Guman Mal Lodha, J.
1. It is common ground that the appellant Praduman Kumar has already under gone the sentence of more than 10 years because, he was arrested on 1-8-1973 and the bail was granted on 9-8-1982. After the adjustment of period of remission which he is entitled to get, the period as calculated by the learned counsel for the parties comes to more than 10 years, although actual period is 9 years and 8 days.
2. The appeal relates to the death of Chhagan Lal alleged to be caused by the appellant who is son of Kanwar Lal, Kanwar Lal and Chhagan Lal are said to be real brothers. The dispute was about some money.
3. The facts of the case are given in details by the learned trial Judge in his judgment, and we are not required to mention it here because of the reasons that in view of the above, Shri Biri Singh has pressed the appeal for conversion of the conviction and sentence under Section 302, IPC into Section 304, Part II, IPC. An important feature of the case which is undisputed is that Kanwar Lal father of the accused-appellant received two injuries in this incident and one of which is an incised wound on the fatal part of the body, right frontal parietal region of the skull. The learned Public Prosecutor could not point out that any explanation was given for this injury according to the medical evidence is of the same time when the deceased was given a fatal blow of knife by Praduman.
4. In view of the above, looking to the facts and the prosecution evidence at its best, we find that substantial allegation which has been relied upon after disbelieving much part of the prosecution evidence, is that the knife below was given by the accused to the deceased. The genesis of the incident is a dispute between brothers and family members as according to the prosecution case, itself, Kanwar Lal enquired from Chhagan Lal as to why he has abused his wife. This led to some altercations when Kanwar Lal's son Praduman took out a knife and caused injuries to Chhagas Lal.
5. It is not without significance that major part of the prosecution story regarding injury having been caused, after the involvement of Kanwarlal Mst. Muli, Mst. Krishna and Mst. Kanti who have been acquitted by the trial judge, has been disbelieved.
6. Taking into consideration the entire facts arid circumstances of the case, we find that the incident had happened when the accused-appellant committed, an offence, of causing, an, injury which proved, to be fatal by losing self-control and at the spur of moment without any intention and motive to cause death or to cause such bodily, injury as is likely to cause death, he certainly found and since one injury is caused, it cannot be said that the accused in any way took advantage of his position. The offence, is, therefore, of culpable homicide not amounting to murder under Section 304, Part II IPC. Since the accused-appellant has already under gone the sentence as mentioned above, it would meet ends, of justice if he is sentenced to the sentence already under gone.
7. Consequently, this appeal is accepted partly. The conviction and sentence under Section 302, IPC ordered by the learned trial Judge are set aside. The appellant accused is convicted and sentenced under Section 304, Part II, IPC, to the sentence already under gone. The appellant is on bail and need not surrender. The bail bonds are forfeited.