Jayashree Tiwari, J. The sole appellant Rakesh Chandra has come up to this court being aggrieved by the impugned judgment and order of his conviction and sentence dated 28.7.1982 passed by Session's Judge, Kanpur in S.T. No. 19-M/1982, State Vs. Sarju Prasad and others. While convicting the appellant under section 302 I.P.C. and sentencing him to life imprisonment on that count, learned trial Judge has acquitted other two accused Sarju Prasad and Sheo Shanker Lal of the charge under section 302/34 I.P.C. giving them benefit of doubt. It is this judgement, which is under challenge before us by the appellant. Prosecution allegations against the appellant, as are perceivable from a co-joint reading of the written F.I.R., Ext.Ka-1, and depositions of two fact witnesses informant Shyam Mohan Vishwakarma, PW1, and Chandra Mohan PW2, during the Session's Trial, reveals that Vishwanath Vishwakarma ( deceased) was the father of both the fact witnesses Shyam Mohan ( informant) P.W.1. and Chandra Mohan, P.W.2. Accused appellant and they were neighbours. On the ill- fated day of the incident dated 29.9.1980 at about 7.30 p.m. deceased was digging the soil and was dumping it of his roof. This digging was objected to by the three accused Sarju Prasad, Sheo Shanker Lal and Rakesh Chandra ( appellant), who all forbade the deceased to desist from his digging activitites. One of the acquitted Sarju Prasad even assaulted the deceased by twisting his arm. Another accused Shankar caught hold of the deceased and present appellant Rakesh knifed the deceased three or four times. On hue and cry raised by the father, informant and his brother PW2, co-villagers Ganga Charan, sarju Prasad, Rama Shankar arrived at the spot and witnessed the incident and tried to save the injured but could not muster enough courage to apprehend the assailants, who all, after the incident, escaped from the incident spot. Informant and his brother brought their injured father to the Halett Hospital and got him hospitalised. Subsequent thereto informant PW1 dictated incident FIR to Genda Lal Sharma, who slated it and thereafter informant P.W.1 measured the distance to the police station Kalyanpur, about three kilometres, where he lodged his written report Exhibit Ka-1, following day morning at 8.10 a.m. Head constable Fateh Bahadur registered the crime by preparing chik F.I.R. Exhibit Ka-6 and the relevant G.D. entry Exhibit Ka-7. Injured Vishwanath was medically examined on the incident date, 20.9.80 at 7.45 p.m. in L.L.R. Hospital, Kanpur also called Halett hospital, vide Ext. Ka-15 by Dr. S.K. Bhagwat, P.W.4, who had prepared his medical examination report Ext. ka-5. The doctor had found following physical external injuries on the person of the injured:- "( 1) Incised wound 1cm x 1/8cm x scalp deep on right forehead 2.5cm above eye brow. ( 2) Incised wound 1.5cm x 1/6cm x muscle deep over left back, 2cm from back bone at T level. ( 3) Incised wound 2cm cm 1/6cm x muscle deep over left lower back, 3cm away from L-2, L-3 region. ( 4) Incised wound 2.5cm x 1/6cm x abdomen deep over left half of abdomen 5cm from umbilicus at 2'Oclock position & omentum protruding from the wound. All the injuries were caused by sharp edged weapon. All the injuries are fresh & simple except injury no. 4, which is dangerous & referred to surgical dept. for further treatment." After medical examination injured was admitted in the hospital same day at 8.45 p.m. under care of Dr. V.K.Melhotra. After batteling for his life for eight days, injured lost the battle of his life on 28.9.80 at 11.50 a.m. due to cardiac respiratory failure. A note therefore was sent to the police station in that respect at 12 p.m. from the hospital. On the basis of such an intimation, the registered crime, which was initially under section 324 I.P.C., was converted to u/s 304 I.P.C. vide Ext. Ka-8 by Head constable Fateh Bahadur. Inquest on the cadaver of the deceased started at 4.20 p.m, on 28.9.80 and was over after two hours at 6 p.m. Autopsy on the dead body of the deceased was performed on 29.9.1980 at 2 p.m. by Dr. S.P. Pandey, P.W. 5. In the estimation of the autopsy doctor, one day had lapsed since the demise of the deceased, who was 45 years of age. He had an average built body and post mortem staining was present at the back and his eyes were half open. Following ante mortem injuries were noted by the doctor in the post mortem examination report, Ext. In the estimation of the autopsy doctor, one day had lapsed since the demise of the deceased, who was 45 years of age. He had an average built body and post mortem staining was present at the back and his eyes were half open. Following ante mortem injuries were noted by the doctor in the post mortem examination report, Ext. Ka-16:- "( 1) Healed abrasion on the middle of forehead 3cm x 1-1/2cm, 3 cm above medial end of right eye brow, ( 2) Stitched wound on the abdomen 12 cm long with ( 10) stitches 8cm below the xiphisternum and 2cm to the left of umbilicus. Pus discharge from the wound present, ( 3) Stitched wound 7 cm long with 5 stitches starting from the point 3cm below the injury no.2 and running downwards & to the left, ( 4) Cut open wound on the right arm middle front aspect size 2cm x 1cm, ( 5) Cut open wound 2cm x 1/2cm 4 cm above the left medial malleolus, ( 6) Stitched out open wound 1.5cm x long 3 cm above the right medial malleolus, ( 7) Incised wound 1.5cm x 1/2cm x muscles deep left side back upper part 2cm lateral to the midline, ( 8) Incised wound 2 cm x ½ cm x muscle deep on the left side back middle 1cm lateral to the mid line, ( 9) Healed abrasion 7cm x 4cm top of right shoulder. ( 10) Healed abrasion left side of neck 8 cm below the ear size 2cm x 2m." After registration of the crime, investigation into the offence was commenced by S.I. K.P. Pandey, P.W. 3. I.O. recorded statement of the informant at the police station itself and then came to the incident scene, where, at the pointing out of the informant, conducted spot inspection and prepared site plan Ext. Ka-2. He thereafter came to Hallet Hospital but the injured was not in a fit state to give his statement and, therefore, I.O. slated the interrogatory statements of Chandra Mohan and Ganga Charan. Accused persons were searched but could not be apprehended. On 23.9.1980, I.O. again came to the hospital, where he recorded the interrogatory statement of the injured Vishwanath, which statement, by virtue of death of the injured, is now his dying declaration, which has been proved as Ext. Ka-3. Accused persons were searched but could not be apprehended. On 23.9.1980, I.O. again came to the hospital, where he recorded the interrogatory statement of the injured Vishwanath, which statement, by virtue of death of the injured, is now his dying declaration, which has been proved as Ext. Ka-3. On the following day, I.O. interrogated other witnesses Rama Shanker and Sarju Prasad. Accused persons surrendered in Court on 27.9.1980 and, therefore, I.O. recorded their statements. Wrapping up the investigation and concluding the same, I.O. wrongly charge sheeted the accused, vide Ext. Ka-4, on 27.8.80 only u/s 324 I.P.C. Learned Chief Metropolitan Magistrate after perusal of the charge sheet detected the flaw and therefore returned it to the I.O. and therefore another charge sheet, Ext. Ka-5, u/s 302 I.P.C. was submitted by the I.O. on 3.11.80. On the basis of both the charge sheet, criminal case no. 1138 of 1981, State versus Sarju Prasad and 2 others was registered in the committal court of Chief Metropolitan Magistrate, Kanpur Nagar, and the accused persons were summoned. Finding the disclosed offence trial by Sessions Court, Committal Court of C.M.M. send their case for trial before the court of Sessions, where it was registered as S.T. No. 19-M of 1982, State Vs. Sarju Prasad and others. Learned Trial Judge, on the basis of the material contained in the case diary was pleased to charge two of the accused Sheo Shanker Lal and Sarju Prasad under section 302/34 I.P.C., whereas the present appellant was charged under section 302 I.P.C. simplicitor, on 23.2.1982. The aforesaid charges were read out and explained to all the accused, who denied the same and claimed to be tried and consequently, to establish their guilt, the Sessions trial procedure was undertaken by the learned Trial Judge. In the trial prosecution, in its effort to bring home the charge and anoint the guilt of the accused, examined informant Shyam Mohan Vishwakarma P.W.1, and Chandra Mohan P.W. 2, as the fact witnesses. SI K.P. Pandey, Investigating Officer P.W. 3, Dr. S.K. Bhagwat P.W.4 and autopsy Dr. S.P. Pandey P.W. 5 were the formal witnesses. Besides the testimonies of aforesaid witnesses, prosecution also filed an affidavit of constable Hirdaya Ram Shukla, who had carried the dead body to the mortuary along with Laxmi Narayan for post mortem examination. SI K.P. Pandey, Investigating Officer P.W. 3, Dr. S.K. Bhagwat P.W.4 and autopsy Dr. S.P. Pandey P.W. 5 were the formal witnesses. Besides the testimonies of aforesaid witnesses, prosecution also filed an affidavit of constable Hirdaya Ram Shukla, who had carried the dead body to the mortuary along with Laxmi Narayan for post mortem examination. In his statement under section 313 Cr.P.C., present appellant along with others pleaded a common defence for false implication without giving their own version regarding happening of the incident. As is already mentioned in the opening part of this judgement, learned Trial Judge after marshalling of facts critically appreciating and vetting the oral and documentary evidences concluded that the prosecution was unsuccessful in bringing home the charges against the two accused Sarju Prasad and Sheo Shanker Lal u/s 302/34 I.P.C. and, therefore, acquitted them of that charge by opining that probably they were not aware of the fact that the present appellant will stab the deceased to death at the spur of the moment and therefore, there was no common intention prevailed between them and the appellant. Learned Trial Judge, however, found present appellant guilty u/s 302 I.P.C., as in his estimation prosecution had successfully anointed his guilt beyond all reasonable doubt and, therefore, convicted him of the offence of murder and sentenced him to imprisonment for life, by impugned judgment and order, which conviction and sentence is now under challenge before us in this appeal by the solitary convicted accused. In the preceding background, we have heard Sri Vinay Saran, learned amicus curiae for the appellant and Mrs. Raj Laxmi Sinha, learned AGA for the respondent State. Assailing the judgment of conviction, learned amicus curiae contended that the incident had occurred in some other manner with no eye witness account and the entire prosecution version is fabricated and feigned in connivance with the scribe Genda Lal Sharma. No independent witness, although mentioned and named in the first information report, came forward to lend credence to the prosecution story and supports it's version, which creates a doubt about the authenticity of the prosecution case. The two fact witnesses examined during the trial are both real sibling brothers and sons of the deceased and hence both are partisan, interested and inimical witnesses and hence no reliance can be placed on their testimonies and it is very unsafe to rely upon their depositions. The two fact witnesses examined during the trial are both real sibling brothers and sons of the deceased and hence both are partisan, interested and inimical witnesses and hence no reliance can be placed on their testimonies and it is very unsafe to rely upon their depositions. Appellant was falsely implicated because of the enmity and in fact the incident had occurred during darkness when the deceased was all alone. No blood was found by the Investigating Officer at the spot and, therefore, place of the incident is also doubtful. Next, it was submitted that the deceased had expired after seven days due to intervening disease of septicaemia and there was only a single fatal injury sustained by him. Rest of the injuries being simple in nature, the crime, even if proved, will not be outside the purview of section 304 part ( I) I.P.C. Concluding the submissions, learned amicus curiae, submitted that the appellant deserves a clean acquittal and in any case, if he is not acquitted of the charge, his crime be reduced to 304 part ( I) I.P.C. and he be sentenced accordingly, as proved offence will not be within the purview of section 302 I.P.C. Learned AGA argued to the contrary and submitted that the repeated blows were given and, therefore, offence under section 302 I.P.C. is squarely made out. She further submitted that there was no enmity of such a dimension as to give enough reasons to the prosecution witnesses to fabricate a case against the present appellant. It was further submitted that sons had no reasons to falsely implicate and assign specific role to the appellant sparing other two accused persons. Both the fact witnesses cannot be discarded merely because of their relationships with the deceased is the trite law laid down by the Apex Court contended learned AGA. It is lastly submitted that the appeal lacks merit and be dismissed. We have pondered over rival submissions and have gone through the evidences of the witnesses and trial court record. Coming to the merits of the matter, we find that the incident had occurred in the month of September at 7.30 p.m. in front of the house of the deceased as well as that of the appellant since both were neighbours. Consequently, it cannot be a case of mistaken identity. Coming to the merits of the matter, we find that the incident had occurred in the month of September at 7.30 p.m. in front of the house of the deceased as well as that of the appellant since both were neighbours. Consequently, it cannot be a case of mistaken identity. There is no evidence on record that prior to the present incident, both sides had flexed their muscles with each other or had even indulged into any kind of assault. In such a view, it is difficult to conceive that the sons will fabricate a false story in the murder incident of their own father by implicating the present appellant and sparing the real assailants. The appellant being their neighbour, was very well known to them. It is further revealed that prior to the wielding of knife, there was an altercation between both sides and, therefore, there was no difficulty in identifying the assailants from their voices by a neighbour. We further find that the story of digging of the soil and putting it on the roof cannot be an after thought had that not being true. It is difficult to think that prosecution will cook up such a story nor can it be said that the said allegation is a far-fetched story. So far as the medical evidence is concerned, it is consistent with the ocular testimonies as all the injuries sustained by the deceased, as were described by the two doctors, P.W. 4 and P.W.5, are consistent with the prosecution version of deceased being stabbed with knife. FIR about the incident was lodged without undue delay, as the incident had occurred 7.30 p.m. and the FIR was lodged the very next day morning at 8.10 a.m. In such a view participation of the appellant in the incident is well established beyond any shadow of doubt. Thus, so far as conviction of the appellant is concerned, we do not find any reason to defer from the conclusions arrived at by the learned Trial Judge. Turning towards the question as to what offence has been committed by the appellant, we find some force in the submissions of learned amicus curiae. According to the own showing of the prosecution, incident was preceded by a verbal triadic altercations between both the sides. Turning towards the question as to what offence has been committed by the appellant, we find some force in the submissions of learned amicus curiae. According to the own showing of the prosecution, incident was preceded by a verbal triadic altercations between both the sides. There was muscle flexing as well in which, it is alleged, that the acquitted accused had even twisted the arms of the deceased. Since, that accused has already been acquitted and there is no challenge to his acquittal, how and in what manner, the incident had started remains somewhat in a realm of uncertainty. Although genesis of the incident is unknown to us, there is little doubt that the incident did proceed with verbal altercations and muscle flexings between both the sides. Record is also silent on the point as to whether assault was pre-planned or premeditated or there was a common intention between the accused to annihilate the deceased. The entire incident occurred at the spur of moment in heat of the anger and out of self-control that knife blow were given to the deceased and resultantlywe are of the opinion that the offence, which can be anointed against the appellant accused will not be within the ambit of 302 I.P.C. but will fall only u/s 304( I) I.P.C. In our this view, we are also fortified by the fact that the deceased had sustained a single fatal injury, rest of injuries sustained by him were simple in nature and were only muscle deep. Another mitigating circumstance favouring the appellant is that the deceased had expired after seven days of the incident due to intervening reason of septicaemia because of lack of proper and adequate medical aid. Taking a cautious view, we therefore, find that the guilt of the appellant will be within the purview of section 304 part ( I) I.P.C. and he can be convicted only for that crime. In our aforesaid view, we are fortified by the judgment of the Apex Court in Raghbir Singh and Ors. v. State of Haryana.: AIR 2009 SC 1223 wherein it has been held as under:- "15. Considering the background facts as highlighted above when tested in the back-drop of the legal principles noted supra the inevitable conclusion is that the accused persons had not established that they were exercising right of private defence. v. State of Haryana.: AIR 2009 SC 1223 wherein it has been held as under:- "15. Considering the background facts as highlighted above when tested in the back-drop of the legal principles noted supra the inevitable conclusion is that the accused persons had not established that they were exercising right of private defence. But the assaults were made in course of sudden quarrel and Exception 4 to Section 300, IPC applies. Considering the background facts as noted above, it would be proper to alter the conviction from Section 302 , IPC to Section 304 Part I, IPC. Custodial sentence of 10 years would meet the ends of justice." In Rampal Singh versus State of U.P. ( 2012) 8 SCC 289 it has been held by the apex court as under:- "29. From the above statement of this witness, it is clear that there was heated exchange of words between the deceased and the appellant. The deceased had thrown the appellant on the ground. They were separated by Amar Singh and Ram Saran. She also admits that her husband had told the appellant that he could shoot at him if he had the courage. It was upon this provocation that the appellant fired the shot which hit the deceased in his stomach and ultimately resulted in his death. 30. Another very important aspect is that it is not a case of previous animosity. There is nothing on record to show that the relation between the families of the deceased and the appellant was not cordial. On the contrary, there is evidence that the relations between them were cordial, as deposed by PW1. The dispute between the parties arose with a specific reference to the ladauri. It is clear that the appellant had not committed the crime with any pre-meditation. There was no intention on his part to kill. The entire incident happened within a very short span of time. The deceased and the appellant had had an altercation and the appellant was thrown on the ground by the deceased, his own relation. It was in that state of anger that the appellant went to his house, took out the rifle and from a distance, i.e., from the roof of Muneshwar, he shot at the deceased. But before shooting, he expressed his intention to shoot by warning his brother to keep away. It was in that state of anger that the appellant went to his house, took out the rifle and from a distance, i.e., from the roof of Muneshwar, he shot at the deceased. But before shooting, he expressed his intention to shoot by warning his brother to keep away. He actually fired in response to the challenge that was thrown at him by the deceased. It is true that there was knowledge on the part of the appellant that if he used the rifle and shot at the deceased, the possibility of the deceased being killed could not be ruled out. He was a person from the armed forces and was fully aware of consequences of use of fire arms. But this is not necessarily conclusive of the fact that there was intention on the part of the appellant to kill his brother, the deceased. The intention probably was to merely cause bodily injury. However, the Court cannot overlook the fact that the appellant had the knowledge that such injury could result in death of the deceased. He only fired one shot at the deceased and ran away. That shot was aimed at the lower part of the body, i.e. the stomach of the deceased. As per the statement of PW2, Dr. A.K. Rastogi, there was a stitched wound obliquely placed on the right iliac tossa which shows the part of the body the appellant aimed at. 31. This evidence, examined in its entirety, shows that without any pre- meditation, the appellant committed the offence. The same, however, was done with the intent to cause a bodily injury which could result in death of the deceased. 32. In the case of Vineet Kumar Chauhan v. State of Uttar Pradesh ( supra), the Court noticed that concededly there was no enmity between the parties and there was no allegation of the prosecution that before the occurrence, the appellant had pre-meditated the crime of murder. Faced with the hostile attitude from the family of the deceased over the cable connection, a sudden quarrel took place between the appellant and the son of the deceased. On account of heat of passion, the appellant went home, took out his father's revolver and started firing indiscriminately and unfortunately one of the bullets hit the deceased on the chin. 33. Appreciating these circumstances, the Court concluded : "17. On account of heat of passion, the appellant went home, took out his father's revolver and started firing indiscriminately and unfortunately one of the bullets hit the deceased on the chin. 33. Appreciating these circumstances, the Court concluded : "17. ...Thus, in our opinion, the offence committed by the appellant was only culpable homicide not amounting to murder. Under these circumstances, we are inclined to bring down the offence from first degree murder to culpable homicide not amounting to murder, punishable under the second part of Section 304 IPC." Without deliberating and dilating on other aspects involved in the appeal, we hereby conclude the discussion by opining that although appellant's conviction is well anointed but the offence proved will fall only within the ambit of section 304 part ( I) I.P.C. and appellant can be convicted only for that offence. Appeal succeeds and is allowed in part. Conviction and sentence of the appellant u/s 302 I.P.C. is hereby set aside and instead appellant is convicted u/s 304( Part I) I.P.C. and for the said offence, looking to the period passed by between the date of the incident and as of now and also considering the fact that the appellant, who was only 24 years of age at the time of the incident, must be 60 years of age as of now and also considering the fact that he had no criminal history, custodial sentence of 10 years R.I. with fine of Rs. 25,000/- is imposed upon him, which in our opinion shall meet the ends of justice. In the event of default in payment of fine, appellant shall undergo one year further R.I. If the fine is deposited, Rs. 20,000/, out of it, is directed to be paid as compensation to the victim's family for the injury caused to them. Appellant is already in jail under the orders of this Court dated 6.8.2012.He shall remain in jail to serve out the remaining part of his sentence. The period of imprisonment already undergone by the appellant shall be set off under section 428 Cr.P.C. Let a copy of this judgment be certified to the trial court for it's intimation.