1. The appellant in this case has been convicted by the learned Sessions Judge of Coimbatore of the offence of murder and sentenced to transportation for life. The prosecution case was that in the course of some drunken quarrel between the 1st and 2nd accused on one side and P. Ws. N03. 1 2, 4 and the deceased on the other, after some struggling and stonethrowing P. Ws. Nos. 2 and 4 ran along followed by the deceased and P, W. No, 1 and pursued by the two accused. The 1st accused made up on the deceased and stabbed him on the left side of the neck and also stabbed P. W. No. 1 when he attempted to expostulate. Both of these wounded men fell down and were subsequently conveyed to the hospital where the deceased died by 7-50 P. M., that is about 2 hours after he had been wounded.
2. It appears from the medical evidence that the 1st accused himself had an oblique incised wound in front of his right thigh and two abrasions, and the prosecution has not attempted to account for this injury. The 2nd accused also had several abrasions in him. The accused's case was that the 2nd accused was pushed into prickly pear by P. Ws. Nos. 1, 2 and 4 and that when the 1st accused expostulated he was also thrown down by P.W. No. 2 and stabbed by P.W. No. 4 on the back. Accused on their side make no attempt to account for the injuries on the deceased and P. W. No. 1. In this state of matters, it is obvious that the prosecution has not put forward the whole truth, and the reasonable conclusion to come to, we think, is that there was a sudden quarrel and a fight in the course of which the deceased was stabbed by the appellant and the appellant himself received an injury from some weapon such as a knife. It would appear then that both sides were armed with knives. In these circumstances, when the blow was inflicted in the course of a sudden quarrel in the heat of passion engendered by this quarrel and when the appellant cannot be said to have taken undue advantage of the deceased since he himself was attacked and wounded also by a knife, we think that the more appropriate section under which the accused should have been convicted is s 304, Indian Penal Code. We alter the conviction to a conviction under Section 304, Indian Penal Code, so far as the offence against the deceased is concerned. The conviction of causing grievous hurt with a dangerous weapon under Section 304, Indian Penal Code, that is, with reference to the stab on P.W. No. 1 will stand. We reduce the sentence of transportation for life to a sentence of 10 years' rigorous imprisonment under Section 304, Indian Penal Code, that sentence to run concurrently with the sentence under Section 324, Indian Penal Code, passed by the learned Sessions Judge. With this modification we dismiss the appeal.