JUDGMENT 1. This appeal is directed against the judgment dated October 5, 1972 by which the learned Sessions Judge, Jodhpur convicted the appellant Omprakash under section 302 Indian Penal Code and sentenced him to imprisonment for life. 2. On April 29, 1972 at about 2 p. m. a quarrel arose between Gyanchand on the one hand and Omprakash appellant and his brother Kishanlal, when they met in the street near their house. According to the prosecution case the quarrel started in connection with illicit intimacy Gyanchand had with the wife of Kishanlal. During the course of the quarrel Gyanchand became aggressive and started hitting Omprakash and Kishanlal with stones. 3. Omprakash and Kishanlal started throwing stones at Gyanchand. During the course of that quarrel Gyanchand said to Omprakash that he would put his wife upside down then and there and outrage her modesty. Thereupon, according to the prosecution case itself, Omprakash rushed into his house which was nearby, and brought `a Rampi' which was used by him for preparing shoes and stabbed Gyanchand as a result of which he sustained an injury and died shortly thereafter. 4. The appellant and his brother Kishanlal were tried in the Court of Sessions Judge, Jodhpur on the allegation that they in furtherance of their common intention attacked Gyanchand while he was going in the street because of previous enmity and during the course of that attack Omprakash inflicted a fatal injury on Gyanchand and thereby Omprakash committed an offence punishable under section 302, Indian Penal Code, and Kishanlal an offence under section 302 read with section 34, Indian Penal Code. Kishanlal has been acquitted. 5. In support of its case the prosecution mainly relied on the evidence, of Ambalal (.P. W. 6) and to some extent on the evidence Likimichand (P.W. 4) Gulam Rassul (P. W. 7), and Tikamchand (P. W. 8). The appellant, his brother, and these witnesses are all cobblers, and their evidence shows that they were in small houses close to each other. The incident happened in the street in front of their houses. Likimichand (P. W. 4) was in his house. He heard the cries that Gyanchand was murdered. Hearing the cries he came out and saw the appellant running away, armed with a Rampi. He saw the clothes of the appellant stained with blood. The incident happened in the street in front of their houses. Likimichand (P. W. 4) was in his house. He heard the cries that Gyanchand was murdered. Hearing the cries he came out and saw the appellant running away, armed with a Rampi. He saw the clothes of the appellant stained with blood. He immediately went to the spot, which was nearby and found Gyanchand lying with a bleeding injury on his chest being attended by Kishanlal (P. W. 1), brother of Gyanchand, Ambalal (P. W. 6) and Tikamchand (P. W. 8) Likimichand (P. W. 4) came to know from Kishanlal (P. W. 1) that the assailants of Gyanchand were Omprakash and Kishanlal, and he was asked to go to the Police Station and report the matter. He went to the Police Station at 2.15 P. M. and orally reported about what he came to know from Kishanlal. That statement was recorded by the Station House Officer as per Ex. P. 11. At the earliest point of time Ex. P. 11 came into existence within 15 minutes after the incident and in that the entire case of the prosecution has been mentioned. Kishanlal (P. W. 1), Tikamchand (P. W. 8) in their evidence have stated that hearing the cries they came to the spot and came to know from Ambalal (P. W. 6) that Gyanchand was stabbed by Omprakash with `a Rampi'. Ambalal (P. W. 6) in the committal court substantially supported the prosecution case but at the time of trial in the Sessions Court he resiled. Therefore his evidence in the committal court (Ex. P. 16) under section 288, Code of Criminal Procedure (old) was brought in record. This section is not one which may be lightly used. It is not to be used as a matter of course but in the discretion of the Judge, and the fact that the whole statement is to be brought on record and used as substantive evidence suggests that the proper occasion to use it is when the Judge is satisfied that the statement made before him is substantially false, and the statement made before Committing Magistrate is substantially true. As the power given to him is one in deviation of the general principle that a court can act only on the evidence given before it, the decision to let in the previous deposition of a witness under this section should be arrived at after a careful consideration. In this case the learned Sessions Judge, in our opinion, after careful consideration has arrived at the conclusion that the deposition of Ambalal (P. W. 6) made in the committal court was a true account of the incident ana we entirely agree with that conclusion. 6. We have gone through the evidence of Ambalal (P.W. 6) given at the trial and in the committal court. We find that the evidence of Ambalal (P. W. 6) in the committal court finds corroboration not only from the circumstances available in the case but also from the evidence of Likimichand (P. W. 4), Kishanlal (P. W. 1) and Tikamchand (P. W. 8). Even the defence witnesses who have been examined on behalf of the appellant have stated that Aambalal (P. W. 6) was present when they went there. Therefore, the version given by Ambalal in the committal court that he was present and that it was the appellant, that stabbed Gyanchand, in our opinion, is a true account of incident. 7. It is contended on behalf of the appellant that from the sequence of events that transpired during the course of the quarrel, even if the prosecution case is accepted, this would be a case of not murder but culpable homicide not amounting to murder failing under Section 304, Indian Penal Code. There is a good deal of force in this contention. The incident happened during a sudden quarrel. There is no evidence how the quarrel started. When the quarrel was in progress, Gyanchand started throwing stones at the appellant and his brother. The appellant questioned Gyanchand whether he was justified in madding with the wife of his brother for which Gyanchand said to him that he would drag his wife and put her down and rape her. There is no evidence how the quarrel started. When the quarrel was in progress, Gyanchand started throwing stones at the appellant and his brother. The appellant questioned Gyanchand whether he was justified in madding with the wife of his brother for which Gyanchand said to him that he would drag his wife and put her down and rape her. This utterance taking into consideration the class to which the person belonged the appellant must have deprived of the power of self control by reason of grave and sudden provocation given by Gyanchand and in that condition if the appellant went his house nearby and brought the `Rampi' and inflicted an injury which proved fatal his act does not fall under section 300, Indian Penal Code. 8. In Harjinder Singh v. Delhi Administration, AIR 1969 S.C. 867 : 68 Cr.L.J 7023 the facts were these : At about 2 P. M. a fight took place between A, one of the prosecution witnesses, and the accused near the water tap in front of a factory in a lane in Delhi. The accused was apparently worsted in the fight and he then left the place holding out a threat that he would teach a lesson to A. The accused returned with his brother to the house of A and shouted to A to come out. There upon a lady opened the door of the house and asked the accused and his brother to go away, but one of these persons pulled `A' out of the house into the lane and gave him beating near a lamp-post in the corner of the lane. At that time one Kewal Kumar, who was the brother of A came and tried to intervene to rescue his brother. At this stage the accused caught hold of `A' took out a knife and stabbed him. In that case their Lordships convicted the appellant under section 304, Part I, Indian Penal Code, and imposed the sentence of seven years rigorous imprisonment. In this case the appellant was belaboured by the deceased by hitting him with stones. Not being satisfied with that the deceased said to him that he would outrage the modesty of his wife then and there in front of him. In this case the appellant was belaboured by the deceased by hitting him with stones. Not being satisfied with that the deceased said to him that he would outrage the modesty of his wife then and there in front of him. Thereupon, the appellant picked up `a Rampi' which is an instrument used for preparing shoes by a cobbler, and gave a blow which unfortunately ended in the death of Gyanchand. In these circumstances, we feel that this is a case which falls under section 304, Part I, Indian Penal Code. 9. Accordingly, we set aside the conviction and sentence under section 302, Indian Penal Code, and instead convict the appellant under section 304, Part I, Indian Penal Code. So far as the sentence is concerned the appellant has been in jail since April 29, 1972 and taking the length of time that he has been in jail, we consider that the ends of the justice would be met by sentencing him to the period already undergone, and we direct that he shall be set at liberty forthwith.Appeal partly allowed. *******