JUDGMENT : P.K. Mohanty, J. - This is a criminal appeal from jail, by the convict, convicted under Section 302, I.P.C. for having intentionally committed the murder of his son Satrughna Kisan assailing the order of conviction and sentence. 2. The short facts of the prosecution case is that the accused is the father of the deceased Satrughna Kisan and on 11.7.1991 there was a quarrel between accused Budhu Kisan and his son Satrughna Kisan over the cycle belonging to his other son. During the quarrel the deceased son Satrughna dealt a slap to his father, Budhu Kisan. After the quarrel subsided both the father and the son went and slept inside the house at different places. It is alleged that the son slept in the verandah, at about 4 p.m. the father got up and went inside his room, brought out the axe M.O.I. on the pretext of collecting fuel from the jungle and on being armed with the axe came to the place where the son was sleeping and dealt a blow on the deceased causing his death. P.W.6, the wife of another son was present in the house and no other member. Hearing the cry of the deceased, P.W.6 came out of her room and saw the accused pulling out the axe from the body the deceased and on being asked by her, the accused threatened her not to divulge this before any one. With the weapon in hand, the accused went to the Bari side pond, cleaned the weapon (axe) with water and kept it concealed in the Bhadi beneath a Doli. While he was cleaning the axe he was noticed by the neighbouring ladies and on being asked by them he requested them not to divulge this before any one. Being suspicious, both the ladies P.Ws.1 and 2 came to the house of the accused through the road side and to their surprise they found the deceased Satrughna lying dead on the road with injury on his person. The accused who was then standing nearby shouted that he had killed his son. The wife of the deceased who was returning after fetching water to the house was immediately informed of this incident and she proceeded to Telkoi Police Station. The accused who was then standing nearby shouted that he had killed his son. The wife of the deceased who was returning after fetching water to the house was immediately informed of this incident and she proceeded to Telkoi Police Station. She orally reported the incident to the O.I.C., Telkoi who reduced the same into writing and treated the same as F.I.R. The I.O. proceeded to the spot and as it was night he deputed two constables to guard the dead-body. The I.O. seized the bloodstained earth sample earth under the seizure list. He also seized the blood stained earth, and sample earth from the courtyard and held inquest over the dead body. On the next day the I.O. sent the dead body for post-mortem examination, arrested the accused on 12.7.1991 at Khuntapada. While in custody the accused gave recovery of weapon of offence M.O.I. the axe and his wearing cloth M.O.I. which was seized under Ext. 6/1. After completing the formality he sent the seized articles for chemical examination through Court under Ext. 17 and received the report under Ext. 18. On completion of investigation charge-sheet under Section 302, I.P.C. was submitted. 3. The plea of the accused was one of denial. 4. The prosecution has examined 9 witnesses, out of whom P.W.6 Kuntala Kisan is the only eye witness to the occurrence. She is the wife of Tikei Kisan, the younger brother of the deceased and son of the accused. Giving the detailed description of the occurrence and the pre-occurrence of the quarrel she has stated that the accused was given a slap by the deceased, whereafter the quarrel subsided. While the deceased was sleeping on the front verandah of the house the accused took an axe on a plea of collecting fuel and with that axe he went to the verandah and dealt a fatal blow to the deceased with the axe. It is stated that while she was combing her hair inside the room she heard the noise raised by deceased and coming out of the room she found the accused pulling out the axe from the body of the deceased. As she asked the reason for killing, the accused entreated her not to divulge this incident to any one. She also proves the weapon of offence M.O.I and the dhoti M.O.II belonging to the accused. P.Ws. As she asked the reason for killing, the accused entreated her not to divulge this incident to any one. She also proves the weapon of offence M.O.I and the dhoti M.O.II belonging to the accused. P.Ws. 1 and 2 are the neighbours who have stated that while they were cleaning their utensils in the bari side pond they found the accused cleaning an axe. On being asked why he was cleaning the axe the accused requested them not to divulge this to any one. These two ladies, P.Ws.1 and 2 being suspicious at the conduct of the accused came to his house through the road side and they found the deceased lying dead with injuries on his person. P.Ws.1 and 2 have stated that when they came to the house of the accused the accused was then standing near a tree in front of his house and was shouting to have killed his son. P.W.7 is the post occurrence witness and she is the informant as well as the wife of the deceased. She states that she got the knowledge of the incident from P.Ws. 1, 2, and 6. P.Ws. 4, 5 and 8 are witnesses to the seizure and P.Ws. 3 and 9 are the official witnesses being the Doctor who conducted autopsy and the I.O. respectively. 5. The learned Sessions Judge relying on the testimony of the eye witness P.W.6 who is no other than the daughter-in-law of the accused, the evidence of P.Ws. 1 and 2 and the materials on record has held appellant guilty of having intentionally caused the death of his son Satrughna by giving a blow by means of the axe. 6. Shri D.S. Mishra, the learned counsel appearing on behalf of the appellant contends that in absence of any reliable evidence with regard to the intention of the accused to commit the murder and in absence of further reliable evidence excepting the sole testimony of P.W.6 the Sessions Judge could not have recorded a finding of guilt. Shri Misra submits that the accused is the father and the deceased is his son. Shri Misra submits that the accused is the father and the deceased is his son. Even if the prosecution is believed with regard to the quarrel which ensued during the noon of the day of occurrence over a cycle belonging to the other son, the same having subsided and the parties having gone to sleep the further prosecution story that the accused after some time got up from the sleep, went to the deceased carrying the axe and inflicting the blow to cause his death is improbable in the facts and circumstances of the case. It is further contended that admittedly P.W.6 being inside her room combing her hair when she heard the noise made by the deceased it is not natural that she would come out immediately and see the accused pulling out the axe from the body of the deceased. 7. Having heard the learned counsel, Shri D.S. Mishra for the appellant and Shri Jayaraj Behera. The learned Addl. Government Advocate and on perusal of the evidence on record it transpires that there was a quarrel over the cycle of the husband of P.W.6. The deceased gave a slap on the face of his father, the accused, some time thereafter the quarrel subsided. The accused slept in one room and the deceased slept on the verandah of the house and the verandah is adjacent to the village road. She (P.W.6) states that after some time the accused took an axe from the house on the pretext of collecting fuel and went with that axe to the verandah near the deceased and dealt a blow on his body. No sooner the blow was dealt the deceased raised a cry and threw himself on the village road. She came out of her room and asked the accused as to why he killed the deceased. The accused came to her with the bloodstained axe and told her not to divulge the fact before any body. She stated that the accused was putting on a white Dhoti which was also stained with blood and went to bari side pond to wash it off and after washing the axe the accused came and kept that on the Vadi of their house and she has identified the axe M.O.I. She also identified the Dhoti worn by the accused at the time of the assault. In the cross-examination she stated that the accused and his son were living separately and the accused and the deceased were quarreling frequently. She has stated that the Verandah where the deceased was sleeping was at a distance of 10 feet from the from where she was combing her hair. She has fairly stated that hearing the alarm she went out of the room and she saw the accused pulling out the axe from the body of the deceased. The deceased was sleeping with face upward resting one of his hands on the head. She did not find any outsider nearby. The evidence of P.Ws.1 and 2 the ladies of the neighbouring house is equally important. P.W.1 has stated that her house is close to the accused. The bari of the accused and her bari is intervened by a fence. She and Kasturi, P.W.2 were cleaning their utensils when they saw the accused cleaning the axe and on being asked he said that he should not be asked anything. The accused said so on folded hands. On being suspicious about the conduct they reached near his house and they found on the road in front of his house his son Satrughna was lying dead with cut injury on his person. They found blood coming out of his mouth and nose and the accused was shouting standing near a mango, tree in front of his house that he had killed his son. Nothing substantial has been brought out in the cross examination. P.W.2 another immediate neighbour and who accompanied P.W.1 to the bari corroborates the testimony of P.W. 1. P.W.3 is the Medical Officer, Telkoi P.H.C. who conducted the autopsy on the police requisition. According to the doctor, he found one penetrating wound over 3rd and 4th right axillary region in between 3rd and 4th rib 2"" x. On dissection he found the depth of the injuries as 3"" through the skin. Intercostal muscles, pleura Apicaloh, right lung 2"" x 1"" depth. There was profuse blood clot in the right pleural cavity and right lung cavity. The nature of the injury was ante mortem. The cause of death is due to haemorrhage and shock from injury to right lung. Time since death was within 24 to 36 hours and the injuries were caused by a sharp cutting weapon with sufficient force. 8. There was profuse blood clot in the right pleural cavity and right lung cavity. The nature of the injury was ante mortem. The cause of death is due to haemorrhage and shock from injury to right lung. Time since death was within 24 to 36 hours and the injuries were caused by a sharp cutting weapon with sufficient force. 8. Thus, on a reading of the evidence on record, we do not find any reason to differ with the finding of the learned trial Judge that the accused-appellant is the author of the crime and caused the death of his son by the sharp cutting axe. M.O.I. Shri D.S. Mishra, learned counsel for the appellant then submits that even assuming that the accused is the author of the crime then in the facts and circumstances of the case and in view of the admitted prosecution story that there was a severe quarrel between the accused and the deceased and that the deceased had given a slap on the face of the accused, who is none other than his father, the offence alleged in the facts and circumstances would be an offence under Section 304, Part-III, I.P.C. and not a case under Section 302, I.P.C. as has been held by the Sessions Court. The learned counsel has referred to the decisions reported in AIR 1983 SC 185 , Hari Ram v. State of Haryana, AIR 1983 SC 284 , Jawahar Lal and another v. State of Punjab and AIR 1987 Supreme Court 1151, Gurdip Singh and another v. State of Punjab in support of his submission. In the case of Hari Ram (supra), the Apex Court on consideration of the case where in a heat of altercation between the deceased and the accused and the accused seized a jalli and thrust it into the chest of the deceased and it was preceded by his remark that the deceased must be beaten to make him behave and only one blow was struck at the deceased, it was held that there was no intention to kill and therefore conviction under Section 302, I.P.C. was not sustained. In the second case, Jawaharlal and others (supra), the Apex Court also took a somewhat similar view in the facts of that case. But the facts of the present case are quite different. In the second case, Jawaharlal and others (supra), the Apex Court also took a somewhat similar view in the facts of that case. But the facts of the present case are quite different. The Hon'ble Apex Court in Gurdip Singh and another v. State of Punjab reported in 1987 Supreme Court 1151 (supra) at paragraph 6. held: "The trial Judge was not wholly justified in observing that there was no evidence about the so-called illicit relationship between Maya Bai and Kishore Singh, the deceased. The materials available create considerable doubt in our mind as to whether the appellants really intended to kill Kishore Singh or whether his misconduct pushed them to wreak revenge against the deceased and in this pursuit attacked him. We are not unmindful of the fact that the 7th injury noted in the post-mortem certificate is in the ordinary course sufficient to cause the death of the deceased. But we are not fully satisfied that the appellants intended to kill the deceased. The correct approach on the evidence and other circumstances in the this case would, according to us, be to find the accused guilty under Section 304, Part-I, and to sentence them under that Section." In the present case, the accused-appellant is the father of the deceased. During the noon, there was a severe quarrel over the use of cycle belonging to the other son, between the accused and the deceased' son, the deceased' son in a heat of anger gave a slap on the face of the father the accused but however the quarrel subsided. The appellant, who is the father, must have felt humiliated and shocked, with the behaviour of the deceased, who is his son. The appellant, who is the father, must have felt humiliated and shocked, with the behaviour of the deceased, who is his son. The necessary repercussion would be in the facts and circumstances that the father could not reconcile and in a heat of passion, to teach the son to behave, went with the axe and inflicted a blow in the fit of anger and humiliation and there is no definite evidence on record that he had the intention to kill his son, but the knowledge of consequences of his act of inflicting the axe blow on the deceased has to be inferred and as such the offence committed attracts Section 304, Part-I, I.P.C. and not an offence under Section 302, I.P.C. The offence therefore committed by the accused-appellant can be held to be under Section 304, Part-I, I.P.C. and as such, he is convicted thereunder. The conviction under Section 302 I.P.C. is set aside. In the facts and circumstances of the case a sentence of 8 (eight) years rigorous imprisonment shall serve the interest of justice. 9. In the result, the appeal is allowed in part. The conviction under Section 302, I.P.C. is set aside and the appellant stands convicted under Section 304, Part-I, I.P.C. and sentenced to undergo rigorous imprisonment for 8 (eight) years. The period undergone shall also be counted towards computation of sentence. P.C. Naik, J. - I agree. Final Result : Allowed