JUDGMENT Manjula Chellur, J.—Heard the learned Counsel for the Appellant and so also the learned Addl. S.P.P. By consent of both side Counsels, the matter is taken up for final disposal. 2. This appeal is directed against the judgment and order of conviction for the offence punishable under Section 304I sentencing to undergo Rule I for a period of 8 years and to pay a fine of Rs. 5,000/-, in default, to undergo Section I for another 6 months. 3. The admitted facts are that the deceased Abhishek is the son of Appellant Mr. M.R. Vishwanath Nair. P.W.1-smt. Savithri is none other than the wife of the Appellant. Though they lived at several places, as on the date of incident in question i.e., on 8-7-2004 at about 8.45 p.m, they were living at 13th Cross, Angadi Thimmaiah Road, Basaveshwara Layout, Nagashetty Halli, Sanjayanagar, Bangalore. 4. The allegation is that the Appellant was quarrelling with his wife-P.W.1 on 8-7-2004. When the deceased and his mother-P.W.1 were having their dinner, the accused came to the house and picked up a quarrel with his wife abusing her in filthy language. This was objected to by the deceased Abhishek. He requested his father not to quarrel. He requested his father to sleep. This enraged the Appellant. He went inside the kitchen, brought out a kinife and gave one blow on the left side chest of the deceased. The victim immediately fell on the ground and the cries of the mother drew the attention of the neighbours who came to the house of the victim. The injured was immediately shifted in an autorickshaw to R.M.V Hospital where he was declared as dead. 5. On the complaint of mother of the deceased against her husband, Crime No. 255/2004 came to be registered for the offence punishable under Section 302 IPC. In the usual course, inquest over the dead body, spot mahazar and other formalities were done by the Investigating Agency. The post mortem report revealed that the death was due to the internal injuries to the vital organs of the body of the deceased. A case cme to be tried before the Court of Sessions. 6. In all, 22 witnesses were examined for the prosecution, 27 documents and 7 material objects were marked. No evidence was let in on behalf of the defence. 7. A case cme to be tried before the Court of Sessions. 6. In all, 22 witnesses were examined for the prosecution, 27 documents and 7 material objects were marked. No evidence was let in on behalf of the defence. 7. On appreciation of the evidence of the witnesses for the prosecution, the learned trial Judge found that there was no mens-rea to commit the murder of the deceased and brought down the offence to Section 304I placing reliance on a decision reported in State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another, AIR 1977 SC 45 . Aggrieved by the said judgment, the Appellant has come up before this Court. 8. The arguments of the learned Counsel for the Appellant are that the deceased being the son of the Appellant herein, he had no mensrea to commit the murder of his son. During the incident, accused-Appellant at the spur of moment picked up a knife and gave one blow. According to him unless there was intention to cause injury, the trial Court should not have brought the offence to Section 304I of IPC and the facts and circumstances available on record would only attract the offence under Section 304II of IPC. 9. The point that arises for Court's consideration is: Whether the judgment and order of conviction under Section 304I of IPC deserves to be set aside or altered? 10. The material witness-P.W.1 is none other than the mother of the deceased, so also the wife of the Appellant. The evidence before the trial Court disclosed that originally this Appellant was a tenant in the house of father of P.W.1-Savithri. At that time she was aged about 15 years and the accused was the driver by profession. Unfortunately she chosen to go away with the Appellant at that tender age and lived at different places with him including his native place. Out of the said relationship, the deceased Abhishek was born. However, the fact remains for a long time they lived under the same roof and the society treated them as husband and wife. During the evidence the suggestions were made to P.W.1 to show that she was already married to one Krishna Reddy and she went away, with this accused and even after giving birth to this Abhishek-deceased, she had some sort of relationship with one Jauyakumar Gutpa. However, because of the said reason the incident did not occur. During the evidence the suggestions were made to P.W.1 to show that she was already married to one Krishna Reddy and she went away, with this accused and even after giving birth to this Abhishek-deceased, she had some sort of relationship with one Jauyakumar Gutpa. However, because of the said reason the incident did not occur. According to P.W.1, he demanded money from her, but she refused to give money. They had invested lot of money on the lands at the native place of the Appellant and in return they were not getting any money from the native place This was the cause for the quarrel between the Appellant and P.W.1-Savithri. The entire problems started when the deceased took objection to the quarrel between the Appellant and his mother saying the neighbours would hear what was happening. This engaged the Appellant. This is categorically spoken to by P.W.1, who is the mother of the deceased. It is not the case of P.W.1 that she was living away from the Appellant as on the date of the incident. As a matter of fact, it is the very case of the prosecution that Appellant, deceased and P.W.1 were living in the said house, when the incident in question occured The deceased comes out of the room to pacify the quarrel between his mother and father. The neighbours, who came to the house immediately on receiving the information, are one Dr. Bhimaraj and his wife Uma. They are examined as P. Ws.2 and 3. They have supported the case of the prosecution almost in its entirety. The evidence on recorded would go to show that the scream of the deceased Abhishek on receiving stab with knife and the cries of his mother brought the neighbours to their house. They also gave details of routine quarrels in the house of Appellant. In other words, on the date of incident also though they were hearing the loud voice of Appellant while quarrelling with his wife, they did not interfere thinking it was the usual quarrel between the two. Only when P.W.1 started screaming for the help they came to the house of Appellant and saw the deceased Abhikshek lying in the drawing room. Dr. Bhimaraj neighbour assisted P.W.1 to shift the injured to the R.M.V Hospital. Unfortunately, by the time they went to the hospital he was dead. Only when P.W.1 started screaming for the help they came to the house of Appellant and saw the deceased Abhikshek lying in the drawing room. Dr. Bhimaraj neighbour assisted P.W.1 to shift the injured to the R.M.V Hospital. Unfortunately, by the time they went to the hospital he was dead. A complaint came to be lodged by P.W.1, who is none other than the wife of the Appellant. There is material on record to show that the accused after the incident changed his cloths and went out of the house. Then he reports the matter to the police. By the time he went to the Sanjayanagar Police Station, the complaint of P.W.1 was already lodged. Therefore, the police did not receive his complaint. Though the material on record would suggest that the Appellant was suspecting the character of P.W.1-his wife, he did not seriously deny the incident as such. 11. The evidence of post mortem Doctor-P.W.7 and the contents of Ex. P.8 post mortem report would go to show that there was one stab injury on the left side chest of the deceased. On dissetion the Doctor found that the weapon after piercing the skin subcutaneous tissue has entered through the left second inter costal space. Further it is found after entering inter costal space, weapon has pierced the aorta near its origin. All other parts of the body were intact and pale. The aorta is the main blood vessel, which suplies pure blood from here to other parts of the body. 12. The evidence of another Doctor Prabhu, P.W.19 would reveal he was on duty when the deceased Abhishek was admitted to R.M.V Hospital. According to this Doctor, if the deceased was brought to the hospital immediately, there was likelihood of survival of the deceased by giving medical aid immediately. 13. So far as the behaviour of the accused - Appellant in the house and the regular quarrels at his instance are concerned, we have the evidence of P.W. 13-Dhanalakshmi who is sister of P.W.1 and P.W.14-Rajamma who is maidservant in the house of Appellant who support the case of the prosecution. As a matter of fact, the evidence of the maidservant who was working in the house of the Appellant would disclose the accused used to quarrel with his wife only on his arrival from his native place. As a matter of fact, the evidence of the maidservant who was working in the house of the Appellant would disclose the accused used to quarrel with his wife only on his arrival from his native place. There was some sort of disagreement on financial issues between the husband and wife and the demand for money by the Appellant from P.W.1 always ended up in serious quarrels between them. In one of such quarrels the incident attacking their son by name Abhishek occurred. Their son Abhishek was aged about 20 years at the time of incident and he was embarrassed when the father started quarrel with his mother. This made the deceased to object the behaviour of his father and father got enraged, as his 20 years old son was advising him not to quarrel. As a matter of fact, the son Abhishek was advising his father not to shout so loudly attracting Attention of one and all. All the neighbours would hear whatever said by the Appellant. This bit of advice by the son was not relished by the Appellant. Hence, on the date of incident the Appellant gave one blow by a knife to his son, which became fatal. By the time the deceased was shifted to the R.M.V hospital, he was no more. 14. The fact remains there was no ill will, disagreement or misunderstanding between father and son. His interference in the quarrel between the parents made him the victim. The accused was not at all intending to harm his son. In all probability, when his anger was at the peak with the interference by his son made him lose all senses. At the spur of the moment without any intention the accused took out the knife from the kitchen and stabbed on the chest of the deceased. There was no intention on the part of the Appellant to kill his son, but he had the knowledge that his act would likely to cause such injury, which would result in the death of the deceased. None of the exceptions to Section 300 of IPC are available for the prosecution. The learned trial Judge did not find that the entire incident happened at the spur of the moment. At the most it would only be a sudden decision on the part of the Appellant to cause injury to his son, but not death of his son. None of the exceptions to Section 300 of IPC are available for the prosecution. The learned trial Judge did not find that the entire incident happened at the spur of the moment. At the most it would only be a sudden decision on the part of the Appellant to cause injury to his son, but not death of his son. Therefore, the case on hand would fall squarely under Section 304II IPC. Reliance is placed on Tholan Vs. State of Tamil Nadu, AIR 1984 SC 759 , which reads thus: The accused started remonstrations using filthy language against certain organisers of a chit fund who had no connection with the deceased, in front of the house of the deceased and the deceased came out of his house and asked the spur of moment gave only one blow with knife to the deceased and pushed him to some distance. Held, in the circumstances of the case that though requisite intention to commit murder would not be attributed to the accused, he wielded a weapon like a knife and therefore, he could be attributed with knowledge that he was likely to cause an injury which was likely to cause death. In such a situation though he could not be guilty of committing an offence under Section 304 Part II. 15. Accordingly, the appeal is allowed in part. The accused is found guilty of the offence punishable under Section 304II IPC. The judgment and conviction of the Appellant for the offence under Section 304I of IPC is set aside. 16. Heard regarding sentence. 17. Having regard to all the facts and circumstances of the case and mainly the fact that the only son of the Appellant was killed in the unfortunate incident at the hands of the Appellant himself and both P.W.1 and Appellant are deprived of having the comfort of children, the Court is of the opinion in the interest of justice Rule I for the period of 4 years would be just and proper. Under these circumstances, a fine of Rs. 5,000/- is also imposed, in default, to undergo Section I for three months.