Point of Law : 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.

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. 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