Judgment GIRISH CHANDRA GUPTA, J. :- This appeal is directed against a judgment dated 21st December. 1996 passed by the learned Additional Sessions Judge. Balurghat, Dakshin Dinajpur in Sessions Case No. 18 of 1994 arising out of G. R. Case No. 1226 of 1990 convicting the appellant-Ganesh Tudu of the offence punishable under Section 302 of the Indian Penal Code and an order dated 23rd December. 1996 by which the convict was sentenced to Rigorous Imprisonment for life for the aforesaid offence. 2. The facts and circumstances of the case briefly stated are that the appellant Ganesh Tudu killed his step-son Ganesh Hansda on 11th November, 1990 while he was preparing to go to Bolla Mela accompanied by his friends Debu and Paltu. 3. From the evidence it appears that his mother Mani Murmu, widow of Bhola Hansda married the accused-Ganesh Tudu about ten years prior to the incident. She, at that time, had her two sons by her first husband, the victim was one of them. After her marriage to the accused she begot two daughters, namely, Kalpana and Alpana and a son Gopinath. 4. The conviction is based on the evidence of P. W. 5, who is an eye-witness. Besides P. W. 5, P. W. 7 Paltu and P. W. 8 Kalipada were also cited as eye-witnesses but they turned hostile during the trial. The written complaint lodged by the P. W. 1 Joy Ram, who happened to be the full brother of the accused did not depose the name of the assailant. The accused was taken into custody on 16th November. 1990. Based on the statement made by the accused while he was in custody the offending weapon was recovered from his house, which was sent to the Forensic Science Laboratory and the report has been marked Ex. 8. 5. Mr. Mukherjee, learned advocate appearing in support of the appeal did not challenge the conviction. He, however, urged that the conviction under Section 302 of the Indian Penal Code was obviously wrong. He in support of his submission drew our attention to the following pieces of evidence laid by the prosecution itself. 6. P. W. 5, the star witness of the prosecution, has deposed as follows : "Myself and my friend Ganesh Hansda (since deceased) decided to go to Bolla Mela. Whereupon both of us went to our respective houses to put on formal dresses. 6. P. W. 5, the star witness of the prosecution, has deposed as follows : "Myself and my friend Ganesh Hansda (since deceased) decided to go to Bolla Mela. Whereupon both of us went to our respective houses to put on formal dresses. Thereafter, after sometime I had been to the house of Ganesh. Thereafter, I found that Ganesh Hansda and his step-father, Ganesh Tudu were involved in a brawl and also in fighting. Then came out of their house on a pakka road and I saw Ganesh Tudu, stepfather of Ganesh Hansda coming out with a knife (Chaku) in his hand. Myself and Ganesh Hansda were standing in front of the shop of Gostha Sarkar, Ganesh Tudu came with a knife and plunged the knife into the belly of Ganesh Hansda, whereupon Ganesh Tudu knifed on his chest." 7. P. W. 7. Paltu was cross-examined by the prosecution with the leave of the Court and he was suggested on behalf of the prosecution as follows :- "I did not state before police that there was a quarrel between Ganesh Tudu and Ganesh Hansda in their language and thereafter there was a marpit between them. I did not state before police thereafter myself and Debu Singh and Ganesh Hansda came to the pakka road in front of grocery shop and found Ganesh Tudu to come with a knife in his hand and Ganesh Tudu assaulted Ganesh Hansda with the knife on the belly of Ganesh Hansda and also on his chest and Ganesh Hansda fell on the pakka road and breathed his last." 8. P. W. 8 Kalipada, father of P. W. 7 Paltu was also declared hostile. During his cross-examination with the leave of the Court, the prosecution suggested to him as follows ;- "I did not state before police that at 5.30 p. m. on that day they went to the house of Ganesh Hansda. I did not state before police that Ganesh Hansda dressed up and got ready. I did not state before police that Ganesh Hansda and Ganesh Tudu were in their house. I did not state before police that there was exchange of hot talk between them. . I did not state before police that Ganesh Hansda dressed up and got ready. I did not state before police that Ganesh Hansda and Ganesh Tudu were in their house. I did not state before police that there was exchange of hot talk between them. . I did not state before police that thereafter Ganesh Hansda, Debu Singh and Paltu Sarkar came in front of the shop of Gostha Sarkar whereafter Ganesh Tudu came running and murdered Ganesh Hansda by striking the knife on his belly and on his chest." 9. P. W. 10 Moni Murmu, mother of the deceased also turned hostile and she was cross-examined by the prosecution with the leave of the Court. During such cross-examination she was suggested as follows :- "I did not state to the police that on 11-11-1990 in the evening, my son Ganesh Hansda dressed up and started for Bolla Mela with his friends. namely Debu and Paltu Sarkar. I did not state to the police that the father of Ganesh Hansda prohibited Ganesh Hansda and there was a quarrel amongst them (Viz. Ganesh Hansda and Ganesh Tudu) and there was an assault between father and son. 1 did not state before police that Ganesh Hansda went out with his friends." 10. Mr. Mukherjee contended that the case of the prosecution is that the son wanted to go to Bolla Mela with his friends. The father forbade him from doing so. The son did not listen to him. The father naturally became angry. The son engaged himself in an altercation with the father, heated words were exchanged as would appear from the case suggested to P. W. No. 10. The father being overpowered by his anger lost his self-control and inflicted the injury. 11. On behalf of the prosecution in the Trial Court it was contended. Mr. Mukherjee added, that the accused killed the victim in order to grab the property of his mother. Mr. Mukherjee contended that the alleged motive hinted at by the prosecution was not pursued, which, according to him, is in any event nothing more than a figment of imagination. 12. We already have seen from the evidence of P. W. 10 that she had two sons by her first husband. The property which was inherited by P. W. 10 from the husband would devolve upon her heirs. 12. We already have seen from the evidence of P. W. 10 that she had two sons by her first husband. The property which was inherited by P. W. 10 from the husband would devolve upon her heirs. In the absence of Ganesh, his other brother is there to inherit the property, and it is futile to suggest that with an ulterior object or for the purpose of grabbing the property the victim was killed. The victim. according to Mr. Mukherjee, was killed without any premeditation. It was an accident. When P. W. 10 married the accused, the victim was a tiny boy of ten years. There is no evidence before us to show that the two sons of P. W. 10 were treated by the accused with cruelty. No one as a matter of fact has even suggested that. This goes to show that the accused took care of his step-sons, the same way he did with respect to the children begotten by him through P. W. 10. Exercising his parental power he was within his right to forbid the son from going to the Mela in the evening. In doing that he demonstrated his concern for the well-being of the stepson. The son in his youth was disobedient. He did not listen to the father which naturally enraged him. The father lost his self:, control and committed this act which was an unfortunate incident because the entire episode grew out of the concern of the accused for the safety of the victim. 13. Mr. Mukherjee submitted that the conviction can at the highest be under Part-I of Section 304 of the Indian Penal Code. He added that the appellant was taken into custody on the day the judgment was delivered, that is, 21st December, 1996 and since then he is continuing in custody. Before that, the appellant was in custody during the stage of investigation for about three months. 14. Mr. Mukherjee contended that the purpose of justice has already been met. Enough punishment has already been suffered by the appellant. It is now time to release him. 15. Mr. Goswami, learned Public Prosecutor appearing for the State submitted that it cannot be disputed that the incident was not a premeditated act. It happened on the spur of the moment. 16. Mukherjee contended that the purpose of justice has already been met. Enough punishment has already been suffered by the appellant. It is now time to release him. 15. Mr. Goswami, learned Public Prosecutor appearing for the State submitted that it cannot be disputed that the incident was not a premeditated act. It happened on the spur of the moment. 16. Considering the submissions of the learned advocates we are inclined to substitute the conviction from one under Section 302 of the Indian Penal Code to Section 304 (Part-I) of the Indian Penal Code. 17. Considering that the appellant has already been in judicial custody for slightly less than twelve years and six months, we are inclined to agree with Mr. Mukherjee that the punishment already undergone would serve the purpose of justice. 18. In that view of the matter, the appeal partly succeeds. 19. The punishment under Section 302 of the Indian Penal Code is set aside and the same is substituted under Section 304 (Part-I) of the Indian Penal Code. 20. The appellant-Ganesh Tudu should be released at once if his detention is not required in connection with any other case. 21. The learned Registrar General shall communicate the operative part of the order under Rule 8, Chapter XI of the Appellate Side Rules of this Court for information and necessary action. 22. Lower Court Records with a copy of this judgment to go down forthwith to the concerned learned Trial Court for information and necessary correction. 23. Urgent xerox certified copy of this judgment, if applied for, be delivered to the learned Counsel for the parties upon compliance of all formalities. KISHORE KUMAR PRASAD, J. :- 24. I agree. Order accordingly.