JUDGMENT :

Pankaj Bhandari, J.

1. Instant appeal under Section 374 Cr.P.C. arises out of the judgment dated 25/02/2017 passed by Shri Tirupati Kumar Gupta, R.J.S. (District Judge Cadre), learned Additional Sessions Judge No.12, jaipur Metropolitian in Sessions Case No.124/2012 whereby the appellant has been convicted and sentenced to undergo life imprisonment under Section 302 IPC with fine of Rs.1,00,000/-and in default of payment of fine to further undergo additional sentence of two years simple imprisonment.

2. Succinctly stated the facts of the case are that on 10.07.2012 the complainant-Narendra Kumar Sharma lodged a written report at Police Station Ramganj, District Jaipur, on the basis of which an FIR bearing No. 265/2012 was registered by the Police under Section 302 IPC and thereafter, the investigation commenced. The police after investigation filed charge-sheet against the appellant for offence under Section 302 IPC and Section 4/25 of Arms Act. The case was triable by the Court of Sessions and therefore, the same was committed to the Court of Sessions and ultimately, the case was came to be transferred in the court of learned Additional Sessions Judge No.12, Jaipur Metropolitan for trial.

3. After hearing the arguments on charge, learned trial court framed charges for the offence under Section 302 IPC and Section 4/25 of Arms Act. The accused-appellant denied the charges and sought trial. During the trial, the prosecution examined 28 witnesses and got exhibited 54 documents in evidence in support of their case. The explanation of the appellant was recorded under Section 313 Cr.P.C. wherein he denied all the prosecution case and stated that he was falsely implicated in the case.

4. After consideration of evidences, statements of the witnesses as well as the documents on record and after hearing the arguments, the learned trial court passed judgment and sentence dated 25/02/2017 by which the appellant was convicted for offence under section 302 IPC and was acquitted for the offence under Section 4/25 of Arms Act. For offence under section 302 IPC, appellant was sentenced to undergo life imprisonment with fine of Rs.1,00,000/-, and in default of payment of fine to further undergo additional sentence of 2 years simple imprisonment. Hence, the present appeal.

5. At the outset, learned counsel for the appellant submitted that in the case in hand, he is arguing on limited ground that the appellant was wrongly convicted and sentenced under Section 302 IPC and as a matter of fact, the appellant, at the most, could have been convicted and sentenced under the provisions of Section 304 Part-II of IPC, wherein the maximum sentence is of 10 years and as the appellant has already suffered 11 years imprisonment with remission, he should be released forthwith by altering the conviction from Section 302 to Section 304 Part-II of IPC.

6. in this regard, counsel has placed reliance upon the judgments rendered in the case of Adu Ram V. Mukna & Ors.: (2004) AIR (SC)5064 and Gokul Parashram Patil Vs. State of Maharashtra: (1981)AIR(SC)1441, wherein the Apex Court had modified the conviction and converted the sentence of the accused from Section 302 IPC to Section 304 Part II IPC while observing that the injuries caused to the deceased were caused on the non-vital parts of the body and the accused did not intend to cause the injury.

7. Learned Additional Government Advocate has opposed the appeal, but has not disputed the fact that the case of appellant could not travel beyond Section 304 Part-II of IPC and that conviction can be altered from Section 302 to Section 304 Part-II of IPC.

8. Heard the arguments advanced by learned counsel for both the sides and perused record of the case.

9. The only question which requires our consideration is that whether the case of the accused appellant falls within the ambit of culpable homicide amounting to murder punishable Under Section 302 IPC or it was culpable homicide not amounting to murder punishable un