JUDGMENT : SAMARENDRA PRATAP SINGH, J. 1. Heard learned counsel for the parties. 2. This appeal has been preferred against the judgment of conviction dated 09.06.2011, passed in Sessions Trial No. 84 of 2011, whereby, learned Sessions Judge, Vaishali at Hazipur has convicted the sole appellant under Section 302 of the Indian Penal Code and sentenced him to life imprisonment along with fine of Rs. 5000/- and in default of payment of fine to undergo further imprisonment for four years. The prosecution case in short as made out in the fardbeyan of Gulab Chand Ram of village- Majrohi Raghunandan, P.S. Desari (Sahdei Bujurg O.P.) District Vaishali, recorded by S.I., R.B. Yadav of Sahdei Bujurg O.P., on 18.12.2009 at 03:30 pm at Mangla Hat Chowk in short, is that the informant, Gulab Chand Ram, has stated that in the afternoon of 18.12.2009, he along with his son Jaglal Ram (deceased), P.W.3 brother Yogendra Ram and P.W. 2 Satya Narain Ram @ Mithu Ram (Maternal Uncle) were sitting on a brick soaling road on Pual (Straw) in front of the house of Shiv Ji Ram and Tetar Ram. In the meantime, appellant Ramanand Ram @ Tuntun Ram came armed with knife and gave knife blow on the back of Jaglal Ram (deceased) on account of which he fell on the ground. The informant and others succeeded in snatching the knife from the hand of Ramanand Ram. As soon as they snatched knife from the hand of Ramanand Ram, he fled away. Jaglal Ram(deceased) who was seriously wounded by Ramanand Ram was sinking then the informant with the help of others tried to carry him on a cot to the hospital, however, his son died on the way to Mangal Hat. The informant has stated that Jaglal Ram was laying pipes for irrigating the field which annoyed Ramanand Ram, as he claimed that the pipes belonged to him. In view of the dispute, the informant's son Jaglal handed back the pipes to Guddu Ram from whom he had got the pipes. Ramanand Ram, who was aggrieved, came back with a knife and struck his son with it which caused his death. 3. On the basis of fardbeyan of informant, Gulab Chand Ram, Desari (Sahdei) P.S. Case No. 242 of 2009, dated 18.12.2009, was instituted under Section 302 of the Indian Penal Code against Ramanand Ram. Ramanand Ram, who was aggrieved, came back with a knife and struck his son with it which caused his death. 3. On the basis of fardbeyan of informant, Gulab Chand Ram, Desari (Sahdei) P.S. Case No. 242 of 2009, dated 18.12.2009, was instituted under Section 302 of the Indian Penal Code against Ramanand Ram. The police in course of investigation, prepared inquest report of the deceased, inspected the place of occurrence, seized the blood stained knife and took the statement of the witnesses. The police also obtained post mortem report of the deceased and finding the case to be true against the appellant-Ramanand Ram, submitted charge-sheet against him on 27.01.2010 under Section 302 of the Indian Penal Code. Learned C.J.M. Vaishali took cognizance of the offence and committed the case to the court of Sessions. The trial court framed charge under Section 302 of the Indian Penal Code to which the appellant pleaded not guilty and claimed to be tried. 4. The case of the defence in the statement under Section 313 of the Cr.P.C was complete denial of the occurrence and false implication in the case. The trial court finding sufficient evidence against the accused convicted him under Section 302 of the Indian Penal Code. The prosecution in order to substantiate its case examined in all eight witnesses. Out of eight witnesses PW-1 Seema Kumari, PW-2 Satya Narain @ Mithu Ram, PW-3 Yogendra Ram, PW-4 Suman Kumari, PW-6 Gulab Chand Ram, were produced as eye witnesses to the occurrence. PW-1 Seema Kumari, is the married daughter of the deceased Jaglal Ram. She has stated that on the relevant date and time, she was at her parents house. She has stated that the occurrence took place at about 1:00 pm. At the relevant date and time she was sitting in Bathan alongwith her another sister, PW-4 Suman Kumari, whereas her father and her cousin grandfather were sitting in the Bathan. Ramanand Ram armed with knife came and hurled knife blow at his father, Jaglal, who succumbed to his injuries. She stated that the house of Ramanand Ram is at a distance of one laggi from her house. She stated that her Bathan where she was sitting was two laggi from her house and she had no previous enmity with Ramanand Ram. 5. PW-2 Satya Narain @ Mithu Ram happens to be a distant maternal uncle of the informant. She stated that the house of Ramanand Ram is at a distance of one laggi from her house. She stated that her Bathan where she was sitting was two laggi from her house and she had no previous enmity with Ramanand Ram. 5. PW-2 Satya Narain @ Mithu Ram happens to be a distant maternal uncle of the informant. He has stated that at about 1:00 pm, on the date of occurrence, he was sitting along with Joginder Ram PW-3, Gulab Chand Ram PW-6, and the deceased Jaglal Ram in his uncle's house. In the meantime, Ramanand Ram @ Tuntun Ram came armed with knife and struck a knife blow on the back of Jaglal Ram (deceased) which caused grievous injury, however, they succeeded in snatching the knife from the hand of Ramanand Ram. In his cross examination, he has stated that the occurrence took place where he was sitting along with others. He saw blood on the back side of the house of his uncle Tetar Ram. 6. PW-3 Yogendra Ram, is the brother of the deceased and he has also supported the prosecution case. 7. PW-4 Suman Kumari, is another married daughter of the deceased. She has stated that at the relevant point of time, she was at her naihar and sitting in the Bathan along with her sister Seema Kumari PW-1. Her father along with Yogendra Ram, Gulab Chand Ram and Satya Narain Ram were sitting one laggi away from the Bathan. In the meantime, Ramanand Ram came armed with knife and struck a knife blow on the back of his father, which led to his death. She stated that blood had fallen on the pual (straw) near which her father was sitting. She stated that after assault, number of persons gathered at the place of occurrence. 8. PW-6 Gulab Chand Ram, is the informant himself and has supported the prosecution case. He stated that his son was attacked by Ramanand Ram, when they were sitting together along with Yogendra Ram and Satya Narain Ram. He stated that his son was laying down pipe to irrigate his field which belonged to Guddu Ram. In the meantime the appellant Ramanand Ram came and started protesting as to why he is using his pipes. In order to avoid altercation the informant's son returned the pipes to Guddu Ram. He stated that his son was laying down pipe to irrigate his field which belonged to Guddu Ram. In the meantime the appellant Ramanand Ram came and started protesting as to why he is using his pipes. In order to avoid altercation the informant's son returned the pipes to Guddu Ram. Thereupon Ramanand Ram came back with a knife and assaulted his son on his back causing penetrating injury. 9. PW-7 Dr. Mohan Kejriwal, conducted the post mortem on the dead body of the deceased, which too corroborated the prosecution case. On those premise, the prosecution tried to prove the case against the accused-appellant. 10. Learned counsel appearing on behalf of the appellant submits that the trial court has erred in convicting the appellant under Section 302 of the Indian Penal Code. He further submits that even assuming the prosecution case to be true, the case would fall under Section 304 of the Indian Penal Code. Elaborating his submission, learned counsel submits that it is the admitted case of the prosecution that the appellant inflicted only one Chhura blow and thus it cannot be said that his intention was to kill the deceased. According to learned counsel, if the appellant had the intention to kill the deceased, he would have repeated the blows. He next submits that there are other material discrepancies in the statement of the witnesses. He stated that in fact no one has seen the occurrence and in any view of the matter, PW-1 Seema Kumari and PW-4 Suman Kumari, the married daughters of the deceased, were not present at the place of occurrence. He also submits that at one place, PW-2 stated that he is not related to the informant but at later stage, he says that he happens to be the maternal uncle in relation. Similarly, PW-3 Yogendra Ram, has stated that Daroga Jee seized knife on the next date of the occurrence, whereas some witnesses stated that the knife was given to Daroga Jee on the same day. He stated that the I.O. ought to have seized the cloth worn by the deceased before he sent the dead body of the deceased for post mortem examination. There is also discrepancies in the statement of the witnesses, as to the place where the I.O. took their statements. 11. He stated that the I.O. ought to have seized the cloth worn by the deceased before he sent the dead body of the deceased for post mortem examination. There is also discrepancies in the statement of the witnesses, as to the place where the I.O. took their statements. 11. It would thus appear from the arguments advanced by the learned counsel for the appellant that his primal submission is that no case is made out under Section 302 of the Indian Penal Code against the appellant rather a case at the most would fall under Section 304 of the Indian Penal Code, as the occurrence took place on the spur of the moment and there was no repetition of blows. 12. In our view the submission advanced by the learned counsel for the appellant has no ground to sustain. It would appear from the prosecution evidence that when the deceased was laying down the pipe obtained from Guddu Ram for irrigating his field, the appellant Ramanand Ram protested stating that the pipe belonged to him. In order to avoid altercation, the deceased handed over the pipe to Guddu Ram from whom he has taken the same. No further quarrel or assault took place at that time. On the other hand, the deceased came back and sat on the Kharanja road near his bathan alongwith his father PW-6, Gulab Chand Ram, PW-2 Satya Narain Ram and PW-3 Yogendra Ram, and after about half an hour, the appellant Ramanand Ram came with knife and struck his son, which caused deep penetrating injury rupturing his lung leading to his instant death. Thus, it is apparent from the evidence on record that the occurrence did not take place on the spur of the moment rather the appellant went back to his house and came back with a knife after half an hour and struck a chhura blow at the back of the deceased, Jaglal Ram, before others could defend him. As such the case of the appellant would not come within the purview of the exceptions mentioned under Section 300 of the Indian Penal Code to make it a case of culpable homicide not amounting to murder under Section 304 of the Indian Penal Code. 13. As such the case of the appellant would not come within the purview of the exceptions mentioned under Section 300 of the Indian Penal Code to make it a case of culpable homicide not amounting to murder under Section 304 of the Indian Penal Code. 13. On the other hand, the Doctor, PW-7, found following injuries on the person of the deceased:- "Sharp cut injury on right upper chest posteriorly size-1¼" long and ¼" wide. It was lung deep near upper portion of right lung. On dissection:- right lung collapsed, right chest cavity contained blood. Both chamber of heart empty. Liver, Spleen, Kidney were pale, Bladder was containing urine. Stomach contained food residue, small and large intestine contains putrifying gases and digested food materials. Time since death-more than 12 years. Cause of death-Haemorrhage and shock and respiratory failure, which in given situation was sufficient to cause death. Weapon used-a sharp cut instrument, such as dagger." 14. It thus appears that the injury in the opinion of the Doctor was sufficient to cause the death in ordinary course. The materials on record leaves us no doubt of the appellant's involvement and we are of the considered view that the prosecution has been able to prove the case under Section 302 of the Indian Penal Code against the appellant beyond all reasonable doubt. The appellant who is in custody will remain, so as to serve the remaining part of his sentence. However, we disagree with the part of sentence whereby the trial court had sentenced the appellant to undergo imprisonment for four years in default of payment of fine of Rs. 5000/- as harsh, we accordingly reduce the sentence of four years of imprisonment to four months, in default of payment of fine amount of Rs. 5000/-. 15. With the aforesaid modification in the sentence, the appeal is dismissed. The appellant would remain in custody to serve the remaining part of sentence with permissible remission.