JUDGMENT 1. - This appeal is directed against the judgment and order passed by the Sessions Judge, Jhalawar in Session Case No. 225/1990 dated 11.2.1993, by which he has been pleased to uphold the charge against the accused-appellant under Section 302, IPC and, consequently convicted and sentenced him to life imprisonment and also imposed a fine of Rs. 1,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of six months. 2. The question as to whether the prosecution has been able to prove the charge against the accused-appellant under Section 302 IPC lies in an ambit which is rather narrow as the case rests solely on the dying declaration given by the deceased on 12.6.1990 at 5.15 PM. It may he stated at the outset that the argument which has been advanced by teamed (counsel. Ed.) for the accused-appellant is essentially on the ground that the case falls under Section 304 Pt. II, IPC and not under Section 302, IPC simpliciter and, on this ground it has been submitted that the sentence of the petitioner should be reduced looking to his tender age at the time of occurrence which is said to be 17 years. In support of his submissions, two decisions have been relied upon reported in AIR 1988 SC 2110 Gulsan & Ors. v. State of Punjab , 1981 SC 1638 Pooran Singh v. State of U.P , wherein the sentence of the appellant had been reduced to the period already undergone taking into consideration the circumstances of the case including the fact about the age of the appellant on the date of the incident. 3. Before we examine the case of the appellant from this angle, it would be essential to discuss the merits or the prosecution case as only in the light of the circumstances of the case it can be really considered as to whether the appellant should be given the benefit of reduction in sentence as urged by his counsel. 4. The case of the prosecution which was instituted on the basis of 'Parcha-bayan' Ex.P 9 of the deceased Mahesh Sharma himself is that on 12.6.1990, at about 5 p.m. PW 2 Dr. 4. The case of the prosecution which was instituted on the basis of 'Parcha-bayan' Ex.P 9 of the deceased Mahesh Sharma himself is that on 12.6.1990, at about 5 p.m. PW 2 Dr. G.S. Chauhan, Medical Jurist, Government Hospital, Jhalawar sent a telephonic message at Police Station, Kotwali, Jhalawar that one Mahesh Sharma son of Vishnu Prasad Sharma aged 32 years resident of Jhalawar was severely injured due to knife blow (chaku) and was admitted in the Jhalawar Hospital and a request was made that arrangement should be made for getting his statement recorded by a Magistrate. On this information, the Police Station Incharge along with constable Poorsingh and Karan Singh started for the hospital and got his statement recorded before the Magistrate (PW 10) vide Ex.P 4 on 12.6.1990 at 5 p.m. It was stated therein by Mahesh Sharma who later succumbed to his injuries that on the previous evening at 5 p.m. he along with his aunt Pushpa Bai who is the mother of the accused-appellant was going to Chhatrapur from Jhalawar. On the said date, in the afternoon at 12 O'Clock accused-appellant Yogendra Kumar came to Chhatrapur and asked for some money from his mother Pushpa Bai. While pressurising his mother to give some money, he inflicted two knife blows on his mother Pushpa Bai due to which Mahsh Sharma intervened and prevented him from doing so. Due to this intervention of Mahesh Sharma, Yogendra got further agitated and told him that he would do away with his life. Thereafter he, in fact, pierced the knife from the side of sharp edge which hit Mahesh Sharma on the left portion of his stomach. The accused then gave another knife blow which hit the deceased on his finger and the third on his left hand and still a fourth blow on his nose. Mahesh Sharma then shouted and on hearing the noise Birga Meena and other ladies from the village reached at the place of occurrence. When the villagers started collecting at the place of occurrence, the accused ran away with the knife and while running away also took away his watch. Thereafter Pushpa Bai, mother of the accused-appellant carried Mahesh Sharma and reached him to the hospital at Jhalawar. Then the Parchabayan of the deceased was recorded before the Judicial Magistrate, Jhalawar. When the villagers started collecting at the place of occurrence, the accused ran away with the knife and while running away also took away his watch. Thereafter Pushpa Bai, mother of the accused-appellant carried Mahesh Sharma and reached him to the hospital at Jhalawar. Then the Parchabayan of the deceased was recorded before the Judicial Magistrate, Jhalawar. Thereafter, the injury report of Mahesh Sharma and Pushpa Bai was also prepared and on the basis of the Parcha-bayan of Mahesh Sharma, FIR was registered. In course of treatment, Mahesh Sharma died on 19.6.1990. Thereafter the case was registered against Yogendra under Section 302, IPC. The inquest report of the deceased was then prepared and the post mortem was also got conducted. During investigation, spot inspection of the place of occurrence, the record regarding treatment of deceased Mahesh Sharma was collected from the hospital and the accused was then arrested from whom a knife was also recovered. A charge-sheet was thereafter submitted against the accused-appellant and, on commitment, he stood the trial where he pleaded not guilty. 5. The prosecution in ail examined 10 witnesses out of which Pushpa Bai, mother of the accused-appellant, PW 2 Dr. G.S. Chauhan before whom the statement was recorded, PW 10 Mohd. Rahim, Judicial Magistrate before whom the dying declaration was recorded and also PW 3 Chouth Mal, PW 4 Ram Singh, PW 5 Birdhi Lal, PW 6 Rajendra, PW 7 Pratap Singh. PW 8 Badri Lal and PW 9 Sheoram were examined. 6. It may be stated that out of these witnesses, the mother of the accused has been declared hostile and quite naturally as she is the mother of the accused and of the reason for not supporting the prosecution case in its entirety is quite obvious. The learned Sessions Judge relying on the Parcha-bayan of the deceased which was treated as the dying declaration of the deceased and testing its veracity, the evidence of the Judicial Magistrate PW 10 Mohd. Rahim, the evidence of PW 2 Dr. G.S. Chauhan who treated the deceased and had sent information to the police station as also the injury report and the post-mortem report was pleased to uphold the charge against the petitioner under Section 302, IPC and was pleased to convict him for life imprisonment along with a fine of Rs. 1,000/- and in default of payment of fine to six months, rigorous imprisonment. 7. 1,000/- and in default of payment of fine to six months, rigorous imprisonment. 7. We have gone through the evidence of the prosecution witnesses as also the post-mortem report and the injury report of the deceased as also the injury report of Pushpa Bai. We have also considered the evidence regarding authenticity of the dying declaration given by the deceased before the Judicial Magistrate. On consideration of these materials we do not find any reason to disbelieve the dying declaration nor the same has seriously been challenged. Thus, we find no infirmity in the prosecution case and we also do not find any illegality in the manner in which the dying declaration has been recorded. The medical evidence also completely corroborates the parcha- bayan/dying declaration of the deceased and, we therefore, find that the counsel for the appellant has rightly not laid much emphasis regarding the complicity of the accused-appellant as given out by the deceased in his `Parcha-bayan'. 8. The real question for consideration, however, is whether the petitioner should be held guilty under Section 302, IPC or under Section 304 Pt. I, IPC. the facts given out in the dying declaration clearly disclosed that the deceased was inflicted knife blows on the spur of moment due to the intervention of the deceased who in his wisdom had tried to protect his aunt Pushpa Bai from the assault of her own son, the accused-appellant herein. It appears from the injuries sustained by the deceased that he tried to protect Pushpa Bai and in the scuffle the deceased appears to have been inflicted with the knife blows. It is true that the knife blows on the deceased do not appear to have been inflicted on account of any grave and sudden provocation given either by the mother of the accused, or the deceased. But the fact that the accused was a boy of 17 years of age, and he appears to have gone astray, seems to have inflicted knife blow on the deceased in a moment of strong impulse since the deceased resisted his act toward his mother. But the fact that the accused was a boy of 17 years of age, and he appears to have gone astray, seems to have inflicted knife blow on the deceased in a moment of strong impulse since the deceased resisted his act toward his mother. Although, such action of the accused cannot normally be said to be the result of such intensity of grave and sudden provocation, but looking on the age of the accused appellant due to intervention of the deceased may have had the effect of a grave provocation for a boy who already seems to have lost a sense of proportion, may be on account of his faulty upbringing or any other family circumstance. We are, therefore, constrained to infer that in the facts and circumstances of the case and looking into the social circumstance of the boy who had gone haywire at the thought of not getting the money, it must have acted as a sudden provocation for him so as to indulge in the said offence. We are, therefore, of the opinion that in the situation that was prevailing at the time of the occurrence under which the accused inflicted the blow, the case would fall under Section 304 Pt. I, IPC. Looking also to the injury report of the deceased and the post mortem report, it appears that the deceased had been inflicted only the blow on his stomach and the cause of the death, in the opinion of the Doctor, is septicaemia which may have occurred on account of lack of proper treatment to the deceased. Taking all these facts into consideration and also in consonance with the view taken by the Apex Court in case of accused of tender age, we feel that the ends of justice would be met if the appellant is sentenced to the period which he was already undergone, which is approximately 3 years by now. The fine of Rs. 1,000/- imposed on the appellant shall remain which will be paid by him and in default of payment of fine he shall undergo a further period of rigorous imprisonment for a period of six months. 9. The appeal is, thus, partly allowed and the conviction and sentence awarded to the accused appellant accordingly stands modified. *******