JUDGMENT : 1. Heard learned Amicus Curiae Mr. Pawan Singh Pundir for the appellant, learned AGA for the State and also perused the record. 2. This appeal has arisen from the judgement and order dated 28.4.2009 passed by learned Sessions Judge, Meerut in S.T. No.307 of 2009, State of U.P. v. Aftab, (Case Crime No.378 of 2008) under Section 302 I.P.C., Police Station Delhi Gate, District Meerut. The learned Sessions Judge convicted the accused for life imprisonment for commission of offence under Section 302 Indian Penal Code (IPC) and with fine of Rs.10,000/-. In default of payment of fine, the accused shall undergo rigorous imprisonment for 6 months. 3. The brief facts as per prosecution case are that the complaint/FIR was lodged by Aas Mohammad (PW-2), brother of the accused and grand-son of the deceased declares that on 8.1.2008 at about 10.15 p.m. Aftab and his grand father were having altercatiion and then the accused cut the neck of Ramjan by Knife (Chhuri). He witnessed the occurrence. His brother Chand, his children and tenants were also present there. He and Chand tried to chase Aftab but he ran away from the spot. He took his grand-father in an injured condition to the District Hospital where his grand-father Ramjan was declared dead. 4. Learned counsel for appellant contended the so called dispute arose out of asking money by the accused from the deceased who was his grand-father. The learned counsel has submitted that the offence would not fall within Section 302 of Indian Penal Code (IPC) but would be at the most punishable under Section 304 part I or part II of the IPC. 5. It is an admitted position of fact as mentioned by PW-2 and PW-3 that there was an altercation which took place between accused and deceased and thereafter appellant-Aftab was chased but he ran away. 6. The submission of learned counsel was for a clean acquittal but later on he has pressed for alternative sentence contending that there was no intention to do away with own grand-father and, therefore, he has requested that the offence be considered under Section 304 part-II. 7. The prosecution examined four witnesses so as to bring home the charge framed against the accused as enumerated: 1. Deposition of Dr. N.K. Gupta PW1 2. Deposition of Ash Mohammad (brother accused) of PW2 3. Deposition of Chand (brother of accused) PW3 4. 7. The prosecution examined four witnesses so as to bring home the charge framed against the accused as enumerated: 1. Deposition of Dr. N.K. Gupta PW1 2. Deposition of Ash Mohammad (brother accused) of PW2 3. Deposition of Chand (brother of accused) PW3 4. Deposition of Naresh Chandra Verma PW4 8. In support of ocular version following documents were produced to bring home the charge:- 1 First Information Report Ex.Ka.1 2 Written Report Ex.Ka.2 3 Recovery Memo of blood stained piece of ‘Dari’ and Blanket Ex. Ka.4 4 Recovery memo & Supurdginama of Bulb Ex. Ka.5 5 Recovery memo of blood stained and Plan Cemented Floor Ex.Ka.6 6 Recovery memo of Knife Ex.Ka.7 7 Post mortem Report Ex.Ka.11 8 Report of Vidhi Vigyan Prayogshala Ex.Ka.23 9 Panchayatnama Ex.Ka.15 10 Charge Sheet Mool Ex.Ka.9 11 Site Plan with Index drawn on 9.11.2008 Ex.Ka.3 12 Site Plan with Index drawn on 18.11.2008 Ex.Ka.8 9. The recent decision of the Apex Court in the case of State of Gujarat v. Bhalchandra Laxmishankar Dave, 2021 (0) AIJEL-SC 66983, decided on 2nd February, 2021 wherein the Apex Court has held that while dealing with the matter relating to conviction, the Court should discuss the decision of the trial court and also the judgment in Guru Dutt Pathak v. State of Uttar Pradesh, LAW(SC) 2021 5 5, decided on 5th May, 2021. All the principles laid down in these latest decisions, obliged us to consider the evidence afresh. 10. Dr. N.K. Gupta (PW-1) has stated on oath that he had examined the body of Ramjan alias Mohammad prepared the autopsy (Ext. Ka1) and found the following ante mortem injuries on his body-(i) incised wound 22 cm. x 6 cm. x bone cut (c-4) on the right side of the neck; (ii) incised wound 6 cm x 0.5 cm muscle deep over the outer aspect of right arm. Rigorous mortis was present in extremity-passed in the neck. No decomposition was there. On internal examination c-4 vertebra was cut, neck artery and vessel on right side were cut. All the organs like spleen, kidneys, liver were pale. He further stated on oath that the death of the deceased could be caused on 8.11.2008 at about: 10.15 p.m. and these injuries could be caused by Knife (Chhuri) 11. Aas Mohammad (PW-2) is the witness of fact. All the organs like spleen, kidneys, liver were pale. He further stated on oath that the death of the deceased could be caused on 8.11.2008 at about: 10.15 p.m. and these injuries could be caused by Knife (Chhuri) 11. Aas Mohammad (PW-2) is the witness of fact. He has stated on oath that Aftab and his grand father were having altercation when the accused caused injury in the neck of Ramjan by Knife (Chhuri). He took the injured Ramjan to the District Hospital where he was declared dead. He proved the written report (Ext. Ka-2) given by him he has with stood the cross examination. 12. Chand (PW-3) is also a witness of fact. He has stated on oath that on 8.11.2008 at about 10.00 p.m. accused Aftab and Ramjan were having altercation and when he reached the spot, he saw cut neck of Ramjan and accused Aftab was running. He chased Aftab having Chhuri in his hand but accused ran away. 13. Naresh Chand Verma, Inspector, P.S. Delhi Gate (PW-4) is the investigating officer of the case. He inspected the spot and prepared the site plan (Ext. Ka-3). He had taken the blood stained pieces of Dari, blanket, rope of cot and sealed the same. He prepared the memo (Ext. Ka-4). He had also taken bulb from the place of occurrence. The occurrence was seen by Aas Mohammad and Chand (Pws-2 and 3) respectively in light of the bulb as it was right time. The same was handed in the Supardagi of Aas Mohammad and prepared the memo (Ext. Ka-5). The witness (IO) also also took the blood stained earth and simple earth and sealed the same in two different containers, and prepared the memo (Ext. Ka.-6). On 13.11.2008 he recovered Kinfe (Chhuri) used in this murder at the instance of accused Aftab from beneath of Peepal tree. He prepared the recovery memo (Ext. Ka-7). He proved the site plan of the place of recovery of Knife (Chhuri) as the Ext. Ka-8). He sent the knife (Chhuri), blood stained Dari, blanket and rope of cot for the Chemical Examination, Agra. He proved the filing of charge sheet (Ext. Ka-9) by him. 14. He prepared the recovery memo (Ext. Ka-7). He proved the site plan of the place of recovery of Knife (Chhuri) as the Ext. Ka-8). He sent the knife (Chhuri), blood stained Dari, blanket and rope of cot for the Chemical Examination, Agra. He proved the filing of charge sheet (Ext. Ka-9) by him. 14. The learned trial court has convicted the accused on the basis of recovery and also on the fact that the prosecution witnesses over, his brothers had deposed against the accused, we concur with the same and held the accused guilty. The learned Judge has relied on the judgments of the Apex Court titled State of Punjab v. Jagir Singh, AIR 1973 SC 2407 ; Lahna v. State of Haryana, 2002 (3) SCC 76 ; and S. Sudershan Reddy v. State of Andhra Pradesh, AIR 2006 SC 2716 . 15. The learned Judge relied on the provisions of Section 27 of the Evidence Act and has relied on the Decision in Pulukuri Kotayya v. Emperor, AIR 1947 PC 67 , the finding of fact as far as the will of the accused is concerned cannot be interfered as well as that of the recovery of the knife which was from a place of occurrence. 16. The statements of the eye witnesses were recorded and as per information of FIR, the medical report is also consistent with version that the deceased was attacked by knife by his grand-son, the involvement of accused is proved beyond any doubt. 17. It would now necessary for discussing the role of the accused and the manner in which, the incident occurred the injuries are found on the right side of the neck. The accused is in jail since 14 years. The incident appears to have occurred on spur of the moment, offence of that it is very clear that the death occurred by the hands of the accused. 18. While considering the deposition of eye witnesses, entire evidence considered the injuries are not superficial, but as such which shows that the intention of the accused as culled out from the record does not shows that bad intention with his grand-father, therefore, altercation between the same. 19. The accused was 28 years of age at the time of commission of offence, he is the grand-son of the deceased and real brother of PW-2 and PW-3. 19. The accused was 28 years of age at the time of commission of offence, he is the grand-son of the deceased and real brother of PW-2 and PW-3. There was altercation and, the occurrence of incident had taken place at about 10.15 at night in house. 20. In that view of the matter, we concur with the learned sessions Judge held that the accused was author of the crime. We further concur with the learned Jude on the finding of fact that deceased who was aged about 75 years and the injury caused was sufficient to cause the death. 21. We are unable to accept the submission of learned counsel for appellant that Section 304 Part-II IPC would be attracted in this case the reason for not accepting this concertion is that the place of occurrence on the body part the deceased was injured on the vital part further the accused cannot be said to not have knowledge about the fact that his inflicting the injuries would cause such injuries which can prove fatal. 22. The learned counsel for appellant has relied on recent decision in Criminal Appeal No.1237 of 2013, (Sharafat and another v. State of U.P), decided on 21.1.2021 where the facts were similar and has contended that that offence would not be under Section 302 of the Indian Penal Code, but would under Section 304 Part I or Part II of the Indian Penal Code. The learned counsel has placed reliance on the said decision wherein finding in paragraphs 17 to 20, the court has held: “17. This takes us to the issue of whether the offence would be punishable under Section 299 or Section 304 I.P.C. 18. Considering the evidence of these witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellants and admission on part of accused. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under: “299. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under: “299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 19. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done- Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done. INTENTION (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; KNOWLEDGE KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 20. (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 20. It is very clear from the F.I.R. though unsupported by the prosecution and other witnesses of facts that there was a heated discussion and during the quarrel one of the accused had tried to see that the deceased remaining in the four corners of the home or go back to her matrimonial home as she wanted to elope with a person though she was a married lady having four children.” 23. We are even supported in our decision by the judgment of the Apex Court reported in Pardeshiram v. State of M.P., (2021) 3 SCC 825, where in considering the period of custody undergone, relationship between the appellant and the deceased and the background in which the injuries were caused, sentence directed to be reduced to period already undergone. 24. While going through the record, we are convinced that the accused had no intention of doing away with his own grand father but in hit of the moment the incident has occurred. Learned Judge heavily relied on recovery. The grand-son is not attributed to have any intention to do away with the deceased, there was a quarrel which were going on he wanted he share all money but the grand-father wanted to him to shift to Jaipur. This was the main bone of contention for the incident having taken place. 25. From the above discussion, it is evident that the incised wound on deceased were sufficient in the ordinary course of nature to prove fatal on the deceased, an old man, and he actually died due to the injuries which were the result of injuries due to use of sharp weapon. There was no enmity between the accused and deceased as deposed by Aas Mohd. (PW-2) and Chand (PW-3). There was light at the place of occurrence. There is no delay in lodging the FIR. The recovery of knife at the instance of the accused also lends support to the case of the prosecution. The evidence of the prosecution is solid and free from any weakness or lacunae. (PW-2) and Chand (PW-3). There was light at the place of occurrence. There is no delay in lodging the FIR. The recovery of knife at the instance of the accused also lends support to the case of the prosecution. The evidence of the prosecution is solid and free from any weakness or lacunae. Hence under Section 304 part-I of I.P.C. is made out and not under Section 302 of I.P.C. 26. Having held that the offence is punishable under Section 304 part I punishment of period undergone and the fine of Rs.10,000/-is reduced to Rs.5000/-, incarceration in default of payment of fine would be for six months. 27. The accused appellant, if not wanted in any other offence, be set free forthwith. 28. Appeal is partly allowed accordingly. 29. Record and proceedings be sent back to the trial court. 30. Shri Pawan Singh Pundir, learned Amicus Curiae appointed by Legal Services Committee, who shall be paid all his dues as are admissible. 31. This court is thankful to learned counsel for the parties for ably assisting this Court in getting this matter disposed off.