JUDGMENT 1. - This appeal has been preferred against the judgment of the learned' Sessions Judge, Udaipur, dated 21-3-74 by which the learned Sessions Judge convicted the appellant for the offence under section 302 Indian Penal Code and sentenced him to imprisonment for life and a fine of Rs. 100/- in default of payment of fine to under go three months further rigorous imprisonment. 2. Briefly stated the facts of the case giving rise to this appeal are that the appellant and deceased Bhoor Singh were real brothers and were having agricultural land in village-Kamli. The land belonging to Bhoor Singh was mortgaged by him with one Dola, husband of Smt, Kankoo (P.W. 4) vide Ex. P. 1 for a consideration of Rs. 300/-. Later on Smt. Kankoo sub-mortgaged the field to one Madhosingh, father of Smt. Durga Kanwar (P. W. 2). Madhosingh is said to be in possession of the field since 3-7-72. On 4-7-72 at about 8.00 a.m. Smt. Durga Kanwar went to the field for getting it ploughed by the appellant who was engaged by her for this purpose. Bhoor Singh deceased was returning on a cycle after doing work. On seeing the appellant ploughing his field, Bhoor Singh objected to it and abused him and asked him not to plough the field as he would repay the mortgage money. Bhoor Singh went to his house situated nearby and the appellant armed with an axe followed him and caused axe blows on his body. Bhoor Singh met his death on account of the injuries inflicted by the appellant. The appellant then went to Police Station, Deogarh and at about 11.00 a.m. lodged an oral report which reduced into writing is Ex. P. 15. The appellant was arrested by P.W. 9, Station House Officer, Udaisingh, vide memo Ex. P. 13. At that time the appellant was having blood stained axe Ex. 11 with him, which the Station House Officer took into possession vide memo Ex. P. 14. The Station House Officer than went to the site and proceeded with the necessary investigation in the case. The blood stained earth, the cycle and pen of the deceased lying X at the site, were taken into possession and were sealed then and there. The blood stained clothes of the deceased were also taken into possession. P. 14. The Station House Officer than went to the site and proceeded with the necessary investigation in the case. The blood stained earth, the cycle and pen of the deceased lying X at the site, were taken into possession and were sealed then and there. The blood stained clothes of the deceased were also taken into possession. The dead body of Bhoor Singh was sent for postmortem examination to Primary Health Centre, Deogarh, where Dr. Arun Swami conducted the autopsy over the dead body of Bhoor Singh on 4-7-73 at 3-20 p.m. The Doctor noted as under:- "Rigor mortis was present and there was no decomposition. Pupils of both the eyes were dilated and equal". External Injuries 1. Oblique incised wound 5"x2"x bone deep on right shoulder. 2. Oblique incised wound 6"x3"x bone deep, starting from angle of right Mandible upto neck. 3. Tranaverse incised wound 2,1/2"x l" x bone deep on the posterior surface of right first matacorpo phallagial joint. 4. Transverse incised wound 2" x 3/4" x bone deep, on right occipital scalp. 5. Transverse incised wound 4" x l,l/2 " x bone deep, on left parietal scalp, 4" above mastoid process. 6. Vertical abrasion 3"x3/4" on centre of sternum. On dissection of the dead body the Doctor observed as underI, Skull, Scalp & Brain (i ) Fracture of right occipital bone. (ii) Fracture of left parietal bone. (iii) Fracture of bone of 4th cervical vertebrae. II Membranes were torn and congested, blow the fractures of left parietal and right occipital bones. III Brain ; Superficial laceration of left parietal and right occipital bone with punctuate haemorrhage. Congestion of spinal cord at the level of 3rd to 5th cervical vertebrae. Chest : Left and right lungs were congested. Heart was healthy and its both the chambers were empty. All the large vessels of right neck were cut. Abdomen : Stomach was wealthy and contained undigested food material. Small intestine was healthy, and contained gases. Large intestine was also healthy and contained facial matter. Liver, spleen and kidneys were congested. Bones and Joints : (i) Fracture of right mandible at the level of its angle. (ii) Fracture of head of right matacarpal. 3. In the opinion of the Doctor, Bhoorsingh died of shock and haemorrhage due to injuries on neck and brain. The injuries were ante mortem in nature and were caused by sharp edged weapon. Bones and Joints : (i) Fracture of right mandible at the level of its angle. (ii) Fracture of head of right matacarpal. 3. In the opinion of the Doctor, Bhoorsingh died of shock and haemorrhage due to injuries on neck and brain. The injuries were ante mortem in nature and were caused by sharp edged weapon. Except injury No. 3, all were sufficient in the ordinary course of nature to cause his death. The articles recovered in the case along with an are, recovered from the possession of the appellant at the time of his arrest, were sent in sealed packet for chemical examination through Nanda Singh (P.W.7) Head Constable, who deposited the articles in sealed condition and brought the receipt from there and filed it in the office of the Superintendent of Police, Udaipur. The report of the Chemical Examiner is Ex. P. 19 and that of the Cerolo-gist is Ex. P. 20. After completion of necessary investigation charge-sheet against the appellant was filed in the court of First Class Magistrate, Bhim. The learned Magistrate conducted a preliminary enquiry in the case and upon finding a prima-facies case exclusively triable by the court of Sessions, committed the appellant to the court of Sessions, Judge, Udaipur, to stand his trial for the aforesaid offence. The learned Sessions Judge, charge-sheeted the appellant and recorded his plea. The appellant denied the indictment and claimed to be tried. In order to substantiate its case, prosecution examined 9 witnesses in all. The statement of Doctor Arun Swami recorded in the committal proceedings in the presence of the appellant, who had full opportunity to cross-examine him and a note to that effect being appended by the Presiding Officer, was taken on the record of the Sessions Court an has been marked Ex. P. 17, In his statement the appellantment totally denied the allegations levelled against him and stated that he had a quarrel about the fields with the deceased and one or two years ago Bhoor Singh had dealt an axe blow on his neck. That, on that day also Bhoor Singh went with an axe to give a beating to him and in case he would not have inflicted blows to Bhoor Singh, latter would have done him to death. That, on that day also Bhoor Singh went with an axe to give a beating to him and in case he would not have inflicted blows to Bhoor Singh, latter would have done him to death. Kesar Singh appeared in the witness box as P.W. 2 under section 349-A Criminal Procedure Code (Old) and examined Smt. Hanja (P.W. 1) to substantiate his contention about Bhoor Singh dealing with an axe blow on the neck of the appellant a few years back and hitting with lathi two years thereafter, which matter was compromised. The learned Sessions Judge placed reliance on the prosecution evidence and held the appellant guilty for the offence of murder and convicted & sentenced him as stated above. 4. The appellant has preferred this appeal through the Superintendent, Central Jail, Udaipur. As he was not represented by any counsel to plead his case in this Court, Mr. B. Advani was appointed amicus-curiae to argue the appeal on his behalf. 5. The prosecution has led direct as well as circumstantial evidence against; the appellant. The direct evidence is that of Smt. Hanja (P. W. 1) and Smt. Durga Kanwar (P. W. 2). The circumstantial evidence is the recovery of the blood stained axe found with the appellant at the time of his arrest when he had gone to the Police Station to lodge the First Information Report immediately after the occurrence and the appellant having dispute with his brother, deceased Bhoor Singh regarding the field. 6. At the very out set we may observe that so far as the field belonging to Bhoor Singh being mortgaged with Dola is concerned, there is no dispute. Smt. Kankoo wife of Dola, has supported this part of the prosecution case as coming forth from the statement of Smt. Hanja. The field mortgaged with Dola is said to have been sub-mortgaged by Smt. Kankoo with Madhosingh father of Smt. Durga Kanwar who is said to be in possession of the field at the relevant time. Smt. Kankoo, has stated that she had not given the field to Madhosingh for a consideration of Rs. 300/- rather she had given it to Kesar Singh appellant who had given her Rs. 300/- and she had thereupon given Ex. P. 1, the mortageged deed to Kesar Singh. Smt. Kankoo, has stated that she had not given the field to Madhosingh for a consideration of Rs. 300/- rather she had given it to Kesar Singh appellant who had given her Rs. 300/- and she had thereupon given Ex. P. 1, the mortageged deed to Kesar Singh. The statement of this witness appears to be correct as is evident from the statement of Smt. Hanja also that it was to Kesar Singh that Bhoor Singh had told that he should not plough the field as he (Bhoor Singh) would pay the money and on this the appellant told him that he would bring the stamp if he would pay the money. This shows that there was some dispute about the field between the deceased and the appellant and Madhosingh was not the real mortgagee. 7. Coming to direct evidence Smt. Hanja (P.W.l) had deposed that on the day of the occurrence Smt. Durga Kanwar and the appellant Kesar Singh gone to plough the field. Bhoor Singh had gone for labour and was returning on his cycle at about 10.00 a. m. for taking food. Her house is near the field. While standing outside his house Bhoor Singh asked Smt. Durga Kanwar and Kesar Singh not to plough the field as he was paying the money. Smt, Durga Kanwar and Kesar Singh then went outside the house of Bhoor Singh. Kesar Singh told the deceased as to whom he was addressing and the latter replied that he was making him (Kesar Singhi not to plough the field as he was making the payment. Kesar Singh told Bhoor Singh to bring the money so that he may bring the stamp. Kesar Singh was having an axe in his hand. Kesar Singh inflicted an axe blow on the back side of the neck of the deceased who fell down and when he began to stand up Kesar Singh inflicted 3 or 4 more injuries with an axe to the deceased. 8. Smt. Durga Kanwar (P. W. 2) supported the version of Smt. Hanja upto the stage of there being a talk about the payment of money and bringing the stamp. 8. Smt. Durga Kanwar (P. W. 2) supported the version of Smt. Hanja upto the stage of there being a talk about the payment of money and bringing the stamp. She stated about Kesar Singh and Bhoor Singh both having axes with them but did not support the version that she had actually seen Kesar Singh causing axe injuries to Bhoor Singh rather she has stated that when they were quarrelling, she ran away at a distance. Her statement recorded in the committing court was taken on the record of the Sessions Court under section 238 Code of Criminal Procedure (old) and was marked as Ex. P. 2 She was cross-examined by the Public Prosecutor with regard to her statement in the committing court. From the statement of Smt. Hanja as well as that of Smt. Durga Kanwar recorded in the committing court it is duly established that it was on account of the axe blow inflicted by the appellant that Bhoor Singh had met his death. 9. The pertinent question calling for answer is whether the defence version, that it was in the exercise of right of his private defence and on account of grave and sudden provocation caused by the deceased, that the appellant had caused injuries to Bhoor Singh is true and believable. 10. The learned Amicus-curiase, assailing the finding of the learned Sessions Judge holding the appellant guilty for the offence of murder of Bhoor Singh, has not taken into consideration the fact that there is solitary testimony of Smt. Hanja wife of the deceased, an interested, witness to connect the accused with the commission of the crime. According to Mr. Advani, Smt. Hanja has not narrated the true story and has concealed the part played by her husband and therefore, the defence version about the deceased attempting to cause injuries to the appellant with an axe has been wrongly disbelieved by the learned trial judge. He has also referred to the part of the statement of Smt. Hanja wherein she had admitted that her husband also had an axe in his hand. Referring to the statement of Smt. Durga Kanwar Mr. He has also referred to the part of the statement of Smt. Hanja wherein she had admitted that her husband also had an axe in his hand. Referring to the statement of Smt. Durga Kanwar Mr. Advani argued that she had stated about there being quarrel between the two brothers and therefore, the statement of the appellant about Bhoor Singh attempting to cause axe blows to him stands corroborated by the prosecution witness and his case falls within the ambit of right of private defence of person and, therefore, his conviction deserves to be set aside. 11. The appellant had come with a plan that Bhoor Singh had rushed towards him with an axe and therefore, in order to save himself he had inflicted axe blows to him. A suggestion to that effect was made to Smt. Hanja but she had denied it. Smt. Durga Kanwar in her deposition in the court has simply stated about the quarrel hetween the two and her running away from there. She had only stated about Kesar Singh and Bhoor Singh, both having axes in their hands at that time. It had no where been suggested to her that Bhoor Singh had rushed with an axe towards the appellant so as to restrain the latter from inflicting axe blows in order to save his person. 12. This being the position, we find ourselves unable to agree with the contention of the learned Amicus-curiae that from the evidence on record it is spelt out that it was in exercise of the right of private defence of person that the appellant had caused injuries to the deceased. 13. The next argument advanced by the learned Amicus-Curiae is that in view of the evidence about the deceased hurling filthy abuses relating to the mother, and sisters of the appellant, the latter lost his balance of mind and it was on account I of grave and sudden provocation so caused by the deceased that the appellant had caused injuries to the deceased with an axe and therefore, his case does not fall within the definition of murder. 14. 14. The learned Public Prosecutor, controverting these contention, submitted that more hurling filthy abuses does not amount to grave and sudden provocation to the extent of taking the life of the abuser and therefore, this is a case of murder and does not fall under the exception of section 300 Indian Penal Code. 15. In order to appreciate the point whether the offence committed by the appellant is murder or culpable homicide not amounting to murder and falls within exception 1 of section 300 Indian Penal Code, a careful scrutiny of the evidence is required to find out whether there was any such provocation caused by the deceased so as to cause the loss of self control by the appellant and inflict injuries resulting in the death of his brother. 16. According to Smt. Hanja, Durga Kanwar and Kesar Singh reached out side her house when Bhoor Singh asked them not to plough and there was a talk about the payment of the money and return of stamp and Kesar Singh told that if he (Bhoor Singh) pays the money, he would bring the stamp. Kesar Singh than inflicted blow with the blunt side of the axe on the rear part of her husband's head and he fell down. When he tried to get-up Kesar Singh inflicted blows with the sharp side of the axe causing injuries. She has not stated about her husband hurling abuses to the appellant but according to her the quarrel had taken place outside her house and there was nothing like the deceased going towards his house and the appellant chasing him and then inflicting axe blows to him. Smt. Durga Kanwar in her deposition at the trial has stated that Bhoor Singh came on cycle and hurled abuses relating to mother and sisters at the appellant. Kesar Singh appellant asked him not to hurl abuses and told him that he would not plough the field and he might bring the money and take the stamp. Bhoor Singh then called from the well and uttered the words " ys :i;s nsrk gwWa " According to the witness the well and the house of Bhoor Singh are nearby. Kesar Singh went towards Bhoorsingh's well. The witness remined at a distance of 5-7 paundas. Bhoor Singh and Kesar Singh quarrelled and the witness ran away from there. The statement of the witness in the committing court Ex. Kesar Singh went towards Bhoorsingh's well. The witness remined at a distance of 5-7 paundas. Bhoor Singh and Kesar Singh quarrelled and the witness ran away from there. The statement of the witness in the committing court Ex. P. 2, taken on record at the trial under section 288 of the Code of Criminal Procedure (Old) being substantive piece of of evidence, we referred to that statement and noted that there also she had stated about deceased placing cycle at his well and hurling abuses relating to the mother and sisters at the appellant and asked him not to plough his field. Kesar Singh left the bullocks and went near him and demanded the money. The witness further stated in Ex. P. 2 that after abusing, Bhoor Singh was going ahead and Keshar Singh was following him. So far as the hurling of the abuses by Bhoor Singh and there being quarrel between the two brothers is concerned, the statement of Smt. Durga Kanwar is consistent in both the courts i. e. committal court as well as in the trial court and there is no reason to disbelieve that part of her version. The appellant in his statement under section 342 of the Code of Criminal Procedure (Old) as well as 342-A of the Code of Criminal Procedure appearing as D. W. 2 has specifically taken the plea that Bhoor Singh had hurled abuses upon him. 17. The defence version about the deceased hurling filthy abuses regarding mother and sister of the appellant having been proved, the point emerging for determination is as to whether those abuses caused grave and sudden provocation by the deceased so as to cause loss of self control on the part of the appellant and create an occasion for him to inflict axe blows to the abuser. 18. In order to make out whether the culprit is entitled to the benefit of exception 1 of section 300 Indian Penal Code the court should be vigilant to see that the provocation must be such as would upset not merely a hot tempered or a highly sensitive person but one of ordinary calmness too. 19. The standard to be adopted in such cases is not the standard of a sophisticated and thoughtful man rather it should be that of a reasonable man liable to the heat and passion of a man of average understanding. 19. The standard to be adopted in such cases is not the standard of a sophisticated and thoughtful man rather it should be that of a reasonable man liable to the heat and passion of a man of average understanding. The environment in which the culprit lives and the peculiar circumstances 01 the case coupled with the words uttered and the gestures made by the provocateur are the important factors to be kept in view while deciding the cases in which either specific plea of grave and sudden provocation is raised or the same is spelt out from the material available on record. 20. In the case of K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 their Lordship have been pleased to lay down the following principles to be kept in mind while deciding the cases attracting the provisions of exception one to Section 300' Indian Penal Code. "The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to loss his self control. In India, word is and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S. 300 I. P. C. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence." 21. With this principle in mind, we now turn to the facts and circumstances of the present case in order to find out whether the appellant is entitled to the benefit of Exception - 1 to Section 300 Indian Penal Code. As discussed above, it is well established from the testimony of the prosecution witnesses that it was a sudden quarrel. The deceased annoyed the appellant asking him not to plough the field as he was paying the money. It is also evident that the appellant did not insist upon ploughing the field rather told his brother, the deceased, to pay the mortgage consideration and take the stamp. The deceased annoyed the appellant asking him not to plough the field as he was paying the money. It is also evident that the appellant did not insist upon ploughing the field rather told his brother, the deceased, to pay the mortgage consideration and take the stamp. The evidence shows that from the very start the deceased hurled filthy abuses relating to mother and sisters at the appellant is a rustic placed in the environment, in which the filthy abuses especially about mother and sisters are bound to provoke a person. It cannot be expected of him to control himself and keep equable temper. It may be expected of a sophisticated person living in cultured society and used to the modern living but hardly from a villager lacking proper understanding on account of illiteracy. The filthy abuses uttered by the deceased, in our opinion were sufficient to give resentment to the appellant and if in the heat of passion he caused injuries to the deceased, he is entitled to the benefit of first exception of Section 300 Indian Penal Code and this brings his case out of the preview of Section 302 Indian Penal Code. 22. We are, therefore, inclined to hold that the case of the appellant falls within the ambit of Section 304 Indian Penal Code and not under Section 302 Indian Penal Code. 23. The next question asking for determination is as to whether the appellant should be held guilty and punished under part - 1 of section 304 or part - 2 of that section. 24. Certain cases which we will just discuss have been referred to by the learned counsel for the appellant to substantiate his contention that the case of the appellant falls under section 304 Indian Penal Code and and in view of the circumstances of the case, he can be punished only under part - 2 of that section. 25. In Jogindar v. The Crown, 1938 Punjab Law Reporter (Vol. XL) page 159 the deceased had struck stick blows on the head of the deceased because the latter in drunk condition was abusing in filthy language of the sisters and mother of the accused. In such circumstances it was held that the accused was not guilty of murder rather of the offence either under section 325 or under section 304 part - 2 Indian Penal Code. 26. In such circumstances it was held that the accused was not guilty of murder rather of the offence either under section 325 or under section 304 part - 2 Indian Penal Code. 26. In the case of State v. Pabitra Guru, 1969 Orissa 287 the deceased was in very angry mood. He had raised the axe to kill the accused and the latter snatched it and caused injuries to the deceased. All those facts were held sufficient to provoke the accused to the extent of depriving him of the power of self control in such circumstances (there being two incised wounds sustained by the victim) Exception - 1 to Section 300 Indian Penal Code in terms was applied. 27. In the case of Amarjit Singh, Sohan Singh v. The State, 1970 Punjab & Haryana 279 the unemployed and addicted to drinking, father of the accused demanded money from the latter who declined to give money to the deceased to be wasted in drinking. Father hurled foul abuses about the mother of accused. The accused on hearing the abuses inflicted, blows with knife to the father and it was held that the abuse of the foulest kind hurled by the deceased in the circumstances of the case was grave and sudden enough to entitle the accused to the benefit of Exception to Section 300 Indian Penal Code. Consequently the offence committed by him considered under section 304 part - 1. 28. In the case on hand the appellant losing balance of mind and self control, on account of the filthy abuses regarding his mother and sisters hurled by the deceased, had inflicted axe blows to the deceased. He had of course as stated by Smt. Hanja had inflicted the first blow by the rear side of the axe but subsequently used in the sharp side of the axe and caused more than one injury to the deceased. A few of them proved fatal for the victim. The case of the appellant, therefore, falls within the ambit of section 304 Part - 1 Indian Penal Code. 29. Consequently, we partly accept the appeal and alter the conviction of the appellant for the offence under section 302 Indian Penal Code to 304 Part - I Indian Penal Code and his sentence for imprisonment for life and and a fine of Rs. 29. Consequently, we partly accept the appeal and alter the conviction of the appellant for the offence under section 302 Indian Penal Code to 304 Part - I Indian Penal Code and his sentence for imprisonment for life and and a fine of Rs. 100/- in default to undergo three months further rigorous imprisonment is altered to rigorous imprisonment for a period of eight years and fine of Rs. 100/-, in default of payment of fine to further under go three months rigorous imprisonment. Sd/- K.D. Sharma, A.C.J. Sd/- Kanta Bhatnagar, J.Appeal partly allowed. *******