth and plain earth. He recorded statements of witnesses. On 12-7-1996, he arrested the appellant who on 13-7-1996, during the course of interrogation, confessed that he could get the weapon of assault namely the knife, recovered. The said statement of the appellant was recorded vide panchanama Exhibit 23. Thereafter, the appellant along with PSO Kotkar and public panchas proceeded to his house wherefrom the third room, he took out the bloodstained knife after removing some tiles.

After completing the investigation, PSO Kotkar submitted the charge sheet on 4-9-1996.

5. Going backwards, the autopsy on the dead body of the deceased was conducted on 10-7-1996, between 10 a.m. and 12 noon by Dr. R. G. Suryawanshi-Patil. Since the genuineness of the post-mortem report has been admitted and the same has been tendered under Section 294, Cr. P. C. Dr. Suryawanshi-Patil has not been examined. A perusal of the autopsy report shows that the deceased sustained two ante-mortem injuries, enumerated below :-

"(1) Stab wound on front of chest, Lt. side 8 cm below Lt. breast measuring 3 cm x 2 cm x 15 cm. Wound edges tapering downwards wound oblique and going upwards wound filled with clotted blood.

(2) Stab wound front of chest, Lt. side lateral to Lt. breast measuring 3 cm x 2 cm x 10 cm. Edges of wound clean cut wound filled with clotted blood."

The internal examination revealed echymosis, fracture of two ribs and cartilage below Injury No. 1, an incised wound on the left lung and tip of the heart.

In the opinion of Dr. Suryawanshi-Patil, the deceased died of cardi