ORDER :

1. Leave granted.

2. The appellant is convicted by the trial court for an offence under Section 302 IPC. The judgment of the trial court is confirmed by the High court. The correctness of the judgments of the trial court and the High Court is assailed in this appeal by the convicted accused.

3. Notice was issued in this appeal on 11th March, 2019, to consider the case as to whether the matter would fall under Section 304 Part I or Part II of the I.P.C.

4. The charge framed by the Additional Sessions Judge in its order dated 3.5.2012 clearly reveals that on the date of incident, i.e., on 5.11.2010 at 6.30 p.m. Gordhanbhai Somabhai Rathod (deceased) was proceeding towards Navi Nagri; at that point of time he ran towards Manabhai Laxmanbhai Rathod (accused), the appellant herein and altercations took place. The accused being agitated by provocation of the deceased who started abusing, the accused immediately took out a knife and stabbed Gordhanbhai twice.

5. The aforesaid charge as well as the evidence produced by PWs.8 and 9 (the injured witnesses) would clearly reveal that the incident has taken place without premeditation and due to the provocation of the deceased. Therefore, th