ORDER : 1. This appeal arises out of a petition for special leave to appeal filed by the appellant challenging the order passed by the High Court of Jammu & Kashmir, whereby the order of acquittal passed by the Trial Court has been reversed and the Appellant-accused Elpres Mattoo @ Katty has been sentenced to life imprisonment punishable under Section 302 of the Indian Penal Code. 2. Brief facts of this case are that a complaint was lodged by the mother of the deceased victim on 4th November, 2006 at 10:30 PM at Police Station-City, Jammu. It was stated in the complaint that on 4th November, 2006 at 7:30 PM she was with her son Vishal Matto in her house when the accused-Elpres Mattoo @ Katty came to their house and took away her with him on some pretext. Since the son of the complainant did not return immediately, she went outside and saw that only at some distance a quarrel had taken place between her son and the accused- Elpres Mattoo @ Katty. The accused stabbed her son with a pair of scissors on his neck and ran away. The victim was rushed to the hospital, but upon reaching there, he was declared dead. 3. On the complaint made by the mother of deceased-victim, the police lodged a first information report being FIR No. 81/2006 registered at Police Station, City, Jammu and after investigation the police filed charge-sheet. The matter was referred to the Sessions Court. The prosecution examined as many as 15 witnesses in order to prove its case. The mother of the deceased viz. Ruby was examined as PW-1, who was the sole eyewitness to the incident and Dr. Sangeeta Choudhary, who conducted the post mortem was also examined as a prosecution witness. PW-1 (Ruby) – mother of the deceased, clearly stated in her examination in chief that when her son was being taken away by the accused from her house, she insisted her son to not go as the accused owed money to his son and she had apprehensions that the accused may harm his son. It was also stated by her that the accused-Elpres Mattoo @ Katty did not bear good character. This is the reason she went out of the house immediately for she was apprehensive and then she saw her son being attacked by the accused. It was also stated by her that the accused-Elpres Mattoo @ Katty did not bear good character. This is the reason she went out of the house immediately for she was apprehensive and then she saw her son being attacked by the accused. She further stated that the injuries were inflicted on her son by a pair of scissors which the accused had lifted from a barber shop nearby. The barber viz. Jagdish Singh was examined as PW-5, who in fact turned hostile. There was another prosecution witness viz. Fareed Ali Qureshi. This witness is stated to have taken services at the above-mentioned barber shop a few minutes prior to the incident, though even he has turned hostile. 4. The scissors were recovered from the place of the incidence, during the investigation. The Trial Court, however, has not believed PW-1 to be an eye witness and on this basis has granted benefit of doubt to the respondent and has acquitted the accused. 5. There are three ante mortem injuries on the body of the deceased, which are recorded as under: Injury No. 1 – Incised punctured wound 2.5 cm x 1 cm x 5 cm deep on left side of chest vertically placed with upper angle acute and lower rounded 10 cm above left nipple, 9.5 cm from midline and 9.5 cm below left clavical. Injury No. 2 – Incised wound 2 cm x 1.5 cm on chin, horizontally placed. (bleeding present). Injury No. 3 – Abrasion on left side of neck 6 cm x 2.5 cm above clavicle (red in colour) The first and second injury could be the result of a single assault. Third is only an abrasion not likely to have been caused by the actual assault. The serious nature of the first injury could have resulted in the death of the victim. Injury No. 3 is only a mere abrasion on the left side of the neck which could have been caused on the deceased while he fell on the ground. 6. The High Court in appeal came to the conclusion that the incident took place on 4th November, 2006 and there is promptness in filing of the FIR, which was registered at 10:30 PM on the same day, ruling out any fabrication or second thought or falsely implicating anyone. 7. The contemporaneous record also corroborates the version of PW-1–mother of the deceased viz. Ms. 7. The contemporaneous record also corroborates the version of PW-1–mother of the deceased viz. Ms. Ruby, the sole eyewitness. We also see absolutely no doubt in the testimony of PW-1 and therefore, in disregarding the statement of this witness, the Trial Court has, in our opinion, committed a grave error, which has resulted in the acquittal of the accused. 8. The only question is that whether it is an offence punishable under Section 302 of the Indian Penal Code, 1860 or a benefit may be granted to the appellant-accused under Section 304 of the Indian Penal Code, making it a case of culpable homicide not amounting to murder. 9. We are of the belief that the act attributed to the accused comes under Exception 4 of Section 300 of the Indian Penal Code, which reads as hereunder: Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. 10. We do not see any pre-meditation of the act in the present murder case because when the accused had come to the house of the deceased, he was apparently not armed with any weapon and it is also the case of the prosecution that the weapon of assault was the scissor, which the accused picked up from the barber shop at that very moment. 11. For the above-mentioned reasons, we come to the conclusion that it is a case of culpable homicide not amounting to murder. We, therefore, convert the conviction awarded to the accused under Section 302 of the Indian Penal Code to that of Section 304 Part-I, considering the nature of the case. The accused is convicted under the provision stipulated in Section 304 Part-I of the Indian Penal Code, 1860, and is directed to serve a sentence of 10 years of rigorous imprisonment. 12. Learned counsel for the appellant-accused submits that the accused has already served a sentence of more than 5 years and 4 months, which shall be deducted from 10 years of sentence. 13. In view of the above, the appellant is directed to surrender forthwith, to undergo the remaining part of the sentence. 14. The appeal is partly allowed. 15. Pending applications, if any, shall stand disposed of.