JUDGMENT V. N. Varma, J. 1. THIS is an appeal from the judgment and order of Sri R. P. Jain, Sessions Judge, Jhansi, by which he convicted the appellant (Swami Prasad) under section 302 IPC and sentenced him to imprisonment for life. 2. THE person who lost his life in this case was one Gajraj Singh. He was a resident of village Pasora, P. S. Todi Fatehpur, district Jhansi. The appellant is his next-door neighbour, his house being just towards north of his house. Just a wall separated their houses. It appears that a Kachcha room existed in the north west portion of the house of the deceased touching the wall separating the two houses. According to the prosecution this Kachcha room did not rest on this wall. There was a wall running parallel to the south of this wall and it was on this wall that the Kachcha room rested on the northern side. The deceased wanted to construct this Kachcha room into a pucca one. He, therefore, demolished this Kachcha room and first constructed pucca walls on the foundation of the old walls existing towards east, west and south. The last wall that he was to construct was towards north. He demolished the old wall towards north on 13th and 14th June, 1972 and thereafter he was getting the foundation dug for constructing a new wall in its place. This work was to continue on 16th June, 1972 also. It is said that on 16th June, 1972 at about 7 A. M. the deceased was digging foundation and removing earth for constructing the northern wall when the appellant came there armed with an axe. He asked the deceased not to remove earth from the foundation of the wall. The deceased told him that the wall belonged to him and he was within his right to remove earth from its foundation. The appellant then started hurling abuses on him. He asked the appellant not to abuse him. The appellant felt irked at the conduct of the deceased and he gave an axe blow on his head. The deceased fell down unconscious on the ground. The appellant then ran away from there. This incident was witnessed by a few persons including Ram Swarup (PW 1). Ram Swarup (PW 1) took Gajraj Singh to P. S. Todi Fatehpur on a bullock-cart. There he lodged a written report at 11. The deceased fell down unconscious on the ground. The appellant then ran away from there. This incident was witnessed by a few persons including Ram Swarup (PW 1). Ram Swarup (PW 1) took Gajraj Singh to P. S. Todi Fatehpur on a bullock-cart. There he lodged a written report at 11. 30 A. M. On the basis of that report a case under section 324/504 IPC was registered against the appellant. Thereafter, the police sent Gajraj Singh to district hospital Jhansi for medical examination. There he was examined by Dr. P. 0. Gupta at 4. 30 P. M. He found an incised wound 3" x 1/4" with clean cut edges on the top of the scalp. Gajraj Singh died on the next day at 9. 30 P. M. After the death of Gajraj Singh the case was converted into one under section 302 IPC. 3. THE post-mortem-examination on the dead body of Gajraj Singh was conducted by Dr. P. P. Ajwani on 18-6-1972 at 5 P. M. He found the following ante mortem injury on the dead body. "Incised wound 2-1/2" x 1/2" x bone deep on the scalp parieto-frontal region of scalp about 4" above the bridge of the nose. The margins of the wound were clean cut and were gaping." 4. EXAMINING internally Dr. P. P. Ajwani found (i) clotted blood in between the scalp and skull bone in parieto frontal region (ii) linear fracture of the frontoparietal bone of the scalp and (iii, clojted blood on the cerebral hemisphere in fronto-parietal region. According to the autopsy surgeon death was due to shock and haemorrhage as a result of injury to the brain. 5. AFTER the usual investigation was over, the appellant was sent up to stand his trial under section 302 IPC. 6. THE appellant pleaded not guilty and claimed to be tried. He alleged that the wall separating his house and the house of the deceased jointly belonged to them. He alleged that the deceased started demolishing this wall on 15-6-1972 and when he objected to this he promised not to pull it down. He, however, went back on his promise and again started demolishing it on 16-6-1972. He felt that the demolition of the wall would damage his house. He, therefore, went to the house of the deceased and asked him not to demolish the wall. He, however, went back on his promise and again started demolishing it on 16-6-1972. He felt that the demolition of the wall would damage his house. He, therefore, went to the house of the deceased and asked him not to demolish the wall. The deceased did not listen to him and started hurling filthy abuses on him. He also tried to assault him with a spade. He ducked and saved himself but the deceased was in no mood to spare him and he made another attempt to strike him with his spade. Finding his life in danger he took up a Chaukhat lying on the ground and hit the deceased with it in self-defence. At that time the deceased happened to be in a crouching position and the Chaukhat landed on his head. 8 a. The learned Sessions Judge found the prosecution case fully proved against the appellant and he, therefore, convicted and sentenced him as indicated above. Aggrieved, he has come up in appeal to this Court. We have heard the learned counsel for the appellant at sufficient length and after doing so we do not think that he has succeeded in advancing any argument of substance to persuade us to knock down altogether the conviction of the appellant. The fact that the appellant caused head injury to the deceased on the morning of 17-6-1972 is not in dispute before us. It is also not in dispute that that head injury proved fatal and the deceased died on the night of 17-6-1972. The only controversy in regard to this matter is whether the head-injury that was caused to the deceased was caused with a blunt weapon or with a sharp edged weapon. According to the appellant he had caused it with a Chaukhat (Lakari) while according to the prosecution it had been caused with an axe. We have already mentioned in detail the injury received by the deceased. The deceased was first examined by Dr. P. C. Gupta on 16-6-1972 at 4.30 P.M. He described the injury found on the body of the deceased as incised wound with clean cut edges. After the death of the deceased the post-mortem examination was conducted by Dr. P. P. Ajwani and he also described the injury of the deceased as incised wound with clean cut margins. An incised wound having clean cut margins is generally caused with a sharp edged weapon. After the death of the deceased the post-mortem examination was conducted by Dr. P. P. Ajwani and he also described the injury of the deceased as incised wound with clean cut margins. An incised wound having clean cut margins is generally caused with a sharp edged weapon. Sometimes wounds produced by a blunt weapon on a bony part of the body give an impression of being incised wounds but when minutely observed the edges of those wounds will always be found to be irregular with a certain amount of bruising. In the instant case the wound found on the head of the deceased was not found to have irregular edges nor did it have any bruising around it. On the contrary, as stated above, the two doctors who had examined the injury of the deceased have unequivocally mentioned that the edges of his injury were clean cut. Therefore, as it is, we are satisfied beyond all doubt that the injury found on the body of the deceased had been caused with a sharp edged weapon and not with a blunt weapon as claimed by the appellant. Almost all the witnesses examined in this case have stated in clear words that the appellant had caused the head injury to the deceased with an axe and we see no reason to disbelieve them. 7. NOW, the next question that falls for answer is whether the appellant had succeeded in making out any case of self defence for causing the fatal head injury to the deceased. The defence put forward by the appellant in this case is that on the morning of 16-6-1972 the deceased was trying to demolish the common wall of their houses and when he asked him not to do so he lost his temper and started abusing him. Thereafter, he even tried to assault him with a spade. He felt danger to his life and it was to save his life that he also caused an injury to the deceased which subsequently proved fatal. To start with there is nothing convincing on record to show that the deceased had been demolishing the common wall that existed between their houses. The Investigating Officer had found this wall to be more or less intact when he visited the spot soon after the incident. To start with there is nothing convincing on record to show that the deceased had been demolishing the common wall that existed between their houses. The Investigating Officer had found this wall to be more or less intact when he visited the spot soon after the incident. Even if one took if for a moment that the deceased scraped a portion of that wall with a view to raise a new wall for constructing a pucca room that will not give a cause of action to the appellant to mount an assault on him. This thing was even conceded by the learned counsel for the appellant. The learned counsel, however, contended that in this case the deceased had tried to assault the appellant with a spade when the latter asked him not to cause damage to the common wall and, therefore, the right of private defence accrued to him. There is nothing convincing on record to show that the deceased had tried to assault the appellant with a spade. If the deceased really wanted to assault the appellant with a spade he could not have escaped without receiving even a scratch on his body more so when he was carrying aothing to save himself. The witnesses examined by the prosecution, namely, Ram Swarup (PW 1), Sita Ram (PW 2), Smt. Prem Kunwar (PW 3) and Gyan Simgh (PW 4) have also stated in clear words that the deceased had never made any attempt to strike the appellant with a spade. According to the learned counsel for the appellant Ram Swamp (PW 1) and smt. Prem Kunwar (PW 3) should not be believed because they are not named as witnesses in the report. It is true that they are not specifically named as witnesses in the report but on that ground alone we: are not prepared to thorw their testimony over board. Ram Swarup has given good reasons for not specifically menuomng his name aed the name of Smt. Prem Kunwar as witnesses in the case According to mm, he had made the report and, therefore, he thought that it was not necessary to mention that he had also witnessed the incident. Regarding mt. Ram Swarup has given good reasons for not specifically menuomng his name aed the name of Smt. Prem Kunwar as witnesses in the case According to mm, he had made the report and, therefore, he thought that it was not necessary to mention that he had also witnessed the incident. Regarding mt. Prem Kunwar sated that she was the wife of the deceased and, therefore, he thought that it was not necessary to mention her name in the report because her presence at the time of the incident was to be taken for granted. Ram Swarup was a lay man and here was nothing surprising if he thought in the way in which he did. Ram Swarup is the step brother of the deceased and his house is quite close to his house. On the morning of the day of incident he had come to the house of the deceased to take 'Tat' for his bullock cart and then he claimed to have seen the incident. We have gone through his statement very carefully and we think that he is a good and dependable witness. So far as Smt. Prem Kunwar is concerned we think that she also is a good witness and it will not be proper to ignore her evidence for nothing. Being the wife of the deceased her presence at the time of the incident cannot be seriously doubted. Sita Ram (PW 2) and Gyan Singh (PW 4) have also given good reasons for having been present at the house of the deceased when the incident took place. They were cross-examined at sufficient length but nothing in particular could be elicited from them by reason of which one could doubt the veracity of their testimony. The court below has placed full reliance on the evidence of these four witnesses and we think it was perfectly correct in having done so. 8. MUCH ado was made by the appellant's counsel about the non-examination of Kali Charan in this case. It was urged that he was admittedly present at the time of the incident and if the prosecution would have examined him he would have told the actual truth. Kali Charan was examined in the Committing Court but there he stated certain things which went against the prosecution case. It was urged that he was admittedly present at the time of the incident and if the prosecution would have examined him he would have told the actual truth. Kali Charan was examined in the Committing Court but there he stated certain things which went against the prosecution case. He also filed an affidavit in that court giving a version which was quite different from the one that had been set up by the prosecution. In view of this the prosecution felt that he had been won over by the appellant and that is why it did not examine him at the time of the trial. In these circumstances it can not be said that he was withheld by the prosecution with an oblique motive. Therefore, no adverse inference can be drawn against the prosecution because of the non-examination of Kali Charan in this case. In our opinion, the evidence that has been led by the prosecution is good enough to show that the deceased had never made any attempt to attack the appellant with a spade. Therefore, there was no question of the appellant causing a fatal head injury to the deceased in the exercise of the right of private defence. The appellant was undoubtedly, the aggressor in this case and he was, therefore, rightly convicted by the trial court. Now, the next question is wiat offence the appellant had committed when he killed the deceased. On the facts established in this case we think that it is not a case of murder but is a case: of culpable homicide not amounting to murder. In our opinion, the case falls within Exception I of section 300 of the Indian Penal Code. This Exception reads as follows: -(Exception quoted - Editor). 9. THUS, an accused person claiming the benefit of the aforesaid Exception has to prove (1) that he received provocation; (2) that that provocation was grave and sudden ; (3) that because of that he was deprived of the power of control and (4) that while he was still in that state of mind and before he cooled down caused the death of the person who had provoked. The question whether the provocation was grave and sudden enough to prevent the offence from becoming the offence of murder, is a question of fact and has to be decided like any other question of fact. The question whether the provocation was grave and sudden enough to prevent the offence from becoming the offence of murder, is a question of fact and has to be decided like any other question of fact. It follows, therefore, that each case has to be considered according to its own facts, and the court has to decide in the particular circumstances of every case whether or not the provocation was gravne and sudden. No rule of thumb can be laid down to define as to what provocation is grave and sudden. It has to be judged in relation to the conduct of a reasonable man. What a reasonable man will do in certain circumstances, depends upon the cultural, social and emotional background of the society to which the accused belongs. However, the Court must consider the reaction not of the normal man in the abstract. What the court has to consider is the reaction of a normal man whose impulses are conditioned by the same environment as that of the accused. The accused in this case is a villager with more or less no education. It appears to us that he had not gone to the house of the deceased with the intention of killing him. He had gone there to stop the deceased from digging foundation of the new wall as he thought that it would damage the common wall of the parties. It is true: that when he went to the house of the deceased he carried an axe with him but from that it cannot be concluded with any definiteness that he had carried it with a view to mount an assault on the deceased. For ought we know he might have carried it for his own safety. From the evidence on record it transpires that when the appellant arrived in the Angan of the deceased the latter started abusing him. The appellant also may have abused him but the probabilities are that hurling of abuses must have started first from the side of the deceased because the appellant had come to his house to stop him from digging foundation of his new wall. The appellant also may have abused him but the probabilities are that hurling of abuses must have started first from the side of the deceased because the appellant had come to his house to stop him from digging foundation of his new wall. In Nanawati v. State of Maharashtra, AIR 1962 Supreme Court 605 it was held that mere words and gestures may, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to section 300 IPO. If mere words or gestures can cause grave provocation, then filthy abuses will cause provocation, all the more. Therefore, as the facts of the case stand we think the appellant is entitled to the benefit of the Exception referred to above. The case, therefore, falls within the ambit of section 304 Part I of the Indian Penal Code. In our opinion, the ends of justice will be served if the appellant is awarded a sentence of five years' R. I. under the aforesaid section. 10. IN the result, we allow the appeal in part and set aside the conviction and sentence of the appellant under section 302 IPC instead the appellant is convicted under section 304 Part I of the Indian Penal Code and is sentenced to five years' R. I. He is on bail, his bail bonds are cancelled and he shall be taken in custody to serve out his sentence. --- Appeal partly allowed.