JUDGMENT P.N. Goel, J. - Kapoor, a young lad of 19 years, resident of Village Bhagwanpur, police station Ghazipur, district Fatehpur, has been convicted and sentenced. 2. Facts constituting the manner of occurrence, briefly stated, are these: On the night between 28th and 29th July, 1974, a brass Kasenhra valued at Rs. 150/- of Sukhram Singh P.W. 1, of the village of the appellant was stolen away. He had suspicion on 3 persons viz., Daya Ram, Ram Singh and Kapoor, appellant. On 1-8-1974, he lodged a report about the theft of his utensil. On 9-8-1974 at about 7 A.M. Kapoor, appellant reached at the house of Smt. Ram Kali, deceased, aged about 30 years, widow of Ram Sajiwan, first cousin of Sukh Ram Singh and asked her to open the door. Smt. Ram Kali, opened the door and came out of her house. She asked the appellant to return the utensil to Sukh Ram which he had stolen away. The appellant felt annoyed and took out a knife from his pocket and immediately gave a blow at her abdomen. She fell down. The appellant then gave 2 more knife blows to her. She immediately became unconscious. 3. The village chowkidar lives in an adjoining village, one mile away. He was called. Then at about 9 A.M., the injured was carried in a cot to the police station. At a cycle shop in Ghazipur, Sukh Ram Singh wrote first information report. Sukh Ram Singh along with the injured who was unconscious reached at the police station at 12.30 hours. Sukh Ram Singh lodged the report. The police then sent the injured to Fatehpur hospital. She breathed her last at 4.33 P.M. in Hariharganj, Fatehpur. Consequently, her dead body was taken to police station Kotwali, Fatehpur. Raja Ram Pandey, A.S.I., attached to police station Kotwali held inquest on the dead body. Sheo Kumar Singh, Station officer, Police Station Ghazipur (P.W. 8) entered upon investigation. 4. On 10-8-1974 at 4 P.M. Dr. Bal Krishna Agrawal, P.W. 3 conducted postmortem examination of the dead body and found 3 ante-mortem injuries indicated below:- (1) Incised wound 1.1/2" x 1/4" x muscle deep on right shoulder 1" lateral to clavical joint. (2) Penetrating wound 3/4" x 1/4" x abdominal cavity deep on the front of the body in mid line 2" below xiphisternum. Margins clean cut and gaping. (2) Penetrating wound 3/4" x 1/4" x abdominal cavity deep on the front of the body in mid line 2" below xiphisternum. Margins clean cut and gaping. (3) Incised wound 1/2" x 1/4" x bone deep on the middle phalanx on palmer side of middle finger of right hand. Internal examination revealed : (1) Stab wound in the walls of the abdomen 3/4" x 1/4" x abdomen deep at place of injury no. 2. (2) Stab wound 3/4" x 1/4" x abdomen deep on the peritoneum on the side of injury no. 2. (3) About 1.1/2 litres of clotted blood in the cavity (4) Stab wound 3/4" x 1/4" through and through on the stomach at the site of injury no. 2. (5) Stab wound 1/4" x 1/4" x lumen deep on the descending iota under injury no. 2. 5. The appellant did not admit to have assaulted Smt. Ram Kali as alleged. He asserted that he had been falsely implicated on account of enmity. 6. The prosecution examined 3 persons as eye-witnesses of the occurrence, namely, Sukh Ram Singh, Suraj Pal Singh and Bharosa. The Sessions Judge believed their testimony and convicted the appellant. 7. The appellant is in jail and an amicus curiae was appointed to represent him. 8. We have heard the learned counsel for the parties and carefully examined the record. 9. The appellants counsel assailed the presence of the 3 eye-witnesses at the time of occurrence. He further contended that the appellant was not guilty of the offence punishable under Section 302, I.P.C. and that he could only be convicted under Section 304, I.P.C. 10. On a careful consideration of the (evidence, we are of) opinion that Sukh Ram Singh had not seen the occurrence, that he came up after the assailant had run away and that Surajpal Singh and Bharosa had seen a part of the occurrence and that there was no reason not to accept their testimony. Their evidence clearly proves the prosecution version and implicates the appellant with the crime. 11. Reasons for not accepting the presence of Sukh Ram Singh are as follows :- (1) House of Sukhram Singh faces east. There is a Sahan 40 hathas x 30 or 35 hathas to the east of his entrance door. There is a Neem tree at its north eastern corner. 11. Reasons for not accepting the presence of Sukh Ram Singh are as follows :- (1) House of Sukhram Singh faces east. There is a Sahan 40 hathas x 30 or 35 hathas to the east of his entrance door. There is a Neem tree at its north eastern corner. The house of Smt. Ram Kali is at the back of his house i.e., towards west. Door of the house of Smt. Ram Kali is towards west. The occurrence took place just in front of her door. It is thus evident that Sukh Ram Singh could not have seen as to what was happening at the door of Smt. Ram Kali. While at his house he could only hear what was being talked about at the door of Smt. Ram Kali. (2) In examination in chief Sukh Ram Singh stated that at the time of occurrence he was at the roof of his house and plucking a datoon from a Neem tree. There is no mention in the first information report that Sukh Ram Singh was at the roof of his house and plucking a datoon. He did not state so before the Investigating Officer during investigation. (3) On receiving first injury, Smt. Ram Kali fell down, then she was given two more knife blows. Indisputedly she immediately became unconscious. Sukh Ram Singh has stated that while she was being taken from the village to the police station on being questioned, she said that she had been assaulted by Kapoor. This fact is wholly missing from the first information report. It does show that Sukh Ram Singh can easily perjure himself. (4) Surajpal Singh, P.W. 2, stated that Sukh Ram was on his roof. But he did not see him plucking a datoon. (5) Surajpal Singh and Bharosa did not tell the Investigating. Officer that Sukh Ram saw the occurrence from his roof. 12. The above facts and circumstances clearly indicate that Sukh Ram Singh had not seen the actual occurrence. He appears to have come to the place of occurrence after the assailant had run away. 13. Next question is whether Surajpal Singh and Bharosa had seen the occurrence or a part of it. Suraj Pal Singh has stated that he had gone to get his Hansia and Khurpi from Murli Lohar and that Bharosa was also there. He appears to have come to the place of occurrence after the assailant had run away. 13. Next question is whether Surajpal Singh and Bharosa had seen the occurrence or a part of it. Suraj Pal Singh has stated that he had gone to get his Hansia and Khurpi from Murli Lohar and that Bharosa was also there. Bharosa has also stated the same House of Surajpal Singh is about 200 steps from the place of occurrence. House of Bharosa is about 300-400 steps from the scene of occurrence. House of Murli Lohar is at the north eastern corner of the house of Sukh Ram. It is 25 steps from the scene of occurrence. There is a street to the north of the houses of Sukh Ram and Smt. Ram Kali. These two witnesses rushed on hearing the cry of Smt. Ram Kali. They would have easily reached at the north western corner of the house of Smt. Ram Kali, about 15 steps or so from the house of Murli Lohar within a few seconds. Smt. Ram Kali must have cried on receiving the first blow at her abdomen. Then she fell down. Thereafter the assailant gave 2 more knife blows to her. It is thus obvious that in giving two more blows, the assailant would have taken sometime. In these circumstances Surajpa Singh and Bharosa could see the assailants giving last blows to Smt. Ram Kali who had fallen down. Bharosa clearly stated that he saw last two blows on her. 14. In this connection we have to observe that Surajpal Singh and Bharosa have not been shown to be under the influence of Sukh Ram Singh and the police in any way. Therefore, it does not stand to reason that they would perjure themselves. A vague suggestion was made to Surajpal Singh that his relations with the appellant were strained on account of wages. Surajpal Singh denied the suggestion. Therefore, it does not stand to reason that they would perjure themselves. A vague suggestion was made to Surajpal Singh that his relations with the appellant were strained on account of wages. Surajpal Singh denied the suggestion. Apart from the fact that the defence suggestion in this behalf was vague, there is not a word in the statement of Kapoor that there was any quarrel between him and Surajpal Singh in respect of wages, It was suggested to Bharosa that he was in service of Nanhey Sarraf, that Nanhey Sarraf had money lending relations with Chhiddu, father of the appellant, that there was some dispute between Chhiddu and Nanhey and that he was giving evidence under the influence of Nanhey. Bharosa denied the suggestion. Except the statement of the appellant there is no material on record to show that Nanhey had quarrel with the father of the appellant and that Bharosa was ever a servant of Nanhey. 15. There is also nothing to show that Surajpal Singh and Bharosa had any particular interest in Smt. Ram Kali or her husband Ram Sajiwan who had died a few months before the occurrence. 16. Taking into consideration all these circumstances we are of the opinion that there is absolutely no reason for Surajpal Singh and Bharosa to perjure themselves. It is evident from their evidence that they had at least seen a part of occurrence. Therefore, the case of the prosecution stands established by the testimony of these 2 witnesses. 17. It was pointed out by the appellants counsel that Surajpal Singh and Bharosa were simply chance witnesses. It is not correct. They had come to the place of Murli on purpose which is quite natural and believable. People of the village do go to the place of Blacksmith for getting their implements repaired. There is nothing on record to show that these two witnesses gave out any other reason of their presence to the Investigating Officer. 18. In the result the prosecution has succeeded in proving that the appellant assaulted Smt. Ram Kali with a knife and caused her death. 19. The next question is what offence was committed by the appellant. Prima facie the case falls within clause (4) of Sec. 300, I.P.C. The question is whether the case of the appellant falls within any of the four exceptions to Sec. 300. 19. The next question is what offence was committed by the appellant. Prima facie the case falls within clause (4) of Sec. 300, I.P.C. The question is whether the case of the appellant falls within any of the four exceptions to Sec. 300. Statement of Sukhram Singh and recitals of the first information report indicate that the appellant came at the door of Smt. Ram Kali, that he got the door opened by knocking it, that Smt. Ram Kali opened the door and came out of her house, that immediately then Smt. Ram Kali asked the appellant to return the utensil to Sukh Ram which he had stolen away, that the appellant felt offended and asserted that she was accusing him of theft and that the appellant took out a knife from his pocket and gave a blow at her abdomen. There is nothing to show that the appellant was in any way hostile to Smt. Ram Kali from before the occurrence. As the knife was taken out of the pocket, it can easily be presumed to be a small knife. According to Sukh Ram Singh and Surajpal Singh, the blade of the knife was four anguls and its wooden handle was also about four anguls. This clearly shows that the knife was a small one. Exception (1) to Section 300 lays down that culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation. Explanation to this exception says, "Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact". 20. In the case before us it is evident that the appellant had not come to the house of Smt. Ram Kali to assault her or to cause her death. It appears that he came to her house in the usual manner. He got the door opened. Smt. Ram Kali suddenly said that the appellant should return the utensil to Sukh Ram Singh which he had stolen. It is thus apparent that she accused him of theft. It may be recalled that Sukh Ram Singh had suspicion not only against the appellant but also against two other persons. On hearing accusation, the appellant obviously felt provoked. Smt. Ram Kali suddenly said that the appellant should return the utensil to Sukh Ram Singh which he had stolen. It is thus apparent that she accused him of theft. It may be recalled that Sukh Ram Singh had suspicion not only against the appellant but also against two other persons. On hearing accusation, the appellant obviously felt provoked. It has to be borne in mind that the appellant is a young lad of about 19 years. No person would like to be called a thief. It is thus evident that a grave and sudden provocation was given to the appellant by the deceased. The appellant clearly stated that she was accusing him of theft. The appellant lost his self control. He immediately took out a small knife from his pocket and gave a blow at her abdomen which ultimately proved fatal. After Smt. Ram Kali had fallen down, the appellant gave two more knife blows to her. But these injuries were not dangerous to life. Therefore, the giving of two subsequent blows does not in any way increase the gravity of the offence. 21. For what has been discussed above, the present case, in our opinion, clearly falls within the ambit of exception (1) and as such the appellant cannot be convicted under Section 302, I.P.C. He can only be convicted under Section 304 Part I, I.P.C. The contention of the appellants counsel on this aspect of the matter is well justified. 22. The last question which requires consideration is what will be the appropriate sentence. Assuming for a moment that Smt. Ram Kali had just by the way told the appellant to return the utensil to Sukh Ram Singh which he had stolen away, the appellant should not have so quickly given a very severe blow at her abdomen with a small knife. In this circumstance we are of the opinion that if the appellant is made to suffer imprisonment for 8 years, ends of justice will meet. 23. No other point arises in the case. 24. Appeal is partly allowed in this way that the conviction and sentence of the appellant under Section 302, I.P.C. recorded by the Sessions Judge, Fatehpur are set aside and, instead, appellant Kapoor is convicted under Section 304, Part I, I.P.C. and sentenced to undergo R.I. for 8 years. He is in jail. No other point arises in the case. 24. Appeal is partly allowed in this way that the conviction and sentence of the appellant under Section 302, I.P.C. recorded by the Sessions Judge, Fatehpur are set aside and, instead, appellant Kapoor is convicted under Section 304, Part I, I.P.C. and sentenced to undergo R.I. for 8 years. He is in jail. He shall serve out the sentence awarded to him by this court.